The odds of a permanent ‘doc fix’

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Oct 07, 2024 View in browser   By Ben Leonard and Chelsea Cirruzzo With Robert King  Driving The Day Rep. Larry Bucshon blamed money for Congress' delay in finding a fix to end regular disbursement cuts to providers. | House Television/AP A MEDICARE RX? Doctors are staring down a cut to their Medicare payments for the fifth successive year, and a permanent solution to the yearly ordeal remains bleak on Capitol Hill, Robert King reports. CMS proposed a 2.8 percent cut for 2025 this summer and will make a final decision in November. The cut is based on a formula that Congress hasn’t tweaked since 2015. Lawmakers are optimistic they can delay at least some of the cut as they have previously, but a more permanent solution has remained elusive because of a high price tag. “It’s about the money, it’s about the pay-fors,” said Rep. Larry Bucshon (R-Ind.), a cardiothoracic surgeon and member of the GOP Doctors Caucus who’s not seeking reelection. “It just hasn’t been a priority for Congress for many years to make sure we do a more permanent fix.” Bucshon said that Congress could be reaching a tipping point on the issue since “most members of Congress realize how detrimental it is to have continued reimbursement cuts to providers.” Lawmakers have proposed bipartisan legislation to address the formula’s problems, but no bills have yet made it out of Congress. Even if the price issue is fixed, Congress will likely want to add other reforms. Several doctor groups such as the American Medical Association have called for reforms to a quality program created under the 2015 Medicare Access and CHIP Reauthorization Act. “They are just not going to put a lot of money in the systems without reforms,” said Christian Shalgian, director of advocacy and health policy for the American College of Surgeons. “We have been urging the committee to hold more hearings and get into significant reforms.” Physician groups have made it a top priority to avert the cuts, arguing they make it harder to serve patients and drive consolidation across the health sector. Last month, members of the House GOP Doctors Caucus said the moment for wider reform of the payment system could emerge next year with a new president and Congress, similar to sentiments Democrats have expressed. WELCOME TO MONDAY PULSE. We are all Vanderbilt fans now. Send your tips, scoops and feedback to bleonard@politico.com and ccirruzzo@politico.com and follow along @_BenLeonard_ and @ChelseaCirruzzo. AROUND THE AGENCIES A proposed CMS policy would rein in Obamacare health plans' brokers and agents. | AP Photo CMS CRACKDOWN — CMS seeks to boost its authority to suspend insurer agents or brokers that fraudulently put customers in plans for which they didn’t mean to sign up, Robert reports. The agency released a list of proposed policies Friday for the 2026 coverage year on Obamacare’s insurance marketplace. If finalized, the policies would increase scrutiny of brokers and agents employed by health plans. “This proposed policy would improve the security and integrity of Marketplaces, resulting in fewer unauthorized changes to coverage,” according to a fact sheet on the proposed rule. The agency can already suspend an agent or broker from selling plans if they create an “unacceptable risk” to Obamacare exchanges’ operations or IT systems. Now the agency wants to suspend an agent or broker for misconduct surrounding the enrollment process. CMS also wants to update the form that consumers can review surrounding the accuracy of their eligibility information. What’s next: The agency seeks comments on the rule through Nov. 12. WHAT WASN’T INCLUDED — CMS’ proposal didn’t include a revised policy on cost-sharing for prescription drugs that some patient advocates have called for in the wake of a court ruling. The backstory: A 2021 HHS rule allowed insurers to exclude drugmaker coupons when calculating patients’ maximum out-of-pocket costs and deductibles, but a federal judge shot it down last year. HHS appealed but relinquished the appeal earlier this year. A large contingent of bipartisan House lawmakers and patient advocate groups had pressured the agency to drop the appeal, saying that patients rely on co-pay assistance to afford medicine. The latest: HHS didn’t include proposals on whether coupons would count toward patient cost-sharing to the dismay of some advocacy groups. “Coming from an administration that prides itself on supporting patients and lowering their prescription drug costs, this is a huge disappointment. While they have gone on record that they will issue these rules, the clock is ticking and there isn’t much time left,” said Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, in a statement. The agency said it plans to issue proposed rules in the future. CMS didn’t respond to a request for comment. In the Courts FALSE CLAIMS ACT RULING — A recent federal court ruling could shake up how cases are handled under the False Claims Act, which is often used to combat fraud in Medicare and Medicaid. The bulk of False Claims Act cases are brought by whistleblowers. Last week, U.S. District Judge Kathryn Mizelle, an appointee of former President Donald Trump, found that the whistleblower provisions are unconstitutional. While the decision only applies to the case, it could set the stage for the end of whistleblowers’ power to assert such claims. Legal experts expect the case to wind its way to the Supreme Court, where several conservative justices have signaled interest in taking up the issue. Whistleblower-initiated cases bring in billions a year to the U.S. “Although an outlier, this decision is significant,” said Gregory Saikin, partner at law firm BakerHostetler. “If upheld, it will materially alter the health care fraud and abuse landscape. [Whistleblowers] are DOJ’s eyes and ears into a provider’s organization. Without an incentive to report abuses, the number of FCA cases will certainly decrease.” Gordon Schnell, a partner at Constantine Cannon who specializes in representing whistleblowers, is skeptical that the decision will survive on appeal, adding that the whistleblower program has strong support from the Justice Department and Congress. “As well-written as the decision is, it suffers from a fundamental misunderstanding,” Schnell said. “It assumes the FCA provides whistleblowers with complete independence and unfettered authority to litigate these cases on behalf of the government … that is not true. The government, [through the Justice Department], has ultimate control.” Even if the Supreme Court were to find the FCA unconstitutional, Schnell doesn’t expect any meaningful impact on the ability of whistleblowers to report fraud because Congress or the Justice Department would quickly address the issue. HELENE FALLOUT CONTINUES — The impacts of Hurricane Helene are still being felt across the Southwest with scores of people cut off from access to medication and health services, forcing federal officials to pull out all the stops on aid programs. This weekend, HHS activated a program for uninsured residents of Tennessee and North Carolina — which saw some of the biggest destruction from the storm — to get a free 30-day supply of medications from participating pharmacies. The program also covers medical equipment, including wheelchairs, blood sugar monitors and vaccinations. In North Carolina, a factory that makes IV fluid for most of the nation’s hospitals is still not online after being damaged in the storm. Baxter International, which owns the factory, said Friday it didn’t have a timeline for reopening and has limited how much medical supplies, including saline, can be ordered from their supply. The FDA has said it’s working closely with Baxter to tap into their other manufacturing plants to limit supply disruptions. Names in the News Shauna Rust is now health policy adviser for Sen. Patty Murray (D-Wash.). She was previously senior policy adviser at HHS’ HRSA. WHAT WE'RE READING Drs. H. Gilbert Welch and Barnett Kramer take issue with the design of a CMS-approved study of blood-based screening tests from GRAIL in a Health Affairs piece. WKOW 27 News reports that FTC Chair Lina Khan isn’t ruling out getting involved in litigation against electronic health record firm Epic. POLITICO’s Erin Schumaker reports that ARPA-H wants to salvage donor kidneys that would otherwise have gone unused.   Follow us on Twitter Dan Goldberg @dancgoldberg Chelsea Cirruzzo @chelseacirruzzo Lauren Gardner @Gardner_LM Sophie Gardner @sophie_gardnerj Kelly Hooper @kelhoops Robert King @rking_19 Ben Leonard @_BenLeonard_ David Lim @davidalim Megan Messerly @meganmesserly Alice Miranda Ollstein @aliceollstein Carmen Paun @carmenpaun Daniel Payne @_daniel_payne Ruth Reader @RuthReader Erin Schumaker @erinlschumaker   Follow us

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