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Healthcare Law As A Product of the 'Sausage Factory'

Joe Cantlupe, for HealthLeaders Media, May 6, 2010

Using expressions like "drinking from a fire hose" and "classic sausage making," William Jessee, MD, sounded like he was talking about a local bar.

No. Just the healthcare reform laws.

But Jessee, president and CEO of the Medical Group Management Association, says that's just the way it is in the morass of legislation that is somewhat confusing, beguiling, daunting, uncertain, a little bit good, and some bad.

Weeks after Congress closed up shop on the Patient Protection and Affordable Care Act and its reconciliation cousin, the healthcare reform process is really just beginning, Jessee says. "Anybody who thinks healthcare reform was done when this bill was passed is sorely off base because this is the beginning of the healthcare reform," Jessee says. "It's likely to continue for the next decade at least, as we see additional legislation and changes in the delivery system."

Jessee and I talked recently about the healthcare reform legislation after he made a presentation about the measures at a Web presentation heard by about 1,000 physicians. In our discussion, we touched on a few issues that underscore the task ahead in putting together the regulations needed to carry out the laws.

Some are a bit quirky. Some may bubble up in controversy in years to come, and some are in the midst of raging controversy right now. As Jessee puts it, the law makes a "complex compliance landscape even more complex."

Let's start with a quirky one.

Under healthcare reform, in-office physician referrals for MRI or CT scans, for example, must allow for patient notification, in writing, of his or her right to receive care elsewhere.

The requirement, under the legislation passed in March, isn't one of those rules that become effective 2012 or 2014. It was supposed to go into effect Jan. 1, 2010, according to the law. That's not a typo—January—as in four months ago.

"You need to notify the patient of the patients' right to receive care elsewhere, and provide a list of alternative providers in the patients' area near their residence," Jessee told the physicians. "What's kind of perplexing about this one is that the effective date of the statute is Jan 1, 2010, which is two and a half months before this legislation as actually passed."

"I don't know of any way to actually tell a patient who actually had an MRI that they have the right to receive it someplace else," he says.

There is some debate that physicians will get a chance to procrastinate on the January 1 timetable because regulations have not yet been implemented. Still, MGMA believes it is something that "needs to be taken care of right away," Jessee says, sounding like a good doctor.

The issue is reflective of the entire regulatory climate involving the passage of the legislation. I was talking to a friend of mine at HHS shortly after the measure was passed. "And now the regulations . . . the regulations, man, are going to take forever to implement," he said.

Jessee agrees. "All I can say, I'm really glad I don't work at CMS," Jessee says, referring to the Centers for Medicare and Medicaid Services. "They are going to be up to their ears trying to get all the regulations out on the timetable specified in the legislation. I guess if history is any guide, they won't be able to do that.

"There is an excess of 1,000 references in the bills . . . (saying) the Secretary shall publish rules," Jessee says. "There is a huge amount of regulations."

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