HR6317 – Legislation Gone Wrong

Author: Dr. Kimberly Corba with the Association of Independent Doctors

HR 6317: Special Interest’s Bill Perpendicular to the President’s Agenda for Health Care Freedom

On July 11, 2018, the House Ways and Means Committee approved HR 6317, “The Primary Care Enhancement Act of 2018,” in lieu of a much simpler and better bill, HR 365. Below is a summary of how this flawed legislation unfairly taxes patients of DPC doctors who don’t comply with ObamaCarerules and other new regulations. Even when other ObamaCare restrictions are being repealed and the President has demanded cuts in regulation, Congress is unwittingly perpetuating ACA overregulation.

HR 6317 is tied to ACA rules that define what primary care is. Care not defined by ACA as primary care, could not be included in an HSA-eligible DPC membership. Patients who enter a DPC relationship with a physician offering care outside of the ACA definition of primary care could not use their own HSA dollars to see this doctor and would have to use after-tax dollars essentially a penalty or tax.
HR 6317 inappropriately caps and constrains the power of the free market to encourage innovation and how individuals can spend their own HSA dollars for medical care expenses in a Direct Primary Care setting.  HSA dollars are not capped and constrained in any other area of medical care, e.g. fee-for-service primary care, knee replacements, childbirth costs, etc.
HR 6317 caps what the physician can charge which makes this legislation the first federal attempt at price controls for HSA-eligible medical services in the cash-based, free market setting. Meanwhile, there are no ceilings on HSA-eligible medical charges by insurers or hospitals.
HR 6317 will further devalue the role of the primary care physician by incorporating Sec. 1833(x)(2)(A) of the Social Security Act, also created by the ACA, allowing Nurse Practitioners and Physicians Assistants to operate HSA-eligible DPC practices. This will aggravate increasing scope of practice concerns and drive the improper “industrialization” of DPC facilitated by mergers between insurers, providers, and other middlemen like PBMs.
HR 6317 increases unnecessary regulations on physician-run small businesses and individual physicians – conflicting with the President’s goal of reducing regulation and eliminating unnecessary regulatory costs to promote small business growth.
HR 6317 improperly defines DPC as a “service arrangement” under Section 223(d) of IRS code, instead of explicitly defining it as medical care under Section 213(d). This flaw could cloud helpful state laws exempting DPC from regulation as insurance and impede additional states from passing similar provisions.
HR 6317 will adversely affect the flexibility of HSA use in collaboration with Trump Administration reforms to lower patient costs and increase patient options, like Association Health Plans (AHPs) and Short Term Limited Duration Insurance (STLDI). There will be higher costs incurred by employers, employees, and patients, thanks to constraints on allowable medical services.
New regulations would require billing for all prescription drugs, running counter to the Administration’s focus on lowering prescription costs and eliminating middlemen. It forces DPC offices to bill for these drugs often included in the membership fee. It eliminates the ability of medications for routine procedures covered by the monthly DPC fee, like steroids for joint injections, local anesthetics for lesion removal, medication used in nebulizer treatments.
HR 6317 imposes new regulations on any extra medical services that may be included in the medical service fee.  This disallows innovation that increases cost savings and benefits the patient.  For example, items like EKGs, spirometry, ear lavage, skin lesion removal, nebulizer treatments, removal foreign bodies are included services.  This legislation would not allow any services that fall outside the designated CPT codes without disqualifying a patient from contributing to an HSA.  These items would have to be billed through insurance or charged a separate cash fee outside periodic fee.  This will benefit insurers but create unnecessary obstacles to the affordable independent DPC model.
This improper federal regulation will drive new insurer requirements in HSA-eligible high deductible plans like mandatory submission of CPT codes and patient data. This could drive independent DPC practices who choose not to submit out of business.
HR 365 is a bipartisan bill, has been vetted multiple time and has 35 co-sponsors( HR 6317 has not been vetted and was released with less than 48 hours for interpretation and thoughtful response.
Bottom line: This bill is a violation of the rights of patients and physicians and simply bad policy. Instead of HR 6317, Congress should expedite passage of HR 365 or write a new version that includes language permitting any “direct care” agreement to allow specialist direct contracting and truly empower patients to use their own HSA dollars to see the physicians of their choice, not the physicians who comply with counterproductive overregulation. Stop the DPC tax for everyone, not just those who agree to government demands.

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