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 Government Affairs Newsletter, May 2011

  • ​Provider Antitrust Exemption Bill Building Bipartisan Momentum on Capitol Hill
  • House Subcommittee Holds Hearing on Medicare Payment Reform
  • Liability Reform Bill Works its Way Through House Committee
  • States Eye Public Access to More Doctor Disciplinary Records
  • Two More Senators Introduce Bills to Publish Medicare Claims Data
  • Special Report: Physician Employment of Physical/Occupational Therapists, By Blair Filler, MD, Los Angeles, CA

Provider Antitrust Exemption Bill Building Bipartisan Momentum on Capitol Hill - From AAOS
Much like the country’s largest corporations, the health care sector is subject to federal antitrust regulations.  In fact, current law does not allow health care providers to work together to pursue fair reimbursement rates, while current antitrust enforcement policies and recent health care industry consolidations enable a select few health plans to dominate the health care market and unilaterally set rates. Whenever physicians attempt to remedy this imbalance by asking for equitable rates of reimbursement, they open themselves up to investigations for collusion by the Department of Justice and the Federal Trade Commission.
 
After suffering at the hands of these unfair policies for more than a half-century, orthopaedic surgeons and other health care providers have some hope for relief in H.R. 1409.  This bill, also known as the Quality Healthcare Coalition Act of 2011, was introduced by Rep. John Conyers (D-MI) on April 7, 2011 in the U.S. House of Representatives, and was subsequently referred to the House Judiciary Committee for further consideration.
 
The passage of H.R. 1409 will be extremely beneficial to physicians, patients, and the nation’s entire health care system as a whole.  First, this bill will allow physicians to negotiate fair reimbursement rates from insurers without fear of violating federal antitrust laws.  Second, physicians’ ability to negotiate better contracts will enable them to deliver high-quality health services and protect patient safety, while also bending the cost curve by cutting wasteful spending.  Third, this bill will expand the public’s access to care by attracting a new generation of qualified clinicians to replace a dwindling healthcare workforce.  Finally, the passage of this bill will protect physicians who intend to work with other health care providers to provide integrated health care services as part of future private Accountable Care Organizations (ACO).
 
So far, AAOS has been working with public and private partners to build bipartisan support for this important piece of legislation.  Congressman Conyers has proven to be a stalwart champion of antitrust reform since he spoke to AAOS’ membership at the Fall Meeting last year.  In recent weeks, Representatives Ron Paul (R-TX), Donna Edwards (D-MD), and Jeff Miller (R-FL) have signed on as co-sponsors to the bill.
 
The bill’s prospects of passage remain unclear, and past attempts to pass antitrust reform failed to gain much momentum.  However, the increased bipartisan support that is being generated this time around indicates that the prospects for this bill are better than in years past.
 
House Subcommittee Holds Hearing on Medicare Payment Reform - from ACS
The House Ways and Means Subcommittee on Health held a May 12 hearing on "Reforming Medicare Physician Payments" to explore new models of delivering and paying for physician services. The subcommittee has indicated that this hearing will be the first in a series centered on reforming the broken Medicare physician payment system, which is scheduled to result in a 29.5 percent physician reimbursement cut on January 1, 2012. The subcommittee’s focus at this hearing was on models that could have the potential to both improve quality of care and constrain rising health care costs. For more information about the hearing, go to
http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=240001.
 
Liability Reform Bill Works its Way Through House Committee - from ACS
On May 10, the House Energy and Commerce Committee began a "markup" of H.R. 5, the Help Accessible, Efficient, Low-cost, Timely Healthcare or HEALTH Act. H.R. 5 was introduced in January by Rep. Phil Gingrey (R-GA) and would, among other things, accomplish the following: cap noneconomic damages at $250,000; limit contingency fees paid to attorneys; institute a "fair share" rule that allocates damages in direct proportion to fault; and require periodic payments of future damages. The committee held a hearing on the bill in April, and the House Judiciary Committee, which has primary jurisdiction over tort reform, held a hearing and marked up the bill in February. The next step for this legislation will be consideration by the full House of Representatives. For more information on the markup, including a committee memo, the chairman’s prepared remarks, and a list and text of amendments, go to http://energycommerce.house.gov/News/PRArticle.aspx?NewsID=8594&IID=9.
 
States Eye Public Access to More Doctor Disciplinary Records - from AMA
A long-running push for increased transparency in the medical profession has led medical boards nationwide to release more information about physicians' professional and disciplinary history online during the last 15 years. Even so, exactly what is publicly available -- both to consumers seeking information online and families inquiring about a specific physician or complaint -- varies greatly. States are hearing from consumers that not enough information is available or easily accessible. So at least five states have recently passed or are considering legislation that would create more transparency, particularly regarding physician disciplinary records and procedures. The measures would release more physician information, make that information easier for consumers to get, and provide quicker responses on requests to investigate physicians. Read the full story.
 
Two More Senators Introduce Bills to Publish Medicare Claims Data - from AMA
Two additional senators have proposed separate bills to open Medicare claims data to the public, a move that doctors organizations have opposed on privacy and anti-fraud grounds. Sens. Dick Durbin (D, Ill.) and John Cornyn (R, Texas) introduced their versions of Medicare transparency bills on April 14. Sens. Charles Grassley (R, Iowa) and Ron Wyden (D, Ore.) introduced a joint transparency bill earlier in the month. Even though the three bills are different, all would accomplish the same goal of opening billions of claims filed by health professionals every year to public scrutiny.
 
"While the federal government has stepped up fraud detection and enforcement, allowing nongovernmental groups access to data can also play a role in detecting fraud," Durbin said. "My legislation would bring transparency to the Medicare program by providing basic information about how taxpayer dollars are being spent in order to shine a light on any abuse within the system." The Durbin bill, the Medicare Spending Transparency Act of 2011, would publish summary-level claims data on individual physicians and other health professionals annually. Information would include the amount paid, number of unique patients seen, total number of patient visits, and a list of the top 50 diagnosis and service procedure codes claimed. Read the full story.
 
By, Blair Filler, MD, Los Angeles, CA
There are two national trends that involve Physicians and Physical Therapists: direct access to patients and physician owned physical therapy services (POPTS). Direct access would allow physical therapists to treat patients without first seeing a physician.  POPTS legislation would prevent doctors or physician groups from employing therapists. The American Physical Therapy Association (APTA) has long held that POPTS is not only a conflict of interest for health care providers, but could also subject patients to unnecessary inconvenience, expense and treatment. In South Carolina POPTS is illegal.
 
During the current legislative session the California Physical Therapy Association has proposed a POPTS bill in California that will also affect Occupational Therapists. 
 
The California Physical Therapy Association and the Physical Therapy Examining Committee (PTEC) have long supported national and statewide mandates that give physical therapists direct access to patients and to prevent physical therapists from being employed by medical corporations.  The separate and smaller occupational therapy association has been drawn into this restrictive proposal because occupational therapists are licensed professionals who will be expressly prohibited from being employed by a medical or podiatric corporation. 
 
Recently, the PTEC obtained a Legislative Counsel opinion as to whether a physical therapist can be employed by a medical corporation.  The Legislative Counsel concluded that a physical therapist may be subject to discipline by the PTEC for providing physical therapy services if they are an employee of a medical corporation.  The California Orthopaedic Association (COA) is concerned that the PTEC will interpret "may be disciplined" as "shall be disciplined." It is anticipated the PTEC will then send threatening letters to physical therapists working in physician’s offices notifying the therapists that they may be subject to disciplinary action.  If the new ruling is imposed it is quite possible that physical and occupational therapists and other licensed health professionals can no longer be employed by a California medical or podiatric corporation.
 
The COA is concerned that this will lead to statewide disruption of patient care. Physicians who employ therapists will have to either terminate their relationship with their physical therapists/occupational therapists or restructure their therapy arrangements making it more difficult for physicians to supervise and advise the therapists treating complex and worrisome issues.  COA has sponsored legislation – AB 783 – to clarify that physical therapists and occupational therapists may be employed by a medical or podiatric corporation and is exploring other legal options to address this issue. AB 783 has passed the House and now moves to the Senate.
 
COA worked with a Coalition to get AB 783 passed.  Involved in the Coalition are the California Podiatry Association (CPA), Kaiser, California Medical Association, and numerous labor groups to counteract the California Physical Therapy Association direct access and POPTS bill. Nearly 50 employed physical therapists came to Sacramento to testify in support of the bill.  The bill recently unanimously passed the Assembly Business and Professions Committee and will now be brought to the Assembly floor. The COA fully expects the well funded local and national physical therapy associations to continue to oppose the legislation.
 
Although California law prohibits a physical therapist from making a diagnosis, the Physical Therapy Examining Committee has also proposed regulations that would require physical therapists to obtain training in patient "examination, evaluation and diagnosis." The COA has questioned the need for this continuing education requirement.  There is a concern that if accepted, physical therapists will later claim they are as well trained as a physician in making diagnoses.  This issue is currently being carefully watched by the COA.
 
California is frequently a bell-weather state for issues pertaining to medical practice.  It is vital that issues affecting medical and surgical practice as well as ancillary care be closely monitored in this era of expanding infringement on the practice of medicine by non-physician providers.