News

American Medical Association (AMA) President Advocates for Broad Medicare Reforms for Physicians

• AMA President Bruce Scott emphasized the urgent need for Medicare reforms in a recent interview with Inside Health Policy, stating that Congress must address the decline in physician pay, reduce administrative barriers, streamline prior authorization (PA) in Medicare Advantage, and exempt high-approval-rate doctors from PA requirements. Specifically, AMA wants a broad package of legislative reforms, including legislation to reform the current Merit-Based Incentive Payment System (MIPS), R.2474 to tie reimbursement to the annual inflation rate and S.4532 and H.R.4968 to streamline PA processes. AMA has proposed to replace MIPS with a new Data-Driven Performance Payment System (DPPS) that would calculate pay based on performance across categories while tying payments to annual updates and provide for streamlined reporting. If CMS does not provide quarterly feedback reports on quality and cost measures, the DPPS would shield doctors from penalties. Last month, the AMA and 126 other state and national provider groups sent a letter that urged Congress to enact these legislative reforms (Inside Health Policy, August 23).

Federal Litigation

Association for Molecular Pathology (AMP) Files Lawsuit to Challenge Lab-Developed Tests Rule, Cites Loper Bright Enterprises v. Raimondo

• On August 19, the AMP filed a lawsuit in the Southern District of Texas’ Galveston division over the FDA’s decision to regulate lab-developed tests. The lawsuit is the first to cite Loper Bright Enterprises v. Raimondo after the nullification of the Chevron doctrine. This is the second lawsuit that alleges that the FDA does not have the authority to regulate laboratory chemistry (Inside Health Policy, August 22).

DSH Payment Lawsuit Updates

• Several high-profile disproportionate share hospital (DSH) lawsuits have been making their way through the lower courts as CMS and hospitals grapple over how to calculate these critical payments:
  • Baylor All Saints Medical Center v. Becerra: On August 15, the U.S. District Court of Texas sided with co-plaintiffs, Baylor Scott & White Health, ruling that CMS was in the wrong for its Medicare inpatient prospective payment system final rule in FY 2024, for which the agency did not include Medicaid Section 1115 waiver patient days in its DSH payment calculations.
  • Alameda County Medical Center v. Becerra: The plaintiffs believe that CMS failed to compensate them for the Medicare DSH miscalculations made in 2010 in a timely manner. The lawsuit was tossed out in June by the U.S. District Court for the District of Columbia based on a lack of jurisdiction.
  • Hackensack Meridian Health v. Becerra: Following the invalidation of the Chevron doctrine in June, Hackensack Meridian filed a lawsuit that challenges the way in which CMS sets Medicare DSH payments. The plaintiffs believe that CMS should calculate DSH payments by the total patient days for those entitled to SSI benefits not just for those receiving SSI payments and allow for hospitals to view patient-level eligibility data before the issuing of DSH payments.
  • Advocate Christ Medical Center v. Becerra: For the third time since 2019, Oak Lawn and Downers Grove have filed a lawsuit that requests that CMS increase the number of patients to be counted in Medicare DSH calculations by including individuals eligible for SSI benefits. The matter is now before the U.S. Supreme Court to determine whether the appeals court properly ruled in favor of CMS’ decision to not include individuals eligible for SSI benefits in the DSH calculations (Modern Healthcare, August 26).

Federal Regulation and Guidance

HHS Authorizes Additional Round of Free COVID-19 Tests After FDA Grants Emergency Use Authorizations for Two Over-the-Counter (OTC) Diagnostic Tests for COVID-19 and the Flu

• On August 23, HHS authorized and announced another round of free OTC COVID-19 tests for the upcoming respiratory virus season. Four free tests can be requested per household and HHS encourages people to use them during the holiday season when COVID-19 transmission may be prevalent due to larger gatherings. Levels of hospitalization and death related to COVID-19, the flu, and respiratory syncytial virus (RSV) are projected to be comparable or slightly lower than levels seen in 2023. However, these numbers depend on many factors, including vaccination levels. The FDA also published a notice granting emergency use authorization (EUA) for two OTC diagnostic tests, from Nano-Ditech Corporation and ACON Laboratories, that are able to diagnose COVID-19 and the flu (Inside Health Policy, August 23).

Federal Studies and Reports

CMS Releases Several Reports on Medicaid Long Term Services and Supports (LTSS) Trends and Expenditures

• CMS released several publications on Medicaid LTSS users and expenditures from 2019 through 2021, both nationally and on the state level. The publications cover LTSS rebalancing trends, patterns in users, and expenditures for different HCBS services and institutional care. CMS provided a summary table of results, methodology, and information about LTSS data quality (CMS, August 22).

CMS Releases Report on Money Follows the Person Program

• On August 23, CMS released the Money Follows the Person (MFP): Updated Grant Recipient Transitions as of December 31, 2021 Report. The report is based on self-reported data from the MFP grant recipients’ semi-annual progress reports from 2017 through 2021 which summarize progress towards annual goals of transitioning eligible people to the community and increasing Medicaid support for community-based long-term services and supports (CMS, August 23).