Welcome to the 114th Congress: The implications for surgery

The 2014 elections brought significant changes to the composition of the U.S. Congress, which will likely affect health policy in the coming years. This article summarizes the election results and describes the role that the American College of Surgeons Professional Association (ACSPA) played in ensuring the re-election of two surgical champions. It also highlights the legislative priorities of the ACS.

Election wrap-up

Election night 2014 proved to be a very good one for the Republican Party. Most dramatically, control of the Senate flipped from the Democrats to the Republicans, who now hold 54 seats—still six short of the filibuster-proof majority needed to exert maximum control. Previously, the Democrats held 55 seats when accounting for the two independents who caucus with them. In the House, the National Republican Congressional Committee unexpectedly outperformed the goal of their “Drive to 245” initiative by gaining a net of 13 seats to build a 247-member conference and secure the largest Republican majority since 1928.

The implications of this shift are yet to be determined but began to play out early in the first session of the 114th U.S. Congress, which convened on January 6. Speaker of the House John Boehner (R-OH) now has a more comfortable margin with which to operate, and Senate leaders have pledged to work more collaboratively with the House, seeking a return to “regular order” and a restoration of the traditional committee-driven legislative process. For example, House and Senate Republicans combined their respective caucus retreats, providing members and leadership of both chambers with an opportunity to begin the Congress with strategic collaboration. The Republican Congress has an opportunity to address critically neglected and noncontroversial issues, but it will still need to work with a Democratic President.

Returning as members of Congress are two physicians whose campaigns were actively supported by the ACSPA’s political action committee (ACSPA-SurgeonsPAC)—Ami Bera, MD (D-CA), an internist from the Sacramento area and Dan Benishek, MD, FACS (R-MI), a general surgeon and a Fellow from Michigan’s Upper Peninsula. Drs. Bera and Benishek both have served as champions for the ACS legislative agenda, including such issues as repeal and replacement of the sustainable growth rate (SGR) payment formula, medical liability reform, and repeal of the 96-hour rule for critical access hospitals.

One way the ACSPA-SurgeonsPAC contributed to the re-election campaign of both legislators is through what is known as an independent expenditure (IE). The Code of Federal Regulations defines an IE as a paid communication that expressly advocates for “the election or defeat of a clearly identified candidate that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.”*

In October 2014, the ACSPA-SurgeonsPAC Board voted to support the expenditure of $100,000 each in IEs for Representatives Bera and Benishek. For Dr. Bera, the SurgeonsPAC dollars were used for a radio and direct mail campaign as part of a larger effort in which other physician political action committees also participated.  For Dr. Benishek, a television ad was produced and run through local cable providers.

On election night, Dr. Benishek was declared the winner with 52.1 percent of the vote. As one of four ACS Fellows who serve as members of Congress, we look forward to continuing to work with “Dr. Dan” and his excellent staff in his third term.

Dr. Bera’s race was much closer. In fact, he actually trailed his opponent with 49.8 percent of the vote when election night closed. Subsequently, with the counting and inclusion of the mail-in ballots specifically targeted by the physician community’s IE effort, Dr. Bera overtook his opponent’s slim margin. Two weeks later, on November 19, 2014, the Associated Press called the election for Dr. Bera with a margin of 1,400 votes. Dr. Bera’s race for the 7th district proved to be the most expen sive in the nation, with an estimated $19.6 million in total expenditures. Despite representing only a small amount of the total spent, the ACSPA-SurgeonsPAC’s contribution undoubtedly played a role in returning a physician to Congress.

Overall in the 2014 election cycle, the ACSPA-SurgeonsPAC contributed $1,053,500 to 151 individual candidates, leadership PACs, and party committees. In alignment with congressional party ratios, 60 percent of these funds were given to Republicans and 40 percent to Democrats. A total of 92 percent of PAC dollars were spent on candidates/incumbents who successfully won his or her seat.

The song remains the same

Shortly after passage of the $1.014 trillion “Cromnibus” (so nicknamed because it combines a traditional omnibus spending bill with a continuing resolution) in December 2014, the House and Senate concluded the legislative business for the 113th Congress and adjourned. Many issues of importance to surgeons and their patients, including the following, remain unresolved and are expected to be high on the legislative agenda of the 114th Congress in the first quarter of 2015.

SGR repeal

As has been the case for many years, the repeal of the flawed SGR remains a primary focus of legislative efforts at the start of the year.

In February 2014, Congress reached a bipartisan, bicameral agreement for repeal of the SGR formula and overhaul of the Medicare physician payment system. The SGR Repeal and Medicare Provider Payment Modernization Act of 2014 (S.2000/H.R.4015), also known as the SGR Repeal Act, was the product of a yearlong collaborative effort between Congress and key stakeholders, including the ACS. In fact, the ACS was the only physician group to testify before all three congressional committees of jurisdiction (House Ways and Means, House Energy and Commerce, and Senate Finance) during the process that culminated in the legislation.

Congress was subsequently unable to agree on offsets to pay for the cost of the SGR Repeal Act, an example of partisanship trumping good policy. This stalemate is particularly significant when one considers the exemplary bipartisan and bicameral efforts that went into crafting the legislation and the fact that the $170 billion cost of the 17 temporary patches Congress has used over the last 11 years far surpasses the estimated cost of the agreed-upon policy.

Because Congress missed a crucial opportunity to take action in the lame-duck session of the 113th Congress, the ACS is urging legislators to pass the full SGR repeal before March 31, 2015. Congressional action by that date is necessary to preclude the cuts to Medicare physician payment scheduled to take effect April 1. Almost all stakeholders agree that these payment reductions are unlikely to ever be implemented for fear of the political repercussions from Medicare beneficiaries and the physician community. They further agree that short-term patches fail to address the underlying problem. Therefore, full repeal of the SGR remains a top legislative priority for the College, with hopes of averting legislation that implements an 18th temporary patch. Building on momentum among the “rank and file” members of the House, there will be a push for swift reintroduction and passage of the SGR Repeal Act in the 114th Congress.

Global codes

Another issue of imminent importance on the payment front is averting a provision in the November 2014 final rule issued by the Centers for Medicare & Medicaid Services (CMS) that would convert 10- and 90-day global codes to 0-day global codes. The transition for 10-day global codes would begin in calendar year (CY) 2017, and the transition for 90-day global codes would begin in CY 2018. According to CMS, this transition is necessary, in part, to increase the accuracy of payment for these codes. However, CMS has not yet developed a methodology for making the transition.

Prior to the release of the final rule, the ACS sent a detailed letter to CMS asserting that the agency should postpone moving forward with this proposal until a comprehensive analysis of its effect on surgical patients and access to surgical care was completed. The ACS made recommendations on a number of issues that CMS must resolve before moving forward with the proposed policy and stressed, above all, that CMS should not make policy changes that infringe on surgeons’ ability to provide high-quality care to surgical patients.

As the 114th Congress begins, the ACS plans to take a variety of immediate strategic actions on this critical issue, including increased advocacy efforts. Working with key members of Congress, the ACS will continue to oppose implementation of this policy change and will seek congressional intervention to rescind it until such time as CMS can ensure that the transition will not have a negative impact on patients and can be implemented in a way that accurately accounts for the care surgeons provide.

GME

At the start of 2015, the College also has an important opportunity to influence the future of graduate medical education (GME). On December 6, 2014, the House Energy and Commerce Committee released an open letter requesting information on GME. This request indicates a desire on the part of the committee to produce GME reform legislation. The College intends to play an active role in this legislative initiative. ACS leaders and staff are working with key committee leaders to ensure that the ACS, as the premier arbiter of surgical GME programming, is part of the committee’s deliberations and has input on any reform proposal.

Although the issues outlined in this article represent the most pressing of the College’s legislative priorities, the ACS will advocate on other issues as well, including the 96-hour rule mentioned previously, cancer and trauma initiatives, medical liability reform, and other legislation that affects surgeons’ ability to provide the highest quality care to their patients. For a comprehensive catalog of the ACS legislative portfolio, visit www.surgeonsvoice.org. This online resource describes key issues of the day, and provides the necessary tools and information to become a seasoned surgical advocate.


*Federal Election Commission. Coordinated communications and independent expenditures. June 2007 (updated April 2014). Available at: www.fec.gov/pages/brochures/indexp.shtml. Accessed January 27, 2015.

Reilly M. Ami Bera defeats Doug Ose in nation’s most expensive House race. The Huffington Post. November 11, 2014. Available at: www.huffingtonpost.com/2014/11/19/ami-bera-midterm-election-results_n_5820138.html. Accessed January 27, 2015.

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