The first law of politics is the law of unintended consequences: The Affordable Care Act was not affordable, and the Inflation Reduction Act didn’t reduce inflation. Politicians can tell us about their good intentions all day long, but bills, regulations and other proposals should be evaluated on the basis of how laws will impact real Americans — like pharmacists and my patients — not on intentions.
The latest example is a bill called the Seniors’ Access to Critical Medication Act, a bill with a title and an intention that we can all support. The goal of the bill is ostensibly to make it easier for seniors to get their medications. But the devil, as always, is in the details.
The bill, known in Washington-speak by its ungainly acronym SACMA, aims to achieve this goal by making an exception — that is, a loophole — in the Stark Law, a longstanding federal ban on doctors referring patients to entities in which they or a family member has a financial stake. The purpose of the Stark Law and its importance for the integrity and trustworthiness of our health care system should be obvious: Without it, we would invite corruption into the medical profession and drive a wedge of distrust between people and their doctors. Congress should think twice before poking holes in the Stark Law.
But SACMA doesn’t just poke a hole in the Stark Law with a pin — it uses a bazooka. The bill is being sold as a carveout for cancer patients, but the proposed exception in the actual bill text would apply to all Medicare Part D drugs, all $130 billion worth of them, affecting 50 million American seniors. You could drive a truck through this loophole. The sheer scale of this new exception would lead almost inevitably to an increase in waste, fraud and abuse in the Medicare system. This would be particularly jarring because it comes at a time when Republicans in Congress just passed some of the most critical reforms to fight Medicare fraud in history, and CMS Administrator Dr. Mehmet Oz is taking historic action to make Medicare more efficient and root out fraud and duplication.
We know what sort of fraud this will encourage. In the absence of the Stark Law, some physicians will now have the incentive to prescribe the most expensive brand-name drugs, since there will no longer be any law forbidding them from making a profit from them. The result will be higher prices for seniors and for the taxpayer, at a time when just about everyone agrees we pay too much for prescription drugs in this country. Physicians take an oath to work in the best interest of their patients, and the overwhelming majority uphold their oaths faithfully. But medical fraud in all of its forms is nevertheless a fact of life, costing Americans more than $100 billion a year already. Medicare Part D already makes roughly $3.6 billion in improper payments each year; there can be no doubt this number would only go up if the Stark Law were undermined.
As a pharmacy owner, I see every day how critical my role is in protecting patients. SACMA would immediately cut pharmacists like me out of the prescription process for thousands, if not millions, of seniors, removing a trusted partner and one more safeguard against dangerous mistakes. This lack of oversight would lead to more errors, more drug interactions and therefore potentially catastrophic results for patients. No one is better educated or more dedicated than doctors, but even doctors make mistakes — especially now that so many are harried by a system that has them running on a treadmill of 15-minute appointments day after day.
Fortunately, these glaring problems with SACMA could easily be fixed. The bill would be much more defensible if it were narrowly tailored, say, to patients with diseases that render a trip to the pharmacy difficult or impossible, such as the cancer patients we are told are the bill’s intended beneficiaries. If Congress is going to start making exceptions to anti-corruption laws like the Stark Law, then they must keep them as narrow as possible. Otherwise, it’s patients who will pay the price.
Anti-kickback laws have been in place for decades for a reason. If Congress begins to undermine them, then the difference for our medical system, for taxpayers and especially for patients would be stark.
