Progress or retrogress? Status of the 113th Congress

At press time, U.S. senators and representatives had left Washington, DC, for their annual summer recess without much to show for the first seven months of the 113th Congress. Locked in inter- and intra-party sniping, Congress had its least productive year since the World War II era. However, some significant issues were moving forward and were likely to be part of an enormous end-of-year legislative/fiscal package.

Medicare payment

In February, the Republican majority staffs of the U.S. House Energy and Commerce and the Ways and Means Committees jointly released an initial  framework for repealing the Medicare sustainable growth rate (SGR) formula used to calculate physician payment and reforming the reimbursement system (see table).^1,2

Framework and progress: Efforts to repeal the SGR²

	Senate Finance Committee	House Energy and Commerce Committee	House Ways and Means Committee
Does the committee have a Medicare physician payment reform proposal?	No	Yes, and legislative language	Yes
Has the ACS testified before the committee on Value-Based Update plan?	Yes	Yes	Yes

After months of back-and-forth discussions with the College and other stakeholders, on May 28, the  Energy and Commerce Committee released its long-awaited legislative draft proposal to reform the Medicare physician payment system.³ The ACS submitted comments in response to the committee’s request for feedback, maintaining that any new payment system must be based on the complementary objectives of improving outcomes, quality, safety, and efficiency while reducing the growth in health care spending.⁴

On July 31, the Energy and Commerce Committee unanimously approved a bill crafted from the proposal. The Medicare Patient Access and Quality Improvement Act (MPAQIA) is bipartisan legislation that would permanently repeal the SGR and develop a new physician payment system based on health care professionals’ proven ability to provide high-quality care to patients.^5,6 The introduction of this legislation represents the beginning of what will likely be a long process, as the House Ways and Means Committee—which has jurisdiction over revenue-related aspects of Medicare—at press time was expected to take up its own legislation in September, when Congress returns from its month-long recess.

On the Senate side, the Finance Committee issued a request for feedback on several questions regarding the Medicare physician payment system.⁷ In late May, the ACS responded, with a number of recommendations on how to reduce health care spending in the current system while improving quality and paving the way for physicians to move into new payment models.⁸ The Finance Committee is also expected to act on this issue when the Senate returns from the summer recess.

Over these last 10 months, Congress has repeatedly sought to tap the medical community for feedback on numerous issues regarding the physician payment system. In written correspondence and congressional testimony, the College has encouraged Congress to implement the ACS Value-Based Update, a patient-centered model that is based on the dual goals of improving quality and reducing growth in health care spending.

Trauma care

Several other priority issues for the College have gained traction, including many bills pertaining to trauma services. On May 15, Sen. Roy Blunt (R-MO) introduced S. 961, the first bill brought before the Senate that seeks to improve patient access to emergency care services by providing liability protection to those health care professionals working under the Emergency Medical Treatment and Active Labor Act (EMTALA).  EMTALA mandates that a physician provide care to stabilize a patient who presents at a hospital emergency department.⁹ Surgeons in emergency settings provide complex, high-risk surgical care for severely injured patients, often late at night and at the expense of their elective surgery schedules the following day. Unfortunately, the high liability risk associated with providing such care is broadly acknowledged as a key factor contributing to the growing shortage of specialists participating in emergency on-call panels. Rep. Charlie Dent (R-PA) introduced the House version (H.R. 36) of this legislation in January.

In April, Reps. Marsha Blackburn (R-TN) and Jim Matheson (D-UT) introduced the Good Samaritan Health Professionals Act, H.R. 1733, which would ensure that health professionals who would like to provide voluntary care in response to a federally declared disaster are able to do so without facing concerns over potential liability.

The College supports these and other trauma-related bills under consideration because rapid medical response in a disaster can greatly decrease loss of life and improve outcomes, and when 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, existing legislation, namely the Volunteer Protection Act, which was enacted in 1997 specifically to encourage such actions, fails to address the issue of liability protections for health care providers who cross state lines to aid disaster victims.

On May 20, the College issued a letter of support for H.R. 984, another trauma-related bill. This legislation would establish a National Task Force to study the impact of Improvised Explosive Devices (IEDs) on returning service personnel’s urogenital organs. Genitourinary trauma, or urotrauma, is a class of wounds that affects the urinary tract and reproductive organs, as well as the kidneys. These injuries are among the most common suffered by service personnel injured by IEDs and have long-lasting physical and psychological effects.  Urotrauma accounts for 1 to 10 percent of all war injuries, and, unfortunately, that number is rising. While many physicians are working on this issue, the effort lacks coordination and a centralized mechanism to share findings. This lack of coordination especially affects victims of urotrauma as they transition from receiving services through the U.S. Department of Defense to the Veteran Affairs health care system, where they will receive most of the treatment for these wounds for the duration of their lives.

The National Task Force created by H.R. 984 would better coordinate the care for the victims of urotrauma by examining what is known about the injuries and their treatment and encouraging the development of a plan to address shortfalls where research and care may be lacking.

Scope of practice

The expanding scope of practice for some nonphysician clinicians continues to be of great concern to the College. In an effort to control this problem, Reps. Larry Bucshon, MD, FACS (R-IN), a cardiothoracic surgeon, and David Scott (D-GA) introduced the Truth in Healthcare Marketing Act.¹⁰ The goal of this legislation is to empower patients to make the best health care choices for themselves and their families. This legislation would make it unlawful for any health care professional to make deceptive statements or make misleading claims in advertisements and marketing efforts. Additionally, the bill calls for a study on the frequency and consequences of these disingenuous acts and authorizes allocating funds to the Federal Trade Commission for enforcement.

In introducing the bill, Representative Scott said, “Patients today are confused about the health care system, especially when it comes to differentiating among the qualifications of the many types of health care providers.” That’s why, according to Representative Bucshon, “It is imperative that health care consumers have adequate information, including the education and training level of the health care professionals treating them, so that they are able to make wise healthcare choices.”¹⁰

EHR

Many surgeons and other health care professionals, particularly those in small, community-based practices continue to have concerns about their ability to comply with federal mandates for implementing electronic health records (EHR). Legislation that Rep. Diane Black, RN (R-TN) reintroduced in March, the Electronic Health Records Improvement Act, would implement much-needed reforms to the Medicare and Medicaid EHR Incentive Program, ensuring that small practices are better prepared to adopt EHRs.¹¹

The legislation would make common-sense reforms, including:

• Creating a hardship exemption for solo practitioners and physicians near retirement to avoid exacerbating workforce shortages
• Shortening the gap between the performance period and the application of the penalty
• Expanding options for participation in the incentive program and improving quality measures through incorporation of specialty-led registries
• Increasing participation among rural health care providers
• Tailoring requirements to meet the specific needs of certain specialties
• Establishing an appeals process before application of penalties
• Ensuring that those participating successfully in the Medicaid incentive program are not inadvertently penalized in the Medicare program¹²

The College acknowledges that EHR technology has proven useful in improving patient safety as well as the efficiency of health care. However, the ACS also maintains that the existing program should be modified to ensure its full potential is recognized without creating an undue burden on physicians.

GME

The ACS has continued to actively lobby on legislation related to the education of the next generation of surgeons. On March 14, Sens. Bill Nelson (D-FL), Charles Schumer (D-NY), and Harry Reid (D-NV), the Senate Majority Leader, reintroduced the Resident Physician Shortage Reduction Act of 2013 (S. 577). The ACS supports the bill, which would address both short- and long-term workforce demands by increasing the number of Medicare-supported graduate medical education (GME) residency positions by roughly 15,000 over the course of five years.

Reps. Joseph Crowley (D-NY) and Michael Grimm (R-NY) introduced similar legislation for consideration in the House, H.R. 1180.¹²  Under both bills, half of the new residency slots must be used for shortage 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 physician specialty shortages.¹³

In addition, Reps. Aaron Schock (R-IL) and Allyson Schwartz (D-PA) reintroduced the Training Tomorrow’s Doctors Today Act, H.R. 1201, which also calls for increasing the number of Medicare-supported residency positions by 15,000 over five years. Moreover, H.R. 1201 will establish Medicare GME accountability and transparency measures.  More specifically, the Training Tomorrow’s Doctors Today Act would direct the Secretary of the U.S. Department of Health and Human Services (HHS) to implement a budget-neutral Medicare indirect medical education performance adjustment program and to submit an annual report to Congress on Medicare GME payments. Furthermore, the Government Accountability Office would be required to study and release a report identifying physician shortage specialties along with strategies for increasing health professional workforce diversity.

Workforce issues

ACS-supported legislation designed to address physician shortages has been reintroduced this year.   The Conrad State 30 and Physician Access Act (S. 616), introduced in March by Sens. Amy Klobuchar (D-MN), Heidi Heitkamp (D-ND), Jerry Moran (R-KS), and Susan Collins (R-ME), would expand and permanently reauthorize the Conrad 30 program.  Since 1994, the Conrad 30 program has worked to bring thousands of foreign physicians who trained in the U.S. to rural, inner city, and other medically underserved communities.

Under current law, foreign physicians in the U.S. on J-1 visas must return to their home countries for two years after completing residency. Under the Conrad 30 program, these physicians may receive a waiver of that requirement if they commit to providing three years of service in an underserved area. The “30” in the name of the program represents the maximum number of physicians who can participate in each state every year. Congress has reauthorized the program several times, and it is used in every state in the country.

S. 616 would not only remove the sunset provision and permanently authorize the program, but also would improve the functioning of the program and allow it to expand to better meet the nation’s physician workforce needs. (The Conrad 30 program was created on a pilot basis to allow Congress to periodically evaluate the benefit to Americans.)

The bill also makes other improvements to the immigration laws affecting foreign physicians outside of the Conrad 30 program with the same goal of increasing access to medical professionals in underserved communities.  For example, under the current Conrad 30 law, physicians may receive a National Interest Waiver green card under the EB-2 category if they serve for five years (three of which can be under the Conrad 30 program) in a medically underserved area or Veteran Affairs facility. Moreover, the legislation would exempt these physicians from the worldwide cap on employment-based green cards.

Medical liability

The March 2013 Bulletin of the American College of Surgeons is a special edition of the magazine, featuring articles drawn from discussions that occurred at the 2012 Medical Liability Reform Summit, which took place last October at the College’s Washington Office.¹³ The ACS Division of Advocacy and Health Policy and the College’s Legislative Committee assembled expert researchers, physicians, attorneys, and patient advocates to examine various solutions to the problems associated with the medical liability system and how these approaches may affect patient care and clinical practice. Potential reforms discussed include alternative dispute resolution, disclosure and offer programs, health courts, and safe harbors. Based on the lessons learned at the summit, the ACS plans to offer new liability reform resources to the Fellows beginning this fall.

Cancer

And lastly, as a member of One Voice Against Cancer (OVAC), the ACS Commission on Cancer continues to request funding for programs essential to the fight against cancer in the fiscal year 2014 Labor-HHS-Education appropriations bill. If the current cuts to existing cancer research and prevention programs take effect, the U.S. risks losing the progress made during the past few years in cancer care, which could cause lasting harm to cancer patients and their families. Cancer research and prevention programs were also subject to sequestration—spending cuts lawmakers believe are necessary to balance the nation’s fiscal budget.

Congress may be enacting laws at a glacial pace, but all of ACS’s priority legislative issues have experienced significant movement this year. The College will be ready for the end of the year frenzy as Congress seeks to address several issues at once.

---

References

1. U.S. House of Representatives. Energy and Commerce Committee. Available at: https://energycommerce.house.gov/press-release/energy-and-commerce-ways-and-means-outline-collaborative-medicare-physician-payment-reform-effort. Accessed on August 6, 2014.
2. American College of Surgeons. The ACS Advocate. Available at: www.facs.org/ahp/news/2013/july.html. Accessed July 16, 2013.
3. U.S. House of Representatives. Energy and Commerce Committee. Reform of the sustainable growth rate and Medicare payment services for physicians. Available at: http://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/BILLS-113hr-PIH-SGR.pdf. Accessed August 16, 2013.
4. American College of Surgeons. Comments to U.S. Energy and Commerce Committee. Available at: www.facs.org/ahp/medicare/response-ec-wm0613.pdf. Accessed August 16, 2013.
5. Medicare Patient Access and Quality Improvement Act. Available at: http://energycommerce.house.gov/press-release/committee-advances-fair-transparent-bipartisan-bill-reform-medicare-physician-payments. Accessed August 6, 2013.
6. U.S. House of Representatives. Energy and Commerce Committee Medicare Patient Access and Quality Improvement Act of 2013 and Federal Communications Commission Consolidated Reporting Act. Available at: http://energycommerce.house.gov/markup/markup-hr-2810-medicare-patient-access-and-quality-improvement-act-2013-and-hr-2844-federal. Accessed August 6, 2013.
7. U.S. Senate. Committee on Finance. Baucus, Hatch call on health care providers to pitch in and provide ideas to improve Medicare Physician Payment System. Available at: www.finance.senate.gov/newsroom/ranking/release/?id=d2cd55b2-4ba3-43ae-ab06-71ecb96aba75. Accessed August 6, 2013.
8. American College of Surgeons. Comments to U.S. Senate Committee on Finance. Available at: www.facs.org/ahp/medicare/medicare-053113.pdf. Accessed August 6, 2013.
9. Centers for Medicare & Medicaid Services. Emergency Medical Treatment & Labor Act. Available at: www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/index.html. Accessed August 17, 2013.
10. Truth in Healthcare Marketing Act. Available at: https://bucshon.house.gov/press-release/reps-bucshon-scott-introduce-%E2%80%9Ctruth-healthcare-marketing-act%E2%80%9D. Accessed August 6, 2013.
11. American College of Surgeons. Comments on Electronic Health Records Improvement Act. Available at: www.facs.org/ahp/hit/ehr-0413.pdf. Accessed August 6, 2013.
12. Congressman Joseph Crowley. Crowley, Grimm, Nelson, Schumer, Reid reintroduce legislation to address looming doctor shortage. Available at: http://crowley.house.gov/press-release/crowley-grimm-nelson-schumer-reid-reintroduce-legislation-address-looming-doctor.  Accessed August 6, 2013.
13. Bulletin of the American College of Surgeons. New approaches to liability reform: An introduction. Available at: http://bulletin.facs.org/2013/03/approaches-to-liability. Accessed August 6, 2013.