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Advocacy Update: February 2021

February 3, 2021

The last few months have seen significant movement across a broad array of issues.

APA-Led Activities

Who Do You Know?

On January 3, 2021 the 117th Congress convened with 66 freshman members of Congress and state legislatures are convening in all 50 states. Now is a great time to use the tools on APA’s Action Center to look up your lawmakers and let APA know if you have a relationship with a lawmaker. Your feedback and insights on a lawmaker’s perspective are vital to APA’s legislative and political strategies.

APA Welcomes Biden Administration

At the end of 2020, APA congratulated the incoming administration and shared figures with President Biden and Vice President Harris on unprecedented amounts of Americans dealing with mental health concerns. APA urged the administration to prioritize strengthening the ability to respond to this increased demand for psychiatric care, highlighting the potential resounding impact of untreated mental illness and substance use disorders. The letter presented several recommendations for Biden’s first 100 days, including: improving access to mental health and substance use treatment, making investments in the mental health system, and repealing regulations and executive orders aimed at weakening the ACA and reducing protections against discrimination.

Dr. Tamara O'Neal Memorial Research Grant

The American Foundation for Firearm Injury Reduction in Medicine (AFFIRM) and the Emergency Medicine Foundation (EMF) are pleased to accept applications for the Dr. Tamara O’Neal Memorial Grant in Firearm Injury Research. Dr. O’Neal was an Emergency Medicine physician dedicated to the mentorship and advancement of underrepresented communities.

The aim of this $40,000 grant is to support underrepresented academic physicians and scientists who, like Dr. O’Neal, have chosen to dedicate their lives to supporting and enhancing urban underserved communities. The focus of this grant is to conduct a study related to identifying or mitigating root causes of firearm injury, secondary/tertiary outcomes of firearm injury (including recurrent injury and mental health consequences), or promising prevention strategies.

Applicants must identify as female and be a member of a group underrepresented in medicine (URM), defined as those racial and ethnic populations that are underrepresented in the medical profession relative to their numbers in the general population. Defined as African American/Black, Alaskan/Hawaiian Native, Hispanic American, and Native American. Applicants must have an MPH, MD, DO, or PhD, with a faculty appointment in a department or division of emergency medicine.

Deadline for Applications: March 31, 2021. Apply here »

Executive Branch Activities

Medicare Physician Fee Schedule and Quality Payment Program

In its final rule on the 2021 Medicare Physician Fee Schedule and Quality Payment program, CMS has reaffirmed the plan to finalize an increase in payments for all outpatient E/M services, and to simplify documentation requirements by basing code selection solely on medical decision making or time. APA successfully advocated for a 7% increase in total allowed charges (now 8% due to legislation late in 2020 that increased the conversion factor above what was originally finalized) for psychiatry which in large part is due to the increase in the outpatient E/M payments. In an attempt to mitigate negative payment adjustments for other mental health professionals because of a drop in the Medicare conversion factor between 2020 and 2021, CMS increased payments for psychiatric evaluations and psychotherapy, however, did not increase the reimbursement for psychotherapy when done with an E/M service. APA has opposed the lack of parity and will soon meet with CMS. In the final rule, CMS noted that it will continue to pay for audio only telehealth services only through the end of the public health emergency (PHE) and will not make it permanent. Instead, CMS established a new telehealth code that will be used to determine the need for an in-person visit. In addition, CMS made permanent a number of telehealth provisions such as group therapy, resident supervision, and relaxed the frequency limitations for services provided in nursing homes.

The 2021 MPFS Final Rule does not make significant changes to quality programs, in recognition of the need for clinicians to focus on the response to the COVID-19 PHE. Among the few changes made was a continuation of CMS’s re-weighting of Merit-based Incentive Payment System (MIPS) performance categories to increase the weight of cost measures in relation to the weight of quality measures. This moves toward a statutory mandate to bring the cost and quality dimensions into equal weighting by the 2022 performance period. In addition, For the 2020 performance year, CMS will be using its Extreme and Uncontrollable Circumstances policy to allow clinicians, groups, and virtual groups to request reweighting of one or more performance categories due to the current COVID-19 pandemic PHE. CMS also introduced a new high-weighted COVID-19 clinical trials improvement activity which provides an opportunity for clinicians to receive credit in MIPS for these activities.

APA has developed a number of resources (Quick coding guide, power point) for APA members related to the changes to coding and billing of outpatient E/M services. Members can access those and future resources through the coding and reimbursement section on the APA website.

Electronic Prior Authorization

APA responded to a proposed rule and several associated requests for information (RFIs) around electronic prior authorization. In the proposed rule, CMS outlined a more streamlined process for the electronic prior authorization process, including a requirement that certain payers provide a specific reason for ePA denials to physicians within 24 hours. While this proposed rule is limited in scope to a handful of payers, APA recommended that much of the rule also be applied to Medicare and Medicare Advantage.

Proposed Rule: Registering Emergency Medical Services Agencies Under the Protecting Patient Access to Emergency Medications Act of 2017

APA commented on a proposed rule that would revise the Protecting Patient Access to Emergency Medications Act of 2017 to include emergency medical services agencies. Concern was expressed about any expanded use of certain controlled substances in out-of-hospital contexts without physician oversight and approvals, including ketamine (an FDA-approved medication for anesthesia). Specific concern was raised about the use of ketamine with individuals solely for the purposes of sedating them when being detained by the police and described as having “excited delirium.”  APA emphasized that the standing orders established in all jurisdictions must include clear, evidence-based protocols for the administration of the permitted controlled substances, and any exceptions to such protocols must require review and approval through a verbal or other direct order for the particular situation from a supervising physician.

Request for Information on Regulatory Relief to Support COVID Recovery

APA responded to CMS’s request for information regarding the regulatory changes made during the COVID-19 public health emergency. APA outlined that several of the regulatory changes made have been beneficial to health care providers, while others, if continued, would be detrimental to mental healthcare absent the exigencies of the pandemic. APA urged CMS to maintain a number of recently implemented telehealth flexibilities which have been beneficial to providing mental and behavioral healthcare to psychiatric patients. APA also presented some regulatory changes that could negatively affect the overall quality of care of psychiatric patients and urged CMS to discontinue these following flexibilities after the PHE: 1) the Office of Civil Rights waiving the enforcement of its authority around the HIPAA Privacy Rules, 2) waiving of the general supervision requirements of nurse practitioners and physician assistants by a physician after the PHE.

Effective and Innovative Approaches in Health Care in Response to COVID-19

APA responded to a request for information from the Department of Health and Human Services, to provide information on innovative approaches and best practices in health care in responses to the COVID-19 pandemic. Due to new safety limitations and the need to physically distance, the availability of telehealth and other evidence-based models of integrated care like the Collaborative Care Model were identified as strategies to safely and effectively improve access to care.

Psychiatry’s Deep Dive into the COVID Relief Package

On December 27, 2020, President Donald Trump signed the Consolidated Appropriations Act into law. This end of the year package contained emergency funding and programs designed to address the COVID-19 pandemic as well as funding for the federal government during the 2021 fiscal year. More specific for psychiatry, this law contained the Strengthening Behavioral Health Parity Act (H.R. 7539) and included several key mental health and substance use-related programs in its combined $1.4 trillion year-end appropriations and COVID-relief funding package.

Victory! Congress Enforces Mental Health Parity Compliance

The Consolidated Appropriations Act contained the Strengthening Behavioral Health Parity Act, which will give the government important tools to stop health plans from discriminating against people with mental illness and is the product of negotiations between the House and Senate related to the bipartisan Mental Health Parity Compliance Act.

This is a tremendous accomplishment. Given how difficult it is to move legislation in Congress in these polarized times, it is rare for legislation like the Strengthening Behavioral Health Parity Act to pass within two years, if at all. This singular achievement by our profession can be credited to the many APA members who advocated for the legislation, APA’s President, Dr. Jeffrey Geller, who testified in support of the parity legislation in Congress, and our bipartisan legislative champions. This victory would not have happened without your efforts or the bipartisan support they produced.

In 2019, APA worked with Senators Chris Murphy (D-CT) and Bill Cassidy, M.D., (R-LA) and Representatives Katie Porter (D-CA) and Gus Bilirakis (R-FL) to draft and introduce the Mental Health Parity Compliance Act, which informed the final version of the legislation. On a federal level, it is very uncommon for newly introduced legislation to pass in just one session of Congress!

Despite the passage of the Mental Health Parity and Addiction Equity Act (MHPAEA) twelve years ago, Insurance plans continued to violate the law by discriminating every day against those with mental illness and substance use disorders. This new law will require federally regulated ERISA plans as well as state-regulated insurance plans to:

  • Perform comparative analyses of their MH/SUD benefits to medical and surgical benefits and provide those analyses to the U.S. Department of Labor (DOL) or state insurance commissioners.
  • Make necessary corrections to their plans if the DOL deems them noncompliant with current mental health parity laws or inform their beneficiaries of the plans’ noncompliance

Additionally, the DOL Secretary will send an annual report to Congress that identifies plans that are out of compliance with mental health parity laws.

The Strengthening Behavioral Health Parity Act Impact on States

The new federal law is essentially identical to the APA’s model state parity legislation that many states have enacted and others are pursuing, but some nuances are important to understand. According to the new law every insurer in every state must perform the parity compliance analyses and the analyses must be provided to state insurance departments upon request starting February 12. However, the new law does not require state insurance departments to actually collect the analyses, review them, and correct the problems they may find. Additionally, the new federal law does not require Medicaid managed care organizations to perform comparative analyses to ensure compliance with the parity law.

APA’s State Government Relations staff is already working with interested district branches and state associations to encourage state insurance departments to begin collecting this information.

APA’s Leadership for Crisis Care Services Pays Off

APA also applauded the $35 million that the Consolidated Appropriations Act included within the Mental Health Block Grant specifically for states to use in implementing crisis intervention services. APA led the lobbying and coalition efforts in support of this set-aside. This funding will support crisis call center hubs, mobile crisis teams and crisis receiving and stabilization facilities that provide coordinated care to those experiencing mental health crises.

Increased Support for Mental Health and Substance Use Disorder Programs

APA was also pleased with that this year-end funding and stimulus package contained support for several mental health and substance use-related programs and initiatives.

  • A total of $6 billion for the Substance Abuse and Mental Health Services Administration (SAMSHA) in annual appropriations, an increase of $133 million over FY 2020 funding, and an additional one-time $4.25 billion in funding for SAMSHA as part of the COVID-relief package. The year-end package also includes $600 million in new COVID-relief funds for Certified Community Behavioral Health Clinics (CCHBC) and extends the CCBHC demonstration program by three years. Also included in the package is $16.2 million in funding for the Minority Fellowship Program.
  • An increase of funding (to $16 million) for the Substance Use Disorder Treatment Workforce Program, a loan repayment program, through the Health Resources and Services Administration. Across the funding packages, approximately $4 billion is appropriated for fighting the opioid epidemic, and increase of $85 million.
  • Level funding for Community Health Centers, the National Health Service Corps, and the Teaching Health Center Graduate Medical Education Program for each of fiscal years 2021 through 2023 as part of Medicare programs requiring annual extensions.
  • Federal research agencies also saw increases over last year’s funding with a total appropriation of $1.47 billion for the National Institute on Drug Abuse, $390 million for the National Institute on Minority Health and Health Disparities, and $2 billion for the National Institute of Mental Health.
  • Finally, included in the appropriations package was $25 million for research related to firearm violence and prevention.

Congress Takes Initial Steps Forward to Increase Access for Telemedicine

The Consolidated Appropriations Act also waived geographic and originating site requirements for mental health services delivered via telehealth, which will allow Medicare beneficiaries to receive these services in their homes. However, APA remains concerned that in order to receive such access after the end of the Covid public health emergency, beneficiaries must receive at least one in-person mental health service within six months of their first telehealth service and Congress gave permission for the US Health and Human Services Secretary to develop additional in-person requirements. APA was also disappointed that this provision does not include appropriate audio-only services, like services provided over the phone where other options are not viable. APA will continue to advocate for expanded access to telehealth services.

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