Advocacy Update

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A US Court of Appeals judge ruled in the CAP’s favor on July 30 by reversing a lower court decision and stating that federal courts do have jurisdiction to decide the merits of a challenge to the federal government’s administration of the Protecting Access to Medicare Act (PAMA).

The 2014 PAMA law drastically changed the Medicare clinical laboratory fee schedule (CLFS) by requiring reimbursements for clinical laboratory services to be based on private rates. The CAP has sought to ensure these reimbursements are accurate and reflect all sectors of the clinical laboratory market. However, the CAP found flaws in the private-market data collection process and has advocated for changes to the PAMA statute and resulting regulatory implementation.

As part of our advocacy, the CAP joined a lawsuit led by the American Clinical Laboratory Association (ACLA) against the Department of Health and Human Services (HHS) to correct its execution of the PAMA reforms to the CLFS. On December 11, 2018, the CAP filed an amicus brief in support of ACLA’s appeal to overturn a US District Court for the District of Columbia decision to dismiss the lawsuit. ACLA, the CAP, and others maintain the implementation of how the HHS defined the applicable laboratories required for data collection was arbitrary and capricious.

In September 2018, the US District Court had ruled that it lacked jurisdiction and could not compel the HHS to follow statutory requirements.

Oral arguments for the appeal were held before the US Court of Appeals for the DC Circuit on April 23 to remand the case for consideration of the arbitrary-and-capricious challenge. The CAP in its amicus brief argued that the US District Court did have legal authority. The CAP outlined precedent for the US Court of Appeals to return the case to the lower court.

In the July 30 ruling, the US Court of Appeals agreed and stated, “We leave to the district court on remand to address in the first instance the merits of petitioner’s arbitrary-and-capricious challenge.”

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On July 25, over 400 CAP members engaged in a day of action on surprise medical bills along with several other medical societies before Congress leaves for August recess. CAP members had over 1,673 points of contact with multiple members of Congress and asked them to support legislation to fix surprise bills that includes an independent dispute resolution (IDR).

The united advocacy effort spearheaded by the CAP ensured that Congress heard from physicians that health insurers should not be allowed to soley determine the value of physician services provided to patients.

During the day of action, CAP members expressed their discontent with the benchmark rate-setting approach in the House Energy and Commerce Committee’s No Surprise Act. That version of the bill would cap reimbursement for out-of-network care at the median in-network rate and was amended to include an inadequate IDR process. The median in-network rates would create an imbalance in the US health care system favoring insurers, affecting patient access to care in underserved and rural areas.

CAP members who are interested in strengthening their voices on this issue can engage with PathNET and also make a donation to PathPAC—the CAP’s political action committee—which is the only such group that solely represents pathologists in Washington, DC.

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As reported earlier in July, eligible pathologists who submitted 2018 Merit-based Incentive Payment System (MIPS) data through the Quality Payment Program (QPP) website, can view their performance feedback and MIPS final score. Your 2018 MIPS performance will determine payment adjustments to your Medicare Part B payments in 2020 of +/- 5%. The CAP encourages all MIPS eligible pathologists to log in and review their preliminary MIPS 2018 scores soon to make sure they do not have a -5% penalty.

Preliminary MIPS feedback reports suggest that a MIPS score of 100% resulted in the maximum positive payment adjustment of 1.68%, which includes the exceptional performance bonus.

MIPS is a budget-neutral program, meaning that the money from negative adjustments obtained from poor performers are redistributed as positive adjustments to high performers. Presumably, due to the majority of MIPS clinicians performing very well in the program in 2018, the positive payment adjustments are but rather modest. The exceptional performance bonus is not budget neutral, but rather from a separate pool of $500 million available to those MIPS clinicians and groups who performed above the Performance Threshold of 70 points.

Individual pathologists can access their 2018 MIPS scores by logging in to the QPP web site with their QPP login credentials.

Pathologists Participating in MIPS Alternative Payment Models (APM)

Pathologists who participated in one of the models below in 2018, your MIPS performance feedback is now available via the Quality Payment Program website:

  • Medicare Shared Savings Program Accountable Care Organization (ACO)
  • Next Generation ACO
  • Comprehensive Primary Care Plus
  • Oncology Care Model
  • Comprehensive ESRD Care

For pathologists who practice in an APM, the MIPS AMP score will be an APM score and applies to all MIPS eligible clinicians within the APM entity.

Targeted Review

If you do have concerns about your preliminary score, the Centers for Medicare & Medicaid Services (CMS) asks physicians to request a targeted review. Pathologists can request a targeted review until September 30, 2019. 

For more information, please refer to the 2018 Targeted Review Fact Sheet, the 2018 Targeted Review FAQs, and the QPP Access User Guide or email CAP MIPS experts at

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Due to a delay in the CMS’ release of the proposed 2020 Medicare Physician Fee Schedule and Quality Payment Program regulations, the CAP haspostponed its webinar. The CAP will reschedule the webinar to new date soon. Please review the latest Special Advocacy Update on the proposed 2020 Medicare Payment regulations.

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Over 70 of your fellow CAP members have taken the July Advocacy News Quiz. Of those members who took the quiz, they scored an average of 90%. See how you measure up against your fellow pathologists on the last week to take month’s quiz and share your results. Good luck!

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