This year has been unique in American politics, given the disruptions in the Trump Administration and the partisan nature of the 115th Congress. Likewise, the American College of Surgeons (ACS) advocacy efforts have been a bit out of the ordinary. While the attention of the media and the American public have been focused largely on the efforts by Republican lawmakers to dismantle the Affordable Care Act (ACA), other important legislative initiatives and regulatory changes have been moving under the radar of public scrutiny. Two of these issues are of interest to rural surgeons and showcase the efforts of the ACS Division of Advocacy and Health Policy (DAHP) in this unusual political environment.
Ensuring Access to General Surgery Act
One bill of importance to surgeons is the Ensuring Access to General Surgery Act of 2017 (H. R. 2906/S. 1351) sponsored by Reps. Larry Bucshon, MD, FACS (R-IN), and Ami Bera, MD (D-CA), and Sens. Charles Grassley (R-IA), and Brian Schatz (D-HI). This legislation has bipartisan support in Congress and addresses an issue that has been a high priority of the College for several years.
The College has had a longstanding interest in workforce issues. Since 2008, the Health Policy Research Institute (HPRI), a collaborative effort between the College and the Cecil Sheps Center at the University of North Carolina at Chapel Hill, has gathered data related to the surgical workforce. In 2011 and 2012, the HPRI produced a series of maps that illustrated the concentration of surgeons (the number of surgeons per 100,000 population) in metropolitan areas on the East and West Coasts. A total of 841 counties, largely in the rural Midwest, had no surgeons, according to this data.
The College called for the ACA to include language that provided a 10 percent Medicare incentive payment to general surgeons when they perform procedures in Health Professional Shortage Areas (HPSAs) from 2011 to 2016. However, because this law applied the incentive payment to HPSAs designated for primary care, it had a negligible effect on the general surgery workforce.
A shortage of general surgeons is a critical component of the workforce crisis in health care. Accordingly, the ACS is urging policymakers to recognize—through the designation of a formal surgical shortage area—that surgeons are uniquely trained and qualified to provide certain necessary, lifesaving procedures and are, therefore, an essential component of a community-based health care system.
The ACS supports the Ensuring Access to General Surgery Act, which would direct the Secretary of the U.S. Department of Health and Human Services (HHS), through the Health Resources Services Administration (HRSA), to conduct a study on general surgery workforce shortage areas. Additionally, it would grant the HHS Secretary the authority to provide a general surgery shortage area designation.
Up to this point, HRSA has not designated a shortage area solely based on a shortage of surgical services. The ACS asserts that research must be conducted and evaluated in order to determine what constitutes a surgical shortage area and where these areas exist. Determining where patients lack access to surgical services will provide the HRSA with a tool for increasing access to the full spectrum of high-quality health care services. Incentivizing general surgeons to locate or remain in communities with workforce shortages could become critical to guaranteeing that all Medicare beneficiaries, regardless of geographic location, have access to quality surgical care.
Determining what defines a surgical shortage area is an important legislative first step in achieving this goal. In June, the Ensuring Access to General Surgery Act was referred to the Energy and Commerce Committee in the House and the Health, Education, Labor, and Pensions Committee in the Senate for consideration.
Critical access hospital 96-hour rule
An old nemesis of rural surgeons, the critical access hospital (CAH) 96-hour rule, has become one of many issues to receive scrutiny from the Trump Administration in its efforts to promote regulatory relief for businesses.
The 96-hour rule is a result of 20-year-old legislation. Section 1814(a)(8) of the Social Security Act required the Centers for Medicare & Medicaid Services (CMS) to enact a provision under which physicians must certify that patients may be expected to be discharged or transferred to another hospital within 96 hours after admission to a CAH. For inpatient services rendered in CAHs to be payable under Medicare Part A, CMS requires that all physician certification requirements—including the 96-hour certification—be completed and documented in the medical record.
The rule became an issue for surgeons in 2013, when CMS instituted its Two-Midnight Rule for inpatient hospitalization, and the agency noted that the 96-hour rule had not been enforced.
The 96-hour certification requirement has imposed significant burdens on the surgical community, particularly for those surgeons who provide essential care to rural Medicare beneficiaries. The ACS remains concerned that strict compliance with the 96-hour certification requirement may violate the Emergency Medical Treatment and Labor Act (EMTALA), as well as a CAH’s Medicare Conditions of Participation. Unfortunately, several attempts at legislative repeal of the rule have fallen short in recent years.
In 2017, however, the measure received scrutiny at the regulatory level under HHS Secretary Tom Price, MD, who has sought to eliminate burdensome regulations.
CMS, like all regulatory agencies, is bound to enforce all laws passed by Congress. However, a great deal of rulemaking occurs after a law is passed under the authority of the executive branch. In the case of the 96-hour rule, for example, the agency determined how the rule would be enforced, how often hospitals would be scrutinized, and what methods would be used to penalize violators. The Secretary has broad authority to interpret and enforce such regulations.
To minimize the burden of physician certification requirements on CAHs, CMS included in its fiscal year 2018 Medicare Inpatient Prospective Payment System final rule a policy that makes the 96-hour rule a low priority for medical record reviews occurring on or after October 1, 2017. Under this proposal, CMS will not require quality improvement organizations, Medicare administrative contractors, supplemental medical review contractors, and recovery audit contractors to conduct medical record reviews of the 96-hour certification requirement absent any evidence of potential fraud, waste, or abuse.
The ACS supports CMS’ decision to make the 96-hour certification requirement a low priority for medical record reviews. This policy indicates that CMS is aware of the problems inherent in the rule, and the ACS continues to urge CMS to remedy these problems in future rulemaking. More specifically, the ACS maintains that future rules should go beyond instructing audit entities to forgo reviews of medical records for this requirement unless there are specific concerns related to program integrity.
ACS actions
During the August congressional recess, the ACS DAHP focused on arranging in-district meetings with members of Congress and their staffs to increase cosponsorship of the Ensuring Access to General Surgery Act. To help leverage these efforts, surgeons need to be engaged and contact their elected officials. As part of its grassroots advocacy strategy, the DAHP continues to urge College members to take action, through peer-to-peer outreach and via SurgeonsVoice.org and other ACS communication platforms, including NewsScope and Health Policy and Advocacy Council weekly e-mail updates.
At press time, more than 140 messages have been circulated to more than 85 lawmakers urging timely consideration of this important legislation. Additionally, ACS staff will be identifying and reaching out to surgeon-advocates who serve on key College committees or councils to assist in elevating this policy priority and encourage additional cosponsors.
With respect to the 96-hour rule, the College has worked to influence the rulemaking process through its Regulatory Affairs staff. In addition to the 96-hour rule, the DAHP had identified 12 other issues related to regulatory relief in a letter sent to Secretary Price July 18, 2017. These include areas of importance to many surgeons, such as the requirement to report evaluation and management services in the global period in 17 states, the Two-Midnight Rule for inpatient hospitalization, and the three-day inpatient stay requirement for skilled nursing admission. The full text of the letter is available on the ACS website.
The ACS supports policies and regulations that reduce the administrative burdens placed on providers and streamline clinical workflow. The College is working to reduce the excessive and unnecessary regulatory burdens placed on physicians and their practices and continues to advocate for regulatory relief for rural surgeons. For more information about ACS regulatory relief efforts, contact regulatory@facs.org.
