Report of the Counsel

REPORT OF COUNSEL

          Implementation of the Massachusetts Health Access Law passed in 2006 is well under way.   The law is designed to provide every resident of Massachusetts access to health insurance and imposes a mandate that every resident of the Commonwealth, who can afford it, have health insurance.  The latest data indicates that close to 300,000 people have enrolled into health coverage.  Approximately 160,000 of those new insureds are enrolled in the Commonwealth Care Program which provides a subsidized insurance program for individuals who earn less than 300% of the federal poverty level and are ineligible for Medicaid.  

            While the Commonwealth celebrates the increase in health insurance access, concerns about insurance affordability, and its impact on whether the reform effort can be sustained, is now the dominant health care issue on Beacon Hill. This is not an unexpected development.  The question is what will state policy makers try to do to address costs?

HEALTH CARE COST CONTAINMENT

            The Massachusetts Health Care Quality and Cost Council, a thirteen member group set up by the Health Access Law to act as a watchdog for statewide healthcare costs, is instituting a process to develop legislative and regulatory recommendations to control health care costs.  In developing the recommendations, the Council has announced that it is considering a wide range of options, including:

1. institution of rate setting for Massachusetts health care providers;
2. expansion of the Commonwealth’s determination of need program and strengthened enforcement provisions;
3. review and approval of health care insurance rates and policies by the Division of  Insurance through a “fix and establish” or other similar rate-setting process that includes a statutory role for the Attorney General to act on behalf of consumers;
4. evaluate the impact of various cost-sharing measures including but not limited to  circumstances where a patient has a choice of providers or products; and
5. malpractice reform; payment reform to examine alternatives to a fee for service  system; technology assessment and adoption standard; requiring electronic health records and computerized physician order entry; and plan benefit design.

            While all options seem to be on the table for discussion purposes at least, the real question is whether a growing budget deficit for the health insurance access program can wait for a consensus on data driven solutions from the Council, or will the political process move quickly to cut costs and eliminate the state budget deficit relating to the health access expansion program?  Moreover, will politically implemented cost controls compromise patient care?  That is the question that haunts providers and patient advocates. 

POSSIBLE COST CONTROL ISSUES IN 2008

            One method of controlling costs in the near term are reports circulating on Beacon Hill that the Commonwealth Care Health Insurance Program which provides subsidized health insurance for individuals who earn less than 300% of the federal poverty level is considering reducing provider fees to Medicaid levels.  In addition, the Massachusetts Senate has sent signals that it will not wait for the Cost Control Council to propose its recommendations.  Indications from Senate leadership is that a bill addressing health care cost issues and the shortage of primary care physicians will be unveiled in February.  The MRS will be following all efforts to address cost and patient access issues in the health care system very closely.

RADIOLOGIST ASSISTANTS.

            Massachusetts does not license radiologist assistants (RAs).  The Department of Public Health has granted limited waivers to certain Radiology Practitioner Assistants (RPAs) pending the development of licensure regulations for RAs by the department.  The MRS has taken the initiative with the Massachusetts Radiologic Technologists Association to develop model regulations that will be submitted to DPH for possible adoption.  A fuller discussion of the RA issue is included in the President’s Report. 

SPECIAL COMMISSION ON AMBULATORY SURGICAL CENTERS AND MRI.

            On June 30, 2007 the Special Commission on Ambulatory Centers and MRI issued its report.  The Commission consisted of legislators, state health officials and representatives of hospitals, insurers, ambulatory surgical centers, and physicians, including the MRS which was represented by John Dubrow, M.D.

            The Commission studied the impact high-tech imaging centers and single and multi-specialty ambulatory surgical centers have on the health care delivery system in Massachusetts.  High tech imaging in Massachusetts is defined as MRI, PET and linear accelerators. 

            The Commission did not recommend any changes to the current DPH regulatory policy of requiring a DON for all MRI, PET and radiation therapy services.  The Commission, however, addressed the need to control and regulate the so-called, Physician Letters of Exemption from the DON process.  The Commission calls for all Letters to be implemented by January 1, 2009 at which time the rights conferred by unimplemented letters would sunset.  Once implemented, the letters would be considered non-transferable. 
            
            The Commission recommends that MRI, PET and CT (CT is not subject to DON) services in Massachusetts meet current medical standards, and calls for the Board of Registration in Medicine to draft regulations that would credential physicians eligible to read and interpret images for those modalities. 

            On the issue of self-referral the Commission recommends that for state payers (Medicaid, group insurance programs for state, county and municipal employees and Commonwealth Care) the legislature pass a law “piggybacking” the provisions of the federal anti-kickback and Stark laws and regulations, including all exemptions and safe harbors, in state law.  The Commission also recommends that the “potential problem of improper leasing arrangements” relating to MRI and PET be addressed specifically by state legislation.

            To the extent that the Commission’s recommendations address the issue of over utilization and health care costs, look for the Senate to include some of the Commission’s recommendations in any cost containment legislation it develops this year.  

                                                                        Respectfully submitted,
                                                                        Edward J. Brennan, Esq.