March 23 marks the one year anniversary of the enactment of the "Patient Protection and Affordable Care Act" (PPACA), legislation ASA opposed on final passage because of many onerous provisions in it. While PPACA has become the law of the land, there remains much uncertainty surrounding it, and ASA members and staff have been tracking and lobbying on related legislative, regulatory and legal developments.
Many provisions in the reform law require the Department of Health and Human Services (HHS), the Centers for Medicare and Medicaid Services (CMS) or other federal agencies to write rules to assure appropriate implementation of the law’s provision or new programs. Some of these regulations have already been created, a majority will be written during the next few years.
The rulemaking process necessary to implement PPACA, and the prior stimulus bill, is one of the most significant, longest and complicated regulatory undertakings in history. This massive process offers both risks and opportunities for anesthesiologists. ASA members and staff continue daily to analyze and strategize on the latest regulations and their potential impact on the specialty.
For example, currently ASA is actively working on regulations associated with health information technology (HIT), accountable care organizations (ACOs) – a new payment system, payment bundling and quality improvement initiatives.
With a newly elected Congress, there is a renewed focus on “repealing” or “fixing” different pieces of PPACA. ASA is using this opportunity to advocate for changes to PPACA that most negatively impact physicians. Most notably, ASA is continuing to push for the elimination of the Independent Payment Advisory Board (IPAB), and the so-called nondiscrimination provision contained in the legislation that could significantly undermine all state scope of practice laws.
The Independent Payment Advisory Board (IPAB) is a new independent commission tasked with putting forth proposals to “reduce cost growth” and “improve quality of care for Medicare beneficiaries.” The commission must recommend cost-saving initiatives to reduce per capita Medicare spending that exceeds a government determined threshold. The Commission is also authorized to make recommendations to “constrain the rate of growth in the private sector” as well. The Commission’s recommendations can become law without Congressional action and cannot be challenged in court (Sec. 3403 and 10320). IPAB is effective January 1, 2014.
The nondiscrimination language provision prohibits health plans from “discriminating” against non-physician health care providers in plan participation and coverage (Sec 2706) and is effective January 1, 2014.
Multiple legal challenges have been brought regarding the constitutionality of certain provisions within PPACA. Three judges have ruled the law constitutional and two judges have ruled the law is unconstitutional. The two cases where the judge ruled the law is unconstitutional are currently being appealed and could end up at the U.S. Supreme Court. These legal challenges to the constitutionality of the law could greatly impact the entirety of PPACA.
In addition to these legal challenges, there are legal concerns over how certain regulations will be written. As an example, the ACO regulations could test certain Department of Justice antitrust provisions. ASA continues to monitor all of these legal questions and will keep members informed of the latest developments.
Actions to Influence PPACA
To most effectively combat the negative provisions in PPACA, ASA members should join the “ASA Grassroots Network.” As a member of the grassroots network, ASA members will be kept apprised of the latest developments on PPACA and will be asked to “Take Action” when appropriate to help facilitate positive changes.