Regulatory Relief Coalition

While 2020 is a year that most people want to forget, the American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS) made significant strides in accomplishing its legislative and regulatory agenda, thus ensuring that neurosurgical patients continue to have timely access to quality care. Following are some highlights of these advocacy efforts.

Congress Prevents Steep Medicare Cuts

On Jan. 1, the Centers for Medicare & Medicaid (CMS) implemented the new CPT guidelines to report office and outpatient visits based on either medical decision making or physician time. These evaluation and management (E/M) services are valued in line with the AMA/Specialty Society RVS Update Committee (RUC) recommendations. Unfortunately, to comply with Medicare’s budget neutrality requirement, any increases must be offset by corresponding decreases, and CMS estimated that the 2021 policies would increase Medicare spending by approximately $10.6 billion. This necessitated significant cuts for many specialties, including an overall 6-7% payment cut for neurosurgery.

Faced with these steep Medicare payment cuts (and potential future cuts to the 10- and 90-day global surgical codes), in June 2020, the AANS and the CNS — with significant funding support from the Council of State Neurosurgical Societies and the Section on Disorders of the Spine and Peripheral Nerves — along with 10 other national surgical associations, founded the Surgical Care Coalition (SCC). The SCC launched a targeted, multi-faceted advocacy and public relations campaign to prevent these cuts. Specifically, the SCC advocated that Congress adopt legislation that would:

• Increase the global surgery code values;
• Halt implementation of the G2211 add-on code for complex E/M visits; and
• Prevent any additional cuts resulting from the new E/M payment policies.

Working with the SCC and other physician and allied health professional organizations, the AANS and the CNS successfully advocated for legislation to prevent these cuts. On Dec. 27, 2020, President Donald J. Trump signed the Consolidated Appropriations Act, 2021 (H.R. 133) into law (P.L. 116-260) — a massive omnibus spending bill that includes nearly $900 billion for coronavirus relief and an additional $1.4 trillion spending package to fund the federal government through the end of the Fiscal Year 2021. Specifically, the legislation:

• Prevents steep Medicare cuts by earmarking $3 billion to help offset the budget- neutrality adjustment and by delaying for three years the new G2211 add-on code for certain complex office visits;
• Extends the moratorium on the 2% Medicare payment sequester for an additional three months through March 2021, allocating $3 billion for this purpose;
• Increases payments for the work component of the MPFS in areas where labor cost is determined to be lower than the national average through Dec. 31, 2023; and
• Temporarily freezes alternative payment model (APM) payment incentive thresholds for two years, allowing more physicians to qualify for the 5% APM bonus payments.

As a result of this combined relief, overall, neurosurgeons should not experience any Medicare payment cuts (although the specific impact will depend on the mix of services provided) in 2021.

However, our work is not complete. The surgical community will continue to advocate for CMS to adjust the 10- and 90-day global codes to reflect the increased values of the E/M portion of these codes. In that regard, on Dec. 1, Sen. Rand Paul, MD, (R-Ky.) introduced S. 4932, the “Medicare Reimbursement Equity Act.” If enacted, this legislation would require CMS to value the E/M portion of the global codes equal to the stand-alone E/M codes.

Progress Made in Reforming Prior Authorization

For the past two years, the AANS and the CNS have been tireless in their efforts to reform prior authorization in the Medicare Advantage (MA) program. Significant progress has been made, setting the stage for reforms in the coming year. Neurosurgery-backed legislation — the “Improving Seniors’ Timely Access to Care Act” (S. 5044 / H.R. 3107) — garnered overwhelming bipartisan support from nearly 300 members of Congress. If enacted, this bill would reform the use of prior authorization in Medicare Advantage (MA) through a streamlined and standardized process that focuses on increased transparency and accountability. The bill reflects a neurosurgery-supported consensus statement on prior authorization, developed by leading national organizations representing physicians, hospitals and health plans.

Specifically, the legislation directs the Secretary of the U.S. Department of Health and Human Services to:

• Establish a real-time, electronic prior authorization process;
• Minimize the use of prior authorization for routinely approved services;
• Ensure prior authorization requests are reviewed by qualified medical personnel; and
• Require MA plans to report on their use of prior authorization, including delay and denial rates.

This legislation will be reintroduced in the 117^th Congress. More information is available from the Regulatory Relief Coalition, of which the AANS and the CNS are founding members.

Protecting Patients from Surprise Medical Bills

The AANS and the CNS have been advocating for federal legislation to protect patients from unanticipated medical bills (otherwise known as “surprise” medical bills) while at the same time providing for a fair process for resolving payment disputes. Organized neurosurgery adopted a set of principles for a balanced solution to the problem. After more than two years of sustained advocacy, Congress incorporated into the Consolidated Appropriations Act, 2021 (P.L. 116-260) the “No Surprises Act,” which applies to federally-regulated plans, including ERISA plans, and does not preempt state laws governing state-regulated health plans. The provisions of the new law, which will be implemented on Jan. 1, 2022, meet many of organized neurosurgery’s principles and include the following elements:

• Patients are protected from surprise medical bills and only responsible for the in-network cost-sharing amount for out-of-network (OON) emergency services and other services provided in in-network facilities.
• Insurers are required to make initial payments directly to OON providers for OON services within 30 days. The law does not define the payment rate.
• If a provider objects to the payment, they may proceed to an independent dispute resolution (IDR) process.
• The IDR process is baseball-style arbitration. There is no negotiation. Both parties submit a payment rate, and the arbiter selects one.
• The arbiter may consider several factors, including median in-network rates and any other information the provider or health plan submits, other than billed charges, Medicare, Medicaid, CHIP and Tricare rates.

The AANS and the CNS will work with the incoming Biden Administration on the implementing regulations.

Supporting Quality Resident Training and Education

An appropriate supply of well-educated and trained physicians — both in specialty and primary care — is essential to ensure access to quality health care services for all Americans. Looming physician shortages — by 2033, the nation faces a physician shortfall of between 54,100 to 139,000 — threaten this access to care. To help ease this shortage and support quality resident training and education, the AANS and the CNS successfully advocated for legislation to increase the number of Medicare-sponsored residency training positions. The “Resident Physician Shortage Reduction Act” (S. 348 / H.R. 1763), with a total of 242 bipartisan cosponsors, would increase the number of available medical residency positions by 15,000 over five years.

While falling short of what is necessary to adequately address the looming physician workforce shortage, the Consolidated Appropriations Act, 2021 (P.L. 116-260) did provide funding for 1,000 additional Medicare-funded graduate medical education (GME) residency positions. The AANS and the CNS will build on this down payment by advocating for additional funding in the 117^th Congress.

COVID-19 and the Global Pandemic

On March 13, 2020, President Trump issued an executive order declaring the COVID-19 pandemic a national emergency. Shortly after that, neurosurgical practices began temporarily suspending non-emergency neurosurgical cases and experiencing significant cash-flow challenges. Working with multiple coalitions of physician organizations in Washington, D.C., the AANS and the CNS stepped into high gear to advocate for financial and other relief for neurosurgeons.

Congress passed several COVID-19-related bills, which included vital assistance for physicians and hospitals. The Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748) and the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266) established and funded the Paycheck Protection Program (PPP), allowing neurosurgical practices to receive grants to help keep their employees paid and their practices afloat. The Consolidated Appropriations Act, 2021 (P.L. 116-260) expanded current PPP legislation, adding $284 billion in funding for the PPP and extending it through March 31, 2021. Legislation also allocated more than $175 billion to the Public Health and Social Services Emergency Fund, helping with bridge funding for neurosurgeons and the hospitals in which they practice.

The expansion of telemedicine, and increased payments for telemedicine services, helped neurosurgeons continue to take care of their patients remotely and will likely be an integral part of neurosurgical practices in the future. Finally, the AANS and the CNS led efforts to secure COVID-19-related medical liability protections. The CARES Act included liability protections for physicians rendering volunteer medical services during the COVID-19 public health emergency. In addition, Reps. Phil Roe, MD, (R-Tenn.) and Lou Correa (D-Calif.) introduced H.R. 7059, the Coronavirus Provider Protection Act, and Sens. John Cornyn (R-Texas) and Mitch McConnell (R-Ky.) introduced S. 4317, the “SAFE TO WORK Act.” Both bills would provide physicians protections from certain COVID-19-related lawsuits. The AANS and the CNS will continue to advocate for the adoption of COVID-19 related liability protections in the 117^th Congress.

Turning the Corner to 2021

The inauguration of Joseph R. Biden, Jr. as the 46^th president of the United States will bring with it a new administration, along with changes in the 117^th Congress, mean new health care policy priorities will be front and center on the national legislative and regulatory agenda. While these changes present organized neurosurgery with new opportunities to continue advocating for sound health policy that improves patient care, 2020 will go down as a year in which the AANS and the CNS made significant positive strides for neurosurgeons and patients alike.

Katie O. Orrico, Esq.
AANS/CNS Washington Office
Washington, DC