December 21, 2020
1. Congress Restores Much of Orthopaedics' Medicare Cuts

2. Depuy Synthes:
Thank You to TOA's Gold Sponsor

3. Texas' e-Prescribing Waiver for 2021: Keep Checking Back for It

4. Surprise Medical Billing Decided at the Federal Level

5. TOA Recommends Prior Authorization Changes; Federal Proposal
6. TOA's Circle of Champions for 2021:
Thanks to Our Supporters

7. The 2021 Texas Legislature Is Just Days Away: What's Next?

8. Orthopaedic-Supported Lawmaker Wins Senate Seat Against Hairdresser

9. Texas Law Requires Clear Representation of Hospital Badges

10. What's Lingering: A Look at the Upcoming Issues in Austin/Washington
TOA is now offering two free hours of online CME to fulfill the state's new opioid prescribing CME mandate. Click here to access it. Click here to view the newest CME requirements in Texas.

1. Congress Resorts Much of Orthopaedics' Medicare E/M Cuts
Congress will restore much of the orthopaedic cuts created by Medicare's 2021 Physician Fee Schedule payment rule in the end-of-year legislation that Congress will take up today.

Click here to access TOA's summary of the legislation. TOA will continue to update this over the next few days, so you may want to continue checking it.

  • A three-year delay of the G2211 add-on code – this is a substantial win, as it frees up additional dollars from the fee schedule and eliminates duplication created by the code. CMS will not be able to implement this code until 2024 at the earliest.

  • An additional $3 billion in funding for the MPFS, which translates to a 3.75% increase across the board for all codes (not just those that were being reduced). We are still analyzing the effects of this increase but understand that it will minimize the cuts to general orthopaedic codes and those proposed for hip/knee substantially.

  • An additional three months of sequestration relief into 2021. Physicians were slated to receive a 2% payment reduction due to sequestration for all Medicare Fee-For-Service (FFS) claims, but the cut is now suspended through the end of the year in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This package extends the delay through the beginning of 2021.

Congress also include a ban on surprise billing for emergency services. See below for more details.

Congress' decision to address the Medicare cuts is a direct result of Catherine Hayes' work at AAOS.
2. Depuy Synthes:
Thank You to TOA's Gold Sponsor
3. Texas' e-Prescribing Waiver for 2021 Coming Within Days
If you are seeking an e-Prescribing waiver for 2021 from the state of Texas, the Texas Medical Board (TMB) is set to unveil its waiver application at any moment.

Click here to continue checking the web page that will host the waiver information.

The new law was created by HB 2174 in the 2019 Texas Legislature:

  • Prescribers may seek a one-year waiver on the grounds that the mandate creates financial or technical hardships.
  • A pharmacist is not required to verify that a prescription is exempt from the e-prescribing mandate.
4. Surprise Medical Billing Decided at the Federal Level
Congress has finally settled the surprise billing for out-of-network services debate at the federal level. Today's end-of-year legislation contains surprise billing measures that closely resemble the Texas law that went into effect in 2019:

  • A ban on surprise billing the patient for emergency services. (Surprise billing/balance billing is viewed as a bill that is sent above and beyond the deductible, co-insurance, and co-pay.)
  • Surprise billing for elective care will still be allowed for instances in which a patient signs off on disclosures from physicians.
  • Surprise billing will still be allowed for ground ambulances. Both state and federal lawmakers recognized that the taxpayer would have to assume the bill if a patient did not pay for the cost of his or her transport.

The surprise billing deal closely resembles the proposal that TOA sent to you last week - click here to review it. The major change between last week and today was the agreement to exclude Medicare and Medicaid rates from what an arbitrator may consider when determining a fair rate for the out-of-network service.

Texas Law vs. Federal Law
The 2019 Texas law - SB 1264 - only affects commercial health plans that are regulated by the state: individual plans (Obamacare), some small group, and state employee plans. Meanwhile, the federal government regulates ERISA plans, which represent the vast majority of commercial health plans sold in Texas.

Physician groups pointed to the state laws in Texas and New York as the ideal ways to address out-of-network bills. Both states center their out-of-network policies on a baseball-style arbitration process in which an arbitrator determines the fair payment.
5. TOA Recommendations Prior Authorization Changes; Federal Policy
Texas Senator Kelly Hancock (R-North Richland Hills) and Rep. Tom Oliverson, MD (R-Spring) asked stakeholders to submit legislative recommendations for the 2021 Texas Legislature.

Click here to view TOA's recommendations.

Some of TOA's recommendations include:

  • Require the health plans to include their medical policies on their web page.
  • Create a timeline for prior authorization decisions.
  • Create an electronic prior authorization program so that staff members are not placed on a telephone hold for hours at a time.

Federal Proposal
The Centers for Medicare and Medicaid Services (CMS) proposed a new prior authorization rule on December 10 that would affect Medicaid, Children's Health Insurance Program, and Qualified Health Plan payers. However, qualified health plan issuers in the marketplace and Medicare Advantage plans would be excluded, and that disappointed stakeholders such as the American Hospital Association.

"The proposed rule is a welcome step toward helping clinicians spend their limited time on patient care," Ashley Thompson, senior vice president of public policy analysis and development for AHA, said in a statement. "We urge the agency to reconsider and hold Medicare Advantage plans accountable to the same standards."

The proposed rule would:

  • Cap the amount of time it takes for payers to issue decisions on prior authorizations to 72 hours for urgent requests and seven days for non-urgent ones.

  • Require payers to include a specific reason when denying a prior authorization request -- regardless of how it was submitted -- and to publicly report data about their prior authorization process. 

  • Medicaid, Children's Health Insurance Program and Qualified Health Plan payers would be required to develop a platform for payer-to-provider data sharing of claims and encounter data, with the desired outcome to allow physicians to know in advance what prior authorization paperwork they need and integrate the platform with a provider’s electronic health record so they can send and receive responses electronically.

Click here to learn more from CMS.

The New 2019 Prior Authorization Law
The Texas Department of Insurance (TDI) proposed a rule to implement Texas' new prior authorization law, SB 1742, which was passed by the 2019 Texas Legislature.

Click here to read the proposed rule, which governs health plans that are regulated by the state of Texas. (ERISA plans are regulated by the federal government.)

If you have taken the effort to view the prior authorization requirements on the health plans' websites as a result of the new law, let TOA know by replying to this e-mail. We would like to hear your feedback.

Some of the key champions who made this happen include Rep. Greg Bonnen, MD (R-Friendswood), Sen. Charles Schwertner, MD (R-Georgetown), Sen. Dawn Buckingham, MD (R-Lakeway), Rep. Julie Johnson (D-Dallas), and Sen. Jose Mendendez (D-San Antonio).

Some of the key provisions include:

(1) An HMO or a preferred provider benefit plan must make the requirements and information about the preauthorization process readily accessible to enrollees, physicians, health care providers, and the general public by posting the requirements and information on the HMO's or the preferred provider benefit plan's public internet website.

(2) The preauthorization requirements and information described by paragraph (1) of this section must:

(A) be posted: (i) conspicuously in a location on the public internet website that does not require the user to login or input personal information to view the information; except as provided by paragraph (3) or (4) of this subsection; (ii) in a format that is easily searchable; and (iii) in a format that uses design and accessibility standards defined in Section 508 of the U.S. Rehabilitation Act;

(B) except for the screening criteria under subparagraph (D)(iii) of this paragraph, be written: TITLE 28. INSURANCE Proposed Sections Part I. Texas Department of Insurance Page 31 of 36 Chapter 19. Licensing and Regulation of Insurance Professionals (i) using plain language standards, such as the Federal Plain Language Guidelines found on; and (ii) in language that aims to reach a 6th to 8th grade reading level, if the information is for enrollees and the public;

(C) include a detailed description of the preauthorization process and procedure; and

(D) include an accurate and current list of medical or health care services for which the HMO or the preferred provider benefit plan requires preauthorization that includes the following information specific to each service:
(i) the effective date of the preauthorization requirement;
(ii) a list or description of any supporting documentation that the HMO or preferred provider benefit plan requires from the physician or health care provider ordering or requesting the service to approve a request for that service;
(iii) the applicable screening criteria, which may include Current Procedural Terminology codes and International Classification of Diseases codes; and
(iv) statistics regarding the HMO's or the preferred provider benefit plan's preauthorization approval and denial rates for the service in the preceding calendar year, including statistics in the following categories:
(I) physician or health care provider type and specialty, if any;
(II) indication offered;
(III) reasons for request denial;
(IV) denials overturned on internal appeal;
(V) denials overturned by an independent review organization; and TITLE 28. INSURANCE Proposed Sections Part I. Texas Department of Insurance Page 32 of 36 Chapter 19. Licensing and Regulation of Insurance Professionals (VI) total annual preauthorization requests, approvals, and denials for the service.
6. TOA's Circle of Champions: TOA's Industry Supporters for 2021
TOA's annual conference sponsors played a key role in ensuring that TOA had the funds necessary to perform its advocacy work. It clearly won't be feasible for TOA to hold its traditional annual conference in 2021 due to the pandemic. However, TOA's dependence on sponsorship dollars will not go away in 2021.

TOA heard from some industry members that would like to help TOA's efforts in 2021 - whether there is a conference or not. In response, TOA created the Circle of Champions program for industry members that would still like to support TOA in 2021.

Click here for more information.

Going forward in 2021, only those industry members who are part of TOA's Circle of Champions will receive these updates from TOA as a special thanks for their support.
7. The 2021 Texas Legislature Is Just Days Away: What's Next?
The 87th Texas Legislature will hold its swearing in on January 12, 2021. After that, things will be quiet until March. Covid or no Covid, the Legislature typically crams all of its work into the March, April, and May period. (The Legislature wraps up on Memorial Day.)

TOA is expecting issues related to the definition of the ankle and podiatry, physical therapy direct access, prior authorization, an additional look at opioids, Workers' Comp and the treatment guidelines, physician payments related to personal injury cases, and much more.

Click here for a look at TOA's bill tracker. We haven't witnessed too many bills related to musculoskeletal care yet. However, we expect the bill list to grow in an exponential manner in January.
8. Orthopaedic-Supported State Rep. Wins Senate Special Election Over Hairdresser
State Rep. Drew Springer (R-Muenster) won a special election for a State Senate seat on Saturday night over Shelley Luther, who is the Dallas-area hairdresser who went to prison for defying the state's lockdown over the spring.

Rep. Springer was endorsed by all of the physician specialty PACs, including the Texas Orthopaedic Political Action Committee.

The seat was vacated when Pat Fallon ended up in a Congressional seat. The spacious Senate seat runs covers Wichita Falls, Stephenville, and parts of Denton and Collin counties. Click here to view the map.
9. Texas Law Requires Clear Representation of Hospital Name Badges
The 2013 Texas Legislature passed legislation that requires hospitals to have photo name identification badges for staff providing direct patient care by requiring the physician providers to identify them by name and license type. The Department of State Health Services’ rule for the 2013 law simply required abbreviations for the license on the name badge.

The 2015 Texas Legislature passed additional legislation that requires the name badges to clearly identify the physician or provider’s license: physician, nurse, podiatrist, respiratory therapist, etc. Due to push back from the hospitals, the effective date was moved to September 1, 2019.

Texas Health and Human Services Commission surveyors check on the name badge criteria during hospital surveys. However, it appears that compliance is still spotty in some cases. As a result, some individuals have started submitting confidential complaints to the state of Texas:

10. TOA's Checklist:
What We're Watching in Austin & Washington
Washington: Coming Soon
  • Congress is announcing the key health care committee assignments for the 2021-22 Congress. Cong. Lizzie Fletcher (D-Houston), who is in her second term, was added to the House Energy & Commerce Committee.

Austin: Coming Soon

  • The Texas Supreme Court will hear arguments on January 4 related to physicians who offer medical care in personal injury cases and whether the physicians' commercial insurance contracts can be considered.

  • The Texas Supreme Court will issue a ruling on chiropractors' scope of practice.

  • The Texas Attorney General will issue a ruling on CRNAs and delegation by physicians.
Texas Orthopaedic Association