Throwing Darts at HR3200

[Editor's note: Prof. Jacobson has written a better blog entry than the original one posted here originally, so it is substituted, and will be the first of a series - TBL]

No one has been able to get a full grasp on the scope of the health care system restructuring proposed by the Democrats. I have written extensively on
some of the more interesting tax provisions, but I only have scratched the surface. The pending House and Senate HELP Committee bills are the size of a major city phone book.

So I decided to use an approach I have seen on
television, where a reporter randomly throws a dart at a map of the United States, then pulls the phone book for whatever location was selected, picks a page and person randomly out of the phone book, then visits the person to get his or her life story. Often the result is interesting or unexpected.

Each day this week at American Thinker I will select one provision from HR3200, the Democratic health bill, at random, using a
dartboard method.  Here goes, with the first random selection, page 780.

Page 780 of the House Bill is part of Section 1721, setting forth amendments to the Social Security Act (42 U.S.C. 14 1396b(a)(13), by adding a new paragraph "(C)" as follows:

(C) payment for primary care services (as defined in section 1848(j)(5)(A), but applied without regard to clause (ii) thereof) furnished by physicians (or for services furnished by other health care professionals that would be primary care services under such section if furnished by a physician) at a rate not less than 80 percent of the payment rate applicable to such services and physicians or professionals (as the case may be) under part B of title XVIII for services furnished in 2010, 90 percent of such rate for services and physicians (or professionals) furnished in 2011, and 100 percent of such payment rate for services and physicians (or professionals) furnished in 2012 or a subsequent year;

Try reading this language out loud.  Plain English is nowhere to be found.  Other equally obscure provisions in this section include a subsection on the "adequacy of payment for Primary Care Services and reimbursement rates."

The Democrats propose to increase payments using "100% FMAP" (Federal Medical Assistance Percentages) under this new section "(C)":

(3)(A) The portion of the amounts expended for medical assistance for services described in section 1902(a)(13)(C) furnished on or after January 1, 2010, that is attributable to the amount by which the minimum payment rate required under such section (or, by application, section 1932(f)) exceeds the payment rate applicable to such services under the State plan as of June 16, 2009.

(B) Subparagraphs (A) shall not be construed as preventing the payment of Federal financial participation based on the Federal medical assistance percentage for amounts in excess of those specified under such subparagraphs.

VERDICT: Close to incomprehensible. I think this section means that there will be an increase in reimbursements to states for payments to primary care physicians under Medicaid. I could be wrong. There are so many cross-references, that it would take several hours to figure out all the implications and the conditions on which such payments are made, much less the source of revenue for the payments.

What this section does show is the density of the House Bill. Understanding just this single provision is a daunting task. Call it the
banality of bureaucracy. Someone, be it a lobbyist or staffer or both, spent an enormous amount of time writing this dense text to accomplish something which is not explained in a form almost anyone could understand or comprehend.

William A. Jacobson is Associate Clinical Professor of Law at Cornell Law School in Ithaca, NY, and author of the Legal Insurrection Blog.