The Sports Medicine Licensure Clarity Act passed the U.S. House of Representatives in late 2016. The legislation aims to clarify medical liability rules to ensure team providers are properly covered by their professional liability insurance when traveling with athletic teams in another state.
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Published 2/1/2017
Catherine Boudreaux

Healthcare Policy in 2016

The year in review
2016 was a year of important wins for healthcare policy. In the wake of the repeal of the sustainable growth rate (SGR) formula, the American Association of Orthopaedic Surgeons (AAOS) Office of Government Relations worked hard to continue to ensure physicians would still be able to prioritize patient needs over government regulation.

Although 2017 is already being heralded as a potential banner year for healthcare reform, much of what happened in 2016 affects orthopaedics and lays important groundwork for the year to come. The following is a review of 2016 healthcare legislation and issues that affect orthopaedic surgeons.

On Oct. 14, 2016, the Department of Health and Human Services issued its final rule with comment period for the Medicare Quality Payment Program (QPP), which implements the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA replaced the SGR formula, which exposed clinicians participating in Medicare to potential payment decreases for 13 years.

The QPP has two payment tracks for qualifying providers: the Merit-based Incentive Payment System (MIPS) and the Advanced Alternative Payment Models (APMs). For clinicians participating in MIPS, 2017 (the first performance year) is a transition year. Provided clinicians choose to report one measure in the quality performance category, one activity in the improvement activities performance category, or report the required measures of the advancing care information performance category, they can avoid a negative MIPS payment adjustment for the 2017 performance year and the 2019 payment year. This enables small- and medium-sized physician practices to gradually build up to the reporting requirements. The program also provides funding for technical and other practice management support for MIPS participating clinicians.

Meaningful Use (MU)
Significant strides were made on Capitol Hill to help lawmakers and their staff understand the challenges that healthcare providers face when interfacing with their electronic health care records (EHRs). Several pieces of legislation were passed to help ease burdens and reduce EHR system-related penalties. For example, a bipartisan group of senators and representatives introduced legislation to limit MU reporting periods to 90 days for hospitals, physicians, and other eligible professionals in 2016, giving providers and hospitals time to prepare for the changes in the MU program that begin in 2017. CMS recognized the importance and interest of the proposed legislation and changed regulations to allow such a reporting period.

In the rule, CMS also finalized 90-day MU reporting to increase flexibility for eligible professionals who participate in the Medicare and Medicaid EHR Incentive Programs. In addition, CMS is finalizing policies to implement section 603 of the Bipartisan Budget Act of 2015, which requires that certain items and services furnished by certain off-campus hospital outpatient departments will no longer be paid under the outpatient prospective payment system (OPPS) beginning Jan.1, 2017. Currently, CMS explained, Medicare pays for the same services at a higher rate if those services are provided in a hospital outpatient department rather than in a physician's office and "this payment differential has provided an incentive for hospitals to acquire physician offices in order to receive the higher rates." AAOS supported the MU and site- of-service changes.

Orthopaedic surgeons—especially hip and knee surgeons—are particularly concerned about the Comprehensive Care for Joint Replacement (CJR) program, which was conceived by CMS in 2015 as a mandatory bundled payment program. AAOS created significant awareness of the potential pitfalls of the program, resulting in several positive changes.

Shoulder codes
The correction of a shoulder coding error was another huge victory for orthopaedic surgeons. In March 2016, AAOS President Gerald R. Williams Jr, MD, Louis F. McIntyre, MD, from the Arthroscopy Association of North America (AANA) and William O. Shaffer, MD, AAOS medical director, met with CMS officials to discuss the issue. At the meeting, AAOS asked CMS to eliminate National Correct Coding Initiative (NCCI) edits for certain code pairs, arguing that the shoulder is technically three anatomic synovial joints and two articulations. The CMS policy had allowed the agency to deny payments when these procedures are performed or billed together. Specifically, their edits have denied CPT code 29823, arthroscopic shoulder débridement, extensive, with several other arthroscopic shoulder procedures such as CPT code 29827 (arthroscopic rotator cuff repair) or CPT code 29824 (arthroscopic distal claviculectomy).

Since 2010, AAOS, the American Orthopaedic Society for Sports Medicine, AANA, and the American Shoulder and Elbow Surgeons have sought to change these particular shoulder edits. In addition to the March meeting, the societies wrote multiple letters to and had multiple conference calls and face-to-face meetings with CMS and the NCCI. The deletions were effective as of the July 1, 2016 version of the NCCI.

Last year, Congress and the Obama administration also paid significant attention to the opioid epidemic. Although much of the focus was on additional funding for addiction treatment, AAOS did score a huge win when CMS proposed removing pain management questions from the Hospital Consumer Assessment of Healthcare Providers and Systems survey and from the hospital payment scoring calculation.

21st Century Cures Act
The medical research community celebrated a huge win late in the year when President Obama signed the 21st Century Cures Act into law. The legislation focused on improving EHRs and interoperability, enhancing the flow of patient information by preventing interference in information exchange, and encouraging important research and device approval efforts. Among other provisions, the legislation includes $1 billion for fighting the opioid epidemic, $1.5 billion over 10 years for the Precision Medicine Initiative, and $500 million to the Food and Drug Administration over 10 years to speed up drug approvals and access to medical devices for patients.

AAOS successfully advocated for $30 million in funding for the Peer Reviewed Orthopaedic Research Program through the Department of Defense Congressionally Directed Medical Research Program. This program has now received more than $300 million in funding since its inception in FY2009.

Sports Medicine Licensure Clarity Act
The Sports Medicine Licensure Clarity Act overwhelmingly passed the U.S. House of Representatives in the fall of 2016. The legislation—introduced by Reps. Brett Guthrie (R-Ky.) and Cedric Richmond (D-La.)—would clarify medical liability rules to ensure team providers are properly covered by their professional liability insurance when traveling with athletic teams in another state. From high school to college to professional levels, it is important that the men and women who are trained to protect and care for athletes and who best know the players' medical histories are able to engage in the treatment of injured athletes.

Emergency medical services
H.R. 4365, the Protecting Patient Access to Emergency Medications Act, was introduced by Reps. Richard Hudson (R-N.C.) and G.K. Butterfield (D-N.C.) and referred to the Energy and Commerce Committee earlier this year. The AAOS-supported legislation would provide a statutory framework to allow emergency medical services (EMS) agencies, professionals, and medical directors to fulfill their mission to save lives and alleviate pain, while also enabling the Drug Enforcement Administration (DEA) to continue with appropriate oversight to prevent drug diversion.

Specifically, the bill would permit medical directors to issue standing orders to allow EMS professionals to administer and deliver controlled substances. It would also clarify and codify who is authorized to provide verbal orders for controlled substances. In addition, it would provide the option for a single EMS agency registration as well as guidance and clarification regarding receipt, movement, and storage of controlled substances for the EMS agency. The bill would also provide the EMS community with a clear set of rules and the DEA with auditable records and the necessary authority to prevent drug diversion. Most importantly, H.R. 4365 would enable physicians to continue serving our vulnerable emergency medical patients and providing the best possible care to those who need immediate life-saving and pain medications. 

Two-Midnight Rule
CMS detailed a removal of the controversial 0.2 percent payment reduction associated with the agency's Two-Midnight Rule, which identified the minimum hospital length of stay required for Medicare beneficiaries to qualify as an inpatient stay. CMS also announced that it will reimburse hospitals for the years the cut was in place.

VA Provider Equity Act
The House introduced legislation that would have included language elevating podiatrists to the same status as physicians under the Veterans Health Administration (VA). AAOS worked diligently with the American Orthopaedic Foot & Ankle Society to ensure that no such language was included in the Senate companion bill.

Postoperative data collection
In a proposed rule, CMS had requested that all surgeons working through a global code procedure report their time in 10-minute increments using non-existing "G codes." AAOS worked closely with others in the surgical community and Congress to mount a campaign against this extremely burdensome policy. CMS then issued a final rule that allows for CPT code 99024 to be used to collect data on the number of postoperative visits (as suggested by AAOS and others).

At this time, CMS will not require time units or modifiers that distinguish levels of visits to be reported. Instead of required reporting on all codes, CMS is collecting data only on the number of visits for codes that are reported annually by more than 100 practitioners and with high-volume or high allowed charges. High-volume is defined as furnished more than 10,000 times; high-allowed is defined as charges of more than $10 million annually as recommended by the American Medical Association RVS Update Committee (RUC) and many other commenters, including AAOS.

Additionally, instead of collecting data from all physicians who perform global code procedures, CMS has finalized reporting requirements for a geographic sample of practitioners located only in the following states: Florida, Kentucky, Louisiana, Nevada, New Jersey, North Dakota, Ohio, Oregon, and Rhode Island. Moreover, the start date for implementation of such data collection has been postponed from Jan. 1, 2017, to July 1, 2017. At this time, CMS is not implementing the statutory provision that authorizes a 5 percent withholding of payment for the global services until claims are filed for the postoperative care. The proposals regarding the physician survey and data collection in accountable care organizations have been finalized as proposed.

2017: A look ahead
The AAOS Office of Government Relations anticipates that 2017 will be an unusually busy year with respect to healthcare for providers, their representatives on Capitol Hill, and the new administration. Many philosophical debates may come to fruition as Republicans work to replace the Affordable Care Act with a new system that is more in line with their ideology. Be sure to check the AAOS Office of Government Relations website at regularly for the most up-to-date information.

Catherine Boudreaux is the senior manager, government relations, in the AAOS Office of Government Relations. She can be reached at

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