Advocacy Newsletter Q1 2024

Issue 23, Winter/Spring 2024

Stay up-to-date on the latest regulatory proposals, congressional activity, and political developments relevant to orthopaedic care with this month’s OrthoForum Advocacy Newsletter. Included in this edition: details on CMS’s Interoperability and Prior Authorization Final Rule, CMS’s Medicare Advantage RFI, notable takeaways from the most recent CMS National Stakeholder call, White House AI task force updates, Congressional attention to physician reimbursement and payment cuts, MedPAC, MACPAC, and PTAC public meeting overviews, and key political updates in the 2024 presidential race.

BIDEN ADMINISTRATION UPDATE

The Administration recently finalized several policies impacting orthopedic surgeons, including the CMS Interoperability and Prior Authorization Final Rule which finalizes several new requirements for to streamline the prior authorization processes and “reduce burden on patients, providers, and payers.” CMS also announced a Request for Information (RFI) on enhancing data capabilities and transparency in Medicare Advantage. Also of note, CMS held a National Stakeholder call in which CMS leadership spoke to several topics including provider reimbursement, trends in practice and hospital consolidation, workforce challenges, and more. Following the President’s EO on AI, the White House released an update on HHS’s AI task force continues development of frameworks for improving applications of AI in health care delivery.

CMS Releases Interoperability and Prior Authorization Final Rule

On January 17, 2024, CMS released the CMS Interoperability and Prior Authorization Final Rule, finalizing most of the policies (some with modifications in response to feedback) included in the December 2022 proposal. CMS stated in a press release that the final rule “modernizes the health care system and reduces patient and provider burden by streamlining the prior authorization process.” The provisions in the final rule place new requirements on MA organizations, state Medicaid and CHIP FFS programs, Medicaid managed care plans, CHIP managed care entities, and QHP issuers on the FFEs with the aim to improve the exchange of health-related data (interoperability) and streamline the prior authorization process. Of note, CMS anticipates that the total burden across all providers would be reduced by at least 220 million hours over 10 years, resulting in a total cost savings of at least $16 billion over 10 years. See below for several notable changes.

Key Finalizations:

Improving Prior Authorization Process and Decision Timeframes- CMS is requiring impacted payers (excluding QHP issuers on the FFEs) to send prior authorization decisions within 72 hours for expedited (i.e., urgent) requests and seven calendar days for standard (i.e., non-urgent) requests. CMS is finalizing impacted payers must provide a specific reason for denied prior authorization decisions, regardless of the method used to send the prior authorization request. These operational or process-related prior authorization policies are being finalized with a compliance date starting January 1, 2026, and the initial set of metrics must be reported by March 31, 2026
Patient Access API- CMS is requiring impacted payers to publicly report certain prior authorization metrics annually by posting them on their website. CMS will require impacted payers to implement a Health Level 7 (HL7®) Fast Healthcare Interoperability Resources (FHIR®) Prior Authorization application programming interface (API to facilitate a more efficient electronic prior authorization process between providers and payers by automating the end-to-end prior authorization process
Provider Access API- To facilitate care coordination and support movement toward value-based payment models, CMS is requiring that impacted payers implement and maintain a Provider Access API to share patient data with in-network providers with whom the patient has a treatment relationship. Impacted payers will be required to make the following data available via the Provider Access API: individual claims and encounter data (without provider remittances and enrollee cost-sharing information); data classes and data elements in the United States Core Data for Interoperability (USCDI); and specified prior authorization information (excluding those for drugs)
Electronic Prior Authorization Measure for MIPS Eligible Clinicians and Eligible Hospitals and Critical Access Hospitals (CAHs)- CMS is finalizing, with modifications, the proposal for new electronic prior authorization measures for MIPS eligible clinicians under the MIPS Promoting Interoperability performance category and for eligible hospitals and CAHs under the Medicare Promoting Interoperability Program

CMS Releases RFI on Medicare Advantage

On January 25, CMS posted an 8-page RFI seeking input on various aspects of Medicare Advantage (MA) date. Comments for the RFI are due on May 24, 2024 and will be posted for the public to view on regulations.gov. In a press release, the agency stated that the RFI is “an extension of our ongoing work on MA data as we solicit feedback from the public on how best to meet the shared goals of enhancing data capabilities to have better insight into our programs, consider areas to increase MA data transparency, and propose future rulemaking.” See below for additional topics CMS is soliciting comments on:

Data-related recommendations related to beneficiary access to care including provider directories and networks
Prior authorization and utilization management, including denials of care and beneficiary experience with appeals processes as well as use and reliance on algorithms
Cost and utilization of different supplemental benefits
All aspects of MA marketing and consumer decision-making; care quality and outcomes, including value-based care arrangements and health equity
Healthy competition in the market, including the impact of mergers and acquisitions, high levels of enrollment concentration, and the effects of vertical integration, data topics related to Medicare Advantage prescription drug plans (MAPDs)

The OrthoForum Advocacy Committee will monitor comments posted on the RFI and update members with CMS’s responses.

CMS Holds National Stakeholder Call

On January 23, CMS held a national stakeholder call to discuss the agency’s successes and growth in 2023, the agency’s goals for the year ahead, and recently proposed and finalized rules, as well as CMS’ approach to key topics impacting the healthcare sector. CMS Administrator Chiquita Brooks-LaSure and CMS Acting Chief Medical Officer Dr. Dora Hughes discussed prior authorizations, administrative burdens, the Physician Fee Schedule, and long-term staffing. Acting Director for the CMS Office of Burden Reduction and and Health Informatics discussed CMS’ Prior Authorization and Interoperability final rule which she stated “will help patients access care and allow physicians to spend more time with patients, providing quality care.”

Administration Announces Updates on White House AI EO

Following the Biden Administration’s November 2023 Executive Order on AI, a task force of top officials convened to review progress made on the directives included in the EO. Of note, it was announced that the task force will continue to develop methods of evaluating AI-enabled tools and frameworks for AI’s use to” advance drug development, bolster public health, and improve health care delivery.” Additionally, the the task force coordinated work to publish guiding principles for addressing racial biases in healthcare algorithms. The OrthoForum Advocacy Committee will work to keep members informed on new regulations and health-focused updates related to AI as the field continues to evolve.

Federal Advisory Update

In their January public meetings, MedPAC and MACPAC reviewed data and voted on draft recommendations on a variety of Medicare and Medicaid payment policy issues, including a Physician Fee Schedule, trends in consolidation and employment trends, the role of Medicaid managed care. Additionally, the Physician-Focused Payment Model Technical Advisory Committee (PTAC) announced it will discuss defining and selecting performance measures and financial incentives for physician-focused alternative payment models during its upcoming March meeting.

The OrthoForum Advocacy Committee will keep members updated on the commissions’ recommendations to Congress stemming from their work on these important physician payment issues. The Commissions will meet for the next round of public meetings from March 7-8, 2024.

MedPAC January Public Meeting

In their January Public Meeting, MedPAC staff and Commissioners reviewed data and voted on draft recommendation for topics including but not limited to physicians, hospital inpatient and outpatient services, rehabilitation services, ambulatory surgical centers, Medicare Advantage, and more.

Specifically on physician reimbursement, MedPAC staff reviewed trends in the Physician Fee Schedule, including how the conversion factor is impacted by increases in office payment visits and higher payment rates for Evaluation and Management (E&M) services. On annual survey findings, MedPAC staff indicated that the total number of clinicians has increased and that Medicare beneficiaries report access to care as “comparable with, or better than, that of privately insured.” Additionally, MedPAC staff reported that spending per Medicare Fee for Service (FFS) beneficiary increased by 2.8% in 2022 and that while Medicare Economic Index (MEI) growth peaked in 2022, it is projected to slow to 2.6% in 2025. Lastly, MedPAC staff spoke to physician revenue, citing that median compensation grew 9% for physicians and 5% for advanced practice providers in 2022.

Key Draft Recommendations:

Physicians and other health professional services – “The Congress should for Calendar Year 2025, update the 2024 Medicare base payment rate for physician and other health professional services by the amount specified in current law plus 50 percent of the projected increase in the Medicare Economic Index; and enact the Commission’s March 2023 recommendation to establish safety-net add-on payments under the physician fee schedule for services delivered to low-income Medicare beneficiaries.”
Skilled Nursing Facility Services – ”For FY2025, Congress should reduce base payment rates by 3%”
Inpatient/outpatient facilities – “For FY2025, Congress should update the 2024 base payment rates for general acute care hospitals by the amounts specified in current law plus 1.5%”
Ambulatory Surgical Centers – “The Secretary should require ambulatory surgical centers to submit cost data”

Please see here for further details on MedPAC’s presentations and recommendations.

MACPAC January Public Meeting

During the January Public Meeting, MACPAC Staff and Commissioners discussed and voted on recommendations related to improving transparency in Medicaid financing, challenges with appeals and denials by Medicaid managed care organizations, beneficiary access, oversight and transparency efforts, and physician payment rates. Of note, Commissioners focused comments and questions related to physician services on consolidation and physician employment, the role of managed care, data collection and research challenges, and addressing tension between expanding provider participation and improving access to safety-net providers. Please see here for additional details on MACPAC’s presentations and recommendations.

Upcoming PTAC Meetings

HHS’s Office of the Assistant Secretary (ASPE) Physician-Focused Payment Model Technical Advisory Committee (PTAC) released topics to be covered in their upcoming 2024 Meetings (next meeting to be held from March 25-26). PTAC announced that building on the Committee’s ongoing series of theme-based discussions on designing and implementing PB-TCOC models, topics discussed at PTAC’s March 2024 meeting will include the following:

Defining performance measurement objectives for PB-TCOC models;
Selecting and balancing between the number and types of performance measures for PB-TCOC models;
Best practices for linking performance measures with payment and financial incentives in PB-TCOC models;
Addressing challenges related to implementing performance measures; and
Incorporating health equity and the patient experience into performance measures.

The OrthoForum Advocacy Committee will be sure to keep members up to date and will report notable takeaways from PTAC’s March meeting.

Congressional Update

Despite efforts from physicians and advocates on the Hill, Congress declined to halt the 3.37% Medicare physician pay cut for 2024 in the continuing resolution (CR) passed on January 18, 2024 to avert a government shutdown. While it is unlikely that CMS will make adjustments to implement any retroactive fixes to reverse the 2024 pay cut.

The OrthoForum and its partners are continuing to apply pressure on Congress to enact legislation later this year that would provide an upward payment adjustment. As negotiations continue over fiscal year 2024 appropriations in the coming weeks, relief from this payment reduction in the form of a year-end adjustment could still be on the table. In the meantime, it remains critically important for physicians to continue urging legislators to advance remedies that lead to long-term payment stability and overall physician reimbursement reform.

During a Special Order Hour on the House floor in January, members of both sides of the aisle criticized CMS’ pay cuts and advocated for reforms. See below for commentary:

Rep. Greg Murphy (R-NC)

On Medicare Not Reimbursing for Cost of Care – “The sad fact and the problem is that Medicare now is what they, in 1965, were very afraid of, that so much of government has gotten into medical issues. This is the main problem. Medicare does not reimburse the cost of care for patients. This is a real access issue. We are not really talking about paying physicians. We are talking about access to care”
On CMS’ 3.37% Cut – “This year, CMS is proposing a 3.37 percent cut to the physician fee schedule. It would be about a 20 percent cut over the last 20 years. Doctors want to see Medicare patients, but they simply won’t be able to, and this is going to affect access to care”

Rep. John Joyce (R-PA)

On Pay Cuts and Rural Health – “These cuts mean that rural and small providers will be forced to restrict access to Medicare patients and, in dire cases, will be unable to keep their doors open at all. As a doctor, I understand firsthand the negative impact that these significant year-after-year cuts have on rural providers”
On How Cuts Accelerate Consolidation – “These cuts will accelerate practice consolidation and force patients into higher cost settings for care. It will mean longer travel times and longer wait times for patients to see their family doctor, to see a surgeon, and to see a specialist. As physicians and as legislators, we have an obligation to work to find a solution for Medicare patients. Congress must step in and address these cuts before they do any additional damage to our healthcare system”

Rep. Michael Burgess (R-TX)

On Supporting H.R. 6545 & H.R. 6371 – “As a member of the Energy and Commerce Committee, we had an actual historic event last month. We marked up a doc fix and a budget neutrality bill. The GOP Doctors Caucus and the Energy and Commerce Committee took action to address the challenges by passing H.R. 6545, which was the Physician Fee Schedule Update and Improvements Act. That bill includes a conversion factor update as well as provisions from H.R. 6371, the Provider Reimbursement Stability Act, also led by the GOP Doctors Caucus. These provisions make needed changes to the budget neutrality requirement, allowing for long-term sustainability within the physician fee schedule. These are significant steps, and the urgency cannot be overstated.”
On Potentially Fixing Cuts in CR – “This is a crisis that is not necessary. We can fix this. We can fix this in the CR. Unfortunately, congressional Democrats, the minority leader on the House side, and the Finance Committee chairman on the Senate side are blocking this very simple fix from occurring. It is wrong. It needs to change”

Rep. Brad Wenstrup (R-OH)

On Physician Workforce Impacts – “Here is the scary part. Doctors retire early. Some reduce Medicare patients out of survival for their practice or stop seeing them at all, and they hate that. They quit taking call. They go to a cash-only practice in order to keep their doors open. If we don’t act swiftly to address these cuts now and in the long term, patients are going to suffer the most. The physician shortage will continue to rise”
On Urging Congress to Stop Cuts – “Mr. Speaker, I urge congressional leadership to put the health of America first. Ensure that patients and Medicare beneficiaries have access to the providers who care for them. We have to stop these cuts. Every cut the government makes affects the entire United States. We are one great Nation, but we become a less healthy Nation.”

Rep. Diana Harshbarger (R-TN)

On 3.37% Cut – “Last November, CMS finalized a rule that would decrease Medicare reimbursement for physician services by 3.37 percent this year. Combined with 3 years of consecutive cuts to Medicare and the rising practice costs, Medicare payments have been cut by nearly 10 percent. Mr. Speaker, what physician will continue to practice when their salaries are being cut by 10 percent?”
On Rural Health Impact – “As a community pharmacist in one of the country’s most rural districts and co-chair of the Rural Healthcare Caucus, I urge the House and Senate to act swiftly on passing legislation that would stabilize Medicare payments to physicians and other providers to ensure that our seniors maintain access to quality healthcare”

Political Update

Since the last advocacy newsletter, former President Trump has taken a commanding position in the Republican presidential primary race as he won both opening contests in Iowa and New Hampshire, and two other contenders dropped out of the race and endorsed his campaign (Vivek Ramaswamy and Ron DeSantis). The only candidate remaining in the GOP race aside from Mr. Trump is his former U.N. Ambassador Nikki Haley, who is focusing on winning South Carolina, the state she served as governor of from 2011 to 2017. The South Carolina primary is on Saturday, February 24, 2024. There are no planned debates between Mr. Trump and Ms. Haley.

President Biden remains focused on the general election, stating, “It is now clear that Donald Trump will be the Republican nominee. And my message to the country is the stakes could not be higher” after Mr. Trump won the New Hampshire primary. Despite not being on the ballot, the President won the Democratic New Hampshire primary and faces no legitimate electoral challenge to the nomination.

Health Policy on the Campaign Trail

The campaign’s main issues continue to be immigration, the economy, foreign policy, and the broader theme of democracy (i.e. Mr. Trump’s legal battles and other concerns over both candidates). The two main health policy themes Mr. Biden is campaigning on are 1) enrollment into ACA exchange plans and 2) the Medicare Drug Price ‘Negotiation’ Program set to be effective on certain drugs in 2026. Ms. Haley has endorsed expanding Medicare Advantage plans to address government spending concerns, and Mr. Trump has, at times, endorsed repealing the ACA. Physician payment reform has not yet been addressed on the campaign trail.