The Debt Limit Deal and Its Impact on Healthcare Providers and the O&P Profession

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By Peter W. Thomas, JD; and Adam R. Chrisney

The deal that the White House and top lawmakers reached on July 31, which was signed into law on August 2, 2011, known as the Budget Control Act of 2011 (the Act), averted what would have become the first default of the federal government in U.S. history. However, as volatility of the United States and other financial markets demonstrate, the deal has created tremendous uncertainly for the future, both with respect to fiscal policy as well as political viability. This article reviews the final agreement and the next steps in the budget process, and analyzes the effect on the future of Medicare and Medicaid, particularly on providers of orthotic and prosthetic services.

Background

Federal spending is implemented through two different types of spending legislation, discretionary and mandatory. Discretionary spending requires passage of annual appropriations bills and is typically for a fixed period (usually a year). Examples of discretionary spending include housing programs, military procurement programs, or National Institutes of Health (NIH) research programs. Mandatory spending (sometimes referred to as "direct" spending) refers to spending that is enacted by an authorized law but is not dependent on an annual or periodic appropriations bill. Most mandatory spending consists of entitlement programs such as Social Security benefits, Medicare, and Medicaid, but it also includes much smaller budget items such as the salaries of federal judges.

Summary of the Debt Ceiling Agreement

Stage One: The deal to raise the U.S. debt ceiling includes a multistage approach that would authorize President Obama to immediately raise the debt ceiling by $400 billion. The next $500 billion would be subject to congressional resolutions of disapproval that could be vetoed by the president. This procedural setup makes it less likely that such a vote would fail or be blocked. Politically, it makes the president look more responsible for raising the debt ceiling than Congress because he would be in the position of vetoing something that Congress has voted to disapprove. This provision was a major goal of fiscal conservatives in the negotiations.

This $900 billion increase to the existing $14.3 trillion debt limit would allow the government to cover debt liabilities through 2011. The proposal would also create mechanisms for raising the debt limit to cover liabilities through 2012. Achieving a deal that essentially postpones another debt-ceiling standoff until after the next election was an important goal of the president

The proposal would cap total discretionary spending over the next ten years. This sounds simple, but it has major implications on federal spending over the next decade, including spending on programs that impact orthotics and prosthetics. For instance, research funding under the NIH and other federal agencies that support O&P research and development is expected to be significantly constrained in the future. If appropriations in the next ten years are equal to the caps in discretionary spending and the maximum amount of funding is provided for the program integrity initiatives, the Congressional Budget Office (CBO) estimates the caps would decrease the federal budget deficit by $917 billion between 2012 and 2021.

More specifically, in fiscal year (FY) 2012, the Act would impose a cap of $1.043 trillion, about $7 billion below current funding levels, and those levels were reduced earlier this year by $38.5 billion from last year's levels. In FY 2013, the Act would impose a cap of $1.047 trillion, about $3 billion below current levels. For FY 2012 and FY 2013, separate caps for security and non-security budgetary authority would be in effect. The security savings would represent roughly $5 billion of the total $10 billion in reductions over this two-year period. From FY 2014 on, only one cap would apply to total discretionary funding.

The Medicare and Medicaid programs are entitlement programs and are protected in the first round of cuts. However, other programs within the Department of Health and Human Services (HHS) are subject to reductions in funding through the appropriations process. The NIH and the Centers for Disease Control and Prevention (CDC) are particularly vulnerable to cuts of this nature.

Stage Two: The second stage of the budget process would involve a newly created bipartisan, joint congressional committee that would recommend changes in law to reduce the federal debt by $1.5 trillion (through entitlement reform and/or tax revenues) over the next ten years. This figure, coupled with the $900 billion from stage one of the budget process, is designed to ensure that every dollar of increase in the debt limit is offset by spending cuts or revenue raisers, but the total figure is a shadow of the $4 trillion-plus proposals negotiated by the president and congressional leaders throughout July.

Nonetheless, the debt-limit deal requires a vote by November 23, 2011, by the joint committee on the proposals to achieve $1.5 trillion in savings. Congress is then required to vote on these proposals, without amendment, by December 23, 2011.

If the joint committee agrees to a proposal worth $1.5 trillion (subject to another congressional vote of disapproval), then the plan would raise the debt ceiling by $1.5 trillion. If Congress fails to enact a bill, the debt limit would be raised by only $1.2 trillion. The president could also seek a $1.5 trillion increase in the debt limit if Congress adopts a balanced-budget amendment and sends it to the states for ratification.

The "Teeth" in the Agreement:
If the committee fails to reach a compromise by January 15, 2012, that would decrease the federal debt by at least $1.2 trillion over ten years, or if Congress fails to enact it, the Act includes a budget enforcement mechanism (known as "sequestration") that will implement automatic spending cuts to both discretionary and direct spending over 2013 through 2021. The across-the-board cuts to discretionary spending would be in addition to the spending cuts necessitated by the ten-year spending caps discussed above. Half of the sequestration cuts would come from defense spending and the other half from non-defense programs. The idea behind this "trigger" is that both Republican and Democratic priorities are at risk under it, so both sides have an incentive to act on the joint committee's proposal.

The amount of the cut would be based on the difference between the savings reached by the joint committee and $1.2 trillion in the debt-limit increase. (In other words, if the joint committee only achieves consensus on $600 billion in deficit reduction and Congress approves that, sequestration would require an across-the-board cut to achieve another $600 billion in deficit reduction over the next ten-year period.) Some analysts have suggested that sequestration in discretionary programs could result in across-the-board cuts as high as 6 percent or even 9 percent from existing spending levels. The reductions in direct spending (i.e., mandatory programs) would be imposed by applying a uniform percentage cut, but not all entitlement programs are treated the same.

Specific Impact on O&P Providers: There are very significant exceptions to the sequestration provision that protect Medicare, Medicaid, and Social Security. Under sequestration, across-the-board spending cuts to Medicare would be limited to 2 percent of the program's cost. These cuts would come out of payments to providers and insurance plans, not benefits or beneficiary cost sharing. If sequestration were to occur, there is no reason to believe that the Medicare O&P fee schedule would be exempt from these cuts. Put another way, given the political stalemate in Washington on fiscal issues, the &P field should brace for a cut to the Medicare fee schedule in 2013 of at least 2 percent, not including a potential decrease that may come from the annual productivity adjustment that the Centers for Medicare & Medicaid Services (CMS) now imposes on most Medicare fee schedules under the program.

Medicaid and Social Security are completely exempt from across-the-board cuts under sequestration. In a relative sense, this is a significant victory for healthcare advocates who collectively sought protections for Medicare and Medicaid under this budget agreement. The Act also includes numerous changes to the federal student loan program, including eliminating the ability of most graduate students to take out subsidized student loans. Finally, the measure requires the House and Senate to vote on a balanced-budget amendment to the U.S. Constitution between September 30 and December 31, 2011.

Political Reaction and Next Steps

The agreement was passed by both houses of Congress and signed by the president on August 2, 2011, averting a federal default by authorizing an immediate increase in the debt limit. However, both Democrats and Republicans have objected to the measure. GOP conservatives have protested that the agreement does not cut spending deeply enough and fails to require congressional passage of a balanced-budget amendment before the debt limit is raised. Liberal Democrats have complained that the measure requires no new taxes or revenues and may lead to unwarranted cuts in entitlement programs as the joint committee tries to achieve consensus.

The Obama administration, which negotiated the final version with congressional leaders, supports the measure but was willing to go much further in terms of spending reductions and increases in tax revenues. A $4 trillion package was the subject of intense negotiations throughout the month of July, but a final deal could not be reached.

Prospects for Compromise: The political polarization in Washington does not bode well for the success of the joint committee. A key indicator of the joint committee's potential to reach agreement is selection of the 12 legislators who are tasked with this responsibility and by law must meet face-to-face for the first time before September 16. In order for proposals to move toward the congressional approval process, seven out of 12 votes must be secured. This means that at least one Democrat will have to vote with all of the Republicans, or one Republican will have to vote with all of the Democrats, or some combination thereof.

There are many in Washington who believe consensus in this environment is highly doubtful, but there are glimmers of hope that at least a number of joint committee members are willing to try. Recent statements by several appointees suggest a new willingness to compromise in the wake of what, by all accounts, was seen as an ugly and unnecessarily partisan negotiation of the debt-ceiling increase.

Joint Committee Appointees: Senate Majority Leader Harry Reid (D-NV) recently announced that the Senate Democratic members of the joint committee are Senators Patty Murray (WA), John Kerry (MA), and Max Baucus (MT). Senator Murray will be the Democratic co-chair of the committee. Senate Minority Leader Mitch McConnell (R-KY) selected the following Republicans to serve on the joint committee: Senators Jon Kyl (AZ); Pat Toomey (PA); and Rob Portman (OH). The Senate appointees are interesting in that both Republicans and Democrats selected a mix of party faithful and those willing to reach across party lines. While the entire panel of 12 legislators holds a total of 138 years of experience in the House or Senate, the Senate Republicans selected two freshman senators.

House Speaker John Boehner (OH) appointed Ways and Means Committee Chairman Dave Camp (MI), Energy and Commerce Committee Chairman Fred Upton (MI), and Republican Conference Chairman Jeb Hensarling (TX) as the House GOP members of the joint committee. Congressman Hensarling will be the Republican co-chair of the panel. Finally, House Minority Leader Nancy Pelosi (D-CA) selected Jim Clyburn (SC), part of the Democratic leadership team in the House, Henry Becerra (D-CA), and Chris Van Hollen (D-MD), ranking member on the House Budget Committee.

The House appointees appear to be more aligned with party priorities and, on balance, may be less inclined to reach across party lines. Hensarling, for instance, the Republican co-chair of the panel, is a Tea Party favorite, while Clyburn is expected to do everything he can to not include Medicare reforms in any compromise package, with the clear goal of preserving Medicare as a political issue for Democrats in the upcoming election.

Impact on Medicare Providers: Medicare providers should be very concerned with the debt deal when it comes to cutting healthcare costs. The joint committee will have many proposals to draw upon that have been put forth during the debt-limit discussions as well as those suggested by the president's deficitreduction commission last December. However, it is unclear whether the joint committee will have the capacity and time to pursue a comprehensive overhaul of the program, let alone the political support to do so. The timeline for the joint committee to agree on at least $1.2 trillion in savings is very tight. As such, structural changes to the program that will impact the trajectory of growing health costs will be difficult to negotiate

This suggests that the quickest and easiest options for negotiators will be cutting payments to physicians, hospitals, and other providers (perhaps including O&P providers), or asking Medicare beneficiaries to pay a greater share of the cost of their care. If the joint committee fails to produce a bipartisan plan that Congress then passes, across-the- board spending cuts will be triggered to begin in 2013. These across-the-board cuts would include Medicare to a limited extent (i.e., a 2 percent reduction in spending levels over a ten-year period) but would not include Medicaid.

Because of this, there is good reason to believe that some consumer organizations and provider groups will be more inclined to support sequestration rather than a more comprehensive deal that could heavily impact future Medicare and Medicaid spending. For instance, those stakeholder groups expected to be hit harder if a deficit-reduction package is passed, such as managed care plans, pharmaceutical companies, and home health/durable medical equipment (DME), may view a 2 percent cut as the better option. Add to this the fact that sequestration would not begin until 2013, giving all providers, including O&P providers, another year (i.e. 2012) without additional payment cuts and additional time to press for policies to lessen the impact of harmful proposals.

From an O&P perspective, the current process offers opportunities to the O&P profession to advance legislative priorities that are designed to save Medicare money while reducing fraud and abuse and improving the quality of care. Such proposals may be more attractive to policymakers than outright cuts to the O&P fee schedule.

Additional Health Sector Implications

Notably, the deal does not include a permanent fix for the sustainable growth rate (SGR) formula for physician reimbursement under Medicare. Under the SGR, physicians face a 29.5 percent cut in reimbursement at the end of 2011, unless Congress once again steps in to provide relief. Because of this threat, the American Medical Association (AMA) has stated that it anticipates the joint committee will consider the SGR in its negotiations, but there are no guarantees that a permanent fix of the SGR will be addressed as such a fix will cost more than $300 billion over ten years, which conflicts with the cost-cutting or savings goals of the joint committee. A further one- to two-year SGR patch could be more likely.

Physicians and hospitals will also be concerned with cuts to graduate medical-education programs. During the debt-ceiling negotiations, an early document outlining items under consideration included a section identifying $14 billion in "reform to DGME [Medicare Direct Graduate Medical Education] and IME [Medicare Indirect Medical Education] payments" over a ten-year period. No further details were forthcoming, but teaching hospitals and the providers they generate are anticipating potentially catastrophic cuts to these programs.

Other than the DGME/IME cuts, hospitals are concerned with how payment cuts will affect emergency rooms and trauma services, as well as policies generating savings from eliminating bad debt, reforming rural hospital programs, and rebasing disproportionate share hospital (DSH) payments. Health insurers are worried about the Medicare Advantage program, supplemental coverage, and Medicaid managed care, while pharmaceutical companies are focused on mandatory drug rebates and cuts to the Medicare Part D program. However, these insurers and pharmaceutical companies know that such changes would not generate enough savings as compared to cuts to hospital and physician services and medical equipment.

Finally, documents released during the debt-ceiling negotiations that summarized proposals under consideration contained a provision to generate $50 billion from co-payments or payment reductions in "post-acute care payments/cost sharing for SNFs [skilled nursing facilities] and home health." In addition, there was a general proposal to reduce "Medicare DME Payments" by $5 billion, which was interpreted to be payments related to durable medical equipment, not direct medical education. However, no further details on either proposal were forthcoming at the time of this writing.

Conclusion

The next four months are expected to be extraordinarily busy for policymakers, lobbyists, trade associations, and myriad interest groups with much to gain or lose in this debate. Now is the time for the O&P profession to redouble its efforts to make the case that investment in orthotics and prosthetics yields tremendous return on the federal investment and that outright cuts to provider fees make little sense as a result.

Peter W. Thomas, JD, serves as general counsel for the National Association for the Advancement of Orthotics and Prosthetics (NAAOP). Adam R. Chrisney is a senior legislative director with Powers Pyles Sutter & Verville, Washington DC.