Moratorium Language Caught in the Veto (Again)

This week, Congress sent a slightly revised State Children’s Health Insurance Program (SCHIP) bill to the President and, as expected, he vetoed it. Like the prior SCHIP bill that the President vetoed in October, this also contained moratorium language in section 616. The section would prevent the Center for Medicare and Medicaid Services (CMS) (a part of the Department of Health and Human Services) from implementing proposed rules relating to reduced federal financial participation for rehabilitative services and for administrative and transportation costs related to Individuals with Disabilities Education Act services. Having failed to override the veto in October on nearly identical legislation, the Democratic leadership chose not to consider an override until January 23.



So what is next for the moratorium? According to Congressional staffers, there is broad bi-partisan agreement to include the moratorium in some bill before the close of the year, but the viable bills are few and the prospects are dim.
Recognizing the diminishing opportunities and the importance this may play in the upcoming elections, Representative John Boozman (A-AR) introduced H.R. 4355, a bill to impose a moratorium on certain Medicaid payment restrictions on December 11th. The bill places a moratorium on the restriction of payments for a year after the date of the enactment of the law. Yet, this bill will not move until January, if at all, and when it does it will face opposition from the Department of Health and Human Services (HHS).

On December 4th, HHS Secretary Leavitt wrote to Senator Max Bacus (D-MT), the Chairman of the Senate Finance Committee, regarding the agency’s opposition to the moratorium language. In the letter, Secretary Leavitt wrote that “the President's senior advisors would recommend a veto of any bill that… undermines efforts to promote fiscal solvency in the Medicare and Medicaid programs. For example, legislation should not repeal the Medicare funding warning or erode the programs' fiscal integrity by overturning regulatory policies developed by the Administration.” Secretary Leavitt, it appears, is ready to fight Congress on this issue.

If Congress is unable to pass moratorium legislation in a timely manner, it will still have a final opportunity to act under the Congressional Review Act (5 U.S.C 801-808). According to the act, an agency must submit final rules to both houses of Congress and the General Accounting Office before they can take effect. Although rarely used, action by Congress and the President could have an impact on the rule. We will continue to monitor the issue as it develops.

Resource:
“Secretary Leavitt Letter to Congress on Medicare Physician Payment Legislation,” U.S. Department of Health and Human Services, News Release, December 4, 2007, http://www.hhs.gov/news/press/2007pres/12/pr20071204b.html
Author: DAD