June 26, 2020: National Advocacy Update

The House and Senate voted on competing police reform bills this week in response to weeks of nationwide protests against racism and police brutality that resulted in the deaths of George Floyd in Minneapolis on May 25 who died while restrained by police, Breonna Taylor and David McAtee in Louisville who were shot and killed by police in separate incidents and other well-publicized deaths of African Americans during police encounters in recent years.

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H.R. 7120, "the Justice in Policing Act," drafted exclusively by Democrats, would ban chokeholds and no-knock warrants in federal drug cases, establish a national police misconduct database, prohibit chokeholds, and require body cameras to be used. It would also limit qualified immunity for police officers to make it easier to sue police and seek judgment against their personal assets—something Democrats argue is key to holding police officers accountable for misconduct, but which most Republicans oppose. H.R. 7120 passed the House of Representatives on June 25 largely along party lines by a vote of 236 to 181.

Senate Republicans, led by led by Sen Tim Scott (R-SC), the only African American Republican in the Senate, introduced S. 3985, the "JUSTICE Act." This legislation would require additional disclosures about the use of force, codify reporting requirements on the use of no-knock warrants, provide incentives for a chokehold ban, establish a grant fund for police body cameras and make lynching a federal crime.

Police reform legislation has emerged as a highly charged partisan issue with vitriolic statements from both sides. Senate Democrats demanding legislation closer to H.R. 7120 have decided to filibuster and not allow the Senate to begin debate and consider amendments to the Senate Republican bill. Largely along party lines, the motion to begin debate on S. 3985 failed on June 24 by a vote of 55-45 – short of the 60 votes needed. With the Senate nearing a two-week July recess and another COVID-19 stimulus bill likely on the agenda when they return, the partisan standoff risks pushing police reform legislation off the agenda until after the November elections.

We will continue to closely follow police reform legislation and seek opportunities for constructive engagement with Members of the House and Senate to advance AMA policy.

This week, CMS announced that physicians will have the option to opt-out completely or partially from the 2020 MIPS program by completing a hardship exemption application and indicating it is due to the COVID-19 public health emergency (PHE) (PDF). Individual clinicians and group practices have until Dec. 31, 2020 to complete the hardship application. CMS plans on providing physicians with a couple of options on the hardship exemption application. For example, a practice may submit a hardship application and indicate that they do not want to be scored on Cost and Quality and have their score calculated based on just Promoting Interoperability and Improvement Activities. Alternatively, practices may submit a hardship application and opt-out of all four performance categories and be held harmless from a 2022 payment adjustment. Submitting any MIPS data to CMS will override the hardship exception application and physicians will be scored on their submission.

CMS used AMA's recommendation to create flexible reporting options in 2020 with the option to reweight any or all the MIPS performance categories. The flexibilities should assist with allowing practices to focus their attention on caring for patients during the pandemic and reduce administrative burden. The AMA will continue to monitor the impact COVID-19 is having on practices and advocate to CMS for the appropriate relief and to ensure CMS liberally grants hardship requests due to the COVID-19 PHE.

The CMS QPP.CMS.GOV website is in the process of being updated with the 2020 policy and should reflect the announcement along with additional educational materials in a couple weeks. The information currently posted on the website is regarding the 2019 MIPS COVID-19 policy. CMS has also indicated that additional information on MIPS COVID-19 policy will be included in upcoming rulemaking.

In comments sent to the Drug Enforcement Administration (DEA), the AMA commended the agency for seeking input on changes needed to the rules governing electronic prescribing of controlled substances (EPCS) and urged their immediate modernization. Ten years after the DEA issued its EPCS interim final rule, only 32% of controlled substances are prescribed electronically and a similar percentage of physicians who prescribe other medications electronically have implemented EPCS, according to the Office of the National Coordinator for Health Information Technology. Physicians have expressed great frustration that they can prescribe other medications electronically, but do not have the capability to adopt EPCS systems that will be integrated with their other electronic prescriptions, electronic health record systems, state prescription drug monitoring programs and practice workflows. They are also concerned that EPCS adoption would require them to absorb significant additional costs.

AMA comments especially focused on the need to change the DEA standards for multifactor authentication as the most important barrier to more widespread adoption of EPCS. Although multifactor authentication does increase EPCS security, rigid and burdensome biometrics requirements in the 2010 DEA regulations preclude physicians from deploying user-friendly devices already found in their practices to satisfy these requirements. Instead of using laptop computers and smartphones with fingerprint scanners, facial recognition, or other biometric technology, for example, they must use technology that has been specifically reviewed by the DEA for compliance with its EPCS requirements.

During the COVID-19 public health emergency, problems arising from the DEA requirement that biometric devices be co-located or built into the computer being used for EPCS have been exacerbated. Quarantine and social distancing guidance that has led many physicians to work from their homes or in alternative locations away from the technology in their regular medical offices means that even fewer physicians have access to EPCS.

The AMA also noted that technical advancements can improve the confidentiality, integrity and accessibility of electronic prescribing while also promoting more effective fraud detection. The AMA strongly urged the DEA to act quickly to reduce EPCS regulatory complexity that detracts from technological innovation in health care.

The AMA and 78 state and specialty societies signed onto a letter that urges the Department of Veterans Affairs to amend a recent directive (Directive 1899) that circumvents state scope of practice laws for non-physician health care professionals in 32 specialties. Directive 1899 allows VA health care professionals to practice across state lines and establishes new policy allowing VA health care professionals to operate within the full scope of their license, registration or certification. A memorandum that was released with the Directive also encourages all VA medical facilities to allow Certified Registered Nurse Anesthetists (CRNA) to practice without physician oversight during the national health emergency.

The letter urges the VA to amend Directive 1899 to defer to state scope of practice laws and to rescind the Memorandum as it relates to encouraging all VA medical facilities to allow CRNAs to practice without physician oversight during the national health emergency.

The Office of the National Coordinator for Health Information Technology (ONC) recently released a final rule implementing regulations on entities who are subject to information blocking regulations. Physicians, electronic health record (EHR) vendors and health information exchanges (HIE/HIN) and networks are among those considered "actors" and required to comply with the information blocking regulation. This regulation goes into effect Nov. 2.

The OIG proposed rule seeks comment on several aspects of EHR vendor and HIE/HIN information blocking, including an approach to enforcement, considerations when determining civil monetary penalties (CMP) and an enforcement time frame. While the Office of the Inspector General (OIG) does have authority to investigate physician information blocking practices, the law does not provide the OIG the authority to levy CMPs on physicians. HHS has signaled that future rulemaking will address physician disincentives for information blocking.

The AMA's comments focus on five main areas:

• Information blocking enforcement time lines—the AMA is urging the OIG to provide all actors no less than six months of discretionary enforcement after the final rule's effective date in order to prioritize education and relieve pressure of compliance due to the COVID-19 pandemic.
• Lack of enforcement clarity—The AMA is seeking additional guidance related to the OIG's definition of "intent" and "innocent mistakes," if health plans will also be considered actors and factors that could lead to providers being considered HIE/HINs.
• Lack of guidance and resources—the AMA is urging the OIG to develop resources in consultation with ONC to help clarify its approach to information blocking enforcement.
• Factors to consider in determining CMPs—The AMA is urging the OIG to consider as a mitigating circumstance, and basis for CMPs, challenges faced by Actors as a result of the COVID-19 pandemic.
• Applicability of OIG investigations to physicians—The AMA strongly supports the OIG's consideration of current and well-established disincentives that already discourage information blocking, including Health Insurance Portability and Accountability Act (HIPAA) and the Centers for Medicare & Medicaid Services' (CMS) Promoting Interoperability Program (PI) information blocking attestations.

Physicians on the frontlines of treating COVID-19 patients are grappling with a unique level of psychological strain that is expected to contribute to burnout and other serious mental health issues. In response to the growing mental health pressures, the AMA worked with Representatives Raja Krishnamoorthi (D-IL), John Katko (R-NY) and Frederica Wilson (D-FL) to introduce H.R. 7255, the Coronavirus Health Care Worker Relief Act.

This bipartisan bill authorizes the Secretary of HHS to make grants to heath care employers to either establish or expand programs dedicated to promoting the mental wellness of all health care workers, especially physicians, treating COVID-19 patients. The legislation also mandates HHS conduct, via the Agency for Healthcare Research and Quality (AHRQ) and in consultation with national medical professional organizations, a multi-year study on health care worker mental health and burnout. This comprehensive study will assess and identify the factors that contribute to poor mental health and burnout, barriers to accessing treatment and the implications of these dual issues on the health care system and patient outcomes. In addition to authorizing five years of appropriations funding, the legislation requires the study's conclusions and corresponding policy recommendations to be released to Congress within a year after the Secretary of HHS makes the final expenditure.

Prior to the June 18 introduction of the legislation, the AMA worked with Representative Krishnamoorthi on a letter to House and Senate leadership requesting coronavirus relief legislation include financial resources to help physicians and other health care workers cope with the mental stress associated with treating COVID-19 patients. The May 6 letter was ultimately cosigned by more than 90 bipartisan members of the House and supported by more than 50 health care organizations. The letter served as the catalyst for introduction of the stand-alone legislation.

The AMA commends Representatives Krishnamoorthi, Katko, and Wilson for their leadership on this important topic. Harnessing the resources of the federal government will help identify best practices for alleviating the mental health stressors facing physicians treating COVID-19 patients.

The current COVID-19 health crisis has put a massive strain on the health care system in our country. During this time telehealth services have emerged as a critical tool to provide care to patients while supporting physical distancing efforts and reducing the spread of COVID-19 by avoiding unnecessary outpatient visits.

Stories are coming in from all over the country from physicians and patients alike about the positive effects of expanding telehealth. It has continued to allow physicians to provide high-quality care using new digital tools. While we must remain vigilant in our battle with COVID-19, it is important to recognize that expanded use of telehealth technology should have a place in our health care system permanently.

While Congress considers new "phase-four" COVID-19 relief legislation they should ensure that telehealth services are covered and remain available at the end of the COVID-19 public health emergency.

Specifically, Congress should permanently lift the geographic and site restrictions on telehealth technologies so all Medicare beneficiaries have access to telehealth services, including from home, regardless of where they live.

Please contact your Senators and Representative today and tell them that any new COVID-19 relief legislation should include the telehealth provisions outlined above.

The AMA is joining almost 100 medical societies and other health care-related organizations in urging Congress to, in its next COVID-19 relief bill, provide help for 501(c)(6) nonprofits that are facing devastating losses in revenue because of the cancellation of in-person events that help finance their operations.

"Many medical professional associations generate a significant portion of their revenue by holding conferences and providing essential continuing medical education sessions that help maintain and improve quality patient care," states the letter to congressional leaders. "Because the COVID-19 public health emergency has caused these conferences to be canceled, many professional associations are facing severe financial losses and are in urgent need of financial assistance to remain in business."

Previous legislation has limited relief to nonprofits classified as 501(c)(3) charitable organizations. The Internal Revenue Service considers nonprofit medical societies "business leagues" devoted to improving a profession's business conditions and classifies them as 501(c)(6) organizations, which have not had access to the Paycheck Protection Program or other small-business relief initiatives.

Keeping these small businesses in operation benefits the economy because of the number of people they employ and strengthens the health care infrastructure, which ultimately benefits patient care. The letter warns of the negative impact of allowing these organizations to cease operations.

"This could lead to the reduction in other services that benefit patients and are essential to maintaining a strong physician workforce, such as programs that improve the quality and efficiency of physician practices, improve physician satisfaction and well-being, or provide a pathway for clinical reentry following a life event such as raising a family," the letter says.

The AMA also joined a sign-on letter to Congress generated by the American Society of Association Executives (ASAE) noting that the business organizations representing many other professions expect losses due to reduced membership and "stunted programming," and are now struggling to stay afloat.

The ASAE letter highlights the plight of one its members that provides critical assistance for rural health care. The organization is facing an almost $2.5 million financial loss as a result of major event cancellations.

Specifically, the ASAE letter requests that Congress do the following in its next COVID-19 aid package:

• Provide $25 billion in emergency assistance to trade and professional associations.
• Include 501(c)(6) organizations in the Paycheck Protection Program (PPP) or similar Small Business Administration loan expansions.
• Create a pandemic risk insurance program with a federal backstop for prospective insurance claims related to a pandemic or epidemic.

Find out what provisions the AMA supports in the House-passed Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, and what needs to be included in a Senate bill. Read more.

The AMA, American Pharmacists Association and American Society of Health-System Pharmacists appreciates the Food and Drug Administration's (FDA) continuing efforts to review and advise the nation on the safe and effective use of hydroxychloroquine, chloroquine and other medications to prevent and treat coronavirus. The AMA recognizes the body of evidence for addressing the COVID-19 global pandemic is evolving rapidly, requiring vigilant yet timely decision making.

The FDA's recent announcement to cancel the emergency use authorizations for hydroxychloroquine and chloroquine for certain hospitalized patients with COVID-19 does not apply to other evidence-based uses of these medications for conditions such as rheumatoid arthritis and lupus. AMA, APhA and ASHP continue to advocate for medication-use policies that ensure patients who need hydroxychloroquine and chloroquine do not face unintended barriers to evidence-based care.

All patients and health care providers are encouraged to consult the FDA's "Frequently Asked Questions on the Revocation of the EUA for Hydroxychloroquine and Chloroquine Phosphate", and COVID-19 related information and resources available from our three organizations.

• AMA COVID-19 resource center for physicians
• APhA COVID-19 resource center
• ASHP COVID-19 resource center

Last week, the Department of Veterans Affairs (VA) released the President's Roadmap to Empower Veterans and End a National Tragedy of Suicide (PREVENTS). The Roadmap was the result of a 2019 Executive Order that brought together the Veteran Administration, the Department of Health and Human Services (HHS) and other agencies to develop a comprehensive guide for ending suicide among veterans and other at-risk groups. The AMA was at the table as the PREVENTS Task Force put together the roadmap and weighed in on various policy issues.

The roadmap calls for several steps to be taken to end suicide. These include a public health campaign focused on educating Americans about suicide and mental health, improving suicide prevention research through the launch of a coordinated strategy and building community partnerships with faith-based groups, universities and others to share best practices and to improve care coordination.

• June 26, 2020: Advocacy spotlight on Prior auth survey findings underscore need for legislative action