Health Policy Report – December 5, 2022

Op-ed by Dr. Marcus Neubauer: “Medicare is cutting critical cancer care funding — it’s time for Congress to step in” 

On November 29, The Hill published an op-ed written by Dr. Marcus Neubauer, chief medical officer of The Network. His op-ed warned the serious cuts included in the Medicare Physician Fee Schedule (PFS) Final Rule for 2023 could lead to further consolidation and urged Congress to pass bipartisan legislation to prevent these cuts from going into effect on January 1.  

Medicare’s recently finalized PFS included an alarming, across-the-board 4.5% cut to reimbursements for physicians. Not only would these cuts make it even more difficult for independent physicians to remain financially sustainable during a time of rising costs, but the cuts also risk accelerating vertical integration in the US healthcare system. To illustrate this trend, Dr. Neubauer highlighted a report from the Physician Advocacy Institute about healthcare consolidation during the COVID-19 pandemic. Between 2019 and 2020, hospitals acquired over 3,200 physician practices, resulting in an 8% increase in the number of hospital-owned practices. Because oncology has one of the highest rates of consolidation, additional financial challenges caused by the PFS cuts risk exacerbating this trend.   

Dr. Neubauer urged lawmakers to pass H.R. 8800, the Supporting Medicare Providers Act, which is bipartisan legislation introduced by Reps. Ami Bera, MD (D-CA) and Larry Bucshon, MD (R-IN) that would block the 4.5% cuts from going into effect. “Unless addressed by Congress before the end of this year, these cuts will be devastating to independent practices and predictably result in further hospital-driven consolidation,” Dr. Neubauer wrote.  

To read Dr. Neubauer’s op-ed in The Hill, CLICK HERE. 

To read the Physician Advocacy Institute research on healthcare acquisitions during the COVID-19 pandemic, CLICK HERE. 

CMS Releases Proposed Rule on Prior Authorization and Interoperability  

Yesterday, CMS released a proposed rule titled, “Advancing Interoperability and Improving Prior Authorization Processes.” If finalized, the rule would place new requirements on Medicare Advantage (MA) organizations, state Medicaid and CHIP Fee-for-Service (FFS) programs, Medicaid managed care plans and Children’s Health Insurance Program managed care entities, and Qualified Health Plan issuers on the Federally Facilitated Exchanges (“impacted payers”) aimed at improving the electronic exchange of health care data and streamlining processes related to prior authorization (PA).  

In the PA section of the rule, CMS proposes to require impacted payers to automate the PA process for providers to determine whether a PA is required, identify PA information and documentation requirements, and facilitate the exchange of PA requests and decisions from their electronic health records (EHRs). The rule proposes requiring impacted payers to send PA decisions within 72 hours for urgent requests and seven calendar days for non-urgent requests; or alternatively, 48 hours for urgent requests and five calendar days for non-urgent requests. CMS is also proposing to require impacted payers to include a specific reason when they deny a prior authorization request and to publicly report certain PA metrics. The rule would also add a new PA measure for MIPS-eligible clinicians under the Promoting Interoperability performance category.  

The proposed rule includes five Requests for Information, including one on how to improve the exchange of medical documentation between ordering and rendering providers in the Medicare FFS program. CMS is accepting comments on the proposed rule through March 13, 2023. 

The proposed rule comes as stakeholders supporting H.R. 3173, The Improving Seniors’ Timely Access to Care Act,” have been urging Congressional leadership to include the legislation establishing an electronic PA program in MA plans in an end-of-year legislative package.  

To view the CMS press release, CLICK HERE. 

To view the CMS fact sheet, CLICK HERE. 

For additional background, CLICK HERE. 

To read the full text of the proposed rule, CLICK HERE. 

To read the letter to Congressional leadership on H.R. 3173, CLICK HERE. 

Stakeholders Urge Congress to Block Medicare Cuts, Improve Access to Genetic Counselors 

While the specific provisions that may be included in the year-end legislative package are still under negotiation, lobbyists and lawmakers believe Congress is likely to provide some relief to physicians by blocking certain Medicare cuts and waiving the effects of upcoming Pay-As-You-Go (PAYGO) cuts.  

Stakeholders have sounded the alarm, warning lawmakers that Medicare providers will face drastic pay cuts starting January 1 unless Congress acts before the end of the year. This includes a new 4% sequestration cut due to the PAYGO scorecard and a 4.5% cut to the conversion factor in the 2023 Medicare Physician Fee Schedule (MPFS). If allowed to go into effect, the cuts would destabilize the country’s healthcare system at a time of rising inflation and workforce challenges. As a result, stakeholders are concerned that the cuts could ultimately threaten Medicare beneficiaries’ access to quality care.  

In addition to addressing the cuts, many stakeholders—including The US Oncology Network—want Congress to include H.R. 2144, the Access to Genetic Counselor Services Act (Rep. Brian Higgins [D-NY]) in its year-end legislative package. H.R. 2144 aims to improve access to genetic counselors by allowing Medicare to reimburse them directly for genetic counseling services. On November 28, the Network joined over 250 other organizations in sending a letter to Congressional leadership with this request.  

“Improving access to genetic counselors will help ensure appropriate genetic testing, provide critical knowledge to beneficiaries to fully understand complex test results, and further integrate genetic counselors into the healthcare team. We expect the legislation will enhance team-based care coordination for Medicare beneficiaries and may also save money for beneficiaries and the Medicare program,” the stakeholders wrote.  

To contact your Member of Congress and ask them to stop the Medicare payment cuts, CLICK HERE. 

To learn more about the Access to Genetic Counselor Services Act, CLICK HERE. 

To read the letter signed by the Network urging Congress to pass the Access to Genetic Counselor Services Act, CLICK HERE. 

House Democrats Elect Leadership for 118th Congress 

While the 118th Congress won’t officially begin until January, Democrats in the U.S. House of Representatives recently held elections to determine who will lead their caucus in the next session. Current Speaker Nancy Pelosi’s recent announcement that she would be stepping down from leadership, thus opening the way for Rep. Hakeem Jeffries (NY-8) to win the spot as the first new Democratic leader in two decades and the first Black leader of any party in Congress. In addition to electing a new leader, Democrats also elected Rep. Katherine Clark (MA-5) as their new whip and Rep. Pete Aguilar (CA-31) as caucus chair. 

While none of the three new leaders serve on the major House health committees, including the Ways and Means and Energy and Commerce Committees, some speculation has been made about their health policy priorities, given previous statements and bill sponsorships. 

Rep. Jeffries is a member of the Congressional Progressive Caucus and a consistent cosponsor of Medicare-for-All efforts. The Washington Post has also reported that he has publicly criticized branded drug manufacturers’ use of a tactic known as “pay for delay” that is used to stifle competition from generic drugs. 

Like Jeffries, Rep. Clark  is also a member of the Congressional Progressive Caucus and a supporter of Medicare-for-All. Rep. Clark has also sponsored maternal health and substance use disorder support and prevention bills. 

The new caucus chair, Rep. Aguilar, is a member of the moderate New Democrat Coalition. While Rep. Aguilar has not been the primary sponsor for any health-related legislation, he did issue a statement following his election in which he voiced his commitment to preserving Medicare from funding cuts, protecting abortion access, and putting people over politics. 

In the next Congress, current Speaker Nancy Pelosi (CA-12) and current Democratic Leader Steny Hoyer (MD-5) will continue to serve and represent their constituencies as rank-and-file members lending their voice only in a mentor role. The current Majority Whip, Rep. James Clyburn (SC-6), will serve as Assistant Democratic Leader. 

To read Rep. Jeffries’ press release on his election as Democratic Leader, CLICK HERE. 

To read Rep. Clark’s press release on her election as Democratic Whip, CLICK HERE. 

To read Rep. Aguilar’s press release on his election as Democratic Caucus Chair, CLICK HERE. 

Survey: Virtually All Oncologists Say Prior Authorization Delays Care and Harms Patients 

The American Society for Clinical Oncology (ASCO) recently released the results of a survey that sheds light on the negative impacts prior authorization has on cancer care.  

Approximately nine-in-ten oncologists say prior authorization leads to delays in treatment (96%), delays in diagnostic imaging (94%), patients being forced onto a second-choice therapy (93%), patients denied therapy (87%), and increased out-of-pocket costs for patients (88%). Moreover, 80% of respondents said that prior authorization resulted in disease progression for a patient, and 36% reported it resulted in the loss of a patient’s life. The results underscore the serious negative effects that insurance barriers like prior authorization have on cancer patients’ access to care and health outcomes. 

When asked what services they might provide or expand if they could reallocate resources currently dedicated to prior authorization requests, oncologists said they would see more patients, expand support services, increase outpatient services, provide palliative care, and expand research.  

Announcing the results of its findings in a November 22 press release, ASCO urged the Senate to pass the Improving Seniors’ Timely Access to Care Act, which would help streamline the prior authorization process under Medicare Advantage and increase transparency and accountability over MA plans that engage in prior authorization.   

To view a summary of the ASCO survey, CLICK HERE.  

To read ASCO’s press release about the survey, CLICK HERE. 

FTC Renews Commitment to Blocking Unfair Competition Practices 

On November 10, the Federal Trade Commission (FTC) issued a policy statement that declared the Commission’s intent to exercise its full statutory authority to strictly enforce the federal law that bans methods of competition deemed unfair. The new policy supersedes a 2015 policy, which restricted the Commission’s oversight to a relatively narrow set of circumstances. As a result of the new policy, the Commission can now act against companies that exhibit a broader range of unfair and anti-competitive tactics. 

FTC commissioners voted 3-1 to approve the new policy under section 5 of the FTC Act, which prohibits the use of unfair methods of competition across multiple industries, including drug makers, calling for “rigorous enforcement” of section 5. 

“[The policy statement] shows how the Commission will police the boundary between fair and unfair competition through both enforcement and rulemaking. The statement makes clear that the agency is committed to protecting markets and keeping up with the evolving nature of anti-competitive behavior,” the FTC said in a press statement. 

The Federal Trade Commission Act was originally passed by Congress in 1914 because of concern over enforcement of the Sherman Act, the original antitrust statute. Section 5 of the FTC Act prohibits “unfair methods of competition” and enables the Commission to police industry practices. 

To view the FTC press statement, CLICK HERE. 

To view the FTC policy statement, CLICK HERE.