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July 12, 2019

Issue Spotlight

Congressional efforts to address surprise billing continue

The House Energy and Commerce Subcommittee on Health reported legislation on July 11 to protect patients from unanticipated medical bills for services provided by out-of-network physicians and facilities in emergencies and other situations where they had no opportunity to choose an in-network provider. This subcommittee's action follows similar steps taken by the Senate Health Education, Labor and Pensions Committee last month.

While the majority of health care stakeholder groups support the patient protections included in H.R. 3630, the "No Surprises Act," the AMA expressed its opposition to the bill because of provisions that would resolve payment disputes between physicians and insurers by setting out-of-network payments at the median amount each insurer pays for in-network care. Throughout the process of drafting and debating surprise billing legislation, the AMA and other physician organizations have consistently observed that setting payments at in-network rates would absolve insurers from any responsibility to negotiate fair in-network contracts and to maintain adequate provider networks. Indeed, given the highly concentrated insurance markets throughout the country, the proposal would increase the considerable leverage insurers already have in these negotiations, which is a major contributor to the unanticipated gaps in coverage that lead to surprise billing.

Instead, the AMA is recommending that any surprise billing legislation:

Several Democratic and Republican members of the Energy and Commerce Health Subcommittee urged adoption of an appeals process or independent dispute resolution process to determine out-of-network rates. Others expressed concerns that unfair out-of-network rates would harm patient access, especially in rural and underserved populations.  These concerns reflect a high volume of physician grassroots contacts over the last several weeks. Continued grassroots engagement is essential to improve pending legislation.

The full Committee on Energy and Commerce is expected to take up the bill the week of July 15, at which point further changes may be made to determine out of network payments. Two other House committees share jurisdiction over this issue—the House Ways and Means Committee and the House Education and Labor Committee. At present, dates for action by those two panels have not been set and is not expected to occur until September at the earliest.

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National Update

Congress told impact of immigrant children's trauma may be life long

This week the AMA called on the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) to address the condition of their facilities at the southern border, which are inconsistent with evidence-based recommendations for appropriate care and treatment of children and pregnant women. The AMA also issued a letter to the House Committee on Oversight and Reform in advance of the upcoming hearings entitled, "Kids in Cages: Inhumane Treatment at the Border," and "The Trump Administration's Child Separation Policy: Substantiated Allegations of Mistreatment."

"Conditions in CBP facilities, including open toilets, constant light exposure, insufficient food and water, extreme temperatures, and forcing pregnant women and children to sleep on cement floors, are traumatizing. These facilities are simply not appropriate places for children or for pregnant women. We strongly urge the Administration and Congress to work with the medical community to develop policies that ensure the health of children and families is protected throughout the immigration process," wrote AMA CEO and EVP James L. Madara, MD.

On June 18, the AMA signed on to a letter of support for H.R. 3239, the "Humanitarian Standards for Individuals in Customs and Border Protection Custody Act," along with 13 other health care organizations. H.R. 3239 takes important steps toward ensuring that appropriate medical and mental health screening and care is provided to all individuals, including immigrant children and pregnant women, in CBP custody.

In September the administration released a proposed rule expanding the long-term detention of migrating families. Consistent with AMA policy adopted during A-18, the AMA submitted a comment letter opposing the proposed rule and its impact on the health and well-being of migrating families. The AMA has been, and will continue to be, aggressive in demanding oversight of these detention facilities and will continue to voice its concern and advocate for the health and safety of migrating children and families.

Medicare expands use of ambulatory blood pressure monitoring to diagnose hypertension

Responding to a joint request from the AMA and the American Heart Association (AHA), the Centers for Medicare & Medicaid Services (CMS) issued a final national coverage determination expanding covered indications for the use of ambulatory blood pressure monitoring (ABPM) in diagnosing hypertension to include suspected masked hypertension, where in-office blood pressure readings may be lower than those taken elsewhere. Previously, Medicare covered ABPM for suspected white coat hypertension, when in-office blood pressure is higher than when measured at home, but not for masked hypertension, such as for patients whose blood pressure is normal in the clinic but above normal out of the clinic or at night.

As the AMA and AHA urged in a joint comment letter on the proposed coverage decision, CMS made important modifications to the final ABPM policy:

  • Updated systolic and diastolic blood pressure readings that qualify for ABPM coverage to reflect the 2017 AHA/American College of Cardiology guidelines
  • Removed the requirement for lifestyle interventions prior to ABPM use
  • Specified detection of nocturnal hypertension as a covered indication for ABPM use

Expanded Medicare coverage of ABPM is consistent with recommendations of the U.S. Preventive Services Task Force and represents a major advance in physicians' ability to appropriately diagnose hypertension, which can have serious consequences for patients' health without appropriate diagnosis and management.

More information on AMA and AHA tools for controlling hypertension is available here.

Administration lowers barriers to medication that prevents HIV infection

One of the four key pillars of the administration's plan to end the HIV epidemic within 10 years is preventing at-risk individuals from acquiring HIV infection, especially through increased use of pre-exposure prophylaxis (PrEP). The U.S. Food and Drug Administration (FDA) has taken an important step to improve patient access to PrEP by removing risk evaluation and mitigation strategy (REMS) requirements that have been in place for the PrEP medication, Truvada, and its generics since the medication's approval in 2012. The FDA requires a REMS for certain medications with serious safety concerns to help ensure the benefits of the medication outweigh its risks. REMS are designed to reinforce medication use behaviors and actions that support the safe use of that medication. While all medications have labeling that informs health care stakeholders about medication risks, the FDA indicates that only a few medications require a REMS. By removing the REMS requirement, the FDA has removed one barrier to accessing PrEP.

The FDA action, effective July 1, is consistent with AMA policy, which supports effective use of PrEP for HIV and removal of barriers that are not clinically relevant. Also of note, the US Preventive Services Task Force recently issued an "A" recommendation for PrEP after an evidence review found that PrEP is of substantial benefit in decreasing the risk of HIV infection in persons at high risk of HIV acquisition. The FDA action to remove the REMS follows a recent decision by the drug's manufacturer to donate up to 2.4 million bottles of Truvada annually to the Centers for Disease Control and Prevention (CDC) for uninsured Americans at risk for HIV.

AMA submits comments on 2020 IPPS proposed rule

On April 23, CMS released its proposed rule describing federal fiscal year 2020 policies and rates for Medicare's prospective payment systems for acute care inpatient hospitals and the long-term care hospital prospective payment system. In response, the AMA submitted comments on June 24 and was encouraged by CMS' efforts in the proposed rule to reduce administrative burden, such as the Promoting Interoperability program focusing on interoperability and improved patient access to health information.

The AMA was also encouraged that CMS plans to seek specialty and stakeholder input prior to implementation of reimbursement and policy changes related to Medicare Severity Diagnosis-Related Groups that could have the potential to negatively impact patient access to care. However, the AMA believes the proposals related to the inpatient and long-term care quality programs need to be refined. To date, CMS' approach to addressing the opioid crisis through quality measurement has been too narrowly focused on preventing and/or reducing opioid use in the absence of addressing the larger clinical issue—ensuring adequate pain control while minimizing the risk toward opioid addiction. Quality measurement must focus on how well patients' pain is controlled, whether functional improvement goals are met and what therapies are being used to manage pain.

Bipartisan legislation introduced to advance medical marijuana research

The bipartisan Cannabidiol and Marihuana Research Expansion Act, S. 2032, has been introduced in the Senate and aims to improve the process for conducting scientific and clinical research on cannabidiol (CBD) and marijuana, and streamline the development of safe and effective cannabinoid-based drugs approved by the FDA.

The AMA strongly supports this legislation sponsored by Senators Feinstein (D-CA), Grassley (R-IA) and Schatz (D-HI) to enable legitimate research evaluating the potential efficacy and safety of medicines derived from cannabis. The AMA is very concerned with the growing public support and legislative efforts at all levels of government to legalize the use of cannabis. These efforts have resulted in many individuals using marijuana-derived products that have not been approved by the FDA.

The AMA believes that scientifically valid and well-controlled clinical trials conducted under federal investigational new drug applications are necessary to assess the safety and effectiveness of all new drugs, including potential cannabis products for medical use. However, legal and regulatory barriers to cannabis and cannabinoid research have left physicians and patients without the evidence needed to understand the health effects of these products and make sound clinical decisions regarding their use.

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State Update

Closing arguments in the CVS/Aetna case to be heard July 19

On July 19 the AMA returns to the federal district courthouse in Washington, D.C., to present closing arguments on whether the court should approve the U.S. Department of Justice's (DOJ) antitrust settlement with CVS and Aetna. Tune into a Facebook Live broadcast to get the latest news from outside the courthouse on July 19 at 1:30 p.m. Eastern time ("like" the AMA Facebook page to get notified about the broadcast), and hear from AMA leadership about why the AMA opposes the merger in a video recorded at the AMA Annual Meeting in June.

The settlement would allow CVS to acquire Aetna subject to some limited divestitures. However, under a federal law known as the Tunney Act, the DOJ antitrust settlement cannot become effective unless a federal district court determines that the settlement is in "the public interest." Usually such determinations are perfunctory. However, the judge in the case has acknowledged the important health care interests at stake. He has shown interest in AMA's concerns and has allowed AMA, the AIDS Healthcare Foundation and two consumer groups to present expert testimony and briefs explaining how the public would be harmed by the settlement. The oral argument on July 19 is expected to last several hours and a decision is expected later this summer.

Last year, the AMA outlined in a 141-page analysis why the proposed CVS-Aetna merger would run afoul of federal antitrust law, noting how it would likely harm patients. Learn more about the case and the AMA's concerns here.

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Judicial Update

Supreme Court takes up three cases regarding sex discrimination under Title VII

The Supreme Court has agreed to hear a trio of cases regarding the meaning of discrimination "because of sex" under Title VII. One of these cases—Harris Funeral Homes v. EEOC—involves a transgender plaintiff, assigned the male sex at birth, who was dismissed for transitioning to female, consistent with her true gender identity. The question in the case is whether Title VII prohibits discrimination against transgender people based on their status as transgender or sex stereotyping. The brief, filed on July 3, 2019, addresses what it means to be transgender and the harms that discrimination can cause, especially in the context of employment discrimination.

The second case, Bostock v. Clayton County, Georgia, concerns a gay man who was employed by Clayton County, Georgia, as a Child Welfare Services Coordinator for the county's Juvenile Court System. After Bostock "came out" as gay, he was subject to disparagement from other employees due to his sexual orientation. Bostock was then accused by the county of mismanaging public funds and was fired by the county. The question before the Supreme Court is whether Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination "because of…sex," encompasses discrimination based on an individual's sexual orientation.

This case has been consolidated with Altitude Express Inc. v. Zarda, in which a man alleged he was terminated based on his sexual orientation. All three of these cases could set a hugely important precedent for LGBTQ+ rights in the workplace.

Supreme Court to Medicare: Seek feedback before changing rules

A recent U.S. Supreme Court ruling ensures that CMS officials must tell the public about proposed changes to Medicare benefits—even if they seem minor—and give physicians, patients and other stakeholders a chance to comment on modifications' potential impact.

Physicians are cheering the ruling, as the outcome is one the Litigation Center of the AMA and State Medical Societies advocated for in a friend-of-the-court brief  filed in the case before the high court on behalf of the AMA and the Medical Society of the District of Columbia. Physicians told justices that "even 'seemingly minor' modifications in reimbursement determinations give rise to extreme financial consequences for providers and ultimately their patients."

The majority opinion, written by Justice Neil Gorsuch, opens by saying that in "one way or another, Medicare touches the lives of nearly all Americans," noting that it provides health insurance for nearly one-fifth of the nation's population. In explaining its reasoning for requiring the U.S. Department of Health and Human Services (HHS) to seek input, the court echoes arguments that the Litigation Center brief made about the importance of a notice-and-comment period for physicians, patients and other stakeholders. Read more here.

AMA fights to protect physician patient relationship in North Dakota

The AMA filed a lawsuit to challenge the constitutionality of two North Dakota laws that compel physicians and other members of the care team to provide patients with false, misleading, non-medical information about reproductive health. The AMA is filing this lawsuit in partnership with Center for Reproductive Rights, Red River Women's Clinic—the only abortion clinic in North Dakota—and its medical director, Kathryn Eggleston, MD, as co-plaintiffs.

Filed in the United States District Court, District of North Dakota, the lawsuit asks the court to block enforcement of North Dakota's compelled speech laws, which the AMA argues would inflict irreparable harm on patients and force physicians to violate their obligation to give honest and informed advice.

"The patient-physician relationship is the cornerstone of health care, and depends upon honest, open conversations about all of a patient's health care options," said AMA President Patrice A. Harris, MD, MA. "North Dakota's law undermines this relationship by requiring physicians to mislead and misinform their patients with messages that contradict reality and science. The AMA will always defend science and open conversations about all health care options available to patients."

In the lawsuit, the plaintiffs argue that these laws violate the First Amendment rights of physicians by forcing them to convey false information and non-medical statements with which they disagree. The lawsuit asks the court to block H.B. 1336 before it takes effect on Aug. 1.

Eight states—Arkansas, Idaho, Kentucky, North Dakota, South Dakota, Oklahoma, Nebraska and Utah—have passed laws requiring abortion providers to tell patients about so-called medication-abortion "reversal." Five of those states—including Arkansas, which expanded an existing law—passed the legislation in the past year.

Read more on this case here.

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Other News

2018 MIPS final scores available and targeted reviews due Sept. 30

Physicians who participated in the Merit-based Incentive Payment System (MIPS) in 2018 may now review their MIPS final score and performance feedback on the CMS Quality Payment Program (QPP) website. The MIPS payment adjustments received in 2020 will be based on final 2018 scores.

In response to the AMA's recommendations, CMS created a new QPP account option that allows individual physicians to see MIPS performance feedback, and final score and payment adjustment information for all their practices. More information is available in the "Connect as a Clinician" document in the QPP Access User Guide. Note that the process for setting up this account involves several steps and is limited to reviewing feedback.

If an error has been made in a physician's 2020 MIPS payment adjustment calculation, a targeted review can be requested via the QPP portal until Sept. 30. The following are examples of circumstances in which a physician may wish to request a targeted review: 

  • Errors or data quality issues for the measures and activities submitted
  • Eligibility and special status issues (e.g., a physician falls below the low-volume threshold and should not have received a payment adjustment)
  • Being erroneously excluded from the APM participation list and not being scored under the APM scoring standard
  • Performance categories were not automatically reweighted even though a physician qualifies for automatic reweighting due to extreme and uncontrollable circumstances

This is not a comprehensive list, and CMS encourages physicians to submit a request form if they believe a targeted review of their MIPS payment adjustment is warranted. For more information, review the 2018 Targeted Review Fact Sheet and the 2018 Targeted Review FAQs.

New tools available for alternative payment model participants

Physicians who participated in Medicare alternative payment models (APM) during 2018 can now go online and find out if they are likely to be counted as Qualified Participants (QP) in an APM for 2019. QPs are the physicians eligible to receive the 5% incentive payments under the Quality Payment Program. Physicians who are QPs in 2019 will receive their 5% lump-sum payments in 2021. More information is available in a new Medicare fact sheet on APM participation.

2018 Open Payments data released to the public on June 28

The Medicare Open Payments program collects and publicly reports information annually about payments that drug and device companies make to physicians, teaching hospitals and other providers for things like travel, research, gifts, speaking fees and meals. The CY 2018 Open Payments data was released to the public on the June 28.

The public release followed a 45-day period for physicians to review their data and dispute errors and a 15-day data correction period. Visit the AMA website for more information about the Open Payments Program and for instructions on how to review data.

CME courses on opioid treatments and pain management available through AMA Ed Hub™

A wide range of CME activities will enable physicians to meet state requirements around opioids while gaining critical knowledge on acute and chronic pain management, substance use treatment, overdose prevention, pain treatment, post-procedure pain management, and medical and adult-use marijuana. This course is now available through the AMA Ed Hub™, the new AMA online platform that brings together high-quality CME, maintenance of certification, and educational content—in one place—with relevant learning activities, automated credit tracking, and reporting for some states and specialty boards.   

Demonstrate your leadership by understanding best practices, guidelines and strategies to help your patients cope with a substance use disorder or chronic pain while earning up to 44.25 CME credits.

Learn more about AMA CME accreditation

New tool for emergency physicians to manage patients with buprenorphine

The American College of Emergency Physicians (ACEP) has partnered with the American Society of Addiction Medicine to develop a new point-of-care tool, called BUPE, designed to help physicians assess patients for opioid withdrawal and guide the use of buprenorphine. It provides quick access to indications, side effects and expected response. Physicians may access BUPE here.

ACEP says that its point-of-care tools are transforming care at the bedside, with similar tools addressing atrial fibrillation and flutter, agitation in the elderly, management of acute pain, sepsis and suicide assessment. For each clinical topic, ACEP has recruited the field's top experts and thought-leaders to develop tools that emergency physicians can trust and deploy in the clinical setting. The evidence-based, clinical content provided in these tools aims to ensure that emergency physicians are providing the best possible patient care in their emergency department.

Summer webinar series on social determinants of health

Social determinants of health are the conditions in which people are born, grow, work, live and age, and the wider set of forces and systems that shape the conditions of daily life. These forces and systems include economic policies, development agendas, social norms, social policies and political systems, and impact a wide range of health, functioning and quality-of-life outcomes. It is important that health care teams are able to recognize how implicit biases can impact the quality of care.

In this webinar series running through the end of August, physicians from across the country will reflect on the impact of social determinants of health from various perspectives including women's health, mental health, LGBTQ health care, and Hispanic and African American populations.

Get tips on the path to private practice

The potential for higher autonomy makes private practice an attractive option for physicians looking to have more control over practicing medicine. A new "AMA Path to Private Practice" infographic gives physicians the head start needed to sustain success in an independent practice setting.

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Upcoming Events

Register now for 2020 AMA advocacy conferences and save 20%

The 2020 AMA State Advocacy Summit will be held in Bonita Springs, Florida, at the Hyatt Regency Coconut Point Resort and Spa, Jan. 9-11. The 2020 AMA National Advocacy Conference will be held in Washington, D.C., at the Grand Hyatt, Feb. 10-12. Register now for both meetings and save 20%.

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