Washington Lawyer - January/February 2020 - 34

FEATURE
growing population of older people. CMS
would have to develop expertise and render
decisions in whole new categories of care not
currently handled by the government.
"This would be massive. You would need to be
in a long transition period," says Dr. Paul Rudolf,
a partner in the health care practice at Arnold
& Porter LLP who previously practiced medicine
for more than 15 years.
"My working assumption as a lawyer is that
Medicare as a policy matter will have to go
through that same process all over again that
it went through from 1965 to 1985 or so, partnering and getting assistance from commercial
players that have a lot of experience in delivering this kind of health care," Rudolf says.
Health care lawyers will have to keep up with
the changes that are coming, adds Rudolf. "With
every major change in Medicare, Medicare
Advantage, or Medicare Part B, thousands and
thousands of questions have been asked by
lawyers on behalf of all sorts of clients to get
clarification. 'Now that we have this change,
are we allowed to do this? Are we allowed to
do that? Do you have discretion here?' There's
a million things that health care lawyers will
have to continue to do and learn."
"No matter how good a job Congress does in
terms of prescribing what it wants, there still
are hundreds and hundreds of gray areas,
question marks, areas of discretion. And you'll
have clients of all sorts that will hire law firms
like ours to analyze the law and point out how
the law might affect where things can be

changed, what discretion CMS has and how
it implements things, or what you might have
to go back to Congress for to get the law
changed," says Rudolf.

DECIDING THE WINNERS & LOSERS
Ultimately, going to a Medicare for All-type
of system means the U.S. government - or
the "bureaucrats in Baltimore," as one lawyer
put it (the CMS is headquartered in Baltimore)
- would be making decisions about the marketplace, setting prices, and, inevitably, picking
the winners and losers.
"This 'who decides' question is super, super
interesting. And that's what I would say people
should be focusing on. Who's making the
decisions?" asks Ladd Wiley, chair of the health
industry policy and regulatory practice at
Olsson Frank Weeda Terman Matz PC in
Washington. "The private sector is subsidizing
Medicare," Wiley says. "So getting rid of the
private sector [means] it's not subsidizing
Medicare anymore. What does that do when
the options are either Medicare pays more
or the system needs to accept less? If you try
to force the system to accept less, there will
be a lot of pain points there."
Already, many organizations, including hospital
groups and physician networks, break even or
lose money on Medicare and make up the difference with higher payments from private
insurers.
"One of the big questions that seems to be kind
of unanswered right now is, how do you get

doctors paid appropriately? Or at least paid sufficiently to keep them in business or keep them
wanting to be in business?" Wiley says. "If the
whole premise of these proposals from the
Democratic side is to cut costs and bring
more people into the system at the same time,
you know what happens to those payment
numbers."
Rudolf echoes Wiley's comments. "One big
question that will come up, which is going to
be very specific, is how much are doctors
going to get paid? Most physicians do not
think that Medicare pays enough," says Rudolf,
who represents a number of medical specialty
practices.
"I don't know how doctors will react. They may
think this is terrible because payments will go
down, or they may think it's great. If everybody
is in Medicare fee-for-service and Medicare pays
the existing rates . . . for everybody, and there
are no other insurance companies, what's that
going to mean for physicians' incomes?"
Hospitals, too, may be especially at risk in a
new government pay plan. "If all of a sudden
the only payer is Medicare, then there's going to
be a lot more red ink at current payment rates,"
argues Kanner. "And it can certainly affect hospitals. If they're getting only the Medicare rates,
which are lower than the commercial rates,
that's likely to affect the provider community
in major ways. I would expect them to get
significantly less revenue, and for that to have
an impact on what services they are able to
provide and, in some cases, on the viability
of the institutions."
"There obviously would be more work to be
done to try to get CMS to recognize the need
for higher payments in the existing system,
whether it's Medicare Advantage or fee-forservice. There also would be lobbying work to
try to get Congress to change some of the
payment arrangements," Kanner adds.

No matter how good a job Congress
does in terms of prescribing what it
wants, there still are hundreds and
hundreds of gray areas, question
marks, areas of discretion.
DR. PAUL RUDOLF, Arnold & Porter LLP

34 WASHINGTON LAWYER

JANUARY/FEBRUARY 2020

All this suggests a more high-profile role for the
little-known but influential Medicare Payment
Advisory Commission (MedPAC). A nonpartisan
legislative branch agency, the commission
advises Congress on how Medicare is running.
It regularly comments on proposed rules of the
CMS and produces reports and data on money
flows in the Medicare system. MedPAC's
emphasis is on keeping costs down.
"One thing that has stakeholders troubled is
that Medicare is one of the least favorable
payers," according to Zimmerman. "Any

Washington Lawyer - January/February 2020

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