Oct. 19, 2017: National Advocacy Update

Discussions are continuing in Congress over how to pay for the reauthorization of the Children's Health Insurance Program (CHIP) and other expired health care programs. On Oct. 4, the House Committee on Energy and Commerce reported two bills, the Helping Ensure Access for Little Ones, Toddlers, and Hopeful Youth by Keeping Insurance Delivery Stable (HEALTHY KIDS) Act (H.R. 3921) and the Community Health And Medical Professionals Improve Our Nation (CHAMPION) Act (H.R. 3922). Taken together, the bills would reauthorize CHIP for five years and extend for two years funding for community health centers, the National Health Service Corps, Teaching Health Center Graduate Medical Education and other programs.

While all these programs enjoy broad, bipartisan support, there remain disagreements over how the cost will be offset. The CHIP bill, H.R. 3921, included provisions related to Medicaid third-party liability, the treatment of Medicaid beneficiaries whose income is affected by lottery winnings, and further income relating of Medicare Part B and D premiums.

H.R. 3922 includes provisions to effectively shorten the grace period for non-payment of premiums under the ACA from 90 days to 30 days, unless a state chooses a different period, and to eliminate $6.35 billion from the ACA's Prevention and Public Health Fund over 10 years.

Continued disagreement over how to finance the bills add uncertainty to the timing of a House floor vote, although the consensus view is that CHIP will be reauthorized before the end of the year. In the meantime, the administration has made special funding available to some states that are facing an immediate funding shortfall.

On Oct. 11, President Donald Trump signed an executive order that directs three departments to take the following actions:

• The Department of Labor is to consider expanding access to association health plans (AHPs) to allow employers to join with similar businesses anywhere in the nation to jointly offer group health care coverage to their employees.
• The Departments of Treasury, Labor, and Health and Human Services were asked to consider proposing regulations that would expand access to short-term limited duration insurance plans. These tend to be minimal benefit plans that do not meet ACA standards but may be purchased by individuals seeking short-term protection.
• The Departments of Treasury, Labor, and Health and Human Services will consider allowing funds in employer-sponsored health reimbursement arrangement accounts to support consumer-driven health care plans.

Until regulations are drafted and issued, the potential benefits and shortcomings of these proposals cannot be predicted. In particular, the potential for self-funded AHPs to evade state regulations through the Employee Retirement Income Security Act of 1974 (ERISA) is of serious concern. When the proposed regulations are issued in compliance with the executive order, the AMA will review them and submit comments.

In response to comments he recently made in West Virginia and Pennsylvania, the AMA has written to U.S. Attorney General Jeff Sessions seeking a meeting to discuss physicians' efforts to end the epidemic of opioid overdose deaths. The letter underscores the AMA's support for efforts to identify and prosecute those who engage in criminal activity, but expresses concern about reports of physicians who are no longer willing to treat patients with chronic pain due to fear of prosecution.

The letter also notes the significant reductions in prescriptions for opioid analgesics that have occurred in every state, along with sizable increases in use of state prescription drug-monitoring programs. The letter asks to discuss how the AMA can work with the Justice Department and others to improve access to non-opioid pain relief as well as treatment for substance-use disorders.

On Sept. 29, the Department of Veterans Affairs (VA) issued a proposed rule that gives employed providers more flexibility to deliver telemedicine. VA-employed physicians are only required to have a single valid license in order to practice anywhere in the United States, as long they are as on federal property. The proposed rule would expand the one-licensure requirement to telehealth by exempting VA-employed physicians from multistate licensure requirements.

Importantly, the proposed rule explicitly states that the multistate licensure exception applies only to VA-employed providers and would not be expanded to contracted physicians or providers who are not directly controlled and supervised by the VA and would not necessarily have the same training, staff support, shared access to a beneficiary's electronic health record and infrastructure capabilities. The AMA issued a statement supporting the VA's proposal. Comments are due at the end of the 30-day comment period, Nov. 1.

As advocated by the AMA, the Centers for Medicare & Medicaid Services (CMS) announced in the 2018 Quality Payment Program (QPP) proposed rule that solo practitioners and groups can choose to participate in the Merit-based Incentive Payment System (MIPS) as a virtual group for the 2018 performance period. The intent of virtual groups is to allow small groups to come together and pool their resources for greater success under MIPS. To form a virtual group, solo practitioners and groups would need to engage in an election process. For the 2018 performance year, the election period runs to Dec. 1, 2017.

CMS has proposed that a virtual group must be a combination of two or more Taxpayer Identification Numbers (TINs) made up of:

• A solo practitioner who is eligible to participate in MIPS and bills under a TIN with no other National Provider Identifiers (NPIs) billing under the TIN, OR
• A group with 10 or fewer eligible clinicians (at least one of whom must be eligible for MIPS) that joins with at least one other solo practitioner or group for a performance period of a year.

To form a virtual group, CMS has proposed a two-stage virtual group election process:

• Stage 1 (optional): Solo practitioners and groups with 10 or fewer eligible clinicians may contact their designated Technical Assistance representative or the QPP Service Center to determine if they are eligible to join or form a virtual group.
• Stage 2: For groups that choose not to participate in Stage 1 of the election process, CMS will determine if they are eligible in Stage 2. During Stage 2, the virtual group must name an official representative who will submit their election to CMS via email to [email protected] by Dec. 1, 2017.

The election would include:

• A written formal agreement between each of the virtual group members; and
• Information about the TIN and NPI associated with the virtual group representative's contact information.

For more information about joining or forming virtual groups, see the Virtual Groups Toolkit. For questions on the virtual group election process contact the CMS Quality Payment Program at [email protected] or (866) 288-8292 (TTY: 877-715-6222).

Physicians may submit a QPP Hardship Exception Application for the advancing care information (ACI) performance category to CMS for one of the following specified reasons:

• Insufficient internet connectivity.
• Extreme and uncontrollable circumstances.
• Lack of control over the availability of certified EHR technology (CEHRT).

The hardship exception for "extreme and uncontrollable circumstances" includes difficulties with an electronic health records (EHR) vendor and, of note to physicians who have been affected by hurricanes, an exception for physicians who have experienced a natural disaster in which their CEHRT was damaged or destroyed. The hardship does not include an exception for physicians who do not have CEHRT. Physicians are able to apply for hardships at least through the end of 2017. CMS has more information.

CMS' approval of a hardship exception application results in the 25 percent weighting of ACI to the quality performance category. However, physicians do not need to report on ACI in 2017; the MIPS "Pick Your Pace" test option allows physicians to report on one quality measure for one patient to avoid a penalty.

Earlier this year, the AMA put forward its vision (PDF) for health system reform consisting of a number of key objectives reflecting AMA policy. Building off the objectives contained in AMA's vision for health reform, the AMA has developed a policy document containing recommendations (PDF) that outline next steps for health reform.

Congress, the administration and the states can use these policy recommendations to achieve AMA's longstanding coverage objectives, including: taking steps in covering all Americans; maintaining key insurance market reforms; stabilizing and strengthening the individual market; improving health insurance affordability; and protecting Medicaid and CHIP. The AMA also believes that next steps for health reform should: reduce regulatory burdens; provide greater cost transparency; incorporate common-sense medical liability reforms; and continue advancement of delivery reforms and new physician-led payment reform models.

• Oct. 19, 2017: Advocacy spotlight on Patients pay price for ending cost-sharing reduction payments 
• Oct. 19, 2017: State Advocacy Update