President Obama Outlines Proposal to Deficit Reduction Super-Committee; Medicare Provisions Loom Large

This post was written by Debra A. McCurdy and Susan A. Edwards.

On September 19, 2011, President Obama presented his deficit reduction plan – including $320 billion in proposed federal health spending cuts – to the Joint Select Committee on Deficit Reduction, which was created by the Budget Control Act of 2011 to craft a legislative package to cut the federal deficit by at least $1.5 trillion. If legislation is not adopted to achieve deficit reduction targets by January 2012, $1.2 trillion in across-the-board spending cuts (sequestration) would be triggered, effective January 2013.

The health care industry has a significant stake in the outcome of the Joint Select Committee’s work, since Medicare spending in particular is expected to figure prominently in the Committee’s package. Under President Obama’s plan (which the Joint Select Committee is not obligated to follow), Medicare spending would be cut by about $248 billion over 10 years, with more than half of the savings coming from new Medicare drug rebates. Medicaid and other health funding also would be reduced by about $72 billion. If sequestration ultimately is triggered, on the other hand, Medicare provider payments also would be subject to reduction; but the Congressional Budget Office (CBO) recently estimated that the level of Medicare cuts under sequestration would be approximately $123 billion between 2013 and 2021.

This Alert provides an overview of the Budget Control Act, including the two possible mechanisms for lowering the federal deficit: (1) enactment of the Joint Select Committee’s proposal; and (2) sequestration. In addition, this Alert discusses recent developments, including President Obama’s deficit reduction plan, and provides a timeline for action under the Budget Control Act.

Administration, Congress Wrestle with Debt Limit Extension that Could Include Medicare/Medicaid Cuts

As has been widely reported, the Obama Administration and lawmakers are struggling to reach a compromise on a legislative package to extend the nation’s federal debt limit before the $14.3 trillion ceiling is reached on August 2, 2011. Numerous proposals have been floated calling for varying degrees of federal spending reductions, but no consensus package has yet emerged. It appears likely, however, that any debt limit extension that is coupled with significant spending cuts will include some level of cuts to the Medicare and Medicaid programs, potentially including extensive Medicare provider cuts, drug reimbursement reductions, reduced Medicare Advantaged payments, increased beneficiary cost-sharing, and reduced federal payments to state Medicaid programs. We will provide additional information as legislative details emerge.

Senate Opposes House FY 2012 Budget Resolution, Obama Budget Plan

On May 25, 2011, the Senate voted 40-47 to oppose H.Con.Res. 34, the House-approved budget resolution for fiscal year (FY) 2012. As previously reported, H.Con.Res. 34 calls for significant structural reforms of the Medicare and Medicaid programs and repeal of the ACA.  In addition, the Senate voted unanimously (0-97) not to consider S.Con.Res. 18setting forth the President's budget request for FY 2012, which also includes a variety of Medicare and Medicaid provisions. The Senate has not yet adopted a budget resolution for FY 2012.

CMS Proposed Rule on Methods for Assuring Access to Covered Medicaid Services

On May 6, 2011, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule to create a standardized, transparent process for states to follow when they set Medicaid payment rates. Under the Social Security Act, state plans must ensure that payment rates for Medicaid services “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that services are available to Medicaid eligible individuals to the extent that they are available to the general population in the geographic area.” CMS points out that states currently do not have guidance on how to determine compliance with the statutory access requirements, an “issue that has come to light recently, both in litigation and in our review of proposed Medicaid State plan amendments (SPAs) that would reduce provider payment rates.” CMS therefore is proposing to clarify the definition of access to care and services and provide standard data elements and measures that states must submit to CMS to demonstrate that payment rates are sufficient to provide access to covered Medicaid services.  If a state proposes provider rate reductions or restructuring that could result in access issues, the state would be required to conduct an “access review” using a three-part framework recommended by the Medicaid and CHIP Payment and Access Commission (MACPAC). The elements of the MACPAC framework that must be addressed are: the extent to which enrollee needs are met, the availability of care and providers, and changes in beneficiary utilization of covered services. The review also would include a comparison of Medicaid payment rates to customary charges and Medicare, commercial payments, or provider cost. In addition, the proposed rule would require that states develop monitoring procedures after implementing provider rate reductions or restructuring rates in ways that may negatively impact access to care. The rule also would recognize, as states have requested, electronic publication as an optional means of communicating to the public information about SPAs with proposed rate-setting policy changes. CMS will accept comments on the rule until July 5, 2011.   

House Panel Approves Bill to Repeal Medicaid/CHIP Maintenance of Eligibility Requirements

On May 12, 2011, the House Energy and Commerce Committee Subcommittee on Health approved H.R. 1683, the State Flexibility Act of 2011, legislation to repeal the maintenance of eligibility requirements first implemented by the American Recovery and Reinvestment Act and later extended and expanded in the ACA.  The Congressional Budget Office (CBO) estimates that Medicaid spending would decline by roughly $1.5 billion over the period of 2012-2021, and CHIP spending would decline by approximately $8.8 billion over that period, as states tighten eligibility standards. 

President Obama Outlines Plans for Deficit Reduction/Entitlement Reform

On April 13, 2011, President Obama delivered a speech outlining his plan for reducing the federal budget deficit by $4 trillion within 12 years, in part through Medicare and Medicaid reforms. Specifically, the President is calling for $480 billion in Medicare and Medicaid cuts by 2023 and at least an additional $1 trillion in cuts over the subsequent decade. One mechanism the President proposes to control Medicare spending is directing the Affordable Care Act’s (ACA) Independent Payment Advisory Board (IPAB) to hold Medicare cost growth per beneficiary to the gross domestic product per capita plus 0.5 percent (rather than 1.0 percent under the ACA) beginning in 2018. If spending growth exceeds the target, the IPAB's proposals go into effect automatically unless Congress enacts alternative legislation to achieve required savings. The President proposes additional budget enforcement measures to ensure savings targets are met. The President also calls for $200 billion in cuts in Medicare prescription drug spending (including by "leveraging Medicare’s purchasing power," speeding the availability of generic biologics, and prohibiting brand-name companies from entering into “pay for delay” agreements with generic companies). With regard to Medicaid, the plan calls for savings of at least $100 billion over 10 years. According to the summary, the President’s plan would replace the current federal matching formulas with a single matching rate that rewards states for efficiency and automatically increases if a recession increases enrollment and associated state costs. Additional Medicare and Medicaid "accountability" proposals include, among others: restricting states’ use of provider taxes to lower their state spending without providing additional health services; recovering "erroneous" payments from Medicare Advantage plans; capping Medicaid payments for durable medical equipment (DME); and implementing Medicaid management of high prescribers and users of prescription drugs, among other things.  President Obama also announced that he has asked Majority Leader Reid, Speaker Boehner, Minority Leader Pelosi and Minority Leader McConnell to each designate four members to participate in bipartisan, bicameral negotiations led by the Vice President, beginning in early May to develop a legislative framework for comprehensive deficit reduction.

President Obama’s deficit reduction proposal comes at a time when the House of Representatives is considering a budget proposal for FY 2012 (H. Con. Res. 34) drafted by House Budget Chairman Paul Ryan (R-WI) that calls for $6.2 trillion in spending cuts over the next 10 years, although estimates of savings vary (see http://budget.house.gov/fy2012budget/). Among other things, the budget resolution includes significant structural reforms of the Medicare and Medicaid program and repeal of the ACA. With regard to Medicare, the plan would convert the Medicare program to a premium support model for individuals becoming eligible for Medicare beginning in 2022. Under this policy, traditional Medicare eventually would be replaced with a system whereby beneficiaries would choose among competing health plans meeting coverage standards (similar to current Medicare Part C plans), and a premium-support payment would be made to the plan, subsidizing its cost, with increased assistance provided to lower-income beneficiaries and those with greater health risks. The resolution also would convert federal Medicaid spending into a block grant program. In addition, the measure generally calls for repeal of the ACA, although presumably such efforts would focus on ACA insurance-related provisions rather than, for example, the extensive Medicare provider reimbursement or fraud enforcement provisions. The House Budget Committee approved the measure on a party-line vote, and it is scheduled to be considered by the full House this week. Note that the budget resolution simply provides the spending and revenue instructions for the Congressional committees; enacting legislation would need to be adopted to implement any of the proposed policy changes. Democratic leaders have widely criticized the Ryan plan. Nevertheless, particularly in light of today’s proposal by the President, it appears increasingly likely that some form of entitlement reform may advance this year.

CMS Withdraws 2007 Medicaid Financing Rule

On November 30, 2010, CMS formally withdrew its controversial May 29, 2007 final rule entitledMedicaid Program; Cost Limit for Providers Operated by Units of Government and Provisions To Ensure the Integrity of Federal-State Financial Partnership,” which sought to limit federal Medicaid payments to government health care providers and restrict certain state Medicaid financing arrangements. CMS is withdrawing the 2007 rule and restoring previous regulatory language in light of a U.S. District Court ruling that vacated the rule, along with language in the American Recovery and Reinvestment Act that expressed the sense of Congress that the cost rule should not be finalized. The withdrawal regulation is effective November 30, 2010.

Physician Fee Schedule Cut Takes Effect; Fix Awaits Senate Action

On May 28, 2010, the House of Representatives approved an amended version of H.R. 4213, "The American Jobs and Closing Tax Loopholes Act of 2010.” The legislation would avert a more than 21% cut in Medicare physician fee schedule (MPFS) payments that went into effect June 1, 2010 under the statutory sustainable growth rate (SGR) formula (although CMS is exercising its authority to hold claims for the first 10 business days of June while legislative action is pending to avoid applying the negative update). Under the House bill – which still awaits Senate action -- MPFS rates would be increased by 2.2% for the rest of 2010 and by 1% in 2011, but there would be no relief from the SGR formula for 2012 or thereafter (the Congressional Budget Office estimates that in 2012, rates would be cut by about 33% in the absence of yet another legislative fix). The House bill also would, among other things: expand eligibility for the 340B drug discount program; repeal the delay in the use of RUG-IV for purposes of the Medicare SNF PPS; tighten restrictions on inpatient hospital billing under the “3-day payment window”; and establish a CMS-IRS data match to identify fraudulent providers. The House dropped from its package a 6-month extension of a temporary increase in the federal Medicaid matching rate and an extension of premium assistance for COBRA benefits to reduce the cost of the package. The prospects for Senate action on H.R. 4213 are still uncertain due to concerns that the new spending in the bill still is not fully offset by cuts, so additional shorter-term extensions of the previous physician fee schedule freezes are possible.

Congress Wrestles with Legislation to Delay Medicare Physician Fee Schedule Cut, Make Other Health Policy Changes

Congressional leaders have been seeking support for a jobs bill with a number of Medicare and other health policy provisions, but to date have been unable to muster the necessary votes for passage before the Congressional Memorial Day break due to concerns about the cost of the package. Among other things, H.R. 4213, "The American Jobs and Closing Tax Loopholes Act of 2010,” would avert a more than 21% cut in Medicare physician fee schedule (MPFS) payments scheduled to take effect June 1, 2010 under the statutory sustainable growth rate (SGR) formula. Instead, Congressional leaders are proposing to increase MPFS rates by 2.2% for the rest of 2010 and by 1% in 2011, but would provide no relief from the SGR formula for 2012 or thereafter. The legislation also would, among other things: extend for 6 months a temporary increase in the federal Medicaid matching rate; expand eligibility for the 340B drug discount program; repeal the delay in the use of the Resource Utilization Groups (RUG IV) for purposes of the Medicare skilled nursing facility (SNF) prospective payment system (PPS); tighten restrictions on inpatient hospital billing under the “3-day payment window”; establish a CMS-IRS data match to identify fraudulent providers; and extend premium assistance for COBRA benefits.  Note that the legislative situation is very fluid, and leaders may revise the package further, including possibly holding a separate vote on the MPFS fix provision. Given the uncertainties of the Congressional outlook, CMS has ordered contractors to hold MPFS claims for the first 10 business days of June (CMS expects the hold to have minimum impact on provider cash flow since clean electronic claims are not paid before 14 calendar days after receipt).

President Obama Releases FY 2011 Budget Request

The Obama Administration has released its proposed federal budget for fiscal year (FY) 2011. In its budget documents, the Administration reaffirms its commitment to enacting health reform legislation, and it assumes $150 billion in federal savings attributable to health reform over the 2011-2020 period. The document states that the budget “supports health insurance reform” by expanding patient-centered health research on treatment effectiveness; increasing investment in health information technology, prevention, and wellness activities; and initiating Medicare payment reform demonstrations. Nevertheless, the budget does not outline comprehensive reform plans, nor does it repeat the sweeping Medicare and Medicaid budget savings proposals included in the Administration’s proposed FY 2010 budget. In other health policy areas, the budget would: expand funding for biomedical research, health centers for the medically underserved, and HIV/AIDS prevention and treatment; provide a six-month, $25.5 billion extension of the American Recovery and Reinvestment Act (ARRA) temporary increase in federal Medicaid matching funds; expand Medicare and Medicaid anti-fraud efforts; address high-risk billing activity associated with the Medicaid drug benefit; expand Food and Drug Administration (FDA) user fees; and fund an FDA to “provide regulatory pathways for new technologies such as biosimilars.”  A separate FDA press release on the budget proposal announces that the Administration is seeking $4.03 billion for the FDA in FY 2011, which is a 23% increase over the agency’s current $3.28 billion budget.  The following initiatives are the major components of the FDA's FY 2011 budget increase:  transforming food safety ($318.3 million); Protecting Patients Initiative ($100.8 million); advancing regulatory science ($25.0 million); and tobacco-related initiatives ($215.0 million).  Note that many provisions of the proposed budget would require Congressional approval to implement. To that end, Congress is holding a series of hearings on the proposal, including Senate Finance and House Energy and Commerce Committee hearings focusing on the health policy provisions of the budget. Several other budget hearings scheduled for the week of February 8 were postponed due to extreme weather conditions in the Washington, D.C. area.