COVID-19 Medical Liability Protection Legislation Introduced
As part of the ongoing efforts to provide health care providers with protections from unfounded lawsuits, the Health Coalition on Liability and Access (HCLA) — of which the Congress of Neurological Surgeons (CNS) and the American Association of Neurological Surgeons (AANS) serve as vice-chair — has joined a chorus of stakeholders in calling on Congress to pass legislation to safeguard medical professionals, and the facilities in which they practice, from COVID-19-related medical liability lawsuits. Examples of increased liability risk that providers are confronting because of COVID-19 include:
- Suspensions of elective in-person visits and delays in treatment for patients with symptoms unrelated to COVID-19;
- Workforce shortages that forced physicians to provide care outside of their general practice area;
- Shortages of equipment — such as ventilators — that resulted in providers having to ration care; and
- Delayed or inaccurate diagnosis due to inadequate testing supplies.
On May 7, bipartisan legislation that would provide targeted relief from these lawsuits — H.R. 3021, the Coronavirus Provider Protection Act — was introduced in the House of Representatives by Reps. Lou Correa (D-Calif.) and Michael Burgess, MD, (R-Texas).
Click here to read HCLA’s letter to Reps. Correa and Burgess, here for HCLA’s release supporting H.R. 3021 and here for the sponsors’ press release.
Prior Authorization Legislation Reintroduced in the House
On May 13, H.R. 3173, the Improving Seniors’ Timely Access to Care Act was reintroduced in the U.S. House of Representatives. Sponsored by Reps. Suzan DelBene (D-Wash.), Mike Kelly (R-Pa.), Ami Bera, MD, (D-Calif.) and Larry Bucshon, MD, (R-Ind.), this bipartisan legislation would protect patients in Medicare Advantage from unnecessary prior authorization practices that limit their timely access to medically necessary care. Similar legislation (H.R. 3107) introduced in 2019 garnered 280 co-sponsors, making it one of the most evenly bipartisan and widely supported health care bills in the 116th Congress. The U.S. Senate is expected to introduce the same legislation in the near future.
The CNS and the AANS issued a press release and sent the sponsors a letter endorsing the bill to mark the reintroduction. In addition, the bill’s sponsors recognized the neurosurgical groups’ support in their press release. Finally, the Regulatory Relief Coalition also featured neurosurgery in its press release, stating:
“Prior Authorization burdens are more than burdens. They can be dangerous barriers to necessary patient care,” said John K. Ratliff, MD, a practicing neurosurgeon at Stanford University. “The COVID-19 crisis has exacerbated the need to reform prior authorizations as our patients are facing new obstacles to getting the care they need.” He added, “Some of my patients have already waited months for necessary surgeries because of the COVID crisis.” Ratliff concluded, “The legislation’s common-sense oversight and transparency of prior authorization should now be a national imperative.”
Click here for more information about the legislation.
Neurosurgery Joins Coalition in Urging Policymakers to Fund Additional GME Slots
On May 18, the CNS and the AANS joined the Graduate Medical Education (GME) Advocacy Coalition in sending a letter to President Joseph R. Biden, Jr., House Speaker Nancy Pelosi (D-Calif.), Senate Majority Leader Charles Schumer (D-N.Y.), Senate Minority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) expressing support for including additional Medicare-supported GME positions in the upcoming infrastructure package.
The Resident Physician Shortage Reduction Act (S. 834/H.R. 2256) was introduced in the Senate by Sens. Robert Menendez (D-N.J.), John Boozman, OD, (R-Ark.) and Charles Schumer (D-N.Y.) and in the House by Reps. Terri Sewell (D-Ark.), John Katko (R-N.Y.), Thomas Suozzi (D-N.Y.) and Rodney Davis (R-Ill.). This legislation would provide 14,000 new Medicare-funded graduate medical education (GME) slots over seven years. The bill builds on the GME provisions included in the Consolidated Appropriations Act, 2021 (P.L. 116-260), which provided 1,000 new Medicare-funded GME positions.
In determining which hospitals would receive slots, the Centers for Medicare & Medicaid Services (CMS) would consider the likelihood of a teaching hospital filling positions and would be required to distribute at least 10% of the positions in each of the following categories:
- Hospitals in rural areas;
- Hospitals training over their current GME caps;
- Hospitals in states with new medical schools or new branch campuses; and
- Hospitals that serve areas designated as health professional shortage areas.
Click here to read the letter.
Neurosurgery Urges House and Senate to Fund Military-Civilian Trauma Program
On May 11, the CNS and the AANS submitted a statement for the record to the U.S. House Appropriations Labor, Health and Human Services, Education and Related Agencies (L-HHS-E) Subcommittee requesting $11.5 million in FY 2022 funding for the Military and Civilian Partnership for the Trauma Readiness Grant Program. Initially known as MISSION ZERO, this program was signed into law as a part of (H.R. 269/S. 1379), the Pandemic and All-Hazards Preparedness and Advancing Innovation Act (P.L. 116-22) and authorizes funding to ensure trauma care readiness by integrating military trauma care providers into civilian trauma centers. The neurosurgical societies also submitted a similar statement to the U.S. Senate Appropriations L-HHS-E Subcommittee.
In addition, Reps. Kathy Castor (R-Fla.) and Michael Burgess, MD, (R-Texas) championed a congressional sign-on letter to House appropriators supporting funding for the MISSION ZERO program. Thirty-four members of Congress signed the letter.
CNS and AANS Support Bill to Fund Pediatric Research
On May 11, the CNS and the AANS sent letters supporting the Gabriella Miller Kids First Research Act 2.0 (S. 1521/H.R. 623). Introduced in the Senate by Sen. Tim Kaine (D-Va.) and in the House by Rep. Jennifer Wexton (D-Va.), this legislation would expand funding to support research on pediatric diseases and disorders at the National Institutes of Health (NIH).
Click here to read the letter to the Senate and here to read the letter to the House.
Neurosurgery Endorses NOPAIN Act
On May 17, the CNS, the AANS, the CNS/AANS Joint Section on Pain and the CNS/AANS Joint Section on Disorders of the Spine and Peripheral Nerves endorsed H.R. 3259, the Non-Opioids Prevent Addiction in the Nation (NOPAIN) Act. Sponsored by Reps. Terri Sewell (D-Ala.), David McKinley (R-W.V.), Ann Kuster (D-N.H.) and Brian Fitzpatrick (R-Pa.), the NOPAIN Act would require Medicare to provide adequate facility reimbursement for innovative and effective alternatives to opioids. In the letter, the neurosurgical groups pointed out that neurosurgeons are on the cutting edge of innovative, non-opioid treatments for chronic pain and acute postoperative pain. In March, the neurosurgical groups endorsed the Senate version of this legislation.
Click here to read neurosurgery’s letter of support.
CNS and AANS Urge Congress to Invest in Research Infrastructure
On May 19, the CNS and the AANS joined the Ad Hoc Group for Medical Research in sending a letter to Senate Majority Leader Charles Schumer (D-N.Y.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker Nancy Pelosi (D-Calif.), House Minority Leader Kevin McCarthy (R-Calif.) and House Majority Leader Steny Hoyer (D-Md.) urging Congress to invest in research infrastructure. Additionally, the groups support emergency funding for federal research agencies as outlined in the bipartisan Research Investment to Spark the Economy (RISE) Act (S. 289/H.R. 869), including $10 billion for NIH.
Click here to read the letter.
Neurosurgery Supports Medicare Patient Empowerment Act
On May 19, the CNS and the AANS expressed their support for the Medicare Patient Empowerment Act (S. 826/H.R. 3322). Sponsored in the Senate by Sens. Rand Paul, MD, (R-Ky.) and Lisa Murkowski (R-Alaska) and in the House by Rep. Pete Sessions (R-Texas), this legislation would ensure that Medicare beneficiaries can seek care from the physician of their choice by allowing patients and providers to privately contract for Medicare-covered services without penalty. Under current law, Medicare beneficiaries that choose to see physicians who do not accept Medicare must pay the physician’s charge entirely out of personal funds. In addition, physicians who privately contract must opt out of the Medicare program for two years.
Click here to read the letter to the Senate and here to read the letter to the House.
Tell Your Representative about the Need for Prior Authorization Reform
To bring needed transparency and oversight to the Medicare Advantage (MA) program, the CNS and the AANS are urging Congress to adopt H.R. 3173, the Improving Seniors’ Timely Access to Care Act. If passed, this legislation would reduce prior authorization hassles and help curb unnecessary delays for patients covered by MA plans. Please contact Congress and ask your Representative to co-sponsor H.R. 3173.
Click here to go to neurosurgery’s Advocacy Action Center to send an email to your Representative asking them to co-sponsor the Improving Seniors’ Timely Access to Care Act. A sample message, which can be personalized, is provided.
Contact Congress to Support COVID-19-Related Liability Protections for Health Care Professionals
The Coronavirus Provider Protection Act (H.R. 3021) would protect health care professionals and the facilities in which they practice from the serious threat of COVID-19-related liability lawsuits. This bipartisan legislation would provide limited protections to help ensure that physicians who have served on the front lines of the coronavirus pandemic are not drawn into unwarranted lawsuits resulting from the selfless care they have provided. While some states have passed similar protections, a federal solution is needed to protect these vulnerable providers. Please contact Congress and ask your Representative to co-sponsor H.R. 3021.
Click here to go to neurosurgery’s Advocacy Action Center to send an email to your U.S. Representative asking them to co-sponsor H.R. 3021. A sample message, which can be personalized, is provided.
Contact Congress to Expand Access to Telehealth Services
The Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act (S. 1512/H.R.2903) would build on recent progress and permanently expand access to telehealth services, removing outdated restrictions for providing remote health care services. Americans have benefited significantly from this expansion of telehealth and have come to rely on its availability. Congress should, therefore, expand access to telehealth services permanently so that telehealth remains an option for all Medicare beneficiaries both now and after the pandemic. Please contact Congress and ask your Senators and Representatives to co-sponsor the CONNECT for Health Act.
Click here to go to neurosurgery’s Advocacy Action Center to send an email to your U.S. Senators and Representative asking them to co-sponsor CONNECT for Health Act. A sample message, which can be personalized, is provided.
Coding and Reimbursement
CMS Adds Pain Procedures to RAC and OIG Audits
On May 11, CMS posted a notice indicating its plans to conduct Recovery Audit Contractor (RAC) audits for medical necessity for spinal cord neurostimulator procedures reported with CPT codes 63685, 63650 and 63655. A RAC’s primary task is to review Medicare claims data and supporting medical documentation to determine if a claim was appropriately paid. Each RAC is responsible for identifying overpayments and underpayments in a geographically defined area. More information on the RAC audit process is available here.
In addition, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently announced that it would prepare a report to be released in 2022, examining Medicare Part B payments for spinal pain management services. Services under review include facet joint injections, facet joint denervation sessions, lumbar epidural injections and trigger point injections. The OIG will determine if the services billed by physicians complied with Medicare policies.
OIG Issues Advisory Opinion on Neurosurgeons’ Investment in ASC
On April 26, the HHS OIG issued an Advisory Opinion related to neurosurgeons investing in their own ambulatory surgery centers (ASC). OIG Advisory Opinion No. 21-02 analyzes a proposed arrangement to determine whether it is appropriate under the Federal anti-kickback statute.
2021 MIPS Exception Applications Now Available
Applications are now open for the Promoting Interoperability Performance Category Hardship Exception and Extreme and Uncontrollable Circumstances Exception for the 2021 Merit-Based Incentive Payment System (MIPS) performance year. CMS again offers clinicians the opportunity to request re-weighting of all four MIPS performance categories in 2021 due to the current COVID-19 public health emergency (PHE). Applications must be submitted to CMS by Dec. 31. Additional information is available in two new CMS resource guides:
CMS Announces Re-weighting of 2020 MIPS Cost Performance Category
Recently, CMS announced that due to the impact of the COVID-19 PHE, it would re-weight the cost performance category from 15% to 0% for the 2020 MIPS performance year. The 15% cost performance category weight will be redistributed to other performance categories per previously established policies. CMS has found that the volume of data available to calculate scores for cost measures has significantly decreased overall. Therefore, the agency cannot reliably calculate scores that would adequately capture and reflect the performance of MIPS-eligible clinicians. Clinicians do not need to take any action because the cost performance category relies on administrative claims data.
Senate Confirms New CMS Administrator
On May 25, the U.S. Senate confirmed — by a vote of 55-44 — Chiquita Brooks-LaSure to serve as the CMS administrator. CMS is responsible for running the Medicare and Medicaid programs. Brooks-LaSure is an experienced health policy professional who worked in HHS during the Obama administration to implement the Affordable Care Act (ACA). She also served as a professional staff member of the House Ways and Means Committee, where she assisted with the passage of several health care laws, including the ACA and the Medicare Improvements for Patients and Providers Act of 2008.
In speaking for the Surgical Care Coalition — of which the CNS and the AANS are founding members — CNS/AANS Washington Committee chair, John K. Ratliff, MD, FAANS, noted, “Chiquita Brooks-LaSure has a track record of addressing our nation’s most significant health care challenges. Her deep experience and commitment to improving health care on behalf of patients are needed as our country faces many significant health care policy decisions during the COVID-19 pandemic and beyond.”
Neurosurgeon Nominated to Serve on Mississippi Board of Health
Mississippi Gov. Tate Reeves recently nominated John D. Davis, IV, MD, FAANS, to serve on the Mississippi State Board of Health. Dr. Davis is a member of the CNS/AANS Washington Committee. In accepting this nomination, Dr. Davis stated, “It is truly a special opportunity and unique honor to serve on this Board,” and that he is “committed to sound, science-based policy with efficient execution” to address “important matters that impact the health and lives of Mississippians.”
Most Physicians No Longer in Private Practice
According to a new study from the American Medical Association (AMA), for the first time, most physicians worked outside of physician-owned practices in 2020, continuing the trend of physicians gravitating toward hospital employment. The Physician Practice Benchmark Survey found that 49.1% of physicians worked in physician-owned practices in 2020, a drop of almost 5% from 2018 when that figure was 54%. It is 11% lower than in 2012, when 60% of physicians worked in physician-owned practices. Physicians’ age and specialty affect their likelihood of choosing employment or independent practice. Among physicians 55 and older, 55% worked in private practice last year. However, only one-third of physicians under 40 did the same.
Report on U.S. Health Care Spending Published
The AMA has released a new report providing a detailed look at U.S. health care spending through 2019. According to the AMA report, “National Health Expenditures, 2019: Steady Spending Growth Despite Increases in Personal Health Care Expenditures in Advance of the Pandemic,” health spending increased to nearly 18% of the U.S. gross domestic product (GDP). Specifically, the report found that:
- Health spending was 17.7% of GDP in 2019 and increased by 4.6% to $3.8 trillion ($11,582 per capita);
- Spending for hospital care (6.2%) and prescription drugs (5.7%) grew faster than physician services (4.2%);
- Spending growth in Medicare (6.7%) and out-of-pocket payments (4.6%) reached their highest rates in the last decade, while private health insurance (3.7%) and Medicaid (2.9%) were on a downswing;
- The federal government financed the largest share of health spending (29.0%) in 2019 as it has since 2015; households were the second-largest financiers (28.4%); and
- Preliminary estimates suggest an unprecedented decline in 2020 national health spending driven by decreases in spending for most personal health expenditure categories — including a 7.0% decline in hospital care spending and 4.2% decline in physician and clinical services spending.
Click here to read the report.
Neurosurgeon Publishes Op-Ed on Prior Authorization
On April 29, The American Spectator published an op-ed titled “Medicare for All, Surgery for Some,” by Richard Menger, MD, MPA. The piece highlights the recent CMS announcement to begin prior authorization for specific procedures, including spine surgery, starting July 1. On May 25, Neurosurgery Blog published a cross-post to amplify the message.
Neurosurgeon Featured in Article about Spine Surgery
On May 13, Becker’s Spine Review published an article titled “The biggest opportunities in spine from 9 surgeons.” In the article, nine spine surgeons discuss the most significant opportunities in the field today, including innovations in biologic treatments, physician advocacy and migrating cases to the outpatient setting. Neurosurgeon Brian R. Gantwerker, MD, FAANS, stated, “I think more surgeons need to be involved in advocacy. Instead of complaining about how things are, or “going with the flow,” let your congresspeople and senators know how things are going. So many folks in advocacy have no idea why so many doctors are not more involved.”
Neurosurgery Featured in Prior Authorization Article
On May 13, the CNS and the AANS issued a press release applauding the reintroduction of legislation to streamline prior authorization in Medicare. Subsequently, Inside Health Policy published an article on May 14 titled “Providers Applaud Bill To Establish Electronic Prior Auth System For MA.” The piece featured CNS/AANS Washington Committee chair John K. Ratliff, MD, FAANS, who noted that the neurosurgical groups “look forward to working with Congress and the Biden administration to pass the bipartisan bill.”
Neurosurgery Blog Continues Neurosurgery Match Series
As impactful as the COVID-19 pandemic has been, the effect on neurosurgical practice has been similarly profound — from shifting outpatient care towards a more remote, telehealth presence to restricting non-urgent surgical case volume. Perhaps the most significant, potentially long-lasting effect of the pandemic on the neurosurgical profession has been the transition from medical student to resident physician.
To examine the topic, Neurosurgery Blog launched a series highlighting challenges in the application process experienced by neurosurgical programs, medical students and others in organized neurosurgery due to COVID-19 and relates the innovative responses during this critical time. Read the complete series at:
Neurosurgery Blog Features Guest Blog Posts from AMA Board Chair and ACS Leader
Neurosurgery Blog continues to publish items of importance to the neurosurgical community. Russell W.H. Kridel, MD, FACS, highlighted the results of an AMA survey of practicing physicians measuring the impact of prior authorization requirements on patients and physicians. Click here to read his guest blog post titled “Prior Authorization Burdens March On, Even During COVID-19.”
May was National Trauma Awareness Month. John H. Armstrong, MD, FACS, FCCP, a leader from the American College of Surgeons (ACS), authored a guest blog post titled “It’s Time to Fund MISSION ZERO.” Fully funding MISSION ZERO will help improve injury care and public health response in our communities, states and nation, inclusive of our military health system.
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