Washington Watch for December 2018
Carter L. Alleman, J.D.
CMS Releases New Policies for 2019 Quality Payment Program
The Centers for Medicare & Medicaid Services (CMS) released updated policies for the 2019 Quality Payment Program (QPP) as part of the calendar year Medicare Physician Fee Schedule (MPFS) final rule issued November 1. The QPP, implemented in 2017 as required by Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act of 2015 (MACRA), offers two pathways for providers to participate in Medicare—the Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APMs).
For the 2019 performance year, CMS finalized a number of MIPS policies, including an increase in the overall performance threshold required to avoid a penalty (from 15 points to 30 points), changes to the Quality and Cost performance category weights, the option for certain MIPS eligible clinicians to opt into the program, and facility-based reporting for the Quality and Cost categories for providers who meet the facility-based definition, to name a few. CMS also changed the name of the Advancing Care Information to Promoting Interoperability (PI) and will require 2015 edition certified electronic health record technology (2015 CEHRT) for PI participation in the 2019.
The rule also finalized requirements for becoming a Qualified Advanced APM participant through the All-Payer Combination Option, which lets physicians meet the participation threshold through a combination of both Medicare and other payor APMs beginning next year.
For more information about the 2019 QPP proposals in the MPFS final rule, see the CMS fact sheet .
2019 Medicare Physician Fee Schedule Final Rule Released
The Centers for Medicare & Medicaid Services (CMS) issued the calendar year 2019 Medicare Physician Fee Schedule (MPFS) final rule November 1. Under this rule, CMS finalized a MPFS conversion factor of $36.0391 and a positive 1 percent increase to payments for general surgery in 2019.
CMS finalized for 2019 a few policies intended to reduce evaluation and management (E/M) documentation burden. For example, physicians may choose to document only the history and exam components that have changed since the last visit for established patients. For both new and established patients, physicians will not be required to re-document the chief complaint or history that has already been documented.
CMS did not immediately finalize changes to valuation of E/M codes. Rather, the agency postponed these changes to 2021, at which point CMS will collapse E/M office/outpatient visit levels 2, 3, and 4 into a single payment rate and will allow for E/M documentation based on medical decision making or time spent providing a service or on the current 1995/1997 guidelines.
CMS also eliminated the requirement that teaching physicians document their participation in the review and direction of services provided to each patient. Such participation may instead be noted in the medical record by a resident, nurse, or other clinical staff. CMS also finalized the valuation for a number of individual surgical procedures, including those services related to fine needle aspiration, diagnostic proctosigmoidoscopy procedures, and removal of intraperitoneal catheters, to reflect recommendations made by the American Medical Association/Specialty Society RVS Update Committee.
The final rule is available for public review, along with a fact sheet.
Deadline Approaches for Funding Parts of Federal Government
Negotiations over appropriations for several major federal agencies is currently ensnared in a debate on funding for the construction of the President’s proposed wall along the U.S. southern border. Congress faces a December 7 deadline to avoid a shutdown and fund the Transportation, Housing and Urban Development (HUD), State, Interior, Agriculture (including the Food and Drug Administration (FDA)), Treasury, Commerce, Homeland Security, and Justice departments. Lawmakers have already passed the other five appropriations bills necessary to fund the rest of the federal government for FY 2019.
The Senate has reached a bipartisan agreement on $1.6 billion for border security funding, but House Republicans and the White House are demanding at least $5 billion. An official House-Senate conference on a four-bill package (H.R. 6147) has been underway for weeks. The legislation would combine Interior-Environment, Financial Services, Agriculture- FDA, and Transportation-HUD.
Due to the recent passing of the late President George H.W. Bush, Congress passed a short-term continuing resolution to extend the deadline before Christmas recess.
Oklahoma Limits to Opioid Prescriptions
Effective November 1, the state of Oklahoma will require physicians to limit initial opioid prescriptions to seven days. Under a new law, Oklahoma will also require doctors to participate in educational training in an effort to keep prescribers up to date with the latest information on opioids. When physicians apply for a license renewal, they will be required to receive no less than one hour of education in pain management, opioid use, or addiction each year before completing their application.
Committee Leaders Reveal Agendas for 2019
Representative Frank Pallone (D-N.J.), who is in line to become the chairman of the House Energy and Commerce Committee for the 116th Congress, stated last week that his top priorities will be allowing Medicare to negotiate drug prices and speeding the approval of less-expensive generic drugs. Pallone noted his support for the CREATES Act. CREATES would prohibit alleged tactics used by branded drug companies that prevent or delay generic competition from coming to market.
Representative Anna Eshoo (D-Calif.) announced her bid for chairmanship of the Health Subcommittee last week. Her priorities would include strengthening health insurance consumer protections, reducing the cost of health care and prescription drugs, and strengthening the Medicare and Medicaid programs.
Representative Richard Neal (D-Mass.), who is set to chair the House ways and Means Committee next Congress, has said that his number one priority for the panel will be a vote on a bill to reinforce the ACA’s protections for preexisting conditions.
Senator Chuck Grassley (R-Iowa) announced his decision to step down as chairman of the Senate Judiciary Committee, a post he has held since 2015, to lead the Senate Finance Committee. Grassley has said that he is looking forward to working on economic issues and reforming health care. Sen. Lindsey Graham (R-S.C.) is expected to be elected to lead the Judiciary Committee.
Attorney Jeff Sessions Resigns
Attorney General Jeff Sessions resigned at the request of President Trump. Sessions’ departure calls into question the status of the probe led by Special Counsel Robert Mueller. The President had frequently criticized Sessions in recent months for recusing himself from the ongoing investigation into Russian interference in the 2016 presidential campaign. Matt Whitaker, Chief of Staff at the Department of Justice (DOJ), has been named Acting Attorney General.
Senate Push for Stronger E-Cig Regulations
Fifteen Senate Democrats have written to the FDA requesting that the agency remove some flavors of e-cigarettes that have been proven particularly appealing to teenagers. Last month, FDA Commissioner Scott Gottlieb announced that e-cigarette companies have 60 days to develop a plan to combat teen use of their products.
The lawmakers seek even more aggressive action, arguing that they are “unconvinced that voluntary, self-policing by e-cigarette companies will be sufficient.” They urge the FDA to require manufacturers to “remove all kid-appealing flavored e-cigarette products from the market unless or until manufacturers can demonstrate that these flavors will benefit public health and will not attract children to begin using these addictive products.”
2018 Midterm Elections
The midterm elections saw Democratic success in gaining a majority in the House of Representatives, while the GOP slightly strengthened its hold on the Senate. Polling indicated that health care was one of the most important policy issues for voters in this election, with Republicans warning against the Medicare-for-All policy being touted in liberal-leaning districts, and Democrats underscoring their promise to defend protections for pre-existing conditions.