Archive for 2022

POTENTIAL PART 2 CHANGES ON THE HORIZON

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POTENTIAL PART 2 CHANGES ON THE HORIZON

by Lindsey Phillips with Burr & Forman, LLP

On November 28, 2022 the Office for Civil Rights (“OCR”) at the United States Department of Health and Human Services (“HHS”) announced proposed changes to the regulations at 42 CFR Part 2 (“Part 2”). Part 2 protects the confidentiality of medical records related to treatment for substance abuse disorders and was first promulgated in 1987 to address concerns that relaxed access to these types of records would promote fear of discrimination and deter individuals from seeking help and treatment for substance abuse disorders. While the rationale supporting Part 2 is good in theory, it has presented practical challenges for patients and healthcare providers alike because its protections and provisions often conflict those afforded by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and other medical record privacy laws.

The proposed changes, which are set out in the Notice of Proposed Rulemaking (“NPRM”), are part of a broader initiative to promote value-based care, enable better coordination among healthcare providers, facilitate patient autonomy and engagement, and protect the privacy of patients’ medical records. Upon announcement of the NPRM, Secretary Xavier Becerra noted that “varying requirements of privacy laws can slow treatment, inhibit care, and perpetuate negative stereotypes about people facing substance use challenges.” He went on to say that the changes proposed in the NPRM would “improve coordination of care for patients receiving treatment while strengthening critical privacy protections to help ensure individuals do not forego life-saving care due to concerns about records disclosure.” OCR’s Director expressed similar sentiments and further noted that the HHS “understands how critical it is for patients to better align the Part 2 rules and program with HIPAA” and that the changes would decrease the burdens on both patients and providers “while protecting confidentiality of treatment records.”

This article briefly identifies some of the proposed changes contained in the NPRM. The proposed changes are loosely separated into two categories. The first category outlines the proposed changes that appear to relax the current provisions found in Part 2; the second category outlines the proposed changes that purport to create protections and enforcement mechanisms for violations of Part 2.

Proposed Changes Relaxing Current Requirements Found in Part 2

  • Permitting Part 2 programs to use and disclose Part 2 records based on a single prior consent signed by the patient for all future uses and disclosures for treatment, payment, and health care operations;
  • Permitting the redisclosure of Part 2 records as permitted by the HIPAA Privacy Rule by recipients that are Part 2 programs, covered entities under HIPAA, and business associates under HIPAA; and
  • Modifying the Part 2 confidentiality notice requirements to mirror those found in HIPAA.


Proposed Changes Creating Patient Protections and Enforcement Procedures

  • Creating two patient rights that parallel those afforded to patients under HIPAA:
    • The right to an accounting of disclosures, and
  • The right to request restrictions on disclosures for treatment, payment, and health care operations;
  • Requiring disclosures to the Secretary for enforcement;
  • Applying HIPAA penalties to Part 2 violations;
  • Requiring Part 2 programs to establish a process for receipt of complaints of Part 2 violations; and
  • Prohibiting Part 2 programs from requiring patients to waive the right to file a complaint as a condition of eligibility and providing treatment

While HHS has stated that the proposed modifications will not only increase coordination among providers but also afford more protections for patients, the proposed changes do present some concerns and tensions among stakeholders. Accordingly, all stakeholders are encouraged to participate in the public comment and feedback process. Stakeholders have 60 days after the publication of the NPRM in the Federal Register to provide commentary. The NPRM was published in the Federal Register on December 2, 2022, so stakeholders have until January 31, 2023 to provide comments. 

Lindsey Phillips is an associate at Burr & Forman LLP practicing exclusively in the firm’s Healthcare Industry Group. Lindsey may be reached by telephone at (205) 458-5370 or by e-mail at lphillips@burr.com.

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MAKING SURE YOU’RE NOT SURPRISED BY THE NO SURPRISES ACT’S INDEPENDENT DISPUTE RESOLUTION PROGRAM

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MAKING SURE YOU’RE NOT SURPRISED BY THE NO SURPRISES ACT’S INDEPENDENT DISPUTE RESOLUTION PROGRAM

by Lindsey Phillips with Burr & Forman, LLP

The No Surprises Act (the “Act”), which became effective on January 1, 2022, was enacted in an effort to provide uniform protections against surprise medical bills. Surprise medical bills often arise when patients unknowingly receive medical care from out-of-network healthcare providers and are billed for the difference between the amount a patient’s health plan would pay for in-network providers and the full amount charged for the medical services received by the patient.

The Act generally prohibits surprise billing in three main categories: 1) when emergency services are provided by out-of-network providers or emergency facilities; 2) when non-emergency services are provided by out-of-network providers at in-network health care facility visits; and 3) when air ambulance services are provided. In these three instances, providers generally are prohibited from billing a patient for an amount that exceeds the in-network limit on cost-sharing.

So, in light of the prohibition on surprise billing, how can out-of-network healthcare providers recover payment for their services? The Act establishes a mandatory Independent Dispute Resolution (IDR) program, that was revised in August 2022, by which out-of-network providers can attempt to receive payment from health plans and insurers for the services they have provided.

The first step is for the provider and health plan or insurer to negotiate a reasonable payment amount. When there is disagreement about the amount owed by the plan or insurer to the provider, either party can initiate an open negotiation period by issuing a notice to the other party within 30 days after the provider’s receipt of the insurer or plan’s initial payment or denial notice. The notice must contain certain information, which includes, but is not limited to, information regarding the services provided and a proposed out-of-network rate for the services and items provided.  Once this notice is sent, the parties have 30 days to reach an agreement on the payment amount owed to the provider. If the parties reach an agreement regarding the payment amount, then the plan or insurer must remit the agreed-upon payment to the provider within 30 days of the agreement.

If the parties are unable to reach an agreement on their own, then either party can initiate the Act’s IDR program by providing notice to the other party and the Department of Health and Human Services (or the Department of Labor or Department of Treasury)[1]. The applicable Department will then provide a list of certified IDR entities. The parties will then have three business days to jointly select a certified IDR entity. If the parties are unable to agree on an IDR entity, then the applicable Department will randomly select an IDR entity.

After an IDR entity is selected, each party must submit a proposed payment amount along with supporting documentation for its proposal. The IDR entity will then select the offer that it determines best represents the value of the services provided. In making this determination, the IDR entity should consider the information submitted by the parties, the Qualifying Payment Amount for the applicable year for similar services, and other factors including, but not limited to, the provider’s experience, quality of outcome measurements, and the complexity of the services provided. The IDR entity should also weigh the credibility of the information received. Once the IDR entity reaches a determination, it must issue a written decision that fully explains the basis for its decision, including the information it relied on in determining which amount best represented the value of the services provided. Once the IDR entity renders its decision, the parties are required to comply with the IDR entity’s decision within 30 days.   

Lindsey Phillips is an associate at Burr & Forman LLP practicing exclusively in the firm’s Healthcare Industry Group. Lindsey may be reached at (205) 458-5370 or lphillips@burr.com.

[1] Oversight of the No Surprises Act’s provisions is conducted by either the Department of Health and Human Services, Department of Labor, or Department of Treasury depending on the nature of the plan, policy, and provider.

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Federal Cures Act “Information Blocking” Compliance Date Approaching

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Federal Cures Act “Information Blocking” Compliance Date Approaching

The 21st Century Cures Act (Cures Act), passed by Congress in 2016, included a provision in Title IV, Section 4004 against “information blocking,” defined in the Act as a practice or practices, “likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health information.”  The Act further required the Office of National Coordinator for Health Information Technology (ONC) and the Department of Health and Human Services (HHS) to promulgate rules (the rules) for enforcement on information blocking.  

The rules, which have been in effect since April 2021, apply the information blocking provisions of the Cures Act to “actors,” defined to include health care providers like physicians and hospitals, as well as health information exchanges and health information technology (HIT) developers or vendors.  They currently require physicians to make the following electronic health information, otherwise known as the United States Core Data for Operability, version 1 (USCDIv1) accessible to patients in the electronic health record with no delay:  Consultation notes, discharge summary notes, history and physical, imaging narratives, laboratory report narratives, pathology report narratives, procedure notes, and progress notes.  

On October 6, 2022, physicians and other actors will be required to provide patient access to all electronically maintained health records, with the exception of psychotherapy notes and information compiled in anticipation of litigation, to avoid charges of information blocking.  The rules further provide that by December 31, 2022, electronic health record systems must have updated technology to allow easier patient access to electronic health information.

Because HIT vendors are also considered actors and must comply with information blocking rules, physicians who are not yet in compliance or preparing for upcoming compliance dates should work with their HIT vendors to develop a compliance plan for this section of the Cures Act. They should also become familiar with exceptions provided in the rules where delays or denials of access are not considered information blocking.  Finally, physicians should be on the alert for notice from ONC and HHS on the penalties for health care providers for information blocking.  Potential penalties for HIT vendors and health information exchanges found to be participating in information blocking have already been determined by rule to include fines up to $1 million per violation. To date the potential penalties for health care providers found to be information blocking are “disincentives” to be determined by HHS using a formula and criteria not yet developed.

Resources for Physicians on Information Blocking:

https://www.healthit.gov/topic/information-blocking?options=2450b60a-e96a-4f4c-ab17-40aac81e40be

https://www.ama-assn.org/practice-management/digital/new-information-blocking-rules-what-doctors-should-know

Information Blocking
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Investing in Rural Medicine for the Future

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Investing in Rural Medicine for the Future

Investing in Rural Health Care in Alabama remained a top priority for the Medical Association this past Legislative Session and will be going forward.  Ensuring affordable, high quality and physician-led access to quality care for rural residents not only means a healthier Alabama, but is also a piece of the economic development puzzle for maintaining and improving communities throughout the State. Each year, the Medical Association supports funding for programs like the Rural Medical Scholars Program at the University of Alabama, Rural Medicine Program at Auburn University and the Board of Medical Scholarship Award (BMSA) which grants medical-school-scholarship-loans to pre-med students, medical students and resident physicians to help attract them to underserved parts of the State.    

The Rural Medical Scholars program works to recruit and assist Alabama college students from rural areas who want to become physicians and work in the state’s rural communities.  Since its founding in 1996, more than 200 students have participated in the Rural Medical Scholars Program, and 126 have completed medical school and residency. Of those, the vast majority practice in Alabama, in mostly rural areas, and 65% are primary care physicians.  As well, thanks to the leadership from both Governor Ivey and the Legislature, the Association was able to maintain the total amount for physician-student loans in 2023 via the BMSA at $1.9 million, establishing 8 new physicians in underserved parts of the state through medical school tuition loans.  

The Association also worked on crafting a long-overdue update to the existing rural physician tax credit.  Since its inception in 1993, many things have changed in rural Alabama and the current eligibility requirements are outdated.  The Association worked with the Alabama Department of Revenue on the bill and although it did not pass, much progress was made and the Association maintains updating the rural physician tax credit as a priority for next session.  

Most physicians who come from rural areas and/or begin their careers in rural areas usually stay and practice in those communities.  These programs remain one of the best mechanisms for expanding access to quality, physician-led care and help to attract and keep physicians in underserved communities.  As the Medical Association gears up for the 2023 regular session, the Association looks forward to working with the Legislature to increase access to quality care in rural communities throughout the state and grow the physician workforce in Alabama to better care for citizens. 

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Proposed 2023 physician pay schedule deepens Medicare’s instability

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Proposed 2023 physician pay schedule deepens Medicare’s instability

The Medical Association is working with the AMA and many national specialty societies to analyze and comment on CMS proposed 2023 fee schedule. The following article was prepared by the AMA and outlines efforts to address problems that have been identified with the proposed fee schedule:

After a thorough analysis, the AMA has weighed in with detailed comments (PDF) on the Centers for Medicare & Medicaid Services’ (CMS) proposed policies for the 2023 Medicare physician payment schedule.

The proposed 2023 Medicare physician payment schedule (PDF) shows the agency must work with Congress to avert budget-neutrality cuts and implement an inflationary update for doctors who now are in line to see a 4.42% pay cut in January.

“The AMA is deeply alarmed about the growing financial instability of the Medicare physician payment system due to a confluence of fiscal uncertainties physician practices face related to the ongoing pandemic, statutory payment cuts, lack of inflationary updates, and significant administrative barriers,” says the AMA’s comment letter to CMS.

“The payment system is on an unsustainable path that is jeopardizing patient access to physicians. The resulting discrepancy between what it costs to run a physician practice and actual payment, combined with the administrative and financial burden of participating in Medicare, is incentivizing market consolidation,” the letter adds.

The AMA is asking Congress to:

  • Extend the congressionally enacted 3% temporary increase in the Medicare fee schedule.
  • Provide relief for an additional 1.5% budget-neutrality cut that is planned for 2023.
  • End the statutory annual freeze and provide an inflation-based update for the coming year.
  • Waive the 4% pay-as-you-go sequester necessitated by passage of legislation unrelated to Medicare.

In addition, physicians are urging CMS to work with Congress to extend the 5% incentive payment physicians can earn for participating in an Advanced Alternative Payment Model. Congress also needs to extend the $500 million in funding for the “exceptional performance” payments that physicians can earn under the Merit-based Incentive Payment System (MIPS).

Earning theses bonuses in 2022 will affect payment adjustments in 2024. The CMS proposal does not include estimates for these incentives and bonuses in 2023 as they are set to expire under current law.

The lapse of these incentives, coupled with the 4.42% pay cut, threatens patient access to Medicare-participating doctors and undermines the sustainability of physician practices. The AMA is strongly advocating that Congress avert the significant conversion-factor cut. Instead, Congress should extend the 3% increase that is set by law to expire at the end of this year, prevent the additional 1.5% budget neutrality cut for 2023, and provide a positive update to account for inflation as measured by the Medicare Economic Index (MEI).

In nearly 100 pages of detailed comments, the AMA sets out its response to CMS proposed rule. Here are some key steps the AMA is advising CMS to take as it assembles the final version of the 2023 Medicare physician payment schedule.

The agency should:

Continue its current coverage and payment policies for telephone visits and audio-visual telehealth services until the joint Current Procedural Terminology®-RVS Update Committee (RUC) Telemedicine Office Visits Workgroup determines accurate coding and valuation, as needed, for office visits performed via audiovisual and audio-only modalities.

Pause consideration of other sources of cost data for use in the MEI until the AMA’s extensive effort to collect practice-cost data from physician practices is complete.

Apply the office E/M visit increases to the office visits, hospital visits and discharge-day management visits included in surgical global payment, as it has done historically.

Conduct a demonstration to determine the financial and operational efficiencies for Medicare patients with underlying medical conditions who require integral dental services as a condition of their covered, primary Medicare Part A service.

Separate the funding source to cover dental services from—and have no impact on—the Medicare physician payment schedule. 

Adopt the RUC’s recommended work relative value units and direct practice-expense inputs for vaccine administration services. The AMA supports CMS’ proposal to annually update the payment amount for administration of Part B preventive vaccines to account for changes in the cost of administering those vaccines.

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Discussions with Decision Makers: Representative Jeff Sorrells

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Discussions with Decision Makers: Representative Jeff Sorrells

Representative Sorrells is a member of the Alabama House of Representatives from the 87th District, serving since 2018. He is a member of the Republican party and serves on the House Health Committee. Rep. Sorrells was previously the mayor of Hartford, Alabama and is a vice president of the First National Bank of Hartford, Alabama.

What first prompted you to consider running for office?

When I first got involved in public office in 2002, on a local basis, my primary concern was to make a difference in my community. Being from a small rural community, it appeared that everything stayed the same and nothing changed for the better. I felt that the best thing I could do was get involved and work toward improving my community. I firmly believe that the best plan of action you can take to invoke change is to get involved in a positive manner and work toward a goal for the future. Have a plan and then implement that plan for a better quality of life for those people you serve. Being a mayor for 10 of those years served as an opportunity for me to be able to make that change and improve the quality of life for those in our community.

How does your background help serve you in the Legislature?

Being in the banking industry for the past 35 years has helped me to see the value of being able to help people and work with people to achieve the results that are beneficial to them and you. Working together is necessary to be able to achieve these goals and to have the ability to be successful in your role in the Alabama legislature. The satisfaction that you can derive from helping others is a tremendous motivation for me in public service. Banking has taught me the value of helping others in their time of need as well as how to listen when those around you talk.

What are some of your legislative priorities next term?

Being from a rural environment I think it is time Alabama took a hard look into Medicaid expansion. There are too many hospitals and clinics in our rural areas that are closing and these hospitals serve a tremendous purpose in many of our communities. Too many times the older population does not have the means to travel 40 or 50 miles for health care services. Medicaid expansion could possibly be the mechanism that can keep these hospitals and health care clinics open and serving the community. We also must get tough on the Fentanyl abuse in Alabama and our country as well. Way too much of this drug is pouring across our southern border and we need to let those that would distribute and use this drug know that a high price will be paid when you are caught.

What are some health-related issues important to your district and your constituents?

There is little doubt that Covid has been an issue for all Alabamians over the last couple years. This virus has highlighted just how important our rural physicians and hospitals are to our state. We have to keep exploring all options available to help our rural areas maintain and deliver adequate health care.

What do you think people understand the least about our health care system?

The aspect that I think people are most unaware of is the reimbursement of services provided by the health care community. Procedures that are performed are billed at a specific price but the actual funds received are predetermined regardless of what the actual cost may have been. This usually leaves a balance due and ultimately has to be absorbed by the health care provider.

If you could change anything about our state’s health care system, what would it be?

Improving access to health care especially in rural areas. Telemedicine will go a long way toward benefiting people in the areas that currently are underserved. We must make sure our rural hospitals are adequately funded and can survive in rural Alabama.

How can the Medical Association – and physicians statewide – help you address Alabama’s health challenges?

When questions arise, it is imperative that we, as legislators, have the opportunity to seek out information from those that are versed in that industry. My background being in banking is what I am most versed in, so to have the ability seek out professionals in the health care industry and discuss issues is imperative for me as a legislator.

What is the one thing you would like to say to physicians in your district?

THANK YOU!! Thank you for all your dedication and hard work taking care of Alabama during the pandemic. Thank you for working the long hours under difficult circumstances to ensure that all Alabamians were provided with the health care that was much needed during these unprecedented times that we experienced in the pandemic.

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Opioid Prescriptions in Alabama Fall for 8th Consecutive Year

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Opioid Prescriptions in Alabama Fall for 8th Consecutive Year

Contact: Jeff Emerson, 205-540-2247

MONTGOMERY – Alabama physicians are taking action to reduce the number and
potency of opioid prescriptions and to increase access to medication that rapidly
reverses opioid overdoses, according to a new report released Thursday from the
American Medical Association.

The report shows:
• Opioid prescriptions in Alabama decreased 41.6 percent from 2012-2021. From
2020-2021, opioid prescriptions in the state declined 1.6 percent, marking the
eighth consecutive year the number of opioid prescriptions in Alabama has
dropped.
• The dosage strength of opioid prescriptions fell 52.7 percent from 2012-2021 and
dropped 6.5 percent between 2020-2021.
• Prescriptions of naloxone to treat patients at risk of an opioid overdose rose 851
percent between 2012-2021 and 35.4 from 2020-2021.
• Physicians and other healthcare professionals accessed the state’s Prescription
Drug Monitoring Program more than 5.5 million times in 2021, an increase of
three percent from 2020. Healthcare providers who dispense opioids in Alabama
must report the information to the Prescription Drug Monitoring Program to help
physicians detect the abuse and misuse of prescriptions.

The Medical Association of the State of Alabama was one of the first medical
associations in the country to offer a continuing education course to train physicians on
safely and effectively prescribing opioids. Since 2009, more than 8,000 prescribers in
Alabama have completed the course.


“Alabama physicians are advancing the fight against the opioid crisis by continuing to
reduce the number and potency of prescribed opioids in our state, and by furthering our
education on opioids,” said Dr. Julia Boothe, President of the Medical Association of the
State of Alabama. “While we are making good progress in these areas under a
physician’s control, Alabama is in a worsening overdose epidemic due primarily to
illicitly manufactured fentanyl, which is found in more than 75 percent of counterfeit pills
and other substances. No community is safe from this poison.”


Fentanyl overdose deaths in Alabama increased a staggering 135.9 percent from 2020
to 2021, (453 deaths in 2020 to 1,069 in 2021).


Dr. Bobby Mukkamala, chair of the American Medical Association’s Substance Use and
Pain Care Task Force, said fentanyl is “supercharging” the increase in fatal drug
overdoses.


“What is becoming painfully evident is that there are limits to what physicians can do.
We have dramatically increased training and changed our prescribing habits, reducing
the number of opioids prescribed while increasing access to naloxone, buprenorphine
and methadone. But illicitly manufactured fentanyl is supercharging this epidemic,” said
Dr. Mukkamala.


Resources for Help: Alabamians looking for a list of substance abuse treatment
services can go online to druguse.alabama.gov.

To read the full report: https://end-overdose-epidemic.org/wpcontent/uploads/2022/09/AMA-Advocacy-2022-Overdose-Epidemic-Report_090622.pdf

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Prepare Your Practice for Expanded Information Blocking Requirements

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Prepare Your Practice for Expanded Information Blocking Requirements

By: Catherine (Cat) Kirkland, Burr & Forman LLP

Is your practice ready? Starting October 6, 2022, physicians and group practices will be required to make full electronic health information available for access, exchange, and use to patients (among others) in a reasonable manner. This deadline marks the end of a multi-year phase-in from the U.S. Department of Health and Human Services (HHS) of “information blocking” rules set forth in the 21st Century Cures Act Interoperability and Information Blocking Regulations.

The Cures Act defines information blocking as “a practice by an actor that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception.” Physicians, hospitals, and group practices, among many other provider types, are all specifically defined as “actors” under the Act and are therefore subject to the regulations. The Act defines EHI as information contained within a designated record set, which for a physician or group practice would include medical records, billing records, and other documents used by the physician or practice in conjunction with patient care (ex: scans received, emergency department records, etc.).

Examples of prohibited information blocking might include:

  • Implementing a blanket (and not individualized) approach of withholding laboratory or other test results from a patient portal until a physician can evaluate the results;
  • Charging a fee for physical copies of a patient’s EHI, when the fee does not meet HHS’ fee exception criteria; or
  • Purposefully limiting what EHI is shared in a patient portal if the portal technology would allow for full EHI access.

A practice is not considered information blocking if it meets one of eight exceptions. Five of these exceptions relate to why a provider might not fulfill a request for access, exchange, or use of EHI, including: 1) prevention of harm (a very limited exception requiring a patient-by-patient analysis); 2) privacy protection (ex: if state or federal law require a patient consent to set-up a portal and the patient has not consented); 3) safeguarding security of the EHI; 4) infeasibility (ex: hurricanes or uncontrollable events); and 5) if the provider’s IT is temporarily unavailable. Each of these exceptions contain key conditions that must all be demonstrated by the provider before the exception can be claimed.

The Cures Act authorizes the HHS Office of Inspector General to investigate any claim of information blocking and in 2021, HHS established an online portal for complaints. Any complaint submitted through HHS’s portal could result in an OIG investigation and potentially penalties or disincentives.

The overall industry response to the expanded rules has been one of concern and confusion with a major push for HHS to release more guidance before the October 6 deadline. However, waiting on additional HHS guidance is not a defense to the information blocking rules. Physicians and group practices should be proactive in their compliance by reviewing the rules and exceptions carefully. Physicians should ensure that all policies, procedures, and/or compliance programs comply with the rules, address rule exceptions, and require documentation of when an exception is used and why.

Catherine (Cat) Kirkland is a partner at Burr & Forman LLP and practices exclusively in the firm’s Health Care Practice Group. Cat may be reached at (251) 340-7271 or by email at ckirkland@burr.com.

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Drawing a Line at Pharmacists Prescribing Medicine

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Drawing a Line at Pharmacists Prescribing Medicine

For the 5th installment of an in-depth look into each of the Medical Association’s “Top 10 Highlights” from the 2022 regular session, we will look at the Association’s opposition to allowing pharmacists blanket authority to prescribe vaccines and immunizations

At the beginning of the 2022 Regular Session, a bill was drafted and supported by the Alabama Pharmacy Association that would have given pharmacists broad authority to prescribe vaccines and immunizations.  Currently, pharmacists may administer vaccines, but may not prescribe them. The bill would have permitted pharmacists to prescribe any vaccine or immunization that they are already allowed to administer. 

Proponents of the legislation stated their goal was to expand access to vaccines and immunizations and make permanent some of the additional privileges granted to pharmacists via the temporary COVID emergency orders. As the Association discussed possible alternatives to the bill, medicine offered multiple substitutes to the proposed legislation that would have met the stated goal, but these were all rejected by the pharmacy association. With no agreement in place, proponents failed in their attempt to move the bill forward. 

The Association believes strongly in the physician lead health team and does not support fracturing care delivery. Hence, the Association partnered with the Alabama Chapter of the American Academy of Pediatrics, the Alabama Academy of Family Physicians, and the Alabama Chapter of the American College of Physicians in opposition to the bill. The coalition maintained that allowing pharmacists to prescribe vaccines – especially important childhood vaccines – would disrupt the “medical home” and actually hurt children’s access to care. The Association also believed that allowing pharmacists the ability to prescribe was ultimately a “scope creep” style bill that would blur the lines between medicine and pharmacy. The bill “passed” out of the Senate Healthcare Committee on a voice vote from Sen. Jim McClendon despite the absence of a quorum. The bill ultimately failed as it never made it to the Senate floor. The Association fully expects similar legislation to be proposed in the 2023 Regular Session.

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Inside the massive proposed 2023 Medicare physician pay schedule

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Inside the massive proposed 2023 Medicare physician pay schedule

The Medical Association of the State of Alabama is working with the AMA and national specialties to analyze CMS’s proposed physician fee schedule for 2023 to determine its impact on physician practices. The Medical Association in partnership with these other medical organizations will provide appropriate comments to CMS once the full impact of the proposal is determined.

The following is a brief summary from the AMA of what is in the proposal:

The 2023 Medicare Physician Payment Schedule (PFS) rule contains a mix of payment cuts, policy proposals and announcements regarding payment for telehealth and evaluation-and-management (E/M) services.

Slogging through the document’s 2,066 pages can be a daunting task. The AMA, however, has released a 12-page summary (PDF) that has crystalized some of the Proposed Rule’s highlights. The Centers for Medicare & Medicaid Services (CMS) has released a fact sheet that also gives the agency’s view of the highlights.

Conversion factor reduced

The first item on the payment schedule discussed in the summary is the proposed $33.0775 Medicare conversion factor (CF) for 2023, which represents a $1.53 reduction (4.42%) from the 2022 CF. The reduction is driven by the expiration of a one-time 3% CF increase Congress passed last December as part of an appropriation package that averted scheduled Medicare physician payment cuts totaling around 9.75%.

Additionally, about 1.5% of the CF reduction is attributable to a budget-neutrality statute requiring that, when there is projected growth of $20 million in spending on services included in the payment schedule, there must be corresponding cuts elsewhere.

The projected growth in spending stems from an upward adjustment for inpatient E/M services provided in hospitals, nursing homes, emergency departments and home health services.

More E/M changes proposed

CMS is building on the revisions it adopted for 2021 for E/M services provided in physician offices and other outpatient settings. The agency is proposing to generally adopt the Current Procedural Terminology (CPT®) codes and guidelines developed by the CPT Editorial Panel and the valuations recommended by the AMA RVS Update Committee (RUC) for inpatient and other settings, according to the summary.

“In total, the E/M code sets being revised for 2023 comprise approximately 20% of all allowed charges under the Medicare Physician Payment Schedule,” the summary says. “Therefore, these changes, along with other coding and valuations changes, are estimated to require a reduction of about 1.5% to the 2023 Medicare conversion factor due to statutory budget neutrality requirements.”

Along with the reduced CF, the payment schedule includes a 0% payment update that fails to account for significant inflation in practice costs.

Telehealth coverage extended

Early in the COVID-19 pandemic, CMS expanded the Medicare Telehealth List with the addition of some 150 services, including emergency department and telephone visits. Some of these services were listed as “interim” with coverage lasting until the end of the public health emergency (PHE), while others would have coverage extended for another five months after the PHE ends.

For 2023, CMS proposes extending coverage for all interim telehealth services for five months after the PHE ends. Meanwhile, the House of Representatives voted overwhelmingly for a bipartisan bill that extends Medicare telehealth payment and regulatory flexibilities through the end of 2024.

CMS also proposes to add a number of other services to the telehealth coverage list including therapy services, ophthalmology services, and patient education and training in self-measured blood pressure management.

Additionally, CMS proposes to raise payment rates for opioid treatment programs to better reflect the costs of the counseling services, while also proposing to pay for the initiation of buprenorphine to treat opioid-use disorder via telehealth, rather than just in person, to further improve access.

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The AMA, in collaboration with 120 other physician and health care organizations, is working to develop specific recommendations (PDF) to Congress and CMS that will put the nation’s health care system on solid and sustainable financial ground.

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