AAPS Submits Comments to CMS on Reducing Regulatory Burdens


Re: Comments on “Patient Protection and Affordable Care Act: Reducing Regulatory Burdens and Improving Health Care Choices To Empower Patients”

Docket No. CMS-9928-NC, RIN 0938-ZB39

Thank you for this opportunity to submit comments to CMS on ways the agency can lower the regulatory burden on patients and their physicians.

We will make a few targeted suggestions we hope CMS will consider, but ultimately all of ACA and other failed and failing federal policies must be repealed in order to restore American medicine to a solid foundation.

In addition to our comments below, we ask CMS to review our White Paper on Repeal and Replace for a better understanding of changes we believe are needed to lower costs and increase access to high quality medical care. The document is available at: http://www.jpands.org/vol22no1/orient.pdf 

Expanding Physician Choice and Access for Medicaid and Medicare Patients

ACA Section 6401(b) requires physicians ordering and prescribing for Medicaid patients to be enrolled in Medicaid. This creates barriers for Medicaid patients who wish to self-pay to receive medical care from a Direct Primary Care (or other 3rd party free physician) but wish to use their Medicaid benefits for prescriptions, labs, imaging or other needed diagnostics. This is particularly a problem for Medicaid patients seeking treatment for opioid addiction.

In prior rulemaking, CMS has stated the following: “State Medicaid agencies may implement a streamlined enrollment process for those providers who only order or refer, that is, who do not bill for services, similar to the CMS–855–O process in the Medicare program. ”

Page 5905: https://www.gpo.gov/fdsys/pkg/FR-2011-02-02/pdf/2011-1686.pdf

However, some states still claim their hands are tied by CMS, and these states are refusing to allow cash-based physicians the opportunity to enroll solely for the purposes or ordering, referring, and prescribing.  Medicaid patients are thereby losing flexibility to choose a doctor of their choice, even if they are willing to pay for the physician out of pocket. Blocking these patients’ ability to work with direct-pay physicians is harmful to these patients and bad public policy, and it increases costs to taxpayers.

We ask CMS to clarify guidance and regulation to encourage and expand the ability of direct-pay practices to serve these patients, who are too often unable to access care within the Medicaid system.

Similarly, certain states hold the position that cash-pay physicians are summarily prohibited from privately contracting with Medicaid patients.  We know of no federal regulation or statute prohibiting this and ask CMS to encourage states to allow increased freedom of physician choice for Medicaid patients.

While CMS has issued clear rules allowing physicians opted out of Medicare to order, prescribe and refer for their Medicare patients, the contractors administering Part B often fail to properly follow these rules.  Patients of Medicare opted-out physicians are frequently finding that Medicare contractors are rejecting claims for services ordered by their doctor.  We ask CMS to hold the contractors accountable for following the rules and processing claims for these patients’ care.

Implementation of the above suggestions would advance the goals of “empowering patients and promoting consumer choice” and “enhancing affordability.”

Revise Onerous Mandate on Patients of Physicians Opted Out of Medicare

We ask that 42 CFR § 405.415(h) and (o) be revised to better comply with the administrative simplification directives of the Trump administration and statutes as revised by MACRA. In fact, if CMS is looking for a regulation to revoke in accordance with the Executive Order on “Reducing Regulation and Controlling Regulator Costs” which requires the elimination of 2 regulations for every new regulation, 42 § 405.415(o) is a great regulation to consider for deletion.

The MACRA law reduces regulatory burdens on physicians opted out of Medicare, however corresponding regulations on private contracts between opted out physicians and their patients were not properly revised in past rulemaking.  It is no longer proper, or statutorily justified, for a contract between a patient and opted out physicians to be required to be tied to a 2-year period. The private contract could be valid for an indefinite period, as long as the physician remains opted out, and if mutually agreed upon by both the patient and physician.

The elimination of 42 CFR § 405.415(h) and (o) would advance the goal of “empowering patients and promoting consumer choice.”

Suspend CMMI Spending on Experiments Detrimental to Patient Care

The CMS Center for Medicare and Medicaid Innovation, created by Section 3021 of the Affordable Care Act, has been given $10 Billion to test “innovative payment and service delivery models to reduce program expenditures.”

Unfortunately most of what we have seen come out of CMMI is detrimental to patients and physicians and ultimately increases the costs of care by burdening the system with even more bureaucratic rules and regulations. For example much of MACRA’s MIPS and APM overregulation appears to have been created through the efforts of CMMI. Other CMMI pilots have already proven to be unworkable or unsuccessful at lowering costs.

CMS should immediately cease these unethical experiments and instead look to the free market-based solutions that are already lowering costs while increasing quality and access.

Finally, we’d also like to voice our support for the 21 suggestions submitted by the Citizens’ Council for Health Freedom (CCHF) for reducing the regulatory burden on physicians and patients. We agree that implementing the CCHF recommendations would, “enable physicians to practice medicine with ethical integrity, protect patient dignity, and enhance and protect the patient rights and individual freedoms of all Americans.”

Thank you for considering our comments. We encourage CMS to take action without delay. Patients and physicians are in dire need of options to escape failing government policies. We look forward to providing any needed clarification or further discussion.


Jane M. Orient, M.D.
Executive Director, Ass’n of American Physicians & Surgeons

Michael J. A. Robb, M.D.
President, Ass’n of American Physicians & Surgeons

Andrew L. Schlafly
General Counsel, Ass’n of American Physicians & Surgeons

Jeremy J. Snavely
Director of Regulatory Affairs, Ass’n of American Physicians & Surgeons

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