Page images
PDF
EPUB

judge his willingness and ability to take corrective action. In this circumstance, some judges have dismissed the charges against the physician, despite having concluded that the physician had acted in gross and flagrant violation of his obligation, because they thought they had no discretion to impose a sanction on a physician who had now declared his willingness, albeit belatedly, to comply.

The PRO's have expressed concern that results such as these clearly undermine the integrity of the sanction process and discourage PRO's from initiating sanction cases, even when clearly warranted. Several years and considerable resources can be consumed in the process that turns out to be quite futile. The Administrative Conference of the United States recently reviewed this matter thoroughly and adopted a recommendation that the Congress delete or modify the willing and able test.

The committee bill would respond to these concerns and recommendations by clarifying the willing and able test. First, it would incorporate into the statute the current practice followed by nearly all PRO's of trying to achieve voluntary compliance with a plan of remedial action prior to pursing a recommendation for sanction. Second, it would make it clear that the administrative law judge, in making the final determination whether the physician is willing and able to comply with his obligations, should consider the physicians prior actions in cooperating with or defying the PRO. The judge would expected to review whether the remedial plan recommended by the PRO was appropriate and, if so, whether the physician acted responsibly in light of the weight of evidence against him. The judge could also consider other corrective action the physician took on his own initiative, in lieu of following the PRO recommendation.

Increase in population threshold for pre-exclusion hearing. The Omnibus Budget Reconciliation Act of 1987 amended the administrative process followed when a PRO recommends that a physician be excluded from the Medicare program for failure to fulfill his obligation under the Medicare statute to furnish care of acceptable quality. An exclusion would normally become effective upon the Inspector General's concurrence with the PRO recommendation and would remain in effect during the conclusion of the administrative appeal. The 1987 amendment provides that physicians furnishing services in a rural health manpower shortage area or in a county of less than 70,000 population may receive a prompt, preliminary hearing before an administrative law judge to determine whether their continuation in the program poses an unacceptable risk to patients. The purpose of the amendment was to avoid creating a problem of access to services in underserved areas.

Experience to date has not demonstrated any serious problems with this provision. The bill would increase the population threshold for areas to which this provision is applicable. The threshold would increase from 70,000 to 140,000.

Increase in civil monetary penalties. A physician who fails to meet his obligation under the Medicare statute to provide care of acceptable quality may be excluded from the program. As an alternative sanction, he may be fined in an administrative proceeding. Under current law, the fine may not exceed the actual or estimated cost of the medically improper or unnecessary services that

were furnished. In some cases, this may be a small amount, even though the actions of the physician were serious enough to warrant a sanction proceeding. The small amount of such fines acts as a disincentive to PRO's to recommend such sanctions. Therefore, the committee bill would increase the fine to $2,500.

Sec. 4043-Payments for End Stage Renal Disease Services

Under current law, Medicare reimburses for dialysis treatments furnished patients with end stage renal disease under either of two methods. One method is an all inclusive rate per treatment, known as the "composite rate" because it is based on a blend of the costs entailed in furnishing dialysis services in a treatment facility and the costs of furnishing them in the patient's home. The same rate is paid irrespective of the site of service.

The other method of payment, commonly referred to as "method II", is the standard reasonable charge method used for Medicare Part B services. Method II is offered as an alternative to the composite rate in order to allow the patient to make his or her own arrangements for supplies and equipment. By doing so, the patient is often able to save on coinsurance expenses.

Composite rate. The current composite rate has been in effect since October 1, 1986, when it was established under the terms of the Omnibus Budget Reconciliation Act of 1986. The Congress established the rate at that time in order to preclude HCFA from implementing a proposed substantial reduction. Under the terms of OBRA 1986, the rate was to remain in effect until October 1, 1988, at which time HCFA could revise it. It was the committee's understanding of this provision that HCFA would be required to obtain more current cost data and to satisfy the procedure for notice and public comment prior to making a change. In presenting its fiscal year 1990 budget proposals, the Administration, argued to the contrary, that it had authority to reinstate the 1986 proposed reductions. HCFA has also indicated that it has obtained more recent cost data that support a reduction in the current rate.

The committee does not have a basis at this time for determining what the composite rate should be. It notes that the Institute of Medicine, at the request of the Congress, is conducting a comprehensive review of the ESRD program that should be of assistance in resolving this issue. The study is due for completion next year. Under these circumstances, the committee is concerned about HCFA's apparent intention to proceed with a reduction in the rate. Therefore, the committee bill would require that the current rate be maintained until October 1, 1989. At that time, HCFA would be authorized to change the rate. However, the bill would also require that the notice and comment requirements of the Medicare statute be followed before any change becomes effective. The committee also expects HCFA to base any proposed change on cost data that is less than 2 years old at the time of the proposed change.

Method II. The committee bill would also make a change in method II. As noted above, the purpose of this method is to allow patients to make their own arrangements, as a matter of convenience for themselves or to save out-of-pocket expenses. The committee has learned, however, that firms are taking advantage of method II to furnish dialysis equipment and supplies to patients

and to submit claims on a reasonable charge basis that exceed what payments would be under the composite rate. The committee bill would not repeal method II nor prohibit suppliers from arranging services on behalf of patients. However, it would preclude payments under method II from exceeding the composite rate.

Sec. 4044-Payments for Direct Medical Education

Under current law, hospitals receive payments under Medicare for a portion of their direct medical education costs under a formula that takes into account the number of full-time-equivalent (FTE) medical residents in the hospital's approved training programs. Residents who are in their initial residency period are counted as 1.0 FTE's, and those who are in more advanced training are counted as 0.5 FTE's.

The current direct medical education system pays the same, hospital-specific average amount per resident, regardless of the specialty for which a resident is training. This fails to promote the Congressional policy of fostering primary care training and greater access to primary care services. Moreover, primary care training programs are at a disadvantage, compared to other specialties, in trying to obtain other resources to support residency programs.

The physician payment reform set forth in section 4001 is expected to reduce the current imbalance in the financial incentives that favor specialty physician services over primary care physician services. The committee hopes that this will also have a beneficial influence on the similar imbalance between specialty training programs and primary care residency programs. This provision reflects the committee's resolve to take further, direct measures to adjust graduate medical education payments in order to promote the Congressional policy that favors primary care residency programs.

Under this provision, primary care residents would be counted as 1.25 FTE's, thus increasing payments to programs in proportion to their relative number of primary care residents. This weighting is based on the overwhelming proportion of graduates of such programs who actually practice as primary care physicians. Other residents in primary care specialties would be counted as 1.10 FTE's. This reflects the fact that such physicians, although generally going on to establish specialty practices, actually deliver a substantial amount of primary care as well. All other residents would continue to be counted in the same manner as under current law. The primary care residents to be counted as 1.25 FTE's are those in general training programs. This would include all residents in approved Family Medicine programs, as well as residents in general internal medicine and general pediatrics. The committee notes that there is no formal approval mechanism for general internal medicine or general pediatrics training programs at this time, and has determined that the Secretary should identify such programs using the following criteria: 1) any program component or track that has ever had an application approved for a grant under section 784 of the Public Health Service Act, whether funded or not; 2) any program identified by the Society for General Internal Medicine or the Ambulatory Pediatric Association as a general program; or, 3) any other program that meets criteria established by the Sec

retary, including: at least 20 percent of training experience devoted to providing continuing care to a defined panel of patients, not to include subspecialty clinics or emergency room rotations; well-defined biopsychosocial or behavioral curriculum taught in primary care settings; emphasis on teaching in primary care settings, particularly community-based ones; and, a defined curriculum in health promotion, disease prevention, and social aspects of medicine. When a general program is a component or a track of a larger traditional program, only those residents actually in the general track will count as 1.25 FTE's, and the others are to count as 1.10 FTE's.

To keep this provision budget-neutral, a limitation is established on the amount that can be approved per resident in any program. Programs with hospital-specific average per-resident expenses above that level will be paid at the ceiling rather than the amount that would otherwise be calculated under current law. The limits are adjusted for the proportion of primary care residents, so as not to undermine the main objective of this provision. Thus, equally expensive programs are treated differently depending on their proportion of primary care trainees.

Sec. 4045-Distribution of Information on Recommended Preventive Health Practices

According to the U.S. Preventive Services Task Force, the most promising role for prevention in current medical practice may lie in changing the personal health behavior of patients before clinical disease develops. (See Guide to Clinical Preventive Service, 1989.) There is a growing body of evidence linking personal behavior to the leading causes of death in this country. Unfortunately, many elderly Americans lack information on how personal behavior might affect their health. Busy clinicians often lack the time to discuss or provide preventive care services to their patients. Many other elderly persons lack information because they do not regularly visit a physician until after they are enrolled in Medicare.

The committee bill seeks to promote greater awareness and compliance with preventive health measures among Medicare enrollees. This provision requires the Secretary of Health and Human Services to develop and distribute two documents. One is a personal medical history form, which will be given to all new Medicare beneficiaries when they enroll in the program. The second is a summary of preventive health care information. The summary will be made available to all new Medicare beneficiaries, and will be included in future mailings made to all Medicare beneficiaries. The medical history form would be one full-sized page. The committee expects the summary to be brief, so that it is convenient for mailing and use by enrollees, but should be sufficiently long to adequately convey the full range of useful information. Both documents are to be developed by the Secretary in consultation with national physician organizations (such as the American Association of Family Practitioners), consumer groups, and other health-related organizations.

The medical history form should provide space for the individual to enter information on personal and family medical history, weight and blood pressure, and other relevant basic medical infor

mation. The committee believes that, for the medical history form to be useful, it should also do the following:

(1) Inform individuals of the importance of preventive care in reducing the incidence of clinical problems and the importance of their providing their physician with adequate background information for prescribing appropriate preventive treatments.

(2) Encourage individuals to fill out the form, using community health facilities, when available, to get information such as blood pressure reading or visual or hearing tests.

(3) Encourage individuals to share the information on the form with their physician on their next regular visit, to discuss appropriate preventive health care measures.

(4) Encourage the physician to carefully review the information provided by the patient, discuss its implications with the patient, and make the form part of the patient's permanent file.

The summary of preventive health care information would provide basic information on preventive care practices, screening, tests, and immunizations recommended for elderly individuals. In developing the form, the Secretary should incorporate recommendations, as they pertain to persons over age 65, of an appropriate task force or similar group established by the Secretary, such as the U.S. Preventive Task Force.

The summary should indicate, where appropriate, which recommended procedures are not reimbursable under Medicare, so there will be no confusion on the part of the Medicare enrollees, who might otherwise infer that recommended procedures would be paid under the program.

The summary and form are to be developed by April 1, 1990, and distribution is to begin no later than October 1, 1990.

PART C-OTHER PROVISIONS RELATING TO MEDICARE AND
HEALTH-RELATED PROGRAMS

Sec. 4061-Administrative law judges for health related cases

A variety of administrative appeal procedures utilizing administrative law judges are contained in the Medicare program, the Medicaid program, the Peer Review Program and the fraud and abuse provisions contained in title XI of the Social Security Act. Currently, most of these appeals are heard by administrative law judges from the Office of Hearings and Appeals in the Social Security Administration, although some of the sanction cases initiated by the Inspector General are now heard by judges who are part of the Department Appeals Board.

The committee, on two prior occasions-in its reports for the budget reconciliation provisions for 1985 and 1986-has urged the Secretary to appoint administrative law judges who would focus exclusively on health related cases. The subject matter of these cases is sufficiently different from the nature of other cases heard under the Social Security and disability programs, and the case load for health-related cases is sufficiently great, to warrant this specialization. The Secretary has not yet done so, in part because of disagree

« PreviousContinue »