[Congressional Record (Bound Edition), Volume 156 (2010), Part 9]
[Extensions of Remarks]
[Pages 12898-12900]
[From the U.S. Government Publishing Office, www.gpo.gov]




  THE REAL WORLD CONSEQUENCES AND UNCERTAINTIES OF HEALTH CARE REFORM

                                 ______
                                 

                            HON. DAN BURTON

                               of indiana

                    in the house of representatives

                         Tuesday, July 13, 2010

  Mr. BURTON of Indiana. Madam Speaker, I have come down to this Floor 
many times over the past year and a half to share with my colleagues my 
profound concerns over the direction the Majority was taking with 
regard to health care reform. Regrettably, the enactment into law of 
Patient Protection and Affordable Care Act--accomplished via an 
unprecedented and extraordinary misuse of budget reconciliation rules--
did nothing to alleviate my concerns. In fact, now that health care 
reform is law and the American people can finally see, in the full 
light of day, the law that the Democrat Majority wrote and jammed down 
their throats, a strong preponderance of Americans want this turkey of 
a law repealed.
  I am firmly convinced that the credibility gap between what the 
Majority claimed its health care reform bill would do, and what all of 
the experts say it will actually do now that it is law, is a large part 
of why, according to the latest Gallup opinion poll, only 20% of 
Americans, a mere 2 in 10, have a favorable opinion of this Congress.
  This Majority and this Administration has shown more disregard for 
the opinions and desires of the American people then any Congress and 
any presidential Administration, certainly of the modern age, if not 
history. It is time we listen to the American people; listen to the 
ordinary moms and dads and the small business owners who must live with 
the consequences--intended and unintended--of the laws that we pass.
  To that end, I would like to share with my colleagues a letter I 
received from Pharmakon Long Term Care Pharmacy, Inc. and Pharmakon 
Pharmaceuticals; two Indiana corporations that provide pharmacy 
services to Indiana nursing and institutional facilities. Founded in 
2003, these two companies have grown to over one hundred and fifty, 
150, full-time employees serving more than six thousand, 6,000, people 
throughout Indiana and part of Illinois. I ask unanimous consent to 
include a copy of the letter in the Congressional Record after my 
statement.
  I ask my colleagues to pay particular attention to the questions and 
concerns expressed in the letter about the Patient Protection and 
Affordable Care Act but I think it is also important to understand 
their observations about problems with Medicare and insurance billing 
as well as their concerns about DEA rules when it comes to dispensing 
medications; because these are the kinds of real world problems in our 
health care system that we should have been working to resolve if only 
we had been listening.

               Letter to Congressman Burton on Healthcare

                                                      May 27, 2010
     Congressman Dan Burton,
     Rayburn House Office Building,
     Washington, DC.
       Pharmakon Long Term Care Pharmacy, Inc. and Pharmakon 
     Pharmaceuticals (d/b/a Pharmakon Compounding, Inc.) Inc. are 
     two Indiana Corporations founded by Paul J. Elmer R.Ph. 
     Pharmakon Long Term Care Pharmacy, Inc. was founded in 2003 
     with the purpose of providing pharmacy services to Indiana 
     Nursing Facilities and Institutional Facilities. Since its 
     founding Pharmakon has grown from 5 employees to a company 
     with over 150 full time employees; serving more than 6,000 
     individuals throughout Indiana and part of Illinois. Carol 
     and Paul Elmer, R.Ph. founded Pharmakon Pharmaceuticals, Inc. 
     in 2006 with the purpose of providing medications to 
     hospitals run by the Department of Defense, throughout the 
     United States. Pharmakon Pharmaceuticals has a current staff 
     of 25 employees with an expected growth of over 100 within 
     the next two years. In the past 7 years, both Pharmakon LTC 
     Pharmacy and Pharmakon Pharmaceuticals have been able to 
     provide jobs in this rough economy and continue to grow and 
     provide services to our most vulnerable population, the 
     elderly.
       Currently, the Pharmakon Long Term Care Pharmacy, Inc. 
     experiences multiple barriers as a long-term care pharmacy. A 
     long-term care pharmacy differs from your local retail 
     pharmacy in that it is a highly specialized organization, 
     with the primary purpose of providing pharmacy services 
     (medications, medical supplies, consultant

[[Page 12899]]

     services, and the such) to the elderly and institutional 
     residents in nursing facilities and various institutional 
     facilities, such as mental hospitals. Because it is a highly 
     specialized pharmacy, it faces multiple barriers daily, which 
     make it extremely difficult at times to provide the required 
     services to the most fragile population in the American 
     Society. These barriers are not challenges but are rather 
     outright problems that must be solved in order for these 
     individuals to receive the service and care they deserve. The 
     following are examples of some of our current barriers, none 
     of which are addressed in the current Healthcare Reform.
       First, most pharmacy bills come due the 15th of the month 
     or the 30th of the month. The problem with this is that the 
     pharmacy is not paid on insurance claims for usually 30 days; 
     however, it is more common for the insurance company to take 
     up to 60 or even 90 days to pay the pharmacy. In addition any 
     claims submitted to Medicare Part B or D generally are not 
     paid to the pharmacy for 30 to 90 days. So while the pharmacy 
     must pay its bills when they come due, the insurance and 
     government plans generally do not pay within a timely 
     matter--this thus leaves the pharmacy with an ongoing debt.
       Furthermore, another payment problem with Part D is whom 
     does the pharmacy contact when there are problems with Part 
     D? It would be beneficial for the pharmacy to know who holds 
     the position of managing the administration of the government 
     program. For example, when the pharmacy is not getting paid 
     on claims by Part D Anthem who can they contact to get this 
     resolved? The pharmacy, cannot continue to operate without 
     getting paid; we set out to create jobs in the community 
     while servicing some of the most vulnerable populations; 
     however, when the pharmacy is not being paid, we cannot pay 
     our bills or employees and thus those who need our services 
     cannot receive the services and goods they require in some 
     cases to continue living.
       With that being said, another barrier the Pharmacy 
     continues to run into is Prior Authorizations. We, as a 
     pharmacy, have had to hire a nurse to work on prior 
     authorizations due to the fact that the nursing staff at the 
     facilities has no time to handle these and the doctors 
     generally refuse to do them. We must contact the insurance 
     company for prior approval for a medication. Generally, on a 
     good day, it is a 30-minute phone conversation with the 
     insurance company; however in some instances it may take up 
     to 72 hours for the insurance company to reply and say yes. 
     While we wait for the insurance company's reply, the 
     individual is suffering in pain waiting for their 
     medications. Because we must contact the insurance company 
     for a prior authorization this slows our ability to get the 
     medication to the individual, leaving them suffering in pain.
       Additionally, many hours are spent handling, monitoring and 
     appealing insurance audits; rather than providing pharmacy 
     services. Insurance audits have become burdensome; we 
     understand the need for them; however, insurance companies do 
     not understand the Long Term Care Industry and the majority 
     of the time as it relates to these audits is spent on 
     educating the insurance company about this industry. Once 
     educated we usually win the audit; however, the time it takes 
     to reach this result, takes away from our primary purpose, 
     which is providing pharmacy services. Additionally, the time 
     frames set forth by the insurance company are not realistic; 
     they are too short for a pharmacy to return with proper 
     information and many times, we end up paying for something 
     that was originally covered and properly processed to begin 
     with.
       Similarly, insurance formularies are not conductive to 
     residents in a Long Term Care Facility; for example, many do 
     not cover IV therapy, in which case we must get an override 
     in order to provide the necessary medication to the 
     individual and even with that we are audited for those 
     claims. It appears from our point of view that the insurance 
     companies do not grasp that these residents are cared for 24/
     7 by healthcare professionals of many different disciplines 
     and when they are denied various medications due to the 
     formularies, they lay in pain suffering until we can finally 
     get the needed medications covered. These individuals pay for 
     plans to cover their medications, in most cases these are 
     expensive medications which the individual themselves more 
     than likely could not pay for out of pocket. Additionally, we 
     are not in the business of providing free, expensive 
     medications; as much as we would like to, we cannot pay our 
     employees while handing out free medications. Since we cannot 
     just give the medications away, and since the patient cannot 
     pay for it and nor will the insurance; we are left in a 
     difficult position while the individual suffers.
       Finally, one of our biggest barriers is the DEA not 
     treating nurses in long-term care facilities as agents of the 
     prescribing doctor when it comes to controlled substances. 
     There are times when a resident needs an emergency dosage of 
     a Controlled Substance, generally a Schedule II, and the 
     nurse must call a doctor who is generally not near a fax 
     machine. The nurse may not call in the prescription due to 
     the fact that the nurse is not considered an agent of the 
     doctor by the DEA and thus the pharmacy must attempt to reach 
     the doctor via phone before sending out the medication; which 
     can take hours; all the while the resident is agonizing in 
     pain. If the nurse would be permitted to be an agent of the 
     doctor this would reduce the time between when the order is 
     called in and when it is delivered to the individual.


    How will the Patient Protection and Affordable Care Act effect 
 Pharmakon Long Term Care Pharmacy and Pharmakon Pharmaceuticals, Inc.?

       First, there are several sections that state the employer 
     must provide affordable coverage, but who is determining what 
     is affordable? In some instances, our hourly individuals may 
     want to opt out and purchase from the exchange because to 
     them they may find one a plan on the exchange more to their 
     liking and more what they deem affordable opposed to the plan 
     we offer. Why should we be punished for the decision that the 
     individual makes. We, as a corporation, cannot force our 
     employees to spend their hard earned wages toward something 
     they may personally decide either (a) they have no interest 
     in procuring from us (b) find that they just do not think 
     they can afford it or (c) they have no interest in purchasing 
     period from us or the exchange. The affordability is truly a 
     personal decision and should be left to the individual to 
     decide and the employer should not be punished for the 
     individual's decision. Furthermore, there is also the issue 
     that in some cases, our employees may choose just not to 
     purchase insurance from us or from an exchange and again we 
     cannot force them to buy it. We have many employees who just 
     choose not to buy the insurance we currently offer. 
     Additionally, the Bill states that the Employer is 
     responsible to cover 60% of all health care; for our 
     particular business this is a large sum that we just possibly 
     could not do and continue to pay our employees at their 
     current rates. If we are forced to cover 60%, there is a good 
     chance that we would have to lay off many employees in order 
     to be able to provide the required healthcare coverage.
       Under this Bill, HSA cannot be used for over the counter 
     drugs, this seems to be counterproductive. The purpose of an 
     HSA is for the individual with a high premium to use those 
     monies for office visits, medication, and the such. In some 
     instances, why should an individual visit the doctor to 
     receive a prescription for Claritin-D just so that they can 
     use their HSA, now the individual will have to pay for the 
     office visit, which in the scheme of things may be more 
     costly than just buying the medication out of pocket. In all 
     reality this is the individual's hard earned money, the 
     government should not tell them how they may spend it; 
     especially when it comes to accounts set up just for health 
     care concerns. Yes, people may be irresponsible; but at some 
     point, the government needs to just trust that its citizens 
     will do the right thing and use their non-taxed dollars on 
     their health care. We at Pharmakon have HSA accounts due to 
     our high premiums; we believe that it should be the 
     individual's decision as to how to spend their monies and if 
     they choose to purchase Over the Counter medications, which 
     they need then they should be permitted to use their HSA 
     accounts.
       The Class Act states that an employee can enroll and 
     disenroll but how will this affect the employer? If an 
     employee chooses not to enroll, will we the employer be 
     penalized? Again, we cannot force our employees to do 
     something they do not want; nor can we force them to spend 
     their hard-earned money on something they have no desire to. 
     Additionally what protections are there that we will not be 
     forced to enroll all employees in this when it becomes 
     apparent that it cannot support itself?
       The Bill sets up Health Information Technology; however, it 
     is vital to ensure that Long Term Care especially the Long 
     Term Care Facilities and Pharmacies are brought to the table 
     in this process. We must realize that in a few years, the 
     baby-boomer generation will be the new class of residents in 
     these Long Term Care Facilities and with this increase of 
     resident population; we must look to the LTC community for 
     suggestions as it relates to Health Information Technology. 
     Many do not realize that while the pharmacies may be state of 
     the art, many of the facilities are not equipped with some of 
     the most basic technology; additionally most of the staff 
     would be in complete shock if they were just slammed with 
     this new technology; thus input from the LTC area is 
     extremely vital. Furthermore, the way things are done in a 
     doctor's office and hospital do not always transfer as easily 
     to LTC settings. HIT while vital and extremely beneficial 
     will be useless in the LTC setting if LTC providers are not 
     consulting in the development of it. In additional the 
     Pharmacy cannot be left holding the price tag for updating 
     LTC facilities when it comes to this technology; there must 
     be a way in which we can encourage these facilities to update 
     their own technology and not depend on the Pharmacy to do it 
     for them. Some of these HIT grants should not only be given 
     to LTC Pharmacies but also the Facilities we service.
       With the new Bundling system, the unanswered question here 
     is under the pilot program if one hospital receives a bid 
     will they determine which nursing facilities the individual 
     may use? One of the concerns with

[[Page 12900]]

     Bundling is what if the hospital chooses to use nursing 
     facilities which they own or which are related in some manner 
     to the hospital, will patients have a choice as to which 
     facility they want? If not then the question becomes what 
     will protect those facilities, which are currently in 
     business? Those facilities which are related to the hospital 
     may have the technology which non-related facilities lack and 
     then the question becomes who is to provide the technology, 
     across the board, most Long Term Care Facilities are accustom 
     to Pharmacies providing all of their equipment needs, fax 
     machines, med carts and so forth. If and when this new 
     technology is implemented there will be a vast problem of who 
     is to provide it and furthermore uniformity. Pharmacies 
     cannot bear the burden of providing this to Facilities, and 
     additionally neither should hospitals.
       The establishment of CMI within CMS aims to move the fee 
     payment from fee for service based reimbursement toward a 
     salary-based payment; however, providers are not defined, so 
     do Pharmacies fall into this? Additionally under CMS, there 
     is the Medicare Shared Saving Program, which sets up 
     Accountable Care Organizations--with the development of this 
     new organization the question becomes will pharmacies be a 
     group later determined by the Secretary to be part of this 
     process? If so or if not the question then becomes how will 
     these organizations effect our ability to procure business or 
     which homes may be able to willingly choose us for their 
     pharmacy services? All of these issues are left open and yet 
     to be determined, these are rather important issues; and 
     there are so many unanswered questions and with the 
     possibility of this new fee payment reimbursement, which may 
     affect LTC pharmacies.
       Under the Medicare Shared Savings Program, subsection (b) 
     Eligible Accountable Care Organization. The payment would be 
     via shared saving; this section does not list pharmacies but 
     allows the Secretary to determine groups of providers and 
     supplies as appropriate. The big question is would this new 
     program affect how we as a pharmacy obtain new business and 
     in some cases keep current customers? Would this limit which 
     nursing facilities, institutions and so forth can utilize our 
     services?
       Due to the fact that the bill does not address these above 
     stated questions, we are left wondering how these new 
     programs will affect the Long Term Care industry, 
     specifically the Pharmacies. While there is some concern 
     about how we will be paid, we are more concerned as to what 
     will happen to us and how these programs affect us. There is 
     a concern that because LTC pharmacies aren't mentioned by 
     name, we may not necessarily fall into one of these programs, 
     and under the guise of cost control our reimbursement fees 
     may be cut; which in turn will create a larger problem for us 
     as how to pay our employees and how to continue to provide 
     the services that we are do and that the facilities are 
     accustom to.
       Our concern with Individuals at Home Demonstration Program, 
     specifically the payment methods governed by (subsection 
     (c)). The issue is the spending targets, which will be 
     determined on a per capita basis, what does that mean for 
     items covered under Part A and Part B and those cuts? While, 
     we agree that there is wasteful spending and that budget 
     controls are needed, we ask that those cuts to remedy the 
     increase in cost do not affect the Pharmacy. As a pharmacy, 
     there is only so much we can provide while not running at a 
     loss and if the spending targets reduce payments to the 
     pharmacy, there is a chance that the pharmacy will not be 
     able to provide to those who are most vulnerable and need all 
     the care we can give them.
       While we at Pharmakon agree that Health Care needs to be 
     reformed, we believe that this current Reform Bill will 
     create more barriers in our ability to provide services to 
     the most vulnerable in our society and in addition as a 
     medium size business with mainly hourly employees, we feel 
     that many of these changes will affect our ability to 
     continue to employ many of our employees and will affect them 
     in their personal choices.
           Sincerely,
     Pharmakon Long Term Care Pharmacy, Inc.
     Pharmakon Pharmaceuticals, Inc.

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