Aug. 9, 2024: National Advocacy Update

On Aug. 2, the U.S. Fifth Circuit Court of Appeals affirmed the federal district court’s ruling in Texas Medical Association (TMA) vs. the Departments of Health and Human Services (HHS) et al. (TMA II) to set aside certain regulations implementing the No Surprises Act (NSA).

In particular, the decision invalidates a final rule that implemented the Independent Dispute Resolution process in a way that favored health plans over physicians, hospitals and other providers. The Court found that the final rule exceeded the departments’ authority and violated the express, unambiguous terms of the NSA “because it imposes three extrastatutory requirements on arbitrators:

1. the arbitrators must consider the [Qualifying payment Amount (QPA)] first and ‘then’ the other factors;
2. the arbitrators must not consider information that is not ‘credible’ or ‘related to’ the issue, or that is already accounted for in the QPA; and
3. the arbitrators must explain their reasons if they depart from the QPA.”

These requirements “place a thumb on the scale in favor of the insurer-determined QPA in derogation of the other congressionally mandated factors.” The court ruled that nothing in the original NSA statute instructs arbitrators to weigh any one factor or circumstance more heavily than the others. Future rulemaking on the issue is likely, but it is unclear when. The AMA submitted amicus briefs in support of TMA’s lawsuit at both the district and appeals court levels. Read more about the AMA’s advocacy for a fair and balanced implementation of the NSA.

The AMA, along with the March of Dimes and Sinai Urban Health Institute, recently released a report (PDF) finding that maternal care access is unequally distributed across the City of Chicago. The report found that since 2018, three OB/GYN facilities that were more convenient for residents of the south and west sides have closed. These closures require expectant mothers to travel outside of their neighborhoods to receive routine or specialty OB/GYN care.

The report found that maternal health care access across Chicago coincides with the distribution of race and ethnicity. Most zip codes with low access to maternal health care are not only located on the south and west sides of the city but are also in zip codes with a population of mostly Black residents. The next highest proportion of zip codes with low maternal care access overlapped with zip codes where the majority of residents are Hispanic/Latino.

The joint report makes recommendations to support mothers and their babies including the use of virtual care to bridge in-person appointments, support from foundations and community programs, diversifying the maternal health care workforce and education funding to expand the maternal health workforce. The AMA recently shared concrete steps (PDF) with the Administration and Congress for increasing and retaining the number of physicians in the maternal and infant care space to decrease maternal care deserts and improve health outcomes. The AMA will continue to work toward equitable maternal care for all patients.

The Department of Health and Human Services (HHS) recently reorganized several functions in technology, cybersecurity, data and artificial intelligence (AI) to better support strategy and policy development in these areas. The most significant changes are at the Office of the National Coordinator for Health Information Technology (ONC), with ONC being renamed the Assistant Secretary for Technology Policy and ONC (ASTP/ONC).

In addition, National Coordinator Micky Tripathi, PhD, MPP, was named assistant secretary for technology policy/national coordinator for health information technology. Oversight over technology, data and AI within the Department will move to ASTP/ONC, including the HHS-wide roles of chief technology officer, chief data officer and chief AI oficer (details and position descriptions).

The chief AI officer will:

• Set AI policy and strategy for HHS
• Establish internal governance, policies, and risk management approaches for uses of AI internal to HHS
• Coordinate HHS’s AI approach in the health and human services sectors

As part of the reorganization, the public-private effort between the health sector and the federal government on cybersecurity (“405(d) Program”) will also move to the Administration for Strategic Preparedness and Response (ASPR) within HHS, joining the other health sector cybersecurity activities already located in ASPR’s Office of Critical Infrastructure Protection, and advancing the Department’s one-stop-shop approach to health care cybersecurity.

It is clear that a one-size-fits-all approach to caring for patients with pain is not a prudent way to manage care. National policymakers are taking note: the Federation of State Medical Boards recently adopted revisions to its recommendations relating to opioids and pain care that focus on individualized, patient-centered care. The AMA strongly supports the update.

Register for this Advocacy Insights webinar on Sept. 17 at noon Central to hear about:

• The new guidelines and how they were updated
• Recommendations and expectations for medical boards
• How medical boards are addressing access to treatment for patients with pain

Moderator:

• Michael Suk, MD, JD, MPH, MBA, chair, AMA Board of Trustees

Speakers:

• Humayun Chaudhry, DO, president and CEO, Federation of State Medical Boards
• Sarvam TerKonda, MD, past chair, Federation of State Medical Boards
• Sherif Zaafran, MD, board member, Federation of State Medical Boards

On July 17, the American Academy of Family Physicians, American College of Physicians and the AMA hosted a webinar with Centers for Medicare and Medicaid Innovation Center (CMMI) staff for primary care physicians interested in participating in the new Accountable Care Organization Primary Care Flex Model (“ACO PC Flex”).

ACO PC Flex is a voluntary five-year model that will provide more predictable payments by testing primary care capitation within the Medicare Shared Savings Program (MSSP). ACOs that applied to the Shared Savings Program as either new or renewing ACOs must submit an ACO PC Flex application questionnaire by Aug. 23, 2024. All participating primary care practice TINs with an ACO must participate.

During the webinar, ACO PC Flex Model leadership overviewed key elements of the model, addressed frequently asked questions and participated in a live Q&A. The webinar recording and FAQs based on the webinar are both available.

For more information on the model, visit the request for applications (PDF) or the CMS ACO PC FLEX Model webpage.  

A brief on privacy in retail health care settings (PDF) has been developed based on a Council on Medical Service (CMS) report (PDF) that was adopted during the June 2024 Annual Meeting.

The CMS report establishes new AMA policy that supports:

• Regulatory guidance to create a privacy wall between the health business and non-health business of retail health care companies
• The separation of consents required to receive care from any consents to share data for non-medical care reasons
• The prohibition of “clickwrap” contracts that assume assent through use of the product without actually affirmatively consenting to the data sharing
• The requirement that retail health care companies clearly indicate how patients can withdraw consent and request deletion of data

• Aug. 9, 2024: Advocacy Update other news