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    High court to argue more than insurance mandate of the Affordable Care Act

    Also at stake are provisions on pharma payments to physicians


    Bob Gatty
    Washington—Ever get paid by a pharmaceutical company for participating in research or making a speech? Has a drug rep ever bought you lunch or paid for a round of golf?

    Those practices could soon be a thing of the past.

    During the last week of March, the U.S. Supreme Court will hear arguments on the challenges by 26 states and a small business organization that provisions of the Affordable Care Act (ACA) are unconstitutional, a major step that will lead to a ruling by the high court later this year.

    While much of the media attention has been focused on those states' challenges of the law's mandate that everyone must purchase insurance or face a financial penalty, another provision that directly affects the goodies enjoyed by physicians also would be wiped out if the court tosses the entire law.

    Right now, as required by the ACA, the Obama administration is preparing to require drug companies to disclose payments they make to doctors for research, consulting, speaking, travel, and entertainment—even those bagels brought by a salesman to your office. Under those standards, if a company has even one product covered by Medicare or Medicaid, it must disclose all payments to physicians who are not employees of the company. That information will be posted on a publicly accessible Web site.

    According to the Obama administration, more than 1,100 drug, device, and medical supply companies will be required to file reports, which will be inspected and audited by the feds. Failure to comply could bring penalties up to $10,000 for each unreported payment, and companies found to have deliberately failed to report such payments could face fines up to $100,000 per violation, with a maximum of $1 million per year.

    The deadline for public comments on the requirements was Feb. 17, and after Medicare officials consider the comments, final rules will be issued.

    The new standards, which were called for by the Medicare Payment Advisory Commission in a 2009 report, will implement legislation pushed by Sens. Charles E. Grassley (R-IA) and Herb Kohl (D-WI).

    "The goal is to let the sun shine in and make information available to foster accountability," said Grassley.

    Of course, all of this depends on the decision by the Supreme Court; if the law is struck down, those requirements also will be gone. However, in late January, the Obama administration filed a brief arguing that if the mandate provision is found to be unconstitutional, the rest of the law should be allowed to stand.

    "Other provisions can operate independently and would still advance Congress's core goals of expanding coverage, improving public health, and controlling costs, even if the minimum coverage provision were held unconstitutional," Justice Department lawyers wrote.

    Countering that argument was Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, who issued a statement contending that if the requirement to purchase health insurance is found to be unconstitutional, then the entire law must go.

    "To argue otherwise would be like arguing a house can stand after its foundation has crumbled," Harned declared. NFIB is the plaintiff in the Supreme Court case, along with the states.

    The month of March had additional significance for physicians, as the new Medicare physician fee schedule was to take effect on March 1, following a 2-month reprieve from the 27% reduction that was slated to be implemented Jan. 1. In late February, Congress passed another delay of the reduction, this time for 10 months. (See article on the AUA's reaction).


    Bob Gatty
    Bob Gatty, a former congressional aide, covers news from Washington for Urology Times.


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