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January 10, 2017

In This Issue:

Congressional Republicans took their first step to repeal Affordable Care Act (ACA) when the Senate unveiled a budget resolution that provides for the repeal of the ACA.

Senate Majority Leader Mitch McConnell had promised to act on what he has dubbed the "Obamacare repeal resolution" as soon as the new Congress convened. The resolution released by the Senate Budget Committee requires Congressional committees with jurisdiction over health care to come up with a repeal plan by January 27 if the resolution passes the Senate and House.

The budget resolution is key to Republican plans to repeal the ACA because it will include budget reconciliation instructions—a procedural tool that allows the House and Senate to pass legislation addressing fiscal policy with a simple majority that cannot be filibustered by Senate Democrats.

With a narrow 52-to-48 majority in the Senate, Republicans are seeking to evade a Democratic filibuster by instructing congressional committees to draft a budget reconciliation bill to effectively repeal the tax and spending provisions of the ACA. Therefore, Senate Republicans cannot lose more than two votes on the budget reconciliation vote. Sen. Rand Paul defected from the initial procedural vote. He has budgetary concerns if Congress repeals the ACA without a replacement plan. Repeal will likely increase the federal deficit. Several other Senate Republicans have expressed similar concerns.

Rather than rush to repeal the law this month, Sens. Susan Collins, Bob Corker, Lisa Murkowski, Bill Cassidy and Rob Portman want to extend the deadline for a repeal bill until March 3 instead. Republicans are planning to strike down key parts of the law through budget reconciliation.

The Senate debate on the budget resolution is expected to continue for several days, and the House plans to take up the measure once the Senate has approved it. Several House Republicans have also indicated that they have concerns about repealing ACA without a replacement as well as repealing ACA via the budget reconciliation process.

The American Medical Association sent a letter to Congress requesting a delay in repealing the ACA until a planned replacement plan has been thoroughly vetted by the medical community.

The CAP is prepared to assess and exam any alternative health care plan proposals to understand its impact on patients and pathologists. The CAP would prefer that Congress have a replacement plan to minimize the impact on patients, pathologists and the health care delivery system before the law is fully repealed.

Stay tuned to STATLINE for weekly updates.

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The state of New Jersey enacted legislation that will modernize the laboratory law that governs the use of quality control programs in bioanalytical and clinical laboratories. The CAP and New Jersey Society of Pathologists (NJSP) had engaged with other stakeholders on the legislation that overhauls 1970s-era law. The CAP and NJSP were successful in removing provisions of concern and helping to craft one the most significant overhauls of laboratory licensure requirements enacted by any state in the last decade. The bill passed the New Jersey Assembly on September 29 and the Senate on November 14. Gov. Chris Christie signed the bill (Senate Bill 976/ A 2332) into law on January 9. A previous version of the bill, without CAP and NJSP support, was vetoed by the governor in 2016.

In a December 13 letter, the CAP and NJSP urged Gov. Christie to support and sign the legislation into law for several reasons. The bill broadens the application of state regulation to areas that are medically appropriate and require quality oversight, as in the case of anatomic pathology, and exempts some diagnostic settings, including point-of-care and waived testing, where regulatory oversight can be an impediment to new technology adoption. In addition, the law codifies and recognizes the state’s authority to rely on federally recognized clinical laboratory accreditation programs for state inspection purposes.

The bill also removes unnecessary administrative rules, including those with respect to the point-of-care setting, and reduced duplicative compliance burdens on laboratories and the state Department of Health.

"Both the CAP and NJSP diligently worked with other stakeholders to ensure that the legislation does not impair critical New Jersey governmental oversight by preserving regulatory standards that maintain and promote quality in the clinical laboratory," the letter said. "These objectives were accomplished by harmonizing state regulations to federal law when appropriate, while concurrently preserving the state’s authority to exceed federal standards when necessary to protect the public health and ensure quality."

The new law does keep qualifications for some laboratory personnel and directorships, but other qualifications deemed unnecessary in light of technological changes are removed with respect to waived testing.

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The CAP is seeking further clarification from the Centers for Medicare & Medicaid Services (CMS) about how revised patient relationship codes will be used under Medicare's Merit-Based Incentive Payment System (MIPS) beginning in 2018.

The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) required the establishment and use of classification code sets, including care episode, patient condition groups, codes and patient relationship categories. Physicians will have to include the newly developed codes on their claims as of January 1, 2018, if they choose to participate in MIPS.

Patient Categories

The CMS proposed five patient categories in April 2016. In comments, the CAP stressed that the categories needed to be simpler and clearer. Based on all comments received, the agency has decided to modify the patient categories. Under the new proposal, issued December 29, The CMS is proposing the following categories:

  1. Continuous/broad: This category could include clinicians who provide the principal care for a patient, where there is no planned endpoint of the relationship (ie, primary care).
  2. Continuous/focused: This category could include a specialist whose expertise is needed for the ongoing management of a chronic disease or a condition that needs to be managed and followed for a long time (ie, rheumatologist).
  3. Episodic/broad: This category could include clinicians who have broad responsibility for the comprehensive needs of the patients, but only during a defined period and circumstance, such as a hospitalization (ie, hospitalist).
  4. Episodic/focused: This category could include a specialist focused on a particular type of time-limited treatment (ie, an orthopedic surgeon performing a knee replacement).
  5. Only as ordered by another clinician: This category could include a clinician who furnishes care to the patient only as ordered by another clinician. This relationship may not be adequately captured by the alternative categories suggested above and may need to be a separate option for clinicians who are only providing care ordered by other clinicians (ie, a radiologist).
Code Options

The CMS is considering options for codes to identify patient relationship categories, which must be included on claims submitted for items and services furnished by physicians and applicable practitioners on or after January 1, 2018. Based on comments and analysis, the CMS believes the use of HCPCS modifiers appears to be the most appropriate option for clinician-submitted codes on claim forms. The Level II HCPCS codes primarily represent items, supplies, and services not covered by the American Medical Association’s CPT-4 codes. The CMS envisions that clinicians would first report a CPT Code (Level I HCPCS) and then identify a Level II HCPCS modifier to identify their relationship to the patient.

The CMS believes that this is the most appropriate option for coding these relationship categories because CMS data systems are already able to accept such codes, clinicians are already familiar with Healthcare Common Procedure Coding System (HCPCS) codes, and the modifiers would be applicable to the combination of clinician and service, thereby allowing more precise analysis of attribution.

In the December 29 notice, the CMS said it is seeking comment on the draft relationship categories, as well as the proposed method to operationalize the coding of these categories on claim forms.

CAP Comments

In comments submitted January 4 to CMS Acting Administrator Andy Slavitt, the CAP noted that it cannot provide detailed comments on the draft patient relationship codes without fully understanding how they will be used. “There may be unintended consequences of specifying these code descriptors without a clear understanding of their intended use,” the CAP writes, asking that the CMS provide greater detail on the use of the codes before finalizing the code descriptors.

In response to specific questions posed by the CMS, the CAP states that the revised codes are clearer than the previously drafted codes. However, the CAP believes that additional revisions are needed. For example, Category 5 appears to be an over-simplification of the care furnished by non-patient facing clinicians. In addition, there is some overlap between Categories 4 and 5 with respect to pathology services. A particular CPT code may be coded as 4 or 5 depending on the circumstances of the care provided, says the CAP.

"The CAP questions whether the CMS intends to leave the coding decisions to the physicians or if there will be specific rules outlined in the future," the CAP states in the comment letter. "For those codes which will always fall under one category, the CAP suggests the patient relationship codes be automatically applied to limit the reporting burden."

The CAP also suggests a modification to the description of Category 5 to read: As ordered by another clinician. This category could include a clinician who furnishes care to the patient only as ordered by another clinician or incident to services ordered by another clinician. This relationship may not be adequately captured by the alternative categories suggested above and may need to be a separate option for clinicians who are only providing care ordered by other clinicians [emphasis added].

The CAP believes that the HCPCS modifiers are a viable coding mechanism, but says it is concerned about the burden of adding a modifier to every code. The CAP suggests that it may be easier to have a default patient relationship code based on specialty. Further, the CAP suggests that only exceptions should be indicated on claims via the use of a CPT modifier. At a minimum, the CMS should limit the modifier to one per claim to reduce the reporting burden.

Whatever descriptor and mechanism the CMS decides to use, the CAP recommends that the CMS perform pilot testing to assure the patient relationship codes work as intended. Thorough pilot testing would provide a clearer understanding of that burden, as well as whether the codes are achieving their intended purpose.

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Beginning on January 1, 2017, the Protecting Access to Medicare Act (PAMA) required certain laboratories to submit private payor rates for clinical laboratory tests. The CAP developed pathology-specific PAMA resources, including an informative infographic and podcast, to help laboratories understand regulatory requirements and upcoming deadlines. These resources and additional tools can be found on the CAP PAMA resources web page.

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Let your voice be heard at the 2017 CAP Policy Meeting: Protecting the Practice of Pathology and our Patients. From April 24-26, 2017, CAP members can connect with government leaders and policy experts to discuss the impact of Federal regulation on their practice.

Registration is now open for the CAP annual Policy Meeting. Stay tuned for more updates.

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