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August 18, 2008

Congress overrides Medicare payment bill veto

July 15, 2008

Congress on Tuesday rejected President Bush's veto of legislation protecting doctors from a 10.6 percent cut in their reimbursement rates when treating Medicare patients (H.R. 6331, the Medicare Improvements for Patients and Providers Act of 2008).  The override vote in the House was a lopsided 383-41, easily meeting the two-thirds threshold needed to nullify the president's veto. About an hour later, the Senate voted to override, 70-26.

The bill also extends protection to the Departmental Appeals Board, which had been the subject of a disemboweling by CMS late last year. Details to follow.

The Fat Lady Finally Sang!

I'm writing to tell you that it's official

June 30, 2008

Over the weekend the President signed the War Supplemental funding bill with moratoria on six Medicaid regulations.  Congratulations to all of you who worked on the campaign to move Congress.  It shows you what a lot of will, determination and team effort can accomplish. You should never forget what you accomplished and should be very happy.  I am proud to be a small  part of your team.

Thank You!

Who Knows What Evil Lurks in the Hearts of Men?

June 1, 2008

That reference is from a radio show called “The Shadow,” which few of you will remember since it went off the air in 1954.  Unfortunately for us, it is also a question we should be asking about the Centers for Medicare and Medicaid Services.

Let me explain.  On December 28, 2007, CMS published the final version of CMS-2287, which eliminates federal reimbursement for school-based administrative services and most school-based transportation services.  Normally this rule would have been implemented sixty days after publication, or February 28, 2008.  A six month moratorium was imposed on the rule, however, which would have made the implementation date August 28, or thereabouts (60 days + 6 months).  Over the course of the months of March and April, however, CMS sent a variety of messages that established the implementation date as June 30, 2008; September 30, 2008, September 1, 2008, the first day of the 2008/2009 school year, [another moving target] and, if you believe the State of Georgia, February 28.

After a series of increasingly confusing messages from CMS, they seemed to settle on June 30 as the last day of the current reimbursement program, and that is the date LEAs and Congress have been using.  CMS has had ample opportunity to advise both if the date was something other than June 30 but has not done so. Last week, several states were notified in writing by their CMS regional offices that the implementation date is now September 1, 2008, not June 30.

Attempts have been made by several interested parties, including Congressional staff, to obtain clarification from CMS regarding this most recent shift.  The only response from CMS – and most inquires have met with stony silence – has shed no light on the subject and mimicked this email from CMS on February 8, 2008 (emphasis added) 

"The publication of the final school-based rule (CMS-2287-F) on December 28, 2007 does not affect the ability of States to submit claims for costs incurred prior to the effective date of the rule; the rule will be applied prospectively. However, as you know, there's a six-month moratorium on CMS' ability to enforce the rule, due to legislation recently signed into law. This moratorium is scheduled to end June 30, 2008.

Final regulations are typically effective 60 days after publication; however, due to the moratorium, that 60 day period starts once the moratorium ends. As a result, the implementation date for the rule will technically be September 1, 2008. CMS never intended States and Schools to be in compliance with the final rule prior to the start of the 2008-2009 school year, so the moratorium really has no effect on that timeline  . . . . Finally, although I indicated [in an earlier email] that CMS was considering developing some sort of additional guidance to address questions surrounding implementation of CMS-2287-F, there are no official plans to do so at the current time and no format specified for any guidance that may ultimately be issued.

Hope this helps. Let me know if you have additional questions.
Thank you.

Sharon Brown|
Administrative Claiming Team,
Division of Reimbursement and State Financing | Financial Management Group |
Centers for Medicare& Medicaid Services | (: 410-786-0673 | *: sharon.brown@cms.hhs.gov"

Because that communication was not entirely clear, I made contact with Ms. Brown shortly after her February email.  She was kind enough to respond by phone.  She left a message on my voice mail.  Here it is in its entirety.  (You will probably have to download it to play it.)

And if this date confusion weren’t enough, there is a second issue.  This one is far more troublesome.

• ·         Regardless of the implementation date, the only thing the moratorium really does is allow LEAs to continue to claim FFP for services delivered before that date
• ·         CMS will certainly retain the right to review those claims
• ·         CMS has repeatedly demonstrated, in previous audits, that it will audit administrative service programs for years prior to the May, 2003 Medicaid Administrative Claiming Guide rule changes even though the audits have been conducted in the years after the 2003 guide.  In some cases, they have gone as far back as the 1990s to disallow claims
• ·         If you follow this twisted logic, CMS could review claims made for services delivered between December 8 and the date of the moratorium and impose the conditions set out in 2287; e.g., disallowing most transportation claims.

Stay tuned  If you want to try for clarification on your own, the CMS contact for public information inquiries is Jeff Nelligan, Director of Media Affairs, Central Phone: 202-690-6145, Central Fax: 202-690-7159, E-mail: OEABox@CMS.HHS.GOV  If that doesn’t work, you can find contact information for your Member of Congress by clicking here.  Maybe she/he can find out.

Updated Chart on the State of CMS Cuts and Moratoria

May 29, 2008

Click here for an updated chart on the Medicaid Regulations that reflect recent action by the U.S. District Court for the District of Columbia.

Desperate People do Desperate Things

 May 21, 2008

Fearful that a federal Judge was going to act on Friday to declare 2258 to be in violation of existing moratorium,  which would then require the Administration to give a 60 day comment period before the regulation could be effective, the Administration issued the following statement.  This announcement is to make it look like Administration is in control and at same time is give Republican Senators an excuse to vote against the domestic amendment (which includes the moratoria) on the Senate floor tomorrow. After all, "we have 60 days to negotiate.”

----------------------------------

May 21, 2008

To:  Republican Health Policy Staff

Fr: Andy Chasin

Re:  Voluntary Extension of Moratorium on IGT and GME Rules

The Administration today announced that they would voluntarily extend for 60 days the moratorium on Medicaid rules related to intergovernmental transfers (IGT) and graduate medical education (GME).  The Administration has previously indicated that it would consider staying its rules on intergovernmental transfers and graduate medical education funding while negotiating changes to these rules with lawmakers.  Those rules represent $885 million of the $1.65 billion at issue for the seven Medicaid rules.  Without further action the IGT and GME rules will now go into effect August 1st instead of May 25th.

Secretary Michael Leavitt released the following statement today:

"I reiterate the Administration's willingness to work with Congress and Governors to discuss their concerns before the rules go into effect", Secretary Leavitt said.  "We will voluntarily refrain from making these rules effective until August 1, 2008, more than 60 days after the moratorium expires.  I invite interested parties to sit down with me and my staff in the coming weeks to ensure that we meet our mutual commitments to protect health care for low-income individuals."

The two rules at issue are:

·         Graduate Medical Education - CMS 2279 - proposed rule published on May 23, 2007.  Cost:  $115 million for the moratorium. For permanent repeal, $800 million over 5 years, and $1.9 billion over 10 years.

·         Cost limit for Providers Operated by Units of Government and Provisions to Ensure the Integrity of Federal-State Financial Partnership - CMS 2259-FC- final rule with comment period, published on May 29, 2007.  Cost:  $770 million for the moratorium.  For a permanent repeal, $9.0 billion over five years and $22.0 billion over 10 years.

FINANCE BRINGS UNEMPLOYMENT INSURANCE, MEDICAID SAFEGUARDS
TO 2008 SENATE SUPPLEMENTAL FUNDING BILL

For Immediate Release Contact: Dan Virkstis
May 21, 2008 (202) 224-4515

Baucus urges passage of bipartisan provisions for America

as funding bill moves to Senate floor

Washington, DC – Senate Finance Committee Chairman Max Baucus (D-Mont.) today urged passage of key Finance provisions in the domestic spending portion of the 2008 supplemental funding bill, including measures that would extend unemployment insurance (UI) for America’s workers and that would safeguard Medicaid services for millions of low-income Americans. The Senate Finance Committee put forward similar UI provisions in late January as part of the economic stimulus package, and Baucus has been vocal in his opposition to stringent Medicaid regulations issued by the Department of Health and Human Services (HHS) to reduce federal funding to the Medicaid program.

“These provisions in the supplemental spending bill target some of today’s most urgent domestic issues by providing additional assistance to those Americans who have lost their jobs during this tough economic time, and by protecting Medicaid coverage for millions who face being shut out of our health care system,” said Baucus. “I urge my colleagues in the Senate to do what’s right for America’s working families, and move these provisions in our supplemental funding bill.”

The UI provision would make 13 weeks of additional UI benefits available to jobless Americans through the end of March 2009. Americans in high unemployment states – with total unemployment rates of six percent or higher – would have 13 additional weeks of eligibility for a total of 26 additional weeks. Individuals who have begun to receive either 13-week extension of benefits by the end of March would be eligible to receive benefits for the remainder of that 13 weeks.

One provision related to Medicaid would suspend until April 1, 2009, seven regulations issued by HHS to reduce federal funding to the Medicaid program by nearly $20 billion, cutting millions of vulnerable Americans out of the health care system. Specifically, the proposed rules would force cuts in school-based, rehabilitation, and case management services, and limit the ability of states to impose taxes on health care providers. They would also change the definition of public provider, the definition of outpatient services, the policy on intergovernmental transfers, and eliminate payment for graduate medical education. These rules would shift millions of dollars in health care costs to state and local governments at a time when they are already under tremendous financial pressure. The National Governors’ Association has asked Congress to block these proposed regulations.
 

Cost Estimate for Protecting the Medicaid Safety Net Act of 2008,

Congressional Budget Office:

April 25, 2008

The CBO cost estimate examines legislation (HR 5613) that would place a one-year moratorium on seven new Medicaid regulations for services supplied by public providers; graduate medical education, school-based administration and transportation services; and rehabilitation services. CBO estimates that the increases in spending under the bill would cost $1.8 billion between 2008 and 2013, and the decreases in spending under the bill would save $1.9 billion between 2008 and 2018, largely due to the required delays in implementing the regulations. According to CBO, the legislation would not affect federal revenues or discretionary spending (CBO cost estimate, 4/22).

The Governors Weigh In

April 24, 2008

Floor Statement of U.S. Senator Chuck Grassley of Iowa
Ranking Member of the Committee on Finance
Medicaid Moratoriums Bill Moving in the House
Wednesday, April 16, 2008
 

Today the House Energy & Commerce Committee is taking up consideration of HR5613. This bill seeks to place a moratorium on seven Medicaid regulations until the next Administration. I know some people have concerns with the CMS Medicaid regulations.

Let me be clear: I’m not here to argue the regulations are perfect. I have issues with some of them I’d like to see addressed. However, the regulations do address areas where there are real problems in Medicaid.

Mr. President, Medicaid is a federal-state partnership that provides a crucial health care safety net for some very vulnerable populations – low-income seniors, the disabled, pregnant women, and children. They depend on Medicaid, and it does generally serve them well.

Medicaid is also a program with a checkered history of financial challenges. That’s the gentle way of putting it. A more severe way of putting it would be that Medicaid has a history of states abusively pushing the limits of what should be allowed to maximize federal dollars sent to them.

I’m not going to devote time in my remarks today to issues of fraud and abuse in Medicaid. I’ll probably be back to do more on that later. Instead, I want to focus on a very simple concept: Medicaid program integrity depends on CMS and the states and providers and ultimately, beneficiaries having a clear understanding of the rules of the road. When states don’t have clear guidance, they could be inappropriately spending taxpayer dollars. Improper payments and wasteful spending only increase the financial pressure on the safety net.

Mr. President, the Medicaid regulations HR5613 attempts to halt are efforts by CMS to provide clearer rules of the road in critical areas where there have been well documented problems. During the recent debate on the budget resolution, I entered into the record a CRS memo that showed some of the issues that exist under current law. I’m not going to go into them in detail today, but when CMS doesn’t know how a state is billing for a service and states don’t have clear guidance for how they should bill, neither Medicaid beneficiaries nor the taxpayers are well served.

We should be talking about fixing the regulations so they better address real problems in Medicaid, but instead the House is trying to kick the can to next year.

So what does that mean for the taxpayer? HR5613 spends $1.7 billion to place moratoriums on the regulations. This is only to delay the regulations until the end of March of next year. I know supporters hope that the next administration will completely cancel the regulations. What would it cost if we tried to completely prevent these regulations from ever taking effect? Not $1.7 billion that’s for sure. It would actually cost the taxpayers almost $20 billion over the next five years and almost $50 billion over the next ten years.

It is an absolute farce for anyone to argue that all of those dollars are being appropriately spent and that Congress ought to just walk away from these issues. But that’s what HR5613 does. Now I know supporters of that bill will say they just need more time. They say they haven’t had enough time to study the regulations and respond.

That argument is starting to strain credibility. The public provider rule was proposed well over a year ago. The rehabilitation services rule was proposed nine months ago. Supporters of the bill have had plenty of time, if they wanted to make new policy. But it is obvious by their actions, their only real interest is making the regulations go away. This is unfortunate Mr. President, because finding solutions is what we should be doing. When we start talking about the integrity of the Medicaid program, clarity is what is most needed between CMS and the states. If you don’t like the rules, fine. But there are ten of billions of taxpayer dollars involved. Roll up your sleeves and get to work solving the problems the regulations try to solve.

Mr. President, that’s what we should be doing for the taxpayers. Putting moratoriums on all of the Medicaid regulations issues by CMS is not the right answer.

"Apres moi, le deluge”

Let us Hope Not

Dennis Smith will be leaving CMS tomorrow. Herb Kuhn will be appointed as the Acting Center Director.  Mr. Kuhn is currently the Deputy Administrator under Kerry Weems.  More on Mr. Kuhn.

An Editorial

April 10, 2008

“He who lives by the sword dies by the sword.”

Dennis Smith was a good soldier.  Time and time again he carried the Administration’s water on the spate of regulations affecting reductions in health care coverage for pregnant women, low-income children, nursing home residents and other groups.  

From time to time, good soldiers are asked to fall on their swords.  Smith, described by the Wall Street Journal as the “architect of the rules,” did so.

Over the course of the past two years or so, Mr. Smith increasingly lost credibility with both parties in Congress.  It was almost painful to watch him testify before the various committees, where he was often asked valid questions to which there were no reasonable answers.  Reports demanded by Congress and promised by Smith were almost always tardy or ignored, with excuses no better than a child’s “The dog ate my homework.”

Smith’s sword was sharpened by the Administration’s abject miscalculation of the furor the seven regulations (and the evisceration of the DAB) would have.  The battle is not over, by any means, but Smith has already had to pay the price.  We will see him again, perhaps on the staff of a Member of Congress already troubled by the moratoria.  Unfortunately for Dennis, his reputation as the Administration’s voice will travel with him.

This is neither the time nor the place for an ad hominem attack on Mr. Smith, but those who have worked with him in the past, including during his tenure as Director of the Department of Medical Assistance Services for the Commonwealth of Virginia, seem to believe that his personality and his mission too often merged. 

Dennis Smith was a good soldier.  Let us hope for his sake - and for our own - that he is not asked again to fall on his sword.

Interested in the Energy and Commerce Health Subcommittee

Hearing This Morning?

April 9, 2008

H.R. 5613, the “Protecting the Medicaid Safety Net Act of 2008”
Read the Committee Action Sheet
View the Archived Webcast or Download

Did You Miss the Energy and Commerce Health Subcommittee Hearing Last Week?

Connect to the Archived Video Webcast of this Hearing or Download

Be sure to listen to Mr. Dingell's opening remarks

The House Energy and Commerce Subcommittee on Health

Hearing on H.R. 5613

April 3, 2008

Full details will be posted here soon, including a link to the recorded video.  Here is the link to the written testimony of the witnesses.  Markup of the bill is next week, with a floor vote the next week. Stay tuned.

H.R. 5613 Cosponsor List as of April 3, 2008

Congressional Research Service Report on 2258

March 26, 2008

The Congressional Research Service March 25 released a report that outlines how a controversial Centers for Medicare & Medicaid Services final rule would affect states' use of intergovernmental transfers to fund their Medicaid costs.

The report, Medicaid Regulation of Governmental Providers, explains that intergovernmental transfers (IGTs) allow states to help fund their share of Medicaid costs through contributions from local governments or other governments entities. Some states have interpreted the term "public agency," which is included in the lists of entities eligible to contribute to state costs, to include providers that are not governmental but have a "public-oriented mission," such as not-for-profit hospitals, according to the report.

However, the rule would tighten the definition of a government entity, eliminating the term public agency and making some hospitals ineligible to contribute to state Medicaid costs.

CMS contends that the rule is necessary because arrangements in which hospitals participate in IGTs are "often repaid through Medicaid disproportionate share hospital payments or through inflated Medicaid payment rates for which federal matching amounts are claimed," according to the report.

In addition, states can make Medicaid payments to hospitals or another provider which are then transferred back to the state through an IGT. The net effect, according to the report is to "effectively raise the federal matching rate in the state to levels beyond those specified in law."

The rule also would limit payments to governmentally operated providers to amounts that do not exceed costs, although the limit would not apply to Indian Health Services facilities, tribal facilities, or disproportionate share hospital payments, according to the report. Another provision of the rule would require government entities to document that they are making a certified public expenditure when they contribute to state Medicaid costs.

The May 2007 rule (72 Fed. Reg. 29748) has drawn criticism from Congress, states, provider groups and advocacy organizations who say its reduction in payments to the states would be detrimental to Medicaid beneficiaries.

Congress enacted a moratorium prohibiting implementation of the rule until May 25, 2008, and pending legislation would extend it further. In addition, a coalition of provider groups, which together represent most of the nation's hospitals, have filed a lawsuit seeking a preliminary injunction prohibiting implementation of the rule ((No. 48 HCDR 3/12/08) ..

See link to new CRS report on IGTs and the Medicaid Public Provider Cost Limit Rule.

BNA
Volume 13 Number 59
Thursday, March 27, 2008
ISSN 1091-4021
 

Good News from The Hill

March 25, 2008

Senator Jay Rockefeller (D-WV), Chair of the Senate Finance Health Subcommittee, is about to introduce legislation that would delay implementation of the seven offensive CMS Regulations until April 2009. His bill will look like Representative Dingell’s H.R. 5613, the Protecting the Medicaid Safety Net Act , but may also address an August 17 directive from CMS that attempts to limit eligibility and expansion of SCHIP.  That directive requires states to confirm that the state children’s health insurance program (SCHIP) is serving 95 percent of eligible Medicaid beneficiaries in families earning less than 200 percent of the federal poverty level (FPL) before allowing coverage expansions to families earning more than that. 

Legislation imposing moratoria on CMS regulations has faced problems with cost (CMS claims significant cost savings in the first year for most of its proposed regs) but both the House and Senate budget resolutions include budget-neutral reserve funds for moratorium legislation.

Both House and Senate bills would put off for one year the recent CMS regulations affecting intergovernmental transfers; coverage of rehabilitation services for people with disabilities; outreach and enrollment in schools; specialized medical transportation to schools for children covered by Medicaid; graduate medical education payments; outpatient hospital services; targeted case management services; state provider tax limits, and appeals filed through the HHS Departmental Appeals Board.

As Mr. Dingell pointed out in a press statement accompanying introduction of his bill, “If the Administration’s proposed cuts move forward, those most in need will pay the highest price. The restrictions the Administration is imposing on Medicaid are harmful and will undoubtedly put the health of thousands of our most vulnerable children at unnecessary, indefensible risk.”

Two recent reports indicate that, if implemented, the rules would have a disastrous effect on states’ economies and their ability to provide services to the most vulnerable beneficiaries.

House Oversight Committee Chairman Henry Waxman conducted a survey of State Medicaid officials who estimated state losses could top $50 billion over five years in reduced federal payments due to the regulations.  This is nearly three times CMS’ original estimate.   

A recent report commissioned by First Focus, a children’s advocacy group, and produced by Professor and attorney Sara Rosenbaum of George Washington University’s School of Public Health, found that the rules would especially harm low-income children with special needs and may violate a Medicaid provision requiring access to the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program.

Bruce Lesley, President of First Focus, points out that as states battle to counteract the current economic downturn, the CMS regulations shift of Medicaid costs to the states could saddle children most in need of health care with the burden of paying for it themselves or going without treatment.  The regs would also cut billions of dollars from the budgets of public schools, which would then be faced with the decisions to reduce funding for education and health services or raise state and local taxes to pay for the reduction in federal support.

Senator Charles Grassley (R-IA), meanwhile, warns that while the Medicaid regs may be imperfect, ignoring the problems they are intended to solve would be bad public policy.   Senator Grassley would like Senate Finance to review all the rules and replace them with “sound policy.”

Opposition to the CMS regs has come from a variety of sources, including some that may not have been foreseen by the Administration.  For example, former Republican National Committee Chairman and current Mississippi Governor Haley Barbour testified at the February 26th Waxman hearings that the regulations banning intergovernmental transfers and graduate medical education payments under Medicaid would devastate a number of providers in Mississippi and cost the state upwards of one hundred million dollars.

Stay tuned.  It’s just beginning to get interesting.

Hospitals File Lawsuit Over Medicaid

Groups representing most of the nation's hospitals announced Tuesday they were suing federal health officials to block the enactment of regulations that some hospitals claim threaten their survival.  The regulations would restrict federal Medicaid payments so they don't exceed the cost of providing care. But hospital officials said the rules would make it harder to offset the expense of treating the uninsured.  Find the full story here.

Participants in the lawsuit include the American Medical Association, the National Association of Public Hospitals and Health Systems, and the Association of American Medical Colleges.

Federal action "sneaky, mean, shortsighted"

[yes, I know I originally posted this back in February, but it is fun to read again, isn't it?]

February 13, 2008

Hey, I didn't say that.  The Bakersfield Californian did.  Read the whole column here.

You Had Your Chance, CMS

March 5, 2008