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Will Congress redeem its legacy of inexcusable inaction?

From the December ACP-ASIM Observer, copyright © 2002 by the American College of Physicians-American Society of Internal Medicine.

By Robert Doherty

When the 107th Congress returned to Washington for a short, post-election lame-duck session, it had a chance to redeem a legacy of inexcusable inaction to halt devastating cuts in Medicare payments.

Unfortunately, at press time it appeared that Congress would wrap up its lame-duck session without acting on legislation to halt another 4.4% cut scheduled to take effect early in 2003. (The cuts were originally slated to go into effect on Jan. 1, 2003, but the Center for Medicare and Medicaid Services has delayed the cut until Feb. 1. Physicians will also have an additional month to make their participation decisions. For more information, see "Changing your Medicare status? Here are some issues to consider.")

Congress' likely failure was not a result of physicians' lack of effort to pressure legislators to act. When lawmakers returned to the nation's capitol for the start of the lame-duck session, they were greeted by an avalanche of letters from physicians and patients demanding that they take action. ACP-ASIM members alone sent more than 3,000 faxes and e-mails, an unprecedented response to the College's Oct. 23 call to action. (See "College continues fight to restore Medicare cuts," for more details.)

Legislators were also met by physician leaders from the AMA, specialty societies and state medical societies, all who had taken time from their practices to fly to the nation's Capitol to demand action. ACP-ASIM President Sara E. Walker, MACP, personally visited at least 16 congressional offices to explain how patients would be harmed if Congress did not act.

Excuses instead of commitment

Unfortunately, during many of her visits, Dr. Walker heard more excuses about why Congress was unlikely to act than commitments to act.

Dr. Walker specifically urged legislators to include relief from the payment cuts in a "continuing resolution" to maintain funding for essential government programs until the new 108th Congress takes office in January. The House leadership was willing to include such a provision, but because of objections from key senators, the provision was dropped from the resolution.

The House leadership tried again, however, and included the provision in an unrelated bill, H.R. 5063, to extend unemployment benefits that were set to expire on Dec. 31, 2002. The House passed the bill, but the Senate decided to pass a different version, one that included more generous unemployment benefits but not relief from physician payment cuts.

This set up a scenario where the House and Senate leadership had to agree on the same bill, have it passed again by both chambers, then get it to the president for his signature—a difficult prospect at best when lawmakers were determined to wrap up business for the year. The chances for success were further diminished when key senators, both Republicans and Democrats, raised objections to the House provision.

What were the excuses this time? Some senators insisted that they couldn't support a bill that helped "only" physicians because rural hospitals, home health agencies and others are also hurting. Why punish doctors because Congress couldn't pass legislation to address other provider cuts? Physicians and other health professionals are the only ones facing absolute payment cuts due to the government's admitted mistakes in calculating the payment update formula.

Other senators complained that they were being asked to accept a "last-minute" provision from the House that was attached to an unrelated piece of legislation. If the Senate had acted earlier, this wouldn't have been necessary. This argument also raises questions about why Medicare patients should suffer because legislators got into a snit about the process.

Finally, some cited arcane budgetary "scoring" rules as a basis for their objections.

A year of inexcusable inaction

It might be understandable if Congress didn't act because it was too late to do anything, or because it didn't understand the devastating consequences of a failure to act, or because the issue was one that invited strong partisan differences.

But more than a year ago, two-thirds of the members of Congress—both Republicans and Democrats—cosponsored legislation to halt the cuts. Promises to support the legislation, however, apparently did not mean that lawmakers were actually committed to getting it passed. The legislation died when the congressional leadership declined to schedule it for a vote, and as a result, payments were cut by 5.4% on Jan. 1, 2002.

Later in 2002, the House passed a bill to replace the cuts with positive updates from 2003 to 2005. This provision, however, was buried in a controversial Medicare prescription drug bill that the Senate rejected in August.

Thus, the House and Senate had plenty of time to work toward an agreement on a more narrow provision that would halt the physician payment cuts. Political will, not lack of time, was the problem.

By the end of this year, 80% of House and Senate members were cosponsoring legislation to halt the cuts, yet lawmakers were never given the opportunity to vote on the bill.

Although blame can be assigned to both chambers, the Senate must bear the greater share of the responsibility for Congress' inexcusable inaction. On two separate occasions—prescription drug bill and H.R. 5063—the House passed legislation to provide relief from the cuts.

Looking ahead to the 108th Congress

In the absence of any last-minute decision from the White House and Congress to halt the next round of cuts, it will fall to the new 108th Congress to take immediate action in January before further damage is done to patient care.

The fact that Republicans will control the House, the Senate and the White House will mean that no one will be able to blame the Democrats for gridlock. (A fair reading of the 107th Congress, however, suggests that both Republicans and Democrats—particularly in the Senate—must accept responsibility for inaction on the Medicare payment cuts.)

How the next Congress addresses the payment cuts will serve as an early and clear indicator of whether we can look forward to a more productive Congress, or one where failure and excuses continue to be the order of the day.

At stake are not only physician payment cuts, but also medical liability reform, regulatory relief and health coverage for the uninsured. All are issues where we need action, and where inexcusable inaction is part of the sad legacy of the 107th Congress.

Robert B. Doherty is ACP-ASIM's Senior Vice President for Governmental Affairs and Public Policy.

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