The surgical community breathed a collective sigh of relief earlier this year when Congress passed the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act (MACRA), which, among other provisions, repealed the sustainable growth rate (SGR) formula used to calculate Medicare physician payment. Because Congress no longer needs to pass annual SGR patches to prevent drastic cuts to physicians who provide care to Medicare patients, lawmakers are now free to revisit other priorities that have been on the back burner for years. In addition, various provisions in the Affordable Care Act (ACA), which was recently upheld as constitutional by the U.S. Supreme Court, continue to be implemented; as a result, health care changes are increasingly being debated. The American College of Surgeons (ACS) is monitoring legislative, judicial, and regulatory developments that continue to affect the ability of surgeons to deliver high-quality health care.
The ACS Division of Advocacy and Health Policy (DAHP) is working diligently not only to keep pace with proposed changes, but to meaningfully influence policy pertaining to surgery and surgical patients whenever possible. This article examines a few of the many federal policy areas that the ACS DAHP is tracking.
Implementation of the ACA
The U.S. Supreme Court’s June 25 King v. Burwell decision, which upholds tax credits for individuals who purchase health insurance through federally administered exchanges, was a victory for the Obama Administration and the future of the ACA. Although many candidates for office will continue to call for repeal of the legislation in their political campaigns, the likelihood of the law being overturned grows smaller by the day. Nonetheless, it is possible that certain aspects of the legislation will be altered. Potential changes include increasing the number of workers who must be covered under employer-based group health insurance plans to 100 from 50; allowing consumers to use agents and brokers to purchase their insurance rather than navigate an exchange on their own; and repealing the medical device tax through passage of H.R. 160, which passed on June 18 in the House of Representatives and was awaiting Senate action at press time.
Insurance mergers and narrow networks
The College is vigilant in monitoring the potential impact of the mergers of large health insurance companies on surgeons. Studies have shown a decline in competition among health insurers, and the Aetna-Humana and Anthem-Cigna mergers proposed at press time would only exacerbate this issue.1 Little evidence exists to show that mergers will lower health insurance premiums or otherwise benefit consumers. Furthermore, when health care professionals and hospitals are left with fewer yet larger insurance companies, their leverage decreases and it becomes more difficult to negotiate fair reimbursement rates. The ACS is exploring the best way to address these concerns.
The narrowing of insurance networks and the tiering of health care providers based on the cost and quality of care they deliver is another specific concern among ACS Fellows. The College continues to analyze how these practices may affect access to care. One emerging problem stemming from the narrowing of insurance networks in state-run exchanges authorized in the ACA is the increased use of out-of-network providers. For example, legislation has been introduced to address out-of-network coverage in New Jersey. The New Jersey bill, S.B. 20, similar to a New York law enacted in 2014, would limit the amount of money out-of-network physician providers can charge patients. The College is actively monitoring this legislation.
The future of Medicare physician payment
Achieving passage of MACRA and repealing the SGR was an important victory for the College and for all Medicare physicians; however, passage of MACRA was only the first step in a long process of reforming Medicare physician payments. Aside from repealing the SGR, the new law will combine and streamline existing Centers for Medicare & Medicaid Services (CMS) quality programs into a new Merit-based Incentive Payment System (MIPS), which will determine the annual physician payment adjustments for fee-for-service Medicare beginning in 2019.
MACRA also encourages development and participation in alternative payment models (APMs) that tie payment to quality measures, use certified electronic health record (EHR) technology, and include an element of financial risk with the potential for monetary loss. A 5 percent lump-sum incentive payment is available for the first six years of participation to offset the risk and initial cost associated with transitioning to such a system. For more information on MACRA, see the July 2015 issue of the Bulletin.2
The ACS already has begun work to ensure that the MIPS established in MACRA works for surgeons and that as many Fellows as possible have opportunities to participate in APMs. The ACS will advocate on the behalf of Fellows to ensure the final rules regulating this program are clear and fair. DAHP staff is currently participating in working groups and CMS listening sessions to help implement the new law and smooth the transition. The College also is working with outside entities to develop APMs for surgeons. For more information on APMs, see the June 2013 Bulletin.3
Data collection requirements for global payment codes
In November 2014, CMS finalized a policy that would have transitioned all 10- and 90-day global codes to 0-day global codes. Independent analysis showed that this policy would have resulted in a cut in reimbursement to surgeons for most procedures. The passage of MACRA prevented CMS from implementing this policy, due to the College’s successful advocacy efforts. Instead of eliminating 10- and 90-day codes, CMS will instead collect data on the number and levels of visits provided in the global period and use these data to improve the accuracy of the valuation of surgical services. The DAHP staff will offer its expertise to CMS as the agency develops the methodology for collecting this information. For more information on global payments, see the September 2015 Bulletin.4
Surgeons working in critical access hospitals (CAH) have recently started to encounter new barriers to caring for their patients, and in some cases have been forced to send patients to other hospitals far from their homes to receive care. CAHs must comply with certain conditions to receive Medicare Part A reimbursement. One condition of payment requires a physician to certify that a patient who is being admitted can be expected to be discharged or transferred from a CAH within 96 hours. Although the 96-hour rule has been in place since 1997, it was unenforced. CMS indicated in 2013, however, that it would start enforcing the rule. The ACS maintains that rural patients should be allowed to seek care in a familiar setting close to where they live. If this care can be provided safely and appropriately in a CAH, then patients, in consultation with their physicians, should be able to receive care at this type of facility. Rep. Adrian Smith (R-NE) and Sen. Pat Roberts (R-KS) have introduced the Critical Access Hospital Relief Act, H.R. 169/S. 258, which would remove the problematic 96-hour rule requirement. The College continues to meet with members of Congress to encourage legislators to cosponsor this important legislation.
The ACA authorizes a Medicare incentive payment program for major surgical procedures provided by general surgeons in health professional shortage areas (HPSAs). This initiative—called the HPSA Surgical Incentive Payment program or general surgery bonus program—is designed to increase access to surgical care in shortage areas. A 10 percent bonus is given for major operations (defined as 10-day and 90-day global procedures) provided by a surgeon who participates in Medicare with a primary specialty code of 02 (general surgeon). The operation must take place in either a primary care or mental health HPSA. Surgeons began receiving this incentive payment after January 1, 2011, but it is set to expire at the end of this year. The ACS is undertaking efforts to introduce legislation that would extend the HPSA incentive payment program.
Possible changes to hospital payments
The U.S. House Committee on Ways and Means is working on a series of hospital payment reforms that will be combined into one bill. Several of these reforms are priorities of the members of the committee. One focus is on the distribution of payments of disproportionate share hospitals (DSH). DSH allocations currently are a percentage add-on to the basic diagnostic-related group payments. The amount is based on a complex formula dependent upon the number of Medicare and Medicaid inpatients. The Strengthening DSH and Medicare Through Subsidy Recapture and Payment Reform Act of 2015, H.R. 3288, would change DSH payments from the add-on system to that of an annual $3.3 billion lump sum beginning in fiscal year (FY) 2017. DSH hospitals located in states that have not expanded Medicaid would receive money from an additional new $1 billion pool, funded annually. The authors of the bill propose the additional funds for those hospitals to level the playing field.
The Medicare Crosswalk Hospital Code Development Act of 2015, H.R. 3291, would create a new version of the Medicare Severity Diagnosis Related Groups (MS-DRGs). The new version would end reliance on the International Classification of Diseases codes, and an alternative set of codes, called the Healthcare Common Procedure Coding System (HCPCS), would be used to create the new MS-DRGs. These codes would apply to at least 10 operations that the Secretary of the U.S. Department of Health and Human Services (HHS) determines to be comparable between the inpatient and outpatient settings. The transition must be completed by January 1, 2018.
Finally, changes to indirect medical education (IME) payments are being proposed. The Medicare IME Pool Act of 2015, H.R. 3292, instructs the HHS Secretary to reimburse IME funds to teaching hospitals in a lump sum, rather than the current add-on payment they receive per inpatient discharge. This change would occur for cost-reporting periods ending during or after FY 2019 and would be paid out to teaching hospitals in the same timeframe—approximately every two weeks—as the direct graduate medical education (GME) payments. The bill would also require the Secretary to create a new IME pool, initially funded at $9.5 billion for FY 2019. The Secretary would be required to maintain the formula used today to derive IME payments.
The College is pleased that lawmakers are paying closer attention to this issue but asserts that major reforms to the way GME is funded and administered are long overdue. Changes must ensure that the physician workforce is capable of meeting the needs of our nation’s aging population. In broadest terms, the College believes solutions must be flexible, patient-centric, and, most importantly, evidence-based. To encourage the development of these types of solutions, the College has crafted a set of principles for GME reform and is actively examining options for comprehensive reform proposals.5 Loosely, the principles call for any reforms to move toward a more data-driven and accountable governance system, while maintaining federal support and recognizing the unique training needs of surgeons to attain the requisite technical skills.
The ACS will continue to monitor the movement of these bills and other hospital-related legislation as they move through the legislative process.
Health information technology (HIT)
Many surgeons and other physicians anticipated that EHRs would improve the flow of clinical information within their daily practices and support direct data feeds to clinical registries, thereby providing the dual benefits of better informing patients while reducing administrative burdens. However, early EHR systems have largely failed to leverage clinical information in the manner that surgeons anticipated. Surgeons’ EHR systems are difficult to use to collect, analyze, and return useful information, either at the point of care or in subsequent monthly or quarterly reviews of clinical practice.
Several issues require resolution before patients and surgeons will feel the beneficial effects of digital clinical information and meaningful use of digital information becomes a reality. Due to limited information exchange, a lack of data standards and interoperability, and virtually no real-time clinical analytics, time spent entering data into EHRs may seem like a poor use of resources. The College has worked to improve surgeons’ experiences with EHRs by providing tools to help them choose the right EHR product, offering guidance to enable a better understanding of CMS’ EHR incentive program, and empowering users to meet meaningful use requirements. In order to make improvements, we must ensure that the pertinent digital information resides in EHRs, is readily available without overly cluttered reports, and communicates the right information from these primary data sources in a way that is meaningful for surgeons and other providers.6
Lawmakers have heard from constituent providers regarding the difficulties surrounding HIT. In response, congressional committee meetings have convened and comprehensive legislation has been introduced. For example, the Senate Committee on Health, Education, Labor, and Pensions has held a series of meetings regarding current impediments to successful implementation of HIT. The College submitted testimony on July 23 detailing its concerns. The testimony also described the utility of big data analytics, which makes information available to a cloud platform for real-time use in delivering better care.
The ACS has joined with other surgical societies to circulate a letter of support for H.R. 3309, the Flex-IT 2 Act, which would delay the EHR incentive program’s Meaningful Use Stage 3 rulemaking until at least 2017, when MIPS final rules have been developed, or until at least 75 percent of physicians and hospitals are successfully meeting Stage 2 requirements. The legislation also encourages interoperability and simplifies reporting requirements for Medicare quality programs.
At press time, Reps. Lynn Jenkins (R-KS) and Richard Neal (D-MA) were expected to introduce a resolution recognizing the importance of voluntary accreditation by the Commission on Cancer (CoC) in ensuring access to high-quality cancer care. CoC accreditation demonstrates a cancer program’s commitment to providing comprehensive care to patients and their families. It also is useful in cancer centers’ efforts to continuously evaluate performance and make improvements where necessary. Accreditation encompasses a variety of factors and ensures that patients have access to tools and services, ranging from early distress screening to survivorship care plans. At present, the CoC accredits approximately 1,500 cancer programs across the U.S., which treat more than 70 percent of newly diagnosed cancer patients each year. The ACS will be working with the CoC to conduct a grassroots push for co-sponsorship of the resolution, as well as focus on efforts to get the legislation enacted.
Fellows’ involvement is crucial
Although Congress has addressed some critical health care issues during the last year, Fellows must not become complacent. The issues outlined in this article represent those receiving the most attention on Capitol Hill. However, the College is advocating on other issues as well, including pricing transparency, trauma initiatives, medical liability reform, workforce initiatives, adequate funding for research, and other legislation that affects surgeons’ ability to provide the highest quality care to their patients. For a comprehensive catalog of the ACS legislative portfolio, visit SurgeonsVoice.org. This online resource describes key issues of the day and provides the necessary tools and information to become a seasoned surgical advocate.
- Insurance mergers will reduce competition and choice [news release]. Chicago, IL: AMA Media & Editorial; July 24, 2015. Available at: www.ama-assn.org/ama/pub/news/news/2015/2015-07-24-insurance-mergers-reduce-competition-choice.page. Accessed September 23, 2015.
- Coffron M. What’s next? The future of Medicare physician payment in the post-SGR era. Bull Am Coll Surg. 2015;100(7):10-14. Available at: bulletin.facs.org/2015/07/whats-next-the-future-of-medicare-physician-payment-in-the-post-sgr-era/. Accessed September 21, 2015.
- American College of Surgeons. Replacing the SGR: The latest developments in the ACS Value-Based Update proposal. Bull Am Coll Surg. 2013;98(6):72-73. Available at: bulletin.facs.org/2013/06/replacing-the-sgr/. Accessed September 21, 2015.
- Ollapally VM. Changes on the horizon for global services payment. Bull Am Coll Surg. 2015;100(9):14-17. Available at: bulletin.facs.org/2015/09/changes-on-the-horizon-for-global-services-payment/. Accessed September 21, 2015.
- Hoyt DB. Letter to Joe Pitts, U.S. House of Representatives. January 15, 2015. Available at www.facs.org/~/media/files/advocacy/gme/gme%20response.ashx. Accessed September 21, 2015.
- Hoyt DB. Letter to Andrew Slavitt, Centers for Medicare & Medicaid Services. May 29, 2015. Available at: www.facs.org/~/media/files/advocacy/ehr/acs%20ehr%20incentive%20program%20stage%203%20proposed%20rule%20comment%20letter.ashx. Accessed September 21, 2015.