On Christmas Eve, the Senate approved health care legislation, HR 3590, by a strict party-line vote of 60-39; with just enough votes to prevent further debate or filibuster. The bill was in the process of closed reconciliation amongst the democratic leadership of the House, Senate and White House when the election of Scott Brown of Massachusetts seemed to have derailed the entire reform effort. Brown had campaigned against the health care reform bill promising that he would end the democratic party supermajority in the senate and thwart passage of the bill. The President and House Speaker Pelosi remain committed to pushing the bill through despite strong opposition from the American people and they are contemplating using the budget reconciliation process to do so. Thus, the bill is not quite dead yet and I would like to review its many flaws here.
Both the AAOS and AANA have joined a coalition of thirteen other specialties in opposition to the bill through Physicians United for Patients (physiciansunitedforpatients.org). That our parent and specialty organizations have come out publicly against this bill speaks to its’ many deficiencies. They include:
• The creation of an Independent Payment Advisory Board that will have the power to determine coverage decisions. The Board will be made of unelected appointees that must submit coverage policy to the President and Congress. This will politicize treatment decisions best left to physician and patients. It may be hard fighting with insurance companies; imagine having to go to Congress to affect treatment decisions!
• New comparative effectiveness research programs (CER) similar to the NICE (National Institute for Health and Clinical Excellence) board in the UK that rations care and leads to as many as 15,000 premature cancer deaths in that country per year according to the National Cancer Intelligence Network.
• The bill depends on the recommendations of the US Preventive Service Task Force in setting coverage and treatment policy. This is the same organization that recently caused such an uproar over advising woman under 50 not to undergo annual mammograms.
• The bill nationalizes insurance regulations including mandatory community rating and the prohibition of denial of coverage based on previous medical conditions. This will drive up the cost of insurance in the majority of states which currently do not have such rules. New York has had such regulations since 1994 and our insurance costs are two to three times costs in other states. Wellpoint ran an actuarial analysis of its insurance programs and found that this will cause a significant (up to 168% in some instances) increase in premiums.
• 6.7 Billion in new fees (taxes) on insurance companies to help fund the bill. Where do the Senators think the money for this new tax will come from? The bill also dictates insurance executive salaries and limits their profitability. I am no fan of the insurance companies but making them federally controlled utilities will not reform the perverse incentives created by the current third-party payer system.
• New payroll taxes for those earning over 200,000.
• Failure to address reform of the SGR (Sustainable Growth Rate) of Medicare.
• 400 million dollars in Medicare cuts over the next 10 years. Medicare will be insolvent in seven years if unreformed. The bill’s answer to that fact is this cut. It is also necessary to keep the overall cost of the bill under the arbitrary 1 trillion dollar cost set by the President. If history is any guide, these cuts will never materialize because Congress knows that the program is already underfunded and that making these cuts will limit seniors’ access to health care as doctors flee the system. This is why they have voted every year to override the hated SGR and not cut provider fees.
• An expansion of Medicaid to those well above the poverty level. Medicaid is the largest line item in many state budgets. Increasing eligibility will place enormous stress on state budgets already crippled by the current economic climate. It will necessitate huge state tax increases, unless you live in Nebraska where Senator Ben Nelson was able to negotiate no increases for new Nebraskans in Medicaid in exchange for his yes vote. So all the rest of us get to pay for the Nebraskans and also those from Louisiana, since Senator Mary Landrieu also switched her vote to yes in exchange for 300 million in Medicaid subsidies to her state. In addition, all these newly insured will find that 40% of doctors do not accept their new insurance so by definition they will be underinsured.
• The creation of government run exchanges that will subsidize insurance for those making up to 400% of the poverty level, or $96,000 per year. Under the Senate bill, someone who earned $42,000 would get $5,749 from the current tax exclusion for employer-sponsored coverage but $12,750 in the exchange. An employee making $60,000 would get $3,758 in the current system and $8,310 in the exchanges. This will significantly distort the labor market making much more attractive for small business to offload insurance costs to the exchanges or to make employee "contractors". It also may significantly underestimate the government’s costs as more employers flee the private insurance market for the exchanges.
• The creation of health care insurance mandate. All individuals will be forced to purchase some type of health insurance or face a fine of $750 that will be levied by the IRS. Some may chose to pay the rather small fee and not get insurance. This would be especially attractive for young, healthy males since they will be able to purchase insurance anytime they have a medical problem under the guarantee issue part of the bill. Some legal experts believe that such a mandate is unconstitutional and it is likely to face protracted battles in the courts.
• New taxes of 2 billion (increasing to 3 billion in 2018) on medical device makers. Our specialty is technology and device intensive. Our collaboration with the device industry has been a resounding success with the benefits accruing to our patients in terms of less pain, scarring and improved outcomes. It has also greatly facilitated orthopadic education sponsored by AANA. This tax represents a real threat to innovation, patient care and education.
• Limitation and new taxes on Health Savings Accounts. These accounts are popular because they give patients more control over how they spend their health care dollars. In an era of rising copays and deductibles they are a great hedge against increased expenses and offer a way for patients to control their own costs. I know, I’ve had one for five years. They will be severely limited in this bill.
• Restrictions on Medicare Advantage. This popular program, which enrolls about 20% of Medicare recipients will be slowly abolished. Unless you live in Florida where Senator Bill Nelson negotiated a 3 billion dollar deal to exempt Florida seniors who currently have Medicare Advantage from losing their benefits.
• Severe limitation on physician owned hospitals.
• No serious effort at tort reform as a potential health cost saver.
This legislation will affect all of us as practicing surgeons, as employers and as patients. We will face threats that will severely curtail our ability to care for our patients. We will be limited by central decision makers in Washington determining coverage and treatment options. We will be limited in our ability to order diagnostic tests and use new instruments and devices. What happens when the CER says that rotator cuff repair is ineffective? Think it can’t happen? Our patients will face increasing insurance costs and limitations of coverage; especially seniors who face rationing of their care. As employers we will see our insurance cost increase and will face the possible elimination of health care insurance from the benefits we offer our employees.
This bill is reckless, irresponsible and poorly constructed. In many provisions it may violate the Constitution. The unintended consequences will be manifold. It does not lower or control costs, it increases them. It does not improve quality, quality will suffer. It does increase access for some, but not all, of those who currently lack insurance. Some, like those on Medicaid, will remain underinsured. The debate on this bill is not over. There is still time to call your representatives and senators to tell them to vote against this legislation.
Coding Corner
The phrase “experimental and investigational” incites feelings of anger, frustration and despair in the heart of every provider. The orthopedic list of experimental and investigational procedures has been reviewed and there are many Category I CPT codes on the list. What is the specific issue? Providers look to the logic of our system for protection and to the associations to which we belong to stand up for what is right. There seems to be a persistent unwillingness of the CPT “owner”, the AMA, to stand up for what a Category I CPT means. On the AMA website the following information is available.
“Criteria for Development and Evaluation of CPT Category I and Category III Codes
In developing new and revised Category I codes the CPT Advisory Committee and the CPT Editorial Panel require:
• That the service/procedure has received approval from the Food and Drug Administration (FDA) for the specific use of devices or drugs;
• That the suggested procedure/service is a distinct service performed by many physicians/practioners across the United States;
• That the clinical efficacy of the service/procedure is well established and documented in U.S. peer review literature;
• That the suggested service/procedure is neither a fragmentation of an existing procedure/service nor currently reportable by one or more existing codes; and
• That the suggested service/procedure is not requested as a means to report extraordinary circumstances related to the performance of a procedure/service already having a specific CPT code.”
Specifically - That the clinical efficacy of the service/procedure is well established and documented in U.S. peer review literature. Explain then how any procedure that has a Category I CPT code can be misconstrued as “experimental and/or investigational.” Explain why the denial of a Category I CPT coded procedure because of the insurers assertion that it is “experimental and/or investigational” does not create anxiety and fire at the AMA. The insurer is questioning the essence of the entire coding system/CPT and the legitimacy of the CPT Editorial Panel. The insurer is “cherry-picking” the system by endorsing the system by its use and then negating the entire system by denying its components. Where is the logic in this practice? When is the AMA going to speak out? When is the AMA going to stand up for its members/its patients? When is the AMA going to deny use of CPT to insurers who continue these practices? It is time to realize that will not likely happen. Who will stand up? Despite position statements deploring this practice, the AAOS, AANA and AOSSM and any other society that stands for patient rights, must do more. This is not an issue of physician reimbursement. This is an issue of patient care, of denial of necessary treatment, and of justice for beneficiaries who have no idea of the battles that we providers fight and must continue to fight every day on their behalf. Solute to the societies and their members that remember patients and continue to dedicate their professional lives to these ideals. We all must speak up!