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ABA Health eSource
 July 2008 Volume 4 Number 11

Chair's Column

by Andrew J. Demetriou, Fulbright & Jaworski LLP, Los Angeles, CA

Andrew J. Demetriou

This month we turn our spotlight on the work of the Payment and Reimbursement Interest Group. As its name implies, the lawyers in this group primarily deal with the intricacies of federal and state healthcare programs. As with virtually all legal regimes affecting healthcare in this country, the governmental payment systems have grown incredibly complex over the past four decades. Prior to the enactment of the Medicare and Medicaid programs in 1965, the role of government in the financing of healthcare was fairly small, and primarily limited to the operation of hospitals and related facilities for identified populations, such as veterans hospitals and public hospitals for the indigent. With the advent of a major purchasing role for the federal government through the Medicare program (and by proxy through its predominant funding of the state-based Medicaid program) came the rise of substantial administrative apparatus to handle the billions of dollars in federal funds now flowing into the hands of healthcare providers. We need to keep in mind that from a relatively modest start--the initial outlays for all Medicare and Medicaid benefits were well under $10 billion in the late 1960s--the federal payments for health benefits now rival defense spending as the largest line item in the federal budget.

Over the years, reimbursement policies have changed significantly, as the Medicare and Medicaid programs have moved from a fundamentally cost-based approach to reimbursement to a price-based approach, with fixed payments for particular treatments and an array of definitional rules affecting the status of providers (and associated payments) as well as non-circumvention rules. In addition, there have been repeated forays into private sector administration of Medicare and Medicaid benefits through HMOs and health plans, with associated rules concerning the performance and marketing of these programs.

Under the leadership of Karen Ann Lloyd, Angela Lai, Rene Quashie, Esther Scherb and Stephen Sullivan, the Payment and Reimbursement Interest Group tries to ride herd on the constantly changing government payment environment. They hold monthly conference calls on issues of common interest and contribute to programs at both the Washington Healthcare Summit and our Conference on Emerging Issues in Healthcare Law each February. In addition, this Interest Group supervised publication of our Practice Guide on Medicare Appeals, one of our most successful publications as a Section.

This month, the Payment and Reimbursement Interest Group has contributed two important articles on cutting edge issues in Medicare, addressing the new competitive bidding procedures as well as changes to rules on Medicare appeals. I hope you will find these articles useful and I encourage those of you whose practice touches on these types of issues to become involved in this vibrant IG.

June has been a busy month for the Section. On June 13, we hosted the 9th Annual Physician Legal Issues Conference in Chicago, with a near capacity attendance. The presentations were first rate, and the camaraderie among the lawyers who represent physician interests is always a pleasure to behold. We were honored to have presentations by Keshia Thompson of the Office of Inspector General of HHS and Catherine Hanson of the American Medical Association as featured speakers, together with a wonderful faculty from private bar. My thanks to a great planning committee, consisting of Tom Curtis, Bill Hopkins, Almeta Cooper, Rob Portman, and last, but hardly least, our Section Vice-Chair David Hilgers, who has spearheaded this program for several years and made it a highly successful Section activity.

On June 18-20, I attended the National Summit on Legal Preparedness for Obesity Prevention and Control, sponsored by the Centers for Disease Control and the Department of Health and Human Services, in Atlanta, Georgia. This gathering included nearly 300 policymakers, academics, health professionals and lawyers, who were convened to address the means by which our society can address the causes of, and personal and societal costs associated with, obesity as a public health issue. Unlike many other health conditions, obesity arises from a complex web of seemingly unconnected forces, ranging from federal agricultural and nutrition policy to urban planning and cultural orientation to food labeling. What is beyond debate is that the adverse consequences of our nation’s growing waistline increase every year, in the stress on our healthcare system, lost productivity at work and the prospect that the conditions that further this public health crisis will be replicated in future generations.

Since the range of issues surrounding obesity prevention and amelioration is so diverse, it is necessary to gather leaders from different disciplines to explore the dimensions of potential solutions through different filters. Just to take an example, in one of the panels in which I participated, another speaker noted that many hospitals lack facilities, such as reinforced beds and high capacity scales, to treat morbidly obese patients, and implied that this was the result of some conscious discrimination by healthcare providers against obese patients. I noted that, while the deficiency in available facilities was certainly the case, the cause was more likely rooted in federal and state healthcare reimbursement policies that do not provide incentives for the acquisition of specialized equipment as obesity, in an of itself, is not a separately reimbursable disease condition. Most of the group in my discussion panel was unaware of the reimbursement issues, suggesting that there is an important role for interdisciplinary dialogue on these topics.

Our Section has been pleased to participate with the CDC on the last few National Summits and we look forward to continuing this important public service initiative. I wish to thank Tony Moulton and Montrece Ransom of the CDC for their generosity in including me and their dedication to the idea that the ABA Health Law Section has an important role to play in dealing with public health issues.

I cannot close without bragging a bit about two recent and unprecedented successes for our Section that also occurred this past month. On June 12, I was notified by the Chair of the ABA Enterprise Fund that our Section and its partners, the Standing Committee on Pro Bono and Public Service and the AIDS Coordinating Committee, received a grant of $124,888 to support our initiative into Medical-Legal Partnerships. This project seeks to create and support legal clinics within hospital facilities to assure that patients have access to legal advice on range of issues, including entitlement to benefits, estate planning and advance directives. Our project was one of only 6 selected out of 21 submitted by teams of ABA organizations. On June 25, we found out that our Breast Cancer Task Force is one of four finalists for a Section Officers Council Meritorious Service Award, which recognizes outstanding public service projects conducted by ABA Sections. The winners will be announced at the Annual Meeting in New York, but whatever the outcome we can all feel like Oscar nominees for a month or so. These two bits of recognition confirm that our Section is, as I said in my inaugural column, coming of age within the ABA, and are a tribute a wonderful group of volunteers who make up our Section.

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