Federal Legislative Update (2011-03)

Below is the federal legislative and regulatory update for October 2010 - January 2011 for the legislative committee of the Society of Surgical Oncology (SSO). The Advocacy and Health Policy Division of the American College of Surgeons compiled the information in this report.


Congress Approves Bill to Avert 23 Percent Medicare Payment Cut in December

On November 29, the House of Representatives passed the Physician Payment and Therapy Relief Act of 2010 (H.R. 5712) by voice vote. H.R. 5712 halted the 23 percent reduction in Medicare physician reimbursement that had been scheduled for December 1. The legislation preserved Medicare payment levels through the end of 2010. The Senate approved H.R. 5712 by unanimous consent on November 18. The President signed H.R. 5712 into law on November 30. At the time of the enactment of H.R. 5712, existing law still required a 25 percent cut in Medicare payments on January 1, 2011.

Congress Clears Legislation Stopping 25 Percent Medicare Payment Cut on January 1, Maintains 2010 Payment Levels in 2011

Because H.R. 5712 did not address the 25 percent cut in Medicare payments scheduled for January 1, 2011, Congress was required to consider additional legislation. On December 8, the Senate approved the Medicare and Medicaid Extenders Act of 2010 (H.R. 4994) by unanimous consent. On December 9, in a 409 to 2 vote, the House approved H.R. 4994, which averted the 25 percent cut in Medicare payments and maintained December 2010 Medicare payment levels through calendar year 2011. President Obama signed H.R. 4994 into law on December 15, 2010. In communications with Fellows, the College was clear in noting that this legislation only applied to the impact of the sustainable growth rate (SGR) formula on Medicare physician payments. As a result, other factors included in the final 2011 Medicare Physician Fee Schedule (MPFS) remained in effect. For more details on the impact of changes in the 2011 MPFS, please see the report from Regulatory Affairs and Quality Improvement Programs.

MedPAC Begin Consideration of Issues for 2011 Reports, Recommends One Percent Increase in Payments in 2012

At separate meetings in the fall of 2010, the Medicare Payment Advisory Commission (MedPAC) met to consider several items for possible inclusion in its upcoming reports due to published in March and June 2011. MedPAC has considered several issues of concern with respect to the creation of accountable care organizations (ACOs) within the Medicare Shared Savings Program, which was created in the Patient Protection & Affordable Care Act. In addition, MedPAC has also discussed the increased use of ancillary services-including imaging, physical therapy, and radiation therapy-within the physician office setting. MedPAC also discussed possible alternatives to the current Medicare physician payment system, and at the January meeting, Commissioners approved a recommendation supporting Medicare payment increase of one percent in 2012.

SGR Freeze Enacted, But CY 2011 Conversion Factor Lowered

On December 29, the Centers for Medicare & Medicaid Services (CMS) announced the conversion factor for Calendar Year (CY) 2011, $33.9764, which is approximately eight percent lower than the December 2010 conversion factor of $36.8729. The Medicare Sustainable Growth Rate (SGR) formula freeze enacted on December 15, 2010, prevented the SGR-generated cuts from going into effect. However, other Medicare Physician Fee Schedule provisions affecting payments still went into effect.

The December 15, 2010, physician fee schedule fix legislation, the Medicare and Medicaid Extenders Act (MMEA) of 2010, averted a negative update that would have taken effect on January 1, 2011, in accordance with the CY 2011 Medicare Physician Fee Schedule Final Rule. The MMEA provides for a zero percent update to the Physician Fee Schedule for claims with dates of service from January 1, 2011, through December 31, 2011, but CMS adjusted the conversion factor downward based on provisions other than the SGR. The majority of the downward adjustment is a result of CMS' readjustment of the Medicare Economic Index, which lowered the conversion factor to 8.3 percent. However, this decrease is partnered with an increase to practice expense and malpractice relative value units (RVUs) in order to offset the conversion factor decrease. The remaining portion of the decrease is due to the legislative mandate to ensure budget neutrality of any other changes to RVUs. For more information, view CMS Transmittal 828 at:https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R828OTN.pdf

College Staff Meet with Finance Committee Staff to Discuss Implementation of Bonus Payments for General Surgeons

In October, DAHP staff members met with staff to Senate Finance Committee Chairman Max Baucus (D-MT) to discuss the implementation of provisions included in the Patient Protection and Affordable Care Act (P.L. 111-148) to provide 10 percent bonus payments under Medicare for general surgeons care for patients in health professional shortage areas (HPSAs). DAHP staff discussed how to best ensure that the bonus payments are being delivered to those general surgeons who are caring for patients in underserved areas where there are demonstrated shortages of general surgeons. Based on the meeting, DAHP staff is working with Finance Committee staff to secure a meeting with the Health Resources Services Administration (HRSA) to discuss the possibility of creating a HPSA for general surgery. At present, CMS is implementing the bonus payment by providing bonuses to general surgeons for major procedures performed in already existing primary care and mental health HPSAs. This definition fails to take into account the unique requirements of surgery and therefore the provision is poorly targeted. General surgeons operating in urban and suburban hospitals which provide care to underserved areas and populations could be excluded from receiving bonus payments. Staff continues efforts begun early last year to improve the incentive payment through creation of surgery specific HPSAs.

College Leads Letter Responding to Public Citizen Petition on Resident Duty Hours

The College was joined by several surgical organizations in sending a letter to the the Occupational Safety and Health Administration (OSHA) regarding the petition filed by Public Citizen addressing regulation of resident duty hours. The College strongly believes that the federal government should not regulate medical resident and fellow training education, including duty hours, outside of the currently existing Accreditation Council for Graduate Medical Education structure. Resident hours are one of many factors that impact quality and safety of patient care and the well-being of residents. Severe restrictions on resident duty hours without supporting evidence of corresponding benefits will result in a host of unintended negative consequences.

The College, along with a variety of other constituencies, provided significant input following the ACGME's most recent 18-month evaluation of resident duty work hours. The comprehensive analysis addressed the full spectrum of issues by (1) a thorough review of the current scientific literature; (2) testimonies from key representatives from medical and surgical specialties, residents, medical students, and the public; and (3) expert opinion from leading authorities on sleep research, physiology and fatigue management.

The new duty hour requirements include increased safeguards to address the well-being and safety of residents. Over the past years, the ACGME has continued to rigorously monitor resident duty hours through the respective residency review committees that include individuals with the requisite expertise from the various specialties. Punitive actions have been taken against institutions that were found to be consistently out of compliance and the ACGME continues to strengthen and enhance its enforcement procedures.

College Participates in Roundtable on Impact of Independent Payment Advisory Board on Access to Care

On November 18, the ACS was among a select group of stakeholder and patient advocacy groups, including representatives from the disability and senior citizen communities, to participate in a roundtable discussion hosted by the Aspen Institute. Attendees included members of both political parties, including former Rep. Deborah Pryce (R-OH), the former Chair of the House Republican Conference and Brian Biles, MD, who was Staff Director for Rep. Pete Stark (DCA) at the Ways & Means Subcommittee on Health in the late 1980s and early 1990s. The Aspen Institute is a widely respected non-partisan organization and think tank which hosts a wide variety of policy forums, seminars, conferences, and events on wide variety of public policy issues. Among those programs is the Aspen Health Stewardship Project is a bipartisan effort that seeks to inform the policymaking process and to refocus the national dialogue on health reform legislation. This roundtable discussion was one in a series that will be hosted by the Aspen Health Stewardship Project.

College Participates in One Voice Against Cancer

The College attended the One Voice Against Cancer (OVAC) annual planning meeting in December. OVAC, a broad coalition of cancer-related organizations representing millions of Americans, works in support of federally funded programs that engage in the fight against cancer, and will work to ensure that the Administration and Congress make funding for cancer research and related programs a priority in fiscal year (FY) 2012. In addition to supporting general lobbying efforts related to funding vital cancer programs, the College plans to participate in two upcoming lobby days with OVAC, one Mini Lobby Day on March 2 and another Member Fly-In Lobby Day scheduled to take place May 23-24.

College Co-Hosts Briefing on Workforce Shortages with AAMC and NACH

On September 30, the American College of Surgeons co-hosted a briefing for House and Senate staff in conjunction with the Association of American Medical Colleges (AAMC) and the National Association of Children's Hospitals (NACH). The briefing, entitled Addressing the Physician Shortage Post Health Care Reform was attended by more than 60 individuals from approximately 45 House and Senate offices as well as several congressional committees and other DC health organizations. The briefing featured presentations from Atul Grover, MD, PhD Chief Advocacy Officer at AAMC, Patricia Hicks, MD, Director of the Pediatric Residency Program at the Children's Hospital of Philadelphia and Tom Ricketts, PhD, MPH, Co-Director of the ACS Health Policy Research Institute. Dr. Ricketts appointment to the National Healthcare Workforce Commission was announced early that same day.

The briefing was organized to help raise awareness on Capitol Hill about physician shortages in areas other than primary care (especially in surgical fields and pediatric subspecialties,) and how these shortages might be affected by the recently enacted health reform law.

Medicaid and Chip Payment and Access Commission (MACPAC) Holds First Meetings

The Medicaid and Chip Payment and Access Commission or MACPAC held its first three meetings in September, October and December. With Medicaid enrollment set to dramatically increase under the health reform law the recommendations of this panel have taken on new significance. Originally created under MIPPA, MACPAC received no funded until passage of the stimulus bill in 2009.

At the most recent meeting on December 9th and 10th, On December 9th and 10th topics included discussions on dual eligibles, how to measure and define access, and development of an early warning system to detect problems with access.

MACPAC staff has proposed using the IOM definition of access from 1993, which is "the timely use of personal health services to achieve the best possible health outcomes" or getting the care you need when you need it. Some of the commission members had issues with this definition saying it was too vague, and that access should mean access to things that we have evidence work. One commissioner noted, "do they (patients) get a service or do they get the correct service? The question of whether cost and benefit should be taken into account was also raised.

On the topic of early warning systems for access, there was some promising talk of partnering with provider organizations to monitor how changes to payments impact participation. There was also discussion of comparing specific procedures such as stent placement, to measure access to specialty care although there was some question about how to distinguish between problems with access and differences in incentives or regional variation in personal preference. Closure of hospitals or hospital departments such as obstetrics was also an area of concern.

Overall there was a feeling of urgency with the meeting, and the upcoming March deadline for MACPACs first report was mentioned several times. There are currently two additional meetings scheduled before then. The next meeting is scheduled for January 27th and 28th, followed by another on February 25th. Agendas have not yet been made available for these meetings.

College Continues to Advocate for Trauma Funding

In December, the College, along with representatives of the Trauma Coalition, met with Mary Wakefield, Administrator of the US Health and Resources Services Administration (HRSA), and her staff to discuss funding of the trauma provisions as authorized in the Patient Protection and Affordable Care Act (PPACA). The College, represented by DAHP staff and Dr. Edward Cornwell, the Committee on Trauma Advocacy Chair, emphasized the tremendous opportunity to lower costs and improve outcomes by including funding for the trauma and emergency programs. Dr. Cornwell also highlighted the unique workforce shortages confronting trauma and EMS and the need to address those issues at all caregiver levels. The groups asked that funding be included in the President's Budget, or by utilizing discretionary dollars.

A similar meeting will take place January 27 with the Assistant Secretary for Preparedness and Response (ASPR), Nicole Lurie, MD. There the group will also emphasize the need to utilize the trauma and emergency programs for disaster preparedness.

The College is simultaneously working with the House and Senate appropriators to secure funding for these programs. It is very early in the appropriations process and it promises to be an extremely challenging appropriations cycle, however, the College is working hard to secure funding for these vital programs.

Federal Regulatory Update

CCHIT Certifies 33 Electronic Health Record Products

On October 1, 2010, the Certification Commission for Health Information Technology (CCHIT) announced that it has tested and certified 33 electronic health record (EHR) products as capable of meeting the 2011-2012 criteria for Stage 1 meaningful use. The certifications include 19 Complete EHRs that meet all of the Stage 1 meaningful use criteria for 2011-2012, and 14 EHR Modules that meet some, but not all, of the criteria.

Under the 2009 American Recovery and Reinvestment Act, health care providers who demonstrate meaningful use of certified EHRs will qualify for incentive payments through Medicare and Medicaid. The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) issued final rules on July 13 setting forth the definition of "meaningful use," and setting the initial standards, implementation specifications, and certification criteria for meaningful use. CCHIT was among the first organizations to be recognized by the ONC as an Authorized Testing and Certification Body (ONC-ATCB).

The list of certified EHR products can be found on the ONC website here: http://onc-chpl.force.com/ehrcert.

Medicare Physician Fee Schedule Final Rule Released

On November 2, 2010, the Centers for Medicare & Medicaid Services (CMS) released the Medicare Physician Fee Schedule Final Rule (Final Rule) for 2011, which will determine Medicare reimbursements to physicians for 2011. Because of Congress' failure to address the broken sustainable growth rate (SGR) formula by the release of the Final Rule, CMS announced that Medicare payments to physicians were scheduled to be cut almost 25%. However, on December 15, 2010, the Medicare and Medicaid Extenders Act, which averted these SGR mandated cuts, was signed into law. The ACS continues to call on Congress to take action to stop cuts to Medicare reimbursement mandated by the SGR and to replace Medicare's broken payment system with reforms that will preserve Americans' access to quality surgical care.

The Final Rule also addresses other issues including the implementation of sections of the Affordable Care Act (ACA) such as a 10 percent general surgery incentive payment for "Major Surgical Procedures Furnished in Health Professional Shortage Areas," a limited expansion of the Multiple Procedure Payment Reduction policy related to the technical component of certain imaging procedures, and a new disclosure requirement for physicians furnishing PET, CT, or MRI services under the in-office ancillary services exception to the Stark self referral regulations. CMS also finalizes certain changes to the American Medical Association Relative Value Scale Update Committee (AMA RUC) process for valuing certain codes with site of service anomalies and changes to the Physician Quality Reporting Initiative (PQRI) and E-Prescribing Incentive programs. To read the Final Rule, go to: http://edocket.access.gpo.gov/2010/pdf/2010-27969.pdf

ACS Provides Feedback to CMS Regarding Accountable Care Organizations

On December 3, 2010, ACS responded to a Centers for Medicare & Medicaid Services (CMS) request for information regarding Accountable Care Organizations (ACOs) and the Implementation of the Medicare Shared Savings Program. ACS provided feedback on various issues including policies and standards to ensure that groups of solo or small practice providers have the opportunity to participate in ACOs, specifically, the importance for CMS to address legal concerns that might arise for ACS members and to implement effective risk adjustment methodologies. The comments also addressed the need for prospective attribution of beneficiaries to ACOs, assessment of beneficiary and caregiver experience of care using the Consumer Assessment of Healthcare Providers and Systems (CAHPS) Surgical Care Survey, the use of patient-centeredness criteria for assessment of ACOs, and what quality metrics an ACO should meet. We strongly believe that a new delivery system must focus on promoting quality care, improving patient access, and ultimately,provide cost-efficient care. 

Senate and House Pass Bill to Exempt Health Providers from "Red Flags" Rule

On December 7, 2010, the U.S. House of Representatives passed S. 3987, the Red Flags Program Clarification Act of 2010. This legislation, which passed the Senate on November 30, would exempt doctors and other health care providers from the Federal Trade Commission's (FTC) "Red Flags" rule by limiting the type of "creditor" that must comply with the rule. The Red Flags rule designates certain businesses, including physician offices, as creditors, thus requiring them to submit written identity theft mitigation and prevention strategies. According to S. 3987, small businesses, such as physician offices, should not be classified as creditors because they do not provide or maintain accounts that pose identity theft risks.

The Red Flags rule was originally scheduled to take effect on November 1, 2008, but it was delayed numerous times. This past spring, the American Medical Association and other groups filed a lawsuit seeking to exempt physicians from the rule. In June, the FTC stated that it would again postpone enforcement of the rule until a federal appeals court ruled on a separate case, also related to the rule, filed by the American Bar Association. S. 3987 will now be sent to the White House where President Obama is expected to sign it into law before the January 1, 2011, compliance deadline. To read S. 3987, go to: http://www.gpo.gov/fdsys/pkg/BILLS-111s3987cps/pdf/BILLS-111s3987cps.pdf

Final Rule Issued For HIT Certification Program

On January 3, 2011, the Office of the National Coordinator for Health Information Technology (ONC) issued a final rule to establish the permanent certification program for health information technology. This program provides new features that will advance the certification of health information technology (HIT), enhancing the comprehensiveness, transparency, reliability, and efficiency of the current processes used to certify electronic health record (EHR) technology. The final rule completes a two-phased improvement that ONC began with the proposed rule issued in the spring of 2010, attempting to smoothen the transition to the permanent certification program.

The temporary certification program, established through a final rule on June 24, 2010, will continue to be in effect until December 31, 2011, or a later date when the processes necessary for operation of the permanent certification program are completed. ONC will highlight the required programmatic activities for implementing the permanent certification program throughout 2011. In the final rule, ONC will choose one organization to be the ONC-approved accreditor (ONC-AA). The ONC-AA will accredit groups aiming to become HIT certification bodies. When a group is accredited by the ONC-AA, it can apply to become an ONC-authorized certification body.

This final rule is issued under the authority provided to the National Coordinator for Health Information Technology in section 3001(c)(5) of the Public Health Service Act, as added by the Health Information Technology for Economic and Clinical Health Act.