Issue 5, Summer 2019

Advancing OrthoForum Policy Priorities on Capitol Hill

Each year the American Academy of Orthopaedic Surgeons (AAOS) holds the National Orthopaedic Leadership Conference (NOLC) in Washington, DC. During the Conference held June 5 through June 8, leadership and members from the OrthoForum Advocacy Committee joined their respective NOLC state delegations on Capitol Hill to represent the OrthoForum in meetings with key policymakers and congressional staff. The purpose of these Hill meetings was to leverage congressional and partner relationships, address our collective issues, and advance our policy priorities, while continuing to establish the OrthoForum brand as a respected voice in Washington.

The topics discussed in these meetings included:

  • Various issues concerning the Bundled Payments for Care Improvement-Advanced (BPCI-A) program. (See the BPCI-A section.)
  • The need for the Centers for Medicare & Medicaid Services (CMS) to commission a study to compare the past performance of BPCI models led by physician group practices with the past performance of hospital-led BPCI models.
  • The need to lessen or remove the restrictions placed on physician owned hospitals (POHs) by the Stark Law.
  • The need to reform the Stark Law and the Anti-Kickback Statute to allow value-based alternative payment models (APMs).

The Brownstein Hyatt Farber Schreck (BHFS) team also arranged meetings with key congressional offices on Capitol Hill to pursue the OrthoForum’s objectives regarding the federal policymaking process. Dr. Richard Bruch, Chair of the OrthoForum Advocacy Committee, met with key Republican and Democratic professional staff of the House Ways and Means Subcommittee on Health, whose top members are Chairman Lloyd Doggett (D-TX) and Ranking Member Devin Nunes (R-CA). Dr. Bruch also met with Democratic professional staff from the Senate Finance Committee (whose Ranking Member is Senator Ron Wyden (D-OR)).

Several weeks after the NOLC conference concluded, Dr. Bruch had meetings (June 20 and 21) with staff for key Democratic senators who are on the Senate Finance Health Care Subcommittee—particularly senators in states in which OrthoForum practices are located—to highlight the value-based arrangement legislation that will be introduced by Senator Bill Cassidy (R-LA) and Senator Mark Warner (D-VA), to be known as the Patient Affordability, Value and Efficiency Act (PAVE Act). The OrthoForum supports the efforts of these two senators to include the PAVE Act in a drug-pricing legislative package that the Finance Committee is expected to release and consider later in July. Members and staff were receptive to the position of the OrthoForum, and overall the meetings were successful. The Senate offices with which Dr. Bruch met included the offices of Senators Bob Menendez (D-NJ), Sheldon Whitehouse (D-RI), and Ben Cardin (D-MD), all of whom are on the Finance Committee Health Subcommittee.

LB

OrthoForum Advocacy Committee Strategic Planning Meeting

Following the NOLC OrthoForum Capitol Hill meetings on June 7, BHFS hosted a strategic planning meeting led by the OrthoForum Advocacy Committee Chair, Dr. Richard Bruch.

The strategy meeting focused on identifying current and upcoming policy priorities of the OrthoForum and ways to leverage opportunities for the organization, based on key recommendations and insights that surfaced during the NOLC Capitol Hill meetings. The BHFS team provided strategic insight and guidance during the meeting, which also included a presentation on balanced billing from the AAOS

Status of Legislative and Regulatory Priorities

CMS, CMMI and BPCI-A Updates

Center for Medicare & Medicaid Innovation (CMMI) Subcommittee

Given the evolving nature of the OrthoForum’s continued involvement with CMS and CMMI on BPCI and other alternative payment models (APMs), the OrthoForum Advocacy Committee decided to rename  the BPCI Subcommittee as the CMMI Subcommittee. Among the issues the CMMI Subcommittee will manage include:  BPCI Advanced, the new TKA outpatient bundle APM, and the possible development of an Orthopaedic Specialty ACO (for which precedence issues will be very important).

BPCI-A Issues

There continue to be several issues of concern with BPCI-Advanced (BPCI-A):

  • Due to the incomplete 2019 first-quarter data reported by CMMI, many orthopaedic practices found that they lacked the necessary data to determine whether or not to use the March 1 option to exit the BPCI-A program.
  • For entities that did exit the BPCI-A program, there are situations in which a hospital exited the program and then CMMI reattributed the hospital’s episodes to a BPCI-A physician group practice (PGP), including any losses. Therefore, this unexpected reattribution of episodes to PGPs can have a negative effect on their efforts to achieve BPCI-A savings.
  • CMMI continues to give precedence to CJR over BPCI-A for patient episodes. The OrthoForum has advocated for precedence between BPCI-A and CJR for an episode to be based on which of the two programs the operating surgeon participates in.
  • In addition, Next Generation ACOs have precedence over BPCI-A, as do Track 3 Shared Savings ACOs. The OrthoForum is advocating for BPCI-A to have precedence over these ACOs.

For those who may have heard that there was a June 24 deadline for BPCI-A, please note this deadline was only for new entrants to the BPCI-A program. The deadline did not apply to practices already in BPCI-A.

OrthoForum Interest in Developing a Specialty Care ACO; Related Webinar

Although the BPCI and BPCI-A programs have been important to OrthoForum members, the CMS programs for Accountable Care Organizations (ACOs) potentially could also present opportunities for orthopaedic physicians. The challenge is that alternative payment models like BPCI are based on a patient episode over several months that includes surgery, whereas the ACO programs are population-based. In other words, ACOs concern a variety of health-status indicators (diet, weight, blood pressure, tobacco use, etc.) for a population of patients managed by an ACO. ACOs have involved primary care, not specialty care. The OrthoForum Advocacy Committee is interested in the development of a specialty care ACO focused on orthopaedics. CMS has expressed interest but is looking to the medical field to propose specialty care models to the agency, rather than the agency developing such models primarily on its own initiative.  (This issue illustrates why the Advocacy Committee renamed its BPCI Subcommittee as the CMMI Subcommittee.)

The Advocacy Committee is aware of the work of an academic orthopaedic physician whose work is relevant to this issue. This is Dr. Jonathan O’Donnell, an orthopaedic surgeon who is associated with the Duke University School of Medicine and the University’s Margolis Center for Health Policy. The Advocacy Committee’s Chairman, Dr. Richard Bruch, and others arranged for Dr. O’Donnell to give a Webinar presentation for Advocacy Committee members on June 18. He used a slide deck entitled, “Beyond Bundling: Engaging Orthopaedics in Constructing the Future of Value-Based Specialty Payment and Care.” Dr. O’Donnell proposed a voluntary alternative payment model (APM) that is focused on patients with chronic musculoskeletal (MSK) conditions. Specifically, this condition-based APM would involve patients with degenerative hip or knee disease (osteoarthritis, excluding co-existing rheumatoid arthritis) who would be comprehensively managed by orthopaedic physicians over an “episode” of one year, which could be renewed for subsequent one-year periods. These patients would be candidates for surgery, but not all patients would necessarily undergo surgery during the one-year episode. There would be three “tracks” for the APM. The goal of this condition-based APM is to offer a higher value of care across the continuum of care. Dr. O’Donnell believes that condition-based models would incentivize greater coordination of care across providers and care settings. He is currently seeking high-level feedback from clinicians, professional societies, and associations on the proposed APM and its tracks, as well as input on how to overcome technical barriers such as precedence issues. To view Dr. O’Donnell’s presentation deck, please click HERE. For more information about the webinar, or to provide feedback on the issues, please contact Dr. Jonathan O’Donnell at: jonathan.odonnell@duke.edu.

For more information on CMMI issues, or to join the OrthoForum CMMI Advocacy Subcommittee, please contact Karen Simonton at: karen.simonton@orthovirginia.com.

Stark Law Issues

Requests for CMMI Physician-Owned Hospital Demonstration Program

On May 8, House Energy & Commerce health subcommittee Ranking Member Michael Burgess (R-TX) and over 30 other House members sent a letter to the Centers for Medicare & Medicaid Services (CMS) urging it to launch a demonstration program through the Center for Medicare and Medicaid Innovation (CMMI) to allow participating physician owned hospitals (POHs) to expand their capacity, notwithstanding the POH restrictions established by the Affordable Care Act. To view the submitted letter, please click HERE.

A separate letter urging the creation of a CMMI demonstration program to expand POH capacity was sent to CMS on May 21 by a group of medical specialty organizations. The OrthoForum signed on to this letter. To view the submitted letter, please click HERE.

Other Potential HHS Action on POHs

As reported in the newsletter for the first quarter, the Advocacy Committee has met with the White House and the Department of Health and Human Services (HHS) to discuss the legal authority for HHS to lessen the restrictions placed on POHs by the Affordable Care Act. HHS has now completed a draft of a proposed rule on Stark and AKS issues generally (not just POH issues) and, on June 5, sent the draft to the White House for its review.

POH-Related Legislation

In the House on June 3, Energy and Commerce health subcommittee Ranking Member Michael Burgess and Representative Vicente Gonzalez (D-TX) introduced H.R. 3062, the Patient Access to Higher Quality Health Care Act of 2019. The bill would repeal the ACA’s restrictions on POHs. The bill currently has 21 cosponsors.

As noticed elsewhere in this newsletter, the OrthoForum Advocacy Committee has been working closely with Senator Cassidy’s office on the Stark and AKS legislation that the Senator is developing with Senator Mark Warner. That legislation, to be known as the Patient Affordability, Value and Efficiency Act (PAVE Act), is expected to be introduced in the Senate in July.

For more information on Stark Law issues, or to join the OrthoForum Stark Law Advocacy Subcommittee, please contact Chip Hummer at: chumer3@premierortho.com.

Ambulatory Surgery Center Update

Focus on Advocacy at the OrthoForum ASC Conference

There was significant focus on advocacy and quality reporting during the OrthoForum’s  Ambulatory Surgery Center (ASC) Conference held on June 5 through 8 in Dallas, Texas. A number of important and informative presentations were given by OrthoForum members involved with ASCs.

The OrthoForum believes it is important to coordinate its work as much as possible with the Ambulatory Surgery Center Association (ASCA). The organizers of the OrthoForum’s ASC conference in Dallas therefore invited Steve Miller, ASCA’s Chief Operating Officer, to give a presentation on trends and issues facing ASCs. He emphasized that ASCs receive about 60 percent of the payment amount received by hospital outpatient departments, that this ASC percentage could go down, and that ASCs must work to prevent this. Another important issue is that, based on data already available to CMS, the agency will begin collecting data on whether hospital visits occur after ASCs treat patients.

A central point was the need to collect and aggregate quality data, a concern very much shared by the OrthoForum. Mr. Miller participated in a panel discussion with Mandi Clossey, Principal at Somerset CPAs, to review and discuss the quality of data that is currently being captured on the OrthoForum survey and to highlight ways in which the OrthoForum may collaborate with ASCA to streamline and improve the data collection process. This type of collaboration could lead to enhanced benchmarking for the OrthoForum’s ASCs, support ASCA’s collection process, improve the quality of data obtained, and allow for a more cohesive and timely response to any questions or concerns about ASC quality. Mandi Clossey will be reconstituting the Quality Reporting Committee, and the OrthoForum will continue to collaborate with ASCA to support their ongoing efforts.

2020 CMS IPPS Proposed Rule

The OrthoForum continues to work closely with AAOS and was a signatory to an AAOS comment letter submitted to CMS on June 24 on the 2020 Inpatient Prospective Payment System (IPPS) Proposed Rule. Proposals discussed in the letter include increases in hospital inpatient operating payment rates, increases in New Technology Add-On Payments (NTAP) including potential revisions to NTAP substantial clinical improvement criterion, Hospital Readmissions Reduction Program (HRRP) risk-adjusted readmissions rates for elective THA and TKA procedures, development of interoperability program standards, and requirements of health information exchange across payers, among others. To view the submitted comment letter, please click HERE.

Ambulatory Surgical Center Payment Transparency Act of 2018

On June 26,  the House Ways and Means Committee held a markup to send to the House floor legislation (H.R. 3429) that now incorporates the text of a separate bill, the Ambulatory Surgical Center Payment Transparency Act of 2018 (H.R. 3433, introduced June 24). The legislation would add an ASC industry representative to the CMS Advisory Panel on Hospital Outpatient Payment, which is charged with providing assistance in determining payment policies for ASCs and hospital outpatient departments. The legislation would also require CMS to disclose the criteria used in determining the exclusion of procedures from the Medicare ASC procedures list. The OrthoForum supports ASCA’s ongoing work on this issue and will continue to monitor the bill, which is now headed to the full House for approval.

For more information on ASC issues, or to join the OrthoForum ASC Advocacy Subcommittee, please contact Teresa Copeland at: teresa.copeland@orthotennessee.com.

Balance Billing Update

Balance Billing Legislative Proposals and Activity

As anticipated, a variety of balance billing legislative proposals, hearings and mark-ups have surfaced over the past few months. For a summary of recent and notable activity on the issue, please see below:

On May 9, President Trump urged Congress to take action on balance billing issues and outlined a set of priorities, which called on hospitals and insurers to handle all price negotiations, omit patients from the billing process for emergency-related procedures, and implement an independent arbitration-style procedure. It also called for patients to be charged in-network care rates when treated by out-of-network providers in emergency situations.

On May 16, a bipartisan Senate working group led by Senator Bill Cassidy (R-LA) and Senator Maggie Hassan (D-NH), introduced S. 1531, the STOP Surprise Medical Bills Act of 2019. The bill includes arbitration provisions and aims to prohibit balanced billing in three settings: emergency services, non-emergency services following an emergency service at an out-of-network facility, and non-emergency services performed by an out-of-network provider at an in-network facility. According to sources, a preliminary June 4 CBO cost estimates indicates that the STOP Act of 2019 would save $17 billion over 10 years.

At a May 21st House Ways and Means Subcommittee on Health hearing entitled “Protecting Patients from Surprise Medical Bills”, Subcommittee Chair Lloyd Doggett (D-TX) expressed concern about the financial burden that balance billing placed on patients. In addition, Subcommittee Ranking Member Devin Nunes (R-CA) emphasized the need for price transparency and cost-sharing obligations for services and treatment and asserted he would prefer companies and industry leaders guide efforts to prevent balance billing.

On June 26, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a markup and sent to the Senate floor S. 1895, the Lower Health Care Costs Act of 2019. The bill includes provisions to end “surprise” medical bills; reduce the prices of prescription drugs; improve transparency in health care; improve public health; and improve the exchange of health information. With respect to balance billing, the bill requires that payments to providers be at the median in-network rate, and the bill does not provide for an arbitration process.

On June 26, Congressman Raul Ruiz, MD (D-CA) and Congressman Larry Buschon, MD (R-IN), both of whom are physicians, introduced H.R. 3502, the Protecting People From Surprise Medical Bills Act, which is focused on an arbitration model and most closely resembles the New York law to reduce balance billing. This is unlike the bills considered by the Senate HELP Committee and the House Energy and Commerce Committee, which do not provide for arbitration. Like other balance-billing legislation, the Ruiz-Buschon bill would hold patients unaccountable and prevent them from paying more than they would if the services received had been from an in-network provider. According to sources, preliminary June 4 CBO cost estimates indicate that the arbitration model would save $20 billion over 10 years.

On July 9, House Energy & Commerce Committee, Chair Frank Pallone (D-NJ) and Ranking Member Greg Walden (R-OR) introduced their balanced billing legislation, H.R. 3630, which on July 11 was considered by the health subcommittee and forwarded to the E&C full committee without amendment. The bill does not provide for an arbitration process. It sets a federal benchmark rate and would prohibit providers from billing patients for the unpaid remainder of their medical bill for emergency and non-emergency services. The legislation also requires out-of-network hospitals to notify patients and mandates that patients provide consent prior to conducting any scheduled care. According to sources, preliminary June 4 CBO cost estimates indicated that the benchmark rate would save $25 billion over 10 years.

During the July 11th E&C health subcommittee markup, Dr. Ruiz, along with a bipartisan group of members, called for major changes to H.R. 3630, particularly a key provision that governs how providers and health plans settle payment disputes. Dr. Ruiz, who supports the use of an arbitration process, asked Chairman Pallone to continue working with him on the arbitration issue before the full Energy & Commerce Committee holds its markup, which is anticipated to be held the week of July 15. While members remain divided on the issue, negotiations are on-going and may lead into the August recess.

For more information on Balance Billing issues, or to join the OrthoForum Advocacy Committee Balance Billing Subcommittee, please contact Dr. Doug Lundy at: LundyDW@resurgens.com

Political Update

The Democrats’ Presidential Field and the Importance of Home Court Advantage

As the Democratic presidential field takes shape, one of the questions we at Brownstein get most frequently is, “What the heck is X-candidate thinking? He has no shot, right?”  Now that we’re in pre-primary debate season, we thought we’d provide some early observations about why certain candidates are in the race.

We advise clients that while some candidates overestimate their chances, they almost always have a rational basis for their candidacies. Okay, I’m not 100% sure about Joe Sestak and Tom Steyer, but I’m comfortable saying that 20 of the current candidates are thinking clearly.

  • The answer to the question, “How the heck does this person think he/she can win” often comes down to geography, i.e. the order in which the primaries and caucuses take place.
  • Corollary: a number of longshot candidates are banking on home court advantages in early states.
  • For many candidates, the goal is something less than the presidency. In other words, not everyone who is running for president is really running for president.

What are they thinking?

Casual observers tend to look at the campaign for the nomination as a national contest, but the candidates and strategists see a series of discrete state events.  Democrats, unlike Republicans, award delegates from each state proportionately to candidates who earn at least 15% of the vote in that state’s primary.  That reinforces the importance of home court advantage in candidates’ minds.

The Democrats will hold four caucuses/primaries on four dates in February 2020 before the Super Tuesday primary-palooza.  Focusing on the four February contests brings out candidates’ strategies in sharp relief.

Who has home-court advantage?

Here are the four early and relatively inexpensive Democratic caucuses/primaries, and the candidates who have the home-court edge:

  • Iowa Caucuses, 2/3/2020: Amy Klobuchar

Amy is a very popular senator from a neighboring state, is running on midwestern values, and over the years probably has spent the most time in Iowa of any of the candidates.

  • New Hampshire Primary, 2/11/2020: Bernie Sanders and Elizabeth Warren

Bernie represents the border state to the north, Warren represents the border state to the south.  Past NH primary winners include (eventual nominees in bold):

  • 1976: Maine Senator Ed Muskie
  • 1988: Massachusetts Governor Mike Dukakis
  • 1992: Massachusetts Senator Paul Tsongas
  • 2004: Massachusetts Senator John Kerry (Vermont Gov. Howard Dean came in second)
  • 2016: Vermont Senator Bernie Sanders

The pressure is on Sanders, who won New Hampshire with 60.4% in 2016, to win again, and on Warren to place or show.

Nevada Caucuses, 2/22/2020: Julian Castro

Former HUD Secretary (and congressman from Texas before that) has to put points on the board in a state that is one-third Hispanic.  Castro is making immigration his top issue and is banking on his appeal to the rising electorate in Sunbelt states.

South Carolina, 2/29/2020: Cory Booker and Kamala Harris

The only early primary state in which a majority of Democratic voters are African-American would seem to create an opportunity for Booker and Harris.  Note, however, that Biden is very popular with black voters nationally and is very popular with Democratic voters across the board in SC.

The first event of March 2020 is Super Tuesday, which has changed in one critical way- California, which had been irrelevant in recent cycles because of its late-June primary, has joined the fray.  Colorado has joined as well. Super Tuesday was originally structured as a southern state primary day, but over time other states have joined.  Where candidates could confine their travel and take advantage of overlapping media markets, they now face make-or-break decisions regarding time, money, and strategy.

The Super Tuesday map clearly favors several candidates:

  • California: Harris
  • Colorado: John Hickenlooper, Michael Bennet
  • Massachusetts: Warren
  • Minnesota: Klobuchar
  • Texas: Castro, Beto O’Rourke
  • Vermont: Sanders

 

No candidate has a clear edge in the remaining Super Tuesday states of Alabama, North Carolina, Utah, and Virginia.  

We’re not going deeper into the calendar, because after Super Tuesday, the field will be considerably smaller.  Candidates who have been losing will have trouble replenishing their funds and maintaining grassroots interest. The schedule from February 3rd to March 3rd generates the greatest opportunities and the most dramatic hazards for almost every one of the credible candidates.

Some of the candidates are not really running for president

Since Rep. Eric Swalwell just dropped out of the race, we can consider his case without prejudice.  Swalwell is an ambitious young House Democrat from California.  He just got re-elected with 70% of the vote.  He’s years away from chairing a House committee.  The legislative process offers you virtually no chance to offer amendments to legislation, or to speak for more than a minute or two during debate on the House floor.  For one of 46 members of that state’s House Democratic caucus, it’s almost impossible to stand out.

Given that context, why not run for president?

Getting up on the debate stage with the contenders enabled Swalwell to reach a statewide – and nationwide – audience.  The idea must have been that he would leapfrog formidable potential statewide candidates like Rep. Adam Schiff and Attorney General Xavier Becerra.

In the brave new world of small-donor online fundraising, you’re not depleting your contributor base by running for president – you’re enlarging it.

There are other reasons why someone might run for president with no hope of winning.  A great showing could earn you the veep nomination – and a road to the presidency. Likewise, you could find yourself enjoying a stint in the new president’s cabinet.  Your increased visibility might position you to run for another office.  You can elevate the importance of critical issues like gun control and climate change.  And if nothing else, you may be in demand as an author or TV commentator.