Feb. 10, 2023: National Advocacy Update

President Joe Biden announced on Jan. 30, 2023, that he intends to end the COVID-19 public health emergency (PHE) declaration on May 11, 2023.

The announcement comes with important implications for patients and physicians in several key areas, including coverage and payment of COVID-19 tests, treatments and vaccines, Part D drugs, enhanced Medicare rates for hospitalized COVID patients, physician supervision requirements, Stark Law waivers, and Critical Access Hospital and Skilled Nursing Facility requirements.

Notably, the recent Consolidated Appropriations Act decoupled Medicaid continued coverage requirements and enhanced federal matching rates from the PHE and extended important Medicare telehealth flexibilities through the end of 2024. In addition, CMS has previously set policy that Medicare will continue to pay the same rates for in-person and telehealth office visits through 2023, although some key telehealth policies will end with the PHE, including OCR’s enforcement discretion of non-HIPAA-compliant platforms. Licensure requirements vary by state; some are tied to the national PHE whereas others are not. Separate rulemaking on prescribing of controlled substances based on telehealth visits is also pending and expected to be released before the PHE ends. Access a list (PDF) of the PHE flexibilities specific to physicians and a more comprehensive list of general PHE flexibilities.

On Jan. 31, the AMA submitted comments (PDF) to the "Confidentiality of Substance Use Disorder (SUD) Patient Records Proposed Regulation" from the Department of Health and Human Services (HHS), Office for Civil Rights (OCR) and the Substance Abuse and Mental Health Services Administration (SAMHSA). In the comments, the AMA asked HHS to strike a balance in the alignment of federal privacy law and regulations with the Health Insurance Portability and Accountability Act (HIPAA) and applicable state law for the purposes of treatment, payment and health care operations (TPO). Considering the current drug-related overdose and death epidemic, the AMA also expressed support for doing everything possible to remove barriers to substance use disorder treatment. Overall, the comments urged continued vigilance to monitor whether the alignment of Part 2 and HIPAA has any negative effects on patients’ access to care as well as multiple social determinants of health essential to individuals with a SUD, including loss of housing and loss of child custody, among others.   

In its comment letter, the AMA also supported the work undertaken by OCR and SAMHSA that is aimed at decreasing burdens on patients and providers, improving coordination, and increasing access to care and treatment, while protecting the confidentiality of treatment records. Ultimately, the AMA stated that decreasing burden will depend upon vigorous and intentional efforts to educate patients and providers on the practical effects of giving consent to use and disclose, and in some instances, redisclose their information under the revised Part 2 rules. The AMA also committed to assisting with educational efforts, not only with respect to the mechanics of information sharing permitted under the law, but also on the benefits to patients of having a care team with access to a patient’s full medical picture.   

In addition, the AMA encouraged Congress and HHS to continue to support the development of data segmentation standards and software, while providing positive incentives to ensure that such technology is widely available and affordable. The AMA also supported OCR and SAMHSA’s proposed clarification that patients may consent to disclosures of Part 2 information to individuals or entities and recommended adding regulatory language to specify that patients may consent to permit both their Part 2 facility and health information exchange networks of their choosing to disclose their health information to past, present and future treating providers. 

On Jan. 30, the Centers for Medicare & Medicaid Services (CMS) finalized a rule with significant changes to its Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) program, used to recover unsubstantiated MA risk adjustment payments. CMS finalized plans to return so-called “extrapolated” overpayments. However, in a significant departure from its proposal, the agency delayed implementation to payment year (PY) 2018 (as opposed to PY 2011). As a result, any overpayments from PY 2021 to 2017 will be based solely on overpayments specifically identified in sample audits.  

The agency expects this change will reduce the potential for audit backlogs and minimize the burden on MA Organizations (MAOs) and physician practices. Existing documentation standards will continue to apply so CMS anticipates that there will be no new documentation requirements or “additional audit impact” on providers that contract with MAOs as a result of the rule. The agency will not adopt a universal sampling or extrapolation audit methodology, but will rather rely on “any statistically-valid method for sampling and extrapolation that is determined to be well-suited to a particular audit,” which it will disclose.  

CMS also finalized a separate proposal not to apply an adjustment factor to RADV audit repayments, rejecting the argument that improper payments owed by payers should be adjusted in the same way CMS adjusts for differences in coding patterns between MA and fee-for-service Medicare payments. 

In total, CMS expects to recover approximately $479 million from MAOs per year beginning with PY 2018, amounting to an estimated recovery of $4.7 billion from 2023 through 2032. The final rule is effective April 3, though legal action is considered likely.  

The AMA has previously written to CMS and private payers regarding the administrative burden that documentation requests for validating RADV audits have on physician practices. In the letters, the AMA has requested annual documentation review limits, standardized forms for documentation requests, minimum notification requirements and staff compensation for pulling records, as well as patient privacy protections. These policies were considered outside the scope of this particular rule, but may be addressed in future rulemaking. 

Due to AMA advocacy and outreach to the Centers for Medicare & Medicaid Services (CMS), the deadline to file a 2022 MIPS Extreme and Uncontrollable Circumstances (EUC) hardship has been extended until March 3, 2023. Physicians who feel they were impacted by the COVID-19 pandemic in 2022 may file a MIPS hardship exemption with CMS to avoid a 2024 MIPS penalty. Learn more. 

On Jan. 31, the AMA submitted comments (PDF) to the Centers for Medicare & Medicaid Services (CMS) in response to a Request for Information on Essential Health Benefits (EHB). The AMA appreciates that CMS has begun the process of periodically reviewing and updating the EHB framework to address gaps in coverage or changes in evidence base as required by the Affordable Care Act (ACA). Enactment of the ACA and implementation of the EHB have reduced the number of uninsured individuals and expanded coverage of critical benefits. However, there have been numerous changes in health care delivery and in health needs and care over the last decade without updates to the EHB framework, and the AMA believes CMS should reconsider EHB and whether and how changes might be necessary. The AMA offered thoughts and recommendations on the following areas in its comments: 

• Barriers to accessing services due to coverage or cost, prior authorization by payers and failure to enforce mental health and substance use treatment parity 
• Utilization of telehealth 
• Addressing social determinants of health and maternal mortality rates 
• Advancing equity through communication and access to appropriate language services 
• Underserved populations in rural areas 
• Gaps in coverage: chronic diseases  

More information can be found in the full comment letter (PDF). 

In comments (PDF) submitted to the Centers for Medicare & Medicaid Services (CMS) on the "Notice of Benefits and Payment Parameters (NBPP) for 2024 Proposed Rule," the AMA expressed appreciation that the proposed rule would continue recent efforts by CMS to: 

• Simplify consumer choice and improve the plan selection process in the Affordable Care Act (ACA) marketplaces 
• Increase network adequacy requirements and essential community providers (ECP) categories, e.g., substance use disorder treatment centers and mental health facilities 
• Expand provisions for navigators and other consumer assisters 
• Establish new rules for agents, brokers and web-brokers that assist consumers with enrollments 

The AMA provided extensive comments (PDF) and recommendations based on these provisions in the proposed rule and commends the Administration for its commitment to extending health insurance coverage to more Americans and making it easier and more affordable to get covered. 

On Jan. 30, the Biden administration released a new proposed rule designed to reinforce protections for birth control coverage originally included in the Affordable Care Act. The proposed rule would largely reverse or revise expanded moral and religious exemptions finalized in 2018 under the Trump administration, which allowed private health plans and issuers to exclude coverage of contraceptive services based on moral or religious grounds. Specifically, the rule would reverse the moral exemption and establish a new, independent pathway for individual enrollees to access contraceptive services directly from a willing provider or facility at no cost, while leaving the religious exemption for employers or plans otherwise intact. Under the proposed rule, providers or facilities that furnish contraceptive services to individuals in accordance with this new individual pathway could be reimbursed by entering into an arrangement directly with an issuer on a federally-facilitated or state-based exchange. Comments on the proposed rule will be received through April 3.  

The AMA is committed to ensuring broad access to contraception, including oral contraceptives. The AMA has supported efforts to bring oral contraceptives over the counter, making them more easily accessible to medically underserved populations and individuals. In a Jan. 2023 letter (PDF) to the Department of Health and Human Services (HHS) supporting efforts to bring oral contraceptives over the counter, the AMA urged HHS to ensure those products were affordable either through financial assistance or expanded coverage guarantees. 

The recording for the latest webinar in the AMA’s Advocacy Insights series is now available. Leading up to the AMA National Advocacy Conference in Washington, D.C., Feb. 13-15, this webinar hosted by Sandra Adamson Fryhofer, MD, chair of the AMA Board of Trustees, provides information about the AMA’s advocacy on Capitol Hill and how you can get involved.  

Hear from: 

• Jack Resneck Jr., MD, AMA President, about his experience being a physician leader pushing for change 
• Rob Jordan, director, political and legislative grassroots, AMA, about joining the AMA Physicians Grassroots Network and grassroots best practices 
• Jason Marino, director, Congressional Affairs, AMA, about the power of physician voices at the AMA National Advocacy Conference 

Look out for National Advocacy Conference coverage next week as physician advocates head to Capitol Hill to make their voices heard on important health care issues facing the nation’s physicians and patients. 

• Feb. 10, 2023: Advocacy Update spotlight on legal disputes over No Surprises Act
• Feb. 10, 2023: State Advocacy Update