Advocacy Update

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In This Issue:

The CAP and dozens of other physician groups asked Congress to strengthen the long-term financial stability of physician practices by stopping scheduled Medicare cuts in 2021. This cut would amount to an 8% decrease in payment to pathology services unless Congress stops it by waiving budget neutrality for Medicare changes to evaluation and management (E/M) services that will be implemented on January 1, 2021.

In a letter sent to congressional leaders on April 17, the groups called out how the Centers for Medicare & Medicaid Services’ (CMS) plans to overhaul payment for E/M services next year. The change to its E/M policy will negatively impact those physicians, including pathologists, who do not typically bill for E/M services. The physician organizations are concerned, especially now, as pathologists and almost all other physician groups are facing financial hardship, the impact of these sizable E/M cuts. The E/M cuts require budget neutrality “upon various sections of the provider community who do not frequently, if ever, bill E/M codes. Notwithstanding the current COVID-19 crisis, many healthcare providers were already concerned about the impact of these policy changes on their patients and their practices,” the CAP and other groups stated in the letter.

In addition to the CAP, more than 30 physician and health care professional associations including, the American Academy of Ophthalmology, the American College of Radiology, and the American College of Surgeons urged Congress to act on this request.

On April 14, the CAP sent a separate letter to Congress asking lawmakers to give pathologists greater economic relief due to the COVID-19 pandemic and economic downturn. Read our letter, which also asked Congress to waive budget neutrality for E/M Medicare payment changes.

Because of the unique challenges facing pathologists and laboratories during this unprecedented national emergency, the CAP asked the CMS to extend the suspension of laboratory CLIA inspections as it endangers both the inspectors as well as the pathology laboratory staff. The CMS agreed with the CAP’s request and will suspend CLIA laboratory inspections for the duration of the pandemic.

In March, following the national emergency declaration, the CAP asked the CMS to temporarily suspend routine CLIA inspections for laboratories. The CMS agreed to suspend such inspections for three weeks, and the CAP applauded this action. However, the CAP also asked the agency to provide additional relaxation of certain CLIA requirements that the CAP and its members said unnecessarily impeded laboratory operations.

As of April 16, small business loans were exhausted, but the CAP expects Congress to replenish this funding within the next few weeks. Jonathan Myles, MD, FCAP, chair of the CAP’s Council on Government and Professional Affairs, recently reviewed other assistance programs available to pathologists in a CAPcast. Additionally, the CAP compiled other financial assistance programs for pathology practices during the COVID-19 pandemic.

Medicare Accelerated and Advance Payment Program

For instance, the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the CMS expanded the accelerated and advance payment program for Medicare-participating physicians and other providers to ensure they have resources needed to combat COVID-19. Most providers will be able to request up to 100% of the Medicare payment amount for three months. Physicians billing under Part B will have 210 days from the date of the accelerated or advance payment was made to repay the balance.

The CAP created a tool with direct links to all Medicare Administrative Contractor (MAC) webpages and request forms where pathologists can apply for these emergency funds. Accelerated or advance payment request forms vary by MAC: Access Request Forms for Medicare Advanced, Accelerated Payments.

Emergency Economic Injury Disaster Loans (EIDL) Loan Advance

The new economic injury emergency grant program provides up to $10,000 to small businesses and private nonprofits harmed by COVID-19 within three days of applying for an EIDL loan.

Other SBA Loans and Debt Relief

The Small Business Administration (SBA) has $17 billion available for immediate relief to small businesses with non-disaster SBA loans, in particular, 7(a), 504, and microloans. Under it, the SBA will cover all loan payments on these SBA loans, including principal, interest, and fees, for six months.

Direct Provider Relief

On April 10, the Department of Health and Human Services (HHS) initiated delivery of $30 billion in relief funding to providers as part of the CARES Act. The CARES Act included a total of $100 billion to support health care providers through the Public Health and Social Services Emergency Fund (PHSSEF), and the CAP, together with the AMA urged the HHS to give funds directly to providers during the National Emergency.

The $30 billion distributed by the HHS will be based on the facility/provider share of the 2019 Medicare fee-for-service reimbursements with payments arriving via direct deposit. As emphasized by the HHS, these “are payments, not loans, to health care providers, and will not need to be repaid.”

You can also provide us with your feedback and additional questions about these financial programs at

The CMS announced that it would increase payment to $100 for COVID-19 clinical diagnostic laboratory tests, which use high-throughput technologies. High-throughput laboratory tests can process more than two hundred specimens a day using highly sophisticated equipment that requires specially trained technicians and more time-intensive processes to assure quality. The CAP asked the CMS to increase its payment rate for COVID-19 testing, calling the Medicare rates inadequate, and will continue to advocate for improved Medicare payment.

Medicare will pay laboratories for the high throughput tests at $100 effective April 14, 2020, through the duration of the COVID-19 national emergency.

A high throughput technology uses a platform that employs automated processing of more than two hundred specimens a day. Examples of high throughput technology as of April 14, 2020, include but are not limited to technologies marketed on that date as the Roche cobas 6800 System, Roche cobas 8800 System, Abbott m2000 System, Hologic Panther Fusion System, GeneXpert Infinity System, and NeuMoDx 288 Molecular. These processes represent an increase in resources, bringing the total resources required for these tests to $100 (a more accurate payment than the one currently in use via contractor pricing). These tests are a type of CDLT currently paid for under 3 CMS-Ruling 2020-1-R.

For other COVID-19 laboratory tests, local Medicare Administrative Contractors (MACs) remain responsible for developing the payment amount in their respective jurisdictions. MACs are currently paying approximately $51 for those tests. As with other laboratory tests, there is generally no beneficiary cost-sharing under Original Medicare.

Virginia’s Governor Signs Historic Surprise Billing Legislation Championed by VSP, CAP

On April 11, Virginia Gov. Ralph Northam signed legislation backed by physicians to protect patients from surprise medical bills and ensure out-of-network care is reimbursed at reasonable rates. The new law is a major win for the Virginia Society for Pathology (VSP) and the CAP. The new law will become effective on July 1, 2020, with some parts will be effective on January 1, 2021.

Virginia is the latest state to require its insurance department to evaluate health plans for hospital-based physician network adequacy, which has been a focus of the CAP’s advocacy to protect patients from surprise medical bills. Other states with similar network adequacy laws or regulations include California, Louisiana, New Hampshire, and Washington. This law is backed by physicians to protect patients from surprise medical bills and ensure out-of-network care is reimbursed at reasonable rates.

The Virginia law, which was supported by the VSP and the CAP, mandates that payers must compensate out-of-network providers at a “commercially reasonable rate” based on payments for the same or similar services provided in a similar geographic area. Payers would have 30 days to pay out-of-network bills, and physicians would have 30 days to dispute the initial offer or the payment.

Other key provisions included are:

  • The Department of Insurance must assess network adequacy of hospital-based physicians in health plans.
  • The data set used in the arbitration is to include an All-Payer Claims Database calculations.
  • Parties will be permitted to bundle claims for arbitration.
  • Health plans must disclose to out-of-network providers subject to the law.

Review all the states with key out-of-network laws that the CAP has championed.

On April 17, New York Gov. Andrew Cuomo announced all public and private laboratories in his state must coordinate with the State Department of Health to prioritize coronavirus testing. The executive order from Gov. Cuomo is part of the state's efforts to ramp up testing and ensure the 301 laboratories and hospitals in the state that are licensed to perform virology can overcome challenges, such as shortages of testing supplies.

In effect, all COVID-19 testing in New York is under state control and no laboratory in the state can have a private agreement in place to provide any testing service that would impair or impede the state's ability to direct COVID-19 testing by any laboratory. Violating the executive order may result in civil penalties of up to $10,000 and may lead to revocation of a laboratory’s license or operating certificate.

The American College of Radiology (ACR), the American College of Emergency Physicians (ACEP), and the CAP asked the governor of Connecticut to rescind part of a recently issued executive order, which will result in a reduction of payment to out-of-network physicians providing emergency services.

Executive order No. 7U, issued by Connecticut Governor Ned Lamont on March 10 to address the COVID-19 pandemic, protects from civil liability for actions or omissions in support of the state’s COVID-19 response and provides financial protection for the uninsured. Of concern to the CAP and the other medical groups is a provision in the order that states:

“If emergency services were rendered to an insured by an out-of-network health care provider, such health care provider may bill the health carrier directly and the health carrier shall reimburse such health care provider the amount the insured’s health care plan would pay for such services if rendered by an in-network provider as payment in full.”

In an April 14 letter to Governor Lamont, the ACR, the ACEP, and the CAP noted that Connecticut provides a well-established, robust financial protection for patients who receive out-of-network emergency services as they are protected from being balance billed for these services. The statutory payment formula for these services, based on the 80 percentile of charges, emulates current law in New York and a recently enacted law in Maine. Efforts to change this section of the law in Connecticut through the normal legislative process failed to pass the Legislature for the past several years, they say.

In the letter, the groups note that hospital-based physicians are working under substantial professional and financial duress, with the solvency of many physician practices currently in doubt. Additionally, the groups outlined how the use of gubernatorial emergency powers to circumvent “the deliberate decision-making of the legislative process on this particular section of the law is of great concern to the physician community.”

“Permitting commercial health plans to reimburse at in-network rates means that payment will be based on an opaque standard that makes it impossible for physicians to know it they have been paid correctly,” the groups argue, adding that the language of the order itself is vague, as insurers are likely to have numerous in-network rates and there is not clarity as to whether they are being told to use their highest contractual rates, a median rate, a mean rate, or to cherry pick whichever rate they choose for a given patient.

“Importantly, we believe that the intentional reduction in payment for physician services, by executive fiat, is unquestionably counter to financially and operationally supporting the rendering of critical physician services during the pendency of the emergency and, as such, should be promptly rescinded,” the groups say.

The CAP will follow developments in Connecticut.

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