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Questions hang over revamped DOT funding program

Public Works magazine...November 2012



Considerable uncertainty surrounds the ground rules for Transportation Infrastructure Finance and Innovation Act (TIFIA) funding for highway, rail, and intermodal projects over the next two years. Launched in 1998, the program leverages federal infrastructure investment with private investment via loans, loan guarantees, and credit. In addition to state and local DOTs, eligible applicants include transit operators, special authorities, and private entities.

Moving Ahead for Progress in the 21st Century (MAP–21), the federal surface-transportation funding program that was reauthorized in July 2012, increases TIFIA funding to unprecedented levels both in terms of total and per-project dollars. It also allows the U.S. DOT to finance up to 49% of reasonably anticipated eligible project costs — much, much more than the previous 33% maximum.

But state and local highway officials are questioning the agency’s interpretation of some MAP-21 changes, starting with such preliminary matters of what they ought to include in their letters of interest. Texas DOT Executive Director Phil Wilson says the notice of funding availability the U.S. DOT issued in July “subverts the central function of an application in the credit assistance process by improperly moving these functions into the letter of interest, expanding the letter of interest well beyond the content required under the new law.”
All projects must be funded

In the past, the U.S. DOT ranked projects based on selection criteria, weighted the relative merits of eligible projects, and funded those with the highest merit. Not all proposals made the cut.

Now, however, all projects that meet certain criteria must be funded if funds are available.
“Public benefit” up for grabs

The federal money can be used for all sorts of projects: highways, passenger rail, transit and intermodal, private rail facilities, modifications that facilitate intermodal transfer and access to port terminals, intelligent transportation systems, international bridges and tunnels, and intercity passenger bus or rail facilities and vehicles. Wilson believes MAP-21 eliminates the requirement to show a public benefit.

Some groups want more types of projects to be allowed, such as bicycle and pedestrian facilities. The National Housing Conference wants to expand eligibility to parking, roads, walkways, sewers, and parks that support transit development for affordable and mixed-used housing.

“What isn’t clear is what the threshold will be for ‘public benefit,’” says Transportation for America’s David Goldberg. “There’s no firm standard on how many spaces would need to be dedicated for transit users — nor is there a formal maximum parking deck size — nor is there a clear rule that the transit set-aside would have to be for the full 24 hours or if it could float depending on peak period demand. Our sense is that U.S. DOT is not going to provide hard guidance. In all likelihood it will be a case-by-case basis.”
Rate break for rural areas

While most proposals must have at least $50 million in total eligible project costs, MAP-21 lowers the requirement to $15 million for intelligent transportation systems and $25 million for rural infrastructure projects.

The typical TIFIA interest rate is equal to the U.S. Treasury Rate on the date of execution of the TIFIA credit instrument. MAP-21, however, allows 10% of funding to go to rural projects — those located in any area other than a city with a population of more than 250,000 inhabitants within the city limits — at half the Treasury rate.

Proposals must have a dedicated revenue source for repaying a loan. Projects have been supported by tolls, user fees, public-private partnerships or availability payments, real estate tax increments, interjurisdictional funding agreements, and room and sales taxes.

— Stephen Barlas is a Washington, D.C.-based freelance writer who covers regulatory issues, with a special emphasis on EPA.

Sen. Wyden’s Ascendency Causing Concern

Pipeline & Gas Journal...December 2012


The results of the presidential and congressional elections portend "more of the same" with regard to issues of interest to the gas transmission industry. Regulatory dockets already under way will continue along their current track.

Those dockets concern greenhouse gas emissions, the integrity management program and fracking. But the most significant result of the election may be legislative, meaning the retirement of Energy and Natural Resources Chairman Sen. Jeff Bingaman (D-NM). Sen. Ron Wyden's (D-OR) ascension to the chairmanship brings a legislator who has been sometimes critical of pipeline operations to a position where he can, to put it politely, cause trouble for the industry. But the biggest concern may be a person, not an issue.

Wyden has been an outspoken critic of some proposed Oregon pipeline projects, complaining about routes that would travel through sensitive areas, such as the Palomar project slated to run through Mt. Hood National Forest. That pipeline is on hold in part because an LNG terminal linked to the project filed for bankruptcy. A few days before the election, Wyden voiced opposition to the export of LNG from the U.S. to countries with which America has a free trade agreement (FTA). That has been legal for years. The Department of Energy rubber stamps such applications. So any restrictions would be a step backward. In fact, in the last Congress, many legislators pushed for more liberal DOE exports of LNG - for which there have been many applications - to non-FTA countries. The DOE closely examines those, and almost all of them are under review. Wyden also proposed amendments last summer that would have impeded construction of the Keystone XL pipeline.

Asked whether Wyden might pursue legislation giving the states more say in pipeline siting, Keith Chu, Wyden's press secretary, says, "Sen. Wyden has long said state and local governments should have a role in siting facilities that may impact local communities, but it’s too early to talk about what bills Sen. Wyden may pursue next year."

Wyden ascends to the chairmanship of the Energy Committee in a Senate that has a slightly larger Democratic majority than in the past Congress. The House remains in GOP hands and President Obama still occupies the Oval Office. Neither energy issues broadly nor pipeline issues specifically will be the first order of business in the capital where legislators and the president try to fashion some sort of compromise on the "fiscal cliff" the country faces on Jan. 1. That is the $500 billion combination of tax increases and spending cuts that go into effect if the two parties don't agree on some sort of deficit-reduction plan.

The need to come up with additional revenue certainly raises the possibility of higher taxes for the energy industry, primarily the producers. Jack Gerard, president of the American Petroleum Institute, says oil and gas producers pay an effective 41% corporate income tax rate. He says that is higher than the effective rate of 26% paid on average by all S&P industrials. He argues the major tax benefit oil companies enjoy is a cost-recovery deduction, which is available to all industries. "Our view is we should all be treated equal, so if there is a decision made that the U.S. should have cost-recovery provisions, it ought to apply to all industries."

Any elimination of deductions would not affect pipelines. The threat to gas transmission companies comes more from the possibility of an increase in the individual tax rate on dividends, says Martin Edwards, vice president at the Interstate Natural Gas Association of America (INGAA). Higher taxes on dividends would discourage some people from investing in pipeline companies which are attractive investments because of their relatively high dividends. Similarly, any change in the tax status of master limited partnerships (MLPs), a category into which many pipeline companies fall, could also hurt the ability of MLPs to attract capital.

The next Congress is unlikely to revisit the issue of pipeline safety, having passed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. That bill, signed by President Obama on Jan. 3, 2012, made no significant changes to the integrity management program although it did provide the Pipeline and Hazardous Materials Safety Administration (PHMSA) with a list of studies to do, and pipelines with some new information to collect and report.

Pharmacists Hope to Bill Under New Medicare ‘G’ Code

Pharmacy & Therapeutics...November 2012

Payment Would Be for Transitional Care After Hospital Discharge
Stephen Barlas


   

Will Medicare lock out pharmacists from its new post-hospital transitions payment program? That is not clear yet, and may not be for some time, although the Centers for Medicare and Medicaid Services (CMS) says it will establish a new "G" code for such payments in calendar 2013.

The new G code is the latest step by Medicare to tamp down on hospital readmissions, many of which are preventable, and all of which cost the federal government billions of dollars. In its 2007 Report to Congress: Promoting Greater Efficiency in Medicare, MedPAC, the quasi-government advisory group, found that, in 2005, 17.6 percent of admissions resulted in readmissions within 30 days of discharge, accounting for $15 billion in spending. MedPAC estimated that 76 percent of the 30 day readmissions were potentially preventable, resulting in $12 billion in spending. In the same report, MedPAC also found that the rate of potentially avoidable rehospitalizations after discharges from skilled nursing facilities was 17.5 percent in 2004.

The Medicare program has been increasingly concerned about preventable readmissions ever since the MedPAC report, as has Congress, which is why the Affordable Care Act (ACA) included a number of programs aimed at reducing readmissions, generally through smoothing the transition of a patient from hospital to home. We have written about a number of these programs, including the Partnership for Patients and Community-based Care Transitions Programs.

Now Medicare is upgrading further its incentives for post-hospital transitions care by establishing this new Healthcare Common Procedure Coding System (HCPCS) G-code. Typically, hospital physicians and docs in skilled nursing homes bill Medicare using Current Procedural Terminology (CPT) codes when they discharge a patient. So for example, there are hospital discharge management codes (CPT codes 99238 and 99239) and nursing facility discharge services (CPT codes 99315 and 99316) which capture the care coordination services required to discharge a beneficiary from hospital or skilled nursing facility care. The work relative values for those discharge management services include a number of pre-, post-, and intra-care coordination activities. But the full gamut of "post-care" services such as lifestyle adjustments and medication reconciliation and adherence lie outside what those discharge codes describe.

Theoretically, the patient's community primary care physician should be responsible for medication reconciliation, etc. But the CPT office visit codes the physician bills for a recently discharged patient only cover what are called "evaluation and management" services. They typically do not include the kind of services centered around easing a patient's transition into her home, and assuring everything is done to maintain her ostensibly stabilized post-discharge condition so that she does not have to go right back to the hospital or nursing home.

The transition services encapsulated in this new G code include reviewing a patient's medical record and his diagnostic test results, evaluating psychosocial status and adjusting a plan of care. The CMS envisions that these services would be provided with the physician or nonphysician not necessarily having to see the patient, as is the case with a physician billing an E&M code. So it follows, one would think, that the G code will be billed by someone other than a physician.

Moreover, the transition services laid out in the G code--one could argue they are the key services in the G code, with regard to preventing readmission--include things that a pharmacist is best able to do, such as an assessment of a patient's understanding of the medication regimen and undertaking medication reconciliation and providing medication therapy management.

Moreover, the kinds of nonphysician providers hospitals would like to see eligible to billing G codes, people employed by the hospital, clearly do not have the expertise to perform the medication tasks. These are job descriptions such as medical assistants, care navigators, social workers and “health coaches” who, the American Hospital Association, "are often the team members telephoning patients to assist with follow-up appointments, prescription refills, insurance inquires and numerous other social issues."


"NCPA contends that community pharmacies are already performing many of these transitions of care related activities and should be compensated for them, specifically medication reconciliation," says John M. Coster, Ph.D., R.Ph., Senior Vice President of Government Affairs, National Community Pharmacists Association (NCPA). "CMS currently recognizes community pharmacies as a provider under certain circumstances as pharmacies currently have the ability to bill G codes for a limited number of services. CMS should allow pharmacies who participate in the Part B program to bill for transitional care management services that involve medication therapy."

So it would seem that Medicare might explicitly designate pharmacists as among the "physicians or qualified nonphysician practitioners" eligible to bill the new G code. The proposed rule issued this past summer does not do that.

With that wiggle room in mind, the American Pharmacists Association wants the CMS to consider if it is necessary to create a different new G-code to accommodate post-discharge transitions of care services provided by a pharmacist, especially when a pharmacist is working in or contracting with evolving integrated patient care models (including patient centered medical homes and accountable care organizations) and community pharmacy settings.