April 21, 2023: National Advocacy Update

A protracted period of upward volatility in medical liability premiums has extended into a fourth consecutive year and suggests a hard insurance market has spread across many states making it difficult for physicians to find affordable coverage, according to an analysis (PDF) issued this week by the AMA. The prevalence of year-to-year increases in medical liability premiums between 2019 and 2022 has not been observed in two decades. 

“There is a growing consensus that a hard medical liability insurance market exists in a considerable number of states and is slowly spreading across the U.S. as more physicians face higher insurance premiums,” said AMA President Jack Resneck Jr., MD. “For physicians who can still obtain coverage in a hard market, the skyrocketing costs may force physicians to relocate away from certain high-cost states or drop certain critical services that raise their liability risk. These tough choices can lead to reduced access to care for patients.”

In the wake of the last hard market during the early 2000s, medical liability reform proved to be a key contributor in stabilizing medical liability insurance premiums. However, over the past decade, some of those reforms have been overturned in various states, opening the door for increased claims severity and frequency. Together with state medical societies, the AMA is fighting to preserve and expand both traditional and innovative medical liability reforms to preserve premium stability and meet the needs of millions of Americans who need affordable, accessible medical care. For more information on AMA solutions to reshape the current medical liability system to better serve both physicians and patients, please read Medical Liability Reform—Now! (PDF). 

Read the full press release to learn more. 

The AMA and over 100 other organizations representing physicians and health care professionals recently sent a letter (PDF) to Cigna requesting immediate rescission of its policy requiring submission of office notes with all claims including evaluation and management (E/M) Current Procedural Terminology (CPT®) codes 99212, 99213, 99214 and 99215 and modifier 25 when a minor procedure is billed. Cigna recently notified network providers that payment will be denied for E/M services reported with modifier 25 if records documenting a significant and separately identifiable service are not received with the claim.

This policy will place enormous administrative burdens on physician practices, particularly given Cigna’s proposed data submission methods (dedicated fax number and email address). The signatory organizations urged Cigna to instead collaborate on an educational initiative promoting correct use of CPT modifier 25, including distribution of materials such as a March 2023 CPT Assistant article (PDF) on this topic. The AMA will keep the Federation of Medicine apprised as to Cigna’s response to this advocacy effort. 

Register for this webinar on May 17 at 11:00 a.m. Central.  

Patients deserve care led by physicians—the most highly educated, trained and skilled health care professionals. Through research, advocacy and education, the AMA vigorously defends the practice of medicine against scope of practice expansions that threaten patient safety.  

Join us for this webinar to hear more about the importance of these issues to organized medicine from the AMA, the Medical Association of Georgia and Washington State Medical Association. We’ll discuss the unique challenges states encounter when facing multiple scope bills, how to overcome these issues and ways physician advocates can get involved. 

Moderator: 

• Sandra Adamson Fryhofer, MD, chair, AMA Board of Trustees 

Speakers: 

• Kim Horvath, JD, senior attorney, AMA Advocacy Resource Center 
• Bethany Sherrer, JD, MBA, MHA, general counsel and director, Government Relations, Medical Association of Georgia 
• Sean Graham, director, Government Affairs, Washington State Medical Association 

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) took the next step in implementing President Biden’s executive order to protect access to reproductive care last week, issuing a proposal to modify the HIPAA Privacy Rule to strengthen reproductive health care privacy. 

These proposals aim to strengthen privacy protections by prohibiting any use or disclosure of reproductive health information when the reason is either:  

• Reproductive health care that is sought, obtained, provided or facilitated in a state where the health care is lawful and outside of the state where the investigation or proceeding is authorized. 
• Reproductive health care that is required by federal law, regardless of the state in which such health care is provided, such as when miscarriage management is required under Emergency Medical Treatment and Labor Act (EMTALA) to stabilize the health of the pregnant individual.  
• Reproductive health care that is provided in the state where the investigation or proceeding is authorized and is permitted by the law of the state in which such health care is provided. 

How it would work

Physicians would be required, when they receive a request for information potentially related to reproductive health care, to obtain a signed attestation that the use or disclosure is not for a prohibited purpose. The AMA is continuing to review the proposal and considering opportunities to strengthen OCR’s proposals while reducing physician burden. This includes removing the requirement that physicians request an attestation and instead receive one proactively. The AMA is also investigating how OCR can reduce confusion and concerns with physicians being considered an “information blocker” if they withhold reproductive health information.  

Finally, if the proposed rule is adopted and made part of HIPAA, it will preempt any state law that imposes a less stringent privacy standard. HIPAA preempts state law that is contrary to a HIPAA privacy standard unless, among other exceptions, the state law is more stringent than the contrary HIPAA privacy standard. 

In response to advocacy from the AMA and organized medicine about the ongoing impacts of the COVID-19 public health emergency (PHE), the Centers for Medicare & Medicaid Services (CMS) will continue to allow physicians and group practices to apply for a Merit-based Incentive Payment System (MIPS) Extreme and Uncontrollable Circumstances hardship exception to avoid up to a -9% MIPS penalty in 2025 based on 2023 performance. The exception will not be automatic, and interested physicians and groups must actively request reweighting of one or more MIPS performance categories due to the COVID-19 PHE. Requesting reweighting of all four MIPS performance categories will avoid a MIPS penalty in 2025. CMS expects to release the hardship exception application in spring 2023.  

This is a big relief for physicians and their patients because CMS estimated in the 2023 MIPS final rule that up to one-third of MIPS eligible clinicians would have received a penalty due to the increasingly stringent requirements to participate in MIPS in 2023. It is also likely that small, rural and practices serving underserved populations would have been disproportionately impacted by these penalties. 

The HHS Office of the National Coordinator for Health Information Technology (ONC) published a proposed regulation to continue implementation of the 21st Century Cures Act and to enhance the ONC Health IT Certification Program to advance interoperability, improve transparency, and support the access, exchange and use of electronic health information.  

ONC’s proposal adopts the United States Core Data for Interoperability (USCDI) Version 3 as a standard within the Certification Program and provides enhancements to support information sharing under the information blocking regulations. The proposed rule also incorporates new Conditions and Maintenance of Certification requirements for health IT developers under the certification program and makes several updates to certification criteria and implementation specifications recognized by the program. In addition, ONC proposes new policies to promote greater trust in the predictive decision support interventions (DSIs) used in health care, including helping users to determine whether the predictive DSI is fair, appropriate, valid, effective and safe, and to enable market competition. 

More resources on the proposed regulation are available online. 

The Centers for Disease Control and Prevention (CDC) Office of Public Health Data, Surveillance, and Technology published the "Public Health Data Strategy (PHDS)" in April, which outlines the data, technology, policy and administrative actions essential to exchange critical core data efficiently and securely across health care and public health. The PHDS is part of CDC’s larger Data Modernization Initiative, which is focused on moving toward more equitable public health by making data more complete, higher quality, more accessible and more representative of all people. 

The data strategy includes two-year milestones around four public health data goals: 

• Strengthen the core of public health data 
• Accelerate access to analytic and automated solutions to support public health investigations and advance health equity 
• Visualize and share insights to inform public health action 
• Advance more open and interoperable public health data 

For providers and labs, the strategy will help identify and adopt ready-to-use tools that enable easier and faster sharing of critical core public health data. 

On April 17, the Biden administration finalized (PDF) the 2024 Notice of Benefit and Payment Parameters for marketplace plans. The rule includes several proposals designed to expand access, advance health equity and make health insurance plans more affordable, including: 

• Adding a new special enrollment period for those who lose Medicaid or CHIP coverage. 
• Adding federally qualified health centers (FQHCs) and family health providers to essential community provider categories. 
• Adding mental health facilities and substance use disorder services as two new benefit categories. 

The rule will also limit the number of non-standard plans and lower user fees in hopes of driving down premiums. The AMA has been urging the Biden administration to move forward on many of the issues. In comments (PDF) on the proposed rule, the AMA expressed support for many of the now-finalized policies to ease automated reenrollment, avoid coverage gaps, expand network adequacy requirements and allow for door-to-door enrollment assistance, all of which align with AMA priorities to expand access to and reduce disparities in health care. More information on the final rule can be found in the HHS press release or CMS fact sheet. 

On April 10, the AMA sent a letter (PDF) to the U.S. Department of Agriculture providing comments on the proposed revisions to the "Child Nutrition Programs: Revisions to Meal Patterns Consistent with the 2020 Dietary Guidelines for Americans." Overall, the AMA applauded the Child Nutrition Program’s primary goal of revising the program to align with the current Dietary Guidelines for Americans while providing flexibility in the variety and choices offered in school meals. However, the AMA provided more detailed comments and suggestions on improving the nutritional density and limiting the fat, added sugar, and sodium content in school-based food programs. The AMA further recommended accommodating food substitutions based on cultural and medical needs and preferences, and proposed increased support for initiatives to improve access to healthy, affordable foods and the promotion of lifelong healthy diet and lifestyle choices.   

On April 11, the AMA commented (PDF) on the Office of Management and Budget (OMB) initial proposals from the Federal Interagency Technical Working Group on Race and Ethnicity Standards proposed revisions of OMB’s 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. Overall, the AMA supported the proposed revisions, but offered some additional considerations to further enhance race and ethnicity data standards. In addition to other proposed improvements, the AMA: 

• Advocated for the addition of a Middle Eastern and North African category. 
• Recommended that naming conventions and burdens of data collection should be made in close consultation with people from the populations that data are being collected from. 
• Noted that additional resources should be allocated to support those who would be most burdened by the new data collection standards and those who historically have had the fewest resources.

On April 17, the AMA submitted comments (PDF) to the Federal Trade Commission (FTC) on a proposed rule that would ban non-compete clauses in most employment contracts. The AMA expressed deep concern that there are employed physicians in the U.S. who are bound by unreasonable, coercive and abusive non-compete clauses in their employment contracts.

The AMA also explained that the views on non-competes differ across AMA’s large and diverse membership, whereby physicians who are employers and owners of physician practices or leaders in integrated delivery systems may favor the use of reasonable non-competes, while physicians who are employees of practices, hospitals, health systems or other organizations may have concerns about being subject to overly restrictive non-competes that limit employment opportunities and may impact patient access to care. Current AMA ethics policy categorically opposes the use of unreasonable non-competes; however, it does not call for an outright ban on non-competes.

Therefore, the AMA did not support the proposed rule in its current form, but urged the FTC to challenge unreasonable, coercive or abusive non-competes that bind employed physicians. The AMA also urged the FTC to research the unique characteristics of physician non-competes in diverse markets and consider ways that state statutes have endeavored to restrict the use of physician non-competes. 

On April 6, the AMA sent a letter (PDF) urging the U.S. Citizenship and Immigration Services in coordination with the Department of Labor to allow for increased flexibility, during public health emergencies, in the worksite requirements governing where international medical graduates (IMGs) in H-1B status can practice. 

In the letter, the AMA expressed how nearly 21 million people live in areas of the U.S. where foreign-trained physicians account for at least half of all physicians. These communities, which also had lower vaccination rates, higher hospitalization rates and higher death rates during the COVID-19 pandemic, were unable to fully utilize their IMG physician workforce to combat the pandemic due to worksite requirements that restrict IMGs in H-1B status to a particular practice location.  

During the pandemic, due to the restrictions associated with location condition applications (LCAs), IMG physicians were also unable to utilize temporary expedited physician licensing, preventing them from helping combat workforce shortages and providing urgent access to medical care for underserved patient populations.  

For these reasons, the AMA urges the Administration to allow temporary provisions for H-1B LCAs to make worksite requirements more flexible for IMG physicians during public health emergencies and support expedited licensing inclusions for IMG physicians in H-1B status during public health emergencies. 

In an April 12 letter (PDF), the AMA asked HHS, through its Substance Abuse and Mental Health Services Administration (SAMHSA), to prioritize education and outreach activities for use of the 988 Suicide and Crisis Lifeline to at-risk communities, particularly seniors, LGBTQ+ youth and veterans. 

In the letter, the AMA expressed that: 

• Men over age 65 face the highest risk of suicide, while individuals 85 and older (regardless of gender) are a close second. 
• LGBTQ+ youth were more than twice as likely to have attempted suicide as their heterosexual peers. 
• The unadjusted suicide rate among veterans was 31.7 per 100,000, far surpassing any grouping by age.  

Given the priority the Department of Veterans Affairs (VA) has placed on preventing suicide, the AMA also recommended that SAMHSA, in addition to conducting its own outreach efforts on the 988 system, should explore opportunities to coordinate its efforts with the VA. 

The recording for the latest webinar in the AMA’s Advocacy Insights webinar series is now available.  

94% of physicians surveyed by the AMA in 2022 said that prior authorization delays access to necessary care, and even worse, 33% of physicians reported that prior authorization has led to a serious adverse event for a patient in their care. Physicians know they spend an inordinate amount of time dealing with the hassles of prior authorization, but when patients are being harmed because of it—it is clear something has to change. 

AMA President Jack Resneck Jr., MD, hosted a webinar to dig further into the current state of prior authorization and how the AMA is working to fix it. Heather McComas, PharmD, director, Administrative Simplification Initiatives, AMA, and Emily Carroll, JD, senior legislative attorney, Advocacy Resource Center, AMA, joined Dr. Resneck to talk about the latest reform efforts and how you can get involved. You can also hear about results of the AMA’s latest prior authorization survey conducted at the end of 2022.

• April 21, 2023: Advocacy Update spotlight on Medicare payment legislation