Advocacy Update

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In This Issue:

On July 29, the Centers for Medicare and Medicaid Services (CMS) released the proposed 2020 Medicare physician fee schedule (PFS) with some changes to the evaluation and management (E/M) payments. The CMS proposed an increase payment for E/M office visit services for primary care and decrease for all other specialty services and procedures, including pathology services. The proposed regulation predicts an 8% cut in pathology payments and a 4% cut for independent laboratories. The impact on an individual pathologist in 2021 will depend on a physician’s case mix. In this proposed rule, the CMS agreed to implement changes in 2021 developed by the American Medical Association (AMA) E/M workgroup. Nevertheless, the agency proposed an add-on payment for primary care patients, which accounted for $2 billion in additional redistributed funds. The CAP plans to advocate to alleviate the impact of these payment reductions.

The 2021 reductions in pathology would result from a redistribution of $7 billion to family medicine and away from specialties, like pathology, with low utilization of E/M services. Medicare’s physician payment dollars represent a fixed amount. If spending is projected to increase by more than $20 million, cuts across the board will be made.

The estimated 8% overall cut is due to the CMS’ budget neutrality payment policies together with pathologists’ E/M utilization rate. The CMS stated that their published impacts are for illustrative purposes to provide insight into the magnitude of potential changes for specific specialties. Pathology and other specialties that do not generally bill office/outpatient E/M codes will see the greatest decrease in payment in 2021.

Current law requires that increases or decreases in payments for medical services may not cause the overall amount of expenditures for the year to differ by more than $20 million. If payment for Medicare services increases by more than that threshold, the CMS would reduce payments for other services to preserve budget neutrality. Therefore, an increase in payments for E/M services will reduce the payments for all other services, such as pathology.

A year ago, CMS announced a plan to collapse payment for E/M office visits services while at the same time proposing regulatory burden relief in the form of simplified documentation guidelines. Moreover, CMS proposed two new add-on codes for additional payment for primary care and certain other specialties.

The CAP, along with over 170 medical specialties and the AMA urged the CMS to delay finalizing its proposal and suggested the development of an alternative coding solution. The CAP urged the CMS to abandon their proposed approach and to use the AMA workgroup to simplify E/M documentation burdens. This approach would mitigate any unintended consequences, and ensure the best possible outcome for patients. Consequently, the CMS delayed implementation of key provisions of this proposal until 2021.

In this proposed rule, the CMS agreed to implement changes in 2021 developed by the AMA E/M workgroup. However, the agency also proposed an add-on payment for primary care patients with serious or complex conditions, which accounted for $2 billion in additional redistributed funds. Without this additional provision, pathology would see a 5% cut in payment, as opposed to the 8% included in the proposed regulation. Currently, E/M services account for over 51% of the entire physician fee schedule spending by Medicare. The proposals would result in even more spending for these services.

The CAP will continue to advocate to mitigate the impact of these payment reductions expected in 2021.

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On July 29, the CMS’ released the Outpatient Prospective Payment System (OPPS) & Ambulatory Surgical Center (ASC) proposed regulation. In the proposed regulation, the CMS seeks input on three options for potential changes to the laboratory date of service (DOS) exception. Previously, the CAP advocated for a DOS policy that allowed the performing laboratory to bill directly for molecular pathology tests. The CAP will ask the CMS to reduce administrative burdens for laboratories, hospitals, and treating physicians.

Changing the Test Results Requirement

The CMS may revise its DOS policy to clarify that the ordering physician would determine whether the results of the Advanced Diagnostic Laboratory Test (ADLT) or molecular pathology test are intended to guide hospital outpatient treatment. Under this proposal, the test would be considered a hospital service unless the ordering physician determines that the test does not guide hospital outpatient treatment. The CMS stated that the agency “is no longer convinced that the determination as to whether a molecular pathology test or ADLT is separable from a hospital service should be based on whether the test results guide treatment during the specific hospital outpatient encounter in which the specimen was collected.”

Limiting the Laboratory DOS Exception to ADLT

The agency may limit the laboratory DOS provisions to tests designated by the CMS as an ADLT. Moreover, molecular tests would be removed from the provisions. In the proposed regulation, the CMS is no longer convinced that molecular pathology tests present the same concerns of delayed access to medically necessary care as ADLTs. The hospital’s laboratory can develop the expertise to perform a molecular pathology test, or establish an arrangement with an independent laboratory to perform the test. Beneficiary access concerns were the primary reason for establishing a laboratory DOS exception, and the CMS no longer thinks that access concerns are sufficiently compelling for molecular pathology tests.

Exclusion of Blood Banks and Blood Centers from the Laboratory DOS Exception

The CMS is considering a regulatory change that would exclude blood banks and centers from the laboratory DOS exception. The CMS understands that molecular pathology testing performed by blood banks is inherently tied to the hospital service, because hospitals receive payment for use of blood and/or blood products provided by blood banks and centers to treat patients in the hospital setting. As a result, the hospital would bill for the laboratory test under arrangements, and blood banks and centers performing the test would seek payment from the hospital.

The CAP will advocate for laboratory DOS policies that improve patient care and also reduce administrative burdens for laboratories, hospitals, and treating physicians.

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The August Congressional recess is not “time off.” It’s when federal legislators go back to their home districts to connect with their constituents, providing a perfect opportunity for pathologists to meet with their lawmakers. The CAP needs its members to educate Congressional legislators on the consequences the current surprise medical billing legislation could have on the health care system. And now is the perfect time to connect with them.

Here are five things CAP members can do to connect with their representatives about the surprise medical billing debate this month:

  1. Plan a lab tour. Invite your representative to tour your laboratory as it is the single, most effective way to demonstrate the real-world value of pathology. Legislators also appreciate being able to meet with the many other laboratory employees who live and work in the district. Learn how to conduct a laboratory tour.
  2. Attend a town hall. Members of Congress conduct numerous town halls during August as way to hear from directly from their constituents. By showing up and conveying the potential consequences of the surprise medical billing legislation in a public forum, you can have a major impact on your representative’s viewpoint. You can find local town halls by visiting the Town Hall Project.
  3. Request a district meeting. Don’t have time for a laboratory tour or can’t make a town hall? Contact your member of Congress for an in-person meeting by calling their local office. If they can’t make it, it is likely one of their staffers, who has significant influence over their boss’s opinions, can meet. You can request a meeting here.
  4. Send emails and contact your member via social media. You can always send an email to your legislator on surprise billing using CAP’s grassroots advocacy system. You can even tweet at them using the system.
  5. Attend a fundraiser. Members of Congress are gearing up for their reelection and many of them have low-cost fundraisers in their home districts during August. Frequently, the information is posted on their Facebook pages or campaign websites. You can also contact them via their campaign sites to find out more information.

Need some background on surprise billing? Here is the action kit which includes all you need to know to be an effective advocate for pathology on surprise billing. Remember, legislators want to hear from their constituents! Especially health care experts, like pathologists. You can vote them in or out of office, so your opinion matters to them. Please let us know your grassroots activities during August by filling out our feedback summary form here.

Contact CAP staff for any further information at

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The CMS released of the proposed updates to the 2020 Medicare Physician Fee Schedule and the Quality Payment Program regulations on July 30. Therefore, the CAP has rescheduled its webinar to Thursday, August 29, at 3 PM ET/ Noon CT. Please review the latest Special Advocacy Update on the proposed 2020 Medicare Payment regulations.

Webinar presenters will be the Chair of the Council on Government and Professional Affairs Donald S. Karcher, MD, FCAP; Vice-Chair of the Council on Government and Professional Affairs and Chair of the Clinical Data Registry Ad-Hoc Committee Emily E. Volk, MD, FCAP; and Chair of the Economic Affairs Committee W. Stephen Black-Schaffer MD, FCAP.

During the 60-minute webinar, attendees will learn about updates to the 2020 Medicare Physician Fee Schedule and the Quality Payment Program regulations and its impact on pathologists. The CAP panel will also answer questions from attendees.

If you are unable to attend the live event, a link to view an archived recording of the presentation will be sent to all registrants following the webinar.

We appreciate your flexibility and look forward to your participation during the webinar on August 29.

Register today for the webinar.

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Join your fellow CAP members and test your advocacy knowledge with the new August Advocacy News Quiz. See how you measure up against your fellow pathologists on this month’s quiz and share your results. Good luck!

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