APA’s Government, Policy, and Advocacy Update (October 2022)

The Department of Health and Human Services (HHS) proposed a rule to implement Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities. HHS’s new rule would extend the interpretation of Section 1557 to prohibit discrimination on the basis of gender identity, sexual orientation, and pregnancy status (including pregnancy termination).

The proposed rule reverses a rule issued in 2020 under the Trump administration, which interpreted Section 1557 in such a way that “on the basis of sex” did not protect patients based on sexual orientation or gender identity (“New Rule Permits Discrimination Against LGBTQ Patients”). In 2019, APA opposed the proposed rule change, citing the unnecessary barriers the rule would impose and the associated costs in allowing discrimination in health care.

In August, President Joe Biden signed the Inflation Reduction Act into law, a sweeping package that, among its numerous provisions, addresses climate change and attempts to reduce prescription drug costs. Under the law, Medicare will be able to negotiate drug costs beginning in 2026, starting with 10 drugs and increasing each following year. The law also requires drug companies to pay rebates if their prices rise faster than the rate of inflation for drugs used by Medicare beneficiaries; limits monthly cost sharing for insulin to $35 for Medicare beneficiaries; and eliminates all cost sharing for vaccines for those covered under Medicare Part D.

The package also extends health care subsidies for those covered by an ACA plan for another three years. This amounts to savings of $800 a year, on average for 14 million Americans, according to a White House fact sheet.

APA issued an action alert encouraging members to urge their Senators to pass the Advancing Telehealth Beyond COVID-19 Act (HR 4040).

The legislation, which passed the House by a vote of 416-12, would address several of APA’s top legislative priorities. It would extend multiple telehealth flexibilities that were implemented in response to the ongoing Public Health Emergency until January 2025, including Medicare coverage of audio-only telehealth. It would also delay the implementation of the six-month in-person requirement for coverage of behavioral health services. Without Senate action, these flexibilities are set to expire 151 days after the end of the Public Health Emergency (PHE). The current PHE is set to expire on October 13.

APA joined the Conversion Factor Coalition in a letter to House and Senate leaders, thanking them for providing a 3% positive adjustment to the Medicare Physician Fee Schedule (MPFS) conversion factor. The letter was addressed to the chairs and ranking members of the House Ways and Means Committee, the House Energy and Commerce Committee, and the Senate Finance Committee.

The MPFS adjustment was used to partially offset a scheduled fee schedule reduction and avert an additional 4% Medicare payment reduction, ensuring “increased financial stability for Medicare clinicians,” the letter stated. However, Medicare health professionals face another round of significant payment cuts on January 1, 2023, as the 2023 MPFS proposed rule would cut the Medicare conversion factor, the basic starting point for calculating Medicare payments, by 4.5%. “These cuts, combined with the pending threat of the [4% pay-as-you-go (PAYGO)] reduction, are simply not sustainable,” the letter stated.

APA and the Conversion Factor Coalition urged Congress to mitigate the scheduled reductions and pass legislation that provides at least a 4.5% conversion factor adjustment for 2023 and waives the 4% statutory PAYGO requirement. “Millions of seniors rely on the Medicare program, and we must work to ensure it remains a robust and dependable option for those who need it the most, both in the short and long term,” the letter stated.

APA led the Mental Health Liaison Group in a letter to Rep. Katie Porter (D-Calif.), Rep. Tony Cárdenas (D-Calif.), and Sen. Elizabeth Warner (D-Mass.) in support of the Behavioral Health Coverage Transparency Act (HR 8512/S 4616). The bill would strengthen enforcement of the Mental Health Parity and Addiction Equity Act of 2008, which requires insurance coverage for mental health conditions to be no more restrictive than coverage for other medical conditions.

Specifically, the Behavioral Health Coverage Transparency Act would require most plans and insurers to submit to federal agencies the analyses they perform in making their parity determinations, disclose data on their denial rates for mental health versus medical/surgical claims and the reasons, and provide information on network adequacy and reimbursement rates as a percentage of Medicare rates. It would also require federal regulators to conduct a minimum of 40 random audits of health plans a year and create a central online portal so consumers can easily access publicly available information, including their parity rights, results of audits, and guidance to submit complaints. Further, the legislation would establish dedicated funding for consumer assistance programs to help individuals navigate the complaint process. ■