Dec. 20, 2019: National Advocacy Update

The 5th U.S. Circuit Court of Appeals has ruled in the case of Texas v. United States that the Affordable Care Act's individual mandate provision is unconstitutional. While that ruling affirmed a portion of the decision by the U.S. District Court for the Northern District of Texas, the appeals court did not go along with district court ruling vacating the entirety of the law that has increased health insurance coverage for tens of millions of Americans.

This case still has a way to go before being fully resolved in the courts. After the district court issues its ruling in the remanded case, it will surely proceed back to appeals court and then, assuredly, to the U.S. Supreme Court. The matter is unlikely to be resolved prior to the 2020 presidential election. The individual mandate already has a zero-dollar penalty and is not being enforced, due to 2017 federal legislation. The protections for patients with pre-existing conditions continue to stay in effect. Read more here.

Congress is expected to approve federal funding for gun violence research this week for the first time in over 20 years as part of a final year-end appropriations package that the President is expected to sign into law. The deal, based on amendments authored by House Appropriations Chairwoman Nita Lowey (D-NY), would designate $25 million for gun violence research split evenly between the Centers for Disease Control and Prevention and the National Institutes of Health. The AMA has long advocated for Congress to address the high number of gun-related homicides, suicides and injuries—many of which are preventable—as a public health issue similar to addressing tobacco use, underage drinking, alcohol and helmet use for bicyclists and motorcyclists. Determining the root causes—through federally-funded research—of any public health problem is critical to developing solutions.

On Dec. 11, Ways and Means Committee Chair Richard Neal (D-MA) and Ranking Member Kevin Brady (R-TX) announced that they had reached an agreement on surprise billing legislation to advance early next year. The agreement summary is limited on details, but some information about their new approach has come to light. Like other proposals, this plan would limit patients' out-of-pocket costs to the amounts they would have owed if they had the opportunity to choose in-network physicians and facilities to provide their care.

A yet to be defined "robust reconciliation process" is included to end payment disputes between insurers and providers when they fail to negotiate a settlement. This process, which could be similar to an independent dispute resolution (IDR) system, is not restricted to claims above a certain threshold amount, nor does it establish a payment benchmark based on in-network payment amounts. However, the Committee would include disincentives against overutilizing the process by levying surcharges on insurers and providers whose use of the process exceeds some unspecified frequency. Price and network transparency provisions and protections for patients whose provider networks change during the plan year are also included.

The AMA will continue to work with the physician community to ensure that any final surprise billing legislation in Congress holds patients harmless and includes a fair and balanced approach that treats all stakeholders equally while preserving access to care.

With health extenders only reauthorized until May 22, it is possible that surprise billing legislation could be included in a larger health care extender package in May of 2020.

The AMA recently submitted a letter to Reps. Fred Upton (R-MI) and Diana DeGette (D-CO) in response to a call for recommendations regarding a new CURES 2.0 legislative package. The bipartisan duo authored the landmark 21st Century Cures Act enacted by Congress in 2016, designed to accelerate the discovery, development and delivery of 21st century cures. The new CURES 2.0 initiative is "an effort to modernize coverage and access to life-savings cures in the United States and across the globe. Patients from across the country continually remind us that a modernized system of developing new cures will require a modernized health care delivery system capable of delivering them to patients in need." The AMA's letter (PDF) makes recommendations regarding oversight of software and AI, coverage and payment for telehealth and other digital health services, clarifications of Stark and Anti-Kickback laws, waivers for certain Medicare co-pay requirements, data interoperability, privacy and improving federal rules around use of Health IT.

In response to a request for information on the planned Oncology Care First (OCF) model, the AMA urged (PDF) the Center for Medicare and Medicaid Innovation (CMMI) to limit financial accountability to the cost of patients' cancer care, link performance measures to evidence-based clinical pathways, and incorporate more factors that affect patients' health care needs into OCF risk adjustments. In contrast to OCF, which proposes to put participants at financial risk for all of the services their patients receive for all of their health care needs, the AMA noted that the Making Accountable Sustainable Oncology Networks (MASON) model would hold participating practices accountable only for the cost of cancer treatment and related complications.

Another advantage of the MASON model over the planned OCF model is that it holds practices accountable for following recommended clinical pathways, which is the only appropriate way to ensure that patients' treatment plans are based on their needs and that they do not get inappropriate drugs or services. The National Comprehensive Cancer Network advocated for using performance measures based on clinical pathways at a November listening session convened by CMMI.

Listening session participants also agreed with the AMA that improvements are needed in OCF payments because, as currently outlined, the approach would not take into account the effects of stage of cancer, subtype of cancer, the toxicity and complexity of the chemotherapy, and the patient's functional status and caregiver support, all of which have a major impact on the services that patients need and cancer care costs. For example, higher-toxicity chemotherapy requires closer patient monitoring, potentially more supportive drugs (like drugs to prevent infection and anti-emetics), and a higher frequency of interventions to avoid emergency visits.

The current Medicare oncology model, called the Oncology Care Model, is slated to end at the end of 2020 and the new model would then begin in 2021.

The AMA recently wrote (PDF) to the Centers for Medicare & Medicaid Services (CMS) to ask the agency to clarify that the initial testing period for the Medicare Appropriate Use Criteria (AUC) program for advanced diagnostic imaging will hold physicians harmless and to do more education and outreach as most physicians remain unaware of the program's requirements. Moreover, AMA called on CMS to reduce burdens in the AUC program as part of the agency's Patients Over Paperwork Initiative, which AMA strongly supports. The AMA has previously addressed concerns with the scope and complexity of the AUC program and will continue to call on CMS to resolve technical and operational workflow challenges and reduce duplication between AUC and the Quality Payment Program (QPP). The AUC testing year begins on Jan. 1.

On Dec. 8, House and Senate conferees agreed to a final National Defense Authorization Act (NDAA) conference report (S. 1790) that included language prohibiting the reduction of certain military medical personnel billets until the completion of reviews required under the FY17 NDAA to ensure any reductions or realignments will not negatively impact military health care.

The AMA helped secure this win, communicating its significant concerns to the House and Senate Armed Services Committees that cuts proposed in the President's budget and included in the Senate NDAA bill to military health care provider billets could jeopardize the success and impact of health care services for millions of service members and beneficiaries. Furthermore, any decrease in associated military graduate medical education (GME) positions would likely displace available GME positions in civilian programs and further exacerbate physician shortages. The quality and availability of GME opportunities could have a direct impact on the number of physicians the DOD can recruit, train and retain to support the operational mission of the military services.

The AMA successfully advocated for inclusion of section 716 of the House-passed NDAA bill, H.R. 2500, that would prevent reductions in overall uniformed medical and GME positions. The favorable House-passed language was included in the final legislation.

The Conference report passed the House of Representatives on Dec. 11 and the Senate on Dec.17. The President has already indicated he will sign the bill into law.

The U.S. Department of Justice (DOJ) recently issued a proposed rule to begin collecting DNA samples from hundreds of thousands of immigrants each year and to enter the results into a national criminal database. In accordance with policy adopted during I-19, the AMA strongly urged the U.S. Department of Justice (DOJ) not to expand the use of DNA-sample collection as proposed.

The population impacted by the proposal includes immigrants without any criminal history, including minor children, who present themselves at a U.S. port of entry to legally apply for protection from persecution in their home country and are subject to detention (e.g., those individuals presenting with credible fear claims). According to the DOJ, assuming the population subject to DNA collection under the rule remains at this level, DHS would be expected to submit an additional 748,000 samples annually. Thus, the population to whom this proposed rule would apply is expansive.

In its letter to the administration the AMA (PDF) argued that the proposal undermines fundamental and long-standing accepted ethical conventions related to privacy and consent, as well as due process requirements when the federal government collects health information absent a compelling public health or public safety need.

• Dec. 20, 2019: Advocacy spotlight: 2020 federal funding and extender package
• Dec. 20, 2019: State Advocacy Update
• Dec. 20, 2019: Judicial Advocacy Update