Healthcare Law As A Product of the 'Sausage Factory'

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."

Here's another issue that may bubble up in controversy in years to come:

The law creates an independent payment advisory board (IPAB) to develop and submit to Congress a report on matters related to Medicare. In certain circumstances, the IPAB would have the authority, beginning in 2015, to make binding Medicare policy recommendations and non-binding private payer policy recommendations to Congress.

Jessee worries about the future IPAB and what it could portend for physician payments. He likens its potential clout to that of the Base Alignment and Closure Commission in the military, which has enormous power over military bases.

"Empowering an IPAB with authority to make binding Medicare policy recommendations based on expenditure inflicts physicians with additional expenditure constraints," he says. He describes it as "MedPac (Medicare Payment Advisory Commission) on steroids."

Whether Jessee is right on this remains to be scene. But it swirls around physician pay, and so I'll transition right now to the continual "doc fix" problems. This is No. 1 on Jessee's agenda, and a significant reason for his disappointment in the healthcare reform laws. For Jessee, it's the controversy that continues to exist although headlines have died for awhile, at least until the next time around Congress acts.

Here's the latest: a proposed 21 % pay cut was halted through May 31, 2010, and Congress is expected to take up legislation to extend the current payment rate until Oct. 1. The House and Senate have passed separate bills to achieve this extension, and negotiations are continuing about how it will be paid for.

"All the word on Capitol Hill is they intend to do something to repeal the SGR and fix the problem," Jessee says. "Quite frankly, we've heard that story before."

Just another day in the sausage factory.