This newsletter outlines key federal regulatory developments and highlights PAI’s advocacy on matters that impact physicians and patients, including:

1. Texas Medical Association (TMA) Files Second Lawsuit Challenging the Departments’ Surprise Billing Regulation
2. Physician Groups Send Letter to Congress on Medicare Payment Reform
3. PAI Submits Comment Letter in Response to Medicare Physician Fee Schedule (MPFS) and Quality Payment Program (QPP) Proposed Rule
4. Centers for Medicare and Medicaid Services (CMS) Releases Data on Medicare Shared Savings Program (MSSP)
5. CMS Delays Radiation Oncology Model Indefinitely
6. CMS Releases Guidance on Ending COVID-19 Public Health Emergency (PHE) Blanket Waiver Flexibilities

TMA Files Second Lawsuit Challenging the Departments' Surprise Billing Regulation

On September 23, TMA announced it filed a lawsuit challenging the Requirements Related to Surprise Billing Final Rule released by the Departments of Labor, Treasury and Health and Human Services (‘Departments’) on August 19. This regulation finalizes select requirements for the independent dispute resolution (IDR) process governing payment disputes for services governed under the No Surprises Act.

TMA’s complaint asserts that the Final Rule “still unfairly advantages insurers by allowing arbitrators to default to an opaque, insurer-calculated amount called the qualifying payment amount (QPA), instead of looking at a range of factors (as required by the law) when choosing between an insurer’s offer and a physician’s offer.” In its first lawsuit challenging the October 2021 Surprise Billing Interim Final Rule, TMA successfully argued that federal agencies were skewing the federal IDR process in health plans’ favor. Contrary to that Court decision, TMA argues that “the Departments have ‘doubled down’ by issuing a new final rule that replaces the earlier presumption with a new set of requirements that give health insurers the same advantage.”

PAI strongly supports TMA’s latest lawsuit. For the second time in less than a year, federal regulators blatantly disregarded the clear and unequivocal language of the No Surprises Act. The federal agencies' ‘final’ regulation again gives undue weight to the QPA, tipping the scale in insurers’ favor at patients’ expense. PAI believes that patients deserve timely, affordable access to health care from providers that they know and trust. We look forward to supporting TMA in its ongoing efforts to ensure the promise of the No Surprises Act is realized and formalized our support with an amicus brief yesterday. PAI and 13 State Medical Associations previously filed an amicus brief in support of TMA’s first lawsuit.  

PAI developed a scorecard evaluation of the final rules, which can be viewed here. The scorecard provides analysis of the final rules as well as side-by-side comparisons of the statutory text in the No Surprises Act, interim final rules and proposed final rules.

Physician Groups Send Letter to Congress on Medicare Payment Reform

On September 22, the American Medical Association and more than 120 state medical associations and national specialty societies sent a letter urging Congress to institute Medicare payment reforms. The signatories highlighted their concerns with the financial instability of the Medicare physician payment system. They noted that the instability is being driven by a confluence of fiscal uncertainties physician practices face related to statutory payment cuts, the persistent lack of inflationary updates, significant administrative barriers and the cumulative impact of the pandemic. The letter recommended that Congress:
 

Recently, Representatives Ami Bera, MD (D-CA) and Larry Bucshon, MD (R-IN) introduced the Supporting Medicare Providers Act (H.R. 8800) to help address the flawed Medicare payment system and provide relief from impending cuts. PAI strongly supports comprehensive reform of the Medicare physician payment system, as outlined in a recent letter submitted in response to CMS’ Calendar Year (CY) 2023 MPFS and QPP Proposed Rule. Additional details on the letter are provided in the summary below.

PAI Submits Comment Letter in Response to MPFS and QPP Proposed Rule

On September 6, PAI submitted a comment letter in response to CMS’ CY 2023 MPFS and QPP Proposed Rule. PAI provided extensive feedback on several changes and flexibilities proposed by the Agency, concerning both COVID-19 and non-COVID-19 related issues.

PAI reflected commitment to:

• Expanding policies that protect the ability of patients to access high-quality physician services.
• Advancing the Agency’s current efforts to improve the uptake of innovative care models and technologies in Medicare and the goals of value-based payment within the QPP.
• Sharing concerns about certain proposals that may unintentionally put some patients, physicians and practices at a disadvantage, as well as proposals that lack clarity and could further increase physician burden and the complexity of the QPP (and the Medicare program more broadly), especially in the context of the COVID-19 pandemic.

Overall, PAI urged Congress to, at a minimum, work with CMS to continue the 3% payment increase for all MPFS services in CY 2023, as well as to promote continuity and stability in the QPP. PAI asked that CMS recognize the impact of the COVID-19 pandemic on physician practices and limit payment cuts and any major changes that would adversely impact patient access to care. CMS should ensure that all finalized policies account for these challenges, as well as the importance of supporting all physicians, including small and independent practices. To view PAI’s full comment letter, please click here. In summary, PAI provided recommendations that CMS should:

CMS Delays Radiation Oncology Model Indefinitely 

On August 26, CMS announced its final decision to indefinitely delay the radiation oncology model to work with interested parties to craft a better model. CMS will give at least a six month notice before the future start date. CMS noted that, in response to commenters’ feedback, they will consider a January 1, 2024, start date.

CMS stated the new model, once launched, will address long-standing concerns about the delivery and payment of radiation treatment. The model will also help physicians and suppliers because it focuses on financial predictability through prospective, site-neutral, episode-based payment and care improvement by linking payment to quality. In response to CMS’ decision, the American Society for Radiation Oncology indicated that they are developing a new radiation oncology APM that will emphasize episodic payments and address disparities in radiation treatment access among economically and socially marginalized communities.

CMS Releases Data on Medicare Shared Savings Program

On August 30, CMS announced the MSSP saved Medicare $1.66 billion in 2021 compared to spending targets. CMS noted this is the fifth consecutive year the program has generated overall savings and high-quality performance results. Results are summarized in the table below:

As of January 2022, MSSP includes approximately 525,000 participating clinicians who provide care to 11 million people with Medicare. CMS has set a goal that 100% of people with traditional Medicare will be part of an accountable care relationship by 2030. PAI developed a comprehensive resource for members on APM financial methodologies, attribution and alignment and benchmark calculation, as well as other important factors to consider when participating in models, which can be accessed here. 

CMS Releases Guidance on Ending COVID-19 PHE Blanket Waiver Flexibilities

On August 18, CMS released guidance outlining its plan to terminate many of the blanket waivers associated with the PHE. Excluding certain telehealth and Medicare appeals flexibilities, all other COVID-19 blanket waivers that were not previously made permanent will terminate at the end of the PHE. Physicians will again be expected to follow existing regulatory requirements and processes. To help physicians prepare for this transition, CMS has developed fact sheets noting previously ended waivers, those that have been made permanent and those that will end with the PHE.

Certain telehealth flexibilities (e.g., permitting additional provider types to provide telehealth services, audio-only services and allowing the home to be an originating site) will continue until 151 days after the end of the PHE, in accordance with the Consolidated Appropriations Act. CMS indicated that current flexibilities for Medicare Administrative Contractors and Qualified Independent Contractors in Medicare, Medicare Advantage and Part D related filing and adjudicating appeals will continue, so long as they are consistent with existing regulatory requirements. CMS also notes that it is exploring options to make the staffing and supervision flexibilities for rural health clinics or federally qualified health centers permanent. However, without additional action, the flexibilities will terminate at the end of the PHE.

PAI supports continuing telehealth flexibilities. PAI recommends that flexibilities and reimbursement rates continue permanently post-COVID-19, as many physician practices, especially those in primary care, and the patients they serve will remain heavily reliant on telehealth services for the immediate future (if not longer).