Washington Watch

Washington Watch Weekly, March 20, 2020

ASCRS and the Surgical Community Seek Relief for Physicians and Practices in Third COVID-19 Legislative Package Including E/M Global Fix, Waiving MACRA Reporting Requirements, Suspension of Sequestration, and Small Business Protections

As Congressional leaders continue to develop a third relief package targeted at industries impacted by the COVID-19 public health emergency, ASCRS and the surgical community are advocating that the legislation include provisions to assist physicians and practices. Last night, we sent a letter to Congressional leadership outlining our recommendations. Among the recommendations are provisions we have been advocating for and several related to the emergency itself, such as: 

  • Suspend budget neutrality requirements for E/M policy changes for 2021 included in the 2020 Medicare Physician Fee Schedule final rule, which would increase the value of post-operative E/M services included in 10- and 90-day global codes, implement E/M add-on codes for patients with chronic disease, and prevent a major reimbursement reductions to surgery to pay for primary care increases; 
  • Suspend the 2% annual Medicare budget sequester;
  • Suspend MACRA’s reporting requirements for at least 2020 and potentially 2021 as well;
  • Reduce prior authorization requirements; and
  • Consider medical practices as small businesses eligible for access to assistance programs.  

ASCRS also joined with other medical societies in a letter solely focused on the E/M policy changes scheduled to take effect in 2021. 

Beyond advocacy for practice relief, the medical community’s primary goal at the moment is to advocate for physicians on the front line treating COVID-19 patients. This includes ensuring access to personal protective equipment, testing kits, and medical supplies. The American Medical Association, the American Hospital Association and other healthcare industry groups also sent a series of letters seeking protection and relief for physicians and healthcare workers.

We will keep you updated as details of the third relief bill come into place. Details on the previous two relief packages are included in the related Washington Watch story.

Federal Relief to Address the COVID-19 Coronavirus Pandemic

To help keep you updated on the various Federal relief packages and steps taken to address the COVID-19 pandemic, please find important information below regarding the new laws, including a summary of key provisions, as well as information regarding the Stimulus package - Third Phase.

Phase 1 – Emergency Funding & Small Business Relief

President Trump signed into law a $7.8 billion emergency spending bill (H.R. 6074) (P.L. 116-123) to combat the coronavirus outbreak on March 6. The bill provides:

  • $3.1 billion for the Public Health and Social Services Emergency Fund to be used to develop and purchase; vaccines and medical supplies;
  • $300 million in contingency funds to purchase vaccines if necessary;
  • $100 million for community health centers;
  • $2.2 billion to the CDC, including $950 million for state and local preparedness grants, $300 million for global disease detection and response, and $300 million for the Infectious Disease Rapid Response Reserve Fund;
  • $836 million for the NIH;
  • $10 million for worker-based training and health worker protection;
  • $435 million for international public health programs, including $200 million for the U.S. Emergency Reserve Fund; and
  • $300 million for humanitarian and health assistance in areas affected by the virus.
  • Allow HHS to regulate the commercial price of a coronavirus vaccine.

Additionally, CMS announced that it will immediately expand telehealth coverage for Medicare beneficiaries nationwide to help limit risk of exposure and spread of the COVID-19 virus. CMS is expanding this benefit on a temporary and emergency basis under the 1135 waiver authority and Coronavirus Preparedness and Response Supplemental Appropriations Act.

For more information about the recent CMS expansion, and additional ASCRS guidance on Tele-Ophthalmology in Your Practice, please click here.

Phase I.5 – Emergency Declaration

On Friday, March 13, 2020, President Donald Trump declared a national emergency with respect to the COVID-19 pandemic. By declaring the emergency, billions of dollars in the Disaster Relief Fund and additional resources from the Federal Emergency Management Agency (FEMA) and other parts of the government are now available.

Phase 2 – Individual and Small Business Relief

H.R. 6201 the “Families First Coronavirus Response Act” was signed into law late Wednesday night. Below are key provisions included in this bill.

  • Provides for two weeks (80 hours) of emergency paid sick leave related to the coronavirus. This provision applies only to employers with 500 or fewer employees.
  • Provides paid Family Medical Leave Act (FMLA) leave, paid by the employer at two-thirds of an employee’s rate of pay, if the employee is on leave for more than two weeks.
  • This provision applies only to employers with 500 or fewer employees.
  • Provides tax credits to employers to offset costs related to the paid sick leave.
  • Exempts employers that employ healthcare workers or emergency personnel and provides flexibility for employers that employ 50 or fewer employees from the new emergency paid sick leave and FMLA provisions.
  • Increases the Federal Medical Assistance Percentages (FMAP) by 6.2%.
  • Provides COVID-19 testing with no cost sharing to the individual.
  • The bill adds a change to the telehealth provisions that were included in Congress' Phase 1 package. The provision relaxes a requirement that a provider would have had to bill Medicare for services for a patient in the past three years to take advantage of the telehealth waiver. Instead, a provider must have seen a patient for services that could have been billed to Medicare in the past three years.

For a full summary of the Families First Coronavirus Response Act, please click here. 

Phase 2.5 – Defense Production Act

On March 18, the President invoked the Defense Production Act (DPA), which allows the federal government to compel companies through loans, loan guarantees, purchases and purchase commitments to prioritize and expedite the manufacture of medical supplies that are in short supply.

Phase 3 - Economic Aid

As COVID-19 virus spreads, Congress and the Administration are moving quickly to draft, reconcile and pass Phase 3 stimulus legislation that will provide immediate financial assistance and relief.

The full summary of the proposals is below.

Senate Republican and Administration-Supported Proposal

On Thursday, March 19, Senate Majority Leader Mitch McConnell (R-KY) introduced (S. 3548) the “Coronavirus Aid, Relief and Economic Security Act or “CARES Act.” The Republican and Administration backed Phase 3 proposed legislation provides direct cash payments, loan guarantees for impacted businesses and more resources for testing and development of vaccines.

Cash Payments:

The bill authorizes the Internal Revenue Service to provide:

  • $1,200 payments to individuals making up to $75,000 annually.
  • Couples filing jointly making up to $150,000 combined would receive $2,400.
  • Payments would be reduced for individuals with incomes between $75,000 and $99,000 annually. The amount is slated to be reduced by $5 for each $100 that a taxpayer’s income exceeds the legislation's threshold. The amount is reduced to zero for single taxpayers with incomes exceeding $99,000 and $198,000 for joint filers.
  • Low-income Americans with at least $2,500 of qualified taxable income would get a smaller benefit of $600, or $1,200 for couples filing jointly.
  • An additional $500 would be added for each qualifying dependent child.

Tax Changes:

The bill also proposes a list of tax changes, including the following:

  • Delays the April 15 tax filing deadline to July 15, pushing back estimated tax payments for corporations and deferring employers' portions of Social Security taxes. (As of Friday, March 20, the Administration has announced this change.)
  • Allows individuals to postpone paying their estimated tax obligations until Oct. 15.
  • Addresses technical corrections from the Tax Cuts and Jobs Act. It targets the “retail glitch” by allowing companies to immediately write off expenses related to physical improvements instead of depreciating them over the course of 39 years.
  • Allows non-abusive foreign subsidies to avoid troublesome tax and reporting requirements.
  • Allows employers and self-employed workers to pay their 6.2% payroll tax obligations over the next two years. Employers that choose to defer payment must provide half of the total amount by Dec. 31, 2021 and the other half by Dec. 31, 2022.
  • Provides that businesses can carry back losses from 2018, 2019 and 2020, for up to five years as in the past. Also, net operating losses would temporarily not be subject to a taxable income limitation, meaning they could fully offset income.
  • Businesses would also be able to deduct up to 50% of their business interest expenses for the 2019 and 2020 tax years, in lieu of the current 30% limitation, per Internal Revenue Code Section163(j).
  • Allows individuals to deduct up to $300 in charitable contributions, regardless of whether they itemize their returns or utilize the standard deductions.
  • Waives the 10% early-withdrawal penalty from qualifying retirement savings accounts for disbursements worth up to $100,000, if individuals are responding to “coronavirus-related purposes.”

Small-Business Loans:

Businesses with fewer than 500 employees could apply for fee-free loans of up to $10 million that could help cover payroll, employee salaries, mortgages, rent and some other debt obligations. Businesses that retain their employees and payroll levels between March 1, 2020, and June 30, 2020, would have any of that money used for payments on preexisting debt and payroll forgiven.

Industry-Specific Loan Guarantees:

The bill includes $208 billion in loan guarantees for industries that are hurting because of the coronavirus. This includes up to $50 billion for airlines, $8 billion for cargo carriers and $150 billion for other unnamed businesses.

Health Care:

The bill would require the Food and Drug Administration to prioritize and expedite the review of new drugs. It also includes requirements that insurers pay for COVID-19 testing without a fee for patients, without cost sharing of certain vaccines as they become available and $1.32 billion in additional funding for community health centers. The bill would also provide for a suspension of sequestration for a period of time.

Senate and House Democratic Proposal

Senate Minority Leader Chuck Schumer (D-NY) COVID-19 Proposal

Alternatively, on Thursday Senate Minority Leader Chuck Schumer (D-NY), announced a “Five Pillars” plan that would rely on expanding unemployment insurance in lieu of supplying direct cash payments. His “employment insurance” or “unemployment insurance on steroids” would be worth 100% of workers’ wages. Details for his proposal are still forthcoming.

House Proposal

On March 18, Speaker Nancy Pelosi (D-CA) issued a press release regarding Phase III. The House is considering a range of targeted policy options including refundable tax credits for self-employed workers, expanded unemployment insurance, and direct payments.

House Majority Leader Steny Hoyer (D-NY) said that the House will not return to session "until we are in a position to vote on the third piece of emergency legislation." The House was previously scheduled to return on March 23.

Administration Proposal

The White House has been working closely with Senate Republicans on their proposed Phase 3 legislation, while the White House supports the overall scope of the GOP package, comments have been given that there are details that would first need clarification and refinement in order to make sure aid gets out to the American people as quickly as possible.

Next Steps:

Senate Majority Leader Mitch McConnell, R-Ky stated his goal is to reach a bipartisan deal on various pieces of the stimulus package, expected to total more than $1 trillion, by the end of the day with the goal of holding floor votes on Monday.

Phase 4 - Infrastructure

Discussions on a “phase four” bill have already started in a general way. The focus of this legislation would be on major infrastructure to boost the economy for the future.

In addition, Heart Health Strategies, the outside counsel for the Alliance of Specialty Medicine, has provided relevant additional information in-regard to the COVID-19 relief legislation.

Resources for Small Businesses during the COVID-19 Pandemic
Federal Relief to Address the COVID-19 Pandemic

CMS Recommends Postponing Elective Surgery, Including Cataract Surgery, For Duration of COVID-19 Public Health Emergency; Temporarily Eases Licensure Requirements for Physicians to Practice in Other States

This week, CMS released, “Recommendations on Adult Elective Surgeries, Non-Essential Medical, Surgical, and Dental Procedures During COVID-19 Response” that recommends all elective surgeries be postponed for the duration of the public health emergency. To determine what constitutes essential medical procedures, CMS released a tiered rubric based on several factors, such as potential morbidity and need for inpatient care. The document specifically lists cataract surgery as a Tier 1a “Low acuity surgery/healthy patient outpatient surgery not life-threatening illness” procedure that should be postponed. In addition, this week, ASCRS expressed its support for the American Academy of Ophthalmology’s recommendation regarding urgent and non-urgent care. Also, CMS has issued a waiver under Section 1135 of the Social Security Act that temporarily allows physicians to practice outside the state where they are licensed. You may read more about the blanket waivers for COVID-19 in the Emergency Declaration Health Care Providers Fact Sheet. 

ASCRS Hosts Implementing Tele-Ophthalmology During COVID-19 Pandemic Webinar Next Week 

On Thursday, March 26, at 3:00 p.m. ET, join ASCRS for the webinar, “Implementing Tele-Ophthalmology During COVID-19 Pandemic.” Recent government action has expanded telehealth coverage for Medicare beneficiaries nationwide, temporarily waiving penalties for HIPAA violations, and will reimburse physicians for telehealth services at the same rate for face-to-face services.  ASCRS recognizes that our members need resources on how to implement telemedicine visits for their patients. Ranya Habash, MD, Medical Director of Technology Innovation and Assistant Professor of Clinical Ophthalmology at the Bascom Palmer Eye Institute, will provide an overview of tele-ophthalmology, sharing various use cases, practice workflows, and updates to Medicare guidelines and reimbursement during the COVID-19 outbreak. She will also share telehealth best practices used at Bascom Palmer Eye Institute during this critical time. Stephen D. Klyce, PhD, FARVO, Adjunct Professor of Ophthalmology at Icahn School of Medicine at Mount Sinai, chair of the ASCRS ASOA Telemedicine Task Force and ASCRS FDA Committee member will moderate the webinar. Following the presentation, audience members may participate in the Q&A session.  This webinar is free to all ASCRS and ASOA members. To register please visit here. 

If you have questions regarding registration, please contact Jillian Winans at jwinans@ascrs.org. 

CMS Expands Medicare Telehealth Benefits During COVID-19 Outbreak; ASCRS Offers Educational Resources on Implementation and Billing for Telemedicine

This week, the administration announced that it will immediately expand telehealth coverage for Medicare beneficiaries nationwide to help limit risk of exposure and spread of the COVID-19 virus by eliminating originating site requirements and temporarily waiving penalties for HIPAA violations against health care providers. For more resources on telemedicine and how to implement these services in your practices, please visit the ASCRS Telemedicine web page. Full details are below.

Removing Originating Site Requirements
Effective March 6, 2020 and for the duration of the COVID-19 Public Health Emergency, Medicare will make payment for professional services furnished to beneficiaries in all areas of the country in all settings, including their homes. Medicare is suspending its existing requirement that telehealth services only be furnished when the patient is in a qualified "originating site," such as a healthcare facility or rural area for the duration of the public health emergency. The Medicare coinsurance and deductible would generally apply to these services. However, HHS is providing flexibility for healthcare providers to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs. While an established relationship with the patient is still required, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency. However, H.R. 6201 the “Families First Coronavirus Response Act” that was signed into law late Wednesday night, adds an additional change to the telehealth provisions that relaxes a requirement that a provider would have had to bill Medicare for services for a patient in the past three years to take advantage of the telehealth waiver. Instead, a provider must have seen a patient for services that could have been billed to Medicare in the past three years.

Waiving HIPAA Requirements
Additionally, during the COVID-19 nationwide public health emergency HHS is removing penalties for HIPAA violations against providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype. For more information on COVID-19 and HIPAA compliance please visit here

More Information
Fact Sheet on this announcement.
FAQ document on this announcement.

This guidance, and earlier CMS actions in response to the COVID-19 virus, are part of the ongoing White House Task Force efforts. To keep up with the work the Task Force is doing in response to COVID-19 click here www.coronavirus.gov. For information specific to CMS, please visit the Current Emergencies Website.

If you have additional questions, please contact Jillian Winans, regulatory affairs specialist, at jwinans@ascrs.org.

ASCRS Letter to MedPAC Recommends Separate Part B Payment for FDA-Approved Drugs with A Post-Operative Indication Administered During Cataract Surgery in ASCs

As we reported, the Medicare Payment Advisory Commission (MedPAC) recently met and discussed potentially bundling additional Part B drugs in to HOPD or ASC facility fees, including new drugs on pass-through that were not deemed to have a “clinical improvement” over existing therapies. In response, ASCRS sent a letter this week recommending the Commission not seek additional opportunities for bundling because recent experience with ophthalmic drugs coming off pass-through status has shown that ASCs are not able to afford the drug as part of the facility fee once it is bundled. In fact, we recommend that CMS make separate payment under Part B for FDA-approved drugs with a post-operative indication administered during cataract surgery in ASCs, which have the potential to improve clinical outcomes and reduce expenditures to the Medicare program and beneficiaries. We will keep you updated.

MedPAC Recommends Neutral Payment Updates for Physician and ASCs in 2021, Recommends ASCs Report Cost Data 

Recently, the Medicare Payment Advisory Commission (MedPAC) released its March report to Congress, which includes recommendations on Medicare payment policy for the upcoming year. For 2021, MedPAC recommends that physician fee-for-service payments receive a 0% update, consistent with the statutory requirements for MACRA. In addition, MedPAC recommends a neutral 0% payment update for ASCs and reiterated its long-standing recommendation to require ASCs to report cost data. 

As a reminder, MedPAC serves as an advisory body to Congress and has no force of law.

ASCRS and Alliance of Specialty Medicine Recommend Increased Interoperability and Reduced Burden in Response to Health IT Strategic Plan

This week, the Alliance of Specialty Medicine submitted comments on the 2020-2025 Federal Health IT Strategic Plan. In our comments, we recommend that HHS focus its efforts on improving health IT interoperability, particularly the flow of clinically relevant data. We recommend HHS prioritize efforts to develop data standards to facilitate the flow of that data, particularly to enable the exchange of information with clinical data registries. In addition, we reiterate our long-standing recommendations to reduce the administrative and regulatory burden associated with Health IT, particularly EHRs, by streamlining reporting requirements, and promoting the development of tools to assist with automatic data extraction and harmonizing reporting requirements across different reporting programs. 

CMS to Host Interoperability and Patient Access Final Rule Call on April 7

On Tuesday, April 7 from 2:00 to 3:30 p.m. ET, CMS will host a call on the Interoperability and Patient Access final rule that requires Medicare Advantage (MA) plans, Medicaid, and plans sold on the federal exchanges to make data on claims and treatment history electronically available to beneficiaries through open application program interfaces (APIs). In addition, this rule requires plan to make their provider directories available through APIs.

You may learn more about this final rule and how it will impact your practice by registering for the webinar here

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