The 112th Congress: The year in review

Following a few tumultuous years of debate regarding the future of the nation’s health care system, 2012 moved at a much slower pace as both parties infused more politics into the debate with an eye toward the national elections in November. However, the American College of Surgeons (ACS) remained focused on advancing its health policy agenda throughout the year. This article summarizes the ACS’ steadfast efforts to lobby for the primary issues of concern to Fellows.

Physician payment: Groundhog Day

At press time, one month before the elections, payment issues had yet to be resolved, but were on the agenda for the lame-duck Congress in late November and December. Throughout the final months of the year, the ACS has been advocating for legislation that would avert the annual cuts to Medicare physician payment.

For the past decade, surgeons have consistently advocated for permanent reform of the Medicare payment formula. In that time, Congress passed more than a dozen short-term patches, although its members have been unable or unwilling to permanently reform Medicare’s physician payment system. Because of Medicare’s flawed payment formula, known as the sustainable growth rate (SGR), Medicare physician payments are currently scheduled to be reduced by 27 percent on January 1, 2013, according to the Congressional Budget Office. Consequently, the cost of permanently fixing this problem grows exponentially. In 2005, a permanent fix would have cost less than $50 billion. Today, a 10-year freeze in payments would cost $271 billion. In just a few short years, this cost could grow to more than half a trillion dollars. Over the past year, when presented with two opportunities to fully repeal the SGR by offsetting the cost to repeal with funds unbound by the winding down of the wars in Iraq and Afghanistan, otherwise known as Overseas Contingency Operations funds, Congress chose to push off the issue, leaving surgeons to face a cut in payments at the beginning of the year.

If that weren’t enough, passage of the Budget Control Act and the failure of the so-called “Super Committee” that was established to specify an additional $1.2 to $1.5 trillion in federal spending cuts will result in $1.2 trillion in mandatory cuts to federal programs on January 2, 2013. The Medicare portion of these mandated cuts is expected to reduce Medicare physician reimbursement by 2 percent. This reduction is separate from and in addition to any cuts resulting from the SGR.

Meanwhile, sequestration will have a major effect on a number of health programs, including the following cuts:

  • National Institutes of Health: $2.5 billion (8.2 percent)
  • Centers for Disease Control and Prevention: $490 million
  • U.S. Food and Drug Administration: $318 million
  • Graduate medical education (GME) funding put at risk
  • Department of Defense armed services health care: $3.2 billion
  • Prevention and Public Health Fund: $76 million

The volatility and instability of the current system not only threaten Medicare beneficiaries’ access to care but also make it next to impossible to adopt meaningful reforms. A number of other factors, such as the Independent Payment Advisory Board (IPAB), threaten physician reimbursement in the future. The IPAB will be tasked with controlling spending by cutting providers and a number of payment modifiers for programs such as the Physician Quality Reporting System, e-prescribing, and meaningful use of electronic health records, which are moving from incentives for participation to penalties for nonparticipation.

Medical liability reform—Restoring balance to the legal system

Medical liability reform continues to be a significant priority for the ACS and its members. For more than a decade, many Fellows of the College and their practices have seen their liability insurance premiums skyrocket, regardless of whether they have ever been sued.

This October, the ACS convened its first Medical Liability Reform Summit. The all-day session examined different solutions being tested in the states and health systems to address the medical liability system and its impact on patient care and physicians. This proactive program brought renowned experts from around the country to delve into such topics as safe harbors, alternative dispute resolution, disclosure and offer programs, and health courts. In early 2013, the ACS plans to make available to the members summary articles from the Summit.

In a number of states, surgeons are having difficulty obtaining medical liability insurance, and for those who are able to find coverage, the cost is often prohibitively high. Although legislatures in some states have addressed this issue through various means, some state courts have overturned liability legislation, and others have enacted laws too weak to keep premiums reasonable. Many surgeons are moving to states where strong medical liability reforms are in place so they can continue practicing or they are choosing to retire early, further reducing an already insufficient workforce. At the same time, reimbursement from Medicare and other insurers is declining, providing no way to offset the continuing escalation in premium costs. This situation has forced some practices to borrow money in order to pay malpractice premiums.

The College has long advocated for the federal adoption of health care liability reforms similiar to those enacted in California under the Medical Injury Compensation Reform Act of 1975, including:

  • Reasonable caps on noneconomic damages
  • Protections for physicians providing Emergency Medical Treatment and Labor Act (EMTALA) mandated care
  • Alternatives to civil litigation, such as health courts and early disclosure and compensation offers to encourage speedy resolution of claims
  • Protections for physicians volunteering services in a disaster or local or national emergency
  • Limits on plaintiff attorney contingency fees
  • Protections for physicians who follow established evidence-based practice guidelines
  • Collateral source payment offsets that prevent duplicate payments for the same expense
  • “Fair share” rule
  • Periodic payment of future damage awards greater than $50,000
  • Application of punitive damages only when there is clear and convincing evidence that the defendant intended to injure the claimant

This past year saw a number of medical liability reform bills come before Congress, many of which the College supports. Examples include:

  • Rep. Phil Gingrey (R-GA) and Sens. Roy Blunt (R-MO) and Mark Kirk (R-IL) introduced the Help Efficient, Accessible, Low-cost, Timely Healthcare Act (HEALTH), which the Congressional Budget Office estimates will generate more than $57 billion in savings to the federal government over 10 years and reduce overall national health care spending by 0.5 percent. This legislation includes many of the policies that the College supports.
  • In addition, the ACS supports more targeted legislation, such as the Health Care Safety Net Enhancement Act (H.R. 157) sponsored by Rep. Pete Sessions (R-TX). This legislation will benefit physicians who comply with EMTALA mandates, which require physicians to provide stabilizing care to patients who go to hospital emergency departments, regardless of ability to pay. The problem is notably severe for surgeons who provide complex, high-risk surgical care to severely injured patients. The likelihood of not receiving reimbursement and high liability risk are broadly acknowledged as key contributors to the growing shortage of specialists participating in emergency on-call panels. The Health Care Safety Net Enhancement Act will help to address this growing problem by providing Public Health Service Act liability protections to physicians who provide EMTALA-mandated care.
  • The Good Samaritan Health Professionals Act (H.R. 3586) is another targeted bill, which Reps. Cliff Stearns (R-FL) and Jim Matheson (D-UT) introduced. Rapid medical response in a disaster can greatly decrease loss of life and improve outcomes for patients who desperately need care. However, when a disaster strikes, the needs of victims often overwhelm the services available locally. The medical profession has a long history of stepping forward to assist disaster victims. Unfortunately, the Volunteer Protection Act, enacted specifically to encourage such actions, failed to address the issue of liability protections for health care providers who cross state lines to aid disaster victims. The Good Samaritan Health Professionals Act will ensure that health professionals who wish to provide voluntary care in response to a federally declared disaster can do so without worrying about potential liability.

These three liability reform bills were passed by the House during the current session of Congress but stalled in the Senate. The ACS will continue to support a wide range of policies aimed at improving the liability climate in the U.S., expandinging access to on-call surgeons, and ensuring that providers are able to volunteer during an emergency.

Surgical workforce—Protecting the current and future generations

A growing body of evidence points to an ongoing and increasing shortage of surgeons available to serve the nation’s aging and growing population. According to the Association of American Medical Colleges’ Center for Workforce Studies, the U.S. will face a shortage of 46,000 surgeons and medical specialists in the next decade—a startling and troubling statistic for both surgeons and patients.

Furthermore, this summer, the ACS Health Policy Research Institute (HPRI) at the University of North Carolina’s Cecil J. Sheps Center for Health Services Research, Chapel Hill, NC, released updated maps illustrating the distribution of general surgeons and surgeon specialists per 100,000 populations across the U.S. in 2006 and 2011. The maps contain data that are reflective of all 3,107 counties in the U.S. They indicate that in the time frame studied, 181 counties lost all of their surgeons, whereas 161 gained at least one surgeon by 2011 after having none in 2006, and 680 counties and county-equivalent areas had no surgeons in both 2006 and 2011. Visit the ACS HPRI website to access the surgical workforce maps.

The ACS is carefully monitoring legislation and activities that could affect the surgical profession and patient access to high-quality care, and continues to advocate for policies that are designed to strengthen the surgical workforce.

The ACS endorsed and is advocating for passage of the Resident Physician Shortage Reduction Act of 2011 (S. 1627). Sens. Bill Nelson (D-FL), Charles Schumer (D-NY), and Senate Majority Leader Harry Reid (D-NV) introduced this legislation, which seeks to bolster the U.S. surgical workforce and health care infrastructure by increasing the number of Medicare-supported residency positions. More specifically, the bill would increase the number of residency slots nationally by 3,000 each year from 2013 through 2017, totaling 15,000 slots. In 1997, the Balanced Budget Act froze the number of residents for which a hospital could claim Medicare payment based on the number of residents that each hospital trained in 1996. Although the ACS would prefer that Congress lift the present caps on GME funding entirely, the ACS supports this legislation for taking an important step toward addressing physician workforce shortages.

Under the Resident Physician Shortage Reduction Act, half of the new residency slots must be used for shortages in specialty residency programs as defined by the Health Resources and Services Administration. The measure also directs the National Health Care Workforce Commission to study the physician workforce and identify specialties that are experiencing shortages. A report on the findings must be submitted to Congress by January 1, 2014. The proposed law also directs the U.S. Comptroller General to conduct a study on strategies for increasing the diversity of the health care workforce. Results of the study must be made available to Congress no later than two years after the date of the bill’s enactment.

The ACS has joined a number of other health care organizations, including the American Medical Association, the American Hospital Association, and the National Rural Health Association, in supporting the Conrad State 30 Improvement Act. This legislation, which Sens. Kent Conrad (D-ND) and Jerry Moran (R-KS) introduced, expands and permanently reauthorizes the Conrad State 30 Program, which allows international physicians who are in the U.S. on J-1 visas to obtain a waiver of the J-1 requirement to return home for two years in exchange for three years of practice in a medically underserved area. Each state is currently allowed 30 such waivers—hence the legislation’s name. This popular program has been extended multiple times since its inception in 1994, and has brought more than 9,000 physicians, including surgeons, to rural and underserved communities in all 50 states.

Strengthening the trauma system

The public assumes that when they or a loved one are seriously injured, lifesaving trauma and emergency care will be provided when and where they need it. Unfortunately, the availability and accessibility of high-quality trauma and emergency care is not guaranteed. The challenges facing trauma centers, trauma systems, and physicians are profound. Although studies clearly show the value and cost-effectiveness of trauma care compared with other medical interventions, the federal government has yet to make the necessary investments to ensure access for all Americans and, as a result, a fragile trauma and emergency medical services (EMS) system is faltering, as underscored by the statistics in the sidebar.

The faltering U.S. trauma and EMS system

  • Trauma is the leading cause of death for Americans younger than 44 years old.
  • Trauma costs the nation $80 billion annually, and $326 billion is estimated for lifetime productivity losses for almost 50 million injuries that require medical treatment.
  • 35 million people are treated each year for traumatic injuries.
  • Severely injured trauma patients treated at Level I trauma centers have a 25 percent reduction in mortality. Conversely, nearly one in four patients is more likely to die when not initially taken to a Level I trauma center, and mortality increases 3.8 times if a severely injured patient is treated initially at a non-trauma hospital instead of direct transport to a Level I trauma center.
  • A total of 45 million people lack access to a trauma center within one hour following injury, during which time definitive treatment can make the difference between life and death.
  • One in five people is more likely to survive a traumatic injury in a state with established trauma systems than in one without; there is a 20 percent reduction in the risk-adjusted odds of death in the state with a trauma system.
  • At least 21 trauma centers have closed over the past decade, including St. Vincent’s in New York, NY, which treated 848 patients on September 11, 2001.

The Affordable Care Act (ACA) authorized a total of $224 million in funding for trauma and EMS programs and activities. The provisions included in the ACA were derived from legislation that received strong bipartisan support over many years. This funding amounts to 71 cents per person, and would ensure system readiness and protect the public. Specifically, this federal investment would support:

  • The National Trauma Center Stabilization Act, which reauthorized the national Trauma Center Stabilization Act and authorized two grant programs:
    • Trauma Care Center Grants: $100 million per year for a program of federal grants to trauma centers would allow them operating funds to maintain their core missions, to compensate them for losses from uncompensated care, and to provide emergency awards to centers at risk of closure.
    • Trauma Service Availability Grants: An additional $100 million per year would be channeled through the states and used for a number of activities intended to address shortfalls in trauma services and improve access to and the availability of these essential lifesaving services.
  • Reauthorization of the Trauma Care Systems Planning and Development Act (TCSPDA) and incorporation of a new Regionalization of Emergency Care Pilot Program. The ACA authorizes $24 million for all grant programs provided under the TCSPDA, of which $12 million was intended to be designated for implementation of the Regionalization of Emergency Care Pilot Program.
  • Reauthorization of the Trauma Care Systems Planning Grants to support state development of trauma systems.
  • Authorization of funding for no fewer than four multi-year pilot projects to design, implement, and evaluate innovative models of regionalized emergency care systems.

The outcome from a survivable injury should not be a matter of chance. Funding critical trauma programs is a worthwhile investment of federal dollars because they help to ensure the public’s expectations of a high-quality and coordinated trauma and EMS system. Such investments are a prudent use of taxpayer dollars to improve patient outcomes and cost savings.

With 2012 coming to a close and Congress rushing to get a package together, including another SGR short-term patch, many of these issues will return in 2013. The ACS will continue to advocate on behalf of its members on these issues and many others at the federal and state level.

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