February Advocacy Recap

Alec Bose:

Hello and welcome to the CAP Advocacy Recap, a monthly podcast dedicated to catching you up on the top news for pathologists. I'm Alec Bose from CAP's Advocacy Communications Team here with your February recap.

This month, we'll look at the Biden administration's relaunch of its Cancer Moonshot initiative, addressing social determinants of health, and more. Later, we'll be speaking with the CAP's Vice Chair for the Council on Government and Professional Affairs, Dr. Joe Saad. He'll provide us with updates surrounding lawsuits and the No Surprises Act.

We start today with the correspondence between the CAP and UnitedHealthcare regarding the Designated Diagnostic Provider program. The CAP and six other groups objected and urged the insured to withdraw the program that continues to undermine the relationship between patients and their physicians.

In its response, UnitedHealthcare refuted several of the objections, saying they wanted to "improve the quality and affordability of healthcare", but are ready to meet and discuss issues concerning pathologists and other physicians further, if needed.

In 2021, the CAPE was successful in making positive changes to the program, emphasizing the program's burden and confusion, lack of transparency, and the potential for financial harm for patients. However, the CAP and other groups believe these changes did not go far enough. The CAP remains concerned about the program's design and unintended consequences for patients and will update its membership on new developments or next steps.

In other news, the Biden administration launched the next iteration of the Cancer Moonshot initiative. The goal, slashing the cancer death rate in half within 25 years. The White House relaunched the initiative after lessons learned from COVID-19, claiming an estimated 9.5 million cancer screenings were missed since the pandemic began in 2020.

The program aims to catch up on screenings that were missed over the last two years, expand HPV vaccinations crucial in preventing cervical cancer, and fund research budgets of entities like the National Cancer Institute and the National Institutes of Health.

The CAP supported the first Cancer Moonshot initiative and has engaged with the administration and Congress regarding its impact on pathologists and the patients pathologists serve. We'll continue to monitor the rollout of this program and provide important updates. We turn now to health equity news.

The CAP has asked Congress to address social determinants of health and close the Medicaid coverage gap in its next government funding bill. In letters to congressional leadership, the CAP pointed out people without health insurance are more likely to delay needed medical care, including diagnostic testing and screening services, going on to say that expanding Medicaid coverage is essential for communities of color, rural communities, and other underserved populations who disproportionately lack access to care.

The CAP also supports the Social Determinants Accelerator Act, which would address health determinants by providing grants for state, local, and tribal governments to develop strategies that target the United States' most vulnerable populations. The bill is still in the Senate for consideration.

The CAP is committed to health equity in addressing disparities in care to ensure quality, accessible patient care for all Americans, and will continue to advocate for policies that achieve this goal.

Finally, we go to Texas, where a federal district court judge vacated specific provisions pertaining to the independent dispute resolution process of the government's regulations for the No Surprises Act. The decision is a victory for physicians, including pathologists, who have fought against the unjust regulations. For more on this, we are joined with Dr. Joe Saad. Dr. Saad is Vice Chair of the Council on Government and Professional Affairs at the CAP. Dr Saad, thank you so much for joining us. We really appreciate your time.

Dr. Joe Saad:

Thank you. Pleasure to be here.

Alec Bose:

So before we jump into the lawsuit, what were some of the key provisions that pathologists were objecting to in the No Surprises Act?

Dr. Joe Saad:

So a very important feature of the No Surprises Act was the provision of a mechanism for independent dispute resolution. That is when there's a dispute between a payer and a physician or provider, there's a defined way for that dispute to be settled, leaving the patient out of the middle. Very important, patients removed from the process, and it becomes a dispute between payer and physician or provider.

So the independent dispute resolution was really a key feature of the No Surprises Act. The CAP, along with other physician groups and providers, worked diligently to make sure the process was fair and unbiased.

There were important victories for physicians, including pathologists. For one, there's no minimum dollar amount necessary to ask for arbitration. This is very important to pathologists because our charges are generally low, in the hundreds of dollars, as opposed to other providers, for example, anesthesiologists, that are in the thousands, or facilities which may be in the tens of thousands or hundreds of thousands.

So no minimum. The ability to batch claims is key because, again, our claims are small. So within certain rules or parameters, we're allowed to batch claims. Another thing, the bill excluded Medicare and Medicaid from the rates to decide the arbitration amount. It also required a study of network adequacy. So these were all very good victories, and at the end of the day, the CAP and most physicians were pleased with the result of the No Surprises Act.

The part in dispute was the independent resolution dispute. Basically this is a part where there's an agreement, or disagreement, over the payment amount. And so, the bill itself, the act said that the arbitrator, if it goes to arbitration, has to take into account a number of factors, including the qualifying payment amount or the QPA, which is the amount determined by the median in network rate of a similar service provided within a certain geographic region.

So that's one factor that's to be considered. But the law required other factors to be considered, and these are very important, such as the training and experience of the provider, the market share of the parties, the previous contracting history between the provider and the payer, and the complexity of services provided. So it wasn't just one factor, not the qualifying payment amount.

Now when the department issued the interim final rule, they said that, by default, the qualifying payment amount or QPA should be the starting point of that negotiation. Unless there are other extenuating circumstances, it should be considered the amount to be paid to the provider. This is where the providers had issues and the physicians had issues with the law.

Alec Bose:

How did the court's ruling alter the government's regulations implementing the No Surprises Act, and how is it still the same?

Dr. Joe Saad:

So on October the 28th, the Texas Medical Association and a Texas physician sued the Department of Health and Human Services in United States District Court for the Eastern District of Texas, arguing that this rulemaking violated the agency's statutory authority, that is it conflicts with the actual text and intent of the law. It also short-circuited or bypassed the Administrative Procedure Act for the notice and comment period.

So TMA sued on behalf of physicians, and basically Texas physicians, but this applies across the board to all physicians in the United States. The Department of Health and Human Services, through the Justice Department, came out swinging in January and said that they had interpreted the law correctly, that the Texas Medical Association, Texas physician had no standing to bring this case because they have not proved harm, and that the administration and administration officials and agencies are offered great flexibility and latitude in interpreting rules under the law.

Oral arguments were heard in the Texas Court on February the 4th. On February the 23rd, the court ruled unambiguously with the Texas Medical Association and Texas physicians, stating that the act clearly requires arbitrators to consider all the specified information in determining which amount to be selected for payment, and that nothing in the act instructs arbitrators to weigh one factor or circumstance more heavily than others.

Furthermore, on top of that, the court also concluded that the Departments of Health and Human Services, Department of Labor were not excused from providing notice and comment, and that the error was not harmless.

And so, it's squarely a ruling in favor of physicians, in favor of facilities, in favor of pathologists. And so, basically he threw out all the government's ... The judge threw out all the government's arguments.

On February 28th, the Department of Health and Human Services, through the Centers for Medicare and Medicaid Services, said that they were reviewing the court's decision and considering next steps. They have 60 days to appeal, by the way. But in the meantime, that they would conform with the court's order, including withdrawing guidance documents that are based on the portions of the rule that the court threw out.

Therefore, for the time being, the arbitrator cannot weigh any one factor, such as a qualifying payment amount, more heavily than others, and needs to consider all the factors in deciding the payment amount.

Alec Bose:

So what does this ruling mean for pathologists and where can they learn more about it?

Dr. Joe Saad:

So, additionally, the American Medical Association and the American Hospital Association filed suit against the Department of Health and Human Services and the US District Court for the District of Columbia. This suit was filed on December the 9th of 2021.

The AMA is arguing similar to the Texas lawsuit that the presumption in favor of the qualifying payment amount is not in accordance with the law and exceeds the defendant's statutory authority. The CAP obviously also supports this position and, on January the 7th, filed an amicus brief in support of the AMA-AHA lawsuit.

So this suit is obviously ongoing. Oral arguments are scheduled to be heard later this month, around the middle of March. And so, we'll just have to wait and see what happens with that lawsuit.

I guess if there is one thing that listeners should know, I think there's hope given the decision that came out of Texas. As I mentioned earlier, the government has 60 days to appeal the decision, and depending on the outcome of this other lawsuit, we'll see what happens. So stay tuned.

Alec Bose:

Fantastic. I think that's a great note to leave it on. Dr. Saad, thank you so much for all your time. We really appreciate it.

Dr. Joe Saad:

You're very welcome. Thank you.

Alec Bose:

That's all for this edition of the CAP Advocacy Recap. Thank you so much for listening. Be sure to read our weekly advocacy newsletter and follow us on Twitter @CAPDCAdvocacy. Once again, for CAP Advocacy, I'm Alec Bose, and we'll see you next month.

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