April 4, 2019: National Advocacy Update

For more than a decade, the AMA has advocated for expanded coverage and key health insurance reforms that help patients. That work continues as the AMA fights to protect gains made by the Affordable Care Act (ACA)—now being challenged in federal court—while supporting House lawmakers in their recent efforts to strengthen the ACA.

Signed into law nine years ago, the ACA ushered in gains that most now consider essential — creating options for affordable, high-quality individual coverage for millions while also guaranteeing coverage for pre-existing conditions and other important protections for the most vulnerable. The task now is to build on what has been shown to work and continue to make enhancements where needed. In releasing a set of bills to improve the ACA last week, lawmakers demonstrated an understanding that access and affordability are still challenges for many individuals and families.

The ACA improvement bills H.R. 1385, H.R. 1386, H.R. 1425, H.R. 987, H.R. 986, H.R. 1010 would reauthorize the state reinsurance program, restore funding for the ACA navigator and enrollment consumer education programs, authorize $200 million for states to establish state-based health exchanges, and limit use of Section 1332 waivers and ACA waivers to undermine the ACA's pre-existing condition consumer protections.

The AMA supported these bills with recommendations on further enhancing the bills to increase health care access, lower premium and out of pocket costs and protect consumers. The bills were reported favorably. They were considered by the full committee this week.

In addition, the AMA and other leading physician organizations filed an amicus brief this week in the case of Texas v. United States to defend the significant coverage gains and key patient protection provisions of the ACA. "The district court ruling that the individual mandate is unconstitutional and inseverable from the remainder of the ACA would wreak havoc on the entire health care system, destabilize health insurance coverage and roll back federal health policy to 2009," said AMA President Barbara L. McAneny, MD. "The ACA has dramatically boosted insurance coverage, and key provisions of the law enjoy widespread public support. The district court's decision to invalidate the entire ACA should be reversed."

In a recent comment letter on the draft report (PDF) of the federal Interagency Pain Management Best Practices Task Force, the AMA commended the Task Force for its authoritative, evidence-based report and urged implementation of its recommendations. The AMA expressed appreciation for the report's clear recognition that policies and practices that only promote, prioritize or pay for minimizing prescription opioid prescribing risk undertreating pain and lead to sub-optimal outcomes, stigma and barriers to care.

The AMA strongly supports the recommendations for health insurance policies to be changed and aligned to support comprehensive multimodal, multidisciplinary, restorative pain care. The report also underscores the AMA's view that the voluntary guidance on opioid prescribing developed by the Centers for Disease Control and Prevention has been misapplied, leading to considerable pressure on physicians to reduce opioid prescribing, and often leading to patient suffering.

On March 27, the House Energy and Commerce Health Subcommittee marked up a number of bills, supported by the AMA, to lower prescription drug costs by approving generic drug competition. The generic drug competition bills, H.R. 938, H.R. 1499 and H.R. 965, would address practices used by manufacturers to block market entry by generic competitors, including pay-for-delay settlements, "parking" the 180-day exclusivity granted the first generic applicant to block follow-on applicants and refusing to provide the samples needed for generics applicants to get U.S. Food and Drug Administration (FDA) approval. H.R. 1503 and H.R. 1520 would modernize the Orange book for drug patents and authorize a Purple book for biologic patents to ensure generic manufactures have the information they need to apply to the FDA. H.R. 1781 would ensure the Medicare Payment Advisory Commission and the Medicaid and CHIP Payment and Access Commission have access to data needed to evaluate the practices of various entities within the pharmaceutical supply chain state reinsurance program. These bills were considered by the full committee this week.

On April 2 the House Education and Labor's Subcommittee on Health, Employment, Labor and Pensions held a hearing entitled: "Examining Surprise Billing: Protecting Patients from Financial Pain." The hearing had an educational focus, with testimony from a panel of health care stakeholders, including Families USA, the Brookings Institute, the American Benefits Council and a professor, Jack Hoadley, PhD, research professor emeritus, Georgetown University, Health Policy, to discuss proposed solutions to surprise billing. Witnesses also explored lessons learned from state law approaches to addressing this phenomenon.

The panel agreed that patients should not be held responsible for the dispute in payment between providers and insurers over an out-of-network bill, generally expressing the opinion that surprise billing results from a market failure where normal insurance rules of a negotiated in network price in exchange for a stream of patients does not apply to certain specialties, because services of hospital-based physicians have inelastic demand. Witnesses urged the committee to pass federal legislation that would create a benchmark for a fair out-of-network payment; cautioned against having that rate set as a percentage of charges which would drive up premiums and overall costs for the health care system; and urged some percentage of Medicare payments, such as 125 percent, be adopted instead. They also supported a process whereby the provider and insurer are encouraged to negotiate to reach a fair payment or enter arbitration. Witnesses talked about the importance of applying these patient protections against surprise bills across insurance products, and beyond the emergency room, discussed how air ambulances and ground ambulances are also contributing to the problem of surprise bills with their out-of-network status. Lastly, they discussed the importance of a federal law applying these protections to Employee Retirement Income Security Act-regulated plans, as patients in these plans are not protected by state laws aimed at curbing surprise bills and they are equally impacted by this unfair billing practice.

The AMA submitted a statement for the record (PDF) emphasizing the need to hold the patient harmless and instead to create a process where providers and insurers can reach a fair payment amount for out-of-network care in situations where a patient cannot choose the provider, while also pushing insurers to be required to have networks of physicians and other providers sufficiently available to care for their beneficiaries. Separately the AMA joined in a letter (PDF) with the American Hospital Association and the Federation of American Hospitals to express joint opposition to one proposed solution which would call for the creation of payment bundles for episodes of emergency care that would be administered by the hospital. All three groups noted the complexity and inappropriateness of such a model for care that is as highly variable as the full spectrum of services provide to emergency patients.

The AMA has developed a new resource for physicians who participate in Medicare accountable care organizations (ACO) and those who are considering applying to the program. An AMA summary of the 2018 ACO final rule provides a high-level overview of key changes in the regulations governing Medicare ACOs. These changes include an expanded application of risk adjustment to all of an ACO's assigned patients instead of just new patients and a new distinction between "high revenue" and "low revenue" ACOs, which refers to the proportion of total spending on an ACO's patient population that is fee-for-service revenue to the practices, hospitals and other participants in the ACO. In addition, tables included in this new resource provide a side-by-side comparison of key features of the previous Medicare ACO tracks with the new ACO tracks established by the final rule.

The AMA recently responded to a request from Senator Mark Warner (D-VA) (PDF) seeking comments and recommendations to address cybersecurity vulnerabilities in the health care system. Congress and the administration should do more to address cybersecurity vulnerabilities in health care because:

• Cybersecurity is a patient safety issue
• Cyber-attacks are inevitable and increasing
• Physicians are interested in receiving tools and resources to assist them in their cybersecurity efforts
• The health care sector exchanges health information electronically more than ever before, putting the entire health care ecosystem at risk

Based on an AMA/Accenture cybersecurity survey, 8 in 10 physician practices have experienced some form of cybersecurity attack. Physicians recognize that it is not "if," but "when" they will experience a cyber-attack. Small practices need extra help in navigating cybersecurity challenges. The federal government needs to empower physicians to actively manage their security posture, not hinder them. Specifically, physicians are interested in receiving tools and resources to increase their cyber hygiene. In its response, the AMA highlighted the increased urgency to advance policies that remedy vulnerabilities in cybersecurity.

The AMA's cybersecurity survey also shows that 85 percent of physicians believe it is "very" or "extremely" important to share data to provide efficient, quality care but are concerned about how to share it securely. This is increasingly important as the industry moves towards value-based care, telemedicine and remote patient monitoring. To that end, the AMA has developed physician resources to help bolster cyber hygiene in their practices. The Digital Health Implementation Playbook includes a Cybersecurity 101 Section discussing cybersecurity concerns when implementing digital health into a practice and provides a sample vendor-information request form including a section on data security privacy.

The AMA's response also highlighted the need for increased security awareness, technical capacity and federal efforts. A recent federal advisory report noted that improved cybersecurity awareness and education are needed to strengthen cybersecurity. Meeting this goal requires an educated workforce. The AMA's cybersecurity survey further identifies the need for education. The AMA recommends technology vendors and device manufactures explain patient safety issues related to cybersecurity in plain English, using standardized formats and with a consistent meaning of risk. The AMA specifically calls out the needs of small practices. Many physician offices do not have stand-alone information technology (IT) departments, requiring extra help in navigating cybersecurity challenges and dealing with legacy technologies. Only 20 percent of small practices have internal security officers, so they typically rely on health IT vendors for security support. The AMA urges technology vendors to be more transparent and proactive about disclosing costs to physicians upfront, updates and patch management, and the lifecycle of technology.

The AMA is also calling for policy changes to improve cybersecurity surrounding legacy technologies. Patient safety and cyber risk must be properly allocated across all involved parties. Incentives should be structured so those best positioned to have knowledge of risks and best positioned to minimize harm are incentivized to do so. The AMA recommended additional federal policies to urge manufacturers and EHR vendors to proactively minimize risk to patients and share accountability for protecting patient data and maintaining data integrity. The AMA is encouraging Congress and the administration to help reframe the conversation from punitive provider requirements to an opportunity for positive incentives. Potential incentives include creating a cybersecurity anti-kickback safe harbor and Stark (physician self-referral) exception, developing improvement activities for QPP that promote good cyber hygiene and permitting multiple paths to the Health Insurance Portability and Accountability Act (HIPAA) security rule.

• April 4, 2019: Advocacy spotlight on Physicians score a win in bid to fix prior authorization 
• April 4, 2019: State Advocacy Update