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Published 1/1/2009
the AAOS Office of Government Relations

2008 Legislative Round-up

Successes include AAOS Bill, research funding, DMEPOS

Although physicians still face a cut of more than 20 percent in Medicare payments next year, progress was made by avoiding the 2008 cuts that would have occurred under the flawed “sustainable growth rate” Medicare payment formula. In addition, the American Association of Orthopaedic Surgeons (AAOS) took a leadership role on several other issues.

Veto override prevents mid-year payment cuts
Despite a presidential veto, override votes in the House and Senate resulted in the enactment of HR 6331, a measure that averted a 10.6 percent physician payment cut scheduled for July 1, 2008, but will also result in a cut of more than 20 percent to physician Medicare payments on January 1, 2010.

During discussions about the measure, the AAOS office of government relations made the following points:

  • Negotiate for a permanent pay­ment fix. Short-term fixes don’t solve the problem, they exacerbate it.
  • Do not engage in partisan politics. Fixing the sustainable growth formula (SGR) is a nonpartisan issue that demands a bipartisan solution. Closed-door compromises and secret deals only serve to fur­ther harm the medical profession.
  • Do not attack friends of medicine. The AAOS did not target, attack, or withdraw support from members of Congress who opposed HR 6331 and refrained from engaging in partisan politics. The AAOS and other specialty societies recognize the importance of preserving relationships with friends in Congress and will not “jump ship” over legislation that is not cohesive with our longstanding views.
  • Look at the totality of the bill when actively supporting legislation. The AAOS membership needs to know both the positive and negative impacts particular legislation might have on the orthopaedic community. General communications from other medical societies and their umbrella organizations on HR 6331, and similar legislation in years past, failed to include the full story on all provisions included in the bill. (See “What does HR 6331 mean for orthopaedics?” in the September 2008 issue of AAOS Now)

Medicare payments to increase in 2009
Under the final rule issued by the Centers for Medicare & Medicaid Services (CMS), Medicare payments to physicians will increase an average of 1.1 percent beginning January 1, 2009. The update is based on a provision included in the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA).

Several regulatory and payment policies in the final rule will affect orthopaedic surgeons and their practices. Among the most important are the postponement of changes to Geographic Practice Cost Indices, updates to the Physician Quality Reporting Initiative (PQRI), the establishment of a Physician Resource Feedback Program, the extension of e-prescribing payment bonuses (see “Nuts and bolts of e-prescribing” on page 36), the postponement of changes to settings for independent diagnostic testing facilities, and updates to the Anti-Kickback statutes and Stark exceptions.

For more on the final rule on hospital outpatient department and ambulatory surgery center services, see “AAOS, AANA advocate for changes”.

DMEPOS physician exemption
The AAOS—along with several other physician and licensed healthcare professional organizations whose members furnish durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) as an integral part of patient care—supported the CMS decision to exempt physicians and licensed health care professionals from the onerous DMEPOS accreditation process. The groups worked together with CMS to ensure that Medicare patients have access to the appropriate DMEPOS from their providers with proper instruction on its use and application. (See
“CMS exempts physicians from DMEPOS accreditation process” in the October 2008 issue of AAOS Now.)

Final IPPS Rules
The final rules for the inpatient prospective payment system (IPPS) included the following three conditions for the list of hospital-acquired conditions (HAC):

  • surgical site infection (SSI) following certain elective procedures (including orthopaedic procedures)
  • deep vein thrombosis/pulmonary embolism (DVT/PE) in total knee (TKR) and total hip replacement (THR)
  • manifestations of poor glycemic control

The HAC payment policy states that Medicare will not provide additional payment to hospitals for complications/comorbidities that are on the list of HACs if they are not present on admission. However, Medicare continues to pay for the primary procedure or service. This hospital inpatient policy does not affect physician payment; it only affects payment to the acute inpatient hospital setting. The policy went into effect on Oct. 1, 2008. (See “CMS issues final IPPS rule,” September 2008 AAOS Now.)

The AAOS met with CMS several times and submitted comments on SSI in TKR and DVT/PE as HACs. Like CMS, AAOS wants to promote high quality, safe, and effective care. AAOS remains concerned, however, that including complications that are not always reasonably preventable to the HAC list may have unintended consequences that could negatively affect patient access and quality of care. Of primary concern is the inability to adjust the HAC policy for condition/procedure and patient-specific risk factors. The AAOS plans to respond with a strong comment, form a coalition with other physician organizations, and meet with CMS to discuss the potential impact of this decision.

PQRI Updates
Changes to the Physician Quality Reporting Initiative (PQRI) were announced in April 2008 and in the final rules for the 2009 PQRI program.

The Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) required CMS to develop alternate reporting periods for registry-based submission and group measure reporting for 2009. In addition, MMSEA removed the cap on bonus payments to physicians for accurately reporting under the program. PQRI is now a permanent program and physicians are eligible for a 2 percent bonus for satisfactory reporting. The reporting periods for 2009 are Jan. 1-Dec. 31 or July 1–Dec. 31, depending on the method of reporting. Physicians must submit their data no later than Feb. 28, 2010.

For 2009, 153 individual measures and 7 group measures can be reported under the program. For more information on how PQRI works, visit www.aaos.org/pqri

In addition, CMS will publicly report 2009 PQRI data on a “Physician Compare” Web site. CMS will report eligible professionals who have submitted 2009 PQRI quality measures, met one of the satisfactory reporting criteria, and received a PQRI incentive payment for reporting during Jan. 1, 2009 through Dec. 31, 2009. The information will be on the CMS Web site in 2010.

The AAOS will continue to work with CMS and Congress to ensure that pay-for-reporting programs are implemented efficiently, that measures are created with physician input, and that the measures reflect true quality care for our patients.

AAOS Act introduced
The AAOS supported bipartisan legislation seeking to raise awareness of musculoskeletal diseases and conditions among health care pro­fessionals and the public. The “Access to America’s Orthopaedic Services (AAOS) Act of 2008 (HR 6478),” introduced in July 2008, aims to improve knowledge about the public health effects of musculoskeletal diseases and conditions. (See
“AAOS Act introduced in Congress,” August 2008 AAOS Now.)

The AAOS Act currently has 29 bipartisan cosponsors. Increasing the number of cosponsors is integral in moving the act forward in the legislative process. You can support the AAOS Act by contacting your Congressional representative and requesting that he or she cosponsor HR 6478. Simply call the U.S. Capitol switchboard at (202) 224-3121 and ask for your representative’s office.

Information technology
On Sept. 15, 2008, House Ways and Means Health Subcommittee Chairman Fortney “Pete” Stark (D-Calif.) introduced legislation to spur adoption by health care providers of information technology (IT) in part by providing Medicare financial incentives.

HR 6898 would also strengthen existing federal privacy laws, codify the Office of the National Coordinator for Health Information Technology at the Department of Health and Human Services (HHS), and require HHS to finalize rules for the first generation of health IT operating standards by fall 2011.

The bill would give physicians up to $41,000 over 5 years to incorporate health IT systems, which can cost up to $50,000 per doctor to install, into their practices. In 2013, physicians would receive $15,000 toward an IT system; in 2014, it would be $12,000; in 2015, $8,000; in 2016, $4,000; and in 2017, $2,000.

Providers who fail to adopt IT systems would face Medicare financial penalties. Beginning in 2016, physicians would have their per claim reimbursement reduced by 1 percent for failing to adopt an IT system, rising to 3 percent by 2020.

The AAOS believes that any efforts to promote health IT and interoperability should include additional financial assistance for physicians to obtain health IT and must use common standards for data transmission, data sharing, medical terminology, communications, security and other features.

New high for trauma research funding
Under HR 2638, which include the 2009 fiscal year (FY) appropriations for Defense,Homeland Security, and Military Construction-Veterans Affairs, $66 million was allocated for peer-reviewed orthopaedic trauma research. The funding is a major success for orthopaedic trauma research and a direct result of AAOS efforts, according to Andrew N. Pollak, MD, chair of the extremity war injuries and disaster preparedness project team. During the past 2 years, $101 million in additional funding has been earmarked for orthopaedic trauma research.

The fourth annual, invitation-only Extremity War Injuries Conference (EWI IV), jointly hosted by the AAOS, the Orthopaedic Trauma Association, and the Society of Military Orthopaedic Surgeons, will be held in Washington, D.C., Jan. 21-23. (See “EWI-IV continues tradition of advancing orthopaedic care,” December 2008 AAOS Now.)

Research Capitol Hill Days
On Feb. 13-14, 2008, the AAOS Research Capitol Hill Days were held in Washington, D.C. This annual event gives patients, surgeons, and researchers the opportunity to meet with their senators and representatives to personally advocate for the future of musculoskeletal care and stress the importance of additional research funding. More than 115 orthopaedic patients, physicians, and researchers urged members of Congress to appropriate $532.59 million in FY 2009 for the National Institute of Arthritis and Musculoskeletal and Skin Diseases—a 6.6 percent increase from the FY 2008 level.

Participants attended more than 120 meetings in the House and Senate and met with 51 members of the House and Senate appropriations committees. Rep. Rosa DeLauro (D-Conn.) of the House Labor/HHS appropriations subcommittee addressed participants and discussed her personal experiences with musculoskeletal care. She expressed her commitment to ensuring that the National Institutes for Health receives the funds needed to continue groundbreaking research studies.

The 2009 Research Capitol Hill Days are scheduled for March 18-19.

Device issues
During 2008, Laurel C. Blakemore, MD, made a presentation at a pediatric device development stakeholder’s workshop. Challenges to pediatric device development include small market opportunities, liability concerns, and methodological challenges in premarket trials and postmarket surveillance. The AAOS has been actively working with members of Congress, government officials, and others to find solutions to off-label use, the adaptation of adult devices, as well as a multitude of other issues. The AAOS, the Pediatric Orthopaedic Society of North America, and the Scoliosis Research Society filed a joint response to the request for information.

Testifying on behalf of the AAOS and the American Association of Hip and Knee Surgeons, Kevin J. Bozic, MD, MBA, addressed the U.S. Senate Special Committee on Aging to express concern over the direct-to-consumer advertising (DTCA) of restricted medical products. (See “Are medical device ads playing doctor?” November 2008 AAOS Now.)

The AAOS, along with the Alliance of Specialty Medicine, is also working on issues regarding legislation on follow-on biologics (FOBs). The Alliance, which includes the AAOS and 12 other national medical specialty societies, drafted a letter to key committee members on the House Committee on Energy and Commerce in response to legislation requiring the FDA to issue guidance documents on how to develop FOBs. The letter states that no FOBs should be approved before their safety and efficacy have been tested in humans and that the approval pathway must not allow substitution of interchangeability of FOBs for innovator products.

A proposed rule on a unique device identification system has been delayed. The identification system would be similar to the bar codes on drugs and biologics and would involve a database with baseline information for each device. The AAOS, working with the Advancing Patient Safety coalition, is encouraging the FDA to accelerate the timeline for the proposed rule to be released.

Patient safety
The HHS final rule for Patient Safety Organizations (PSOs) goes into effect on Jan. 19, 2009. The rule provides final requirements and procedures for PSOs to identify and reduce patient care risks and hazards. The AAOS is investigating the possibility of listing and creating a PSO for a national hip and knee replacement registry.