In the movie, the “Wizard of Oz,” the Cowardly Lion, Tin Man, and Scarecrow all got what they wanted from the Great and Powerful.  After the gifts were handed out, Dorothy said, “Oh, I don’t think there is anything in that black bag for me…”

Indeed, the dialysis community found a few things in the Wizard’s black bag this past week as Congress quickly wrapped up some Medicare legislation that dealt with a host of health care issues. While doctors kept trying to pour cold water on the sustainable growth rate, hoping it would melt away, Congress ducked out of the room––for now.

House bill, HR 4372, "Protecting Access to Medicare," won final approval in the Senate yesterday by a 64-35 vote, just hours before the SGR would have delivered a 24% pay cut to physicians for 2015. The bill had been negotiated by House speaker John Boehner and Senate Majority leader Harry Reid and awaits President Obama’s signature.

Related: ESRD community benefits from new Medicare bill

Perhaps most interesting in the Congressional action on the Medicare bill (regretfully not including language gathering steam in the Senate and the House that would fund lifetime coverage of immunosuppressive drugs for kidney transplant patients), is how legislators laid waste to deadlines imposed by the Centers for Medicare and Medicaid Services on a series of regulatory changes––both for physician practices and dialysis providers. If you are in the mood for extending deadlines––like patching the SGR for the 17^th time––you may just as well keep kicking those other cans down the road, too.

Some deadlines that are now, well, very much alive.

Delay #1
After months of working on a new payment system to replace the old and often-criticized SGR, observers believed that the new formula would win approval. It had the support of the American Medical Association and physicians in general, partly because it included pay increases over the next 10 years, coupled with a new pay-for-performance incentive. At the Renal Physicians Association’s annual meeting last week, Public Policy Director Rob Blaser said, “The fact that the SGR bills in both the House and Senate were all passed unanimously by members on both sides of the aisle acknowledges that everyone wants to fix the SGR and get it off the table.”

But when the House passed HR 4372, with a 13-month patch on the SGR instead of approving a new payment system, physician groups howled. And some Senators who voted against the bill yesterday agreed. Tom Coburn, R-Okla., said the temporary patch for one year was an example of “why the American people are disgusted with (Congress). We should be fixing this problem, instead of delaying the problem,” Coburn said before the legislation passed.

The patch freezes physician payment until March 2015; Congress needs to pass physician payment reform before then.

Delay #2
Last month, CMS Administrator Marilyn Tavenner told health care executives that the Oct. 1 deadline for physician practices to transition to ICD-10 was not going to change, telling the audience “enough is enough” on already granted extensions. Yesterday, Congress looked the other way, however, and granted a one-year extension – at least. The language allows for leniency.

It does give physician practices more time to embrace the new codes into their E M R systems. Other data collection systems have benefited from getting time outs; CMS wisely delayed implementation of CROWNWeb numerous times. So if the new CPT payment codes were to launch before practices were ready, that would create a payment traffic jam that could last a long time.

Delay #3
Last November, despite protests from members of Congress and dialysis providers that CMS’s planned 12% cut to the ESRD payment bundle was too harsh, the agency approved it anyway, although agreeing to stretch it out over four years. Yesterday, with the House-Senate approval of the new Medicare bill, most of that cut will go away after 2015. So the scenario went like this:

• Congress ordered CMS to cut the composite rate payment after two government reports said the agency was paying between 8-12% more than it should be for dialysis drugs because its payment formula was based on 2007 usage.
• CMS, which had no plans to make the cuts, followed orders and proposed a 12% cut.
• Some members of Congress, alarmed at what they had asked for, pressured CMS to give providers some leniency as some of them said they might have to close clinics if the 12% when through.
• CMS held it’s ground, and approved the 12% cut, but allowed payment to stretch over at least the next four years, using the annual market basket update as a surrogate for paying money back to Medicare.
• Congress then took that plan and made its own modifications, so that dialysis facilities only face minor cuts after 2016.

When CMS issued the proposed rule in 2010 for the new ESRD bundled payment rate, it included all oral medications. Dialysis providers said that was too much to handle, so CMS agree to extend the inclusion of oral drugs without IV equivalents to 2014, when all clinics would have to be fully vested into the bundle (the agency allowed a “blended” composite rate for clinics that wanted to transition into the bundle until 2014). Just before the clock stuck midnight on the legislative eve of 2014, drug manufacturers lobbied Congress to delay the CMS rule for including oral drugs another two years. Permission granted. The new oral drug inclusion date was 2016.

The press went wild over the extension, accusing legislators of bowing before rich drug lobbyists. Before the paint was barely dry on that extension, however, Congress yesterday approved another extension – this time a whopping eight more years.  Few people saw it coming and, unlike the first extension’s widespread news coverage suggesting pharma had lined the pockets of legislators, there has been no mention in the lay press over this extension, and no logical explanation of why eight was the magic number. “The delay seems pretty much out of left field to me,” said one lobbyist before the vote.

So next time CMS staffers approve or proposed regulations that include a deadline, it might be advisable to check with Congress first.

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