Health Policy Legislative Update – 9/22/2015


Another Privacy Grab in Sheep’s Clothing

Is any health information private? Is any health information really non-identifiable?

On September 8, 2015 the House passed H.R. 1725, the National All Schedules Prescription Electronic Reporting Reauthorizing Act of 2015, sponsored by Rep. Ed Whitfield, (R-KY). The bill amends the National All Schedules Prescription Electronic Reporting Act of 2005 to include as a purpose of state-administered controlled substance monitoring systems ensuring access to prescription history information for the investigative purposes of appropriate law enforcement, regulatory, and state professional licensing authorities. The bill also requires states to provide HHS with aggregate data and other information to enable HHS to evaluate the success of the state’s program. Additionally, the bill allows the Drug Enforcement Administration, HHS, a state Medicaid program, a state health department, or a state substance abuse agency receiving non-identifiable information from a controlled substance monitoring database for research purposes to make that information available to other entities for research purposes.

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Republican Response to Ghastly Planned Parenthood Videos

On September 11, 2015, H.R. 3494, the Protecting Infants Born Alive Act was introduced by Rep. Marsha Blackburn (R-TN) and referred to the House Energy and Commerce and House Ways and Means Committees. The bill would allow states to exclude from federal programs providers whose actions a state suspect cause termination of fetuses born alive. The bill also clarifies that there will be no federal funding to providers who terminate fetuses who are born alive. Additionally, providers who terminate fetuses who are born alive would be excluded from federal health programs.

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A Bill to Save Direct Care Practices from the Clutches of the IRS

On August 5, 2015, S. 1989, the Primary Care Enhancement Act of 2015 was introduced by Sen. Bill Cassidy (R-LA) and referred to the Senate Finance Committee. The bill would revise the Internal Revenue Code to ensure that direct primary care service arrangements where individuals receives ongoing primary care services in exchange for a fixed periodic fee which is not billed to any third party is not treated as a health plan or insurance. It also would treat provider fees as medical care for IRS purposes.

The bill would also allow providers currently opted out of Medicare to participate in a Medicare primary care medical home demonstration program and receive payment with respect to items and services furnished under the program to Medicare beneficiaries with whom the physician or practitioner has a private contract under such section. The model program practice must have (1) preventive care; (2) wellness counseling; (3) primary care; (4) coordination of primary care with specialty and hospital care; (5) availability of ongoing care appointments 7 days per week; (6) secure e-mail and telephone consultation; (7) availability of telephone access for ongoing care consultation on a 7-day-per-week, 24-hour-per-day basis; and (8) use of a primary care provider panel size that promotes the ability of participating providers to appropriately provide the scope of services described.

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Reviving the Use of HSA’s for Over-the-Counter Medications

On September 17, 2015, H.R. 1270, the Restoring Access to Medication Act of 2015, sponsored by Rep. Lynne Jenkins (R-KS) was sent to the House for consideration. The bill would repeal provisions of the Internal Revenue Code, as added by the Patient Protection and Affordable Care Act, that limit payments for medications from health savings accounts, medical savings accounts, and health flexible spending arrangements to only prescription drugs or insulin (thus allowing distributions from such accounts for over-the-counter drugs).

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California Legislation

On September 14, 2015, California out-of-network providers dodged a bullet when AB533 barely failed to pass.

California’s AB533, the “Surprise Billing” law addressed payment by insurers to out-of-network physicians. The bill was supported by consumer advocates, labor groups, and health plans and insurers support this bill because it will protect consumers from high, unexpected bills from out-of-network providers. It was opposed by the California Medical Association and other physician groups.

This bill limits patient cost-sharing when a patient receives services from an out-of-network provider at an in-network facility. By way of background, patients may have a reasonable expectation that when seeking health care through an in-network facility, all providers will be in-network as well. However, due to differences in health plan contractual relationships among different members of the health care team, this may not be contracted. Anesthesiology, pathology, and radiology, and emergency room physicians are most affected. The consumer may later be “balance billed” for the difference between the out-of-network provider charges and what was reimbursed by their plan. Moreover, out-of-network cost-sharing does not count towards their out-of-pocket maximum and deductible.

This bill sought to change that on both fronts, counting these out-of-network charges towards maximum cost sharing amounts, as well as limiting the total amount owed by the consumer.

The bill:

  • limits a patient’s cost-sharing for such out-of-network services to the amount they would have paid an in-network provider; however, the bill would make an exception from this prohibition if the enrollee or insured provides written consent that satisfies specified
  • specifies reimbursement for overpayment; the interest on any amount overpaid by, and not refunded to, the enrollee or insured shall accrue at 15% per annum.
  • counts the cost-sharing payment towards an individual’s out-of-pocket maximum and deductible.
  • requires plans to inform out-of-network providers of the in-network cost-sharing amount.
  • allows for voluntary consent to waive these protections related to out-of-network services.
  • requires the health service plan to base reimbursement of a claim by the non-contracting individual health professional on the amount the individual health professional would have been reimbursed by Medicare for the same or similar services in the general geographic area in which the services were rendered
  • disputes between providers and health plans over the fee charged for medical services will go through a binding independent review process.

Another Assault on Physician Ethics: Physician-Assisted Suicide

Do we really want the state inserted between the patient and doctor involved in our final days?

On September 11, 2015, ABX2-15 (formerly SB-128) the End of Life Option Act passed with voting mainly on party lines. Governor Brown is a former Jesuit seminarian, so most believe he will do nothing. If Gov. Jerry Brown does not act on the law within 30 days, it automatically becomes law.

Modeled after a 1997 Oregon law, the End of Life Option Act would require patients to submit two oral requests for a lethal prescription, a minimum of 15 days apart, as well as a written request signed in front of two witnesses who attest that the patient is of sound mind and not under duress. The attending physician would receive all three requests. Two doctors must agree that the patients have only six months to live. Will doctors be sued if they are not Kreskin and accurately predict? Will doctors have to kill the patient at six months so their prediction will come true?

The bill includes provisions which make it a felony to “trick or coerce patients to end their lives” against their will. Fat chance of prosecution on that.

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