Advocacy Update

• CAP Urges House Committee to Provide Equitable System for Resolving Insurance Payment Disputes
• CAP Supports Discontinuing Term ‘Excited Delirium’ as Cause of Death
• Fill Out the AMA Physician Practice Information Survey to Update Medicare Physician Payment
• Take Our News Quiz for October

On September 19, the House Ways and Means Committee held a Hearing on Reduced Care for Patients: Fallout From Flawed Implementation of Surprise Medical Billing Protections which shined a light on private insurers refusing to negotiate payment to physicians in good faith before arbitration, and not paying providers after there was a ruling in their favor. To put additional pressure on Congress to fix the failing IDR process, the CAP made recommendations to the committee and submitted a letter on September 29 that further detailed our advocacy on this issue on behalf of pathologists and patients. The recommendations are:

• Strengthen enforcement and addressing non-compliance issues
• Clarify consideration of IDR factors
• Ensure broader batching and appropriate fees
• Further formalize and/or centralize the open negotiations period
• Bring down the need for IDR disputes through appropriate reimbursement and network adequacy

It is vital that Congress ensure an even and fair playing field for all IDR parties, the CAP said. Additionally, network inadequacy is a growing problem that the CAP believes will only get worse, as “there will be even less incentive by health plans to offer physician practices a fair contract, or keep contracted physicians in their network, because their ability to underpay these physicians while out-of-network is now even easier.”

The CAP’s recommendations focused on minimizing insurer manipulation/underpayment and reducing utilization of the IDR process. To do this, Congress must impose strong financial penalties for those insurers that do not comply with the 30-day statutorily required timeframe post-payment determination. Congress must also ensure an accessible and transparent audit/complaint process and help guarantee a more equitable, accessible, and efficient system to fairly resolve payment disputes between providers and health plans.

“Excited delirium” is not a medical diagnosis and should no longer be used as a cause of death, the CAP said in a statement on October 13 in support of a recent position issued by the National Association of Medical Examiners (NAME). This position is also supported by the American Medical Association and the American Psychiatric Association.

The term excited delirium has been around for decades but has been used increasingly over the past 15 years to explain how a person experiencing severe agitation can die suddenly through no fault of the police. It was cited as a legal defense in the 2020 deaths of George Floyd in Minneapolis; Daniel Prude in Rochester, New York; and Angelo Quinto in Antioch, California, among others. “This terminology has been used by medical examiners, forensic pathologists, and law enforcement personnel,” explained Michelle Aurelius, MD, FCAP, chair of the CAP’s Forensic Pathology Committee. “However, there are concerns that use of this term can mask physical restraint use and that this terminology targets persons of color.”

In California, Democratic Gov. Gavin Newsom signed a bill October 8 to prohibit coroners, medical examiners, physicians, or physician assistants from listing excited delirium on a person’s death certificate or in an autopsy report. Law enforcement will not be allowed to use the term to describe a person’s behavior in any incident report, and testimony that refers to excited delirium will not be allowed in civil court. The law takes effect in January 2024.

“Instead, NAME endorses—and the CAP supports—that the death certificate list the underlying cause of death, natural or unnatural (to include trauma),” said Dr. Aurelius. “If possible, the underlying cause should be determined and used for death certification.” Read more.

The American Medical Association (AMA) Physician Practice Information Survey is underway, and we urgently need all selected physicians to actively engage in this effort. The intent of the survey, which has been endorsed by over 170 medical societies and other health care associations (see full list here), is to collect updated and accurate data on practice costs which are a key element of physician payment. These data have not been updated since last collected over 15 years ago and it is critically important to update these data to ensure accurate payment. See here for more information about this survey.

Mathematica, a well-regarded consulting firm, is helping the AMA run this survey. Your practice may receive an email (from ppisurvey@mathematica-mpr.com) and a USPS priority mail packet from Mathematica that contains a link to the survey as well as supporting information. We urge you to speak with your practice management colleagues to determine if they have received these communications and ask them to complete this important survey. In the coming weeks or months, your practice, or Mathematica, may ask you to complete a brief survey on the number of weekly hours spent on direct patient care. We urge you to complete this two-minute survey.

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