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AAOS Now

Published 5/1/2014
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Elizabeth Fassbender; Simit Pandya

Legislation Focuses on AAOS Priorities

Measures would address antitrust, medical liability, research funding

Three bills recently introduced in Congress put national attention on the following issues that the American Association of Orthopaedic Surgeons (AAOS) has identified as critical:

  • Creating a level playing field in physician insurer negotiations
  • Extending protections to sports medicine professionals who travel with teams
  • Adequately funding biomedical research

Antitrust exemptions for physicians
Antitrust laws are designed to foster competition in the marketplace. However, current antitrust enforcement policies and recent healthcare industry consolidations have created situations in which a select few health plans are able to dominate the healthcare market in various areas of the country.

These same antitrust enforcement policies prohibit healthcare providers from coming together to negotiate meaningful contracts for private reimbursement that enable them to deliver high-quality health services to their patients.

This imbalance in market power gives health plans an advantage in contract negotiations with physicians and other healthcare providers related to reimbursement. In some cases, the result might be a unilateral, nonnegotiable contract that gives insurers the power to deny patients access to optimal care and to impose costly administrative burdens on physicians that limit their ability to provide patient care.

To address this issue, Reps. John Conyers Jr. (D-Mich.), and Dan Benishek, MD (R-Mich.), introduced H.R. 4077, the “Quality Health Care Coalition Act of 2014.” This legislation provides an antitrust exemption for physicians engaged in negotiations for private reimbursement with insurance companies, thereby leveling the playing field between physicians and private insurers.

“The AAOS strongly applauds the introduction of H.R. 4077,” stated Joshua J. Jacobs, MD, AAOS past president. “More than 80 percent of U.S. health insurance markets today are considered ‘highly concentrated’ due to antitrust enforcement policies that enable select insurers to dominate the healthcare market. The antitrust relief provided in H.R. 4077 will not only protect physician practices from anticompetitive behavior—such as the unilateral, nonnegotiable contracts that result from this market power—but will ensure that patient access to care is not compromised as a result of insurer monopsony.”

“Over the last several decades, the health insurance market has become exceedingly concentrated, dominated by a few large insurers offering a limited number of health insurance plans,” Rep. Conyers stated in a release. “In contrast, our nation’s physicians and healthcare providers are afforded no comparable protections. Our legislation allows for physicians to negotiate with insurers on a level playing field, ensuring heightened quality standards for patient care.”

Rep. Benishek also commented on the bill’s introduction. “Having been a doctor for 30 years, I see this bipartisan bill as a way to help improve patient care and lower costs for Michigan families,” he stated. “With health care being such a big part of everyone’s lives, this is the kind of common-sense reform that will make it easier for doctors to provide patients with top-notch care.”

Liability for sports medicine professionals
Many states do not provide legal protection for sports medicine professionals who travel to other states with an athletic team solely to provide care for that team. Additionally, many medical liability insurance carriers will not provide medical liability insurance coverage to sports medicine providers who deliver care to their athletes at sporting events in a state where they are not licensed to practice medicine. Consequently, these sports medicine providers must choose either to treat injured athletes at their own professional risk or to see their athletes’ access to timely healthcare services limited.

The AAOS, together with the American Orthopaedic Society for Sports Medicine (AOSSM) and the American Medical Society for Sports Medicine (AMSSM), is pursuing federal legislation that addresses this issue.

In December 2013, Reps. Tom Latham (R-Iowa) and Cedric Richmond (D-La.) introduced H.R. 3722, a measure that would protect sports medicine professionals from civil and criminal malpractice liability when they provide care to athletes at sporting events in another state.

Furthermore, this bill will preserve sports medicine providers’ access to their medical liability insurance coverage when they provide care to their athletes at sporting events in a state where they are not licensed to practice medicine. Consequently, H.R. 3722 would allow sports team practitioners to provide timely, high-quality healthcare services to injured athletes during sporting events.

H.R. 3722 was referred to the Committee on Energy and Commerce and to the Judiciary Committee, and currently has seven additional cosponsors. Sens. John Thune (R-S.D.) and Amy Klobuchar (D-Minn.) have also introduced a Senate version of the bill.

“Sports medicine providers should not have to choose between either treating injured athletes at great professional risk or reducing athletes’ access to timely healthcare services,” stated AAOS President Frederick M. Azar, MD. “This bill will ensure injured athletes have timely access to the highest quality of care so they can return to their active lifestyle as soon as possible. The AAOS thanks Sens. Thune and Klobuchar for their leadership on this important issue.”

“Sports medicine providers take on great professional and financial risk to treat injured athletes on the road,” said Sen. Thune. “Although some states provide legal protection to shield these professionals from assuming the risk, many providers are still left with the decision of treating an injured athlete or accepting the risk. I look forward to working with the AAOS to move this common-sense legislation forward to ensure we deliver quality care for traveling athletes while providing legal protections for sports medicine professionals.”

Biomedical research
In 2011, more than half (53 percent) of all funding for basic medical research came from the federal government. But those dollars have been declining.

On March 11, 2014, Senate Assistant Majority Leader Dick Durbin (D-Ill.) introduced S. 2115, the “American Cures Act,” to address a recent decline in federal funding for biomedical research. The bill would provide for $150 billion in federal funding to support the future of research at the National Institutes of Health, the Centers for Disease Control and Prevention, the Department of Defense Health Program, and the Veterans Medical & Prosthetics Research Program.

Sen. Durbin announced his plans to introduce the legislation during a policy address before beneficiaries of biomedical research, stakeholder representatives, and the press at the Center for National Policy. “In the last two centuries, U.S. government support for scientific research has helped split the atom, defeat polio, conquer space, create the Internet, map the human genome, and much more,” he said. “No nation has ever made such a significant investment in science, and no nation’s scientists have ever done more to improve the quality of life on Earth. But America’s place as the world’s innovation leader is at risk as we are falling behind in our investment in biomedical research.”

In recent years, federal investment in biomedical research has sharply declined. As a percentage of the total federal budget, funding for research and development today is just a third of what it was in 1965. Additionally, over the past decade, the NIH has been able to fund fewer research grants every year.

The American Cures Act attempts to remedy this trend by supplementing federal appropriations for biomedical research with a mandatory trust fund dedicated to fostering a steady growth in federally funded research. The bill would provide an annual increase in funding for each agency and program at a rate of GDP-indexed inflation plus 5 percent. Sen. Durbin believes that this steady, long-term investment would enable the agencies to plan and manage strategic growth while maximizing efficiencies.

So far, the bill has attracted nine original cosponsors, as well as from several dozen patient and provider groups, including the American College of Rheumatology and the American Heart Association.

For more information on legislative priorities for the AAOS, visit the office of government relations webpage at www.aaos.org/dc

Elizabeth Fassbender is the communications specialist and Simit Pandya is the Orthopaedic Quality Institute specialist in the AAOS office of government relations.