SZD Health Law Scan : Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

On June 25, 2009, Daniel Levinson, Inspector General of the U.S. Department of Health and Human Services, testified before the House Energy and Commerce Committee's Subcommittee on Health. During his testimony, he addressed the OIG's ongoing efforts in combating fraud, waste and abuse in Medicare and Medicaid. Additionally, he reiterated the OIG's "Five Principles," which the OIG believes should guide the development of a national health care integrity strategy. The Inspector General had recently announced these same principles before the Senate's Special Committee on Aging.

The Inspector General summarized the Five Principles as follows:

1.      Enrollment - Scrutinize individuals and entities that want to participate as providers and suppliers prior to their enrollment in health care programs.

2.      Payment - Establish payment methodologies that are reasonable and responsive to changes in the marketplace.

3.      Compliance - Assist health care providers and suppliers in adopting practices that promote compliance with program requirements, including quality and safety standards.

4.      Oversight - Vigilantly monitor programs for evidence of fraud, waste, and abuse.

5.      Response - Respond swiftly to detected fraud, impose sufficient punishment to deter others, and promptly remedy program vulnerabilities.

The Inspector General concluded his testimony by tying the OIG's strategy to the broader efforts to reform the U.S. health care system: "In the context of health care reform, it is an especially important time to consider how to best safeguard health care programs from fraud, waste, and abuse to protect beneficiaries and taxpayer dollars." According to the Inspector General, the Five Principles provide the necessary framework to accomplish these goals.

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On June 16, 2009, the Centers for Medicare & Medicaid Services (CMS) released a fact sheet on the Medicare and Medicaid Health Information Technology: Title IV of the American Recovery and Reinvestment Act (ARRA). The fact sheet details the Medicare and Medicaid incentive payments for meaningful users of electronic health information (EHR). In addition to the summary of ARRA, the fact sheet contains a section on Frequently Asked Questions about the incentive payments.

According to this fact sheet, CMS expects to publish a proposed rule to define "meaningful use" of EHR and to establish the criteria for the incentive payments by late 2009.

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On June 16, 2009, the Health Information Technology (HIT) Policy Committee held a meeting to begin defining the "meaningful use" of electronic health records (EHR). Under the American Recovery and Reinvestment Act (ARRA), only "meaningful EHR users" will be eligible to receive Medicare and Medicaid incentive payments for adopting EHRs. The ARRA broadly defines a meaningful EHR user as one who demonstrates (1) the meaningful use of certified EHR; (2) the electronic exchange of health information to improve quality of health care; and (3) the submission on clinical quality and other measures using certified EHR technology.

The HIT Policy Committee developed a "Meaningful Use Matrix" that establishes proposed objectives that hospitals and physicians would have to meet to receive the incentive payments. The committee believes that this matrix "represents a set of objectives and care processes that . . . should inform the ultimate definition of meaningful use."

The Office of the National Coordinator for Health Information Technology (ONC) is now seeking public comments on the HIT Policy Committee's recommendations through Friday, June 26, 2009. The Centers for Medicare & Medicaid Services expects to publish a proposed rule to define "meaningful use" of EHR and to establish the criteria for the incentive payments by late 2009.

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Politics aside, can anyone explain how a federal program only 43 years old came to be insolvent?  When Congress enacted the Medicare Act in 1965, the program was estimated to have an annual cost of under $10 billion for quite some time.  Indeed, contributions from Part A payroll taxes and premiums for Part B were designed to create a surplus that would be held in trust for use in the future when revenues might not cover costs.  In 2007, Medicare required an infusion of $178 billion of general revenues just to pay its current bills.  How can we have gotten so far off track?

"The Facts About Medicare," an article that appeared in the July/August 2008 issue of Contingencies, the journal of the American Academy of Actuaries, attempts to answer this question. Six factors are blamed for what might be the greatest forecasting error in history.  First, the Medicare population grew much faster than expected because of a marked increase in life expectancies (which means the program worked!).  Second, new benefits and new covered populations have been continuously added since the inception of the program, the most recent being Part D prescription drug benefits.  Third, medical costs have grown faster than wages  during the same period, both because of price inflation and the addition of new medical technologies (we can do much more today than we were able to do in 1965).  Fourth, the percentage of the program's cost shouldered by consumers has steadily fallen since inception.

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