Advocacy Update

Read the Latest Issue of Advocacy Update

• CAP Objects to Agreement Reached by Lawmakers on Surprise Bills
• CAP Urges Top Congressional Leaders to Solve Surprise Bills the Right Way
• Ohio Pathologists, CAP Oppose Minimum Ohio Out-of-Network Payment Standard
• PA Insurance Committee Passes Measure Potentially Harmful to Pathologists
• CAP Asked CMS to Remove NGS Tests Restrictions, Expand Patient Coverage
• Test Your December Advocacy Knowledge With a Year-End Quiz

Two health care committee chairs in the House and Senate agreed on legislation to end surprise medical bills with an approach supported by the insurance industry on December 8. In its current form, the CAP cannot support the agreement as it would favor the insurance companies and set payment for unexpected out-of-network services at the “mean” in-network amount.

The CAP and its members have advocated for Congress to address physician concerns with the underlying reimbursement mechanism for out-of-network services. The CAP opposes the use of median in-network rates to pay for out-of-network services as it will create an imbalance in the US health care system in favor of insurers.

The agreement between House Energy and Commerce Committee Chair Rep. Frank Pallone (D-NJ) and Senate Health, Education, Labor, and Pensions Committee Chair Sen. Lamar Alexander (R-TN) does include an independent dispute resolution process. While the CAP appreciates the inclusion of this process, a threshold of $750 to qualify for arbitration should be removed from legislation before moving forward.

Stay Engaged on Surprise Medical Bills

At this article’s deadline, lawmakers were continuing their negotiations on surprise medical bill legislation. The CAP and the physician community oppose legislative approaches that set payment for unexpected out-of-network services at the “mean” in-network amount controlled by insurance companies.

Pathologists need to remain part of the conversation. You must urge your congressional representatives to protect patients from surprise bills and stop insurer-led efforts to drive down reimbursement. Instead, the CAP supports HR 3502, the Protecting People from Surprise Medical Bills Act. HR 3502 uses independent dispute resolution, without a threshold trigger, to provide a fair and efficient way to resolve disputes between providers and insurers.

We need your support. Go to our grassroots platform, provide your email and ZIP Code, and take action today!

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With Congress attempting to move swiftly on legislation to address surprise bills before year’s end, dozens of small and independent pathology practices urged Congress to solve the issue of unexpected out-of-network medical without establishing a reimbursement system that relies on benchmark rates controlled by insurance companies.

The CAP worked with more than 60 pathology practices to sign a letter, which included nearly 900 small and independent physician practices from across the United States, to congressional leaders on December 5. The letter stated concerns over using a rate-setting reimbursement approach for surprise medical bills that will have unintended consequences for the US health system. Mainly, rate-setting will eliminate the few incentives that remain for health insurers to negotiate fairly with small and independent practices.

“We have worked relentlessly to secure in-network contracts with as many of our local plans as we can,” the physician groups said. “However, smaller physician groups are particularly disadvantaged when it comes to contracting with health plans. This is an issue that is being further aggravated as insurance companies consolidate, leaving only a single insurer to dominate the market in a number of states. Therefore, insurers at best offer us only drastically undervalued ‘take-it-or-leave-it’ contracts that will not even cover the costs of our overhead—while others ignore altogether our inquiries to be part of health plan networks. The wrong approach to addressing surprise bills will only further empower insurers to weaken our practices.”

To gain support for the letter, the CAP asked small and independent pathology practices to sign on. Other signatories represent a broad coalition of physician specialties who would be adversely affected by rate setting or benchmarking. They include members of the American Academy of Ophthalmology, American Association of Neurological Surgeons, American Association of Orthopedic Surgeons, American College of Emergency Physicians, American College of Radiology, American Society of Anesthesiologists, Congress of Neurological Surgeons, and the National Association of Spine Specialists.

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The Ohio Society of Pathologists (OSP) and the CAP opposed an out-of-network payment standard, as proposed by the Ohio State House bill 388. The Ohio legislation would create a payment structure for out-of-network payment services tied to median in-network rates that will impair the financial viability of pathology services in the state’s health care delivery system. The CAP has also urged health plan network adequacy requirements be included in out-of-network legislation for pathologists not only in state advocacy but also for a federal solution.

If passed, the Ohio state legislation would give insurance companies the power to set the median out-of-network rates used to calculate OON payments and allow an arbiter to determine if the calculation was correct. The President of the Ohio Society of Pathologists Sean Kirby, MD, FCAP recently sent a letter to the chair of the Ohio State House Committee, opposing the legislation. In the letter, Dr. Kirby outlined that the OSP and the CAP “support patient protections from out-of-network charges that result from failure of the health insurance plans in providing reasonable and timely access to in-network physicians.” Dr. Kirby stated they support payment and regulatory structure that provides health plan incentives to contract with hospital-based physicians, like pathologists.

The Ohio House legislation also proposes a Medicare safeguard payment for out-of-network physicians that is lower than the proposed national payment in the federal legislation, which the CAP supports. The CAP remains active on the fight for network adequacy and will continue to provide updates on Ohio and the federal front.

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Despite opposition by the Pennsylvania Association of Pathologists (PAP), the CAP, and a coalition of physician organizations, the Pennsylvania House Insurance Committee moved legislation out of committee that would likely drive down payments to physicians, including pathologists, for out-of-network services. The legislation could next be considered for a House vote. The PAP and the CAP argued vigorously against the bill as it tied the payment to the median in-network rate and did not provide safeguards to ensure reasonable reimbursement rates.

The legislation, HB 1162, ties the payment for out-of-network services to the median in-network rate of the health insurance payer. Moreover, the draft legislation does not provide any safeguards for reasonable payment rates. Despite opposition by the Pennsylvania Association of Pathologists (PAP), the CAP, and a coalition of physician organizations, the Pennsylvania House Insurance Committee moved legislation out of committee that would likely drive down payments to physicians, including pathologists, for out-of-network services.

The legislation could next be considered for a House vote. The PAP and the CAP argued vigorously against the bill as it tied the payment to the median in-network rate and did not provide safeguards to ensure reasonable reimbursement rates. The legislation, HB 1162, ties the payment for out-of-network services to the median in-network rate of the health insurance payer. Moreover, the draft legislation does not provide any safeguards for reasonable payment rates.

In a November 13 letter, the PAP argued that the payment formula in the measure is highly flawed and favors the insurance industry. The bill would hinder pathologists’ ability to provide pathology services to all Pennsylvanians, create instability in existing insurance-provider contracts, and increase pressure on already stressed rural hospitals. Moreover, the current legislation does not recognize that often pathologists have no control over reviewing patient insurance information before receiving specimens from various sources, including emergency settings.

The legislation also fails to acknowledge that current state law holds patients financially protected from additional out-of-network costs if they are treated at an in-network facility. The existence of the protections were established in a public hearing on network adequacy enforcement held earlier this year, largely at the instigation of PAP and the CAP.

Read the letter for more details. The CAP will provide updates on this ongoing PA issue.

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The CAP urged the Centers for Medicaid and Medicare Services (CMS) to remove restrictions and expand coverage for patients seeking access to next-generation sequencing (NGS)-based tests. In a recent letter about the Proposed Next-Generation Sequencing tests for Medicare Beneficiaries with Advanced Cancer, the CAP urged the CMS to guarantee national coverage for Food and Drug Administration (FDA)-approved tests for patients, regardless of cancer stage, while not compromising patient access. 

In the letter, the CAP urged the CMS to “guarantee national coverage for FDA approved/cleared tests, and to allow Medicare Administrative Contractors (MACs) discretion to cover other NGS-based tests, regardless of cancer stage.” The CAP is concerned that if these proposed changes are not implemented, it would restrict patient access to only early-stage germline testing. In order not to limit patient access to these critical diagnostic tests, the CAP asked the CMS to make several changes to the final regulation. 

Coverage requirements for breast and ovarian cancers

Under the proposed regulation, the CMS outlined that national coverage will only apply to FDA-approved or cleared tests for patients with hereditary breast and ovarian cancer alone. Currently, there are no FDA-approved gene mutation tests for breast or ovarian cancers. The CAP asked the CMS to remove “other than breast or ovarian cancer” form the proposed regulation language. Moreover, the CAP urged the CMS to allow “the MACs to determine coverage for all cancer types, including breast and ovarian, when the evidence is sufficient and when tests meet the other coverage criteria.” 

One test per patient requirement

In the proposed regulation, the CMS language is misleading regarding the number of times a patient can receive a test and be covered. One of the proposed requirements for coverage is that a patient has “not been previously tested using NGS.” Therefore, the CAP asked the CMS to replace the proposed coverage criteria that states: “not been previously tested using NGS” with, “not been previously testing using the same NGS-based test for the same primary cancer diagnosis.” 

Moreover, the CAP asked the CMS to allow for repeat testing to get a concrete diagnosis that can inform life-saving treatment.  For instance, the CAP asked for repeat testing in the following instances:

1. When additional implicated genes are included in a test.
2. When the reportable gene range already tested has been expanded to encompass pathogenic variants for which there is sufficient evidence for clinical testing.
3. When the analytic sensitivity has improved since the time of the previous test. 

Cancer Stage

The CAP asked that the final national coverage be modified to reflect coverage for NGS-based germline testing for breast and ovarian cancer regardless of the patient’s cancer stage. Additionally, the CAP urged the CMS to retitle the national coverage determination to reflect these changes more accurately.

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Take the year-end December Advocacy News Quiz. See how you compare to your fellow CAP members by sharing your results on social media. You might even learn something about the CAP’s advocacy efforts to make your practice better.

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