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November 11, 2020

The 6 key ways Trump could still change health care

Daily Briefing

    President Trump may be nearing the end of his term, but there are some health care policies his administration could change before Trump leaves office, Modern Healthcare's Michael Brady writes.


    Here are six health care moves the Trump administration could make before Trump's term as president ends, according to Brady.


    1. Finalize updates to the 2021 Medicare Physician Fee Schedule—with proposed expansions for telehealth services


    The Trump administration is likely to soon finalize its proposed updates to the Medicare Physician Fee Schedule (MPFS) for calendar year (CY) 2021, Brady writes, noting that the White House's Office of Management and Budget (OMB) is currently reviewing the proposed regulation.


    If finalized, the proposed rule would usher in some notable changes to the MPFS, including boosting payments for some physicians, reducing payments for others, and expanding the list of telehealth services that Medicare covers, among other updates.  


    For example, under the rule, Medicare would permanently cover a wider range of telehealth services, including some services for patients with cognitive impairments. In addition, Medicare under the rule would temporarily cover telehealth services related to certain ED visits and other types of care under the public health emergency that HHS has issued in response to America's coronavirus epidemic.


    The proposed MPFS rule also would simplify some billing and coding requirements for office and outpatient visits by incorporating revisions recommended by the American Medical Association and other organizations.


    Further, the proposed rule would update how CMS calculates payments rates under the MPFS in a way that could reduce payments to some physicians while increasing payments to others. The proposed rule includes a budget neutrality adjustment that accounts for changes in relative value units (RVUs) that are converted into PFS payments rates, as required by federal law. Under the proposed rule, CMS would set the PFS conversion factor for 2021 at $32.26 when accounting for the budget neutrality adjustment—down $3.83, or more than 10%, from 2020's conversion factor of $36.09. Jefferies analysts have said that payment-rate adjustments called for in the proposed rule will reallocate Medicare payments in a way that benefits general practitioners but is detrimental to some specialists.


    In addition, CMS under the proposed rule would:


    • Implement certain revisions to the Medicare Shared Savings Program for 2020;
    • Increase certain bundled-payment rates, including bundled payments for ED care, end-stage renal disease, maternity care, and more; and
    • Provide updates and clarifications regarding professional scopes of practice and related issues.


    2. Finalize updates to the 2021 Hospital Outpatient Prospective Payment System—and eliminate the inpatient only list


    According to Brady, OMB is also reviewing CMS' Hospital Outpatient Prospective Payment System (HOPPS) proposed rule for CY 2021, which also could have some big implications for providers.


    For instance, Brady reports that CMS under the proposed rule would boost total payments to providers by $7.5 billion when compared with 2021, with total payments reaching nearly $84 billion in CY 2021. However, CMS under the proposed rule also would reduce reimbursements for drugs that providers acquire through the 340B Drug Discount Program by more than 6%, Brady reports. In addition, the proposed rule would cut reimbursements for therapy services by 9%—a proposal that's been criticized by therapists and long-term care providers, according to Brady.


    Further, CMS under the proposed rule would phase out the inpatient-only list, cover more services provided by ambulatory surgical centers, and streamline CMS' hospital quality star ratings program, Brady reports. Under the proposed rule, CMS also would loosen supervision requirements for outpatient therapeutic services and make it easier for physician-owned hospitals with large shares of Medicaid beneficiaries to expand their facilities, according to Brady.


    3. Update federal anti-kickback rules


    Brady reports that OMB also is reviewing proposed rules to update federal anti-kickback and physician-referral regulations so they do not interfere with physicians' ability to participate in value-based payment arrangements. The proposed rules would update the Civil Monetary Penalties Law, the Federal Anti-Kickback Statute, and the Physician Self-Referral Law, which often is referred to as the "Stark Law," Brady notes.


    Health care executives and providers have long called for updates to the regulations, saying the laws are complex and pose barriers to doctors transitioning toward value-based payment models. However, updating the regulations has become less of a priority for the Trump administration amid America's coronavirus epidemic, Brady reports. According to Brady, the proposed rules have been under review by OMB since July.


    4. Modernize patient privacy rules


    The Trump administration also has finalized two rules that aim to bolster patients' access to their electronic health information and call out health care providers that impede health data sharing—but those regulations have been put on hold.


    One of the rules would require Medicaid, CHIP, Medicare Advantage, and Affordable Care Act exchange insurers to provide enrollees with electronic access to their health information and medical claims. In addition, affected insurers, as well as health care providers, would have to use open data sharing technologies to support patients as they move between different health plans. Further, the rule would allow CMS to publicly report any hospitals or other health care providers found to "participate in 'information blocking' practices that unreasonably limit the availability, disclosure, and use of [electronic health information]" and "undermine efforts to improve interoperability," HHS said in a release.


    Some provisions of that final rule were scheduled to take effect this month, but the administration has delayed certain compliance deadlines until after Trump's term ends, in light of America's coronavirus epidemic.


    The other rule would require certain entities in the health care industry to adopt standardized application programming interfaces to help developers give individuals easier and more secure access to their electronic health information via smartphones and other mobile devices. That rule also would require health care providers to allow patients to access their health information electronically at no cost to them.


    According to Brady, OBM approved that rule last week, but HHS hasn't yet made the final rule public.


    5. Sunset HHS rules after a decade


    Earlier this month, HHS issued a notice of proposed rulemaking that seeks to sunset agency regulations a decade after they're issued if HHS doesn't assess them before the expiration date. HHS is accepting public comments on the proposal until Jan. 4, 2021.


    According to Brady, the Trump administration could attempt to finalize the proposal before the end of Trump's presidency, since a cornerstone of his administration's platform has been deregulation.


    6. Approve a Medicaid block-grant funding system 


    Reforming Medicaid also has been one of the Trump administration's top priorities, Brady reports. In January, for example, CMS released guidance on how states could convert their Medicaid financing structures from an open-ended federal funding system into a fixed block-grant system—or a per capita cap model.


    So far, only one state—Tennessee—has sought to change its Medicaid program to a fixed block-grant system under the guidance. The Trump administration hasn't yet approved nor rejected Tennessee's proposal, and CMS may approve Tennessee's waiver request before Trump's presidency ends, Brady reports (Brady, Modern Healthcare, 11/9).

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