On Thursday evening, the Senate passed S. 610, the "Protecting Medicare and American Farmers from Sequester Cuts Act," by a 59 to 35 vote. Earlier in the week, the House passed the bill in an essentially party-line 222 to 212 vote with Rep. Adam Kinzinger (R-IL) as the lone Republican to vote in favor. It now heads to President Biden for his signature into law. This legislation averts most of the Medicare cuts that were slated to go into effect in January 2022, and provides the Senate with a fast-track process to address the nation's debt limit.

How S. 610 addresses the various Medicare "cliffs:"

• Medicare Sequester: The Medicare sequester payment reductions (2%) that have been postponed through the COVID-19 pandemic are delayed for an additional 3 months (until March 31, 2022); followed by a 3-month 1% reduction in Medicare payments (April 1, 2022 - June 30, 2022); with the moratorium phasing out completely after June 30, 2022.

• PFS "Budget Neutrality" Cuts: Provides a one-year increase in the Medicare Physician Fee Schedule (PFS) of 3.0%. Note that this does not fully obviate the scheduled 3.75% reduction, and ultimately amounts to a 0.75% cut in the PFS conversion factor for CY2022.

• PAYGO Cuts: Provides a one-year delay of the statutory 4.0% "PAYGO" sequestration cuts. PAYGO is a budget rule that requires any mandatory spending increases or tax cuts to be offset by decreases in spending or tax increases. These PAYGO cuts were triggered by COVID-19 relief legislation that passed earlier this year, with Medicare PAYGO cuts capped at 4.0% (in practice, PAYGO cuts have always been waived by Congress and have never been allowed to go into effect).

The legislation also provides a one-year delay of payment reductions for the clinical laboratory fee schedule and private payer laboratory data reporting requirements, as well as a one-year delay of the Medicare radiation oncology model.

Additionally, the Medicare sequester relief is offset by an increase in the sequester in the 2030 fiscal year - for the first half of the year, the total mandatory sequester reduction will be 2.25%; for the second half of the year the cut will be a total of 3.0%. Essentially, the temporary Medicare sequester relief for the first half of 2022 is paid for on the back end by increasing the sequester percentage in 2030.

In total, S. 610 provides short-term relief to mitigate most of the scheduled Medicare cuts, but still allows for a cumulative 2.0% cut to physician reimbursements for CY2022.

Overall, the congressional effort to prevent the Medicare cuts was a bipartisan endeavor that picked up steam in recent weeks, but the inclusion of the fast-track procedure for the debt limit in this bill was a major source of ire for Republicans who had made it clear for quite some time that they would not help Democrats raise the debt ceiling. The addition of this so-called "poison pill" provision capped several weeks of frustration and exacerbated already raw nerves between the parties.

ACEP's federal advocacy to avert the Medicare cuts started at the beginning of the year, wasting no time in building off our successful advocacy on the issue in 2020. Including multiple grassroots efforts and direct advocacy at LAC2021, ACEP has worked tirelessly to urge legislators to prevent the cuts, provide stability for emergency physicians especially as the pandemic continues, and provide longer-term relief that allows the physician community to develop Medicare payment policy solutions that eliminate the annual threat of large payment cuts. While we were able to mitigate the vast majority of the cuts for 2022, ACEP will continue working at the federal level to ensure appropriate, stable Medicare payment that reflects the value of emergency medicine and ensures continued access to lifesaving emergency care that our patients need and deserve.

On Wednesday evening, the U.S. House of Representatives approved the ACEP-supported "Dr. Lorna Breen Health Care Provider Protection Act" (H.R. 1667), sponsored by Rep. Susan Wild (D-PA), by an overwhelming, bipartisan vote of 392 to 36. The U.S. Senate passed its own version of the bill, led by Sen. Tim Kaine (D-VA), in early August, but a few minor changes were made to that text during the House legislative process, which will require the Senate to vote on the House-passed bill one final time. As soon as H.R. 1667 is formally delivered to the Senate, we expect that chamber to advance the legislation by unanimous consent -- clearing the way for President Biden to sign the bill into law.

As you know, H.R. 1667 is named in honor of Lorna Breen, MD, FACEP, an ACEP member who died by suicide in April 2020 after being overwhelmed by the influx of COVID-19 cases in New York City. Dr. Breen's death directly led to ACEP's work with Sen. Kaine to develop this legislation honoring Dr. Breen, which seeks to provide mental health and substance-use disorder support for physicians and other health care providers and address the stigma of receiving such help.

The "Dr. Lorna Breen Health Care Provider Protection Act" provided the framework for ACEP's successful efforts to secure $140 million in funding for the bill earlier this year as part of the American Rescue Plan and the subsequent grant distribution announcement by HRSA of those funds on July 16.

In addition to providing direction to HRSA about how the grant programs should be conducted and overseen, H.R. 1667 would:

• Require HHS to disseminate best practices to prevent suicide and improve mental health and resiliency among health care providers;
• Establish a national awareness campaign to encourage health care providers to seek support and treatment for mental/behavioral health concerns;
• Award grants or contracts to promote mental health among health care professionals; and
• Support mental/behavioral health training for health care students, residents, or other health care professionals.

In addition to the Dr. Breen legislation, the U.S. House of Representatives also approved two other bills endorsed by ACEP on Wednesday evening:

• H.R. 1193, the "Cardiovascular Advances in Research and Opportunities Legacy (CAROL) Act," sponsored by Rep. Andy Barr (R-KY), which would authorize an NIH grant program in coordination with the National Heart, Lung, and Blood Institute to support research on valvular heart disease (VHD). The bill also requires the CDC to carry out projects to increase education, awareness, or diagnosis of VHD, and to reduce cardiac deaths caused by VHD. H.R. 1193 was approved by voice vote.
• H.R. 4555, the "Oral Health Literacy and Awareness Act," sponsored by Rep. Tony Cardenas (D-CA), which would require HRSA to establish a public education campaign across all relevant programs to increase oral health literacy and awareness. H.R. 4555 was approved by a vote of 369 to 36.

As we have previously reported, the second interim final rule implementing the No Surprises Act is significantly flawed. The rule includes a disastrous policy to make the qualifying payment amount (the QPA-i.e., the median in-network amount) as the primary factor that the arbiter can consider during the independent dispute resolution (IDR) process when determining the appropriate payment amount for out-of-network services. ACEP remains concerned and we continue to point out that this  policy will encourage insurance companies to narrow their networks even further - harming both physicians and patients.

ACEP has made it one of our top advocacy priorities to push back against the rule and request that the Biden Administration immediately modify the IDR process.

We are continuing our advocacy through both legislative and regulatory avenues to ensure that the critical patient protections of the No Surprises Act are carried out in a balanced and impartial manner as clearly intended by Congress.

Below is an update on the latest activity on this issue.

On Thursday, ACEP and the North Carolina College of Emergency Physicians sent a joint letter to all members of the North Carolina congressional delegation, alerting them to recent and deeply concerning actions by insurers in the state threatening termination of contracts with in-network providers. Insurers are already exploiting the recent interim final regulation (IFR) for the No Surprises Act that prioritizes the insurer's Qualifying Payment Amount (QPA) in the independent dispute resolution (IDR) process, using it in an attempt to force emergency physician groups and other providers to accept massive cuts to their rates.

In many cases, groups have been in stable contracts with plans for years without any changes or updates but are now being systematically targeted for major rate cuts. Such actions against in-network providers were one of the many consequences ACEP and others warned Congress about throughout the legislative debate on surprise billing, and one of the reasons we strongly advocated for an IDR process that requires equal consideration of a wide variety of factors without unfairly weighting the process in favor of one party over another. The statute of the law of the No Surprises Act clearly reflects that balance, but unfortunately, the regulatory implementation of the law is inconsistent with the fair and unbiased process that was intended.

ACEP is already in contact with several members of the NC congressional delegation in response to our letter and will provide updates as these efforts progress.

On Monday, ACEP and the Emergency Department Practice Management Association (EDPMA) submitted an official response to the second interim final rule implementing the No Surprises Act. ACEP and EDPMA's response follows-up on the letter that we submitted on August 10, 2021 specifically related to the IDR process, as well on our initial response letter to the reg sent on November 11, 2021.

While this policy has garnered the most attention, it is not the only policy in the rule.

Please click here for ACEP's summary of the rule.

Read the Regs & Eggs blog for highlights of our comprehensive response to this major rule.

On Thursday, the American Medical Association (AMA) and American Hospital Association (AHA) filed a complaint and motion to stay against the federal government related to the implementation of the No Surprises Act. The lawsuit specifically centers around the flawed IDR process, asking the federal district court for the District of Columbia to postpone the implementation of that specific provision of the law and requesting that the Departments of Health and Human Services, Labor, and Treasury make the necessary regulatory corrections to ensure that the law is implemented appropriately and in line with congressional intent. In no way would the lawsuit prevent or delay the important patient protections embedded in the law from taking effect on January 1, 2022.

ACEP issued a press statement supporting the goals of this lawsuit. As previously stated, we are continuing to explore all avenues- including legal, regulatory, and legislative options-to push back against the dangerous IDR policy.