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Dec. 20, 2019

Issue Spotlight

Agreement reached on FY 2020 federal funding and extender package

Leaders in the House and Senate reached agreement on fiscal year (FY) 2020 spending bills before adjourning for the year on Dec. 20. Provisions of interest to AMA members include the following.

Other popular health care "extender" programs have been funded through May 22, 2020:

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National Update

Latest ACA ruling: What it means now for doctors, patients

The 5th U.S. Circuit Court of Appeals has ruled in the case of Texas v. United States that the Affordable Care Act's individual mandate provision is unconstitutional. While that ruling affirmed a portion of the decision by the U.S. District Court for the Northern District of Texas, the appeals court did not go along with district court ruling vacating the entirety of the law that has increased health insurance coverage for tens of millions of Americans.

This case still has a way to go before being fully resolved in the courts. After the district court issues its ruling in the remanded case, it will surely proceed back to appeals court and then, assuredly, to the U.S. Supreme Court. The matter is unlikely to be resolved prior to the 2020 presidential election. The individual mandate already has a zero-dollar penalty and is not being enforced, due to 2017 federal legislation. The protections for patients with pre-existing conditions continue to stay in effect. Read more here.

Congress approves CDC and NIH gun violence research funding

Congress is expected to approve federal funding for gun violence research this week for the first time in over 20 years as part of a final year-end appropriations package that the President is expected to sign into law. The deal, based on amendments authored by House Appropriations Chairwoman Nita Lowey (D-NY), would designate $25 million for gun violence research split evenly between the Centers for Disease Control and Prevention and the National Institutes of Health. The AMA has long advocated for Congress to address the high number of gun-related homicides, suicides and injuries—many of which are preventable—as a public health issue similar to addressing tobacco use, underage drinking, alcohol and helmet use for bicyclists and motorcyclists.  Determining the root causes—through federally-funded research—of any public health problem is critical to developing solutions. 

Ways & Means Committee on surprise billing: "It is crucial that we get this right."

On Dec. 11, Ways and Means Committee Chair Richard Neal (D-MA) and Ranking Member Kevin Brady (R-TX) announced that they had reached an agreement on surprise billing legislation to advance early next year. The agreement summary is limited on details, but some information about their new approach has come to light. Like other proposals, this plan would limit patients' out-of-pocket costs to the amounts they would have owed if they had the opportunity to choose in-network physicians and facilities to provide their care.

A yet to be defined "robust reconciliation process" is included to end payment disputes between insurers and providers when they fail to negotiate a settlement. This process, which could be similar to an independent dispute resolution (IDR) system, is not restricted to claims above a certain threshold amount, nor does it establish a payment benchmark based on in-network payment amounts. However, the Committee would include disincentives against overutilizing the process by levying surcharges on insurers and providers whose use of the process exceeds some unspecified frequency. Price and network transparency provisions and protections for patients whose provider networks change during the plan year are also included.

The AMA will continue to work with the physician community to ensure that any final surprise billing legislation in Congress holds patients harmless and includes a fair and balanced approach that treats all stakeholders equally while preserving access to care.

With health extenders only reauthorized until May 22, it is possible that surprise billing legislation could be included in a larger health care extender package in May of 2020.

AMA weighs in on new CURES 2.0 legislation

The AMA recently submitted a letter to Reps. Fred Upton (R-MI) and Diana DeGette (D-CO) in response to a call for recommendations regarding a new CURES 2.0 legislative package. The bipartisan duo authored the landmark 21st Century Cures Act enacted by Congress in 2016, designed to accelerate the discovery, development and delivery of 21st century cures. The new CURES 2.0 initiative is "an effort to modernize coverage and access to life-savings cures in the United States and across the globe. Patients from across the country continually remind us that a modernized system of developing new cures will require a modernized health care delivery system capable of delivering them to patients in need." The AMA's letter makes recommendations regarding oversight of software and AI, coverage and payment for telehealth and other digital health services, clarifications of Stark and Anti-Kickback laws, waivers for certain Medicare co-pay requirements, data interoperability, privacy and improving federal rules around use of Health IT. 

Changes urged for planned oncology model

In response to a request for information on the planned Oncology Care First (OCF) model, the AMA urged the Center for Medicare and Medicaid Innovation (CMMI) to limit financial accountability to the cost of patients' cancer care, link performance measures to evidence-based clinical pathways, and incorporate more factors that affect patients' health care needs into OCF risk adjustments. In contrast to OCF, which proposes to put participants at financial risk for all of the services their patients receive for all of their health care needs, the AMA noted that the Making Accountable Sustainable Oncology Networks (MASON) model would hold participating practices accountable only for the cost of cancer treatment and related complications. 

Another advantage of the MASON model over the planned OCF model is that it holds practices accountable for following recommended clinical pathways, which is the only appropriate way to ensure that patients' treatment plans are based on their needs and that they do not get inappropriate drugs or services. The National Comprehensive Cancer Network advocated for using performance measures based on clinical pathways at a November listening session convened by CMMI.

Listening session participants also agreed with the AMA that improvements are needed in OCF payments because, as currently outlined, the approach would not take into account the effects of stage of cancer, subtype of cancer, the toxicity and complexity of the chemotherapy, and the patient's functional status and caregiver support, all of which have a major impact on the services that patients need and cancer care costs. For example, higher-toxicity chemotherapy requires closer patient monitoring, potentially more supportive drugs (like drugs to prevent infection and anti-emetics), and a higher frequency of interventions to avoid emergency visits.

The current Medicare oncology model, called the Oncology Care Model, is slated to end at the end of 2020 and the new model would then begin in 2021. 

AMA calls for clarifications, improvements to Medicare imaging appropriate use program

The AMA recently wrote to the Centers for Medicare & Medicaid Services (CMS) to ask the agency to clarify that the initial testing period for the Medicare Appropriate Use Criteria (AUC) program for advanced diagnostic imaging will hold physicians harmless and to do more education and outreach as most physicians remain unaware of the program's requirements. Moreover, AMA called on CMS to reduce burdens in the AUC program as part of the agency's Patients Over Paperwork Initiative, which AMA strongly supports. The AMA has previously addressed concerns with the scope and complexity of the AUC program and will continue to call on CMS to resolve technical and operational workflow challenges and reduce duplication between AUC and the Quality Payment Program (QPP). The AUC testing year begins on Jan. 1, more information is available here.

National Defense Authorization Act prohibits reduction of military medical personnel billets

On Dec. 8, House and Senate conferees agreed to a final National Defense Authorization Act (NDAA) conference report (S. 1790) that included language prohibiting the reduction of certain military medical personnel billets until the completion of reviews required under the FY17 NDAA to ensure any reductions or realignments will not negatively impact military health care.

The AMA helped secure this win, communicating its significant concerns to the House and Senate Armed Services Committees that cuts proposed in the President's budget and included in the Senate NDAA bill to military health care provider billets could jeopardize the success and impact of health care services for millions of service members and beneficiaries. Furthermore, any decrease in associated military graduate medical education (GME) positions would likely displace available GME positions in civilian programs and further exacerbate physician shortages. The quality and availability of GME opportunities could have a direct impact on the number of physicians the DOD can recruit, train and retain to support the operational mission of the military services.

The AMA successfully advocated for inclusion of section 716 of the House-passed NDAA bill, H.R. 2500, that would prevent reductions in overall uniformed medical and GME positions. The favorable House-passed language was included in the final legislation.

The Conference report passed the House of Representatives on Dec. 11 and the Senate on Dec.17. The President has already indicated he will sign the bill into law.

AMA opposes federal government's proposal to collect DNA from detained immigrants

The U.S. Department of Justice (DOJ) recently issued a proposed rule to begin collecting DNA samples from hundreds of thousands of immigrants each year and to enter the results into a national criminal database. In accordance with policy adopted during I-19, the AMA strongly urged the U.S. Department of Justice (DOJ) not to expand the use of DNA-sample collection as proposed.

The population impacted by the proposal includes immigrants without any criminal history, including minor children, who present themselves at a U.S. port of entry to legally apply for protection from persecution in their home country and are subject to detention (e.g., those individuals presenting with credible fear claims). According to the DOJ, assuming the population subject to DNA collection under the rule remains at this level, DHS would be expected to submit an additional 748,000 samples annually. Thus, the population to whom this proposed rule would apply is expansive.

In its letter to the administration the AMA argued that the proposal undermines fundamental and long-standing accepted ethical conventions related to privacy and consent, as well as due process requirements when the federal government collects health information absent a compelling public health or public safety need.

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State Update

AMA, medical society advocacy results in Walmart EPCS delay

After urging from the AMA and multiple state medical societies, national retailer Walmart announced last week that it would delay its mandate for electronic prescribing of controlled substances (EPCS).

Walmart previously said that it would require EPCS for all controlled substances as of Jan. 1, with no exceptions. The AMA and multiple medical societies opposed the mandate, urging a delay due to the likelihood for patient harm and how the Walmart policy did not comport with state or federal law.

Last week, a Walmart spokeswoman said in a statement to USA TODAY that "We recognize not all provider networks and prescribers will have the technology and systems in place to accommodate this requirement, so we will continue to take written prescriptions so patients are not unintentionally negatively affected by this process."

"The AMA welcomes Walmart's decision to delay implementation of an electronic prescribing mandate that would have resulted in harm to millions of Americans, including many in rural areas who rely on Walmart as the only pharmacy within a reasonable distance," said AMA President Patrice A. Harris, MD, MA. "The policy was not developed in consultation with the nation's physicians, who support electronic prescribing of controlled substances, but want to see it implemented in a manner that supports—rather than disrupts—patient care."

The AMA will continue to monitor this development and encourages your help in sharing this information with your state medical and pharmacy boards, as appropriate, to ensure all pharmacies and other stakeholders comply with state law governing the prescribing and dispensing of controlled substances.

For questions or to share information regarding this story, please send an email to the AMA Advocacy Resource Center. ARC@ama-assn.org

OptumRx moving forward with EPCS mandate 

Over AMA objections, OptumRx said it is moving ahead with a mandate for physicians to use electronic prescribing of controlled substances (EPCS) for home delivery beginning Jan. 1, 2020. In a letter to the AMA, OptumRx said physicians should email OptumRx at EPCSQuestions@optum.com if they believe that they qualify for one of the following exemptions:

  1. If the physician's state law allows for an exemption, and the physician has one on file with the state
  2. The physician is located in a rural or remote location with limited internet access
  3. The physician is planning to convert to EPCS in 2020, but the conversion will not be live before March 2020
  4. The physician is close to retirement.

OptumRx told the AMA that its EPCS mandate also will not apply for those OptumRx members who reside in Alaska, Puerto Rico, Guam or the U.S. Virgin Islands as well as in long term care facilities or in hospice care. Additional exemptions may be allowed by OptumRx "if it will be a hardship for them to use a retail pharmacy for reasons such as disability, transportation challenges, or distance to a retail pharmacy."

If a physician believes that one or more of these exemptions apply, please email OptumRx at EPCSQuestions@optum.com to confirm.

New tool from AMA, APA and ASAM to help enforce parity

To help medical societies advocate for patients with mental health or substance use disorders, the AMA, American Psychiatric Association and American Society of Addiction Medicine created an "Enhanced Attestation," parity tool that would require payers to demonstrate in advance that they are in compliance with the federal Mental Health Parity and Addiction Equity Act (MHPAEA), which was enacted in 2008.

While the MHPAEA was enacted on a simple principle—insurance coverage for mental health and addiction treatment should be no more restrictive than insurance coverage for other medical care—the MHPAEA can be complicated. And many insurance departments have learned that a thorough review is time consuming and frustrating—particularly when payers provide incomplete and or inconsistent information.

The "Enhanced Attestation" tool takes federal requirements and puts them into an easy-to-implement checklist to help streamline oversight and, hopefully, increase MHPAEA compliance. The "Enhanced Attestation" tool guides payers through the necessary analyses to demonstrate compliance with the law, which can then be made available to a state department of insurance upon request for its own regulatory review.

To learn more about Enhanced Attestation read here. The complete "Enhanced Attestation" form can be found here. Additional parity resources include APA Fair Insurance Coverage: It's the Law and the ASAM parity toolkit.

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Judicial Update

5 big medical court cases that made a difference this year

The AMA and the Litigation Center of the American Medical Association and State Medical Societies covered a lot of legal ground in 2019, from the U.S. Supreme Court and state courts, where the nation's oldest and largest physician organization served as a powerful, unified voice for the nation's doctors and their patients.

  1. Judge says AMA is right: Title X gag rule violates medical ethics

"This is madness," wrote U.S. District Judge Michael McShane in Portland, Oregon, in a scathing rebuke of the Trump administration's new Title X regulations that includes a gag rule dictating what physicians must and must not say to their patients in the Title X program about family planning.

"The gag rule prevents doctors from behaving like informed professionals," McShane wrote. "At the heart of this rule is the arrogant assumption that government is better suited to direct the health care of women than their medical providers." The Title X program ensures that every person has access to basic, preventive reproductive health care, such as birth control, cancer screenings, sexually transmitted infection testing and treatment regardless of where they live or whether they have health insurance. About 4,000 clinics received Title X funds in 2017. Judge McShane issued a temporary injunction against the gag rule and a new requirement for clinics to create financial and physical separation between Title X and non-Title X abortion-related activities. A three-judge panel of the 9th U.S. Circuit Court of Appeals, however, stayed that district court ruling in June, allowing the new rule to take effect. Attorneys for the AMA and the other co-plaintiffs argued before an 11-judge panel of the appeals court on Sept. 23 to reverse course. The 9th U.S. Circuit Court en banc panel is considering whether to reverse the stay order. In the meantime, many of the former Title X recipients are continuing to provide family planning services, but without federal funding so they can operate without being subject to the gag rule.

  1. Court blocks law that would force physicians to mislead patients

A federal district court in North Dakota sided with the AMA and others and issued a preliminary injunction to block enforcement of a state law that would force physicians to violate the AMA Code of Medical Ethics and act as mouthpieces for a politically motivated message that is misleading and could harm patients. Earlier this year, the AMA filed an amicus brief in the case arguing that the law runs contrary to the AMA Code of Medical Ethics and they should issue an injunction, and AMA President Patrice A. Harris, MD, MA, also published an op-ed in The Advocate urging the Supreme Court justices to "do the right thing" in the case.

  1. New Jersey court weighs whether non-patient can sue physician

The family of a New Jersey woman who died after a car-bicycle crash involving a psychiatrist's patient wanted the right to sue the doctor who prescribed medication to the car's driver. If the courts had allowed the lawsuit to go forward, it would have opened up New Jersey physicians to an endless number of lawsuits from members of the public who would sue doctors whenever they believe harm from a patient can be tied to the care that patient received. The Superior Court of New Jersey Appellate Division in June upheld a trial court decision to dismiss the psychiatrist from the lawsuit.

  1.  Physicians increasingly face "hybrid" medical liability claims

California physicians are increasingly facing "hybrid" lawsuits alleging professional negligence as well as medical battery from plaintiffs who want to avoid the state's long-standing $250,000 limit on what juries can award for noneconomic damages in medical liability cases. A jury recently awarded $22,246 in economic damages and $9.25 million in past and future noneconomic damages to a plaintiff who tried this approach, with the court refusing to apply limits set in California's Medical Injury Tort Compensation Reform Act. The physician defendant is appealing the ruling and the Litigation Center of the American Medical Association and State Medical Societies joined with the California Medical Association and two other groups to file an amicus brief urging the appellate court to apply the law's $250,000 cap.

  1.  High court should hear case on site skirting gun background checks

The daughter of a woman who was killed by a man barred from gun possession has sued the website that facilitated the killer's purchase of the weapon used in the crime. The AMA and the Wisconsin Medical Society (WMS) are supporting the daughter, Yasmeen Daniel, and requesting that her case be heard by the U.S. Supreme Court.

Medicaid fraud: case would wrongly expand physician liability

A health professional doesn't know that a patient she is seeing is a Medicaid recipient. She types up notes about her patient interactions, but a physician in the clinic writes the prescriptions, codes the interaction and bills the government. Can she be convicted of Medicaid fraud?

A Michigan trial court did just that. An appeals court upheld the decision and now the Michigan Supreme Court will have the final say on whether the conviction will stand. The AMA litigation center and State Medical Societies joined the Michigan State Medical Society (MSMS) in filing an amicus brief that urges the state's highest court to overturn her convictions on two counts of Medicaid fraud.

"The breadth of this finding is of great concern to MSMS, AMA and their members," the brief tells the court. "Under the lower courts' conviction rationale, other clinic employees whose tasks are completely unrelated to billing—and those who are involved with billing but who do not set billing policies or assign diagnostic codes and who must rely upon others in the performance of their duties—are likewise at risk for criminal liability."

AMA policy supports efforts to clearly define health care fraud and calls for laws that ensure the equal application of due-process rights to physicians in health care fraud prosecution. The AMA Litigation Center brief filed in the case, Michigan v. Wang, notes that the Medicaid False Claim Act says that a person will not file a claim "knowing the claim to be false." The act defines "knowing" or "knowingly" to mean a "person is in possession of facts under which he or she is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the payment of a Medicaid benefit" and includes "acting in deliberate ignorance of the truth or falsity of facts or acting in reckless disregard of the truth or falsity of facts."

"Respectfully, the evidence presented at trial did not satisfy the statutory requirements for a knowing violation," the brief tells the court.

Read more about this case here.

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Other News

AMA advocates for prior authorization reform before NCVHS

The AMA participated in the Expert Panel on Prior Authorization (PA) before the National Committee on Vital and Health Statistics (NCVHS) Full Committee on Nov. 13. During the presentation, the AMA highlighted the significant negative impact that PA continues to have on timely care delivery, patient clinical outcomes, and physician practice burdens. Although NCVHS asked panelists to provide an update on PA improvement activities, the AMA stressed that the lack of progress by health plans in operationalizing the reforms agreed to in the Consensus Statement on Improving the Prior Authorization Process has been particularly disappointing. The AMA urged NCVHS to provide guidance that would address the confusion and paralysis in implementing standardized electronic PA processes while emphasizing that automation will not achieve the comprehensive reforms needed to relieve PA burdens for both patients and physicians.

To learn more about the AMA's PA advocacy efforts, visit FixPriorAuth.org.

New clinical workflow modules designed with physician practices in mind

These modules, offered as part of the AMA STEPS Forward™ practice improvement strategies, present actionable, practical toolkits and customizable resources you can be easily adapted for use in your practice. The following activities have been approved for 0.5 AMA PRA Category 1 Credit™. AMA Accreditation Statement.

Getting Rid of Stupid Stuff (GROSS)
Physicians themselves are often in the best position to recognize the unnecessary tasks and "stupid stuff" in their day-to-day but may not feel empowered to speak up unless asked. Learn how to create a simple program where suggestions for change can be solicited and effectively carried through in the practice environment.

Hospitalist Well-Being
Burnout among hospital medicine physicians is a fast-growing concern in this field. Hospitalist groups and leadership can benefit from this module detailing strategies to promote autonomy, mastery and joy in the practice of hospital medicine.

Medical Student Well-Being
Most medical students experience multiple forms of distress simultaneously, and the more forms of distress they experience the higher their risk is for thoughts of suicide and dropping out of medical school. Learn how to promote a culture of well-being, minimize burnout and improve mental health among medical students.

Medicare Annual Wellness Visit (AWV)
By focusing the Annual Wellness Visit (AWV) on preventive screening, safety issues (e.g., falls), and social needs (e.g., food insecurity, transportation), patients' quality of life can be enhanced. This module provides a detailed approach on how to optimize the annual wellness visit in physician practices.

Medication Management
Simplification, standardization and automation can help clinical teams manage patients' medications more efficiently. Learn how to implement a medication management process in physician practices.

Team-Based Care in Resident Clinics
For residents to learn how to lead an effective team in their future careers, they need to experience an effective team during their residency. This module provides a roadmap to implement an effective team-based care residency clinic and learning environment.

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Upcoming Events

Primary Care First questions to be answered by CMS in Jan. 6 webinar

The AMA has partnered with the American Academy of Family Physicians and American College of Physicians to host Center for Medicare and Medicaid Innovation staff in a free 60-minute interactive webinar about the new Primary Care First Model on Monday, Jan. 6, from 7-8 pm EST. Primary Care First will be offered in 26 geographic regions starting in 2021. Applications are due Jan. 22, 2020. (Current CPC+ participants are not eligible to start in 2021 but will be invited to apply at a later date for a 2022 start.)

The webinar will include important information about the model and application process and examples of how practices could be paid under the model's monthly and performance-based payments; attendees will be able to have their questions answered in an interactive session with CMS staff who designed the model. A key focus of the webinar will be helping practices understand how to determine whether participation in Primary Care First may be right for them.

To register for the webinar, click here.

Visit CMS' Primary Care First webpage to access the Request for Applications and more information and resources in advance of the webinar. Also, the AMA has an updated resource document available describing the Primary Care First model, and how it differs from the existing Medicare primary care payment model, called Comprehensive Primary Care Plus, or CPC+.

Register now for the State Advocacy Summit in Bonita Springs, FL

Day one of the State Advocacy Summit will kick off with a strategy session that will provide the big sky view on the future of health policy, looking at broad themes of affordability, consolidation and innovation. As the day moves on, the focus will shift to the local level to meet with current and former state policymakers to talk about upcoming health care efforts coming to the floor in a statehouse near you. The day will come full circle with a discussion of Medicine's role in health care reform, diving into all the ways medical societies can weave localized advocacy issues into the broader health care debate.

Register now for both the State Advocacy Summit in Bonita Springs, FL Jan. 9-11 and the National Advocacy Conference Feb. 10-12.

Ready to jump in the race? Start with the 2020 AMPAC Candidate Workshop

Thinking about running for public office? The 2020 AMPAC Candidate Workshop is designed to help physicians take the leap from the exam room to the campaign trail. The Workshop will be taking place February 28 – March 1 at the AMA Office in Washington, DC.

The curriculum is targeted to AMA members, their spouses, residents, medical students and medical society staff who want to learn more about what it takes to be an effective candidate. You will learn: how and when to make the decision to run; the importance of a disciplined campaign plan and message; the secrets of effective fundraising; what kinds of media advertising are right for your campaign; how to handle the inevitable crises that emerge for every campaign; the role of your spouse and your family; and how to become a better public speaker.

Registration fee is $250 for AMA members and $1000 for non-members. Airfare and hotel accommodation not included, but a discounted room block at the Hyatt Regency Capitol Hill is available.

Space is limited so register by Feb 3.

Register today for the Rx Drug Abuse and Heroin Summit

The Rx Drug Abuse & Heroin Summit is the largest and most-recognized conference committed to addressing the opioid crisis. Government officials, first responders, law enforcement personnel, clinicians, physicians, nurses, educators, public health and prevention officials and families and people in recovery are represented. The conference agenda is designed with timely and relevant information to address what is working in prevention, treatment and law enforcement. This year's summit will take place in Nashville, TN, April 13-16.

Register today and save an additional $50 with code ALUM.

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