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Cover Stories | Jan 2010

Point/Counterpoint: What does the New Bill Mean to Physicians and Patients?

The ASCRS' positions on current health care legislation.

For more than a year, in anticipation of the debate on health care reform, the ASCRS has been working in conjunction with the surgical coalition, as well as the Alliance of Specialty Medicine, to identify the key principles of health care/Medicare reform that we could support and the lack of which we would oppose. The coalition comprises more than 20 surgical specialty organizations and the American College of Surgeons. We have also made it clear during this time that our mission is to advocate for sound federal health care policy that fosters patients' access to the highest quality of specialty care and that improves their timely access to high-quality medical care. These considerations have formed the basis for our advocacy activity and policy. Within that framework, the first priority for the ASCRS has been the same for many years: the repeal of the flawed sustainable growth rate formula (SGR). The SGR has threatened Medicare physician reimbursement for the past 7 years and will continue to do so until fundamental reform occurs.

In furthering these principles, we have worked with both the House of Representatives and the Senate during the past year. The ASCRS provided substantive comments and input at various stages on those health reform provisions that especially concern surgical/specialty physicians.

House of Representatives
In November 2009, after committee debate and consideration, the House of Representatives introduced its reconciled version of health care reform, HR 3962, the Affordable Health Care for America Act, and a separate bill that repeals and replaces the SGR, HR 3961, the Medicare Physician Payment Reform Act. The House leadership and committee staff listened to our concerns, and as a result, all of our top priorities were addressed positively in the House bill. We were also aware that the Senate legislation would not be favorable in our key areas of concern, despite the same year-long discussion and input.

The House leadership assured the physician community that it intended to pass both bills and viewed the repeal and replacement of the SGR as essential to any meaningful health care reform. The ASCRS Executive Committee, therefore, felt that it was important to support the House legislation so that, if the health care reform legislation ever makes it to a final Senate-House conference on a final bill destined to become law, the House would stand firm on its position related to our key issues. As a result, the ASCRS sent a letter of support of both bills indicating that we viewed them as joint and integral to moving forward with health care reform.

The Senate Finance Committee has jurisdiction over Medicare physician payment. Unfortunately, at the outset, it released “option papers” on our key priority issues that were in direct opposition to our position. Throughout the entire year, in an effort to maintain a “seat at the table,” we provided thoughtful input through our collaborations with the various coalitions and did not threaten opposition to the Senate Finance Committee bill, as the full committee considered it—even though no changes were made to address any of our concerns.

Once the Senate Finance Committee bill was debated and amended by the full committee, and it became even worse with the potential for further reductions in reimbursement, the ASCRS joined the surgical coalition on a letter dated November 4, 2009, that stated we would oppose a final Senate bill if it included those provisions by the Finance Committee. The letter indicated the need to address these concerns to ensure that any final health care reform package would be built on a solid foundation and in the best interest of our patients. Compounding the situation was the fact that the Senate leadership, with very short notice to the physician community, held a vote on a separate SGR bill that would have repealed, but not replaced, the flawed formula, and it failed.

Despite the communication signed by more than 20 surgical specialties, the final Senate Health Care Reform Bill and the Patient Protection and Affordable Care Act failed to adequately address our concerns. As a result, the ASCRS recently joined 19 surgical specialty groups with a letter that refers to the November 4, 2009, letter and states our opposition to the bill as currently written. We also signed a similar letter from the Alliance of Specialty Medicine. Both letters outline the issues of concern, cite a few positive aspects of the bill, and conclude with a commitment to working with the Senate to make the changes that are vital to ensuring that the legislation is based on sound policy and will have a long-term positive impact on patients' access to safe and effective high-quality surgical care.

It is important to note the differences between the two bills (House vs Senate) to further illustrate the reasoning behind the ASCRS Executive Committee's position and strategy. The following sections present a breakdown of the House versus the Senate bill on the key provisions affecting ophthalmology.

SGR REFORM The Senate bill includes a 1-year, short-term patch to prevent the 21% cut but, as a result, creates further reductions in the future. The House bill (HR 3961) eliminates the 21% cut as well as the debt that has accumulated. Instead, 2010 Medicare physician payments would be updated based on the Medicare Economic Index. After 2010, there would be two separate targets for physician services: one for evaluation and management services and another for all other services. Annual updates would be based on the Gross Domestic Product plus 2% and Gross Domestic Product plus 1%, respectively.

Most recently the Senate voted to support a 60-day in the scheduled 21.2% physician payment cut. There is no longer a proposed 1-year fix, and in the bill currently there is no long-term fix for the SGR formula.

The Senate bill establishes the Independent Medicare Advisory Board, which would initiate broad changes to the Medicare program with limited Congressional input. This measure is not included in the House bill.

The Senate bill mandates participation in the flawed PQRI program with penalties for not participating. In the House bill, the PQRI remains voluntary, and bonus payments are extended through 2012.

The Senate bill provides bonus payments to primary care and rural general surgeons funded through reductions in payment to all other physicians. The House bill provides a bonus payment that is not paid for by cuts to other physicians.

The language now states that this will not be budget neutral (ie, not by reductions in payments to other providers).

The value-based purchasing modifier was added during the Senate Finance Committee's deliberation. The Senate bill creates a budget-neutral, value-based payment modifier, which the Centers for Medicare & Medicaid Services do not have the capability to implement and creates an unrealistic and unachievable timeline. This modifier is not included in the House bill.

After the most recent Senate vote, value-based purchasing language has been added to the bill for ambulatory surgery centers

This measure was added by the leadership during the development of the final merged Senate bill. The Senate bill initiates taxation of elective cosmetic medical procedures and places physicians in the role of tax collector. The tax is not included in the House bill.

After the recent Senate vote, however, this tax was eliminated.

The House legislation (HR 3961 and HR 3962) passed the House of Representatives in November 2009. As this article goes to press, the Senate bill is currently being debated on the Senate floor and changes daily. The final reconciled health care bill has not yet been written. There are still opportunities to effect change, as the final House and Senate bills will have to be reconciled through a conference committee and brought back to both bodies for approval before the legislation goes to the President for his signature. It remains to be seen how quickly this process will be accomplished or if it can achieve a comprehensive overhaul of the entire health care system.

The ASCRS is not committed to any promised future support and will be evaluating each step as it develops. Our current plan of action is to continue to work with the surgical/specialty community to alter the language of the Senate's legislation with respect to our priorities. When the final amended Senate bill goes to the Senate floor for a vote, we will evaluate it based upon the criteria of our principles and priorities for a decision of opposition, support, or no action. We believe that our decision to support the House legislation, which addresses all of our priorities in a favorable manner and illustrates our support for meaningful national health care reform, puts us in the best position to improve and strengthen the final legislation that is signed into law.

Many—perhaps most—members and leaders of the ASCRS would not choose to make massive health care reform a legislative priority at this time. Nor would they choose gargantuan bills with implications that exceed intelligent analysis. The political reality is that a single dominant party in both the Senate and House has partnered with a same-party President to make health care reform (a marketing term) a top priority. We are well aware that the issue on the table is medical care insurance, not the broader issue of health that remains unaddressed, even though poor personal health choices are a major driver of medical costs.

One option is just to say no, and many physicians believe in that choice. Individuals have the freedom to pick up their toys and leave the playground by opting out of Medicare. As a societal action, however, just saying no leaves our members who serve the elderly and continue to participate in Medicare with no voice in national decision making.

Alternatively, we can accept the current political reality and make the best of it. Physicians' opinions are given little weight in the proposed legislation. The ASCRS has supported, among others, Tom Coburn, a US Senator (R, Oklahoma), and physician whose health legislation proposals have not been adopted. Ophthalmology, despite its realtively small size, exercises a disproportionately influential voice but does so within a politically marginalized medical community.

ASCRS chooses to work on behalf of its members by positively and forcefully remaining part of the process. None of the current bills will be the final outcome. Once final legislation is determined, the ASCRS' leadership will use its best judgment about what support, if any, to give to the proposed final law.

The members of the ASCRS Executive Committee are Priscilla Arnold, MD; David Chang, MD; Alan Crandall, MD; I. Howard Fine, MD; Edward Holland, MD; Douglas Koch, MD; Stephen Lane, MD; Richard Lindstrom, MD; Nick Mamalis, MD; Stephen Obstbaum, MD Bradford Shingleton, MD; Roger Steinert, MD; and R. Doyle Stulting, MD, PhD. Nancey McCann, the director of government relations for the ASCRS, has contributed greatly to the ASCRS' strategy and to this summary.

Priscilla P. Arnold, MD, is the chair of the Government Relations Committee of the ASCRS. Dr. Arnold may be reached at prisarnold@gmail.com.

Roger F. Steinert, MD, is the Irving H. Leopold professor and chair and director of the Gavin Herbert Eye Institute at the University of California, Irvine. Dr. Steinert may be reached at steinert@uci.edu.

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Jan 2010