For Latest Medicare Fix, Congress Moves Quickly

2016-01-07 | CQ Weekly

Lawmakers delivered a master class in the art of legislating when, in practically the blink of an eye, they passed a bill to spare more doctors from potentially unfair penalties over maintaining electronic health records. For a Congress that typically moves at a glacial pace, it was a reminder that lawmaking can happen speedily, particularly when a politically potent constituency is angling for help against a fast-approaching deadline.

On Congress' last day of work in 2015, Sens. Rob Portman, an Ohio Republican, and Bob Casey, a Pennsylvania Democrat, assembled the package of Medicare policy changes from stalled bills, including one by GOP Rep. Tom Price of Georgia.

The Library of Congress shows a first official time stamp on the measure at 11:34 a.m. on Dec. 18. Senate Majority Leader Mitch McConnell brought the bill to the floor at 11:59 a.m., according to CQ Floor Video. It passed by voice vote in the largely empty chamber at noon.

Across the Capitol, Price shepherded the bill through a similarly near-vacant House floor. That chamber cleared it without objection at 1:01 p.m., making it one of the final acts of Congress in 2015. Obama soon signed the bill into law (PL 114-115), which was unsurprising, as it was crafted in consultation with officials at the Centers for Medicare and Medicaid Services.

Under the Portman bill, CMS is able to handle hardship exemptions more swiftly in batches than through the case-by-case procedure previously in use.

There was deep support in Congress for allowing CMS freer rein to exempt doctors from penalties for missing so-called meaningful use stage 2 targets. These are part of a more than $30 billion long-term federal effort to expand use of electronic health records. CMS revised the stage 2 rules to try to make it easier for doctors and other providers of medical care to meet the 2015 goals. But it didn't finalize these changes until Oct. 16, 2015, even though they were meant to help doctors meet targets for that year.

"In a rare mass coupling of stakeholder lions and lambs, provider groups and health IT vendor organizations alike rose up in unison and declared, in so many words, 'Dude! That's just nuts'," wrote Dan Healy, general counsel for athenahealth, a firm that provides cloud-based services for medical professionals, in a blog post.

CMS already had the ability to allow hardship exemptions on a case-by-case basis from electronic health record penalties. By its own estimate, it had been granting about 85 percent of such requests. Price had introduced a bill (HR 3940) in November that would have allowed a blanket hardship exemption from the penalties. It drew 95 cosponsors, with liberal Rep. Alan Grayson of Florida among its dozen Democratic backers.

The heart of Price's bill was later folded into a package of small Medicare changes that was expected to pass the House easily in December. But attempts to add unrelated items to the legislation bogged down the measure, and it never moved in the chamber's final days in session.

Instead, a broadening of the exemption was addressed in the Portman package, though the language was narrower that the blanket exemption sought by Price.

House Rules Chairman Pete Sessions of Texas sent a letter to doctors on Dec. 18, saying the newly cleared measure would give CMS a mandate to develop a "less tedious procedure" for applications for exemptions. The expectation is that CMS will quickly process these requests for exemptions in the months ahead.

The changes enacted by Portman's bill were due in part to a meeting of CMS staff on Dec. 8 with groups that have been critical of the 2010 health law, including the Docs4patientcare Foundation, according to Sessions' letter.

Of course, the bipartisan drive for the electronic medical records fix stands in stark contrast to how the health care overhaul is treated by lawmakers. The House cleared a bill (HR 3762) on Jan. 6 to undo pillars of the law under a budget reconciliation bill formally introduced by Price. That measure will be promptly vetoed by Obama.