March 7, 2019: National Advocacy Update

The HHS Office of Civil Rights (OCR) issued a Request for Information (RFI) in late 2018 asking questions about possible changes to the Health Insurance Portability and Accountability Act (HIPAA) to improve care coordination. The AMA submitted lengthy comments (PDF) reflecting a commitment to the importance of how protection of patient privacy fosters trust in the physician-patient relationship, as laid out in AMA policy and Code of Medical Ethics.

Some questions in the RFI asked whether the rule should be changed to require (instead of permit) disclosures of patient information. If that shift were to occur, physicians would have to release patient information that they had not previously been required to share. AMA supports care coordination activities and the numerous benefits that can result from coordinated care, however OCR should promote information sharing for these activities through education and positive incentives—not requirements, especially those that value speed over privacy.

Included below is a non-exhaustive list of additional comments:

• AMA is strongly opposed to any mandate or requirement to disclose protected health information (PHI) to any entity other than the patient. Requiring a physician to share information against a patient's wishes strips patients of control over their own data and potentially overrides medical decision-making. Moreover, policymakers must consider whether relaxing privacy controls will encourage patients to seek care or potentially deter them.
• Business associates—including health care clearinghouses—should always be required to enter into business associate agreements. A physician is the steward of a patient's health information and has a duty to the patient to protect it.
• A widespread misperception exists that HIPAA prevents physicians from sharing information—especially related to behavioral health and substance use disorder (SUD)—with families and caretakers. In fact, OCR's own guidance (PDF) states that HIPAA allows physicians to talk to a patient's family members, friends or others involved in the patient's care and other providers for treatment and care coordination.
• Technology that tracks patient consent electronically can help physicians manage the sharing of sensitive information (e.g., reproductive health, domestic violence, HIV status and genetic information) while maintaining robust patient privacy protections. Making this technology affordable and accessible for physicians would help to enhance interoperability, support compliance with state privacy laws and bolster trust within a physician-patient relationship by ensuring a patient that his or her sensitive information is private.
• OCR should help reframe the conversation around securing health information from punitive requirements (e.g., fines and penalties for security failures) by developing positive incentives that encourage ways to bolster practice resilience, protect patient information and promote information sharing about security threats.
• OCR should remove the presumption of guilt on a physician when patient information is inappropriately used or disclosed. That framework creates potentially unnecessary physician burden, stress and compliance costs. Instead HHS should base the duty to report a breach on a harm threshold.

Along with 51 specialty and 45 state societies, the AMA submitted a sign-on letter urging (PDF) the Centers for Medicare & Medicaid Services (CMS) to provide guidance to Medicare Advantage plans on prior authorization (PA) processes through its 2020 call letter. The letter asked that CMS' guidance direct plans to target PA requirements where they are needed most. Specifically CMS should require Medicare Advantage plans to selectively apply PA requirements and provide examples of criteria to be used for such programs, including ordering/prescribing patterns that align with evidence-based guidelines and historically high PA approval rates.

The letter noted that the PA process can be burdensome for all involved and can adversely affect patient health outcomes by delaying the start or continuation of necessary treatment. It drew on concepts outlined in the Consensus Statement on Improving the Prior Authorization Process (PDF), issued by the AMA, the American Hospital Association, America's Health Insurance Plans, the American Pharmacists Association, Blue Cross Blue Shield Association and the Medical Group Management Association in January 2018.

This letter is only the latest AMA effort to #FixPriorAuth in the federal space. AMA has also opposed (PDF) additional utilization management requirements on the six protected classes under Part D, made recommendations (PDF) to CMS to reduce the impact of PA as a way to increase efficiencies in the Medicare and Medicaid programs, expressed (PDF) serious concern about Government Accountability Office (GAO) recommendations to increase PA in Medicare and brought together (PDF) nearly 100 medical societies to oppose increased use of step therapy for Part B drugs.

Also in response to the draft 2020 call letter outlining proposed Medicare Advantage and Part D policies, the AMA submitted separate comments (PDF) that strongly support CMS proposals to improve patient access to evidence-based treatment for opioid use disorder, non-opioid therapies for pain and naloxone. The AMA recommended that CMS go further and require that plans eliminate any prior authorization requirements for medication-assisted treatment (MAT) and urge Part D sponsors to ensure that patients have access to MAT options in all drug classes at the lowest cost-sharing tier.

Following a series of hearings in 2018, the Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) wrote health care stakeholders to request information on what steps Congress should take to address rising health care costs. Alexander noted that he was "interested in trying to bring to the health care system the discipline and cost saving benefits of a real market. Too many barriers to innovation drive up costs. And most Americans have no idea of the true price of the health care services they buy – which also drives up costs." Stakeholder responses were requested by March 1, 2019.

In response, the AMA highlighted (PDF) a number of areas where Congress or the administration could take specific steps to lower overall health care costs. High on that list were proposals to address the cost and time burdens administrative requirements place on physicians and their staffs. Eight percent of U.S. health care spending goes toward "administration and governance" activities. In addition to payment systems, this burden also includes prior authorization which, according to a recent AMA survey, consumes nearly two full days (14.9 hours) of physician and staff time per week, per physician.

Greater scrutiny of these practices by Congress, including addressing the burdens placed on physicians by public payers, could significantly reduce unnecessary costs in the health care system. The AMA letter also addressed the growing cost of prescription drugs, the need to increase pricing transparency, and the potential of value-based insurance design to align clinical and financial incentives among stakeholders and foster a legal and regulatory environment where innovative plan designs can be explored. Other recommendations included stepped-up efforts to support alternative payment models and lowering health care costs with increased attention on prevention, including the AMA-led focus on preventing diabetes and controlling hypertension. Combined, these two conditions account for almost $280 billion in annual health care expenditures and $110 billion in lost productivity.

The AMA remains engaged with Sen. Alexander and the HELP Committee on this important topic and is encouraged that the committee is focusing on addressing this growing burden on taxpayers, employers and families in partnership with physicians and other health care providers and stakeholders.

On Feb. 22, the Department of Veterans Affairs (VA) issued a proposed rule that would establish the Community Care Program as a permanent replacement to the Veterans Choice Program. New eligibility criteria and access standards would increase veterans' access to community-based care. The current distance-based standard (veterans must live at least 40 miles away from the nearest VA facility) will be replaced with average drive time and appointment wait times. The VA is proposing a 30-minute average time standard and a 20-day appointment wait time for primary care and mental health care. For specialty care, the access standard will be 60 minutes and 28 days respectively. Payment rates to non-VA providers would not exceed Medicare and future rulemaking will define the VA's contractual relationship with eligible providers. The rule includes a 30-day comment period—March 25 is the deadline.

• March 7, 2019: Advocacy spotlight on AMA and other health groups strongly object to Title X Family Planning Rule
• March 7, 2019: State Advocacy Update