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ACP was instrumental in providing report language calling for the Government Accountability Office to study whether CMS overestimated utilization in the last 10 years

Nov. 8, 2024 (ACP) -- As Congress is considering appropriations bills for fiscal year 2025, the �������ý has been successful in having report language included in the initial versions of these bills that addresses whether the Centers for Medicare & Medicaid Services overestimated the utilization of new Medicare codes.

“The idea is to identify the total adjustments to the fee schedule when there are overestimates of utilization of certain codes, like the chronic care management and transitional care management codes,” said Jared Frost, manager for ACP legislative affairs and ACP Services PAC. “These payments are then withheld due to budget neutrality, do not get returned to the fee schedule and result in higher cuts than may be necessary. If the total amount is substantial, then there's strong justification and reasoning for congressional action to prevent these unnecessary cuts.”

ACP originated the idea for the report language accompanying House and Senate appropriations bills that fund the U.S. Department of Health & Human Services, Frost said. The ACP legislative staff then worked with congressional appropriators and other members of Congress to ensure the language made it into the bills.

As Frost explained, “it is typical for reports to accompany spending bills that help explain and expand congressional priorities, such as funding allocations or policy recommendations. While report language does not carry the force of law, federal departments and agencies do respond and usually carry out what Congress has requested.”

Specifically, the House bill calls for the Government Accountability Office to study if CMS has overestimated the utilization of new Medicare codes or existing codes during the last 10 years in order to identify the cost of these overestimates that are withheld from the Medicare Physician Fee Schedule.

The Senate bill urges CMS to work with Congress to ensure that payment is consistent with the law and notes that CMS may overestimate or underestimate the cost of utilization changes, resulting in substantial adjusting of the fee schedule.

“While ACP greatly appreciates that congressional appropriators included the report language in both House and Senate versions, the House version of the report language is preferable because of the Government Accountability Office study,” Frost said. “ACP's advocacy is now centered around retaining this report language in any final end-of-year legislation, such as an omnibus spending bill, and respectfully asking that the House version be used.”

“ACP believes that for many existing codes, CMS has taken a cautious approach, resulting in potential underestimates of their utilization. This leads one to believe that new codes are the ones typically subject to overestimated utilization,” Frost said. “That's why a GAO study is so vital. Let's know what the overall numbers are.”

According to Frost, the timing of the report language being included in any final fiscal year 2025 appropriations bill depends on Congress when they return to Washington, D.C., after the election on Nov. 5. “They are expected to take up the 12 appropriations and roll them up into one larger spending bill known as an omnibus bill,” he explained. “The timeline would be for Congress to complete this work before the expiration of the current continuing resolution (CR) on Dec. 20, 2024.”

The CR funded the federal government at fiscal year 2024 levels for the 2025 fiscal year, which began Oct. 1, 2024.

“However, it's quite possible that Congress may delay a potential omnibus until next year, resulting in another CR to fund the government into 2025,” Frost said. “The political outcome of the election -- who controls the House and Senate -- may also influence Congress's desire to complete the fiscal year 2024 appropriations bills if one party has more of an advantage in the new 119th Congress next year.”

As for now, “having report language about this issue in both the House and Senate bills makes this an interim win for ACP members,” Frost said. “While we're not across the finish line yet, it would be a substantial win should some version of this language remain in the final fiscal year 2025 omnibus package because it would shine a light on the issue and serve as a basis for ACP's advocacy in preventing Medicare payment cuts to physicians.”

Back to the November 8, 2024 issue of ACP Advocate