Issue 6, Fall/Winter 2019
Advancing OrthoForum Policy Priorities on Capitol Hill
2019 American Association of Orthopaedic Executives Capitol Hill Advocacy Day
On September 10, 2019, leadership from the OrthoForum Advocacy Committee joined a group of fellow orthopaedic practice executives from across the country in Washington, DC for the 2019 Capitol Hill Advocacy Day sponsored by the American Association of Orthopaedic Executives (AAOE). Dr. Richard Bruch, Chair of the OrthoForum Advocacy Committee; Karen Simonton and Caitlin Patterson from OrthoVirginia; Representatives from EmergeOrtho’s Foothill division; and leadership from the American Academy of Orthopaedic Surgeons (AAOS) collaborated with AAOE on their advocacy efforts to promote the importance and value of the orthopaedic community to lawmakers and highlight the OrthoForum’s role in the federal policymaking process.
The group met with congressional member offices from the North Carolina and Virginia delegations and included member and staff meetings with the offices of Senators Thom Tillis (R-NC), Mark Warner (D-VA), and Tim Kaine (D-VA), as well as Representatives G.K. Butterfield (D-NC), Mark Walker (R-NC), Virginia Foxx (R-NC), Ben Cline (R-VA) and Bobby Scott (D-VA). The topics discussed in the meetings included: increased Medicare reimbursements for DXA scans; delaying Medicare’s upcoming Appropriate Use Criteria (AUC) Program; real-time Medicare Advantage prior authorizations; balance billing, and preserving the ability of providers to negotiate and contract with insurers. Overall, the meetings were successful and congressional members and staff were receptive to the issues impacting the orthopaedic community and expressed interest in following up with the groups. OrthoVirginia is set to meet with Sen. Warner in the state to discuss issues in independent MSK medicine in addition to cyber issues, the value of Epic, and the use of telemedicine.
2019 OrthoHospital Meeting
The OrthoForum held its first annual OrthoHospital meeting on September 25-26, 2019 in New Orleans, Louisiana. The meeting was organized as a direct response to OrthoForum members’ expressed interest in holding a meeting focused on issues faced by full or partial owners of orthopaedic specialty hospitals. In total 20 OrthoForum groups along with 3 OrthoConnect groups and 2 non-affiliated independent groups from across the country attended the meeting. Attendees benefited from networking and from the collaborative exchange of ideas as each group shared their experiences, successes, and challenges in setting up their own orthopaedic specialty hospital groups.
The OrthoForum welcomed a new Advocacy Committee member, from the Western Orthopaedic Forum, Jim Keil CEO, Ventura Orthopaedics, and also discussed the formation of the new Physician Owned Hospital Subcommittee, which is currently seeking a Chair. Pete Goodloe of Brownstein Hyatt Farber Schreck presented on some of the regulatory issues affecting physician-owned hospitals (POHs) (focusing on the Stark Law restrictions) and provided an overview of the work of the OrthoForum’s Advocacy Committee and its subcommittees. He also highlighted the OrthoForum’s close work with AAOS in the development of congressional and administrative strategies to advocate on behalf of POHs. While the majority of OrthoForum affiliated POHs were in attendance, the meeting generated a great deal of interest from representatives of outside groups in attendance, including South Dakota State Senator Richard Blake Curd (R-SD). As the immediate past president of Physicians Hospitals of America (PHA), Senator Curd was very knowledgeable about the POH issues and demonstration models, given his past work developing a CMMI demo at PHA. While the agenda was flexible and the sessions were not tightly structured, overall the meeting was a success and served as a vehicle to identify the topics that are of most interest to the orthopaedic specialty hospital community, while mapping out ways groups can best inform, benchmark, and support each other in the future.
Status of Legislative and Regulatory Priorities
CMS, CMMI and BPCI-A Updates
Smith Favored to be Next CMMI Director
On July 22, 2019, President Trump nominated Center for Medicare and Medicaid Innovation (CMMI) Director Adam Boehler to be CEO of the new US International Development Finance Corporation, which is set to open on October 1, 2019. In this new role, Boehler will be charged with leading US international investments in developing countries. Boehler’s nomination was met with positive reception during his September 19, 2019 Senate Foreign Relations Committee hearing and he was confirmed by the full Senate on September 26. While there has been no immediate replacement named for Boehler, sources have identified Tennessee entrepreneur, Brad Smith, as a favored candidate to fill Boehler’s position at CMMI. Smith co-founded palliative care provider Aspire Health, which was sold last year to Anthem for an estimated $440 million. Smith is reportedly held in high regard by agency leaders and, if selected as CMMI Director, is anticipated to continue Boehler’s work to drive payment models in the innovation sector. Another candidate is ChenMed executive Gaurov Dayal. Meanwhile, Amy Bassano, a career civil servant, is serving as the Acting Director of CMMI.
OrthoForum Interest in Developing an ACO-like Specialty Care CMMI Model
After BPCI-A, what is the next CMMI model that independent orthopaedic practices can participate in? The OrthoForum would like your feedback and gauge your interest in the development and submission to CMMI of a proposal for a specialty care model program for back pain and hip and knee arthritis that would be population-based, rather than episode-based (like BPCI-A). The proposed features of this new model would include:
- Precedence, which would allow participating groups to receive credit for their work;
- Immediate bonus payments for the top 10% and 15% groups prior to the distribution of CMMI funds. The top 10% groups would receive a $250,000 bonus payment per quarter and the next 15% groups would receive a $125,000 bonus payment per quarter;
- Yearly positive target price increases given the current aging population and the increased need for hip and knee joint replacements.
The OrthoForum has been invited to attend a meeting at CMS on November 12 to discuss the implementation of this initiative. Dr. Chip Hummer will be representing the OrthoForum at that meeting.
CMS 2020 OPPS and ASC Proposed Medicare Payment Rule
On July 29, 2019, the Centers for Medicare & Medicaid Services (CMS) released the 2020 proposed payment Medicare payment rule for hospital outpatient departments (HOPDs) under the outpatient prospective payment system (OPPS) and for ASCs. The comment period for the rule closed on September 27, 2019. The OrthoForum would like to flag two key proposals of concern with respect to CMMI and BPCI-A within the final rule that should be noted by orthopaedic practices.
The first is a CMS proposal to remove total hip arthroplasty (THA) procedures from the Medicare inpatient only (IPO) list effective January 1, 2020. As such, Medicare would reimburse providers for THAs performed during a hospital outpatient stay and would continue to reimburse providers for THAs as an inpatient procedure if the patient’s admission spans at least two midnights. However, there is concern over the implementation of the inpatient versus outpatient determination process, given that the range of complexities that occur for each patient undergoing a THA can vary greatly, particularly across the Medicare beneficiary age ranges. There is also concern that outpatient THAs for Medicare beneficiaries will produce similar issues to those that surfaced when CMS removed total knee arthroplasty (TKA) procedures from the IPO list in 2018. The removal of TKA from the IPO list resulted in a wide variation of inpatient and outpatient assignments with no clearly delineated or generally-accepted evidence-based clinical criteria for the inpatient or outpatient designation of TKA, which to date remains unresolved. In order to optimize outpatient hip replacement outcomes, THAs should remain on the IPO list until clear, generally-accepted, evidence-based clinical criteria and strict protocols are developed to adequately determine whether any given THA procedure should be designated as inpatient or outpatient.
The second proposal is related to CMS’s ongoing policy to promote site neutrality by adding TKA to the 2020 Ambulatory Surgery Center (ASC) Covered Surgical Procedures List (CPL). The OrthoForum generally supports this proposal, since the direction of patients to an ASC setting would be under the complete guidance of the operating physician and ideally would alleviate some of the ambiguity and issues experienced with the inpatient and outpatient 2018-2019 TKA designations as well as those anticipated in the proposed THA changes. However, concerns around patient safety and overall patient care remain a top priority to all orthopaedic practitioners. Therefore, prior to implementing this proposal, it is imperative that standard procedures to determine proper site of service criteria are established when designating whether a Medicare beneficiary is an ideal candidate for an ASC TKA procedure. For a full list of highlights on the key provisions in the rule impacting ASCs, please see the Ambulatory Surgery Center Update section elsewhere in this newsletter.
It is anticipated that changes to the IPO list and procedure care setting will adversely impact the operational, pricing, participation, and performance of BPCI-A and other CMMI models. Changes that dramatically impact model participation and performance diminish the capacity of CMMI to create new payment models and generate necessary data vital for the transition of an experimental model to a sound payment structure. While the goal of CMMI models is to reduce overall costs while improving patient care, these proposed changes may also result in unintended payment burdens to the patient, such as cost-shifting to the Medicare beneficiary population. The OrthoForum will continue to work closely with Jerry Rupp and other OrthoForum experts and partners on BPCI-A and other CMMI models.
To view the comment letter submitted by Fusion5 Chief Innovation Officer, Jerry Rupp on the CMS rule as it relates to CMMI and BPCI-A concerns for orthopaedic practices, please CLICK HERE.
For more information on CMMI issues, or to join the OrthoForum Advocacy Committee CMMI Subcommittee, please contact Karen Simonton at: karen.simonton@orthovirginia.com.
Stark Law Update
Proposed Rule for Reforms to the Stark Law
The Department of Health and Human Services (HHS) released a proposal on October 9 to reform the Stark Law, which became an official proposed rule when it was published in the Federal Register on October 17. The proposed rule would create three Stark exceptions for value-based arrangements (VBAs). With respect to alternative payment models (APMs) created by Medicare’s Center for Medicare & Medicaid Innovation (CMMI), two of the proposed exceptions apparently would allow physicians to move beyond CMMI-created APMs. It seems it would be possible for a physician group practice (PGP) to create a VBA through which all the PGP’s patients could be treated the same way. This would avoid the current type of situation in which some patients are in a CMMI model and therefore Stark waivers apply, whereas other patients are not in the model and Stark waivers do not apply.
The proposed rule does not address physician ownership of home health agencies, as the rule only concerns compensation arrangements.
The proposed rule also does not address the restrictions that the Affordable Care Act (ACA) placed on physician-owned hospitals (POHs). It appears that HHS considers those restrictions to be beyond the scope of this particular proposed rule. The rule focuses on the request for information (RFI) that CMS issued on June 25, 2018, and at one point the rule states that some comments on the RFI “provided feedback on issues that were not covered by the CMS-RFI, such as requests to eliminate or keep the statutory restrictions for physician-owned hospitals”.
CMS issued a separate RFI on the ACA’s restrictions on POHs, which was on April 28, 2017. Therefore, the RFI in April 2017 (POHs) and the one in June 2018 (the subject of the new VBA proposed rule) are on separate tracks. The question is whether CMS will issue a proposed rule that focuses solely on POHs.
Summary of Proposed Rule for Reforms to the Stark Law
The proposed rule would create three Stark exceptions for value-based arrangements (VBAs). With respect to alternative payment models (APMs) created by Medicare’s Center for Medicare & Medicaid Innovation (CMMI), two of the proposed exceptions apparently would allow physicians to move beyond CMMI-created APMs. It seems it would be possible for a physician group practice (PGP) to create a VBA through which all the PGP’s patients could be treated the same way. This would avoid the current type of situation in which some patients are in a CMMI model and therefore Stark waivers apply, whereas other patients are not in the model and Stark waivers do not apply.
HHS says that, although physicians could continue to use the Stark waivers provided as part of participating in CMMI models, the new exceptions would mean that new CMMI waivers would not be necessary for physicians participating in VBAs.
Before discussing more details on VBAs, it is important to understand the scope of the proposed rule. The Stark Law concerns two types of financial relationships, which are (1) compensation arrangements, and (2) ownership or investment interests. The exceptions in the proposed rule only concern compensation arrangements. Since the Stark restrictions on physician-owned hospitals (POHs) concern ownership or investment interests, the POH restrictions are not addressed by the proposed rule. Similarly, the physician ownership of home health agencies is not addressed. It is possible that HHS plans to issue a Stark proposed rule that concerns ownership or investment interest, given that the agency issued a POH-focused “Request for Information” (RFA) in April 2017.
Although the creation of the three VBA exceptions is the focus of the proposed rule, the rule also clarifies several Stark concepts that apply generally, not just to the new VBAs. The rule says its main purposes are—
- the proposed definitions and special rules for “commercially reasonable” compensation arrangements, “fair market value” compensation, and the volume or value standard applicable throughout the physician self-referral law and regulations; and
- the transition from a volume-based to a value-based health care system.
The proposed rule does mention CMMI-developed APMs in a number of places, but the rule expressly states, “Physician self-referral law policy is not the appropriate place to define or identify alternative payment models.” HHS received requests to deem certain financial relationships to qualify as APMs, but declined to do so. The proposed rule instead has a more narrow goal. Rather than focusing on the definition of APMs, HHS says, “We believe that the approach discussed in this proposed rule, under which the proposed exceptions are available for compensation arrangements designed to achieve the value-based purpose(s) of an enterprise consisting of at least the physician and the entity to which he or she refers designated health services, is the better approach.”
As to what specifically constitutes a “value-based arrangement”, there are a number of different components to the concept. The core principles are that (1) the arrangement must be directed at a “target patient population” selected on the basis of “legitimate and verifiable criteria” that are put in writing before the VBA begins operation, and (2) the arrangement must involve activities that have a value-based purpose, which means at least one of the following four purposes:
- Coordinating and managing the care of a target patient population;
- Improving the quality of care for a target patient population;
- Appropriately reducing the costs to, or growth in expenditures of, payors without reducing the quality of care for a target patient population; or
- Transitioning from health care delivery and payment mechanisms based on the volume of items and services provided to mechanisms based on the quality of care and control of costs of care for a target patient population.
A target patient population cannot consist of only lucrative or adherent patients (cherry-picking). In addition, costly or noncompliant patients cannot be avoided (lemon-dropping).
At least two entities must participate in the referral arrangement and perform activities that have a value-based purpose. The participants together are the “value-based enterprise” (VBE), which must—
- have an accountable body or person responsible for financial and operational oversight of the value-based enterprise; and
- have a governing document that describes the value-based enterprise and how the VBE participants intend to achieve its value-based purpose(s).
The proposed rule gives a VBA example, which concerns lower extremity joint replacements:
Value-based activities must be reasonably designed to achieve at least one value-based purpose of the value-based enterprise. For example, if the value-based purpose of the enterprise is to coordinate and manage the care of patients who undergo lower extremity joint replacement procedures, a value-based arrangement might require routine post-discharge meetings between a hospital and the physician primarily responsible for the care of the patient following discharge from the hospital. However, if the value-based purpose of the enterprise is to reduce costs to, or growth in expenditures of, payors while improving or maintaining the improved quality of care for the target patient population, providing patient care services (the purported value-based activity) without monitoring their utilization would not appear to be reasonably designed to achieve that purpose.
Three VBA exceptions would be created. One of the exceptions concerns the donation of cybersecurity technology and related services. The other two exceptions concern bearing financial risk.
With both of these financial-risk exceptions, remuneration can be based on the fair market value of the physician’s referrals. Certain safeguards apply, including that remuneration must not be conditioned on referrals of patients who are not part of the target patient population, and that the remuneration must not be an inducement to reduce or limit medically necessary items or services to any patient.
The proposed rule provides an example concerning this fair market value provision for VBAs. The example involves a physician group practice (PGP) with 100 physicians. Two of them participate in an APM conducted by a commercial payor. Although Stark does not apply directly to this commercial APM, the two physicians do have financial relationships such that their referrals of APM patients to the PGP to receive Medicare services trigger Stark. Under the current regulations, these APM-related Medicare profits generated by the referrals would have to be divided among the 100 physicians in the PGP. Under the proposed rule, however, the commercial APM would be a VBA; therefore, those two physicians could be individually paid on the basis of the APM-related Medicare profits they generated for the PGP, without the other physicians in the PGP receiving any of those APM-related profits.
The proposed rule defines the two financial-risk exceptions as follows:
Full financial risk—This means that the VBE is financially responsible on a prospective basis for the cost of all patient care items and services covered by the applicable payor for each patient in the target patient population for a specified period of time. The VBE must, within 6 months of beginning operations, be at full financial risk and must remain so for the duration of the VBA.
HHS says that, for Medicare beneficiaries, this would mean that the VBE, at a minimum, is responsible for all items and services covered under Parts A and B.
Meaningful downside financial risk to the physician—This means (1) the physician is responsible to pay the VBE no less than 25 percent of the value of the remuneration the physician receives under the VBA; or (2) the physician is financially responsible to the VBE on a prospective basis for the cost of all or a defined set of patient care items and services covered by the applicable payor for each patient in the target patient population for a specified period of time.
Importantly, PGPs and hospitals will have to figure out whether their proposed VBAs fit within one of the new exceptions. This will not be like participating in CMMI models, where participants have detailed agreements with CMMI that spell out all the details.
The current Stark regulations do have a process for submitting a formal request to obtain a CMS advisory opinion. The regulation states, “The request must involve an existing arrangement or one into which the requestor, in good faith, specifically plans to enter.” The regulations, however, expressly state that CMS will not provide an advisory opinion on whether “the fair market value was, or will be, paid or received for any goods, services, or property”. The proposed rule does not amend the regulations concerning this CMS process for advisory opinions.
The medical community is always seeking the guidance of HHS on what is permissible in terms of Stark exceptions. The proposed rule says that HHS is trying to provide guidance on VBAs. HHS also says it seeks “comment regarding permissible ways to determine whether quality of care has improved, a methodology for determining whether costs are reduced or expenditure growth has been stopped, or what parties must do to show they are transitioning from health care delivery and payment mechanisms based on the volume of items and services provided to mechanisms based on the quality of care and control of costs of care.”
The HHS effort at Stark reform is a work in progress. We will get more guidance when the final rule is issued.
Cassidy-Warner AKS-Stark Law Reforms
The OrthoForum’s efforts with Senator Cassidy’s office to enact the Cassidy-Warner Anti-Kickback Statute (AKS) and Stark Law reforms through legislative language have encountered a roadblock, as a senior Senate Democrat is opposed. The OrthoForum Advocacy Committee coordinated closely with the office of Senator Cassidy on AKS-Stark language. He and Senator Warner worked to have their language included in the bipartisan drug-pricing legislation that was developed by the Chairman of the Senate Finance Committee, Senator Chuck Grassley (R-IA), and the top Democrat on the Committee, Senator Ron Wyden (D-OR). Wyden, however, is deeply opposed, and Grassley did not want to lose Democratic support for his bill. The Advocacy Committee will continue its efforts on these issues.
HHS AKS-Stark Proposed Rule and Strategic Plan
As noted in a previous newsletter, the OrthoForum Advocacy Committee has had meetings with top officials at the White House and HHS to discuss the authority of HHS to modify or remove the Stark Law restrictions on POHs. These officials were very interested in our efforts. On June 5, HHS sent the White House a draft proposed rule for AKS-Stark reform. The proposed rule is currently under review and may be issued in the upcoming months.
In addition, the OrthoForum Advocacy Committee is in the process of developing a 2020 strategic plan through which we will continue our efforts with HHS and Congress to make AKS-Stark reforms.
For more information on Stark Law issues, or to join the OrthoForum Advocacy Committee Stark Law Subcommittee, please contact Dr. Chip Hummer at: chumer3@premierortho.com.
Ambulatory Surgery Center Update
Key ASC Provisions in the CMS 2020 OPPS/ASC Payment Rule
As discussed elsewhere in this newsletter, on July 29, 2019, the Centers for Medicare & Medicaid Services (CMS) released the 2020 proposed payment Medicare payment rule for hospital outpatient departments (HOPDs) and ASCs. The comment period closed on September 27, 2019. For ASCs meeting the quality reporting requirements, the update to the conversion factor would be 2.7 percent, based on the “hospital market basket.” This updated approach was first used for CY 2019 and is more favorable than the previous update methodology. This market basket, which is also used for hospital HOPDs under the OPPS, was based on a 3.2 percent increase in inflation but was reduced by 0.5 percent per the “productivity reduction” required by the ACA. This proposed ASC conversion factor is about 59 percent of the HOPD conversion factor. Total knee arthroplasty would be added to the ASC payment list. (Although total hip arthroplasty would be removed from the IPO list, it would not be added to the ASC payment list.) For 2024, there would be a new quality reporting measure, ASC-19: Facility-Level 7-Day Hospital Visits after General Surgery Procedures Performed at Ambulatory Surgical Centers. Note that another quality reporting measure is already scheduled to take effect in 2022, which is ASC-17: Hospital Visits After Orthopedic Ambulatory Surgical Center Procedures.
New Bipartisan ASC Legislation
On September 17, 2019, two senior members on the House Ways and Means Committee, Representative John Larson (D-CT) and Representative Devin Nunes (R-CA), introduced H.R. 4350; the Ambulatory Surgical Center Quality and Access Act of 2019, which would require CMS to use the hospital market basket to update the ASC conversion factor. Currently CMS is using it as a matter of the agency’s discretion. To get to the House floor, the bill would have to get approval from both the Ways and Means Committee and the Energy and Commerce Committee.
For more information on ASC issues, or to join the OrthoForum Advocacy Committee ASC Subcommittee, please contact Teresa Copeland at: teresa.copeland@orthotennessee.com.
Balance Billing Update
Although Congress agrees that patients should be protected from large medical bills resulting from out-of-network services provided as part of emergency care and follow-up services, there is disagreement about how the insurance system should pay for these services. The insurance industry favors payment being made on the basis of the median in-network payment amount for the service in the geographic area involved. Physicians favor the inclusion of an arbitration process.
The House Energy & Commerce Committee (E&C) and the Senate Health, Education, Labor, and Pensions Committee (HELP) each approved balance billing legislation in July. The E&C bill started out with no arbitration provision, but one was added in committee at the last moment. The HELP bill does not have an arbitration provision, but the Chair of the Committee, Senator Lamar Alexander (R-TN), made statements in August that he is considering adding one on the Senate floor.
The situation has become more complicated, however. In August, a new organization spent around $30 million on advertising to support the arbitration approach, and the press eventually reported that this organization was funded by hedge funds that own companies that staff hospital emergency rooms. The New York Times ran a detailed story about this on September 13, 2019. To read the article, CLICK HERE. E&C is now investigating the role of these hedge funds.
The House Ways & Means Committee (W&M) recently proposed a new approach, called “negotiated rulemaking”. Staff from HHS, the Labor Department, and the Treasury Department, together with various stakeholders, would all form a committee to make recommendations to the leaders of the three Departments, who would then issue a proposed rule. The Committee is developing legislative text for this approach. This W&M proposal further complicates the situation in Congress.
The House Education & Labor Committee may also consider balance-billing legislation, as it is the only House committee with ERISA jurisdiction.
It is unclear what will happen during the remainder of 2019. Given the current focus on drug-pricing and appropriations deliberations, it may be difficult to make anything happen. This is particularly true now that House Speaker Pelosi’s drug-pricing negotiation bill (H.R. 3) has been introduced and an appropriations continuing resolution (CR) is funding the government through November 21. A government shutdown will happen if further appropriations are not enacted by November 22. As a result, late November and also December are expected to be a very intense time for Congress. And, of course, the recently opened presidential impeachment inquiry in the House will complicate all legislative matters.
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 race for the Democratic nomination for president has shifted recently, and not just because some low-polling candidates have dropped out. A mid-October surge by Elizabeth Warren has receded, and as of late October she has trailed Joe Biden in eight of the last nine polls. Averaging recent polls presents a clear picture of the Democratic race, at least for the moment: Joe Biden in the high 20s, Elizabeth Warren in the low 20s, Bernie Sanders in the teens, and Pete Buttigieg in mid-high single digits. All of this is subject to change, but as of now the field has a clear top four.
Sanders’s campaign disclosed at the beginning of October that the candidate was undergoing a cardiac procedure. On another front, on that same day in October, Sanders’s campaign announced that it was cancelling its Iowa TV ad buy.
Does this mean that Sanders is withdrawing? No. His campaign also proclaimed that it realized the biggest fundraising haul of any Democrats in the third quarter of 2019, $25 million.
Should Sanders withdraw? That’s a different question. All of the polls conducted since mid-September have Sanders running a distant third in the New Hampshire primary, well behind Biden and Warren, who are in a close race for first.
Why is New Hampshire so important? The strongest contender from one of New Hampshire’s neighboring states always wins the New Hampshire Democratic primary – think Ed Muskie, Mike Dukakis, Paul Tsongas, and John Kerry (Ted Kennedy’s ill-fated challenge to incumbent Jimmy Carter was foretold by his failure to top Carter in New Hampshire). Sanders joined that list in 2016, when he took more than 60% of the vote against Hillary Clinton. Finishing third would be a humiliating step backwards.
Sanders might argue that 2020, unlike 2016, is a twenty-candidate contest, and no one is getting close to 60% in an early state primary. That’s a fair point as far as it goes, but it doesn’t mitigate the pain of a third-place finish. As a rule, you don’t become the nominee by doing worse than you did in the year when you still fell short of the nomination.
Sanders’s calculation is unique. He serves in the Senate as an independent, not a Democrat, and has no particular loyalty to the Democratic Party. He is uniquely positioned to remain in the race even if he has no chance of winning, especially if the contributions continue to flow.
There are other factors that may lead to a shakeout of the Democratic field. The qualification criteria for the November debate were tightened, but that debate will still feature at least nine contenders – the aforementioned Biden, Warren, Sanders, and Buttigieg, plus Cory Booker, Kamala Harris, Amy Klobuchar, Tom Steyer, and Andrew Yang. The only candidates who were on stage for the October debate but are likely to be excluded in November are Julian Castro, Tulsi Gabbard, and Beto O’Rourke.
However, the Democratic National Committee has announced stricter standards for the December debate. As of late October, only Biden, Warren, and Sanders would qualify. Buttigieg and Harris are good candidates to make it. Steyer, who is spending his own money at unprecedented rates, and Yang both have a shot. Booker and Klobuchar have not to date received the kind of polling numbers they would need to get in. In other words, come December we’re more likely to have a six-candidate debate than a nine-candidate debate.
