February 8, 2023
Wrapping up the year-end legislative business in 2022, Congress passed a last-minute omnibus funding package on December 23. The bill, the Consolidated Appropriations Act, 2023, was signed into law by President Biden just before the new year. The approximately $1.7 trillion spending package funds the federal government through September 30, 2023.
Thanks to significant efforts by ACS members through grassroots advocacy and SurgeonsPAC, and coalition lobbying efforts led by ACS staff, several of the College’s top-priority issues were included in this package. In addition, the bill included updates on Medicare reimbursement and other areas related to payment.
Surgeons and other health professionals were facing nearly 8.5% in cuts to Medicare payment on January 1. The omnibus provides significant relief, but does not entirely stop the cuts. As of January 1, surgeons will experience approximately 2% in payment reduction due to budget neutrality policies in the Medicare Physician Fee Schedule.
The omnibus includes a 2.5% adjustment to the conversion factor for services furnished in 2023, and a 1.25% adjustment for services furnished in 2024. With the temporary adjustment to the conversion factor, surgeons and physicians can expect an approximately 2% decrease in payment relative to the 2022 conversion factor.
The omnibus delays, but does not eliminate, the pending Statutory Pay-As-You-Go Act (PAYGO) sequestration, which is capped at 4% for Medicare. PAYGO cuts will not be implemented in 2023 or 2024, but the balance due is added to the 2025 scorecard.
The omnibus does not pause the current 2% sequestration cuts that were reinstated earlier this year. The legislation is partially paid for by extending the current sequester until 2032.
The omnibus extends the alternative payment model (APM) bonus payment through 2025 at 3.5%. The current bonus payment is 5%.
Several of the ACS’s long-term public health research-related priorities were passed in the final package.
The College successfully lobbied for increased funding for the National Institutes of Health (NIH), National Cancer Institute (NCI), and the Centers for Disease Control and Prevention (CDC) Cancer Prevention and Control programs in fiscal year (FY) 2023.
The omnibus provides $47.5 billion for NIH, an increase of $2.5 billion (5.6%) over the FY22 enacted level, including $7.32 billion for NCI. Additionally, the law provides increases for each line item within the CDC Cancer Prevention and Control programs, including $22.4 million for the National Comprehensive Cancer Control Program and $53.4 million for the National Program of Cancer Registries. Funding for these programs has remained essentially flat for many years, and this is a clear sign that lawmakers responded to the cancer community’s advocacy on this issue.
Lastly, the law includes $1.5 billion, an increase of $500 million, for the Advanced Research Projects Agency for Health, a new agency established to advance biomedical and health breakthroughs.
Congress appropriated $12.5 million each to the NIH and CDC, the same level as FY22, to fund public health research on firearm injury and mortality prevention. Additionally, Congress recommends NIH and CDC take a comprehensive approach to studying the underlying causes of violence and suicide and evidence-based methods of prevention of injury, including crime prevention.
Funding for firearm injury prevention research at the federal level has been a long-standing priority for the ACS and the Committee on Trauma (COT). The College will continue to partner with a broad coalition of organizations to advocate for increased firearm injury prevention research funding.
Ensuring access to trauma care remains a top priority for the ACS. The omnibus bill included several important trauma-related priorities.
Congress appropriated $4 million—an increase of $2 million over previous funding levels—for the MISSION ZERO grant program. The MISSION ZERO grant program was established by the Military Injury Surgical Systems Integrated Operationally Nationwide to Achieve ZERO Preventable Deaths Act (the MISSION ZERO Act) and was authorized as part of the Pandemic All-Hazards Preparedness and Advancing Innovation (PAHPAI) Act.
The MISSION ZERO grant program was funded for the first time in 2021 thanks to the direct advocacy efforts of the ACS, COT, and continued support from and collaboration with the Military Health System Strategic Partnership American College of Surgeons.
The omnibus includes several provisions contained in the PREVENT Pandemics Act (Prepare for and Respond to Existing Viruses, Emerging New Threats) and finalizes several important policies aimed at streamlining and improving the nation’s preparedness and response to future pandemics. Among them, the law would make the CDC Director, appointed by the President, a position requiring Senate confirmation. The law also establishes an office of Pandemic Response Policy within the Executive Office of the President.
Additionally, the omnibus re-authorizes expired grants that would support national trauma care, readiness, and coordination and improve trauma care in rural areas. The grants, administered by the Assistant Secretary for Preparedness and Response, within the Department of Health and Human Services (HHS), would support trauma centers by strengthening coordination and communication, and developing approaches to improve emergency medical and trauma system access.
The omnibus includes language declaring Congress’s commitment to transparency and supporting competition regarding organ procurement organizations (OPOs) and the Organ Procurement Transplantation Network. There have been numerous congressional inquiries and investigations into the United Network for Organ Sharing, which oversees the organ transplantation system, and Congress has cited a broad range of concerns, including improper use of Medicare funds, quality and standards of transplanted organs, and poor management of OPOs.
The omnibus provides an increase to support violence interventions and encourages the CDC to fund a range of actions, including programs that provide de-escalation and conflict mitigation skills. The CDC is urged to scale up existing partnerships with organizations that have demonstrated success in reducing violence and risk factors, including those involving healthcare and community outreach organizations. In addition, the CDC is encouraged to support academic-community collaborations and research to advance the science and practice of violence prevention, while reducing inequities from which such violence stems.
In addition to policies directly championed by the ACS, the omnibus includes several provisions related to issues that the organization continues to closely monitor.
The omnibus includes a variety of grants and other programs aimed chiefly at increasing access to primary care, mental health, and substance use treatment services.
It includes $125.6 million for expanded primary care services, including assigning National Health Service Corps (NHSC) participants to provide substance use disorder treatment services and making payments under the NHSC Loan Repayment Program. It also includes $60 million for grants to public institutions of higher education to expand or support graduate education for physicians (infrastructure development, maintenance, equipment, and renovations) in states with a projected primary care provider shortage in 2025.
The omnibus also provides $12.5 million for the Rural Residency Planning and Development Program, which offers grants for states to start new residency programs in rural areas, including $2 million to increase family medicine and obstetrics training programs in states with high infant morbidity and mortality rates. Finally, the bill creates 200 new residency slots, 100 of which will be for psychiatry and psychiatry subspecialties.
The Children’s Health Insurance Program (CHIP) provides vital affordable health coverage to low-income children and, in some states, pregnant women who do not qualify for Medicaid. The ACS supports efforts to ensure sustainable funding for CHIP and provide continuous eligibility for CHIP beneficiaries. The omnibus extends CHIP funding for 2 years, through 2029, and provides for 1 year of continuous eligibility for children under Medicaid and CHIP, effective January 1, 2024.
Under the American Rescue Plan Act, states had the option (via a Medicaid State Plan Amendment—a simplified pathway compared to 1,115 waivers) to extend Medicaid postpartum coverage to 12 months postpartum, with the policy sunsetting after 5 years (2027). The omnibus removed the sunset, and the state option now is permanent. However, the language does not require 12 months postpartum coverage.
Last year, President Biden signed into law the Dr. Lorna Breen Health Care Provider Protection Act, which establishes a variety of grant programs to address mental health and well-being for healthcare providers. However, regulations under the Physician Self-Referral Law (Stark Law) and the Federal Anti-Kickback Statute prevent physicians who are part of a hospital’s medical staff, but are not directly employed by the hospital, from accessing mental health programs provided by the hospital. These programs could include mental health services, counseling, suicide prevention programs, and substance use disorder treatment for healthcare providers. The omnibus provides an exception to those laws for physician wellness programs.
The omnibus extends the current Public Health Emergency-related telehealth flexibilities through the end of 2024. These include waivers to geographic and originating site restrictions, expansions to the list of practitioners eligible to offer telehealth services, and eligibilities for federally qualified health centers and rural health clinics that will allow for audio-only telehealth services and the recertification of a patient’s eligibility for hospice care to be completed via telehealth. The omnibus also delays the in-person visit requirement before a patient receives tele-mental health services.
In addition, the omnibus extends a policy allowing individuals with certain high-deductible health plans to receive pre-deductible coverage for certain telehealth services.
Unfortunately, the omnibus ultimately left out a handful of polices that the ACS pushed to be included in the final package. The College will continue to champion these issues in the 118th Congress.
While the House passed the Improving Seniors’ Timely Access to Care Act in 2022, the omnibus does not include legislative language reflecting the bill. The legislation would bring much needed transparency and oversight to the prior authorization process under Medicare Advantage.
The Ensuring Lasting Smiles Act (ELSA) would require all private group and individual health plans to cover medically necessary services that repair or restore congenital anomalies. Following successful advocacy efforts, the House passed ELSA in April 2022. Since then, lawmakers have redrafted the legislation to incorporate some technical edits, with input from a broad coalition of physician and patient organizations, including the ACS. While the bill was ultimately not included in the omnibus, the ACS looks forward to continuing to advocate for final passage.
The ACS maintains that the ability to accurately match patients to their health information is essential for health interoperability to advance in a safe, patient-centered manner. The omnibus excludes language that would have repealed the decades-old ban on HHS developing a unique patient identifier to link patients to their information, despite the House and Senate both eliminating the ban in draft versions of their appropriations bills multiple years in a row.
However, the report language accompanying the omnibus states that “the general provision limiting funds for actions related to promulgation or adoption of a standard providing for the assignment of a unique health identifier does not prohibit the department from examining the issues around patient matching, and urges [the Office of the National Coordinator for Health IT] to work with industry to develop matching standards that prioritize interoperability, patient safety, and patient privacy.”
The ACS anticipates continued congressional and stakeholder attention to this issue.
The ACS now turns its attention to the new 118th Congress. The session begins with Democrats maintaining control of the Senate, and Republicans claiming a narrow majority in the House of Representatives. After a series of votes and internal party negotiations, Representative Kevin McCarthy (R-CA) was elected Speaker of the House and officially convened the new Congress on January 9.
The change in congressional composition has implications spanning healthcare policy. Oversight is expected to be a primary focus, with House Republicans planning to conduct hearings on the Biden Administration’s handling of the COVID-19 pandemic, drug price negotiation policies, and healthcare industry security, among other topics.
Republican leadership also has pledged to limit federal government spending, meaning that the Republican House is unlikely to advance healthcare legislation without offsetting spending increases with equivalent cuts, constraining broad policy changes. However, lawmakers are expected to continue work on policy areas left unresolved at the end of the last Congress, such as prior authorization reform, advancing mental health and substance abuse care, and making permanent some of the telehealth flexibilities currently in effect through 2024.
The PAHPAI Act, which contained several important trauma advocacy provisions, will need to be re-authorized this year. The ACS looks forward to working with Congress to build upon PAHPAI and strengthen the nation’s preparedness system by establishing a National Trauma and Emergency Preparedness System.
Additionally, though Congress mitigated cuts to Medicare reimbursement, physicians are still grappling with decreased payment amidst record inflation. Long-term reform to the Medicare payment system is needed, and the ACS will continue to lead efforts working with Congress to find a solution.
As always, the legislative agenda will be shaped by stakeholders, such as the ACS, as we continue our advocacy efforts. The College remains focused on growing and supporting the surgical workforce, increasing public health research funding, alleviating administrative burden, strengthening public health preparedness, and reforming the Medicare payment system in the 118th Congress.
Carrie Zlatos is the Senior Health Policy Advisor in the ACS Division of Advocacy and Health Policy in Washington, DC.