[Congressional Record Volume 156, Number 45 (Tuesday, March 23, 2010)]
[Extensions of Remarks]
[Pages E462-E463]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       RECONCILIATION ACT OF 2010

                                 ______
                                 

                               speech of

                        HON. BILL PASCRELL, JR.

                             of new jersey

                    in the house of representatives

                         Sunday, March 21, 2010

  Mr. PASCRELL. Mr. Speaker, in my capacity as co-chair of the 
Congressional Brain Injury Task Force, I would like to share my 
understanding of the intent of the provisions of H.R. 3590, the Patient 
Protection and Affordable Care Act regarding coverage of the treatment 
continuum for persons with brain injury. I believe that health care 
reform should address the unique health care needs of individuals with 
brain injury by recognizing that brain injury is the start of a 
lifelong disease process requiring access to a full continuum of 
medically necessary treatment, including rehabilitation and chronic 
disease management, furnished by accredited programs in the most 
appropriate treatment setting as determined in accordance with the 
choices and aspirations of the patient and family, in concert with an 
interdisciplinary team of qualified and specialized clinicians.
  News reports of returning veterans and recent high profile brain 
injury stories indicate what researchers have been reporting for 
years--brain injury is a leading public health problem in U.S. military 
and civilian populations. Brain injury is not an event or an outcome 
but is the beginning of a lifelong disease process that impacts brain 
and body functions resulting in difficulties in physical, 
communication, cognitive, emotional, and psychological performance that 
undermines health, function, community integration and productive 
living. Brain injury is also disease causative and disease accelerative 
in that it predisposes individuals to re-injury and the onset of other 
conditions (e.g., brain injury impacts neurologic disorders such as 
epilepsy, vision and hearing impairments, psychiatric disorders, and 
orthopedic, gastrointestinal, urologic, sexual, neuroendocrine, 
cardiovascular and musculoskeletal dysfunction).
  The Brain Injury Association of America, BIAA, has developed a series 
of guiding principles for assessing any health reform bill from a brain 
injury perspective. I am pleased to conclude that the Patient 
Protection and Affordable Care Act reflects and is consistent with 
these principles.
  One principle identified by BCIAA is that an individual with brain 
injury should have access to the full treatment continuum to manage the 
disease that includes early, acute treatment to stabilize the condition 
followed by acute and specialized post-acute brain injury treatment and 
rehabilitation, including inpatient, outpatient, day treatment and home 
health programs, to minimize and/or prevent medical complication, 
recover function and cope with remaining physical or mental 
disabilities, and achieve durable outcomes that maintain an optimal 
level of health, function and independence following brain injury. The 
Patient Protection and Affordable Care Act authorizes the Secretary of 
Health and Human Services to define the details and limits of the 
essential health benefits package but establishes certain general 
categories of benefits that must be covered. The bill specifically 
lists, among other things, hospitalization, outpatient hospital and 
outpatient clinic services, professional services of physicians and 
other health professionals, and prescription drugs. In addition, I am 
pleased that the list includes the following benefits that are of 
particular importance to persons with brain injury:
  Rehabilitative and habilitative services and devices,
  Mental health and substance use disorder services, including 
behavioral treatment, and
  Chronic disease management.
  I believe that for individuals with disabilities such as brain 
injury, rehabilitation and habilitation is equivalent to the provision 
of antibiotics to a person with an infection--both are essential 
medical interventions. The term ``rehabilitative and habilitative 
services'' includes items and services used to restore functional 
capacity, minimize limitations on physical and cognitive functions, and 
maintain or prevent deterioration of functioning as a result of an 
illness, injury, disorder or other health condition. Such services also 
include training of individuals with mental and physical disabilities 
to enhance functional development.
  The term ``rehabilitative and habilitative devices'' includes durable 
medical equipment, prosthetics, orthotics, and related supplies. It is 
my understanding that the Patient Protection and Affordable Care Act 
requires the Secretary of HHS to develop, through regulation, standard 
definitions of many terms, including durable medical equipment for 
purposes of comparing benefit categories from one private health plan 
to another. It is my expectation ``prosthetics, orthotics, and related 
supplies'' will be defined separately from ``durable medical 
equipment'' and the Secretary is not to define durable medical 
equipment for purposes of ``in-home'' use only.
  I defining the list of categories of essential health benefits, I am 
particularly pleased that the bill states that the Secretary shall:
  Ensure that such benefits reflect an appropriate balance among the 
categories so that benefits are not unduly weighted toward any 
category;
  Not make coverage decisions, determine reimbursement rates, establish 
incentive programs, or design benefits in ways that discriminate 
against individuals because of their age, disability, or expected 
length of life;
  Take into account the health care needs of diverse segments of the 
population, including women, children, persons with disabilities, and 
other groups; and
  Ensure that essential benefits not be subject to denial on the basis 
of the individual's present or predicted disability, degree of medical 
dependency, or quality of life.
  Taken together, these are strong protections that will help ensure 
that the essential health benefits package--that must be offered by all 
health plans that participate in the new Health Insurance Exchanges--
will take into account the needs of people with brain injury and other 
disabilities and chronic conditions and not impose value judgments 
about disability and quality of life. This legislative language makes 
clear that Congress understands the subtle discrimination that can 
occur against people with brain injury and other disabilities in the 
area of benefit design.
  A provision in the bill allows insurance companies to sell insurance 
products across State lines. It is my understanding that the new 
federal standards regarding essential benefits are meant to act as a 
floor, not a ceiling, for these essential benefits, giving room for 
plans within states to offer more generous coverage to their 
constituents. Thus, it is also my understanding that all state benefit 
and consumer protection laws will be accorded full force and effect 
when multi-state compacts are organized under one state's laws but sell 
insurance across state lines.
  A second principle identified by BIAA is that an individual with a 
brain injury should have an individualized medical treatment plan that 
documents specific diagnosis-related goals when the person has a 
reasonable expectation of achieving measurable functional improvements 
in a predictable period of time through the provision of treatment of 
sufficient scope, duration and intensity. As described above, I am 
pleased to report that under the

[[Page E463]]

bill, payment for items and services included in the essential benefits 
package should be made in accordance with generally accepted standards 
of medical and other appropriate clinical or professional practice. In 
addition, under the bill, a qualified health benefits plan may not 
impose any restriction (other than cost-sharing) unrelated to clinical 
appropriateness on the coverage of the health items and services 
included in the essential benefits package. Consistent with medical, 
clinical, and professional practice, appropriateness should be 
determined based on the unique needs of the individual with brain 
injury and treatment should be of sufficient scope, duration, and 
intensity.
  A third principle identified by BIAA is that individuals with brain 
injury should receive treatment in the most appropriate treatment 
setting by accredited programs including acute care hospitals, 
inpatient rehabilitation facilities, residential rehabilitation 
facilities, day treatment programs, outpatient clinics and home health 
agencies as determined in accordance with the choice and aspirations of 
the patient and family in concert with an interdisciplinary team of 
qualified and specialized clinicians. I am pleased that the bill 
includes important patient protections that are designed to permit 
providers to fully discuss treatment options with patients and their 
families and permit the patient to render an informed choice as to 
their course of rehabilitation or other treatment. These patient 
protections are also designed to ensure that the patient receives 
appropriate medical care and that the health care treatment is 
available for the full duration of the patient's medical needs.
  More specifically, the bill restricts the Secretary in a number of 
important ways from creating rules that potentially restrict access to 
certain benefits or settings of care. The bill states that the 
Secretary shall not promulgate any regulation that:
  Creates any unreasonable barriers to the ability of individuals to 
obtain appropriate medical care;
  Impedes timely access to health care services;
  Interferes with communications regarding the full range of treatment 
options between the patient and provider;
  Restricts the ability of health care providers to provide full 
disclosure of all relevant information to patients making health care 
decisions;
  Violates the principles of informed consent and the ethical standards 
of health care professionals; or
  Limits the availability of health care treatment for the full 
duration of the patient's medical needs.
  In addition, the bill specifies that a group health plan and a health 
insurance issuer shall not discriminate with respect to participation 
in the group or individual health insurance plan or coverage against 
any health care provider who is acting within the scope of that 
provider's license or certification under applicable state law. The 
bill also specifies that health plans to be considered ``qualified'' by 
the Secretary must ensure ``a sufficient choice of providers (in a 
manner consistent with applicable network adequacy provisions under 
section 2702(c) of the Public Health Services Act) and provide 
information to enrollees and prospective enrollees on the availability 
of in-network and out-of-network providers'' in order to ensure 
enrollee access to covered benefits, treatments and services under a 
qualified health benefits plan. Thus, rehabilitative and habilitative 
services and chronic disease management services must be available from 
a full continuum of accredited programs and treatment settings at a 
level of intensity that is consistent with the needs of the patient.
  A fourth principle identified by BIAA is that the bill should prevent 
private insurance systems from delaying or denying treatment as a means 
of transferring the burden of brain injury care to taxpayers at 
federal, state and local levels; ensure that both public and private 
health insurance systems meet the health care needs of people with 
brain injury; and avoid using Medicaid and Medicare as the first option 
for coverage of people with brain injury. I am pleased to report that 
the bill includes numerous requirements reforming the health insurance 
marketplace that should prevent private insurance systems from delaying 
or denying treatment for individuals with brain injury. These reforms 
include: prohibiting pre-existing condition exclusions; requiring 
guaranteed issue and renewal; requiring nondiscrimination in health 
benefits or benefit structure in terms of factors such as health 
status, medical condition, medical history, disability or any other 
health status-related factor; limits cost-sharing, and prohibits the 
imposition of lifetime limits or unreasonable annual limits on the 
dollar value of benefits for any individual. I believe that these 
provisions should help prevent private insurance from delaying or 
denying treatment to persons with brain injury.
  The Patient Protection and Affordable Care Act includes provisions 
rewarding quality through market-based incentives, including 
consideration of payment structures that provide increased 
reimbursement or other incentives for, among other things, improving 
health outcomes through the implementation of activities that include 
effective case management, care coordination, and chronic disease 
management. The bill also includes numerous provisions designed to 
encourage the development of new patient care models that address the 
needs of persons requiring comprehensive rehabilitation and chronic 
care management, including models that facilitate the maintenance of 
close relationships between care coordinators, primary care physicians, 
specialist physicians, community-based organizations, and other 
providers of services and suppliers.
  Separate provisions are included in the Patient Protection and 
Affordable Care Act regarding post-acute care (PAC) bundling under 
Medicare. The bill provides for the establishment of a national pilot 
program for integrated care around a hospitalization in order to 
improve coordination, quality, and efficiency of health care services. 
Under the bill, the Secretary will select 1 or more of 8 conditions, 
taking into consideration, among other things, whether a condition is 
high volume and most amenable to bundling. Applications to participate 
in the pilots may be made by ``participating providers'' consisting of 
providers of services and suppliers, including but not limited to 
hospitals.
  BIAA, in a submission to the chair of the Senate Finance Committee 
commented that post-acute payment systems must facilitate, not impede, 
improvements in functional status of individuals with brain injury and 
their ability to return to their homes and communities. BIAA supports a 
deliberative planning process and rigorous pilot testing. The 
deliberative process should determine, among other things, whether PAC 
bundling should exempt diagnoses such as brain injury, which are of low 
predictability and highly complicated; and test innovative payment 
methods that make payments directly to nonhospital-based treatment 
centers, including residential rehabilitation facilities specializing 
in the treatment of brain injury that have earned accreditation by the 
Joint Commission on Accreditation of Healthcare Facilities and/or the 
Commission on Accreditation of Rehabilitation Facilities.
  I agree with the comments presented by BIAA. I am pleased that the 
Patient Protection and Affordable Care Act is consistent with BIAA's 
comments and addresses their concerns. I have some reservations 
regarding the bundling of post-acute care that require the ``bundle'' 
be earmarked to an acute care hospital for patients with complex and 
highly unpredictable diagnosis and health outcomes, as is the case for 
individuals with brain injury and other catastrophic conditions. I 
agree with BIAA that such payment systems may impede, rather than 
facilitate, improvements in functional status and may result in 
premature return to homes and undue levels of preventable disability 
without adequate facilitation of progression through necessary step 
down levels of treatment.
  In closing, I believe the Patient Protection and Affordable Care Act 
addresses the unique health care needs of individuals with brain injury 
by recognizing that brain injury is the start of a lifelong disease 
process requiring access to a full continuum of medically necessary 
treatment, including rehabilitation services and devices and chronic 
disease management, furnished by accredited programs in the most 
appropriate treatment setting as determined in accordance with the 
choices and aspirations of the patient and family in concert with an 
interdisciplinary team of qualified and specialized clinicians.

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