This article first appeared in the Daily Journal on November 9, 2011.
As 2011 enters its penultimate month, the fledgling Patient Protection and Affordable Care Act continues to unfold, and at times, unravel. Nearly two years after its passage, federal regulations are still building upon the original 2,700 pages, even as the threat of repeal dangles over the Executive Branch like a Sword of Damocles. With its fate resting in the hands of the U.S. Supreme Court and Electoral College, and speculation as to whether the justices will make a move before the American voters have a chance to weigh in making headlines daily, it appears that many of health care reform’s latest additions may be here to stay.
The New and Improved Accountable Care Organizations
At the forefront of reform stand the new and improved accountable care organizations (ACOs), health care partnerships designed to monitor the quality and efficiency of doctors and hospitals and create new quality standards for compensation. The original version of the ACOs released last April met with significant industry-wide opposition, so much so in fact that three additional federal agencies exerted their authority heavily on the rewrites. First, the Office of the Inspector General clarified the implications of physician self-referral laws and federal anti-kickback statutes, thought by many to be glaring omissions from the original version. Likewise, the Federal Trade Commission confirmed that entry into ACOs will not require a mandatory antitrust review, while at the same time creating an antitrust “safety zone” for ACOs approved by the Centers for Medicare and Medicaid Services. The Internal Revenue Service provided another critical component by establishing participation guidelines for charitable organizations without compromising any tax-exempt status.
Under the revised regulations, retrospective assignment of patients gave way to a preliminary prospective-assignment method, identifying beneficiaries quarterly with an opportunity for a final reconciliation after each performance year. The new regulations also cut in half the number of quality measures to which ACOs must adhere (from 65 to 33) while adding some flexibility within each calendar year as to when ACOs must perform. Compliance with electronic health records has also been discarded as a condition of participation, although the digital medical record remains an important quality measure.
The Many Ways To Save
As the nation’s growing financial struggles threaten health care reform’s very survival, it is no wonder the government is trying to tighten its belt in any way it can. In a further effort to combat fraud and waste within the health care system, Medicare beneficiaries have been “deputized” to serve as the eyes and ears of the federal government, who now asks that individuals who become aware of unusual or questionable charges, unresolved complaints, or even the misuse of personal information report such concerns immediately.
On the other end of the health care spectrum, as many as 750,000 physicians in the Medicare program will be requested to revalidate their individual enrollment records during the federal government’s massive anti-fraud effort, authorized as well by health care reform. And just last month, the federal government eliminated the national, voluntary insurance program for community residence expenses and support (the Community Living Assistance Services and Support program or “CLASS”), a health care program that was designed to give those adults with multiple functional limitations as well as those with cognitive concerns a viable option in planning for long-term care.
The Era of Preventative Care
With a mission to stop health problems before they start, health care reform remains true to its cause as it continues to clarify the many pilot programs and preventative health care services that exist at its core. Last summer, the federal government released regulations requiring all new private health plans to cover several evidence-based preventative services such as mammograms, colonoscopies, blood pressure checks, and childhood immunizations without charging a copayment, deductible or coinsurance. In 2014, employers may even use up to 30 percent of their employees’ health insurance premiums for outcome-based wellness incentives.
Health care reform’s Patient-Centered Outcomes Research Institute (PCORI) is designed to produce groundbreaking, evidence-based information pertaining to health care that will be easily accessible to both doctors and patients. PCORI is expected to focus on several areas of interest, including devising ways to deliver health care “without bias” and identifying existing gaps affecting women, low-income populations, minorities, children, and the elderly. The recently released [“Disparities Action Plan”] provides a comprehensive, community-driven approach to reducing health disparities across the country.
The National Prevention, Health Promotion, and Public Health Council is charged with the task of developing health care prevention strategies for large-scale future use. With this in mind, a report issued by the Prevention and Public Health Fund estimated that a $10 per person investment each year in community-based, preventative health programs could result in an annual savings of more than $15 billion over the next five years. Likewise, the Food and Drug Administration is set to spend $600 million over the next five years as it launches new anti-smoking campaigns in print, on television, and through Facebook, Twitter and YouTube. Hospitals, too, are set to receive $34 million in federal grants and contracts in the fight against health care-associated infections through the partnership for patients initiative.
As health care reform approaches its second anniversary, it is still too soon to tell if the steam set forth by its forward progress is anything more than smoke and mirrors. While the ultimate fate of this landmark legislation is still unknown, the federal government does not appear to be overly concerned with the controversial insurance mandate or the elections next November. Regardless of its altruistic motives, overcoming the debt ceiling legislation is perhaps health care reform’s only real chance for survival.