What it means for patients and your provider customers
Editor’s note: COVID-19 might not be ending, but the Public Health Emergency is. And the impact on your physician office customers may be far-reaching. Last month, Repertoire looked at potential implications on telehealth/digital health and the distribution and provision of COVID-19 vaccines. This month we look at the implications of potential Medicaid cuts and changes in enforcement of the physician-self-referral Stark Law..
The federal Public Health Emergency (PHE) for COVID-19 expired this spring. “We are in a better place in our response than we were three years ago, and we can transition away from the emergency phase,” declared the Department of Health and Human Services in February. Among the changes expected to affect physician practices are:
- Medicaid eligibility: The Medicaid Continuous Enrollment Provision will cease, which could lead to loss of Medicaid and Children’s Health Insurance Program (CHIP) benefits for many. In addition, Emergency Allotments for the Supplemental Nutrition Assistance Program (SNAP) will stop.
- Stark Law: When the PHE ends, blanket waivers of certain provisions of the physician self-referral Stark Law will end.
Medicaid implications
Providers fear the end of the Public Health Emergency (PHE) will mean the loss of Medicaid coverage for millions of people. Through its “continuous enrollment provision,” the federal government during the PHE required state Medicaid agencies to provide coverage even if an individual’s eligibility changed. (Before the PHE, individuals could be cut from the program for failure to report a change in family status or income.) Consequently, enrollment for Medicaid and the Children’s Health Insurance Program (CHIP) increased by 20.2 million people from enrollment in February 2020, the Kaiser Family Foundation found.
Expiration of the continuous enrollment provision means that 17.4% of Medicaid and CHIP enrollees – approximately 15 million individuals – will probably lose Medicaid coverage, according to the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services. Children and young adults will be impacted disproportionately, with 5.3 million children and 4.7 million adults ages 18-34 predicted to lose Medicaid/CHIP coverage. Nearly one-third of those predicted to lose coverage are Latino (4.6 million) and 15% (2.2 million) are Black.
Certain states may be hit particularly hard. Nevada’s enrollment in Medicaid and CHIP rose 47% during the pandemic, according to Kaiser Health News. Many signed up toward the start of the pandemic, when the state’s unemployment rate spiked to nearly 30%.
Approximately 25% of Illinois citizens are enrolled in Medicaid under Illinois’ current rules, says Rodney S. Alford, M.D., president-elect of the Illinois State Medical Society. “The continuous coverage provision has provided much-needed stability to patients who rely on the program to get healthcare services and has helped ensure that physicians who accept Medicaid patients can trust that their enrollment status is current. Illinois State Medical Society members are wary of the unavoidable disruption that will be caused when the redetermination process is resumed after more than three years of continuous eligibility.”
The American College of Physicians supports additional options to prevent coverage gaps, including creating the option for Exchanges to adjust special enrollment periods for people who have Medicaid and Children’s Health Insurance Plan coverage, says Shari Erickson, chief advocacy officer and senior vice president of governmental affairs and public policy. “We also have been urging CMS to encourage state Medicaid agencies to engage with Medicaid-participating physicians, particularly practices with an above-average share of Medicaid-enrolled patients, to help spread awareness of the post-Public Health Emergency coverage transition.” ACP also supports enabling states to extend postpartum Medicaid coverage for a full year.
SNAP
People enrolled in the Supplemental Nutrition Assistance Program (SNAP) are already feeling the impact of the end of the PHE. The program provides nutrition benefits to supplement the food budgets of needy families. During the PHE, the federal government issued “Emergency Allotments” of $95/month or more to households getting SNAP benefits. But effective March 1, regular SNAP rules were reinstated. This could ultimately affect more than 41 million Americans, according to Axios.
“The American College of Physicians has called for SNAP benefit levels to be increased and the benefit calculation formula regularly adjusted to better reflect the rising costs of nutrient-dense food and other competing expenses,” says Erickson. Many studies have found that SNAP significantly reduced food insecurity for participants, improved health outcomes, reduced healthcare expenditures, lowered nursing home and hospital admission rates, and lowered cost-related medication nonadherence compared with nonbeneficiaries, she says.
Stark Law
The physician self-referral law, also known as the “Stark Law,” does two things: 1) It generally prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship; and 2) it prohibits the entity from filing claims with Medicare for any improperly referred designated health services. On March 30, 2020, CMS issued blanket waivers of certain provisions of the law so long as they were related to the COVID-19 emergency.
When the COVID-19 PHE ends, those waivers will terminate, and physicians and entities must immediately comply with all provisions of the Stark Law. That will entail some recordkeeping on their part.
“Clinicians who took advantage of the blanket waivers must make available to CMS, upon request, records relating to the use of the waivers,” says Shari Erickson. “This means that clinicians should be maintaining separate documentation for their arrangements that justifies the purpose and scope of the arrangement. From a clinician standpoint, it can be burdensome to review all arrangements entered under the Stark Law waiver. It is also unsettling that there is uncertainty as to whether CMS will audit and ask for proof of compliant documentation under the waiver. This will distract physicians’ focus from caring for what is most important – the patient.”
As the government returns to a stricter approach to enforcing Stark, medical practices may experience some backlash from their patients. By law, providers are required to attempt to collect Medicare deductibles and co-insurance amounts from their patients, says Kelly Ladd, CEO, Piedmont Internal Medicine, Atlanta. Failure to do so could amount to enticement, a violation of Stark. During the pandemic, practices slowed down their collection efforts with little or no interference from CMS. But last July, CMS in a memo required physician practices to resume vigorous collection efforts. Piedmont complied, “but patients have been complaining because they had not received a bill before this past summer,” says Ladd.
Supply chain
Physician practices have a few other issues to address as the PHE ends, according to those with whom Repertoire spoke. They include:
- Notification of shortages of critical devices.
- Issues surrounding physician prescribing of controlled substances.
- Staffing issues.
When the PHE ends, the U.S. Food and Drug Administration’s ability to detect early shortages of critical devices related to COVID-19 could be limited, says HHS. During the PHE, manufacturers of certain devices related to the diagnosis and treatment of COVID-19 were required to notify the FDA of manufacturing discontinuances or interruptions. That requirement could end, though the FDA at press time was seeking congressional authorization to extend it.
Telemedicine and controlled substances
Throughout the PHE, the government waived provisions of the 2009 Ryan Haight Act, which requires a practitioner to have conducted at least one in-person medical evaluation of a patient before issuing a prescription for a controlled substance.
“The American Academy of Family Physicians has long urged Congress and the administration to remove barriers for physicians prescribing medication for opioid use disorder, and applauded SAMHSA [the Substance Abuse and Mental Health Services Administration of HHS] and DEA [Drug Enforcement Agency] for temporarily waiving certain restrictions during the PHE,” says AAFP President Tochi Iroku-Malize, M.D.. At press time, AAFP was preparing comments on proposed rules regarding permanent telehealth flexibilities after the PHE ends. Those rules would create new limited options for telemedicine prescribing of controlled substances without a prior in-person exam.
“There is a lot of concern among MGMA members who started treating patients during the pandemic,” says Claire Ernst, director of government affairs, Medical Group Management Association. “Now they are back to in-person visits. The proposed rules didn’t go as far as we wanted. There are still a lot of roadblocks for people who need those medications and for prescribers.”
Staffing issues
Physician offices and healthcare in general throughout the country are still facing staffing shortages among physicians, mid-level providers RNs, medical assistants and front office and billing personnel says Ladd. “It has been very difficult to recruit, hire, and retain employees post-COVID shutdown.”
Those issues are expected to continue after the PHE ends.
One question about staffing involves the supervision of residents. “Family physicians have emphasized that COVID flexibilities impacting the supervision of resident physicians have improved beneficiary access and medical training, particularly the expansion of the primary care exception,” says Dr. Iroku-Malize. During the PHE, CMS expanded the codes that were billable under the primary care exception, meaning that residents could provide more services without the presence of a supervising physician during the visit if the supervising physician was overseeing the care and discussing it before and after visits. AAFP is advocating for the permanent expansion of the Medicare primary care exception, she says.