April 1, 2022: National Advocacy Update

When Congress passed the massive $1.5 trillion spending bill earlier this month that assured telehealth flexibilities for the bulk of 2022, the lawmakers left out nearly $16 billion in COVID-19 relief funds that had been included in an earlier version of the omnibus bill.

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Now the AMA is warning that, while COVID-19 hospitalizations and deaths are trending downward and pandemic restrictions have been loosened, more congressional funding is needed to help ensure such progress is sustained.

“If we are to continue to minimize the impacts of COVID-19 on our patients and our health care system, proper funding for COVID-19 mitigation measures and treatment options is critical,” AMA Executive Vice President and CEO James L. Madara, MD, wrote in a letter to congressional leaders (PDF). “Otherwise, programs offering COVID-19 vaccinations and boosters will be forced to wind down and our ability to secure additional booster doses or possible variant-specific vaccines will be in question.”

Information from Europe and U.S. wastewater surveillance “indicate that we are very likely to begin seeing an increase in COVID-19 cases within the next few weeks as the BA.2 Omicron subvariant begins to constitute a greater share of case numbers at home and abroad,” Dr. Madara wrote. 

“Despite this subvariant’s increased transmissibility, we have the tools available to help limit the spread and limit additional severe illness and death from COVID-19. To do so, however, we must realize that the threat of COVID-19 is not over and provide appropriate funding to ensure the tools we have remain as widely available and accessible as possible.”

Read the full article by Kevin B. O’Reilly, AMA news editor, for more details.

At the end of 2021, Congress passed legislation extending a temporary halt of the Medicare sequester. The moratorium was part of the relief package for physicians and other health care providers and facilities due to the COVID-19 public health emergency. The moratorium was scheduled to end on Dec. 31, 2021. The law extended full sequestration relief until March 31, 2022. On April 1, 2022, physicians receive only partial relief from Medicare sequestration as a 1% Medicare sequester goes into effect for the next three months. Then on July 1, there will be a return of the full 2% Medicare sequester.

The AMA and other stakeholders sent a letter (PDF) to Congress asking that sequestration relief be extended through the end of the public health emergency. However, there is little support for a broad proposal on Capitol Hill. The phased in return of sequestration is a signal of congressional intent that relief in the form of moratoriums will no longer be forthcoming.

The AMA will continue to work with Congress to create a fair Medicare physician payment system (PDF). 

The Centers for Medicare & Medicaid Services (CMS) has released new guidance on Virtual Credit Cards (VCC) and electronic funds transfer (EFT)/electronic remittance advice (ERA) (PDF) payment transactions, as well as business associate compliance (PDF) with the Health Insurance Portability and Accountability Act’s (HIPAA) Administrative Simplification requirements. The AMA has long advocated to CMS on these issues, most recently organizing a sign-on letter (PDF) from the Federation to CMS about percentage-based EFT fees.

CMS’ new guidance confirms the following policies for which the AMA has historically advocated:  

• VCCs may be used for payment but health plans may not force physicians to accept them. 
• As business associates to health plans, payment vendors must comply with the HIPAA-mandated transactions. 
• EFT value-add services may "adversely affect" the HIPAA-mandated standard transaction and thus health plans may not force providers to accept them from a vendor as a condition of receiving electronic payments. 

Physicians should review the new guidance and talk to their health plans about any services they are currently receiving that they do not want. Physicians should distinguish between fees their own business associates may provide and fees the health plan requires. Additionally, physicians filing Administrative Simplification Enforcement and Testing Tool (ASETT) complaints should be sure to name the health plan in their complaint, as the health plan is ultimately responsible for compliance with HIPAA.

The AMA will continue to monitor additional developments on this issue and provide updates to the Federation.

On March 24, the Cannabidiol and Marihuana Research Expansion Act (S.253), sponsored by Senators Feinstein (D-CA), Grassley (R-IA) and Schatz (D-HI), passed the Senate with unanimous support.  

Currently, both marijuana and cannabidiol (CBD) containing more than 0.3% delta-9 tetrahydrocannabinol (commonly known as THC) are classified as Schedule I drugs. As a result, medical research is subject to stringent regulations that can impede the potential development of safe and effective cannabinoid-based medications. 

Few marijuana-derived products have been FDA-approved and there is little available information about their interactions with other medications, appropriate doses or delivery mechanisms. This has left physicians and patients without the evidence needed to understand the health effects of these products and make sound clinical decisions regarding their use. 

The goal of the Cannabidiol and Marihuana Research Expansion Act is to ensure that research on CBD and other potentially beneficial marijuana-derived substances is based on sound science while simultaneously reducing the regulatory barriers associated with conducting research on marijuana.

The AMA strongly supports this legislation and will continue to advocate for its passage in the House of Representatives before the end of the 117th Congress.

On March 29, the House of Representatives voted 414 to 5 in support of H.R. 2954, the Securing a Strong Retirement Act, commonly referred to as SECURE 2.0. Within this comprehensive, bipartisan legislation are crucial provisions supported by the AMA dedicated to helping young physicians simultaneously pay off their student loans and save for retirement.

The annual cost of medical school continues to rise and physicians, in particular those entering residency or fellowship, are often forced to decide between paying off their extensive student loan debt and saving for retirement. To help alleviate this unfair situation that affects both physicians and millions of other Americans, a bipartisan, bicameral collection of federal elected officials introduced the Retirement Parity for Student Loans Act (H.R. 2917/S. 1443). This legislation permits 401(k), 403(b), SIMPLE IRA and governmental 457(b) retirement plans to make matching contributions to workers as if their student loan payments were salary reduction contributions. Qualified student loan payments are broadly defined under the legislation as any indebtedness incurred by the employee solely to pay qualified higher education expenses of the employee. Under this voluntary proposal for employers, graduates who cannot afford to save money above their student loan repayments would no longer be forced to forego the important employer match for retirement contributions. Senate Finance Committee Chairman Ron Wyden (D-OR) introduced S. 1443, while the House companion bill, H.R. 2917, was led by Representative Danny Davis (D-IL), chairman of the Ways and Means Subcommittee on Worker and Family Support.

Recognizing the strong bipartisan support for this measure, Ways and Means Committee Chairman Richie Neal (D-MA) and Ranking Member Kevin Brady (R-TX) worked together to ultimately include the Retirement Parity for Student Loans Act within Section 111 of H.R. 2954, the Securing a Strong Retirement Act. AMA wrote letters in support of H.R. 2917 (PDF) and S. 1443 (PDF) shortly after their respective introduction in April 2021 and applauds the House of Representatives for passing this legislation as part of a larger retirement reform bill. AMA will also continue to work to advance this bill in the Senate before the end of the 117th Congress.

The AMA and 45 national medical specialty organizations urged (PDF) the Centers for Medicare & Medicaid Services (CMS) not to disrupt physician-led, team-based care in the facility setting and to revise the split or shared visit policy previously finalized to allow the physician or qualified health professional (QHP) who is managing and overseeing the patient’s care to bill for the visit.

Beginning in 2023, only the physician or QHP who performs more than 50% of the time of the total visit can bill the split or shared visit. This policy would drastically disrupt team-based care and interfere with the way care is delivered in the facility setting. There is significant variability in how much time it takes to perform elements of the visit based on the level of training and expertise of the physician and QHP. The medical decision-making directing the management of the patient’s care determines the course of treatment for the patient but it typically does not require the most time. The AMA strongly recommends that CMS propose an alternative policy in the CY 2023 Medicare Physician Payment Schedule proposed rule that allows physicians or QHPs to bill split or shared visits based on time or medical decision-making. Doing so will allow CMS to seek public comment from physicians and QHPs to ensure that the revised policy does not have any unintended consequences for team-based care and patients.

The AMA recently submitted comments (PDF) in response to the Office of the National Coordinator for Health Information Technology’s (ONC) request for information on electronic prior authorization (ePA). ONC is the federal coordinating entity that certifies and promotes the use of health information technology (health IT). Along with CMS, the two agencies are considering policies to address widespread problems with prior authorization (PA). The AMA’s annual research (PDF) continues to show that PA harms patients, delays care and burdens physicians.

The AMA’s comments reflect an appreciation for the government’s efforts to address PA issues but stress that simply automating PA through the use of technology will not result in needed PA reform. In addition to ePA, the AMA urges the federal government to examine its role in reducing PA volume, increasing transparency in payers’ PA criteria and minimizing repetitive PA requirements. Furthermore, while technology can reduce delays in the PA process, the standards ONC is considering are not sufficiently mature and lack the necessary testing to support ePA goals. The AMA suggests a two-pronged approach—emphasizing the importance of system-wide PA reform while emphasizing the need for ePA technology to be tested in real-world settings across medical facilities of various sizes and specialties. Moreover, the AMA strongly cautions CMS and ONC from requiring physicians to use ePA before it is shown to reduce patient harm, provide a return on physician investment, and clearly reduce burden for physician practices.

In addition to these formal comments, the AMA represented physicians’ interests in the ONC Health Information Technology Advisory Committee’s task force that provided input and recommendations to inform future rulemaking in this area. The task force’s final report (PDF) largely aligns with the AMA’s submitted comments and echoes the need for ePA technology to be sufficiently tested across all practice settings and service types and demonstrate value across the health care system before any requirements to use ePA are imposed on physicians. While ONC may not ultimately accept all of the task force’s recommendations, the report strongly suggests the direction of any future federal regulatory activity. 

The AMA and national medical specialty organizations urged (PDF) the Health Resources and Services Administration (HRSA) to reopen the reporting period 1 to applicable Provider Relief Fund (PRF) recipients who did not report by the Nov. 30, 2021, deadline. Physician practices that do not report by the reporting deadlines are subject to the recoupment of the funds they received.

The AMA has heard that a number of practices were unaware of the reporting requirement or the deadline; additional efforts to garner more responses would allow those practices to keep the PRF funds they received. The underreporting appears to have particularly impacted small and rural practices, which are often under-resourced while providing critical health care services. The AMA asked to work with HRSA in a targeted outreach campaign to the remaining practices that have yet to respond and will continue to update our members on any developments.

On March 21, the U.S. District Court for the District of Columbia (DDC) held a hearing on the AMA/American Hospital Association (AHA) lawsuit challenging a narrow provision of the No Surprises Act Interim Final Rule (IFR) that implemented the Independent Dispute Resolution (IDR) process for resolving payment disputes between health plans and physicians/facilities. The provision being challenged is the IFR’s requirement that IDR entities (arbiters) presume that the Qualifying Payment Amount (QPA)—which is essentially the median in-network rate—is the appropriate out-of-network payment amount unless a party submits credible information that clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate. This rebuttable presumption weighs in favor of health plans. The AMA/AHA argue that the federal Departments (Health & Human Services, Labor, Treasury and Personnel Management) that issued the IFR acted contrary to law and beyond their statutory authority by mandating a presumption in favor of the QPA.

The AMA/AHA lawsuit is substantively similar to the lawsuit brought by the Texas Medical Association in the U.S. Federal District Court for the Eastern District of Texas. In February, that court found in favor of TMA and vacated the provisions in the IFR that weighted the IDR process in favor of health plans. Of note, for the purposes of the DDC hearing, the DDC Judge combined the AMA/AHA lawsuit with a similar lawsuit brought by the Association of Air Medical Services (AAMS), although AAMS is also challenging a separate IFR involving the methodology of how the QPA is calculated. Prior to issuing a ruling, the DDC Judge has asked all parties to this case to submit supplemental briefs on the issues raised during the hearing. A decision is not expected until after mid-April.

Register for a webinar on April 21 at 11:30 a.m. Central time, “AMA Advocacy Insights webinar series: Out-of-network payment process under the No Surprises Act,” and stay tuned for an upcoming toolkit from the AMA on the payment process.

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