Advocacy Update

• Omnibus Bill Funds Government and Health Agencies Until September 30
• Kentucky Pathologists, CAP Urge Protections for Test Results Legislation
• Washington Legislature Passes WSSP-CAP Amended Out-of-Network Law
• Reminder: Provider Relief Fund Reporting Deadline is March 31
• Test Your Advocacy News Knowledge

On March 10, the US Senate voted 68-31 to pass a $1.5 trillion omnibus bill that will fund the federal government for the remainder of this fiscal year, which ends on September 30. The Senate vote followed the House’s March 10 vote approving of the continuing funding resolution. The bill will go to President Biden for his signature.

For the Department of Health & Human Services (HHS), $1 billion will be allocated to create a new Advanced Research Projects Agency for Health within the HHS Office of the Secretary to accelerate the pace of scientific breakthroughs for diseases such as ALS, Alzheimer’s disease, diabetes, and cancer. In addition, the National Institutes of Health (NIH) will get $6.9 billion, an increase of $353 million than in 2021, for the National Cancer Institute, including $194 million for the Cancer Moonshot. Additionally, the HHS will get $50 million for health disparities research.

The Centers for Disease Control & Prevention (CDC) will receive $100 million to modernize public health data surveillance and analytics at the CDC, state, and local health departments. The Health Resources and Services Administration (HRSA) will receive $1.3 billion, an increase of $72 million above 2021 funding, for HRSA’s Bureau of Health Professions programs to support health workforce development. The omnibus bill also extends the increased Medicaid Federal Medical Assistance Percentage amounts for Puerto Rico and other US territories.

The bill also allocated $10.6 billion for the Public Health and Social Services Emergency Fund, ensuring that the HHS fully addresses current pandemic realities and prepares for future variants. These funds will be used to prevent, prepare for, and respond to coronavirus varients, including for necessary expenses concerning the research and development, manufacturing, production, purchase, and distribution of vaccines, therapeutics, diagnostics, and medical products, services, and supplies.

Lastly, the bill allocates $13.6 billion in funding toward military and humanitarian assistance to Ukraine — those funds are about evenly divided between the Defense and non-Defense accounts.

On March 10, the Kentucky Society of Pathologists (KSP) and the CAP urged the Kentucky legislature to amend House Bill 529 to remove legal non-compliance risk to pathologists and clinical laboratories under the 21st Century Cures Act and related rules. The CAP works with state pathology societies to ensure legal protections for pathologists and laboratories regarding certain diagnostic testing delays.

The legislation requires a 72-hour delay in releasing certain test results and pathology reports to provide ample time for the ordering physician to review the results and provide appropriate guidance before disclosure to the patient’s electronic health record.

However, as noted in the KSP and the CAP’s memorandum, the bill “does not clarify that the obligation to withhold the test result must be assigned to those who administer and control the patient’s electronic health record... [and] would not establish a clear legal safe harbor to protect pathologists and clinical laboratory directors against a violation of the federal 21st Century Cures Act...” The amendment will ensure test delay requirements are not placed on the laboratory information system (LIS), clinical laboratory, or pathologist.

The KSP and the CAP continue to work closely with the Kentucky Medical Association and other stakeholders to amend the bill.

On March 7, the Washington state house passed House Bill 1688, providing greater alignment between Washington’s Balance Billing Protection Act (BBPA) with the federal No Surprises Act. In coordination with the CAP, the Washington State Society of Pathologists (WSSP) partnered with the Washington State Medical Association (WSMA) to include provisions to strengthen network adequacy review of health insurance plans by the Department of Insurance. The CAP advocates for states to require health plans to have adequate networks of hospital-based physicians, including pathologists.

Other elements of the legislation adversely altered the current Washington state law. Under the bill, on July 1, 2023, or a later date determined by the Commissioner of Insurance, the current Washington state arbitration process will be supplanted with the federal NSA out-of-network independent dispute resolution process. Unlike the federal law, the current Washington state out-of-network arbitration system allows for the consideration of billed charges, a favorable methodology urged by physicians that no longer had the support of the Office of the Insurance Commissioner (OIC) or the legislature, in light of the federal NSA.

However, the WSSP, the CAP, and the WSMA successfully amended the bill to tighten the Commissioner of Insurance’s review of health plan carrier’s networks for hospital-based physician network adequacy, including pathologists and access to laboratory services. Furthermore, the legislation ensures health plan carriers may not utilize its payment to out-of-network providers or facilities under the BBPA or the No Surprises Act to satisfy network adequacy standards unless certain criteria is met. The WSSP and the CAP actively advocated for Washington’s current network adequacy standards enacted in 2019 to ensure proper oversight of network adequacy by the OIC.

Additionally, the physician coalition advocated before the OIC and legislators to insert guardrails on the use of alternate access delivery requests. Alternate access delivery requests are used to fill access gaps in a health carrier’s network and protect consumers from high out-of-pocket costs. Under current law, alternate access delivery requests may require health carriers to pay billed charges to out-of-network providers while protecting consumers from adverse cost-sharing.

As advocated by the WSMA, the WSSP, and the CAP, the amended bill ensures that the OIC can only approve an alternate access delivery request if a health insurance plan demonstrates "substantial evidence of good faith efforts on its part to contract with providers and facilities," and meets other specified criteria. Under alternate access delivery requests, the carrier may reimburse providers at billed charges for three months as advocated by the physician coalition to deter the use of alternate access delivery requests to circumvent strengthened network adequacy requirements.

Subsequent to that period, a health insurance plan may submit a request to OIC to set reimbursement by the state’s arbitration process for the remainder of the alternate access delivery request. The amended bill ensures incentives are retained for carriers and providers to contract without jeopardizing quality care and access to health care services for consumers.

The bill awaits consideration by Governor Jay Inslee and will take effect upon enactment.

Pathologists who received Providers Relief Fund (PRF) payments that exceed $10,000 must report by 11:59 PM ET on March 31, 2022. The CAP encouraged pathologists to use the financial assistance from these federal programs provided resources for this and other programs.

The HHS announced that the second reporting period for PRF funds closes on March 31 for those pathologists who received one or more general and targeted PRF payments exceeding $10,000 from July 1, 2020, to December 31, 2020. This portion is based on providers’ losses and expenses from July 1, 2020, through March 31, 2021, while relief recipients can use the funds to reimburse costs incurred from January 1, 2020, through at least December 31, 2022. The date that provider relief recipients received the Provider Relief Fund determines which spending deadline they must meet. Therefore, providers who received more than $10,000 in relief in the last reporting period, between July 1, 2021, and December 31, 2021, have to spend until December 31, 2022.

The Health Resources and Services Administration (HRSA) has information and reporting instructions.

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