Advocacy Update

Read the Advocacy Update

• CAP Insists on New CMS COVID-19 Testing Policies, Pricing
• Biden Inaugurated as 46th US President; New Health Care Leaders to Take Charge
• How the CAP Shaped Surprise Billing Legislation with its Advocacy
• New Law Repeals Insurance Exemption From Antitrust Law
• COVID-19 Changes to Medicare Shared Savings Program
• Check Out the January Advocacy News Quiz

During a meeting with officials from the Centers for Medicare & Medicaid Services (CMS), the CAP called on the agency to cease implementing of its policy on COVID-19 test result turnaround time that became effective on January 1. Additionally, the CAP asked that the CMS establish a new price for COVID-19 testing that ensures laboratories are reimbursed appropriately for the resources needed to perform the tests.

During the January 4 meeting, the CAP reiterated its previous arguments that CMS’ new pricing scheme cuts the payment despite the current fees being already inadequate in many parts of the country, where prompt testing already requires laboratories to use every available platform. The CMS’ policies unfairly penalize laboratories for delayed COVID-19 tests due to factors outside of their control, such as the availability of testing supplies needed to run the tests. Further, CAP officials said Medicare payment rates established for SARS-CoV-2 nucleic acid testing have been improperly valued. Testing done at local hospitals and clinics cannot always be “high throughput” and will typically have a higher (not a lower) cost per test, the CAP said. The processes for determining the clinical laboratory test prices were not followed.

In a January 8 follow-up letter to the CMS, the CAP reiterated its request that the agency takes the following steps:

• Cease implementation of the new payment scheme for COVID-19 tests as it is highly burdensome and counterproductive.
• Withdraw HCPCS codes U0001, U0002, U0003, U0004, and U0005 and establish a new price for CPT code 87635 that ensures laboratories are reimbursed appropriately for the resources needed to perform the tests.
• Establish a national payment rate for all SARS-CoV-2 nucleic acid testing equivalent to the current (2020 rate) for high-throughput tests.
• Make the updated, increased price for CPT code 87635 retroactive to the date this CPT code was created and implemented (March 16, 2020).

In October 2020, the CMS issued a new policy (CMS-2020-1-R2) that lowered the base payment amount for both codes to $75, effective January 1, 2021. If laboratories completed the test within two calendar days from the date of specimen collection, a $25 payment would be added if most COVID-19 tests used high-throughput technology in the previous month were completed in two calendar days for all of their patients.

Advocacy Update will provide coverage on this issue.

President Joe Biden and Vice President Kamala Harris were sworn-in to office on January 20 in Washington, DC. With a new administration taking charge and the beginning of a new session of Congress, several health care officials will soon lead their respective agencies and committees.

Here is a rundown of our transition updates:

• California Attorney General Xavier Becerra has been nominated to be the next Secretary of the Department of Health and Human Services.
• Biden has nominated several others to fill key health care positions in his administration.
• The Senate will be split 50-50 among Democrats and Republicans, with Harris casting tiebreaking votes. Here is a list of who will lead key Senate health care committees.
• Democrats have retained control of the House of Representatives, but there will still be a few changes regarding who will lead key House health care committees.
• The latest details of a COVID-19 relief package that is currently being implemented.

After the passage of the No Surprises Act, legislation that addressed surprise medical bills in December, the CAP reviewed the final law and will remain engaged in the law’s implementation. As the legislation evolved during the 116th Congress, CAP members met with their federal lawmakers to discuss the CAP’s policy priorities. Through the CAP’s engagement and collaboration with other physician associations, the legislation improved drastically.

Specifically, the CAP lobbied Congress to hold patients harmless, establish a fair reimbursement formula for services provided, deny insurers the ability to dictate payment, create an independent dispute resolution (IDR) process that pathologists can participate in, and require network adequacy standards for health insurers.

In the final legislation, key CAP principles included:

• Holding patients harmless – The CAP lobbied for Congress to keep patients out of the middle and create an IDR system where insurers and providers settle their differences. In one of the first legislative proposals by Congress, an IDR system was excluded. Lawmakers later included an IDR system but set an arbitrary threshold for accessing the system and excluding the majority, if not all, pathology services from the process. Congress listened to the CAP and removed a minimum dollar amount threshold to access IDR and provided the option to batch claims together.

• Fair reimbursement for quality care – The CAP advocated that payment for an out-of-network service should reflect the service's market value based on charges and commercial payments for the service for each geographic area where the service is provided. Within 30 days of a bill for services, insurance companies must make an initial payment for out-of-network services or issue a notice of denial. The physician and insurer can then enter a 30-day negotiation period to agree on a payment amount. If the parties do not agree, they can go to the IDR system.

• Set network adequacy standards – The CAP pushed for regulations that mandate enough in-network providers available at in-network facilities. The new law requires health plans to have up-to-date directories of their in-network providers, which shall be available to patients online, or within one business day of an inquiry. Additionally, the new law requires a study on the adequacy of provider networks by the Government Accountability Office.

The CAP continues to review the final law and will provide coverage on its policies and regulations in Advocacy Update.

On January 13, the President signed bipartisan legislation that repeals the McCarran-Ferguson Act and removes an antitrust exemption for insurance companies. The change restores antitrust laws to health insurance business, allowing the Department of Justice (DOJ) to take on additional antitrust oversight of health care insurance companies. The CAP has pushed for a level playing field for negotiations between physicians and health insurers and has aggressively advocated health insurers for general policies that protect patients' access to pathology services.

The McCarran–Ferguson Act exempted health insurance business from federal antitrust and competition laws and left the bulk of regulation under state control. The Competitive Health Insurance Reform Act of 2020 received bipartisan support in both the House and the Senate, with sponsorship from Reps. Paul Gosar (R-AZ), and Peter DeFazio (D-OR) and Sens. Steve Daines (R-MT), and Patrick Leahy (D-VT).

The new law will ensure that health insurers are subject to the same federal antitrust laws as other industries. The new law was strongly opposed by the insurance industry and state regulators, who say that it is unnecessary and will only result in more administrative burden and confusion.

Due to the COVID-19 public health emergency, the CMS announced additional modifications to the Medicare Shared Savings Program policies. Earlier changes addressed the calculation of shared losses and quality reporting. As of January 1, there are 517 Medicare Shared Savings Program Accountable Care Organizations (ACOs) serving approximately 11.2 million Medicare fee-for-service beneficiaries across the country. The changes may affect pathologists practicing in any of these Medicare Shared Savings Program ACOs.

The COVID-19 public health emergency triggered the Medicare Shared Savings Program’s Extreme and Uncontrollable Circumstances Policy. Further, to avoid rewarding or penalizing ACOs for having higher/lower COVID-19 spread in their assigned beneficiary populations, “the CMS will remove all Parts A and B payment amounts for COVID-19 treatments from the determination of benchmark year and performance year expenditures. The CMS will exclude these payment amounts from the calculation of trend and update factors based on national and regional FFS expenditures, truncation factors, and revenue-based loss recoupment limits.”

For more information, view the CMS fact sheet online here.

With all the big advocacy events in December, test your advocacy knowledge with this month’s news quiz. Last month, on average we had over 80 pathologists take the quiz. And in 2020, we had an average of 75 pathologists take the quiz each month. See how you compare against your fellow CAP members’ in the January News Quiz.

Take the January 2021 news quiz