Advocacy Update

March 9, 2021

In this Issue:

Mississippi Pathologists, CAP Successfully Amend Second Autopsy Bill

The Mississippi Association of Pathologists (MAP) and the CAP on March 1 secured an amendment to a second autopsy bill that would establish a new position of “Medical Examiner Investigator.” The MAP and the CAP were concerned that the legislation’s newly created position should have clear requirements, including that these individuals be supervised by a pathologist and only be limited to an assistant role. The CAP’s strong partnership with the MAP reinforces advocacy efforts to ensure the scope of practice policies are applied at the state level.

The MAP and CAP secured an amendment to the Mississippi House Bill 974 requiring that the Medical Examiner Investigator position be appointed and trained, and be supervised, by the State Medical Examiner. The Medical Examiner Investigator cannot certify death certificates independently and may only assist the State Medical Examiner with autopsies. The MAP and CAP urged the Mississippi legislature to regulate the Medical Examiner Investigator position to ensure compliance with CAP policy and ensure quality in forensic procedures.

The MAP and CAP amendment position was supported by the National Association of Medical Examiners (NAME). The CAP and MAP successfully negotiated the language with the Mississippi’s Public Safety Commissioner. Mississippi Gov. Tate Reeves is expected to sign the legislation into law.

Ohio Pathologists, CAP Seek Revision to Out-of-Network Reimbursement

The Ohio Society of Pathologists (OSP) and the CAP have asked the Ohio State Medical Association (OSMA) House to seek revisions to the payment for out-of-network services and adopt a specific policy requiring health plan network adequacy hospital-based physicians by specialty. The CAP has worked closely with the OSP to advocate on requiring health plans to have adequate networks of hospital-based physicians, including pathologists.

House Bill 388, which takes effect on January 12, 2022, requires health plans to reimburse for out-of-network providers at the highest of three options: their in-network rate, their out-of-network rate, or the Medicare rate. Despite the opposition of OSP, the bill was supported by OSMA and the health insurance industry.

A resolution (15-2021) introduced in the Ohio State Medical Association by Robert Gurdak, MD, FCAP, the OSP representative, argued that this law effectively provides a disincentive for health plans to contract with certain hospital-based physicians. The resolution further notes that the Medicare payment safeguard under HB 388 (100% of Medicare) is the lowest in the nation, with some states such as Michigan and New Mexico having a payment safeguard of 150% of Medicare.

“The HB 388 100% of Medicare out-of-network payment safeguard, when conjoined with the median in-network alternative payment methodology enacted as part of HB 388, constitutes a disincentive to health plans offering contracts to hospital-based physicians that pay greater than Medicare,” the resolution states. The resolution further notes that federal law (the No Surprises Act) provides physicians with a more favorable out-of-network payment methodology that is not keyed to in-network rates or 100% of Medicare. The No Surprises Act was enacted in late 2020 as part of Congress’s year-end omnibus spending bill and takes effect January 1, 2022.

The enactment of HB 388 will displace the applicability of the federal law, resulting in fewer protections for out-of-network hospital-based physicians, argues the OSP, which is asking the OSMA to advocate to include in the state budget a revision to the out-of-network payment formula established under HB 388 to statutorily defer such payment to federal law. Alternatively, the budget could be revised to increase the Medicare percentage safeguard for out-of-network payment to be 125% of Medicare or more, according to OSP.

The OSP strongly urged OSMA to secure enactment of the specific policy (Network Adequacy H-285.908(11)) of the American Medical Association related to state regulators requiring health plan network adequacy for hospital-based physicians by specialty.

OSMA is scheduled to hold a hearing on the resolution (15-2021) on Saturday, April 10. The Ohio House will discuss the issue on April 11. During the month of March, pathologist members of OSMA can weigh in with their support of the resolution by visiting OSMA | Annual Meeting Policy & Resolutions.

Register Now for the 2021 Pathologists Leadership Summit

Get Inspired. Have Influence. Make an Impact.

The 2021 Pathologists Leadership Summit, taking place virtually, May 1-4, is the meeting where CAP members will come together to set the path that moves our specialty forward.

This newly integrated meeting, open to all members, will strengthen your ability to communicate, persuade, manage, and lead by drawing upon content from the House of Delegates, the Engaged Leadership Academy, Practice Management, and our Federal Policy Agenda, shaping you into a better leader and advocate for pathology and the patients we serve.

The 2021 Pathologists Leadership Summit gives you exclusive access to education and training, in addition to brainstorming sessions with key CAP leaders that will inspire the leader within you. Make an impact by educating legislators on health care issues affecting pathology during our virtual day on the Hill.

This meeting gives you the tools you need to make things happen, so you can move from reacting to what happens, to driving positive change.

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Senate Passes $1.9 Trillion COVID-19 Bill; Several CAP-Backed Provisions Move Forward

The latest congressional COVID-19 relief package advanced with the Senate voting 50-49 on March 6 after several hours of debate and amendments. Since the legislation changed from what had been previously approved by the House, the bill will be taken up again in the House where it is expected to pass over the next few days. The CAP had advocated for several health care provisions related to pathology and ensuring access to testing for patients.

The $1.9 trillion legislative package adopted by the Senate retained many of the House's health care provisions and was supported by the CAP. These provisions include:

Once the bill is signed into law, the Department of Health and Human Services would receive the $46 billion for testing programs. Language in the legislation states the HHS would use the money for its national strategy for testing and contact tracing programs.

Senators also added $8.5 billion in assistance for health care providers in rural areas, $350 billion in aid for state and local governments, and allocated $130 billion to reopen schools. Finally, the legislation has significant enhancements to the Affordable Care Act (ACA). These provisions include:

  • Extending the ACA subsidies to higher-income people who do not currently qualify for 2021 and 2022.
  • Increasing the ACA subsidies for lower-income people who already qualify for 2021 and 2022.
  • Providing additional ACA subsidies for individuals that receive unemployment benefits in 2022.

These enhancements are aimed at expanding access to health insurance and affordability to the ACA marketplace.

CAP Partners with AMA to Stop Medicare Budgetary Cuts to Physicians

At the American Medical Association (AMA) National Advocacy Conference February 23-24, physicians asked federal legislators to relieve the financial burdens of the COVID-19 pandemic by stopping Medicare sequester cuts scheduled to go into effect April 1. The CAP supports the AMA in these efforts as pathologists faced financial hardships during the pandemic, as documented by several surveys throughout 2020.

During the AMA National Advocacy Conference, Sen. Jeanne Shaheen (D-NH) discussed the challenges faced by small physician practices in rural and underserved areas. Sen. Shaheen said the Medicare Advance and Accelerated Payments and other programs have been helpful. Still, more work is needed to ensure practice sustainability—including extending the moratorium on the 2% Medicare sequestration cuts currently scheduled to go into effect April 1—a top AMA priority. Rep. Brad Schneider (D-IL) also expressed the need to prevent across-the-board Medicare sequester cuts and touted his AMA-supported legislation to address the issue.

The AMA, the CAP, and 127 medical and state organizations lobbied Congress to relieve the financial burdens of the COVID-19 pandemic on physicians during the current national emergency. In a February 12 letter to congressional leaders in the House and the Senate, the CAP joined the groups to support legislation that would suspend a 2% across-the-board Medicare budget sequester cut. The CAP supported similar efforts over the past year to stop Medicare cuts and protect pathology services' value. Without additional action, the 2% Medicare cut to physician services will go into effect on April 1.

UnitedHealthcare Deadline Flexibility for Designated Provider Program

The CAP followed up with UnitedHealthcare leaders to discuss the insurer’s upcoming plan changes and the newly-announced Designated Diagnostic Provider laboratory program. While the February 28 deadline for laboratories to submit a quality questionnaire passed, UnitedHealthcare officials confirmed to the CAP that they would be flexible on that deadline, and CAP members can contact with concerns and questions.

UnitedHealthcare announced the new program impacting outpatient laboratory services for fully insured commercial members. Effective July 1, 2021, the insurer will only cover outpatient laboratory services for members when delivered by a “Designated Diagnostic Provider” laboratory. Laboratories that are not a “Designated Diagnostic Provider” will remain in-network, but outpatient diagnostic laboratory services will not be covered. UnitedHealthcare sent communications to all diagnostic providers to encourage them to become a Designated Diagnostic Provider by completing a quality questionnaire.

The CAP is continuing to engage with the insurer to ensure access to pathology and laboratory services across all settings. Visit the CAP’s private sector advocacy webpage for more information.

Relentless CAP Advocacy Wins MIPS Relief for Pathologists; No Medicare MIPS Penalties During Pandemic

The Centers for Medicare & Medicaid Services (CMS) will not enforce reporting penalties for 2020 reporting due to the COVID-19 public health emergency. The CMS will apply the Extreme and Uncontrollable Circumstances Hardship Exception policy to all MIPS eligible clinicians who do not submit any MIPS data for the 2020 performance period and avoid a 2022 payment penalty. This will include physicians, including pathologists, who will be held harmless from up to 9% Merit-based Incentive Payment Program (MIPS) penalties. The CAP has advocated to reduce reporting burdens for pathologists and asked for relief from MIPS penalties.

To qualify for the Extreme and Uncontrollable Circumstances Hardship Exception policy, the CMS reopened the MIPS Extreme and Uncontrollable Circumstances (EUC) hardship application for group practices, virtual groups, and alternative payment model entities who missed the previous 2020 deadline. The reopened application deadline is March 31. Note, groups and eligible clinicians who submit data in at least two MIPS categories will override the hardship exception and be eligible to earn a bonus from the exceptional performance bonus pool or potentially be subject to a penalty.

For individual physicians and physician groups who have not submitted MIPS data, the CMS advises not to take any additional action to qualify for the automatic EUC policy. You will be automatically identified and will receive a neutral payment adjustment for the 2022 MIPS payment year unless 1) you submit data as an individual in 2 or more performance categories or 2) your practice reports as a group by submitting data for one or more performance category.

If you have questions about this process or other aspects of the MIPS program, email the CAP’s experts at