Legislative Affairs
Congress Passes Legislation to Prevent Steep Medicare Payment Cuts
Before adjourning, Congress passed, and President Biden signed into law the Protecting Medicare and American Farmers from Sequester Cuts Act (P.L. 117-71) — legislation that would avert steep Medicare payment cuts scheduled to take effect on Jan. 1. Neurosurgeons had anticipated cuts of 9% or more due to several factors:
- Expiration of the 3.75% payment adjustment to the Medicare Physician Fee Schedule (MPFS) conversion factor (CF);
- Expiration of the moratorium on the 2% Medicare payment sequester; and
- Implementation of a 4% statutory Pay-As-You-Go (PAYGO) Act cut.
During the year, the Congress of Neurological Surgeons (CNS) and the American Association of Neurological Surgeons (AANS) led several coalition efforts, including the Surgical Care Coalition, to advocate for legislation to prevent these cuts. The final package incorporated the following relief to mitigate the cuts:
- A one-year 3% increase in the Medicare CF to offset the expiration of the MPFS 3.75% payment adjustment;
- A delay in resuming the 2% Medicare sequester cut for three months (Jan. 1–March 31), followed by a reduction to 1% for three months (April 1–June 3); and
- A one-year delay of the 4% PAYGO cuts.
In the Surgical Care Coalition’s press release following passage, John K. Ratliff, MD, FAANS, chair of the CNS/AANS Washington Committee, stated, “By delaying significant cuts to surgical care, this bill will help protect patient access to care across the country. Still, physicians continue to face these same payment cuts year after year. We look forward to working with Congress to reform the Medicare payment system so that it invests in health care providers and ensures that they can be there for patients when and where patients need them.”
The CNS and the AANS will continue to press Congress to adopt longer-term solutions to fix the broken Medicare payment system to prevent future payment crises.
CNS and AANS Urge Congress to Increase NIH Funding
Joining the Ad Hoc Group for Medical Research and more than 300 supporting organizations, the CNS and the AANS signed a letter urging the Senate to appropriate $46.4 billion for the National Institutes of Health (NIH) in FY 2022. The letter points out that this funding would “provide greater hope and opportunity for every patient awaiting a cure, every researcher working toward the next breakthrough, and every aspiring scientist considering a career in the lab.”
Click here to read the letter.
Neurosurgery Urges Funding for FDA Pediatric Device Consortium
On Nov. 8, the CNS, the AANS and the CNS/AANS Section on Pediatric Neurological Surgery signed a letter urging Congressional leadership to fund for fiscal year (FY) 2022 the Pediatric Device Consortia (PDC) Grant Program at the Food and Drug Administration (FDA). Medical devices for children often lag five to ten years behind those for adults. To address the need for improved pediatric medical devices, Congress created the PDC program and has renewed it since its inception in 2007. Funding for the PDC program is necessary to continue improving device availability for children.
Click here to read the letter.
Neurosurgery Urges Funding for Pediatric Specialty Loan Repayment Program
On Nov. 18, the CNS, AANS and CNS/AANS Joint Section on Pediatric Neurological Surgery joined more than 60 organizations in sending a letter urging Congress to invest in the pediatric subspecialty workforce by including $30 million for the Pediatric Subspecialty Loan Repayment Program (PSLRP). Once funded, the recently authorized PSLRP will provide loan repayment for eligible pediatric subspecialists and child mental health professionals who care for children in underserved areas.
Click here to read the letter.
Neurosurgery Supports Funding for National Concussion Surveillance System
On Nov. 18, the CNS, AANS and CNS/AANS Joint Section on Neurotrauma & Critical Care signed a letter supporting $2 million in funding for the National Concussion Surveillance System. Initiated by the National Association of State Head Injury Administrators, the letter calls for FY 2022 funding for the surveillance system, administered by the Center for Disease Control and Prevention’s National Center for Injury Prevention and Control. This funding is needed to:
- Adequately track concussions in the U.S.;
- Identify populations at risk to determine federal programmatic priorities:
- Support and evaluate prevention activities and efforts; and
- Assist states in planning for ongoing follow-up and treatment due to concussion-related disabilities.
Click here to read the letter.
Coding and Reimbursement
Neurosurgery Backs AMA Lawsuit Over Surprise Medical Billing Rules
On Dec. 9, the American Medical Association (AMA) and American Hospital Association (AHA) filed suit against the Biden Administration in an effort to stop part of the surprise billing regulations from going into effect in January. The interim final rule (IFR) implementing the No Surprises Act requires arbitrators to primarily use the “qualifying payment amount” (QPA), which is based on median contract rates, in deciding billing disputes over out-of-network charges. However, as pointed out in the lawsuit, the statute clearly states that the arbitrator “shall” consider many factors, not just the QPA, in determining fair payments. These factors include the experience and level of training of the doctor, the complexity of the service and prior contract history between the plan and provider.
In November, 152 bipartisan members of Congress sent a letter (which the CNS and the AANS supported) to the administration regarding the dispute resolution process, saying that directing the arbitrator to “begin with the assumption that the median in-network rate is the appropriate payment amount” creates a “de-facto benchmark rate” that could hurt providers and ultimately health care access. National surgical organizations, including the CNS and AANS, agree with this interpretation of the law. In their comment letter responding to the IFR, the groups called on the administration to revise the new rules before they take effect on Jan. 1. A de facto median in-network payment rate will drive down reimbursement for both out-of-network and in-network care and will likely exacerbate the problem of narrow provider networks. Anticipating the new rules, health plans are now demanding lower contract rates. For example, Blue Cross Blue Shield of North Carolina has begun sending letters threatening contract termination unless the physicians immediately agree to payment reductions ranging from 10 to over 30%
The CNS and AANS will be leading an amicus brief effort supporting the AMA/AHA lawsuit. Other state medical and national specialty societies will join this initiative.
HHS OIG Releases Report on Audit of Medicare Billing for Spinal Procedures
On Dec. 6, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a report titled “Medicare Improperly Paid Physicians for Spinal Facet-Joint Denervation Sessions.” The report assessed inappropriate billing for and overuse of spinal facet-joint denervation for pain management. According to the report, Medicare did not pay physicians for selected facet-joint denervation sessions in accordance with Medicare requirements. In total, the OIG found that Medicare improperly paid physicians $9.5 million and directed the Medicare Administrative Contractors to recover the improper payments and take steps to detect and prevent such payments in the future.
CMS Releases 2022 Medicare Hospital OPPS and ASC Final Rule
On Nov. 2, the Centers for Medicare & Medicaid Services (CMS) released the 2022 Changes to Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System final rule. In the final rule, CMS will increase OPPS payment rates by 2% for hospitals that meet the applicable quality reporting requirements. ASCs that meet applicable quality reporting requirements will also receive a 2% payment rate increase.
More information is available as follows:
- Click here for a CMS press release;
- Click here for a CMS fact sheet;
- Click here to read a summary of items of interest to neurosurgeons; and
- Click here to read the CNS/AANS comment letter.
Drugs and Devices
Neurosurgery Urges CMS to Limit Step Therapy in Medicare
On Nov. 23, the CNS and the AANS signed a letter asking CMS to reinstate the step therapy prohibition in Medicare Advantage plans. In the letter, the groups requested that the agency prohibit step therapy for Part B drugs as specified in the original Sept. 17, 2012, memo “Prohibition on Imposing Mandatory Step Therapy for Access to Part B Drugs and Services.” Step therapy, also known as “fail first,” is utilized by health plans to determine coverage and requires that patients fail on an insurer’s preferred medication before the therapy prescribed by their health care provider is covered.
Click here to read the letter.
Quality Improvement
Physician Registry Coalition Extols Benefits of Clinical Data Registries
On Nov. 11, the CNS and the AANS joined the Physician Clinical Registry Coalition (PCRC) in sending a letter to the Medicare Payment Advisory Commission (MedPAC) outlining how clinical data registries can improve health care quality. The coalition noted that CMS should expand its use of registries and urged MedPAC to consider the power of registries as it forms its recommendations for health care policy.
In a letter to Reps. Diana DeGette (D-Colo.) and Fred Upton (R-Mich.), the PCRC expressed support for the Cures 2.0 Act (H.R. 6000). Among other things, this legislation would ensure that clinician-led clinical data registries have meaningful access to Medicare, Medicaid and State Children’s Health Insurance Program claims data to better track patient outcomes over time, expand their ability to assess the safety and effectiveness of medical treatments and provide them with the information necessary to evaluate the cost-effectiveness of therapies. The letter also applauded the inclusion of a provision to increase the use of real-world evidence and support the use of data from clinical care data repositories and patient registries to fulfill post-approval study requirements for products regulated by the FDA.
Of Note
AMA Report Shows Decline in Medicare Physician Spending Due COVID-19
A new American Medical Association (AMA) report shows the impacts of the COVID-19 pandemic on spending for Medicare physician services for 2020. For the year, the estimated shortfall in Medicare physician fee schedule spending associated with the pandemic was $13.9 billion (14%), with reductions for all states and every major specialty. Despite a mid-year rebound after sharp declines early in the year, Medicare spending on physician services during 2020 never recovered to its pre-pandemic trend. Neurosurgery spending was down 13% from an expected $810 million to $709 million.
Communications
Neurosurgery Blog Commemorates Randall W. Smith, MD, FAANS(L)
Ciara D. Harraher, MD, MPH, FAANS recently published a guest blog titled “Neurosurgery Lost a Leader, and I Lost a Dear Friend — Randall W. Smith, MD, FAANS(L).” An accomplished neurosurgeon and active member of the California Association of Neurological Surgeons and the Western Neurosurgical Society, Dr. Smith passed away on Oct. 25. Dr. Harraher highlights Dr. Smith’s impact on the neurosurgical community in California and discusses how he supported her career throughout their decade-long friendship.
Click here to read the Neurosurgery Blog post.
Neurosurgeon Featured in Article about Surprise Medical Billing
On Nov. 8, the CNS and the AANS issued a press release agreeing with 152 bipartisan members of Congress that the Biden administration needs to fix surprise medical billing regulations. The new rules inappropriately require arbitrators to primarily use the median in-network payment rates as the primary factor in deciding billing disputes over out-of-network care.
Subsequently, Becker’s Spine published an article featuring John K. Ratliff, MD, FAANS, chair of the CNS/AANS Washington Committee. In the article, Dr. Ratliff stated that “Congress enacted a thoughtful and balanced approach to protect patients from unanticipated medical bills for out-of-network care that also included a fair process for resolving billing disputes. Unfortunately, this rule directly conflicts with both the letter and intent of the law by prioritizing median in-network payment rates. It is therefore incumbent upon the Biden administration to revise the new rules before they take effect on January 1.”
Neurosurgeon Pens Op-Ed on Medicare Payment Cuts
On Nov. 13, The Hill published an op-ed by Richard Menger, MD, MPA, a member of the CNS/AANS CPR Committee. Titled “Physician Pay Cuts Are Another Threat to Independent Practices,” Dr. Menger discusses how the anticipated 9% Medicare physician pay cuts for medical services would have enormous consequences for the entire health care system. On Nov. 17, Neurosurgery Blog published a cross-post to amplify the message.
Neurosurgeons Featured in Articles about AMA House of Delegates Meeting
On Nov. 14, Kenneth S. Blumenfeld, MD, FAANS, a delegate from the AANS and Maya Babu, MD, MBA, FAANS, an alternate delegate from the CNS, were featured in a MedPage Today article about the November AMA House of Delegates meeting. During the discussions of an AMA report on assessing the competency of late-career physicians, Dr. Blumenfeld said the report was “helpful and much needed” but that it needed to be strengthened. He proposed an amendment suggesting that “a physician subjected to screening and assessment must be afforded due process protections, including a fair and objective hearing, before any adverse action may be taken against the physician.” Dr. Babu applauded that idea, noting, “What we’re seeing anecdotally is that this is being weaponized against late-career surgeons in terms of trying to limit or exclude practice.” Meanwhile, she continued, “we often place the onus on the physician or the surgeon to acquire counsel, challenge medical staff bylaws, and challenge the process of screening him or herself. Not only is this onerous, but this especially at the end of one’s career places undue burdens.”
Another article covered the discussion regarding the Council on Science and Public Health’s report on physician involvement in state regulations on driving and/or firearm use by people with cognitive function deficits due to a traumatic brain injury. Titled “Voting Access a Hot Topic Among AMA Delegates — Vulnerable populations should be protected from unsafe voting conditions, delegates say,” the article featured Dr. Babu, who noted, “We all recognize the tremendous value we as physicians have in counseling our patients. However, we do not believe it is reasonable to hold physicians responsible for the behavior of our patients. Increasingly we see movements by the government and insurers towards assigning more and more unrealistic culpability for aspects out of our control.”
Neurosurgery Mentioned in Articles about Medicare Payment Cuts
On Nov. 19, the CNS and the AANS issued a press release on Medicare payment cuts. Subsequently, Becker’s Spine Review published an article titled “Surgeons Want 3.75% CMS Payment Extended Into 2022,” featuring John K. Ratliff, MD, chair of the CNS/AANS Washington Committee. The article highlighted neurosurgery’s endorsement of the Supporting Medicare Providers Act (H.R. 6020), which would mitigate the 9.75% Medicare reimbursement cut physicians faced in 2022. “Congress needs to address long-term challenges associated with Medicare payment policy, especially the budget neutrality requirements that continue to drive these steep cuts for many physician specialties, including neurosurgery,” according to Dr. Ratliff.
A Nov. 22, Inside Health Policy article titled “Bera, Bucshon Bill Would Push 3.75% Medicare Cut To 2023” also highlighted the introduction of H.R. 6020, sponsored by Reps. Ami Bera, MD, (D-Calif.) and Larry Bucshon, MD, (R-Ind.). The article noted the CNS and the AANS support of the legislation.
Neurosurgery Featured in Article about Prior Authorization
On Nov. 24, Medscape published an article titled “Did Prior Authorization Refusals Lead to This Patient’s Death?” Katie O. Orrico, Esq., CNS/AANS senior vice president for health policy and advocacy, discussed pending legislation in Congress (H.R. 3173 and S. 3018) that would improve prior authorization in the Medicare Advantage (MA) program. She noted that if enacted, MA plans would have to comply with the requirements of the regulations so they will have “teeth in the form of a mandate.”
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