Throwing Darts at HR3200 - Day 4

This is the fourth in a series of posts analyzing randomly selected provisions in HR3200, the House Democratic health care restructuring bill. The hope is that through random selection of pages from the House Bill, using the dartboard method, some light will be shed on the otherwise dense House Bill.

The page selected for today’s post is page 479 of the House Bill, which contains the final paragraphs of the 19-page long Section 1302, “Medical Home Pilot Program.” As you will see, whether this is a “pilot” program or a “permanent” program depends upon what the meaning of “pilot” is (I think you know where I am going with this).  We may be seeing in Section 1302 the birth of a new home health care entitlement.

I am not going to go line by line through 19 pages in this post, but there are some key points.  Section 1302 creates a new section 1866E of the Social Security Act:

The Secretary shall establish a medical home pilot program (in this section referred to as the ‘pilot program’) for the purpose of evaluating the feasibility and advisability of reimbursing qualified patient-centered medical homes for furnishing medical home
services (as defined under subsection (b)(1)) to high need beneficiaries (as defined in subsection 25 (d)(1)(C)) and to targeted high need beneficiaries 26 (as defined in subsection (c)(1)(C)).

Compared to the provisions I examined in the first three parts of this series, this language is relatively straightforward.  The pilot program will develop two prototypes, the “Independent Patient-Centered Medical Home Model” (to start within six months with no specified ending date) and the “Community-Based Home Model” (to start within two years for up to five years).  

The names of these alternatives are fairly descriptive.  The “Independent” model uses private medical providers, while the “Community-Based” model uses non-profits and community organizations.  The key aspect of both of these models is payment for physician and other medical services (such as nurse practitioners and nurses assistants) in the home.

The section contains lots of definitions as to who qualifies, how payments are made, and so on.  But the key thing here is that so much remains to be fleshed out in regulations to be promulgated by the Secretary of Health and Human Services.  “As the Secretary may specify” or “a process” the Secretary “shall establish” or words to that effect are sprinkled heavily throughout the 19 pages.

And this raises a point I have been thinking about throughout this process.  As dense and lengthy as the House Bill is in its current form, this is just the start.  I am confident that there are hundreds of provisions in the House Bill requiring further regulation, specification, rule-making, and interpretation.

There is a more important aspect, however, and that is the Secretary’s ability to make these pilot programs permanent without further Congressional legislation. After issuing certain evaluative reports to Congress (but without any explicit need to get Congressional approval):

(A) … the Secretary may issue regulations to implement, on a permanent basis, one or more models, if, and to the extent that such model or models, are beneficial to the program under this title, including that such implementation will improve quality of care, as determined by the Secretary.

The only check on the Secretary’s ability to continue the pilot program is the need for a certification from the Chief Medicare Actuary:

The Secretary may not issue such regulations unless the Chief Actuary of the Centers for Medicare & Medicaid Services certifies that the expansion of the components of the pilot program described in subparagraph (A) would result in estimated spending under this title that would be no more than the level of spending that the Secretary estimates would otherwise be spent under this title in the absence of such expansion.

This last paragraph has some strange wording.  It suggests that the Secretary can make the pilot program permanent so long as the Secretary does not increase the need for future funding (which funding would need Congressional approval).  If my reading of the Secretary’s powers is correct, the pilot program is not really a pilot program, but a foot in the door to establish a permanent program.

Of course the Secretary will find the pilot to be a success, since the Secretary will be the one developing and implementing the pilot.  What is the chance Congress would withhold funding for this program if the Secretary wanted to make the program permanent?  You can imagine the howls about how heartless Republicans were “taking away” the “right” to home health care.  If anything, the nature of the program is likely to be expanded as to scope and funding needs.

I started out thinking this pilot program language was straightforward.  By the end of the analysis, however, it became clear that the clarity was only superficial.  There is nothing “pilot” about this program, other than the fact that it is new.  What is new is the birth of a new entitlement -- which never will be taken away and that will grow in cost.

VERDICT:  I propose changing the title of Section 1302 from the “Medical Home Pilot Program” to the “New and Permanent Medical Home Program Entitlement.”

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