Regulatory Editor

There may be no end to the partisan rancor in Washington, but a hearing in the House Energy and Commerce Committee highlighted areas in which Republicans and Democrats agree, such as legislation that would repeal the Independent Payment Advisory Board (IPAB), which itself was a creation of the partisan Affordable Care Act.

The July 20 hearing of the House Energy and Commerce Committee's health subcommittee reviewed nine completed bills and discussion drafts for two additional legislative proposals, and there was little partisanship to be heard. The Protecting Seniors' Access to Medicare Act of 2017 would excise the IPAB provisions from the statute while several other bills under consideration would boost telemedicine access for patients with stroke and amend competitive bidding programs for diabetes supplies.

Health subcommittee chairman Rep. Michael Burgess (R-Texas) said each of the policies under consideration has bipartisan support, but not all in attendance were in favor of dumping IPAB. Rep. Anna Eshoo (D-Calif.) said, "I understand the resistance to" IPAB, but added, "there isn't anything to address costs and how we are going to sustain the costs in the system." Without mentioning the Medicare Payment Advisory Commission, Eshoo said "there is a case to be made for a mechanism that would review" the Medicare spending problem, stating that the move to get rid of IPAB is "a march to folly."

One of the witnesses at the hearing, Mary Grealy, president of the Healthcare Leadership Council, said the statute disallows many types of Medicare cuts, but that cuts to providers are not statutorily banned. Consequently, allowing the IPAB to continue would have "a very direct effect" on access, she said. The blowback on Eshoo's remarks came from at least one member of her own party, Rep. Raul Ruiz (D-Calif.), who said the elimination of IPAB "is an example of common-sense changes" to the statute.

Grealy responded to Ruiz that a trigger of IPAB leaves Congress little time to craft an alternative with cost savings equal to the IPAB proposal, adding that the legal requirement for fulfilling IPAB's mandate would statutorily fall to the Secretary of Health and Human Services. Ruiz urged the scheduling of a markup hearing for the IPAB repeal bill and other legislation under consideration "as soon as possible."

H.R. 849, the Protecting Seniors' Access to Medicare Act of 2017, is sponsored by Rep. Phil Roe (R-Tenn.), who has previously sponsored IPAB repeal bills. This bill enjoys the support of more than 250 House members, while an identical Senate version bearing the same name (S. 260) has 36 co-sponsors. S. 260 was authored by Sen. John Cornyn (R-Texas) and is in process in the Senate Finance Committee.

H.R. 1148, the Furthering Access to Stroke Telemedicine (FAST) Act of 2017, is co-sponsored by more than 120 after debuting in the Energy and Commerce Committee in February 2017. H.R. 1148 is designed to expand access to telemedicine for treatment of stroke patients, while the Senate companion bill, S. 431, has the support of only 10 senators. The Senate bill is the province of the Finance Committee while the House bill is in the jurisdiction of the Energy and Commerce and Ways and Means Committees.

As previously reported in the July 20 issue of BioWorld MedTech, H.R. 3245 would beef up the volume of civil and criminal penalties for Medicare fraud by doubling most of the civil fines encoded in the statute. The Medicare Civil and Criminal Penalties Act would quadruple many of the criminal fines, although the bill's listing at congress.gov lists only two co-sponsors, one of which is the bill's author.

H.R. 2577 is billed as the Prostate Cancer Misdiagnosis Elimination Act of 2017, and would stipulate that Medicare cover DNA specimen provenance assay (DSPA) testing. The American Medical Association's CPT coding committee assigned two CPT codes to this test in 2012 (81265 and 81266), and Palmetto GBA of Columbia, S.C., covers these codes in the context of recipient/donor tissue testing, as does another Medicare administrative contractor, CGS Administrators of Nashville, Tenn.

In the context of prostate cancer, DSPA would presumably tamp down on false positives, but the controversies regarding this test have been brewing for some time. An administrative law judge ruled in 2012 that another Medicare administrative contractor, National Government Services, had inappropriately kicked a number of claims for the test performed by Strand Analytical Labs of Indianapolis. That decision was overturned in 2015 in the U.S. District Court for the Southern District of Indiana, however, allowing the program to reclaim more than $48,000 in billing.

H.R. 3271, also known as the Protecting Access to Diabetes Supplies Act of 2017, would require durable medical equipment providers to offer at least half of all commercially available diabetes test strips. Any providers that cannot document that they are in compliance may lose their DME bidding contract as a consequence.

One of the two discussion drafts would take up the question of extension of physical therapy cap exceptions, essentially replacing language to extend the exception for another year, while the second discussion draft would provide bundled payment for clinical lab services provided to homebound patients and patients in nursing homes.

Precisely how all these bills would be shepherded through the House has not been made explicit, but the Children's Health Insurance Program (CHIP) is one possible vehicle. Funding for the current iteration of the program expires at the end of September, giving time even after the August recess to renew the CHIP program along with any attached legislation.

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