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June 2, 2015

In This Issue:

The CAP is opposing the Medicare Administrative Contractor (MAC) CGS Administrators, LLC’s proposal to adopt a local coverage determination (LCD) policy on special histochemical stains and immunohistochemical (IHC) stains.

The CAP will urge CGS to withdraw the flawed LCD, which was first proposed and finalized by the Medicare contractor Palmetto GBA. Palmetto has implemented the LCD with little revision despite the CAP’s well-supported comments pointing out specific evidentiary flaws based on the feedback of over 40 pathologist experts. The LCD affects beneficiaries and providers in Palmetto's jurisdiction 11, consisting of North Carolina, South Carolina, Virginia, and West Virginia on March 16.

The CAP continues to advocate for the policy's withdrawal. Evidence purported to support the LCD is unsubstantiated and the policy encroaches on medical judgment.

The Medicare contractor Noridian also has proposed the same LCD, which the CAP has vigorously opposed. If adopted, the coverage policy would affect Medicare beneficiary services in Alaska, Arizona, California, Hawaii, Idaho, Montana, North Dakota, Nevada, Oregon, South Dakota, Utah, Washington, and Wyoming.

CGS oversees the Medicare program in Kentucky and Ohio. The comment period will begin on June 17, following a CGS Carrier Advisory Committee meeting on June 16, according to the Centers for Medicare & Medicaid Services (CMS). The comment period is scheduled to close on August 3.

The LCD is broad, covering nine clinical areas including breast, gastrointestinal, lung, urogenital, and skin disorders. It would require pathologists to first review hematoxylin and eosin stain prior to ordering special stains in many instances.

The CAPs experts have found areas in the coverage policy that are directly contradicted by medical literature. The LCD also attempts to set coverage criteria in areas of pathology when no consensus has emerged and with terms that cannot be practically applied.

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Addressing the American Medical Association (AMA) Code of Medical Ethics, physician leadership, and self-referral issues, the CAP will be engaged and representing pathologists at the 2015 AMA Annual Meeting in Chicago June 6-10.

The CAP and members of the Pathology Section Council have advocated and worked to achieve changes to the Code of Medical Ethics over the last year. A vote on updates to the Code of Medical Ethics is scheduled during the Annual Meeting. The full text of the modernized code is posted online (AMA membership is required to view the text).

The College and Pathology Section Council continue to advocate for changes that strengthen the code. This issue and others underscores the importance of CAP members joining the AMA. The College encourages members to strengthen pathology’s voice at the AMA by becoming a member of the association. View the AMA's website for more information about becoming a member.

The CAP delegation will spend time during the meeting with candidates seeking leadership positions in the AMA. The delegation will conduct interviews with several candidates to gauge support for key issues of importance to pathology. One area of discussion will focus on the new payment models created in the Sustainable Growth Rate repeal legislation that specifically address the unique practice characteristics of pathology.

In addition, the CAP will continue to advocate for closing the self-referral loophole that allows physicians to refer anatomic pathology and other services to laboratories where they have financial interests. Several studies conclude that these self referral arrangements do not benefit patients but lead to overutilization of services. Citing reports showing the self-referral loophole leads to overutilization of services and increased costs to Medicare, the CAP will oppose an effort at the meeting to defend the in-office ancillary services (IOAS) exception to the Stark Law for anatomic pathology (AP) services.

The CAP supported a provision in President Obama's 2015 and 2016 budgets to close the IOAS exception for anatomic pathology services. The Office of Management and Budget (OMB) estimated the Medicare program could save over $6 billion over 10 years if the IOAS exception was closed to remove anatomic pathology, advanced imaging, radiation therapy, and physical therapy.

A resolution, sponsored by the American Medical Group Association, would direct the AMA to work aggressively to preserve the IOAS exception from any modification in the president's 2016 budget, or through the legislative and regulatory process.

The IOAS exception was implemented to provide patients the opportunity to receive certain medical tests or services that inform treatment and diagnosis at the time of their physician office visit such as a simple blood test or urinalysis. However, anatomic pathology services are rarely ever done at the time of an office visit and no added convenience is afforded patients with these tests being done in office.

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The CAP's Medicare Physician Quality Reporting System (PQRS) and Value-Based Modifier (VBM) decision tool can help pathologists determine 2015 eligibility for participation and future payment adjustments.

Participating in PQRS has been voluntary, but now it is becoming mandatory if one wants to avoid Medicare payment penalties in the future. Pathologists are at risk of having Medicare payments reduced when CMS determines that they could have participated in PQRS and did not. Performance on PQRS measures in 2015 also will be the factor deciding whether their Medicare Part B payments will have a negative PQRS and VBM adjustment in 2017.

While the CMS has said that the penalties will not apply for pathologists who have no applicable PQRS measures, the CMS plans to review claims to check that none of the measures applied.

Eligible physicians face a 2% penalty in 2017 for not successfully reporting PQRS measures in 2015. PQRS also is a factor in the VBM, which also could penalize eligible physicians by an additional 2% to 4% in 2017 following the 2015 PQRS reporting year.

The CAP's PQRS/VBM tool can help pathologists understand how Medicare may adjust their payments if they do not participate in PQRS. By answering questions regarding eligibility, pathologists can quickly determine how the program affects them. The CAP has developed eight PQRS measures for pathologists. The CAP's measure development efforts have allowed pathologists to have the highest PQRS success rate of any specialty.

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The CAP advocated for relief from Medicare payment penalties for pathologists under the Electronic Health Record (EHR) Meaningful Use program beyond 2016 in a letter to the CMS.

As a result of CAP advocacy, pathologists have received a hardship exception from meaningful use penalties for 2015 and 2016. Federal law allows the CMS to provide up to five years of hardship relief, and the CAP strongly encourages that the CMS to grant this relief for the full five years with continuation of the exception for pathologists beyond 2016.

On March 20, the CMS released its Stage 3 rule for the Meaningful Use program and the Office of the National Coordinator for Health IT (ONC) released their rule for the next version of certified EHRs. Stage 3 would be the last stage of meaningful use. In the Stage 3 rule, the CMS proposes to remove the 90-day reporting period for Medicare newly eligible professionals, requiring a full calendar year reporting period after 2015. Measures in the Stage 1 and Stage 2 final rules that included paper-based workflows, chart abstraction, or other manual actions also would be removed or transitioned to an electronic format utilizing EHR functionality for Stage 3. Furthermore, to better align quality reporting programs, the CMS proposes to address clinical quality measure reporting requirements for 2017 and subsequent years in the Medicare Physician Fee Schedule.

The CMS did not propose to change the meaningful use penalties and maintains the previously designated four hardship categories:

  • The lack of availability of internet access or barriers to obtain information technology infrastructure;
  • A time-limited exception for newly practicing eligible professionals (EP) or new hospitals that would not otherwise be able to avoid payment adjustments;
  • Unforeseen circumstances such as natural disasters that would be handled on a case-by-case basis; and
  • Exceptions due to a combination of clinical features limiting physician's interaction with patients or, if the EP practices at multiple locations, lack of control over the availability of certified technology at practice locations constituting 50% or more of their encounters.

Pathologists will receive automatic hardship exceptions in 2015 and 2016. The hardship exception stops Meaningful Use penalties that would lower Medicare payments by 1% in 2015 and 2% in 2016.

In its letter to the CMS, the CAP reiterates previous concerns regarding pathologists’' practice in laboratory information systems, and not EHRs, and inability to meet EHR Meaningful Use requirements. Although CAP has a minority of members that have successfully attested to Meaningful Use, it is because they are likely part of larger practice organizations, the leaders of whom may be making practice-wide attestations on behalf of all of their physicians, including their pathologists.

In another comment letter, the AMA also highlighted the difficulty pathologists face in meeting meaningful use requirements as the program is not suited for hospital-based specialties and also urged the CMS to continue the hardship exception for pathologists beyond 2016.

Read the CAP's letters to the CMS.

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