Advocacy in Action - The Known Unknowns of Health Care
Carter L. Alleman, J.D.
Just like all of you, I too must complete continuing education courses for my license – and trust me, the courses are not even remotely as interesting as the ones I have seen at the ACA. My presenters believe PowerPoints should just be in black and white and covered with text, but alas, that is not where this end of the year piece is headed. During ethics, I picked up the summation of the last couple of years of health care policy, the known unknowns.
“Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don't know we don't know.” - Secretary of Defense Ronald Rumsfeld
There are many known unknowns that still exist even after a year of the Trump Administration and Republican controlled Congress.
The Patient Protection and Affordable Care Act (PPACA), including its various quality, funding and payment provisions, and related regulations and regulatory waivers – will be:
• Repealed?
• Replaced?
• Modified by legislation?
• Modified by rulemaking?
• Modified by Executive Order?
Currently, there is an individual mandate repeal included in the tax reform bill; however, there are additional assurances to pass a cost stabilization measure for the insurance risk corridors, for a Senator’s vote on the tax reform bill. The Department of Health and Human Services reduced the budget for PPACA enrollment for 2018 and data is showing a slower enrollment period. Will there be a large surge at the end as in previous years? No one knows.
Medicare Access and CHIP Reauthorization Act (MACRA) – will be:
• Repealed?
• Delayed?
• Modified through legislation?
• Modified through rulemaking?
• Modified by Executive Order?
I will bet the house that MACRA will not be modified by Executive Order, but the other choices could very well occur. Congress is very hesitant to make changes to MACRA, as it is their one large bipartisan law passed in the last couple of years. MedPAC is set to release a report calling for the repeal of MIPS. CMS is working to continue flexibility; however, it still is not releasing its attribution models and cost models for the 2020 payment year. Centers for Medicare & Medicaid Services (CMS) is slow to approve any addition Advanced Alternative Payment Models for specialties. Talk to any policy person and the reply will be, “Yes, we know that MACRA needs modified, but we do not know when or how.”
Medicare’s (and the market’s) transition to value-based payments, including continuation of the Bundled Payments for Care Improvement (BPCI) and Comprehensive Joint Replacement (CJR) programs, the Medicare Shared Savings Program (MSSP), Comprehensive Primary Care Initiative (CPCI) and similar initiatives. These will be:
• Continued?
• Abandoned?
• Scaled Back?
• Otherwise modified?
Many activities that were previously allowed or prohibited, then the opposite, are now “unknowns.”
• Purely productivity-based compensation for physicians:
- Fixed rate per wRVU, with no downside risk?
- “Standard” productivity-based employment compensation was once considered a reasonably safe, low risk practice, then it was not, and now????
- What about MACRA - e.g. the effect of the MIPS/APMs requirements on practice expenses and losses/downside risk?
- What about changing expectations and practices among providers and non-governmental payors? Do these changes what is “commercially reasonable” or “fair market value” for purposes of Stark?
• Provider compensation that takes into consideration the “volume or value” of certain types of service referrals:
- For years, this was considered an unequivocal legal “no-no,” then arguably allowed for in certain circumstances, for example:
• Incentive payments to recommend/order certain screenings or other services that improve outcomes
• Incentive payments to recommend against certain services or procedures that do not improve outcomes and instead to encourage use of services that are less expensive and yield the same or better outcomes
- With Federal laws, policy priorities and related waivers/new policymaking in flux, what does it mean for the viability and advisability of such payment types going forward?
• Hospital revenue sharing with physicians:
- For years, this was considered an unequivocal legal “no-no,” then arguably
allowed for in certain circumstances, for example:
• Bundled payments under BPCI
- With Federal laws, policy priorities and related waivers/new policymaking in flux, what does it mean for the viability and legal advisability of such payment types going forward?
With the great many known unknowns, advocacy is a key to assuring that the ACOS members have a seat at the table and their needs are heard.