Advocacy Update

• Take Action! CAP Urges Pathologists to Push Congress to Reverse Medicare Cut
• ICYMI: CMS Finalizes DCLS Proposal in CLIA Regulation Opposed by CAP
• CAP Supports the Restructuring of the Independent Dispute Resolution Process
• UCSF and CMSS Award $100,000 Grant to CAP to Improve Communication of Test Results with Diagnostic Uncertainty
• CAP Opposes Information Blocking Penalties on Physicians through CMS Pay Programs
• CAP President Urges Repeal of DC Clinical Laboratory Licensure Law
• Register for the Pathologists Leadership Summit in D.C. April 2024
• Take Our News Quiz for January

Due to a lack of congressional action in 2023, Medicare payment cuts impacting pathologists and other physicians went into effect on January 1. While Congress did anticipate and provide partial relief for these cuts in December 2022, they did not fully stop the cut. The CAP has now renewed its call for Congress to stop this cut and called on CAP members to tell their lawmakers to enact a retroactive Medicare payment fix.

In August, the CAP sent out a similar Action Alert to its grassroots advocacy network encouraging outreach to their legislators to sign a Dear Colleague letter to House leadership that emphasized the urgent need for Medicare physician payment reform. Over 190 members of Congress signed the letter asking House leadership to stop the impending 3.37% cut to Medicare physician payments. A bipartisan group of legislators then introduced HR 6683, the Preserving Seniors’ Access to Physicians Act of 2023. This bill reverses the 3.37% cut.

Take action to ensure Congress includes this legislation in its upcoming funding package.

Despite strong opposition from the CAP, the Centers for Medicare & Medicaid Services (CMS) finalized a regulatory proposal to allow individuals with a Doctor of Clinical Laboratory Science (DCLS) degree to qualify for high-complexity laboratory director positions. The CMS finalized the provision in a regulation released December 22 concerning CLIA fees: histocompatibility, personnel, and alternative sanctions for certificate of waiver laboratories.

While the CAP had supported the CMS’ effort to clarify doctorate-level degrees within CLIA, the CAP strongly opposed the inclusion of the DCLS degree as a qualifying degree under CLIA to direct laboratories. The CAP has stated that the DCLS degree will cause confusion among the public about the distinctions between a clinical pathologist and those with a DCLS. The CAP has detailed its opposition in an August 29, 2022 letter to the CMS.

The final regulation also created a pathway for nurses to qualify as testing personnel in laboratories performing moderate complexity testing. Nurses will only be able to qualify for personnel positions for point-of-care testing and are no longer eligible to qualify as laboratory directors. The CAP supported the creation of a pathway for nurses since they perform most of the point-of-care testing within health care systems.

The CAP strongly supported significant improvements to the independent dispute resolution (IDR) process detailed in a proposed regulatory change by federal departments charged with overseeing the implementation of the 2020 No Surprises Act. The 2020 law established the IDR process to settle disagreements between physicians and insurers over out-of-network bills through a third-party entity. The CAP has supported the creation of the IDR process, but also challenged the government’s implementation of the law to ensure that pathologists can resolve disputes with health plans and receive adequate pay for their services.

In a January 2 letter, the CAP urged the Department of Health and Human Services (HHS), jointly with the departments of Labor and the Treasury, to move forward with new disclosure requirements, centralizing the open negotiations process, increasing flexibility around batching, and promoting equitable access to IDR for low-dollar disputes. The CAP also encouraged the departments to increase the ease of submitting a formal complaint against an insurer and to strengthen enforcement, including financial penalties, of No Surprises Act dispute resolution requirements.

On December 15, the federal government reopened the IDR process and began accepting all dispute types after being shut down since August.

On December 18, the departments issued a final rule outlining the fees for the IDR process. This rule set an administrative fee amount of $115 per party for disputes, which was down from a proposed $150 fee amount. Download the final rule fact sheet.

The University of California, San Franscisco (UCSF) in partnership with the Council of Medical Specialty Societies (CMSS), and funded by the Gordon and Betty Moore Foundation, have awarded the CAP and six other specialty societies grants of $100,000 each to advance mechanisms for providing feedback about diagnostic decision-making to frontline clinicians on their performance in clinical registries.

In 2022, CMSS and the Gordon and Betty Moore Foundation awarded a $100,000 grant to the CAP that focused on understanding patients’ experience with their pathology report. In October 2023, CMSS and the foundation awarded the CAP another $100,000 grant to address the challenge of redesigning a pathology report that effectively communicates pathology test results to patients and all members of the care team.

This new grant will focus on improving communication of test results by providing feedback on the circumstances of diagnostic uncertainty and how it is communicated.

The CAP has opposed new monetary penalties proposed by the Office of the National Coordinator for Health Information Technology (ONC) and the Centers for Medicare and Medicaid Services (CMS) for physicians failing to comply with rules prohibiting information blocking. These penalties would be levied through CMS payment programs such as the Medicare Promoting Interoperability Program and may have the unfair consequence of one provider being penalized for another provider’s actions.

This proposed rule implements the part of the 21st Century Cures Act stating that a health care provider who commits information blocking— behavior that is likely to interfere with the access, exchange, or use of electronic health information (EHI)—will be subject to appropriate disincentives.

The rule seeks to use specific CMS payment programs to impose penalties on physicians accused of committing information blocking. If a provider does not participate in those specific CMS payment programs, there are no regulations currently in place to penalize them for committing information blocking.

On January 2, the CAP submitted a comment letter to the ONC and CMS outlining the following requests:

• Reduce potential patient harm and improve care coordination by allowing for greater flexibility and more expansive use of the legal exceptions to the information blocking regulations.
• Delay implementing disincentives on providers until there is a guaranteed appeals process for providers.
• Delay implementing penalties on providers through the Medicare Promoting Interoperability Program, as these penalties may have the unfair consequence of one provider being penalized for another provider’s actions.

The CAP is opposing these penalties because the ONC and CMS continue to make the payment program more complex. Most CAP members should not be affected by this proposed rule, but it could impact pathologists eventually.

On December 19, CAP President Donald Karcher, MD, FCAP, urged the Council of the District of Columbia (DC) to repeal the 2015 clinical laboratory licensure law within the “Health Occupations Revision General Amendment Act of 2023” (B25-0545).

“As indicated previously, the CAP does not believe that local regulation of clinical laboratory personnel is necessary for or integral to quality assurance in the clinical laboratory. Our D.C. membership has expressed grave concerns based on the anticipated negative effects of the clinical laboratory and personnel licensure law’s implementation and the amendments proposed which could severely exacerbate workforce shortages and adversely impact patient care for D.C. residents.”

In 2022, CAP previously advocated for repeal in the personnel clean-up bill B24-764 proposed by the Mayor’s office which failed to advance. Of note, the CAP’s D.C. members had opposed the enactment of the 2015 clinical laboratory licensure law.

The CAP works closely with state pathology societies to oppose state licensure for certain professions per CAP’s model criteria for state licensure of clinical laboratory personnel and in opposition to regulatory constraints on pathologists’ practice.

The CAP will continue to work closely with the D.C. Hospital Association and the D.C. Clinical Laboratory Coalition comprised of D.C. pathologist leaders to urge repeal of the 2015 law. The CAP, as part of this coalition, will continue to assess opportunities to repeal the law altogether.

Year after year, pathologists’ payments are being threatened to decline, workforce shortages are causing burnout, and cuts to clinical laboratory payments hang in the balance.

Advocate for pathology and plan to attend the Pathologists Leadership Summit in-person where you will gain unparalleled access to the education and training to make an impact on Capitol Hill and protect the future of our specialty.

The Pathologists Leadership Summit takes place, in-person only, April 13-16 in Washington, DC. Mark your calendars and register today!

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