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Review of the Last Quarter of the 116th Congress

The House and Senate worked through many ASCA priorities this session

BY STEVE SELDE | JANUARY 2021

Editor's note: This article complements the two-part “Review of the 116th Congress” article published in the November-December 2020 and January 2021 issues of ASC Focus. From September 2020 onward, ASCA’s advocacy efforts continued to be primarily focused on pandemic-related issues. Similarly, most newsworthy considerations and activity in Congress involved the pandemic.

Activity Leading Up to the Final Bill of the Year and Congress

With many members of Congress curtailing their in-person events and meetings during the pandemic and many ASCs operating under tight new safety constraints, ASCA created a virtual tour program so that members could maintain contact with their federal representatives. ASCA’s virtual tour program was in full swing by August 2020, and Kirsten Anderson, ASCAPAC Board member and administrator at Parkway Surgery Center in Myrtle Beach, South Carolina, held the first virtual tour. She tells more about that experience and the ways ASCA staff make it easier for administrators and staff in an episode of the Advancing Surgical Care Podcast.

Traditionally, members of Congress return home during the month of August to meet with constituents and work in their state and district, and last year was no different. When Congress returned in September 2020, work began on H.R. 8337, the legislation that funded the government through December 11, 2020, and made changes to the Medicare Accelerated and Advance Payment Program. The Centers for Medicare & Medicaid Services (CMS) revised the repayment terms and made them more accommodating to healthcare providers through the end of the COVID-19 public health emergency by decreasing the interest rate for the loans, reducing the recoupment percentage, and extending the period before the loan repayment begins and the period before the balance must be repaid.

Congress was out for most of October 2020 in the lead up to the elections on November 3, 2020. When Congress returned, ASCA’s advocacy efforts kicked into a higher gear as deliberations on another coronavirus relief package restarted.

In mid-November, ASCA joined the Advanced Medical Technology Association of Washington, DC, and Medical Device Manufacturers Association of Washington, DC, in sending a letter urging Congress to eliminate the copay penalty that Medicare beneficiaries face when they receive certain procedures in ASCs. Like other Medicare Part B services, a beneficiary’s copayment for ASC procedures is 20 percent of the procedure cost. For services provided in hospital outpatient departments (HOPD), however, a beneficiary’s copay is capped at the Part A deductible amount, which, for 2020, was $1,408. This penalizes beneficiaries when they receive high-cost procedures in an ASC, limiting their access to care.

Additionally, access issues have been heightened during the pandemic, as hospitals in communities across the country have limited the performance of nonurgent procedures. For example, the Powder River Surgery Center in Gillette, Wyoming, was tapped by its partner hospital to treat patients because the community’s number of COVID-19 patients continues to grow and consume hospital space for other non-COVID-19 patients.

ASCA advocated for several pandemic-related priorities leading up to the final bill:

• In mid-November, ASCA joined other healthcare associations in sending a letter to Congress requesting that the suspension of Medicare sequestration payment cuts be extended through the duration of the COVID-19 public health emergency. The Coronavirus Aid, Relief, and Economic Security Act (H.R. 748), or CARES Act, suspended sequestration through December 31, 2020. In December 2020, legislation to continue the suspension was introduced in the House of Representatives.
• At the end of November 2020, ASCA and 25 other groups wrote to Congress urging that the NOPAIN Act be included in end-of-year legislation. The NOPAIN Act would remove current reimbursement barriers to the use of non-opioid pain management and increase access to and use of a wide array of medically appropriate, safe and effective opioid alternatives. ASCA supported this bill when it was introduced in the House and Senate and is a member of the Voices for Non-Opioid Choices, a coalition focused on ending opioid misuse.
• On December 3, 2020, ASCA joined more than 500 groups in urging Congress to address issues resulting from recent Internal Revenue Service (IRS) notices and ensure that Paycheck Protection Program (PPP) recipients were able to fully deduct expenses and receive the maximum benefit from the emergency assistance.

Outside of these pandemic-focused issues, ASCA also joined other medical associations in sending a letter asking Congress to include the Removing Barriers to Colorectal Cancer Screening Act in end-of-year legislation. If enacted, this legislation would end the out-of-pocket expenses that occur if a polyp is discovered and removed during a screening colonoscopy. This bill made significant progress on December 9, 2020, when the US House of Representatives passed it.

Passage of H.R. 133—The Consolidated Appropriations Act, 2021

On December 21, 2020, Congress passed H.R. 133, the Consolidated Appropriations Act, 2021, sending it to the President to be signed into law. This legislation provides additional pandemic relief, funds the US Department of Health & Human Services (HHS) and other agencies, and makes other programmatic changes.

Changes to the Paycheck Protection Program

Congress added an additional $285 billion in funding to the PPP, which was established as part of the CARES Act. Congress also narrowed the pool of entities eligible for a second PPP loan to those that have 300 or fewer employees and saw their revenue drop by 25 percent between comparable quarters in 2019 and 2020. Changes were also made to the forgiveness application for the program, including a streamlined process for those that received assistance up to $150,000.

The bill also ensures that PPP recipients receive the full value of the assistance by clarifying that deductions are allowed for expenses paid for with PPP loan proceeds. Additionally, the legislation clarifies that for tax purposes, gross income does not include any amount that would arise from the forgiveness of a PPP Loan.

Changes to the Provider Relief Fund

Congress reupped the Provider Relief Fund (PRF) with an additional $3 billion. Eighty-five percent of unobligated balances or funds recovered in the PRF are to be for future distributions based on applications that consider financial losses and changes in operating expenses occurring in the third or fourth quarter of calendar year 2020 or the first quarter of calendar year 2021. Additional changes to the PRF include the ability for parent organizations to allocate funding to subsidiaries and the use of the “lost revenue” definition from June 2020 guidance issued by the HHS.

Continued Delay of Sequestration

In another form of financial relief to ASCs and other providers, Congress suspended the Medicare payment sequester in the CARES Act through December 31, 2020. This legislation extends that suspension to March 31, 2021.

Removing Barriers to Colorectal Cancer Screening

Under this bill, the Medicare beneficiary cost sharing for colorectal cancer screening would be phased out between January 2022 and January 2030. Congress adopted a provision that is an adapted version of the Removing Barriers to Colorectal Cancer Screening Act, which would ensure that if a scheduled screening colonoscopy becomes therapeutic, the Medicare beneficiary will not face a copayment.

Changes to the Medicare Physician Fee Schedule

The bill mitigates the expected payment reductions to certain physician services under the Medicare Physician Fee Schedule (MPFS) by transferring $3 billion from the federal government’s general fund to increase payments by 3.75 percent. This change applies only to calendar year 2021 payments.

Limitations on Surprise Medical Billing

This bill also limits the practice of balance billing patients that leads to what is commonly called “surprise medical bills.” Patients will be required to pay only the in-network cost-sharing amount for many types of out-of-network care provided at facilities that are in their health plan’s network. There also will be a notice and consent process so that patients can opt for out-of-network care. Providers will be required to post information about these new balance billing requirements and practices and will be subject to penalties for violations.

Reimbursement disputes between a provider and plan will be settled through a structured process involving open negotiations between the parties and arbitration. Similar to Medicare’s Procedure Price Lookup tool, plans will be required to maintain price comparison tools on their websites so that policyholders can research their cost-sharing responsibility. This provision of the legislation includes other obligations for providers and plans, and the HHS secretary will be issuing final rules to guide implementation and provide clarity for providers and plans prior to the limitations going into effect in 2022.

ASCA is grateful to its members for their help in advocating for their community’s priorities in this bill and throughout this last Congress. ASCA advocated for changes to surprise medical billing components of legislation throughout the 116th Congress to ensure that this issue would be resolved for patients in a way that strikes a balance between the obligations for providers and plans. Similarly, ASCA advocated for the changes to the deductibility for expenses paid for with PPP funds and gross income consideration, continued suspension of sequestration and phase-out of the colonoscopy copay that were included in this bill.

ASCA staff will provide updates as more information is available on programs created or modified by this legislation. Please write Steve Selde with questions.