Government Relations Report
SGR Fix Includes Standard of Care Language
On April 16, 2015, President Obama signed the repeal of the sustainable growth rate (SGR) formula mandating cuts in the Medicare physician fee schedule.
The bill, HR 2 (Burgess), contains language meant to prevent unintended expansion of physician liability caused by the misuse of federal treatment and payment guidelines in the Social Security Act or the Affordable Care Act. Here is the relevant section from HR 2:
[T]he development, recognition, or implementation of any guideline or other standard under any Federal health care provision shall not be construed to establish the standard of care or duty of care owed by a health care provider to a patient in any medical malpractice or medical product liability action or claim.
The inclusion of this language in the bipartisan plan to fix the SGR problem is the fruit of many years’ labor by The Doctors Company and other physician advocates in Washington, DC. Beginning in 2009, when the House Energy and Commerce Committee first released the text of the health insurance reform bill, HR 3962—all 1,990 pages of it—we have been arguing that measures adopted to bend the healthcare cost curve should not be presented to a jury as evidence that a physician’s conduct is negligent. For example, a determination of whether a physician met the standard of care in a negligence action should be based on the treatment given compared to the accepted methods appropriate to the needs of the patient, not to Medicare rules.
The Doctors Company was able to convince Energy and Commerce Committee Chair Henry Waxman (D-California) of the potential for this misuse of what was meant to be health insurance reform. Representative Waxman inserted language nearly identical to the section referenced above into the version of the bill passed by the House. However, the language was left out of the Senate version that eventually became the Patient Protection and Affordable Care Act.
Since then, The Doctors Company and a number of allies have worked to get this language adopted either as stand-alone legislation—Representative Gingrey (R-Georgia) introduced bills in successive sessions of Congress—or as an amendment to other budget or healthcare legislation seen as likely to pass. The American Medical Association (AMA) has drafted a model bill using this language and is encouraging state legislatures to enact what many refer to as the Standard of Care Protection Act. Georgia was the first state to enact a version of the bill, with support from The Doctors Company and the Medical Association of Georgia, among others.
Getting the standard of care language signed into law is a welcome victory after nearly six years of effort by The Doctors Company, PIAA and a number of its member companies, the AMA, the Health Coalition on Liability and Access, the Texas Alliance for Patient Access, and others.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
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