Advocacy Update

Sept. 22, 2023: National Advocacy Update


In testimony at a recent Drug Enforcement Administration (DEA) “listening session,” the AMA urged the DEA to adopt federal policy on prescribing controlled substances based on telehealth visits that will continue to support patients’ access to evidence-based care.

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AMA President Jesse M. Ehrenfeld, MD, MPH, urged the DEA not to impose new barriers that could reverse the improvements in access made during the COVID public health emergency. His remarks (PDF) highlighted several key points:  

  • The COVID experience demonstrated that telemedicine prescribing of controlled substances—with and without an in-person evaluation—helped patients with many medical conditions begin and maintain necessary, evidence-based care. Whether audio-only, audio-visual or in-person care, physicians provide high-quality, evidence-based care that relies on thorough assessments and sound decision making.  
  • If the standard of care cannot be met via telemedicine, the physician should seek an in-person visit. However, the AMA urged the DEA to not create new burdens for situations where telemedicine has benefited physicians and patients. This includes requiring an in-person visit within 30 days of a telemedicine visit (when an in-person visit has not occurred); or imposing new record-keeping requirements on physicians for DEA “investigational purposes.”  
  • Dr. Ehrenfeld emphasized AMA’s previous written comments (PDF) that recommended extending the in-person visit requirement from the proposed 30 days to at least six months. These comments also asked for the policy to make allowances for patients seen via telemedicine who may need a schedule II medication, such as those with cancer pain or in hospice who would face significant barriers to accessing in-person appointments.  
  • Dr. Ehrenfeld also stressed that physicians and pharmacists already work together to resolve questions about prescriptions, and many other safeguards currently exist—through physicians’ professional, ethical and legal obligations as well as state laws and the Controlled Substances Act—that provide a sufficient framework to help ensure patient safety and prevent diversion.  

In addition, Dr. Ehrenfeld’s remarks emphasized that state prescription drug monitoring program data “contain personal health information regarding individual prescribers and patients that is clinical in nature and should not be shared or disclosed to law enforcement without probable cause.”  

Related to this issue, the AMA’s support for protecting the benefits of prescribing controlled substances based on telehealth visits was also recently cited in a letter sent by Senators Warner and Thune and several others to DEA Administrator Anne Milgram, urging the DEA to continue the telehealth flexibilities provided during the COVID-19 public health emergency and avoid new, burdensome recordkeeping policies.

In Nov. 2020, the Department of Veterans Affairs (VA) published an interim final rule entitled “Authority of VA Professionals to Practice Health Care.” Based upon this interim final rule, the VA has begun the process of implementing National Standards of Practice for 48 health care occupations through the “Federal Supremacy Project.”   

Since 2020, the AMA has urged Congress to provide our veterans with the highest possible quality of care and to rescind the implementation of the Federal Supremacy Project. Thanks to AMA advocacy efforts, on Sept. 19, the AMA was invited to testify to the U.S. House of Representatives Veterans Affairs Committee Subcommittee on Health as part of a hearing concerning the “VA’s Federal Supremacy Initiative: Putting Veterans First?” The AMA submitted a written statement (PDF) in advance of this hearing and will continue to engage on this topic with the administration, Congress and the specialty societies to ensure that our veterans receive the best care possible, that of physician led team-based care. 

The House Ways and Means Committee held a hearing on Sept. 19 on the No Surprises Act (NSA), entitled “Reduced Care for Patients: Fallout From Flawed Implementation of Surprise Medical Billing Protections.” Witnesses represented physicians, hospitals, insurers, patients and the independent dispute resolution entities (IDRES). In their opening remarks, Committee Chair Jason Smith (R-MO) and Ranking Member Richie Neal (D-MA) both expressed disappointment with the way in which the Administration has deviated from congressional intent in their implementation of the NSA, including the way in which they have directed IDREs to weigh one factor over another when determining payment, as well as lamented the impact of the flawed regulations and guidance on patients and physicians.   

Much of the hearing focused on implementation issues such as the overreliance of the qualifying payment amount (QPA) in the independent dispute resolution (IDR) process, the backlog of IDR claims, a lack of enforcement of IDR decisions, and the accessibility of the entire dispute resolution process due to complicated claims batching rules and other restrictions put in place over the last three years by the Departments of Health and Human Services, Treasury, and Labor. Seth Bleier, MD, vice president of finance, Wake Emergency Physicians Professional Association (WEPPA), highlighted the impact of insurer-friendly regulations on his practice’s ability to stay in-network with major health plans in his area, stating that insurers had threatened 50% or more payment cuts or terminated contracts in the wake of the NSA regulations. He also told committee members that while his practice has taken hundreds of claims to IDR and won, they have yet to receive payment from the health plans on most. Dr. Bleier echoed support for the findings of the courts in a series of legal challenges brought by the Texas Medical Association largely in conjunction with AMA and the American Hospital Association.  

Diane Spicer, supervising attorney at Community Services Society, testified that in her home state of New York, the NSA and New York’s state surprise billing law have resulted in enhanced protection for patients against unanticipated health care bills. However, she stated that there is still work to be done to reduce confusion related to services that are subject to the laws and to ensure that notice and consent processes are being used correctly by physicians and other health care providers. Jeanette Thornton, executive vice president of policy and strategy, America’s Health Insurance Plans (AHIP), insisted health plans want facility-based providers in their networks and the success of plan’s business models, in fact, depends on large network. The executive vice president and chief financial officer of Wellstar Health System, Jim Budzinski, testified that the implementation of the NSA, in general, is tilted too far in favor of insurers, especially since nothing in the statute or subsequent regulations regulates the initial payments made by the insurers. Budzinski also argued that the fact that initial payments are often ultimately deemed insufficient by the IDR entities further illustrates that the overarching NSA process and overreliance on the QPA needs to be rectified. 

Committee members generally celebrated the bipartisan nature of the NSA and expressed deep concern with the implementation flaws that have led to lawsuits, payment delays, broad inefficiencies with the dispute resolution process, and threats to physician practices’ stability and patient access. In fact, Reps. Bill Pascrell (D-NJ), Danny Davis (D-IL), Jimmy Panetta (D-CA) and Greg Murphy, MD (R-NC) used their line of witness questioning to bemoan the fact that when insurers are deemed the losing party in the IDR process, they are not abiding by statutory requirements to make timely payments to physicians, as well as criticized the administration for implementing regulations that inappropriately made the QPA a rebuttable presumption and hiked the arbitration administrative fees 600%. In response, witnesses agreed with these criticisms and pushed for congressional and administrative actions to rectify these policy flaws. 

The AMA submitted a Statement for Record (PDF) highlighting a series of correctable mistakes that the administration has made in implementing rules and regulations.

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