It is often challenging for any of us to comprehend the legislative process. Our professional training has taught us to tackle issues straightforwardly -- carefully define the problem, explore plausible solutions, evaluate the cost-benefit of various solutions, and then act. Oh, if only government worked with the logic of efficient businesses!
Congressional consideration of the Medicare fee schedules for physicians and rehabilitation professionals is fast becoming a classic case study of how not to solve problems. Over the course of the past six months, there have been as many votes on legislation addressing the Medicare professional fee schedules as months. The House of Representatives has passed three different versions of revisions plus stop-gap extenders. The Senate has twice rejected more permanent revisions and Senate leaders have set aside a full year extension. The Senate last month passed a seven month extension as part of the American Workers, State and Business Relief Act (H.R. 4213). The “hang-up” is how to pay to fix defective legislation enacted over a decade ago.
Congress left for its April recess without completing action on the Continuing Extension Act (H.R. 4851) providing a 30-day (April 1-April 30) extension of a potpourri of programs that included preventing a 21% reduction Medicare professional fee schedules. While the measure passed the House of Representatives, consideration of the legislation in the Senate was blocked on a procedural motion. This same scenario occurred the end of February when a single Senator blocked action on a temporary continuance of current law.
On April 12, the Senate returned, tanned and rested, to take up the procedural objection. On a 60-34 vote the Senate voted to proceed with consideration of the substantive legislation. Given that half the month has already passed, Senate Finance Committee Chair Max Baucus offered an amendment preserving the Medicare professional fee schedules through May 31. Consideration of this amendment was initially blocked by a procedural vote; finally leadership was able to secure the 60th vote to proceed with consideration of the Baucus Amendment. The Senate is expected by a narrow partisan margin to pass the extension legislation this week. However, if the revisions proposed by Senator Baucus are adopted, the measure will need to be returned to the House of Representatives for agreement before the measure is forwarded to the President to sign it into law.
Given the extreme partisan alignment in the Senate, and the need to secure 60-votes to cut off filibusters, expect the Medicare professional fee schedules will continue to be a political football. The probable near-term outcome will be House passage of H.R. 4213 as passed by the Senate. Just as with healthcare reform, the alternative of not passing the identical measure is the potential of a renewed Senate filibuster. This would protect the fee schedule through September 30. A more permanent correction of the law will probably not occur until after the November Congressional elections, suggesting there may be need for another series of short-term extensions of existing law.
In past years, consideration of the Medicare Part B therapy cap exceptions process has been linked with actions addressing the Medicare fee schedules. This Congress, the two issues have been considered separately. Indeed, last fall when Congress protected the Medicare professional fee schedules through February 28, there was no relief for beneficiaries confronting the Medicare Part B therapy cap. That legislative relief came retroactively with passage of the Temporary Extension Act (H.R. 4691) on March 2. An additional extension through December 31, 2010 was included in the recently enacted healthcare reform law (Section 3103 of the Patient Protection and Affordable Care Act).
While another year of the Medicare Part B exceptions process is better than nothing, and the full-year extension of the exceptions process is superior to the uncertainty being experienced with the Medicare professional fee schedules both issues underscore the disconnect between Congress and what we do. In lieu of decisive decision-making, Congress has adopted “a kick-the-can down the road” mindset. They are conscious that the underlying law is flawed, but somewhat clueless as to the consequences of their inactions. The burden shifts to each of us as advocates for our residents and professions to let them know that it is impossible to sustain high quality care without clarity about the rules and reimbursement.