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AANS/CNS Washington Committee Update

By Katie O. Orrico, Esq., Director

AANS/CNS Washington Office

While 2020 is a year that most people want to forget, organized neurosurgery made significant strides in accomplishing its legislative and regulatory agenda, thus ensuring that neurosurgical patients continue to have timely access to quality care. Throughout the year, the American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS) worked tirelessly on Medicare payment cuts, prior authorization reform, surprise medical billing, graduate medical education funding, medical liability reform and COVID-19 relief. Following are some highlights of these advocacy efforts:


Congress Prevents Steep Medicare Cuts in $2.3 Trillion Spending Package

On Jan. 1, the Centers for Medicare & Medicaid (CMS) implemented the CPT guidelines to report office and outpatient visits based on either medical decision making or physician time. These services are valued in line with the AMA/Specialty Society RVS Update Committee (RUC) recommendations. Unfortunately, to comply with Medicare’s budget neutrality requirement, any increases must be offset by corresponding decreases, and CMS estimated that the 2021 policies would increase Medicare spending by approximately $10.6 billion. This necessitated steep cuts for many specialties, including an overall 6-7% payment cut for neurosurgery.

Faced with these steep Medicare payment cuts (and potential future cuts to the 10- and 90-day global surgical codes), in June 2020, the AANS and the CNS — with significant funding support from the Council of State Neurosurgical Societies and the Section on Disorders of the Spine and Peripheral Nerves — along with 10 other national surgical associations, founded the Surgical Care Coalition (SCC). The SCC launched a targeted, multi-faceted advocacy and public relations campaign to prevent these cuts. Specifically, the SCC advocated that Congress adopt legislation that would:

· Increase the global surgery code values;

· Halt implementation of the G2211 add-on code for complex E/M visits; and

· Prevent any additional cuts resulting from the new E/M payment policies.

Working with the SCC and other physician and allied health professional organizations, the AANS and the CNS successfully advocated for legislation to prevent these cuts. On Dec. 27, 2020, President Donald J. Trump signed the Consolidated Appropriations Act, 2021 (H.R. 133) into law (P.L. 116-260) — a massive omnibus spending bill that includes nearly $900 billion for coronavirus relief and an additional $1.4 trillion spending package to fund the federal government through the end of the Fiscal Year 2021. Specifically, the legislation:

· Prevents steep Medicare cuts by earmarking $3 billion to help offset the budget- neutrality adjustment and by delaying for three years the new G2211 add-on code for certain complex office visits;

· Extends the moratorium on the 2% Medicare payment sequester for an additional three months through March 2021, allocating $3 billion for this purpose;

· Increases payments for the work component of the MPFS in areas where labor cost is determined to be lower than the national average through Dec. 31, 2023; and

· Temporarily freezes alternative payment model (APM) payment incentive thresholds for two years, allowing more physicians to qualify for the 5% APM bonus payments.

As a result of this combined relief, overall, neurosurgeons should not experience any Medicare payment cuts (although the specific impact will depend on the mix of services provided) in 2021.

However, our work is not complete. The surgical community will continue to advocate for CMS to adjust the 10- and 90-day global codes to reflect the increased values of the evaluation and management (E/M) portion of these codes. In that regard, on Dec. 1, Sen. Rand Paul, MD, (R-Ky.) introduced S. 4932, the “Medicare Reimbursement Equity Act.” If enacted, this legislation would require CMS to value the E/M portion of the global codes equal to the stand-alone E/M codes. Click here to read surgery’s letter endorsing the bill.

Click here for a copy of the 2021 Medicare Physician Fee Schedule final rule and here for a copy of the updated Addendum B, which includes the relative value units for all services. The 2021 conversion factor is now $34.8931 rather than $32.4085, although still shy of the 2020 CF of $36.0896.

A comprehensive summary prepared by the AMA is available here, and a side-by-side analysis of the proposed and final rules developed by Hart Health Strategies is available here. A CMS press release and fact sheet are available here and here.

More information about the new E/M codes is available here.


Progress Made in Reforming Prior Authorization

For the past two years, the AANS and the CNS have been tireless in their efforts to reform prior authorization in the Medicare Advantage (MA) program. Significant progress has been made, setting the stage for reforms in the coming year. Neurosurgery-backed legislation — the “Improving Seniors’ Timely Access to Care Act” (S. 5044 / H.R. 3107) — garnered overwhelming bipartisan support from nearly 300 members of Congress. If enacted, this bill would reform the use of prior authorization in Medicare Advantage (MA) through a streamlined and standardized process that focuses on increased transparency and accountability. The bill reflects a neurosurgery-supported consensus statement on prior authorization, developed by leading national organizations representing physicians, hospitals and health plans.

Specifically, the legislation directs the Secretary of the U.S. Department of Health and Human Services to:

· Establish a real-time, electronic prior authorization process;

· Minimize the use of prior authorization for routinely approved services;

· Ensure prior authorization requests are reviewed by qualified medical personnel; and

· Require MA plans to report on their use of prior authorization, including delay and denial rates.

Members from the Ohio congressional delegation supporting this legislation included:

· Sen. Sherrod Brown (D), the lead sponsor of S. 5044 in the Senate

· Rep. Steve Chabot (R-OH-1)

· Rep. Brad Wenstrup, DPM (R-OH-2)

· Rep. Joyce Beatty (D-OH-3)

· Rep. Robert Latta (R-OH-5)

· Rep. Bill Johnson (R-OH-6)

· Rep. Bob Gibbs (R-OH-7)

· Rep. Michael Turner (R-OH-10)

· Rep. Troy Balderson (R-OH-12)

· Rep. David P. Joyce (R-OH-14)

· Rep. Steve Stivers (R-OH-15)

· Rep. Anthony Gonzalez (R-OH-16)

· Rep. Tim Ryan (D-OH-13)

This legislation will be reintroduced in the 117th Congress. More information is available from the Regulatory Relief Coalition, of which the CNS and the AANS are founding members.

In addition to the legislative efforts, the AANS and the CNS worked with CMS to reform prior authorization in the MA program. While the agency has not yet moved forward with these reforms, on Dec. 10, CMS did issue a proposed rule titled “Reducing Provider and Patient Burden by Improving Prior Authorization Processes, and Promoting Patients’ Electronic Access to Health Information.” The proposal would place new requirements for improving the electronic exchange of health care data and streamline prior authorization processes on Medicaid and Children’s Health Insurance Program (CHIP) managed care plans, state Medicaid and CHIP fee-for-service programs and Qualified Health Plans. Most of the provisions in the rule would go into effect on Jan. 1, 2023.

Click here for the CMS press release and here for the agency’s fact sheet about the proposal.

Joining the Regulator Relief Coalition, the AANS and the CNS submitted comments regarding the proposal.


Protecting Patients from Surprise Medical Bills

The AANS and the CNS have been advocating for federal legislation to protect patients from unanticipated medical bills (otherwise known as “surprise” medical bills) while at the same time providing for a fair process for resolving payment disputes. Organized neurosurgery adopted a set of principles for a balanced solution to the problem. After more than two years of sustained advocacy, Congress incorporated into the Consolidated Appropriations Act, 2021 (P.L. 116-260) the “No Surprises Act.” The provisions of the new law, which will be implemented on Jan. 1, 2022, meet most of neurosurgery’s principles and include the following elements:

· Patients are protected from surprise medical bills and only responsible for the in-network cost-sharing amount for out-of-network (OON) emergency services and other services provided in in-network facilities.

· Insurers are required to make initial payments directly to OON providers for OON services within 30 days. The law does not define the payment rate.

· If a provider objects to the payment, they may still deposit the payment and then proceed to an independent dispute resolution (IDR) process.

· The IDR process is baseball-style arbitration. There is no negotiation. Both parties submit a payment rate, and the arbiter selects one. The first step is a 30-day informal “open-negotiation” period, where physicians and insurers may settle disputes over OON claims. If the parties cannot agree, the physician may request a baseball-style arbitration process. The physician has four days to request arbitration. The IDR process must be resolved in 30 days.

· The arbiter may only consider the offers made by both parties, and the following additional information, which must be considered equally.

+ Median in-network rates in paid as of Jan. 30, 2019, increased by CPI-U annually thereafter, as determined by the payer.

+ Any information that the provider or health plan wants to submit (billed charges, Medicare, Medicaid, CHIP and Tricare rates cannot be submitted).

+ Prior contracting history for the four previous years with that payer.

+ Physician training and experience, complexity of the case, acuity of the patient, good faith efforts to enter (or not enter) into network agreements, and the insurer and provider’s market share.

+ Any information the arbiter requests.

· The loser pays the arbitration fees, and both providers and insurers must pay an additional fee to the regulator to be determined.

The new law applies to federally-regulated plans, including ERISA plans, and does not preempt Ohio’s state laws governing state-regulated health plans.

The AANS and the CNS will work with the incoming Biden Administration on the implementing regulations.


Supporting Quality Resident Training & Education

An appropriate supply of well-educated and trained physicians — both in specialty and primary care — is essential to ensure access to quality health care services for all Americans. Looming physician shortages — by 2033, the nation faces a physician shortfall of between 54,100 to 139,000 — threaten this access to care. To help ease this shortage and support quality resident training and education, the AANS and the CNS successfully advocated for legislation to increase the number of Medicare-sponsored residency training positions. The “Resident Physician Shortage Reduction Act” (S. 348 / H.R. 1763), with a total of 242 bipartisan cosponsors, would increase the number of available medical residency positions by 15,000 over five years.

While falling short of what is necessary to adequately address the looming physician workforce shortage, the Consolidated Appropriations Act, 2021 (P.L. 116-260) did provide funding for 1,000 additional Medicare-funded graduate medical education (GME) residency positions. The AANS and the CNS will build on this down payment by advocating for additional funding in the 117th Congress.


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