All Amendments Fail to Attach to H.R. 2
After surviving multiple objections, including accusations of eight violations of Article 1 Section 8 of the U.S. Constitution, the Medicare Access and CHIP Reauthorization Act of 2015 (H.R.2) was overwhelmingly passed by the U.S. Senate today, after an extended session to consider and vote on six potential amendments, all in an effort to head off a 21% pay cut for the Centers for Medicare and Medicare Services (CMS) reimbursements to physicians, scheduled to go into effect after midnight. Few of the proposed amendments came close to passing, and the final vote on the bill was 92 Yes and 8 No. The bill now enters the process to be signed by President Obama, who has stated he would sign the bill into law as soon as he receives it from Congress.
Will CMS wait for the law or act as if it is in effect?
In anticipation of delays, CMS has issued two notices about the situation. In March, CMS told providers that it is definitely preparing to make the 21 percent cuts if Congress fails to act. Nevertheless, CMS officials tried to calm tensions by pointing out they can “hold” checks for 14 calendar days under current law, to temporarily protect doctors from cash-flow problems. On Monday, April 13, several Medicare Administrative Contractors (MAC) sent email notices to their assigned providers explaining that CMS would begin to process claims under the updated (21% reduced) Medicare Physician Fee Schedule (MPFS) beginning on April 15, 2015, on a daily basis, while still holding new claims as they are received, thus maintaining a hold on 10 days’ worth of claims. Also, CMS would continue to hold all therapy claims that would no longer qualify for the therapy cap exceptions (therapy claims filed with the ‘KX’ modifier), due to the expiration of the therapy cap exceptions process, which also happened on April 1, 2015.
It remains to be seen exactly how CMS will handle this, but it is possible for them to act in a way that “assumes” that legislation has been passed, giving them a definite path to pursue without guesswork. That is, at least in this reporter’s opinion, CMS will want to avoid the cost and confusion of reprocessing claims, so will start processing claims under the new law – either immediately or within a day or two.
What happens to the physical therapy claims caps?
Medicare’s annual limits on how much it pays for outpatient rehabilitation services for beneficiaries were established in the same bill that created the SGR, the 1997 Balanced Budget Act (PL 105-33). In 2006, Congress finally blocked the caps from taking effect and created a temporary exceptions process that allows patients to receive medically necessary services beyond the annual limits, and has repeatedly extended that process until now.
Although the Senate version of the SGR bill seen in the previous Congress included language to permanently repeal the caps, the bill that passed the House this year, H.R. 2, only provides another extension of the exceptions process, through the end of 2017.
One of the votes in tonight’s session that came close to passing was Amendment 1119, sponsored by Senator Ben Cardin (D-MD) to scrap the caps, having previously introduced it as bill S. 539 with Senator Susan Collins (R-ME). The final tally on Amd 1119 needed only two more Yes votes to pass. Senator Orrin Hatch (R-UT) had argued that adding this amendment to the bill would have broken the coalition that allowed the bill to pass in the House, last month. This was the closest call for H.R.2, tonight.
How the amendments fared
Six amendments came to the Senate floor for consideration. Offering amendments to a bill is an easy way for Senators to show their priorities, even if the amendment is trounced. It is also a way for a Senator to express what s/he would really like to see in the bill, whether they vote for the bill itself in the end or not. Tonight was no exception, considering the margin in the final vote, compared to the margins in most of the amendment voting.
Amendment #1114 was offered by Senator John Cornyn (R-TX), suggesting to pay for the SGR fix by repealing the ACA’s individual mandate, estimated to save as much as the SGR fix would cost. Of course, this would wind up being a sort of “poison pill” for the bill, with no chance of being signed by President Obama. To pass, the amendment would, under Senate rules, need 3/5 of the chamber, or 60 Yes votes. As the votes were being made, I was afraid it would pass, as the Yes count climbed past the 50 mark. The final count, however, was 54 Yes and 45 No, failing to garner the 60 needed.
Amendment #1115 sponsored by Senator Michael Bennet (D-CO), wanted to add two more years of funding to the Children’s Health Insurance Program (CHIP), which already received two additional years of funding via the House bill. The amendment needed, again, 60 votes to pass, but split the chamber, only receiving 50 Yes votes. This was the one amendment that had many people talking, strongly supported by Democrats. Still, it failed to pass.
Amendment #1116 from Senator Mike Lee (R-UT), insisted that the H.R. 2 be fully funded, subject to the typical pay-as-you-go rules, as set forth in a section of the U.S. Constitution and the Balanced Budget Act of 1997. Again, this would cripple the bill, since paying for all this has always been the sticking point, across 17 extensions that never resolved the issue. The vote was 42 Yes and 58 No.
Amendment #1117 by Senator Patty Murray (D-WA) wanted to change language in H.R. 2 that some feel will codify abortion restrictions and limit low-income women’s access to abortion. While this is a hot topic and is likely to stir some controversy, the language evidently did not bother enough Senators or Representatives to reach a 3/5 majority. It failed to pass, 43 Yes and 57 No.
Amendment #1118 from Senator Tom Cotton (R-AR) was, in my opinion, an example of an expressed priority with a snowball’s chance of passing. The amendment would have made the 0.5% PFS pay hike permanent, indefinitely hiking physician pay every year, period. Soundly trounced, it had only 11 Yes votes to 89 No.
Amendment #1119 by Senator Ben Cardin (D-MD) was the last amendment considered, and I had been closely watching for it, wondering if it would ever come to the floor. It wanted to permanently fix the physical therapy caps, mentioned above. Senator Orrin Hatch (R-UT) reminded everyone that the existing language in H.R. 2 would allow them two full years to decide on a permanent fix; and besides, the House would never agree to the bill if so amended.
Nevertheless, this vote gave me the willies. To pass, the amendment needed 60 Yes votes, and only in the last minute of the tally was the outcome made certain. For a couple of minutes, the Yes votes stood at 58, while the No votes were quite low. The No votes finally crossed 40… then 41, and I finally remembered to breath again. Final count: 58 Yes and 42 No.
The final vote on H.R. 2 with no amendments
The clock passed 9:30 pm ET as the vote on H.R. 2 began in a much less crowded Senate chamber. It looked like many of the Senators had placed their votes already and then left the scene. An hour before, the area around the Senate President’s desk and the Clerk calling the roll was elbow to elbow, with all those names you hear in the news standing in one spot, chatting animatedly and occasionally looking at the Clerk to signal their “thumbs up” or “thumbs down” on a particular vote. Now, there were perhaps only a dozen or so standing around, nonchalant, chatty, not a care in the world. The vote rolled in.
Let’s just cross our fingers that there are no “compromises” in store for ICD-1o, this fall.