Feb. 10, 2023: National Advocacy Update COVID-19 public health emergency set to end May 11 with important implications for patients and physicians ...

Feb. 10, 2023: National Advocacy Update

COVID-19 public health emergency set to end May 11 with
important implications for patients and physicians
President Joe Biden announced on Jan. 30, 2023, that he intends to end the COVID-19 public health
emergency (PHE) declaration on May 11, 2023.

The announcement comes with important implications for patients and physicians in several key
areas, including coverage and payment of COVID-19 tests, treatments and vaccines, Part D drugs,
enhanced Medicare rates for hospitalized COVID patients, physician supervision requirements, Stark
Law waivers, and Critical Access Hospital and Skilled Nursing Facility requirements.

Notably, the recent Consolidated Appropriations Act decoupled Medicaid continued coverage
requirements and enhanced federal matching rates from the PHE and extended important Medicare
telehealth flexibilities through the end of 2024. In addition, CMS has previously set policy that
Medicare will continue to pay the same rates for in-person and telehealth office visits through 2023,
although some key telehealth policies will end with the PHE, including OCR’s enforcement discretion
of non-HIPAA-compliant platforms. Licensure requirements vary by state; some are tied to the national
PHE whereas others are not. Separate rulemaking on prescribing of controlled substances based on
telehealth visits is also pending and expected to be released before the PHE ends. Access a list (PDF)
of the PHE flexibilities specific to physicians and a more comprehensive list of general PHE
flexibilities.

AMA calls for removing barriers to SUD treatment and fuller
alignment between Part 2 and HIPAA regulations
On Jan. 31, the AMA submitted comments (PDF) to the "Confidentiality of Substance Use Disorder
(SUD) Patient Records Proposed Regulation" from the Department of Health and Human Services
(HHS), Office for Civil Rights (OCR) and the Substance Abuse and Mental Health Services
Administration (SAMHSA). In the comments, the AMA asked HHS to strike a balance in the alignment
of federal privacy law and regulations with the Health Insurance Portability and Accountability Act

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                    Copyright 1995 - 2023 American Medical Association. All rights reserved.

(HIPAA) and applicable state law for the purposes of treatment, payment and health care operations
(TPO). Considering the current drug-related overdose and death epidemic, the AMA also expressed
support for doing everything possible to remove barriers to substance use disorder treatment. Overall,
the comments urged continued vigilance to monitor whether the alignment of Part 2 and HIPAA has
any negative effects on patients’ access to care as well as multiple social determinants of health
essential to individuals with a SUD, including loss of housing and loss of child custody, among others.

In its comment letter, the AMA also supported the work undertaken by OCR and SAMHSA that is
aimed at decreasing burdens on patients and providers, improving coordination, and increasing
access to care and treatment, while protecting the confidentiality of treatment records. Ultimately, the
AMA stated that decreasing burden will depend upon vigorous and intentional efforts to educate
patients and providers on the practical effects of giving consent to use and disclose, and in some
instances, redisclose their information under the revised Part 2 rules. The AMA also committed to
assisting with educational efforts, not only with respect to the mechanics of information sharing
permitted under the law, but also on the benefits to patients of having a care team with access to a
patient’s full medical picture.

In addition, the AMA encouraged Congress and HHS to continue to support the development of data
segmentation standards and software, while providing positive incentives to ensure that such
technology is widely available and affordable. The AMA also supported OCR and SAMHSA’s
proposed clarification that patients may consent to disclosures of Part 2 information to individuals or
entities and recommended adding regulatory language to specify that patients may consent to permit
both their Part 2 facility and health information exchange networks of their choosing to disclose their
health information to past, present and future treating providers.

CMS finalizes but delays “extrapolated” overpayments from
Medicare Advantage plans
On Jan. 30, the Centers for Medicare & Medicaid Services (CMS) finalized a rule with significant
changes to its Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) program, used to
recover unsubstantiated MA risk adjustment payments. CMS finalized plans to return so-called
“extrapolated” overpayments. However, in a significant departure from its proposal, the agency
delayed implementation to payment year (PY) 2018 (as opposed to PY 2011). As a result, any
overpayments from PY 2021 to 2017 will be based solely on overpayments specifically identified in
sample audits.

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                    Copyright 1995 - 2023 American Medical Association. All rights reserved.

The agency expects this change will reduce the potential for audit backlogs and minimize the burden
on MA Organizations (MAOs) and physician practices. Existing documentation standards will continue
to apply so CMS anticipates that there will be no new documentation requirements or “additional audit
impact” on providers that contract with MAOs as a result of the rule. The agency will not adopt a
universal sampling or extrapolation audit methodology, but will rather rely on “any statistically-valid
method for sampling and extrapolation that is determined to be well-suited to a particular audit,” which
it will disclose.

CMS also finalized a separate proposal not to apply an adjustment factor to RADV audit repayments,
rejecting the argument that improper payments owed by payers should be adjusted in the same way
CMS adjusts for differences in coding patterns between MA and fee-for-service Medicare payments.

In total, CMS expects to recover approximately $479 million from MAOs per year beginning with PY
2018, amounting to an estimated recovery of $4.7 billion from 2023 through 2032. The final rule is
effective April 3, though legal action is considered likely.

The AMA has previously written to CMS and private payers regarding the administrative burden that
documentation requests for validating RADV audits have on physician practices. In the letters, the
AMA has requested annual documentation review limits, standardized forms for documentation
requests, minimum notification requirements and staff compensation for pulling records, as well as
patient privacy protections. These policies were considered outside the scope of this particular rule,
but may be addressed in future rulemaking.

Reminder: Extended MIPS EUC application deadline is March 3
Due to AMA advocacy and outreach to the Centers for Medicare & Medicaid Services (CMS), the
deadline to file a 2022 MIPS Extreme and Uncontrollable Circumstances (EUC) hardship has been
extended until March 3, 2023. Physicians who feel they were impacted by the COVID-19 pandemic in
2022 may file a MIPS hardship exemption with CMS to avoid a 2024 MIPS penalty. Learn more.

AMA recommends updates to the EHB framework
On Jan. 31, the AMA submitted comments (PDF) to the Centers for Medicare & Medicaid Services
(CMS) in response to a Request for Information on Essential Health Benefits (EHB). The AMA
appreciates that CMS has begun the process of periodically reviewing and updating the EHB
framework to address gaps in coverage or changes in evidence base as required by the Affordable
Care Act (ACA). Enactment of the ACA and implementation of the EHB have reduced the number of
uninsured individuals and expanded coverage of critical benefits. However, there have been

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                    Copyright 1995 - 2023 American Medical Association. All rights reserved.

numerous changes in health care delivery and in health needs and care over the last decade without
updates to the EHB framework, and the AMA believes CMS should reconsider EHB and whether and
how changes might be necessary. The AMA offered thoughts and recommendations on the following
areas in its comments:

         Barriers to accessing services due to coverage or cost, prior authorization by payers and
         failure to enforce mental health and substance use treatment parity
         Utilization of telehealth
         Addressing social determinants of health and maternal mortality rates
         Advancing equity through communication and access to appropriate language services
         Underserved populations in rural areas
         Gaps in coverage: chronic diseases

More information can be found in the full comment letter (PDF).

CMS proposed rule continues efforts to extend health
insurance coverage ease and affordability
In comments (PDF) submitted to the Centers for Medicare & Medicaid Services (CMS) on the "Notice
of Benefits and Payment Parameters (NBPP) for 2024 Proposed Rule," the AMA expressed
appreciation that the proposed rule would continue recent efforts by CMS to:

         Simplify consumer choice and improve the plan selection process in the Affordable Care Act
         (ACA) marketplaces
         Increase network adequacy requirements and essential community providers (ECP)
         categories, e.g., substance use disorder treatment centers and mental health facilities
         Expand provisions for navigators and other consumer assisters
         Establish new rules for agents, brokers and web-brokers that assist consumers with
         enrollments

The AMA provided extensive comments (PDF) and recommendations based on these provisions in
the proposed rule and commends the Administration for its commitment to extending health insurance
coverage to more Americans and making it easier and more affordable to get covered.

Biden administration proposes plan to expand birth control
coverage via new individual enrollee pathway

  URL: https://www.ama-assn.org/health-care-advocacy/advocacy-update/feb-10-2023-national-advocacy-update
                    Copyright 1995 - 2023 American Medical Association. All rights reserved.

On Jan. 30, the Biden administration released a new proposed rule designed to reinforce protections
for birth control coverage originally included in the Affordable Care Act. The proposed rule would
largely reverse or revise expanded moral and religious exemptions finalized in 2018 under the Trump
administration, which allowed private health plans and issuers to exclude coverage of contraceptive
services based on moral or religious grounds. Specifically, the rule would reverse the moral exemption
and establish a new, independent pathway for individual enrollees to access contraceptive services
directly from a willing provider or facility at no cost, while leaving the religious exemption for employers
or plans otherwise intact. Under the proposed rule, providers or facilities that furnish contraceptive
services to individuals in accordance with this new individual pathway could be reimbursed by entering
into an arrangement directly with an issuer on a federally-facilitated or state-based exchange.
Comments on the proposed rule will be received through April 3.

The AMA is committed to ensuring broad access to contraception, including oral contraceptives. The
AMA has supported efforts to bring oral contraceptives over the counter, making them more easily
accessible to medically underserved populations and individuals. In a Jan. 2023 letter (PDF) to the
Department of Health and Human Services (HHS) supporting efforts to bring oral contraceptives over
the counter, the AMA urged HHS to ensure those products were affordable either through financial
assistance or expanded coverage guarantees.

How the AMA is fighting for physicians and patients in
Washington—and how you can join us
The recording for the latest webinar in the AMA’s Advocacy Insights series is now available. Leading
up to the AMA National Advocacy Conference in Washington, D.C., Feb. 13-15, this webinar hosted
by Sandra Adamson Fryhofer, MD, chair of the AMA Board of Trustees, provides information about
the AMA’s advocacy on Capitol Hill and how you can get involved.

Hear from:

          Jack Resneck Jr., MD, AMA President, about his experience being a physician leader
          pushing for change
          Rob Jordan, director, political and legislative grassroots, AMA, about joining the AMA
          Physicians Grassroots Network and grassroots best practices
          Jason Marino, director, Congressional Affairs, AMA, about the power of physician voices at
          the AMA National Advocacy Conference

Look out for National Advocacy Conference coverage next week as physician advocates head to
Capitol Hill to make their voices heard on important health care issues facing the nation’s physicians
and patients.

  URL: https://www.ama-assn.org/health-care-advocacy/advocacy-update/feb-10-2023-national-advocacy-update
                    Copyright 1995 - 2023 American Medical Association. All rights reserved.

More articles in this issue
        Feb. 10, 2023: Advocacy Update spotlight on legal disputes over No Surprises Act
        Feb. 10, 2023: State Advocacy Update

 URL: https://www.ama-assn.org/health-care-advocacy/advocacy-update/feb-10-2023-national-advocacy-update
                   Copyright 1995 - 2023 American Medical Association. All rights reserved.