May 26, 2016

National Update

House passes multiple bills to address opioid epidemic

The U.S. House of Representatives earlier this month passed 18 bills to address the opioid epidemic, including the Comprehensive Opioid Abuse Reduction Act (H.R. 5046), which would authorize various grant programs through the Department of Justice. The House also passed H.R. 4641, which would establish an inter-agency task force to review, modify and update best practices for pain management and prescribing pain medication.

Other bills adopted address issues such as co-prescribing and increasing access to naloxone, allowing pharmacists to partially fill prescriptions, and allowing nurse practitioners and physician assistants to treat patients with medication-assisted treatment, including buprenorphine. All of these bills were combined into one final package, which can be conferenced with the Senate-passed companion bill, the Comprehensive Addiction and Recovery Act (CARA) (S. 524).

Legislation supported by the AMA to reauthorize the National All Schedules Prescription Electronic Reporting (NASPER) Act, a program which provides grants to improve prescription drug monitoring programs (PDMPs) through the Department of Health and Human Services, previously passed the House in 2015 and was included in the package of bills.

The House has requested a conference with the Senate to reconcile the differences between the two chambers' respective legislation and appointed conferees. The Senate has not yet appointed its conferees. The AMA supports efforts to address the prescription drug abuse epidemic and will continue to work with Congress to refine several proposals and promote funding of the authorized programs.

House and Senate approve differing funding levels to combat Zika virus

Last week, both the House of Representatives and the Senate passed funding measures to address the Zika virus. The House approved the Zika Response Appropriations Act (H.R. 5243), to provide $622 million in Zika virus funding through Sept. 30. 

The Senate approved a compromise amendment sponsored by Sens. Roy Blunt, R-Mo., and Patty Murray, D-Wash., to provide $1.1 billion in Zika funding through September 2017 as part of the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act (H.R. 2577).

The Senate also voted down an amendment offered by Sens. Bill Nelson, D-Fla., and Marco Rubio, R-Fla., to provide $1.9 billion in Zika funding as requested by the Obama Administration. President Obama has signaled that he would accept the Senate-passed Zika funding provisions but has issued a veto threat against the House bill, stating that its funding level is "woefully inadequate."

While there is widespread agreement on the need to provide federal funding to help prevent the spread of the Zika virus, there continues to be significant disagreement on the amount required, the duration of funding and whether such funding should be offset. The Republican leadership in the House and Senate have stated their intention to work together expeditiously to reconcile the differing funding bills in a final piece of legislation that could be sent to the President.  

On May 26, the AMA sent a letter (log in) to both the Democratic and Republican leadership of the House and Senate urging Congress take immediate action to provide the necessary resources to combat the spread of the Zika virus and address this growing public health threat.

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Issue Spotlight

How new Medicare payment system intends to help small practices

Draft regulations released last month outline sweeping changes to the Medicare payment system, and one of those eagerly anticipated changes is the Centers for Medicare & Medicaid Services' (CMS) stated intent to ease physicians' administrative burdens—including for those in small or rural practices. A new fact sheet outlines flexibilities the agency is proposing for physicians in the new payment system.

Responding to physician feedback
The proposed rule for implementing key provisions of the Medicare Access and CHIP Reauthorization Act (MACRA) has drawn concerns regarding its regulatory impact analysis, which projected that the quality and resource use components of the new Merit-based Incentive Payment System (MIPS) would have a negative impact on most solo physicians and small practices.

CMS has clarified in its new small practices fact sheet that the projections made in the analysis were "based on 2014 data when many small and solo practice physicians did not report their performance. It also does not reflect the accommodations in the proposed rule that are intended to provide additional flexibility to small practices."

In particular, the impact analysis table in the proposed rule only offers a partial picture of physicians' potential success in MIPS because it fails to include participation in the categories of "clinical practice improvement" and "advancing care information"—formerly the electronic health record meaningful use program.

Another flaw in the analysis was that it did not provide the magnitude of how physicians would be affected. For example, physicians who opted not to participate in quality reporting and meaningful use would be subject to an 11 percent payment cut in 2019 under previous law. Under MACRA, the maximum payment cut would be 4 percent. Unlike MACRA, previous law did not provide any partial credit for efforts that were not 100 percent successful.

The analysis looked at successful participation of "eligible clinicians" in the Physician Quality Reporting System (PQRS) and under the value-based modifier. CMS' definition of "eligible clinicians" includes nonphysician health professionals such as chiropractors. Many of these eligible clinicians could not participate in PQRS or the value-based modifier. Consequently, the subset of the physicians actually reflected in the analysis is relatively small.

Andy Slavitt, acting administrator of CMS, recently testified before a congressional committee, emphasizing that the agency is focused on providing the flexibility required for physicians in smaller practices to be as successful under MIPS as those in larger groups.

Here are some of the flexibilities that CMS says were included in the proposed rule to accommodate the unique needs and challenges faced by physicians in small practices:


Easing the burden within performance categories
CMS has proposed additional flexibilities within MIPS performance categories to account for the unique circumstances of individual clinicians, small groups, and practices in rural or professional shortage areas:

While these proposals are important changes for physicians, the agency will need to make additional improvements during the rulemaking process to best address things that have been getting in the way of physicians focusing on providing high-quality care to their patients. The proposed rule is open for comment through June 27, and CMS has said it welcomes feedback from patients, physicians, caregivers, health care professionals and members of Congress, among others.

The AMA is developing recommendations to further ease the burdens on physicians in small or solo practices to enable their success under this new payment system.

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State Update

Missouri regulators take right approach to Aetna-Humana merger

The prospect of the Aetna-Humana acquisition in Missouri received a crushing defeat when state regulators issued an order this week, preventing the companies from doing any post-merger business in Missouri's Medicare Advantage markets and some commercial insurance markets.

The AMA, working with the Missouri State Medical Association, recently presented state regulators with an extensive analysis that found the proposed Aetna-Humana merger would run afoul of state and federal antitrust guidelines in highly populated metropolitan areas across Missouri in Medicare Advantage markets. The AMA argued that the merger would harm physicians and patients participating in Medicare Advantage by creating market structures that would likely result in higher insurance premiums and reduce the quality and availability of physician services.

The Missouri order strongly validates concerns that the AMA has expressed to Missouri regulators, as well as to the U.S. Department of Justice and officials in other states impacted by the proposed health insurer mergers.

"Missouri regulators took the notable step of recognizing Medicare Advantage as a relevant product market, bucking opposing pressure from Aetna," AMA President Steven J. Stack, MD, said in a news release. "In Missouri, the merger would have substantially compromised competition in the state's Medicare Advantage markets with negative consequences for elderly patients in the need for health care access, quality and affordability. According to a recent AMA analysis of Medicare Advantage markets, Missouri was expected to be among the states where the Aetna-Humana deal would be presumed to be anticompetitive."

For a full list of materials regarding the hearing, visit the Missouri Department of Insurance website. Contact Wes Cleveland of the AMA for more information.

American Telemedicine Association endorses Interstate Medical Licensure Compact

May was a busy month for the Interstate Medical Licensure Compact. On May 16, the American Telemedicine Association announced its support for the compact at its annual meeting, bringing the telemedicine community fully behind the compact's promise of expedited licensure.

State legislatures continue to demonstrate support for the compact as well. Over the past two weeks, four states have joined the compact: Arizona, Kansas, Mississippi and New Hampshire. This brings the total to 16 states participating in the Interstate Medical Licensure Compact, with many more planning to join in the 2017 legislative session. In addition, an AMA-supported compact bill in Colorado awaits the governor's signature.

Any state medical association interested in pursuing compact legislation should contact Kristin Schleiter of the AMA for support and resources.

2017 National Rx Drug Abuse & Heroin Summit call for proposals

The National Rx Drug Abuse & Heroin Summit has issued a call for proposals for its 2017 conference. This conference is arguably the largest national event on the issue that includes leadership and health policy experts from state and federal agencies, health care professions, insurers, patient advocates and more.

At the 2016 conference, AMA Chair-elect Patrice A. Harris, MD, presented one of the select "vision sessions" on recommendations from the AMA Task Force to Reduce Opioid Abuse to end the national opioid misuse, overdose and death epidemic.

Presentation proposal requirements are detailed online. Topics may include many of the issues county, state and national medical associations are working on, including:

The deadline for submissions is Aug. 5.

If you have any questions, please contact Daniel Blaney-Koen.

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Judicial Update

Freedom of patient-physician conversations hinges on court case

A federal court will be hearing a case about the constitutionality of a state law that represses free discussion between physicians and patients regarding health and safety issues.

In a friend-of-the-court brief filed April 26, the AMA and eight other medical societies urged the Court of Appeals for the 11th Circuit to overturn a Florida law that restricts physicians from discussing firearm safety with patients and their families.

The brief argues that the Firearm Owners' Privacy Act is unconstitutional and intrudes on the practice of medicine. The law will inevitably affect other aspects of patient care, the brief says.

In 2012 the district court had found the 2011 law unconstitutional. In 2014 a court of appeals panel of three judges issued a split decision. While one judge sided strongly with physicians opposing the law, the other two ruled in favor of the state. Physician groups and others sought a rehearing.

In a rare decision, the full court of appeals agreed to rehear the case. The rehearing will be held before the court en banc—all 11 active judges are to hear the case. Oral arguments are scheduled for June 21 in Atlanta.

In its April 26 briefing, the AMA and other organizations call the law an example of politics overriding medicine. It has already led Florida physicians to self-censor when talking with patients, the brief says.

"It is censorship, imposed for purely political motives," it says.

The law directly clashes with a consensus on care that dates to at least 1989. That year, the AMA enacted a policy that encourages members to inquire into the presence of firearms in households and to promote the use of safety locks on guns in an effort to reduce injuries to children.

"Effective medical care requires unfettered communications between physicians and their patients," the brief tells the court.

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Other News

Analysis: Aetna-Humana merger effect on Medicare Advantage markets

As part of its ongoing advocacy efforts with state medical associations on the impact of proposed health insurer mergers, the AMA completed a new analysis of the effects of the proposed Aetna-Humana merger (log in) on Medicare Advantage market competition. 

Increases in concentration—Herfindahl–Hirschman Index (HHI)—levels were calculated for in-state and MSA-level markets to determine where the proposed merger warrants antitrust scrutiny based on the Department of Justice and Federal Trade Commission Horizontal Merger Guidelines.

Sixteen states—Kansas, Missouri, Iowa, Illinois, Ohio, Nebraska, South Dakota, Texas, Maine, West Virginia, Utah, Alaska, Virginia, Georgia, Nevada and North Carolina—showed changes in HHI where the Aetna-Humana merger would be presumed likely to enhance market power.

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Upcoming Events

June 11-15: 2016 AMA Annual Meeting

The 2016 AMA Annual Meeting will take place in Chicago. In addition to policymaking, the meeting will feature a number of special events and continuing medical education activities on trending topics from addressing physician burnout to ending the nation's opioid epidemic. Be sure to download the new AMA Meetings app to build your schedule, network with fellow attendees, and take notes and share photos from sessions.

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