Physicians found new flexibility in prescribing controlled substances via telemedicine during the COVID-19 pandemic.
Now that the public health emergency is ending, the Drug Enforcement Administration (DEA) has proposed new rules for prescribers it says could preserve some of those flexibilities “with appropriate safeguards.”
Among other things, the new rules – if finalized – would allow physicians and health care professionals to prescribe, without a face-to-face visit, a 30-day supply of Schedule III and Schedule IV non-narcotic controlled drugs, after which an in-person follow-up would be needed for any refill. This class of drugs is the least likely to result in drug abuse, according to DEA. The proposal also would allow for prescribing a 30-day supply of buprenorphine to treat opioid use disorder without an in-person evaluation or referral.
“Improved access to mental health and substance use disorder services through expanded telemedicine flexibilities will save lives,” Department of Health and Human Services Secretary Xavier Becerra said in the announcement. “We still have millions of Americans, particularly those living in rural communities, who face difficulties accessing a doctor or health care provider in person.”
The agency emphasized that the rules do not affect telehealth services that do not involve controlled substance prescriptions. The Texas Medical Association is reviewing how the proposed regulations could interact with other federal and state regulations, says Shannon Vogel, TMA’s associate vice president of health information technology.
DEA has released summaries for both healthcare professionals and patients explaining how the proposed rules would affect prescription practices.
“This is a very good thing that they’re doing and a necessary thing” for access to care, said Mesquite pain management specialist C.M. Schade, MD, a former president of the Texas Pain Society.
Before the pandemic, physicians were limited in their telemedicine prescribing ability by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, he says. The act requires physicians to conduct at least one in-person medical evaluation of the patient before prescribing a controlled substance by means of the “internet,” which is defined to include telehealth.
“COVID did great things for telehealth, and one of them was breaking through the Ryan Haight Act,” Dr. Schade said.
Some policymakers and behavioral health advocates have expressed concern, however, that patients who need continuous medication therapy may have challenges obtaining an in-person visit within 30 days.
The rules were proposed on Feb. 24 and public comments are due on March 31. The agency has no set timeline for publishing the rules, though it is likely that will come before the PHE ends on May 11.
Physicians with questions and comments about the DEA changes or relevant state regulations can contact Ms. Vogel.
Court Agrees With Physicians’ Argument in Federal No Surprises Act Rule Case
Statement by Gary W. Floyd, MD, Texas Medical Association (TMA) president, in response to the U.S. District Court for the Eastern District of Texas ruling on TMA’s motion for summary judgment in its lawsuit opposing certain components of federal regulatory agencies’ final rules regarding dispute resolution under the No Surprises Act. TMA argued the case in the U.S. District Court in December, addressing the second of four TMA lawsuits against federal agencies related to rulemaking under the surprise-billing arbitration law.
“TMA is pleased the court granted its motion for summary judgment in its lawsuit challenging certain components of the federal agencies’ final rules relating to the federal independent dispute resolution (IDR) process under the No Surprises Act. This is an important next step after TMA successfully challenged an interim final rule that similarly skewed the IDR process in health plans’ favor.
“This decision is a major victory for patients and physicians. It also is a reminder that federal agencies must adopt regulations in accordance with the law.
“The decision will promote patients’ access to quality care when they need it most and help guard against health insurer business practices that give patients fewer choices of affordable in-network physicians and threaten the sustainability of physician practices.”
TMA is the largest state medical society in the nation, representing more than 57,000 physician and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.
After nearly three years and 11 extensions, the Biden administration recently announced the COVID-19 public health emergency (PHE) will finally expire May 11, fulfilling its commitment to give states at least 60 days’ notice of its expiration.
“If the PHE were suddenly terminated, it would sow confusion and chaos into this critical wind-down,” the Executive Office of the President wrote in a Jan. 30 statement.
Still, the end of the PHE has significant consequences for Texas physicians and their patients.
The federal Families First Coronavirus Response Act temporarily increased federal Medicaid matching dollars by 6.2% for states that agreed to maintain Medicaid coverage for anyone enrolled in the program from March 2020 through the end of the PHE.
That included Texas, where more than 2.5 million residents, predominantly postpartum women, and children, benefited from continuous Medicaid coverage.
These matching dollars will phase out between April and December, according to a provision in the Consolidated Appropriations Act of 2023, a $1.7 trillion spending package that President Joe Biden signed into law on Dec. 29, 2022.
To continue to receive these funds through the end of the year, states must comply with certain federal requirements, including agreeing not to terminate enrollment based on returned mail due to an incorrect address.
In the meantime, state Medicaid officials have a plan for unwinding this coverage, but it requires redetermining millions of patients’ Medicaid eligibility in just eight months. The Texas Health and Human Services Commission (HHSC) will begin sending notices in March reminding patients to update their information.
The Texas Medical Association has met regularly with HHSC over the past year to provide input on the state’s plan with the goal of achieving as smooth a transition as possible. Despite progress, such as streamlining the ways in which Medicaid patients can complete their eligibility applications, TMA remains very concerned about a looming coverage cliff.
Fortunately, the end of the PHE coincides with some recent policy developments, including increased federal funding for navigators – community organizations that connect eligible consumers to federal marketplace health plans – and extended subsidies for the same plans. TMA experts say these changes could help some Texans who lose Medicaid coverage enroll in a different plan.
The Consolidated Appropriations Act also makes permanent an option for states to provide 12 months of continuous Medicaid coverage to postpartum women.
TMA would like to see the Texas Legislature take advantage of this option, one of the association’s top priorities this session.
Moreover, the law requires states to provide 12 months of continuous Medicaid coverage to children, beginning Jan. 1, 2024. TMA is urging HHSC to align this provision with its redetermination process to minimize the burden on families and to prevent gaps in care.
In addition, the Consolidated Appropriations Act extended certain pandemic-era telehealth flexibilities for Medicare patients through 2024, disentangling them from the status of the PHE. These flexibilities include:
Waiving geographic site restrictions, which allow patients to access care from their homes; and
Allowing physicians to use audio-only telehealth services.
TMA and others in organized medicine recently wrote a letter to the Centers for Medicare & Medicaid Services (CMS), requesting the agency issue an interim final rule to align its telehealth policies and timeline (to expire 151 days after the end of the PHE) with those in the Consolidated Appropriations Act. Not doing so, they wrote, could create “an unintended barrier to vital health care services, as well as potential confusion” among clinicians and patients.
Prior to the act’s passage, CMS made permanent the same telehealth flexibilities for Medicare patients accessing mental and behavioral health services as well as coverage of video-based mental health visits at federal qualified and rural health centers.
Finally, the PHE’s end means physicians not using a HIPAA-compliant platform for telehealth will need to switch to one by May 12.
Physicians can refer to CMS’ fact sheet regarding PHE waivers and flexibilities for more information.
For more detailed coverage on how the end of the PHE will affect Texas physicians and patients, check out the January/February issue of Texas Medicine magazine.
Fourth Lawsuit Disputes 600% Fee Hike Demanded of Doctors
The Texas Medical Association (TMA) is challenging a 600% hike in administrative fees for seeking federal dispute resolution in No Surprises Act (NSA) situations. TMA seeks relief by filing a fourth lawsuit in the U.S. District Court for the Eastern District of Texas.
This TMA lawsuit against federal agencies challenges a steep administrative fee hike that will strip many physicians and healthcare providers of the arbitration process that Congress enacted. TMA calls the fees “arbitrary and capricious,” contrary to the law, and in violation of notice and comment requirements.
The U.S. departments of Health and Human Services, Labor, and the Treasury, and the U.S. Office of Personnel Management collectively adopted interim final rules implementing the federal surprise-billing law. The rules include establishing the nonrefundable administrative fee all parties must pay to enter the federal independent dispute resolution (IDR) process in the event of a payment disagreement between an out-of-network physician or provider and a health plan in circumstances covered by the law. The situations could occur when emergency services are provided by a doctor or health care provider outside of the patient’s insurance network or when out-of-network services are provided at an in-network facility.
The federal agencies set the initial administrative fee at $50 and announced in October 2022 it would remain at $50 for 2023. Two months later the agencies announced a 600% hike in the fee to $350 beginning in January 2023, “due to supplemental data analysis and increasing expenditures in carrying out the Federal IDR process since the development of the prior 2023 guidance.”
The steep jump in fees will dramatically curtail many physicians’ ability to seek arbitration when a health plan offers insufficient payment for care.
“The problem is that many payment disputes in these cases amount to less than the fees physicians would have to pay to dispute the unfair payments,” said TMA President Gary W. Floyd, MD. “Why would doctors and providers pay the $350 nonrefundable administrative fee to arbitrate a $200 or so payment dispute with a health insurer? The fees deny physicians the ability to formally seek fair payment for taking care of our patients, and that’s just wrong.”
TMA argues the administrative fee hike is difficult for all physician specialties to bear, but especially those specialties that have more small-dollar claims, such as radiology.
The non-refundable administrative fee is in addition to the separate fee that each party must pay the IDR entity for its services, though that fee is refundable to the party that wins the arbitration dispute.
TMA also disputes the rules’ narrowing of the law’s provisions on “batching” claims for arbitration, which Congress authorized to encourage efficiency and minimize costs in the IDR process.
TMA’s first lawsuit – filed in 2021, and which TMA won at the district court level – alleged that in the interim final rules governing arbitrations between insurers and physicians, the agencies unlawfully required arbitrators to “rebuttably presume” the offer closest to the qualifying payment amount (QPA) was the appropriate out-of-network rate. TMA filed its second lawsuit in September 2022 challenging the NSA’s August 2022 final rules published by the federal agencies, alleging the final rules unfairly advantage health insurers by requiring arbitrators to give outsized weight or consideration to the QPA. The court’s ruling on that suit’s December 2022 hearing is anticipated at any time. TMA filed its third lawsuit in November 2022 challenging certain portions of the July 2021 interim final rules implementing the federal NSA. No hearing date has been set for that case, which challenges certain parts of the rules that artificially deflate the QPA.
TMA is the largest state medical society in the nation, representing more than 57,000 physician and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.
The shift from fee-for-service to value-based care is underway, with public and private payers introducing myriad new payment models in recent years. But many physicians find the variety of plans overwhelming, and the investments necessary to support them challenging.
To help clear these hurdles, the Texas Medical Association Board of Trustees approved last May the formation of a Task Force on Alternative Payment Models (APMs). Over the next two years, its diverse membership – which spans specialties, experience levels, practice types, and geographic regions – is charged with reviewing value-based care trends, prioritizing members’ needs, and serving as a touchstone of APM policy and activity.
Norman Chenven, MD, founding CEO of Austin Regional Clinic (ARC) and co-chair of the task force, commends TMA for convening the group. He brings with him more than four decades of experience working with APMs, dating back to health maintenance organizations in the early 1980s.
“It’s great for TMA to develop resources for physicians adapting to the inevitable challenges of these changing payment models,” he said.
Under a value-based care model, physicians and other healthcare professionals are paid based on the quality of patient outcomes rather than the quantity of services provided.
The Centers for Medicare & Medicaid Services (CMS) has a stated goal of transitioning all Medicare patients to value-based care arrangements by 2030. In the meantime, it continues to test initiatives such as the Enhancing Oncology Model and the Bundled Payments for Care Improvement Advanced Model. CMS also continues to address various issues, such as how to incentivize collaboration between primary care physicians and specialists.
David Fleeger, MD, a colon and rectal surgeon in Austin, co-chair of the task force, and past president of TMA, says he expects private payers to follow CMS’ example.
Although value-based models have grown more common, uptake remains slow. In a 2020 survey, the Deloitte Center for Health Solutions found 97% of physician respondents still relied mostly on fee-for-service payments, with roughly a third drawing a portion of their compensation from value-based payments. Moreover, less than a quarter received incentive payments of more than 5%.
Kim Harmon, TMA’s associate vice president of innovative practice models, says value-based care can prove daunting because of its breadth of applications, from public and private payers to every kind of physician practice. It’s also difficult to identify which physicians participate in value-based arrangements because payers aren’t required to share such information.
With these challenges in mind, the task force hopes to empower Texas physicians to implement value-based care by offering support and sharing institutional knowledge from early adopters.
Dr. Chenven, for instance, can speak to the start-up costs that come with participating in value-based models. At ARC, his multispecialty group, these included investments in staff and information technology to ensure patients received preventive care and kept up with chronic care.
“No individual office or small office is going to have those resources,” he said. “There has to be collaboration across [physicians] in the community.”
The task force also can push CMS and private payers to develop APMs that are more accessible to a wider range of specialties and practice types, Dr. Fleeger says.
“We need to make sure that whatever gets done raises all boats,” he said.
The task force next meets later this month, when it will begin identifying and prioritizing TMA member physicians’ needs for education and other resources related to APMs.
Dr. Chenven says this is a critical first step to demonstrate the value in value-based care to physicians.
“It represents a huge culture change. It’s a change in the business model of medicine, and change is always hard,” he said. “So, you need thoughtful preparation to make it go smoothly.”
On Tuesday, Dec. 20, 2022 the U.S. District Court for the Eastern District of Texas will hear arguments in the Texas Medical Association’s (TMA’s) second lawsuit challenging certain portions of the Aug. 26, 2022, final rules implementing the federal No Surprises Act (NSA). District Judge Jeremy D. Kernodle will preside. This hearing addresses the second of three TMA lawsuits against federal agencies related to rulemaking under the surprise-billing arbitration law.
At issue are the rules affecting how payment disputes are resolved in certain situations in which a patient receives care from a physician or provider who is out of the patient’s insurance plan’s network. The payment disputes occur between health insurers and physicians or providers; patients are not affected or included. TMA is arguing that the challenged provisions of the final rule deprive physicians and providers of the arbitration process the law intended.
“We are, once again, asking for the law to be followed as Congress intended, and for the challenged provisions to be invalidated. There should be a level playing field for physicians and health care providers in payment disputes after they’ve cared for patients,” said TMA President Gary W. Floyd, MD.
TMA’s concern is over a final rule published by the U.S. departments of Health and Human Services, Labor, and the Treasury. In both its Oct. 28, 2021, lawsuit and the lawsuit being heard Tuesday, TMA alleges that the agencies – when implementing the federal surprise billing independent dispute resolution processes – adopted rules that conflict with the law and skew results in favor of insurers. TMA believes these rules are skewed to the detriment of both physicians and the patients they serve. TMA seeks to promote patient access to quality care and guard against health insurer business practices that give patients fewer choices of affordable in-network physicians and threaten the sustainability of physician practices.
“The final rules unfairly advantage insurers by requiring arbitrators to give outsized weight or consideration to an opaque, insurer-calculated amount – called the qualifying payment amount – when choosing between an insurer’s offer and a physician’s offer in a payment dispute,” Dr. Floyd said. “This is unfair to physicians, providers, and the patients we care for, so we had to seek fairness.” The qualifying payment amount (QPA) is an amount that is supposed to be the median in-network rate under the law but is deflated based upon the federal agencies’ methodology.
TMA’s first lawsuit – which the association won at the district court level – alleged that in the rules governing federal arbitrations between insurers and physicians, the federal agencies unlawfully required arbitrators to “rebuttably presume” the bid closest to the QPA was the appropriate out-of-network rate. TMA argued requiring arbitrators to heavily weight figures created by insurance plans provided them an unfair advantage.
Despite the district court’s initial ruling, TMA is arguing the agencies now have doubled down by issuing a new final rule that replaces the earlier presumption with a new set of requirements that give health insurers the same advantage.
Each of the challenged requirements in the federal agencies’ final rule unlawfully tie arbitrators’ hands and place an unmistakable “thumb on the scale for the [health plans’ QPA],” the complaint states, even though the law does not call the QPA the “primary” or “most important” factor, nor does it diminish the importance of any other factors in the law. The final rules, for example, require arbitrators to “first consider” the QPA.
TMA filed its third NSA-related lawsuit in November, challenging certain portions of the law’s July 2021 interim final rules. That TMA lawsuit focuses on four ways in which the rule unfairly deflates QPAs. TMA contends portions of the rule skew negotiations in favor of health insurers so strongly that health insurers will force physicians out of insurance networks and physicians will face significant practice viability challenges, struggling to keep their doors open in the wake of the pandemic.
As for Tuesday’s federal hearing, “TMA was hopeful the federal agencies would write final rules fair to everyone, especially after the federal district court ruled the agencies’ previously challenged rules were not lawful,” Dr. Floyd said. “Unfortunately, the federal agencies returned with a plan tipping scales in health plans’ favor.”
(Dial-in information to listen to the Dec. 20 court hearing: (571) 353-2301; meeting ID: 158301863#.)
TMA is the largest state medical society in the nation, representing more than 56,000 physician and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.
The holidays are a time of joy and celebration for many, but they could turn tragic if someone takes one pill they should not. Substance misuse – especially unwittingly taking street drugs that contain fentanyl – can destroy a life.
“The use of mind-altering substances is always more prevalent during the holidays. Unfortunately, this holiday season the risks of death are much higher because so many pills contain illegally manufactured fentanyl (IMF),” said CM Schade, MD, member of the Texas Medical Association (TMA) and past president of the Texas Pain Society (TPS). A very small amount of IMF is deadly, and people taking drugs laced with IMF are completely unaware that the pill they are consuming could kill them.
As uncomfortable a subject as it might be to address, Dr. Schade urges parents to discuss this with teenagers and young adults at home on the holiday school break. He also suggests adults heed this advice, too.
“If you got a pill from a friend or bought it off the street and it has IMF in it, it could seriously harm or kill you. If it was in the medicine cabinet but not prescribed to you, it could seriously harm or kill you as well,” said Dr. Schade. “Don’t take a chance on these; it’s just not worth it.”
Dr. Schade has some tips for Texans to stay safe:
Don’t take pills containing opioids unless prescribed to you by a physician for a health issue like chronic or severe pain relief. The U.S. Drug Enforcement Administration warns that six out of 10 fake pills contain lethal doses of fentanyl. It is very difficult to tell counterfeit drugs from legitimate ones, so the danger is very real that someone may consume a pill that could be deadly.
During gatherings with loved ones, it is important to be vigilant with prescription medication. Lock up your medication. You don’t want anyone taking your prescription drugs knowingly or unknowingly.
If someone is struggling with opioid use disorder and is at risk of an overdose, be proactive and have the opioid antidote naloxone available in case of emergency. In Texas, naloxone is available at most pharmacies under a standing order from a physician.
Throughout the year, TMA and TPS physicians have been raising awareness about the dangers of illegally manufactured fentanyl. In September, Dr. Schade testified before the Texas House Committee on Public Health presenting new legislative solutions to address the problem. Among other recommendations, TMA and TPS advocated for relaxing opioid prescribing guidelines so patients with chronic pain get the help they need and don’t turn to street drugs, making naloxone available over the counter, and legalizing fentanyl testing strips so someone could test whether a pill has IMF in it.
“Whether someone unwittingly took a bad pill for recreational use, or to sleep better, or because they feel depressed, or for whatever reason, it’s simply a bad decision to take something off the streets or not prescribed to you,” Dr. Schade said. “The result could be tragic anytime, but even worse during the holidays.”
TMA is the largest state medical society in the nation, representing more than 56,000 physicians and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.
TPS is a 501c6 nonprofit organization that represents over 350 pain specialists in Texas. It is the largest state pain society in the nation.
The Centers for Medicare & Medicaid Services (CMS) recently posted the 2023 Medicare Physician Fee Schedule, which takes effect Jan. 1 and brings with it a mixed bag of consequences for physicians.
The Texas Medical Association continues to fight certain elements of the final rule, including a nearly 4.5% physician pay cut and additional changes to the already-byzantine Merit-Based Incentive Payment System (MIPS). But the association also celebrates the victories in the regulation, including expanded cancer coverage and reduced administrative requirements.
TMA experts discuss the key updates from the final rule in the new, on-demand 2023 Medicare Update webinar. It is free to TMA members, and you can earn 1 AMA PRA Category 1 Credits™ that may count as ethics credit.
A physician paycut and other concerns
The 2023 fee schedule lowers the conversion factor that determines physician payments by 4.47% compared with the 2022 formula, leaving many physicians concerned about their bottom line. Barring intervention by Congress, the cut would be one of many to take effect next year, including a sequester cut and other reductions mandated by law, totaling 8.5%.
Robert Bennett, TMA vice president of medical economics, is hopeful Congress will act to avert the cuts, but he cautions lawmakers could wait until January to do so retroactively.
“There are so many issues being debated in Washington, D.C. right now,” he said during the event. “I’m worried this is a back-burner issue for them.”
TMA urges members physicians to download its Medicare Payment Cuts Toolkit, which outlines ways to press lawmakers to intervene.
In the meantime, TMA joined the American Medical Association and others in organized medicine in writing to Congressional leadership on Dec. 1.
“Put simply, the cost of Congressional inaction is an across-the-board cut that will further amplify the financial hardship physician practices are already facing while inhibiting Medicare from delivering on its promises to seniors and future generations,” the signatories wrote.
TMA also has joined forces with AMA and scores of state and specialty medical societies to push for comprehensive Medicare physician payment reform. Such a long-term fix would prevent the need for physicians to lobby their representatives multiple times a year about impending pay cuts – or risk their practice viability.
As in previous years, the fee schedule also includes changes to MIPS, one of two pathways under Medicare’s Quality Payment Program. CMS says the changes focus on MIPS Value Pathways (MVPs) – a new, optional reporting framework set to debut in the 2023 performance year – and limit adjustments to traditional MIPS in an effort to spur participation in MVPs.
TMA has repeatedly asked CMS to reconsider MVPs and to focus instead on the development of voluntary, physician-led alternative payment models (APMs). Still, Mr. Bennett encouraged physicians who participate in MIPS to consider MVPs, which he said function as a hybrid between fee-for-service MIPS and value-based care APMs.
CMS is hosting a webinar on Dec. 14 from 1-2 pm CT about MVPs, including its rollout and how physicians can submit an MVP candidate for consideration. You can register for the virtual event via Zoom.
Fee schedule gains
Despite these concerns, the 2023 fee schedule includes meaningful gains when it comes to the Medicare Shared Shavings Program (MSSP), evaluation and management (E/M) coding and payment, certain pandemic-era flexibilities, electronic prescribing of controlled substances, and colorectal cancer screening.
TMA welcomes some of the changes to MSSP, which its experts say could reduce barriers to participation. For instance, CMS will make advanced investment payments available to certain new accountable care organizations, which they could use to purchase the technology and data management resources and to hire the care coordinators necessary to participate in the program.
At the same time, TMA has asked CMS to consider phasing in – and even limiting – recoupment of any advance funding to encourage long-term participation as well as providing new opportunities to engage specialists in Medicare’s value-based programs.
CMS also will institute significant changes to E/M coding in the new year, heeding recommendations from TMA and AMA. These include simplified documentation requirements and increased payment for services provided at several sites, including hospitals, emergency departments, nursing homes, and patient’s homes.
Although this is a positive development, Mr. Bennett said these payment increases contributed to the 4.47% reduction in the conversion factor, given federal budget neutrality requirements.
CMS also delayed the implementation of a confusing policy related to split (or shared) visits, which determines who should bill for a shared visit. The fee schedule maintains the existing guidelines, and CMS will revisit the issue in its 2024 fee schedule.
In addition, the 2023 fee schedule offers some guidance on telehealth coverage once the federal public health emergency (PHE) related to COVID-19 ends. With it, CMS has extended certain telehealth flexibilities for 151 days after the PHE ends, including allowing:
Practices to use non-HIPAA complaint telehealth platforms; and
Medicare patients to access telehealth services anywhere, including at home, and via audio-only options, among other changes.
This aligns with Congress’ action in March, when it passed a spending package extending these same flexibilities for 151 days after the PHE ends.
Shannon Vogel, TMA associate vice president of health information technology, said physicians should anticipate making changes once the PHE and the 151-day grace period end, such as phasing out non-HIPAA compliant telehealth platforms and audio-only telehealth services. But she added that they still have time to do so.
“At this point, we feel pretty confident that the PHE will probably extend through about mid-April or so,” she said, which would put the end of the grace period in mid-September.
The PHE is currently slated to expire in January. However, the federal government has said it will give states 60-days’ notice of its end, a deadline that came and went in mid-November. Although the government hasn’t announced a new deadline, it previously has extended the emergency declaration in 90-day increments.
As recommended by TMA and others in organized medicine, CMS will delay until 2025 financial penalties for physicians who don’t electronically prescribe controlled substances. Although TMA supports this move, it has pushed CMS to go further by scrapping such penalties altogether, especially for those practices that do not do high volume e-prescribing.
Starting next year, Medicare patients also will benefit from expanded coverage of colorectal cancer screening tests, following advocacy by TMA and others in organized medicine. CMS gradually will reduce coinsurance payments for Medicare patients who undergo unplanned colorectal screening tests until 2030, when the federal agency will waive such copayments altogether.
TMA endorsed this policy change in its comment letter, writing that it would “reduce the financial burden facing Medicare [patients] whose screenings result in a diagnostic procedure” as well as “promote utilization of colorectal cancer screenings that save lives.”
Amid concerns about threats to patients’ access to physicians’ care, the Texas Medical Association (TMA) has filed a new lawsuit in the U.S. District Court for the Eastern District of Texas, challenging certain portions of the July 2021 interim final rules implementing the federal No Surprises Act (NSA).
This is the third lawsuit TMA has filed against federal agencies related to rulemaking under the law.
In its latest lawsuit, TMA is challenging certain parts of the rules that artificially deflate the “qualifying payment amount” or “QPA.” The QPA is an insurer-calculated amount that arbitrators are required to consider, among other factors, when deciding between the physician’s and the health insurer’s offer as the appropriate out-of-network rate in federal arbitrations. Under the law, the QPA is generally supposed to be the median in-network rate for the service provided by a physician in the same or similar specialty in the relevant geographic area. The challenging parts of the rule set forth a methodology for calculating QPAs that conflicts with how the NSA requires insurers to calculate QPAs. The lawsuit also challenges the lack of transparency around QPA calculations.
“TMA is concerned that these provisions unfairly disadvantage physicians in payment disputes with health insurers and will ultimately rob patients of access to physicians’ care,” said TMA President Gary W. Floyd, MD. “Calculating QPAs the way the agencies have required means that physicians have the scales tipped against them from the outset of negotiations. Shrouding these calculations in secrecy further disadvantages physicians, by preventing them from raising errors in QPA calculations to the agencies.”
TMA contends the challenged provisions of the rule skew negotiations in favor of health insurers so strongly that health insurers will force physicians out of insurance networks and physicians will face significant practice viability challenges, struggling to keep their doors open in the wake of the pandemic.
TMA’s lawsuit focuses on four ways in which the rule unfairly deflates the QPA. Those are that the rule:
Permits insurers to include “ghost rates” in their QPA calculations, which are contract rates with physicians and providers who don’t actually provide the health service in question. This unfairly lowers QPAs as there is little motivation for physicians or providers to negotiate rates for services they do not actually provide. For example, some of these “ghost rates” are $1, which clearly would not be reflective of market rates or the cost of providing care.
Permits insurers to include rates of physicians who are not in the same or similar specialty as the physicians involved in the payment dispute.
Requires insurers to use an amount other than the total payment in calculating a QPA when a contracted rate includes “risk sharing, bonus, or penalty, and other incentive-based and retrospective payments or payment adjustments.”
Permits self-insured group health plans to allow their third-party administrators to determine the QPA for the plan sponsor by calculating the median contracted rate using the contracted rates recognized by all self-insured group health plans administered by the third-party administrator. This allows self-insured plans to essentially opt into a lower QPA for payment disputes with physicians.
Physicians argue this unfair process is compounded by the opaque nature of QPA calculations and the heavy weighting of the QPA provided by the federal agencies’ final rules, the latter of which is the subject of a separate legal challenge by TMA.
“This all adds up to rigging the arbitrations against doctors in favor of health insurance companies, and to patients’ detriment,” said Dr. Floyd. “It’s setting up a race to the bottom, which will leave patients scrambling to get the care they need.”
TMA filed its second lawsuit in September challenging the law’s Aug. 26, 2022, final rules published by the U.S. Department of Health and Human Services, Labor, and the Treasury. In the September lawsuit, TMA alleges the final rules unfairly advantage health insurers by requiring arbitrators to give outsized weight or consideration to the QPA. The hearing on that lawsuit is scheduled for Dec. 20 in Tyler, Texas.
TMA’s first lawsuit – filed in 2021 – alleged that in the interim final rules governing arbitrations between insurers and physicians, the agencies unlawfully required arbitrators to “rebuttably presume” the offer closest to the QPA was the appropriate out-of-network rate. TMA won at the district court level, arguing that requiring arbitrators to heavily weigh figures created by insurance plans conflicted with the law and provided health insurers with an unfair advantage not intended by Congress. The federal government declined to pursue its appeal of this court loss.
TMA is the largest state medical society in the nation, representing more than 56,000 physicians and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.
Physicians participating in Medicare’s 2021 Quality Payment Program (QPP) have until Dec. 20 to preview their performance ratings before they are made publicly available in 2023.
The Centers for Medicare & Medicaid Services (CMS) publicly reports QPP performance information for physicians, clinicians, groups, and accountable care organizations (ACOs) on Medicare Care Compare and in the Provider Data Catalog (PDC). (The performance information was previously reported on Physician Compare profile pages and in the Physician Compare Downloadable Database.)
Physicians and groups can see their Merit-Based Incentive Payment System (MIPS) and Qualified Clinical Data Registry quality measures; MIPS promoting interoperability measures and attestations; MIPS improvement activities attestations; and final scores plus those in the four individual reporting categories (quality, promoting interoperability, improvement activities, and cost). The information is later displayed on Care Compare and in the PDC using star ratings, percent scores, and checkmarks.
CMS notes the 2021 performance data planned for public reporting in 2023 “will be added to Care Compare and/or the PDC after all targeted reviews are completed. If you have an open targeted review request, you’ll still be able to preview your 2021 QPP performance information.”
ACO-level data, however, is not available for viewing via the QPP site during the preview period, the agency said: “MIPS-eligible clinicians who participate in Medicare Shared Savings Program ACOs can preview their performance information in their 2021 MIPS Performance Feedback. Shared Savings Program ACOs can also review quality performance information in their previously provided 2021 Quality Performance Reports.”
Check out your scores via the Doctors and Clinicians Preview section of the QPP website. CMS also provides several resources to guide you.
The preview period opened on Nov. 21 and will close on Dec. 20 at 7 pm CT.
(2022, Nov. 30) Preview Your MIPS Performance Data Before It Goes Public. TMA Publications.
Tarrant County Physician Online 