The ACP Advocate Blog
by Bob Doherty
Tuesday, March 11, 2014
What Can We Do about a Non-compliant Congress?
Physicians know all about non-compliance. Sometimes, no matter what they do, even when they do everything right, patients don’t heed their advice, and the outcome is poor. And sometimes, even when the physician and the patient both do everything correctly, things inexplicably go wrong, and the patient experiences a bad outcome. Some things are just out of the doctor’s and the patient’s control. This concern—that bad outcomes happen even when a doctor provides the best possible care—is one of the major reasons why many physicians distrust pay-for-performance and public reporting.
Yet even when things don’t go right and it appears that there is nothing that the physician could or should have done differently, doctors are always striving to figure out a better way, so that next time, just maybe, the outcome will be better for the patient.
While the stakes aren’t as high, people like me, whose job is to get the best possible outcome out of Congress, can sympathize with physicians. Sometimes, Congress is non-compliant and won’t heed our advice, even when we do everything right. Sometimes, even when we seem to be doing everything correctly and even when Congress appears to be ready to comply, something goes wrong, and the legislative outcome is poor. Some things appear to be out of our control, no matter what we do. Yet when things don’t go right and it appears that there is nothing that could or should have been done differently, we are always striving to figure out a better way, so that next time, just maybe, the legislative outcome will be better.
The current situation with legislation to repeal the Medicare SGR formula is a case in point. For 11 years now, we have had a non-compliant Congress: no matter what ACP, or AMA, or the rest of organized medicine has said or done, Congress has refused to comply with our efforts to get them to repeal the SGR. There is always an excuse (just like patients can come up with all kinds of excuses, say, on why they haven’t lost weight or quit smoking). SGR repeal is too expensive. We know it is bad for the country, but we don’t know what to replace it with. It is always someone else’s fault (Republicans blaming Democrats, Democrats blaming Republicans, the House blaming the Senate, the Senate blaming the House, both sides blaming the clock—“we don’t have enough time.” And Congress loves to put the blame directly on physicians, and their professional organizations: if only you would “come to the table” and help us craft a solution, we could get it done. If only doctors were unified, instead of splitting into different camps of surgeons versus primary care, specialty societies versus the AMA, state medical societies versus the national societies, conservative doctors versus liberal doctors, we could get it done. If only we heard from more doctors, we could get it done. Next time, they say, we promise to do better, if you doctors would get your act together and help us.
And to be fair, the medical profession has not always been unified on the SGR—although everyone agrees on getting rid of it, we haven’t always agreed on a replacement. We haven’t always come constructively to the table.
This year has been different, though. The medical profession has come to the table and helped Congress develop a bipartisan, bicameral bill, the SGR Repeal and Medicare Provider Payment Modernization Act of 2014. The medical profession has been unified: over 600 physician membership organizations, encompassing all specialties and states, recently urged Congress to repeal the SGR. And Congress itself has worked (up until now) on a bipartisan and bicameral basis to come up with a solution, knowing that the only way SGR repeal legislation is going to pass is if it has the support of both the House and Senate, Republicans and Democrats, and has the unified support of doctors.
Yet even though it has seemed like everything was going in the right direction, Congress appears to be on the verge of falling back into its old partisan ways, endangering SGR repeal. Later this week, the House of Representatives is expected to vote on the SGR Repeal and Medicare Provider Modernization Act, and it is likely to pass the House. But this vote is not going to advance the chances of getting SGR repeal because the House leadership chose to pay for SGR repeal by delaying the Affordable Care Act’s requirement that people buy qualified coverage or pay a tax penalty (without the tax penalty, fewer people would get covered, so the government’s cost of providing coverage would decrease, freeing up money for SGR repeal). Because tying SGR repeal to gutting a key provision of the Affordable Care Act is a non-starter with Senate and House Democrats and with the White House, the House leadership’s decision to link the two means certain rejection of the SGR repeal and replacement bill by the Senate. Over on the Senate side, Majority Leader Reid has been coy about how or even if he plans to move the bill to a floor vote, but if he chooses to pay for it in ways, or links it to non-related partisan priorities, that are unacceptable to House (and Senate) Republicans, it will mean certain rejection by the House.
The only way to change the dynamic that has thwarted SGR repeal for 11 years now is for Congress to mirror the process that produced agreement on the policies in the SGR repeal and replacement bill and resume working on a bipartisan, bicameral basis to come up with ways to pay for it that both parties, both chambers, and President Obama can support. This is how ACP put it in a statement released on Friday:
"After many months of hard work, the congressional committees with jurisdiction over Medicare have reached bipartisan agreement on a bill to repeal the broken Sustainable Growth Rate (SGR) formula, the SGR Repeal and Medicare Provider Payment Modernization Act of 2014 (H.R. 4015/S. 2000). Yet, this historic bipartisan opportunity to eliminate the AGR, once and for all, is at risk of being upended because of partisan disagreements on how to address the budget impact of SGR repeal and on other policies unrelated to the SGR itself. If either political party or chamber decides on its own to attach provisions to the bill that are unacceptable to the other, it would kill any chance for SGR repeal.
Congress knows that it is counterproductive for either the House or the Senate, Republicans or Democrats, to tie the bipartisan bicameral SGR repeal bill to other policies that do not have the bipartisan support needed to pass both chambers, and be signed into law by the President.
Today, we call on House and Senate leadership to immediately engage in a bipartisan process to reach bipartisan agreement on a budgetary solution that can pass both the House and the Senate, mirroring the bipartisan, bicameral process that produced agreement on the SGR replacement policies contained in H.R. 4015 and S. 2000, as agreed to by the committees. We believe that such a bipartisan agreement can and must be reached in time for Congress to pass this legislation, before the current patch expires on April 1.
We cannot support linking SGR repeal to changes in current law that will result in fewer people getting health insurance coverage."
In the meantime, organized medicine needs to stay united, to not be drawn into a [renewed] partisan fight over how to pay for SGR repeal and replacement, to continue to constructively engage in the process, to continue to keep the pressure on Congress, and to continue to do everything we can to get the best possible legislative outcome. We cannot guarantee that Congress will comply. And if Congress does not enact SGR repeal and replacement this year, despite our best efforts, we will need to reassess, like we always do, if there is anything that can be done next time to get a better outcome. But we can't throw in the towel over the latest SGR repeal setback, just like doctors don't throw in the towel when their patients have setbacks and don't comply with their advice.
About the Author
Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog
Email Bob Doherty: TheACPAdvocateblog@acponline.org.Follow @BobDohertyACP
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