Published 1/1/2018
Catherine Boudreaux Hayes; Elizabeth Fassbender, Esq.

Healthcare Policy in 2017

The year in review
Although 2017 was an impassioned and oftentimes highly partisan year for Congress and the Trump Administration, the AAOS Office of Government Relations (OGR) kept legislative and regulatory topics important to orthopaedics front and center. The following is a review of 2017 healthcare legislation, regulation, and other issues that affect orthopaedic surgeons.

2017 legislative wins
In January, the Sports Medicine Licensure Clarity Act, designed to ensure team providers are properly covered by their professional liability insurance when traveling with athletic teams in another state, was passed by voice vote in the House of Representatives. A Senate companion bill was introduced in April and has 22 cosponsors.

Important progress was also made this year toward lifting the moratorium on new or expanded physician-owned hospitals. The House bill, sponsored by Rep. Sam Johnson (R-Texas), has received 64 cosponsors, more than double what it received in past years. Moreover, for the first time, the legislation has a Senate companion, which was introduced by Sen. James Lankford (R-Okla).

In June, the House of Representatives passed the Protecting Access to Care Act. This legislation—which contains important reforms such as a cap on noneconomic damages, limits on attorney fees, and a 3-year statute of limitation—was one of the issues discussed by nearly 400 orthopaedic surgeons who attended the National Orthopaedic Leadership Conference in Washington, D.C., in April. Currently, there is no Senate companion, but the nonpartisan Congressional Budget Office estimates the legislation would save the government approximately $1.5 billion, an important first step in passing legislation into law.

“AAOS applauds the House of Representatives for passing vital medical liability reforms,” stated AAOS President William J. Maloney, MD. “H.R. 1215 will protect patients in need while addressing some of the challenges of the current medical liability system and maintaining the traditional role of the states. These reforms will not only ensure negligently injured patients are compensated promptly and equitably, they will—importantly—improve our overall healthcare system even before the filing of a lawsuit, by lowering healthcare costs, improving patient safety, and preserving the patient-physician relationship. We thank members of Congress for their support of this legislation and we urge the Senate to consider H.R. 1215 as soon as possible.”

On July 12, 2017, the House of Representatives passed the Medical Controlled Substances Transportation Act of 2017. The bill would update the Drug Enforcement Administration registration process for mobile medical practitioners and team physicians to ensure they can administer controlled substances at locations other than their principal place of business while complying with new limitations on timing of transport and related recordkeeping requirements. Although the bill does not yet have a Senate companion, the AAOS OGR is working hard to ensure passage in the Senate.

More recently, the House of Representatives passed legislation in November that would repeal the Independent Payment Advisory Board (IPAB). The IPAB is charged with developing a proposal each year that would reduce Medicare spending by a specific amount. If this board fails to successfully submit a proposal—or fails to meet altogether—the secretary of the Department of Health and Human Services (HHS) is forced to submit a proposal on their behalf. AAOS has long advocated for the repeal of the IPAB, noting that it is deeply concerned about the specific impact that IPAB-directed cuts would have on patient access to quality musculoskeletal care.

The Senate companion bill, which has 36 cosponsors, is expected to pass, after which the president is expected to sign this measure into law.

Need for additional flexibilities recognized
Throughout the year, the HHS has issued several requests for information, proposed rules, and other documents that indicate their commitment to reducing many of the day-to-day burdens that orthopaedic surgeons face. Most recently, The U.S. Centers for Medicare & Medicaid Services (CMS) announced a new initiative the agency hopes will reduce regulatory burdens on physicians so they can spend more time with patients.

The 2018 Quality Payment Program proposed rule, released in June, took significant steps to respond to AAOS’ concerns for needed flexibility and simplification, as well as protection for small, solo, and rural practices. The final rule, issued in November, considered stakeholder feedback and kept needed flexibility and incentives for participation.

“AAOS is pleased CMS has listened to physician feedback, and we commend the agency for incorporating changes that will address a number of our concerns,” said Wilford K. Gibson, MD, chair of the AAOS Council on Advocacy. “The Quality Payment Program remains overly complex and there are continued issues regarding access to data and Advanced Alternative Payment Model (APM) qualification for specialists, but we are extremely encouraged by proposals that improve the program for providers and ensure quality care for Medicare beneficiaries.”

In August, CMS announced it would be significantly reducing the number of geographic areas that must implement the Comprehensive Joint Replacement (CJR) bundle; CMS will also eliminate the participation requirement for small practices. In addition, CMS announced it would completely cancel the Surgical Hip and Femur Fracture Treatment model. AAOS has expressed serious concerns over both these programs since their inception and is very encouraged by this development.

“AAOS applauds [HHS] Secretary Price, Administrator Seema Verma, and others at CMS for clearly hearing concerns of orthopaedic surgeons related to these mandatory payment models,” AAOS President William J. Maloney, MD, stated at the time. “As we have said before, AAOS strongly supports the efforts of all stakeholders to develop payment models that incentivize care coordination and address rising healthcare costs. However, imposing mandatory models on surgeons and facilities that lack the familiarity, experience, or infrastructure required has serious unintended consequences. Reducing the geographic area for CJR while still leaving a voluntary option significantly remedies this issue. We thank CMS for their work on this proposed rule and will be commenting officially with a more detailed response.”

Finally, after AAOS communicated its serious concerns to CMS, the agency withdrew a proposed rule that would have added substantially more onerous qualifications needed for practitioners to furnish and fabricate prosthetics and custom-fabricated orthotics than current law requires. AAOS applauded the decision to withdraw it and avoid adding burdensome and unwarranted requirements related to prosthetics and orthotics.

State affairs
AAOS, in conjunction with individual state societies, worked hard in 2017 to ensure that problematic bills that address out-of-network or “surprise” bills are not signed into law.

To best address the root causes of the problem and protect patients from these unanticipated out-of-pocket costs, state orthopaedic societies have advocated for policies that ensure all health insurance companies provide adequate access to in-network physicians, including physicians who practice in hospitals, and that insurance companies provide coverage as promised when a patient goes out-of-network.

Responding to a 2013 study on bracing for scoliosis, the Texas Legislature passed HB 1076, a bill heavily lobbied for by the Texas Orthopaedic Association (TOA), physician groups, and nursing groups. The bill will update the state’s scoliosis screening standards in schools to match the latest science, which determined that bracing is effective when scoliosis is found early. With recent proposed classification changes at the U.S. Preventive Services Task Force on scoliosis screening standards, AAOS will adopt lessons learned from the TOA to create a nationwide campaign urging the requirement of early childhood spinal screenings.

Governors in Nevada, Georgia, Tennessee, Missouri, and Maine recently signed laws allowing visiting sports team physicians to practice in a state where they are not licensed so long as the physicians maintain licensure in another state. The model legislation and campaign was developed through a partnership between AAOS and the American Orthopaedic Society for Sports Medicine (AOSSM) and implemented by state orthopaedic societies and AOSSM members. Texas, Idaho, Wisconsin, Massachusetts, Maine, Oklahoma, Kansas, and New York are currently working on recognizing visiting sports team physicians.

Orthopaedic PAC
2017 was an exciting year for the Orthopaedic Political Action Committee (PAC). In addition to the growth of the Advisors’ Circle and record-breaking resident involvement, the Orthopaedic PAC had unprecedented access and representation at more than 600 political events, an increase of more than 30 percent from last election cycle. The strength of the PAC has allowed orthopaedists to have a seat at the table and educate members of Congress about the importance of musculoskeletal care.

Thank you to all the generous PAC members—your contributions have enabled participation in the many healthcare policy discussions taking place in Washington, D.C.

Catherine Boudreaux Hayes is senior manager of government relations in the AAOS OGR; she can be reached at hayes@aaos.org.

Elizabeth Fassbender, Esq., is the communications manager in the AAOS OGR; she can be reached at fassbender@aaos.org.