Health law snag may cost hospitals

Push to correct child-drug pricing delayed in Senate

By Matt Viser
Globe Staff / November 25, 2010

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WASHINGTON — Partisan tensions on Capitol Hill are delaying efforts to fix an error in the federal health care law that could cost Children’s Hospital Boston and others like it millions of dollars in added drug costs.

Correcting the error would require changing just 47 words in the 1,880-page law, a task that a previous Congress might have accomplished in an afternoon. Instead, with Republicans fighting to repeal the health care bill rather than fix it and Democrats loath to acknowledge its flaws, months have passed with no resolution, and prospects for one in the lame-duck session are limited.

“We’re using expensive drugs for really sick kids,’’ said Joshua Greenberg, vice president of government relations at Children’s Hospital.

“What children’s hospitals are saying to the Senate is: This needs to be fixed, and it needs to be fixed this session.’’

The error was a simple and unintentional omission in the final, frenetic days of drafting the landmark legislation and reconciling House and Senate versions. Con gressional staff intended to allow children’s hospitals continued access to the portion of a federal program that offers below-market prices on 347 specific medicines for rare, life-threatening conditions. But that language was accidentally altered.

“It was a drafting error,’’ said a congressional aide familiar with the writing of the bill but not authorized to speak publicly.

“Everybody on every side of the issue thinks it should be fixed.’’

Senator Scott Brown, Republican of Massachusetts, has filed a standalone bill as a remedy, while Senator John F. Kerry has helped persuade top Democrats to make the change through an amendment to a bill addressing broader tax policies. The bill Kerry is supporting is expected to come up in the next few weeks, but advocates are worried that time is short in the session and Congress has several other high-profile items to grapple with.

“We don’t care what vehicle it’s included in, we just need it enacted immediately,’’ said James Kaufman, the vice president for policy at the National Children’s Hospital Association.

If these efforts fail, Children’s Hospital Boston officials say they will be forced to find a new way to fund the drugs for poor children with rare diseases, such as neurological disorders and severe juvenile arthritis.

That would be expensive. The Boston hospital, one of nearly 30 across the country with this problem, estimates the mistake will cost between $1.5 million and $3 million annually. Nationally, the problem costs children’s hospitals about $100 million annually, according to Kaufman.

Individual patients are unlikely to see an increase in the cost of care, unless they are uninsured and paying out of pocket. But hospitals could end up deciding not to offer certain types of coverage if it becomes too expensive, or could cut costs in other areas. And because the health care bill was passed earlier this year, some manufacturers are now going back to hospitals with steep retroactive bills.

Pharmaceutical Research and Manufacturers of America, a trade group representing the industry, declined to comment.

Soon after the error was discovered, the House swiftly passed legislation to correct the language, with little controversy and bipartisan support. But getting the fix through the Senate has proved to be much harder.

About a month after the health care bill was passed in March, officials from Children’s Hospital Boston approached Kerry’s office and asked for help in fixing it.

Kerry and several other Senate Democrats tried to attach the correction to a bill that would extend a series of individual and business tax measures that expired this year, including items such as a research and development tax credit. Republicans, however, opposed the tax legislation.

At that point, hospital representatives started looking for help across the aisle.

“We were directed, as everyone is these days, to get Republican support. You have to show bipartisan support,’’ said Greenberg, of Children’s Hospital Boston. “This is where Senator Brown stuck his neck out a little bit.’’

Brown was able to get seven other Republicans to sign onto his bill. But no Democrat so far has joined, making it unlikely to pass in a Democratic-controlled Senate.

Brown’s spokeswoman, Gail Gitcho, did not respond to requests for comment. When he introduced the legislation in late September, Brown said, “There is no cause for delay . . . Our nation’s children deserve that we come together and protect their access to medicines that will save their lives.’’

Brown opposes the health care bill as a whole but has also attempted to work across party lines to make targeted changes to the law.

“There’s no justification for delaying this tweak when lifesaving medicine for rare children’s diseases is at stake,’’ Kerry said in a statement.

“This is just a gut-level right or wrong where Washington needs to do the right thing.’’

Kerry has recently been working with Senator Sherrod Brown, an Ohio Democrat, and Senator Al Franken, a Minnesota Democrat, to drum up support for the fix. The trio is circulating a letter addressed to Harry Reid, Senate majority leader, asking him to bring up the issue soon.

Kerry said the best way to fix the error is through an amendment to current legislation, such as the tax extenders bill. In an attempt to gain some GOP support, Democrats have reduced the scope of the overall tax bill.

“There’s broad consensus,’’ Kerry said of the children’s hospitals fix.

“I’m very hopeful that there’s still time.’’

Matt Viser can be reached at