CCHF Comments on CMS Request for Information - Innovation Center New Direction

CCHF Comments on CMS Request for Information


Innovation Center New Direction

November 20, 2017

Submitted by Twila Brase, RN, PHN President and Co-founder



Citizens’ Council for Health Freedom (CCHF), a national grassroots organization representing patients, physicians and other freedom-minded practitioners nationwide submits the comments below in response the Centers for Medicare and Medicaid Services’ (CMS) Request for Information on a proposed new direction for the Innovation Center. CMS is seeking input on ways it can reduce fraud, waste, and abuse and improve program integrity. It seeks to test new ideas that balance burdens on patients and physicians in a way that can exist as a new model or also be layered onto existing models.

C. Questions

1. Do you have comments on the guiding principles or focus areas?

Citizens Council for Health Freedom (CCHF) supports patient-centered, affordable, confidential care and true and affordable (indemnity; major medical) health insurance. We appreciate the opportunity to make the following comments on and answer questions regarding plans to create a new direction for the CMS Innovation Center:

a. Choice and Competition in the Market:

Choice and competition increase options and affordability for patients. We agree that there is intrinsic value to promoting competition based on quality, outcomes, and cost – however the patient, not a government agency, should be the one determining the value and quality of a physician or practice. Burdensome reporting requirements to determine ‘quality’ under MACRA and MIPS are decreasing the quality of care and time spent with patients.They are a direct cause of physician burn-out, have not been shown to actually benefit patient treatment and have harmed the patient-doctor relationship.

A 2016 Physicians Foundation survey of 17,326 physicians found that 49 percent are experiencing burn-out and would not recommend medicine as a career to their children. In what should scare every American in and outside the D.C. Beltway, 48 percent of the surveyed physicians are planning to “cut back on hours, retire, take a non-clinical job, switch to concierge medicine, or take other steps limiting patient access to their practice.” Furthermore, 17% of physicians have closed their practice to Medicare recipients or limit the number they see.To promote affordability, expansive choices and true competition in the market, CMS should rigorously limit quality reporting, instead giving Medicare recipients direct access to health care dollars with a reason to shop. Give them skin in the game.

b. Provider Choice and Incentives:

CCHF agrees that voluntary models – not mandates – are best-suited for providing physicians with the option(s) that work best for their individual practice and their individual patients. In addition, reducing burdensome requirements and unnecessary regulations will allow physicians to focus on providing the best care possible to their patients. An amazing 71% of physicians surveyed by the Physicians Foundation described their relationships with patients as the most satisfying aspect of medical practice. This is why they sacrificed years of their lives: patients. They never intended to be data clerks for the federal government. With 10,000 Americans enrolling in Medicare every day, CMS should do everything possible to help physicians regain the joy of practicing medicine.

c. Patient-Centered Care:

Every patient wants a physician who cares. We support patient-centered care, but we have seen federal Medicare (and Medicaid/Obamacare/managed care) requirements center the doctor’s attention and the hospital’s attentions on paperwork and payment formulas. The ability to care is being driven out of the practice of medicine. Patients are the purpose of a health care system. Without a patient, there’s no need for doctors or hospitals.

Federal paperwork requirements, the unfunded EHR mandate, quality reporting requirements, “value-based” payment systems, structured data requirements, public health and population health requirements and convoluted payment systems (MACRA/MIPS/ACOs/APMs) take the focus away from patients. Federal requirements decrease time spent actually talking to, diagnosing, accessing and listening to the patient. In short, the federal government is an impediment to good and patient-centered care.

d. Benefit Design and Price Transparency:

Price transparency is essential to maintaining a free-market health care system and retaining patient-centered care. However, CCHF cautions CMS from mandating transparency. Transparency occurs naturally in the free-market. Unless there’s a price, there’s no payment and no acquisition of any good or service -- unless provided charitably. Medicare’s third-party payment system (and advance of capitated managed care pricing in Medicare Advantage) discourages transparency of price and coverage. If CMS puts the dollars back in patient’s hands, transparency may emerge almost overnight.

We further caution against using “data driven insights” as a baseline for determining benefit design and cost-effective care. No patients are identical – each is unique in medical needs and should not be confined to a set of standardized treatment methods. CCHF believes the appropriate treatment for each patient is best determined by their physician—in consultation with the patient. Markets police themselves, including costs and quality. If a patient feels a physician is providing inadequate or inappropriate care, the patient can vote with their feet. They can choose to see a different physician. But today, particularly in Medicare Advantage patient choices are limited.

Furthermore, CMS has secretly assigned at least 9 million Original (non-HMO) Medicare enrollees into an HMO arrangement—an ACO—without consent. This does not acknowledge the Medicare patient’s rights and it is not transparent.

e. Transparent Model Design and Evaluation:

CCHF appreciates the opportunity to share our ideas to improve patient care, reduce physician burdens, and find ways to restore joy to the practice of medicine and undergird the all-important patient-physician relationship.

f. Small Scale Testing:

CCHF agrees that there are benefits to testing and validating practice and payment initiatives before rolling them out across the entire market. It is crucial for Medicare patients and the American tax payer that CMS expand access to care models that show reduced spending and increased patient choice. That said, it is important that participation in testing and research be voluntary. Please see CCHF’s recommendations in the following section.

2. What model designs should the Innovation Center consider that are consistent with the guiding principles?

Free-market models are key. The Medicare program, under its current design, has an unfunded liability of more than $43 trillion.Some say it could exceed $100 trillion (“Medicare by the Scary Numbers, John Goodman and Laurence Kotlikoff, The Wall Street Journal, June 24, 2013). The Medicare program is adding 10,000 baby boomer recipients per day.Almost since enrollment began in 1966 as a “free” program, Congress has tried to constrain costs. In 2008, the program’s costs first exceeded its revenues.

As a result, Medicare enrollees now face a growing number of restrictions on access to care as well as multitudinous consent and privacy violations related to data reporting, annual wellness visits and predictive analytics. Yet, Medicare continues underfunded and unsustainable. Why? In June 27, 1997, Cato Institute’s Doug Bandow wrote in The Washington Times: “Current recipients receive over $100,000 more in benefits than they pay in.”The 2017 Trustees report warns the depletion of Medicare funds in 2029.6

The 2016 Annual Report of The Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Fundsincludes, but is not limited to the following concerns:

(a) Unsustainable Fund: Depletion of the Medicare Part A [hospitalization insurance] trust fund is expected in 2028. The 2016 Medicare Trustees’ report states, “expenditures will increase in future years at a faster pace than either aggregate workers’ earnings or the economy overall and that, as a percentage of GDP, they will increase from 3.6 percent in 2015 to 6.0 percent by 2090.” However, if the reductions in price increases for physicians and other health services are not sustained, Medicare spending would be “roughly 9.1 percent of GDP in 2090.”

(b) Inadequate Revenues: “The HI [hospitalization insurance] trust fund has not met the Trustees’ formal test of short-range financial adequacy since 2003. ... The Trustees project that HI tax income and other dedicated revenues will fall short of HI expenditures in most future years. The HI trust fund does not meet either the Trustees’ test of short-range financial adequacy or their test of long- range close actuarial balance,” states the report.

c) Reduced Access to Care Projected: Trustees warn, “However, if the health sector cannot transition to more efficient models of care delivery and achieve productivity increases commensurate with economy-wide productivity, and if the provider reimbursement rates paid by commercial insurers continue to follow the same negotiated process used to date, then the availability and quality of health care received by Medicare beneficiaries would, under current law, fall over time compared to that received by those with private health insurance.”

With the new principles in mind, CCHF respectfully submits the following preliminary ideas for for CMS consideration as model designs:

A. Allow Medicare Recipients to Voluntarily Opt-Out of Medicare and Still Collect Social Security

Americans enrolled in, or soon to be eligible for Medicare, have expressed a desire to opt out of the Medicare Part A (hospitalization insurance (HI)) program. As the Social Security Administration writes in their Program Operations Manual System (POMS):

“some individuals entitled to monthly benefits have asked to waive Hospital Insurance (HI) entitlement because of religious or philosophical reasons, or because they prefer other health insurance.”

In 1993, the SSA published an executive instruction in the POMS without public notice or comment. They noted this request, but claimed senior citizens cannot opt out of Medicare – unless they are willing to lose their social security retirement benefits:

“Individuals entitled to monthly benefits which confer eligibility for HI may not waive HI entitlement. The only way to avoid HI Entitlement is through withdrawal of the monthly benefit application. Withdrawal requires repayment of all Retirement, Survivors, Disability Insurance (RSDI) and HI benefit payments.”

In 2002, the SSA added the following language to strengthen their claim:

“a claimant who is entitled to monthly RSI (Retirement or Survivors Insurance, ie. Social Security) benefits cannot withdraw HI coverage only since entitlement to HI is based on entitlement to monthly RSI benefits.”

In a 2012 appellate court ruling on Hall vs. Sebellius, which found for the federal government, Judge Karen LeCraft Henderson, in her dissent wrote, “I believe that the SSA’s Program Operations Manual System (POMS) gives the SSA power that the Congress in no way provides.” (Emphasis added.) She said Medicare law requires the individual to file “application for old-age insurance benefits” to gain the entitlement. She then states, “To be ‘entitled’ to SSRB, then, an individual must first apply therefor; if he fails to file an application, he is not ‘entitled’ to [Medicare] benefits regardless of his age or working history.” On August 24, 2012, the plaintiffs petitioned the U.S. Supreme Court, however, on January 7, 2013, the Supreme Court denied the writ of certiorari.

In light of the ever-increasing cost of Medicare, a CMS Innovation Center pilot project to allow seniors to opt-out of Medicare is just common sense. Some Medicare recipients would prefer to maintain private insurance through a job or spouse. Some veterans have expressed their desire to stay on TRICARE instead of being forced to shift to Medicare. Because this program would be voluntary for individuals, it would have no negative impact on other individuals who wish to stay in the current Medicare system. It would also reduce Medicare spending by reducing the number of Medicare beneficiaries. Finally, the program would promote patient choice and freedom for seniors who wish to take charge of their health care.

B. Allow Patients/Physicians to Opt-Out of Medicare on Service by Service Basis

CCHF believes another way to improve access to patient-preferred medical services is to allow patients and physicians to “opt-out” of Medicare on a case by case basis. In certain instances, Medicare refuses to cover certain Medicare-covered procedures and Medicare patients are prohibited from paying out-of-pocket. A 1997 law (Balanced Budget Act, section 45078) essentially forbids private contracts between patients and doctors. With few exceptions, Medicare recipients cannot pay cash for a Medicare- covered service that Medicare denies unless the doctor has opted out of Medicare—and only if patients can find opted-out physicians that specialize in the care they need. Most physicians cannot afford to opt out, so the law prohibits private contracting (agreed-upon cash payments) between elderly patients and their doctors.

Rationing is expected and senior citizens needs defensive tools, including the option of paying any doctor cash for the care they want and need. For example, Obamacare cut $500 billion from Medicare. It also enacted three administrative entities that we believe were established to centralize decision-making and advance health care rationing: the Independent Payment Advisory Board (IPAB), Patient-Centered Outcomes Research Institute (PCORI) and CMS Innovation Center.

The centralization of control is seen most clearly in the Comprehensive Joint Replacement pilot (research) program in which 800 hospitals and their elderly patients were forced to participate. This involuntary research is not the kind of small-scale testing CCHF would support. Pilot projects and patient participation should be voluntary. This CMS RFI showed the possibility of a less onerous future for patients and doctors under the proposed new direction of the Innovation Center. For example, we support the proposed HHS rule issued in August 2017 to permit a one-time opt-in for hospitals to the CJR project—but we add that patients should not be forced to participate even at these hospitals without their express voluntary, fully informed consent.

Doctors, hospitals and others who accept Medicare patients are at enormous financial and legal risk. More than 130,000 pages of Medicare regulations must be meticulously followed.In 1996, Congress made health care fraud a federal crime – a felony. Even minor billing errors can be considered fraud and extrapolated across the practice. In addition, Obamacare increased the fines per violation from $10,000 to $50,000.10 A mechanism to free physicians and patients from this system – when it is determined by the patient and doctor to be in the best-interest of the patient – should be thoughtfully considered as a model design.

Allowing Medicare patients to pay out-of-pocket and allowing all physicians to accept direct payment for treatment, regardless of whether or not the patient is in Medicare or whether the service is covered by Medicare, will improve the freedom and quality of care of patients while keeping prices the same or lower than current levels.

C. Allow Recipients to Voluntarily Designate Medicare as Secondary Insurance

As befits the citizens of a free country, Americans should in all circumstances be able to maintain a private insurance as primary coverage and designate Medicare as the secondary coverage. This will improve patient care, enhance individual choices and reduce Medicare costs. We also see this as a way back to lifelong private coverage instead of Medicare for senior citizens. No citizen should suddenly be subject to Congressional budgets and political agendas just because they turn 65 years old.

We realize that pushback may emerge from employer Group Health Plans (GHP) with less than 20 employees who currently benefit from Medicare being designated as primary coverage.11 But the way back to health freedom and private ownership of health insurance -- and out of mandatory government coverage for seniors (Medicare) -- starts here.

This design model will likely have the support of veterans who will have the option to choose TRICARE as primary and Medicare as secondary. While other involved agencies may push back against this as a potential increase to their budgets, this design model offers the opportunity to redirect the entire health care system back to the private market (preferably to indemnity policies). In addition, Medicare must find ways to reduce costs and the un-funded $43 trillion liability—without rationing care and threatening the lives of elderly Americans. Our goal is to re-establish the right of citizens to have private insurance for a lifetime, a right that no longer exists for most Americans.

D. Establish Cost-Cutting Competition by Allowing Medicare Recipients to Choose an Indemnity Policy for Coverage

Using the same “lump sum” strategy that is provided to health plans through Medicare Advantage (without the star ratings, bonuses, data-reporting, etc.), provide senior citizens with a monthly or quarterly payment toward the purchase of their own private indemnity insurance policy (non-managed care). To prevent fraud, CMS could pilot a special bank account for the receipt and payment of these dollars. This could be considered an “insurance version” of the successful Cash and Counseling program.12These individuals could also choose to secure or use a Health Savings Account.

E. Test the “Right to Shop” Model

Although some Medicare patients do not wish to take a more active role in their health care, CCHF has spoken to many who would like more flexibility and control over their health care options, treatment, and doctors. CCHF believes that allowing patients to shop around for treatment, submit bills to Medicare, and share in any savings, may decrease Medicare expenditures and increase patient access to care, an important indicator of quality. Variations of “Right to Shop” examples have already been successful.

In July of 2010, New Hampshire contracted with Anthem Blue Cross to create a “smart-shopper” program for state employees. According to a Forbes article (Right To Shop: The Next Big Thing In Health Care, 8/5/16) New Hampshire saved $12 million and distributed over $1 million to the SmartShoppers. The rewards provide incentive for the patient to care about the cost of treatment. According to the New Hampshire SmartShopper website:

SmartShopper is completely voluntary. You can receive a reward by choosing any of the options suggested by SmartShopper. If you prefer to go to a facility that is not on the list of options suggested by SmartShopper, you can do that, too; you will not receive a reward, but you will have the benefit of knowing that there are lower cost options available to you if you want them.13

In the summer of 2017, Maine passed “Right to Shop” legislation which was signed into law. Public Law, Chapter 232 on the 128th Maine Legislature is entitled “An Act To Encourage Maine Consumers To Comparison-shop for Certain Health Care Procedures and To Lower Health Care Costs.”14 This law goes in to effect on January 1, 2018 and has three main components: a requirement for insurers to inform patients of their right to shop, a requirement for transparency in cost of services, and a requirement for insurers to share the saving with consumers who find lower-cost services.

The law requires the insurer to give back to the consumer 50 percent of the amount that the consumer saves the insurance company (once savings exceed $50). Not only is it cheaper for the insurance company, but it will provide incentive for every consumer in the state to be conscious of the cost of their own health care – even when not directly paying for the treatment.

Following the pattern of New Hampshire and Maine, the federal government could save millions, or even billions of dollars by providing an incentive for patients to be aware of the cost of care. For the Medicare patients who don’t want to participate, nothing will change. This proposed model has already seen success in the health care market and would increase choices for Medicare patients by allowing flexibility of treatment and location while reducing the cost for CMS. It would be completely voluntary for the patient.

3. Do you have suggestions on the structure, approach, and design of potential models? Please also identify potential challenges or risks associated with any of these suggested models.

We view the proposed APM expansion model as the wrong direction. Freedom for patients and doctors exists outside of the APM, outside of the data-collection and reporting, outside of the incentives for participation, and outside of Medicare. We are sharing our ideas as ways to build ‘escape hatches’ back to freedom for patients and doctors. With so many doctors planning their path to the exit doors, we believe the way keep them in practice for many years to come is to free them from the bureaucracy that Medicare, Medicaid, Obamacare and the managed care organizations have use to kill their joy and burn out their zeal for patient care.

We hope you’ll look far beyond the onerousness of MACRA, and the federal controls of APMs and data collection and envision a future of health freedom that gives doctors their practices back and restores to patients the rights, confidentiality, care, listening ear, integrity, dignity, critical thinking, trust and excellence that the practice of medicine in America has long been known for but is slipping away—and patients in their vulnerability deserve.

4. What options might exist beyond FFS and MA for paying for care delivery that incorporate price sensitivity and a consumer driven or directed focus and might be tested as a model and alternative to FFS and MA?

Please refer to our answer to Question 2.

In addition, allowing Medicare patients to directly pay monthly bills for Direct Primary Care and then to submit bills for reimbursement would encourage patients to build a relationship with the physician who would in turn be able to actively work with complex patients and reduce costs related to preventable hospitalizations and emergency care. We suggest the expansion of Health Savings Accounts as well.

  1. How can CMS further engage beneficiaries in development of these models and/or participate in new models?

Simple messaging, use the Ad Council for nationwide advertising, and showcase the benefits of direct payment, lifelong indemnity policies, choice, confidentiality and more. We would also suggest communication with practitioners. We do not believe the American public understands that Medicare is unsustainable, that Medicare will not be there for the young, that Medicare is rationing care and advancing rationing policies, or that Congress is planning deeper cuts (such as the $25 billion a year in the Tax Reform bill).15 To prevent a fully socialized health care system, it is critically important to restore the free-market (non-health plan) sector in health insurance.

6. Are there payment waivers that CMS should consider as necessary to help healthcare providers innovate care delivery as part of a model test?

Please refer to our answer to Question 2.

7. Are there any other comments or suggestions related to the future direction of the Innovation Center?

CCHF opposes the Affordable Care Act (ACA) and the burdensome requirements placed upon physicians. In some previous projects, CMMI has exacerbated those burdens and contributed to the decline of patient care and the patient doctor relationship. While opposing the ACA and the creation of the Innovation Center, and until the ACA is repealed, CCHF hopes that the Innovation Center can be used as a tool to effect positive change and policy reform in health care. Thank you for your consideration of our comments.

For more information, please contact me or my staff at the CCHF Office: 651-646- 8935 or macra?page=0,1 medicare-every-day/#27aacdb93657 Reports/ReportsTrustFunds/Downloads/TR2017.pdf Reports/ReportsTrustFunds/downloads/tr2016.pdf patients
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