Executive Session: 6 things to watch in 2021 on health policy, the ACA and COVID-19

MGMA · Executive Session: The Post-Election Health Policy and Legislative Landscape

The 2020 general election has former Vice President Joe Biden and U.S. Sen. Kamala Harris (D-Calif.) poised for inauguration in January, though the balance of power in the Senate remains uncertain as the State of Georgia prepares for two runoff elections.

As the recent political season winds down through the lame duck session of Congress, MGMA is keeping close watch on several likely developments on the health policy and legislative fronts heading into the new year. Anders Gilberg, senior vice president, MGMA Government Affairs, joined the MGMA Executive Session podcast to detail some of the top questions as we conclude a tumultuous year in healthcare.

1. How much will a Biden administration get done?

The executive branch “doesn’t have much pure power in our democracy,” Gilberg said, adding that for much of the platform put forward by Biden on healthcare will rely on support within a possibly divided Congress, not to mention the difficulty approving efforts that carry a hefty price tag as the country continues to recover economically amid the COVID-19 pandemic.

President-elect Biden campaigned on expansions of the Affordable Care Act (ACA) and other efforts, including:

• Addition of a public option — This would allow the government to directly negotiate fees and rates with physicians, hospitals and practices. Government payment rates often fall short of covering overhead costs of care delivery, so further government influence on overall revenue could have a major impact on medical practices.
• Lowering of the Medicare eligibility age and adding new services — While lowering the eligibility age for benefits to 60 and the proposed addition of vision, hearing and dental benefits is seen as very popular, “it is invariably going to be incredibly expensive,” Gilberg said.
• Increased government negotiation on drug costs
• Further support for alternative payment methods (APMs)
• Additional focus on antitrust enforcement amid consolidation in the healthcare industry.

2. What will be the fate of the ACA in the Supreme Court?

The Supreme Court heard oral arguments Nov. 10 on a legal challenge to the ACA. Despite the recent addition of a sixth conservative justice in Amy Coney Barrett, at least five justices indicated that they were not inclined to invalidate the law in its entirety.

There are three key components to the legal challenge heard by the Supreme Court, Gilberg noted:

1. Standing: Do the plaintiffs have legal grounds to challenge the individual mandate included in the ACA?
2. Constitutionality: If there is standing, the Court would evaluate the individual mandate on constitutional grounds.
3. Severability: If the individual mandate is deemed unconstitutional, the question becomes whether it is severable from the remainder of the ACA. “Severability is basically a question of congressional intent, but the determination of that severability will be critical,” Gilberg said.

If the individual mandate alone is deemed unconstitutional, “it may have a rather modest impact on what happens” to the ACA next year, Gilberg added, but a complete invalidation of the ACA would cause “a huge disruption to our healthcare system” and “force everybody’s hand” in crafting a legislative response.

3. Can current Medicaid reimbursement rates survive COVID-19?

The economic downturn during the pandemic has left many states that expanded Medicaid following the passage of the ACA in trouble financially. But when tough budget decisions are made, it’s usually reimbursement to providers that is cut rather than benefits, Gilberg said.

“That can be really devastating for access to Medicaid beneficiaries,” he added.

4. How big will the impact of new E/M outpatient codes be?

New code guidelines and descriptors for E/M outpatient services go into effect Jan. 1, 2021. While most medical practices see the changes as positive in terms of documentation, the revaluations of the relative values of those codes could have negative effects for surgical specialties and other practices that do more procedures rather than E/M services, Gilberg said.

Budget neutrality requirements mean that unless there are new monies allocated to funding a change in the Physician Fee Schedule, money to pay for the updated E/M codes has to come from somewhere else. Gilberg said MGMA Government Affairs is watching the lame duck Congress closely to see if it acts upon efforts to mitigate the impact the budget neutrality adjuster has on practices that have already had revenues affected adversely by the pandemic. “They can't take another 10% hitting their Medicare payments in 2021,” he cautioned.

5. Will telehealth payments shrink as COVID-19 gets contained?

Echoing his comments on the difficulty to pay for a number of proposals in the Biden platform, Gilberg said he doesn’t think that the Centers for Medicare & Medicaid Services (CMS) will continue the expanded reimbursement and regulatory waivers around telemedicine beyond the end of the public health emergency (PHE), which is set to expire in January unless renewed by the Secretary of Health & Human Services.

In additions to concerns among some that telehealth did not deliver the same quality as in-person visits, previous legislation to expand telemedicine beyond rural areas fared poorly due to a high price tag and concerns about fraud and privacy.

The most likely outcome, Gilberg said, is a time-limited expansion of telemedicine to collect data on utilization, quality, privacy and security. “There's a lot of positive vibes around telemedicine right now, but money is not going to fall from trees in 2021,” Gilberg said. “So we will see.”

6. Will more federal assistance come for medical practices as the pandemic continues?

While President-elect Biden has proposed a national plan to coordinate a response to eliminate COVID-19, practices are still facing significant challenges from the pandemic:

• Personal protective equipment (PPE) often is in short supply and at much higher prices than before the pandemic.
• Though a new CPT® code was added in recent weeks to cover additional expenses for PPE, a reimbursement value was not initially set, leading to confusion on whether payers would pay to help offset those increased costs for practices.
• Efforts by medical practices to help distribute a vaccine next year will carry costs that some organizations are unprepared for, such as the refrigeration of the vaccine.

“We think that medical practices can play a really important role” in helping get the nation vaccinated, “so we need to keep them viable and need to keep their providers safe in this environment,” Gilberg said.

Additionally, Gilberg said MGMA continues to advocate for additional monies to go into the Provider Relief Fund to help stabilize the finances of practices that continue to struggle, especially as many of them now face significant reporting requirements after accepting funds via federal relief efforts, such as the Paycheck Protection Program (PPP).

“One of the things that MGMA will continue to do in representing medical practices is make sure that the burden of that documentation and all of the red tape that the government could put into place is at the absolute minimum,” Gilberg said. “So you can focus on taking care of patients.”

Additional resources

• MGMA Advocacy Letters and Statements — The latest efforts by MGMA Government Affairs, translating complex regulations into focused updates
• MGMA Washington Connection — Weekly insights into the latest health issues from Washington, D.C.
• MGMA COVID-19 Recovery Center — Insights, tools and more for managing through the pandemic
• “Outpatient Office Visit E/M Codes: Preparing for 2021” — This MGMA member-exclusive webinar will be held at 1 p.m. ET Tuesday, Nov. 17, 2020.
• “2021 Medicare Outlook” — Register today for this free webinar (scheduled for 1 p.m. ET Dec. 10, 2020) for insights on payment and documentation changes outlined in the Medicare Physician Fee Schedule final rule.