Details about CMS’ calendar year (CY) Medicare physician fee schedule (MPFS) final rule, released December 1, 2020, are outlined in the article on page 12, but in this column, we provide a time line of the events leading up to the passage of the Omnibus Consolidated Appropriations Act of 2021 that Congress unveiled December 21, 2020. This legislation directs CMS to postpone implementing plans to eliminate payment for non–office-based evaluation and management (E/M) services that surgeons and other specialists provide during the 60-day and 90-day global services period in order to increase payment for the office-based E/M services that primary care physicians provide.
Countering a “perfect storm”
CMS had been planning to make the change to reimbursement for E/M services since it released the CY 2020 MPFS final rule in November 2019. Since then, the College and other specialty societies offered guidance to CMS on alternative methods of reducing Medicare spending, but in early 2020, it became evident that CMS was likely to include the plan in the MPFS rule for 2021.
When the coronavirus pandemic 2019 (COVID-19) forced surgeons to postpone nonurgent procedures to ensure hospitals would have enough resources, beds, and personal protective equipment to provide safe care to COVID patients, it created financial hardships for many surgeons. While Congress passed laws and the Administration made policy changes to offset some of the financial losses many physicians, especially those in private practice, were experiencing, CMS remained steadfast in its commitment to include the changes in billing for E/M services in the CY 2021 MPFS.
Knowing that many surgeons would be unable to maintain their practices through this perfect storm of events, in spring 2020, the ACS formed the Surgical Care Coalition, which comprises 12 surgical societies, including the College, and receives guidance from the Brunswick Group, a Washington, DC, consulting firm.
Surgical Care Coalition members worked with CMS throughout the spring and summer to explain how this proposal would affect Medicare patient access to surgical care. We were told that CMS’ hands were tied because of congressional mandates for budget neutrality. Under these requirements, federal agencies like CMS must produce regulations that have a neutral effect on overall spending. Hence, if primary care was going to get a payment increase, other specialties would have to take a cut.
At no point did the ACS and its partners in the Surgical Care Coalition suggest that primary care be denied the proposed payment increases for E/M services. What we did object to were CMS’ plans to cut reimbursement to surgeon specialists, some of whom provide high-level E/M services before and after they operate on Medicare patients.
Survey shows rule would limit patient access to care
The CY 2021 MPFS proposed rule was released August 3, 2020, and contained the anticipated cuts. To gain a clearer understanding of how the proposed cuts would affect surgeons, the Surgical Care Coalition surveyed more than 1,000 surgeons across the U.S. This study showed that the proposed Medicare payment cuts could result in nearly one in three surgeons reducing their Medicare patient intake, drastically reducing access to surgical care for this vulnerable population.
Furthermore, surgeons who said they planned to continue caring for Medicare patients also indicated they would have to make other tough choices to offset the E/M losses, such as reducing the amount of time spent with each patient, hiring fewer nurses and administrative staff, or stopping investments in new surgical technology. One in five surgeons said they may need to stop performing procedures that are especially complex or risky.
This disruption in surgical care would come after patients already had faced delays in care because of the COVID-19 suspension of nonurgent surgical procedures. A previous survey by the Surgical Care Coalition found one in three private practice surgeons were already considering closing their practices because of the financial impact of the pandemic, underscoring that it was not the time to add further uncertainty and difficulty to an already challenged health care system.
In fact, 40 percent of surgeons said the Medicare cuts would result in either hiring fewer staff members, hiring fewer nurses, cutting existing staff, or cutting existing nurse positions. Hence, the cuts would have exacerbated the job losses seen in the medical community since the beginning of the pandemic.
Calling on Congress
The College launched a massive letter-writing campaign in late August 2020 through SurgeonsVoice. Thousands of you sent letters to your U.S. representatives and senators urging them to pass legislation that would prevent the payment reductions. Subsequently, we witnessed a significant uptick in congressional activity related to the pending payment cuts as the ACS and the Surgical Care Coalition continued to urge Congress to take immediate action to prevent these cuts before the end of the year.
In the U.S. House of Representatives, the issue garnered increased attention as members of Congress continued to hear from the ACS and coalition members. Significant grassroots efforts by ACS Fellows led to a strong showing of support from congressional leaders, as follows:
- On August 11, 2020, Rep. Bobby L. Rush (D-IL), joined by a bipartisan coalition of 92 members of Congress, sent a letter to Speaker Nancy Pelosi (D-CA) and Majority Leader Kevin McCarthy (R-CA) urging the House leadership to protect patients and medical professionals by including in any moving legislative package a provision to waive the requirements for budget neutrality under the MPFS for 2021 and 2022. Waiving the requirements for budget neutrality would temporarily prevent the cuts to specialty care while allowing the increased E/M code values for primary care to be implemented.
- On September 24, 2020, Reps. Roger Marshall, MD (R-KS); Rush; Brad Wenstrup, DPM (R-OH); Terri Sewell (D-AL); David McKinley (R-WV); and Tom O’Halleran (D-AZ) led a bipartisan letter signed by more than 160 members of Congress asking U.S. Department of Health and Human Services Secretary Alex Azar, Jr., and CMS Administrator Seema Verma, MPH, to use their regulatory authority to engage with stakeholders to establish a fair and equitable payment solution that would address Medicare payment cuts before they took effect.
- On October 2, 2020, Reps. Michael Burgess, MD (R-TX), and Rush introduced legislation, H.R. 8505, to provide a one-year waiver of budget neutrality adjustments under the MPFS. This legislation would pay for the one-year reprieve through the COVID-19 Provider Relief Fund. The ACS signed a coalition letter thanking the bill sponsors for their leadership in working to prevent the payment cuts.
- On October 19, 2020, Reps. Ami Bera, MD (D-CA); Larry Bucshon, MD, FACS (R-IN); Brendan Boyle (D-PA); George Holding (R-NC); Raul Ruiz, MD (D-CA); Roger Marshall, MD (R-KS); Abby Finkenauer (D-IA); and Brad Wenstrup, DPM (R-OH), led a bipartisan coalition of 229 representatives in sending a letter to congressional leadership stressing the urgency for passage of legislation to prevent these cuts before the end of the year.
- At the end of October, U.S. Reps. Bera; Bucshon; Boyle; Holding; Ruiz; Phil Roe, MD (R-TN); Finkenauer; and Marshall introduced the Holding Providers Harmless from Medicare Cuts During COVID-19 Act of 2020 (H.R. 8702), which would provide a critical lifeline of two years to specialties facing drastic Medicare payment cuts on January 1, 2021.
- On the Senate side, Sen. Susan Collins (R-ME) sent a letter to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Charles Schumer (D-NY), as well as Senate Finance Committee Chairman Charles Grassley (R-IA) and Ranking Member Ron Wyden (D-OR), urging legislative action before the end of the year to either waive the budget neutrality requirements under the MPFS or hold health care providers harmless from the cuts associated with the finalized E/M code policies. The ACS and 21 other surgical organizations sent letters expressing strong support for the legislation.
Doubling down
Despite indications that Congress was hearing our pleas and was poised to pass legislation that would prevent CMS from implementing the proposed cuts, on December 1 the agency released the CY 2021 MPFS final rule, which included the same E/M language as the proposed rule. So, the ACS and Surgical Care Coalition doubled down on efforts to ensure that Congress would pass legislation that would prevent CMS from making the payment cuts.
On December 3, 2020, chapters of the ACS sent a letter to Senate Majority Leader McConnell and House Speaker Pelosi requesting that Congress include a solution before the end of the year. Additionally, the letter urged passage of H.R. 8702.
But with limited legislative days remaining in the 116th Congress, time was running out to pass legislation preventing the payment cuts. On December 4, U.S. Sens. Debbie Stabenow (D-MI), Steve Daines (R-MT), Robert Menendez (D-NJ), and John Boozman (R-AR) led a bipartisan coalition of 50 U.S. senators in sending a letter to Senate Majority Leader McConnell and Senate Minority Leader Schumer in support of addressing the upcoming Medicare payment cuts in the end-of-year appropriations legislation, which funds government programs.
On December 10, 2020, Sens. Boozman (R-AR), Cindy Hyde-Smith (R-MS), Kevin Cramer (R-ND), Tom Cotton (R-AR), and Collins introduced the Holding Providers Harmless from Medicare Cuts During COVID-19 Act of 2020 (S. 5007), which was similar to H.R. 8702 in that it, too, provided a critical lifeline for two years to specialties facing drastic Medicare payment cuts on January 1.
The fight continues
The legislative language directing CMS to delay the changes in Medicare payment for E/M services was included in the Omnibus Consolidated Appropriations Act of 2021, which President Donald Trump signed December 27, 2020. Although this is a significant victory, the ACS will continue to work the Medicare payment issue as challenges certainly lie ahead.
We could not have achieved this victory without your help and the support of the Surgical Care Coalition. ACS member outreach via SurgeonsVoice and to congressional offices was essential to this effort. In fact, I can recall no other legislation that garnered the grassroots support that our members displayed this past year. I attribute the high level of interest in this legislation to the College’s regular communications with the Fellowship. We published updates on the issue in the weekly Bulletin Brief and the biweekly Bulletin Advocacy Brief. In addition, the ACS Washington Office sent regular e-mails reminding surgeons of the urgent nature of this legislation and encouraging them to contact their federal legislators, and we used all our social media channels—including Twitter, Facebook, LinkedIn, and YouTube—to reach out to followers of the College. Regular calls to action and status updates were posted in the ACS Communities as well.
My hat is off to the ACS Division of Advocacy and Health Policy—led by Christian Shalgian, Director; Frank G. Opelka, MD, FACS, Medical Director, Quality and Health Policy; and Patrick V. Bailey, Medical Director, Advocacy—and to each of you for achieving passage of this legislation that will ensure that patients will continue to have access to high-quality surgical care. Averting payment cuts for E/M services is just one example of how much we can accomplish when we all work together.
