Thursday, October 6, 2011
Physician Supply and the Patient Protection and Affordable Care Act
Elayne J. Heisler
Analyst in Health Services
Amanda K. Sarata
Specialist in Health Policy
An adequate physician supply is important for the effective and efficient delivery of health care services and, therefore, for population health and the cost and quality of health care. Assessments of the adequacy of physician supply often focus on three dimensions of the physician population: its size; its composition (e.g., the mix between primary care and specialty physicians); and its geographic distribution. Policies that aim to alter physician supply generally focus on both current and future supply along these three dimensions because physician training is a lengthy process; therefore, changes implemented to alter supply do not have immediate effects.
Each of the three dimensions of physician supply is important for health care spending and for population health because physician clinical decisions affect approximately 90% of each health care dollar spent. In addition, as physicians provide health care services that, with some exceptions, cannot be provided by non-physicians, the size, composition, and geographic distribution of the physician population affects the amount and type of health care services available. A number of studies have found physician shortages overall, in certain specialties, and in certain geographic areas. The federal government pays for physician services, primarily through the Medicare and Medicaid programs, and supports physician training through a number of programs in various departments and agencies. Given current investments in physician services and the physician workforce, the adequacy of the current and future physician supply may be of interest to Congress.
The Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) may affect physician supply because it expands insurance coverage to those previously uninsured. PPACA also includes provisions that may affect the size, composition, and geographic distribution of the physician population by supporting changes to physician training, compensation, and practice. Specifically, provisions targeting the number of physicians trained and their productivity may affect the size of the physician population. The composition of the physician population may be altered by provisions targeting the supply of primary care providers or specialties in shortage. Provisions addressing the diversity of the physician workforce and those incentivizing practice in rural or other underserved areas may affect the geographic distribution of the physician population. Finally, PPACA includes provisions that provide for data collection and evaluation of the adequacy of the workforce in general, and federal workforce programs specifically. Whether and how these provisions will affect physician supply is not yet known because some of these provisions have not been implemented yet, are temporary, will not have immediate effects, or rely on discretionary funding.
This report examines each dimension of physician supply, separately discussing current (and, where appropriate, future) concerns and relevant changes included in PPACA that may affect each dimension. The report then discusses workforce planning activities included in PPACA that may affect all three dimensions of supply.
Date of Report: September 26, 2011
Number of Pages: 31
Order Number: R42029
Price: $29.95
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Monday, October 3, 2011
Tests and Testing Accommodations Under the Americans with Disabilities Act
Emily C. Barbour
Legislative Attorney
Tests and examinations are widely used to decide whether a person is qualified to take up a particular occupation, advance professionally, or attend a certain educational institution. These tests can pose unique challenges to individuals with disabilities. Under the Americans with Disabilities Act (ADA), an entity that offers an exam without providing accommodations to examinees with disabilities may be liable for disability-based discrimination.
The ADA applies to both public and private educational and employment-related testing, and Section 309 of the ADA requires persons offering certain examinations to do so “in a place and manner accessible to persons with disabilities.” The Department of Justice (DOJ) is responsible for implementing this provision, and a series of federal court decisions have held that the DOJ’s current interpretation of Section 309 is entitled to judicial deference. Under the DOJ regulations, private testing entities must provide individuals with disabilities with accommodations that “best ensure” that the test accurately assesses the individual's aptitude “or whatever other factor the examination purports to measure.” Factors that may be relevant to this analysis include the accommodations’ capacity to help the plaintiff overcome the limitations created by her disability, their utility given the requirements and rigorousness of the particular exam at issue, and current technology.
However, not every test-taker with a disability is entitled to accommodations under the ADA. The ADA’s protections only apply to test-takers who establish that their impairments fall within the ADA’s definition of a “disability.” In the past, courts had narrowly interpreted the term “disability.” In the field of educational and professional testing, this often meant that people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders could not establish that they had a “disability” for the purposes of the ADA if they had developed methods of coping with their impairments.
Concerned that narrow judicial interpretations of the term “disability” prevented individuals with disabilities from receiving necessary accommodations under the ADA, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, in 2008. The primary purpose of the ADAAA was to ensure that the courts and executive agencies adopted a more expansive interpretation of “disability.” The ADAAA is widely viewed as shifting the focus in an ADA case from whether the plaintiff is entitled to the ADA’s protection to whether the defendant has complied with the ADA. For example, the ADAAA prevents courts from taking into account a test-taker’s coping mechanisms when determining whether that test-taker is entitled to the ADA’s protections. Accordingly, people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders are more likely now to qualify for testing accommodations.
This report discusses recent federal court cases determining who is entitled to testing accommodations under the ADA and whether a particular testing accommodation is ADAcompliant. It emphasizes areas where the ADAAA has affected the analysis or outcome in a case. It also identifies new legal questions being raised in federal court about standardized tests and individuals with disabilities. Although the ADA does not require defendants to provide accommodations when doing so would impose an undue hardship, this report does not discuss the “undue burden” defense at length. It also does not discuss testing accommodations required under the Individuals with Disabilities Education Act (IDEA).
Date of Report: September 20, 2011
Number of Pages: 13
Order Number: R41280
Price: $29.95
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Legislative Attorney
Tests and examinations are widely used to decide whether a person is qualified to take up a particular occupation, advance professionally, or attend a certain educational institution. These tests can pose unique challenges to individuals with disabilities. Under the Americans with Disabilities Act (ADA), an entity that offers an exam without providing accommodations to examinees with disabilities may be liable for disability-based discrimination.
The ADA applies to both public and private educational and employment-related testing, and Section 309 of the ADA requires persons offering certain examinations to do so “in a place and manner accessible to persons with disabilities.” The Department of Justice (DOJ) is responsible for implementing this provision, and a series of federal court decisions have held that the DOJ’s current interpretation of Section 309 is entitled to judicial deference. Under the DOJ regulations, private testing entities must provide individuals with disabilities with accommodations that “best ensure” that the test accurately assesses the individual's aptitude “or whatever other factor the examination purports to measure.” Factors that may be relevant to this analysis include the accommodations’ capacity to help the plaintiff overcome the limitations created by her disability, their utility given the requirements and rigorousness of the particular exam at issue, and current technology.
However, not every test-taker with a disability is entitled to accommodations under the ADA. The ADA’s protections only apply to test-takers who establish that their impairments fall within the ADA’s definition of a “disability.” In the past, courts had narrowly interpreted the term “disability.” In the field of educational and professional testing, this often meant that people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders could not establish that they had a “disability” for the purposes of the ADA if they had developed methods of coping with their impairments.
Concerned that narrow judicial interpretations of the term “disability” prevented individuals with disabilities from receiving necessary accommodations under the ADA, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, in 2008. The primary purpose of the ADAAA was to ensure that the courts and executive agencies adopted a more expansive interpretation of “disability.” The ADAAA is widely viewed as shifting the focus in an ADA case from whether the plaintiff is entitled to the ADA’s protection to whether the defendant has complied with the ADA. For example, the ADAAA prevents courts from taking into account a test-taker’s coping mechanisms when determining whether that test-taker is entitled to the ADA’s protections. Accordingly, people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders are more likely now to qualify for testing accommodations.
This report discusses recent federal court cases determining who is entitled to testing accommodations under the ADA and whether a particular testing accommodation is ADAcompliant. It emphasizes areas where the ADAAA has affected the analysis or outcome in a case. It also identifies new legal questions being raised in federal court about standardized tests and individuals with disabilities. Although the ADA does not require defendants to provide accommodations when doing so would impose an undue hardship, this report does not discuss the “undue burden” defense at length. It also does not discuss testing accommodations required under the Individuals with Disabilities Education Act (IDEA).
Date of Report: September 20, 2011
Number of Pages: 13
Order Number: R41280
Price: $29.95
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Document available via e-mail as a pdf file or in paper form.
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Medicare Physician Payment Updates and the Sustainable Growth Rate (SGR) System
Jim Hahn
Specialist in Health Care Financing
Each year since 2002, the statutory method for determining the annual updates to the Medicare physician fee schedule, known as the sustainable growth rate (SGR) system, has resulted in a reduction in the reimbursement rates (or a “negative update”). With the exception of 2002, when a 4.8% decrease was applied, Congress has passed a series of bills to override the reductions. The SGR system was established because of the concern that the Medicare fee schedule itself would not adequately constrain overall increases in spending for physicians’ services. While the fee schedule limits the amount that Medicare will pay for each service, there are no limits on the volume or mix of services. The SGR system was intended to serve as a restraint on aggregate spending. If expenditures over a period are less than the cumulative spending target for the period, the update is increased. However, if spending exceeds the cumulative spending target over a certain period, future updates are reduced to bring spending back in line with the target.
In the first few years of the SGR system, the actual expenditures did not exceed the targets and the updates to the physician fee schedule were close to the Medicare economic index (MEI, a price index of inputs required to produce physician services) in the first two years (2.3% in 1998 and 1999, compared with a MEI of 2.2% in 1998 and 2.3% in 1999). For the next two years, in 2000 and 2001, the actual physician fee schedule update was more than twice the MEI for those years (5.5% update vs. MEI of 2.4% in 2000, 5.0% update vs. MEI of 2.1% in 2001). However, beginning in 2002, the actual expenditure exceeded allowed targets and the discrepancy has grown with each year, resulting in a series of ever-larger cuts under the formula.
Some criticisms of the SGR system point to purported flaws in the technical details behind the formula, while others have just expressed displeasure with the resultant outcome. Although modifications have been proposed to replace the SGR system, no proposal has garnered sufficient support and almost all proposals would be expensive to implement compared against the current baseline, which necessarily assumes that significant cuts to the fee schedule will occur.
Legislative activity in the 111th Congress included several bills that addressed the SGR system. The FY2010 Defense Appropriations Act delayed the implementation of the reductions for two months, from January 1 through February 28, 2010. The Statutory Pay-As-You-Go Act of 2010 (P.L. 111-139) exempts the amount it would cost to freeze payments for five years from PAYGO rules. H.R. 4691, which became law on March 2, 2010, delayed the payment cuts through March 31, 2010. On April 15, the Senate passed an amended version of H.R. 4851 that extended the payment cut delay through May 31, 2010. The House passed the amended bill, and the President signed P.L. 111-157 into law that day. On June 25, 2010, several weeks after the expiration of the extension created by the Continuing Extension Act, an amended version of H.R. 3962 was signed into law that increases fee schedule payments 2.2% retroactive to June 1 and continuing through November 30, 2010. On November 30, 2010, the President signed the Physician Payment and Therapy Relief Act of 2010 into law (P.L. 111-286), which extended the 2.2% increase for an additional month through December 31, 2010. The Medicare and Medicaid Extenders Act of 2010 (P.L. 111-309) preserves the payments at this level through December 31, 2011.
At its September 15, 2011, public meeting, MedPAC presented a draft proposal for addressing the SGR and Medicare physician payments as well as a preliminary list of Medicare policy changes to partially offset the cost of its SGR override proposal. MedPAC plans to continue to deliberate on the proposal and the offsets and to vote on final recommendations at its October 2011 meeting.
Date of Report: September 23, 2011
Number of Pages: 24
Order Number: R40907
Price: $29.95
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Specialist in Health Care Financing
Each year since 2002, the statutory method for determining the annual updates to the Medicare physician fee schedule, known as the sustainable growth rate (SGR) system, has resulted in a reduction in the reimbursement rates (or a “negative update”). With the exception of 2002, when a 4.8% decrease was applied, Congress has passed a series of bills to override the reductions. The SGR system was established because of the concern that the Medicare fee schedule itself would not adequately constrain overall increases in spending for physicians’ services. While the fee schedule limits the amount that Medicare will pay for each service, there are no limits on the volume or mix of services. The SGR system was intended to serve as a restraint on aggregate spending. If expenditures over a period are less than the cumulative spending target for the period, the update is increased. However, if spending exceeds the cumulative spending target over a certain period, future updates are reduced to bring spending back in line with the target.
In the first few years of the SGR system, the actual expenditures did not exceed the targets and the updates to the physician fee schedule were close to the Medicare economic index (MEI, a price index of inputs required to produce physician services) in the first two years (2.3% in 1998 and 1999, compared with a MEI of 2.2% in 1998 and 2.3% in 1999). For the next two years, in 2000 and 2001, the actual physician fee schedule update was more than twice the MEI for those years (5.5% update vs. MEI of 2.4% in 2000, 5.0% update vs. MEI of 2.1% in 2001). However, beginning in 2002, the actual expenditure exceeded allowed targets and the discrepancy has grown with each year, resulting in a series of ever-larger cuts under the formula.
Some criticisms of the SGR system point to purported flaws in the technical details behind the formula, while others have just expressed displeasure with the resultant outcome. Although modifications have been proposed to replace the SGR system, no proposal has garnered sufficient support and almost all proposals would be expensive to implement compared against the current baseline, which necessarily assumes that significant cuts to the fee schedule will occur.
Legislative activity in the 111th Congress included several bills that addressed the SGR system. The FY2010 Defense Appropriations Act delayed the implementation of the reductions for two months, from January 1 through February 28, 2010. The Statutory Pay-As-You-Go Act of 2010 (P.L. 111-139) exempts the amount it would cost to freeze payments for five years from PAYGO rules. H.R. 4691, which became law on March 2, 2010, delayed the payment cuts through March 31, 2010. On April 15, the Senate passed an amended version of H.R. 4851 that extended the payment cut delay through May 31, 2010. The House passed the amended bill, and the President signed P.L. 111-157 into law that day. On June 25, 2010, several weeks after the expiration of the extension created by the Continuing Extension Act, an amended version of H.R. 3962 was signed into law that increases fee schedule payments 2.2% retroactive to June 1 and continuing through November 30, 2010. On November 30, 2010, the President signed the Physician Payment and Therapy Relief Act of 2010 into law (P.L. 111-286), which extended the 2.2% increase for an additional month through December 31, 2010. The Medicare and Medicaid Extenders Act of 2010 (P.L. 111-309) preserves the payments at this level through December 31, 2011.
At its September 15, 2011, public meeting, MedPAC presented a draft proposal for addressing the SGR and Medicare physician payments as well as a preliminary list of Medicare policy changes to partially offset the cost of its SGR override proposal. MedPAC plans to continue to deliberate on the proposal and the offsets and to vote on final recommendations at its October 2011 meeting.
Date of Report: September 23, 2011
Number of Pages: 24
Order Number: R40907
Price: $29.95
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Friday, September 23, 2011
Financing and Delivery of Behavioral Health Services and the Patient Protection and Affordable Care Act
Amanda K. Sarata
Specialist in Health Policy
Erin Bagalman
Analyst in Health Policy
Behavioral health disorders (including both mental disorders and substance use disorders) affect a large number of people and contribute costs to the health care system, even as indicated treatment is often not received by individuals in need. In the United States, an estimated 26% of noninstitutionalized adults experience behavioral health disorders in a given year; over the course of a lifetime, the estimate rises to 46%. One study estimated spending on behavioral health care in 2005 to be $135 billion, of which $40 billion was paid by the federal government (including $10 billion by Medicare) and $44 billion by state governments. Both higher and lower cost estimates have been found in other studies. Among U.S. adults suffering from a behavioral health disorder severe enough to interfere with major life activities in 2009, 40% received no treatment; despite spending on behavioral health care, cost remains the most common barrier to treatment reported by adults with unmet need.
The federal government has a role in both the financing and delivery of behavioral health care services, as a payer, regulator, and provider, and as such, Congress may have an interest in behavioral health care broadly. This interest was reflected in the recently enacted health reform law (Patient Protection and Affordable Care Act [PPACA], P.L. 111-148, as amended). Although transforming the behavioral health care delivery system was not an explicit focus of the law, it includes sections that are expected to increase access to behavioral health services through changes to the financing and delivery of health care services.
This report provides an overview of sections in the health reform law that are expected to affect the financing and delivery of behavioral health care services. Access to health care services is determined by multiple factors, including (among other things) financing arrangements and covered benefits. PPACA may increase access to behavioral health services by increasing the availability and affordability of financing arrangements; the law also contains sections that will affect both the coverage of behavioral health services, as well as the conditions under which those services are covered. In addition, PPACA contains sections that are likely to affect the way in which health care services are delivered, specifically through changes to the workforce, the safety net, and new care delivery models.
The report concludes by presenting the relevant sections in a series of nine tables: (1) essential health benefits; (2) mental health parity; (3) private health insurance; (4) Medicare; (5) Medicaid; (6) safety net services; (7) workforce; (8) miscellaneous sections (e.g., sections on research, education, or community-based services, among others); and (9) relevant Indian Health Service (IHS) sections (in an appendix).
Date of Report: September 19, 2011
Number of Pages: 35
Order Number: R42009
Price: $29.95
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Thursday, September 22, 2011
Health Care: Constitutional Rights and Legislative Powers
Kathleen S. Swendiman
Legislative Attorney
The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health care as a constitutional or legal right. This report analyzes constitutional and legal issues pertaining to a right to health care, as well as the power of Congress to enact and fund health care programs. Following the passage of the Patient Protection and Affordable Care Act, P.L. 111-148, legal issues have been raised regarding the power of Congress to mandate that individuals purchase health insurance, and the ability of states to “nullify” or “opt out” of such a requirement. These issues are also discussed.
The U.S. Constitution does not set forth an explicit right to health care. While the Supreme Court would likely find that the Constitution provides a right to obtain health care services at one’s own expense from willing providers, the Supreme Court has never interpreted the Constitution as guaranteeing a right to health care services from the government for those who cannot afford it. The Supreme Court has, however, held that the government has an obligation to provide medical care in certain limited circumstances, such as for prisoners.
While the U.S. Constitution and Supreme Court interpretations do not identify a constitutional right to health care for those who cannot afford it, Congress has enacted numerous statutes, such as Medicare, Medicaid, and the Children’s Health Insurance Program, that establish and define specific statutory rights of individuals to receive health care services from the government. As a major component of many health care entitlement statutes, Congress has provided funding to pay for the health services provided under law. Most of these statutes have been enacted pursuant to Congress’s authority to “make all Laws which shall be necessary and proper” to carry out its mandate “to … provide for the … general Welfare.” The power to spend for the general welfare is one of the broadest grants of authority to Congress in the U.S. Constitution. The Supreme Court accords considerable deference to a legislative decision by Congress that a particular health care spending program provides for the general welfare.
Recently, Congress enacted comprehensive health care reform legislation, P.L. 111-148, which includes a requirement, effective in 2014, that individuals purchase health insurance, and which significantly expands the Medicaid program. A number of lawsuits have been filed challenging various provisions of this legislation, including the power of Congress to enact an individual mandate to purchase health insurance under the Commerce Clause or other provisions of the U.S. Constitution. These lawsuits are in various stages of litigation. Significantly, there is now a split in the circuit courts, with the 11th Circuit Court of Appeals invalidating the individual health insurance mandate, the Sixth Circuit Court of Appeals upholding the same provision, and the Fourth Circuit Court of Appeals dismissing two cases for lack of standing, making it likely that one or more of these cases will eventually reach the Supreme Court. In addition, several states have passed laws, or amended their state constitutions, to attempt to “nullify” or “opt out” of the federal individual health insurance mandate. Direct conflicts between federal laws and state nullification statutes or state constitutional amendments would raise constitutional issues which are likely to be resolved in favor of federal law under the Supremacy Clause of the U.S. Constitution. A number of state constitutions contain provisions relating to health and the provision of health care services. State constitutions may provide constitutional rights that are more expansive than those found under the federal Constitution since federal rights set the minimum standards for the states.
Date of Report: September 9, 2011
Number of Pages: 20
Order Number: R40846
Price: $29.95
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