American Association of Nurse Practitioners Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Aug. 4 -- Jon Fanning, CEO of the American Association of Nurse Practitioners, Austin, Texas, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Patient Protection and Affordable Care Act: Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule". The comment was written on July 27, 2021, and posted on July 28, 2021:

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The American Association of Nurse Practitioners (AANP), representing more than 325,000 nurse practitioners (NPs) in the United States, appreciates the opportunity to provide comment on this proposed rule. AANP is committed to working with the U.S. Department of Health and Human Services (HHS) to modernize the health care delivery system to provide the highest quality care to patients across the country.

As you know, NPs are advanced practice registered nurses who are prepared at the masters or doctoral level to provide high-quality/1 primary, acute, chronic and specialty care to patients of all ages and backgrounds. Daily practice includes assessment; ordering, performing, supervising and interpreting diagnostic and laboratory tests; making diagnoses; initiating and managing treatment including prescribing medication and non-pharmacologic treatments; coordinating care; counseling; and educating patients and their families and communities. NPs hold prescriptive authority in all 50 states and the District of Columbia (D.C.) and perform more than one billion patient visits annually. Currently, twenty-three states and D.C. are considered Full Practice Authority (FPA)./2

No state has ever moved away from FPA once it has been enacted.

NPs practice in nearly every health care setting including hospitals, clinics, Veterans Health Administration and Indian Health services facilities, emergency rooms, urgent care sites, private physician or NP practices (both managed and owned by NPs), skilled nursing facilities (SNFs) and nursing facilities (NFs), schools, colleges and universities, retail clinics, public health departments, nurse managed clinics, homeless clinics, and home health care settings.

As of 2019, there were more than 163,000 NPs billing for Medicare services, making NPs the largest and fastest growing Medicare designated provider specialty./3

Approximately 40% of Medicare patients receive billable services from a nurse practitioner/4 and approximately 80% of NPs are seeing Medicare and Medicaid patients. NPs have a particularly large impact on primary care as approximately 70% of all NP graduates deliver primary care./5

In fact, NPs comprise approximately one-quarter of the primary care workforce, with that percentage growing annually./6

We appreciate the opportunity to provide comment on this proposed rule and our comments regarding certain sections of the rule can be found below.

Network Adequacy (Sec. 156.230)

In this proposed rule, HHS states that it will be issuing future rulemaking on network adequacy, and requested stakeholder feedback on how the federal government should approach network adequacy reviews.

As HHS evaluates its approach to network adequacy reviews, AANP reiterates the importance of enforcing Section 2706 of the Patient Protection and Affordable Care Act which prohibits private health plans from discriminating against qualified licensed healthcare professionals based on their licensure. In December 2020, the Consolidated Appropriations Act of 2021, which included the No Surprises Act, was signed into law. Section 108 of the No Surprises Act requires the three departments (HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury) to implement Section 2706 of the ACA by promulgating rules on provider non-discrimination by January 1, 2022. Additionally, section 102 of the No Surprises Act also protects a patient's right to choose a primary care provider (PCP) participating with a health plan as their PCP.

Ensuring that network adequacy reviews include an evaluation of compliance with this legislation. NPs provide a substantial share of the high-quality, cost-effective health care that our nation requires, particularly in underserved and rural communities. Preventing insurer discrimination against NPs based on licensure is essential to ensuring robust patient access to health care services, promoting patient choice of health care providers, and reducing out-of-pocket costs on patients who choose APRNs as their health care practitioners. To maintain necessary patient access to care, we strongly encourage HHS to reinforce the provider anti-discrimination rules in its network adequacy requirements.

As HHS undertakes the rulemaking process on network adequacy and provider non-discrimination we make the following recommendations on objectives to ensure that the final rules prevent provider discrimination:

1. Clearly and comprehensively define discrimination and the intent of the provider non-discrimination provision.

2. Ensure NPs working within their state scope of practice are reimbursed at the same level equal to their physician counterparts for providing the same services to patients.

3. Prohibit health plans, health insurers, and payor practices that deny NPs access to insurance networks and advanced payment models and prevent patients from choosing NPs as their primary care providers. This also includes preventing requirements that impose supervision or additional certification or training beyond state licensing requirements, deny coverage of services and procedures within the NPs scope of practice, require geographic limitations on provider network participation and consider their level of training and experience not on par with their physician counterparts.

4. Create a robust enforcement and penalties mechanism to ensure all health plans, health insurers and payors comply with Section 2706.

5. Establish a streamlined notice and complaint process for providers so they can obtain an independent resolution of their complaint in a timely fashion.

6. Ensure NPs do not face retaliation for their complaints regarding Section 2706.

In order to properly honor the intent of the Consolidated Appropriations Act of 2021 and Section 2706 of the ACA, these are key provisions that rulemaking must address. NPs provide a substantial share of the high-quality, cost-effective health care that our nation requires, particularly in underserved and rural communities. Preventing insurer discrimination against NPs based on licensure is essential to ensuring robust patient access to health care services, promoting patient choice of health care providers, and reducing out-of-pocket costs on patients who choose NPs as their health care practitioners.

Provisions of the Proposed Rule for Section 1332 Waivers-Department of Health and Human Services and Department of the Treasury

We agree with HHS on the rescission of the 2018 Guidance for section 1332 waivers. At the time the guidance was issued, AANP expressed concerns, many of which are referenced in this proposed rule, that the guidance was inconsistent with the statutory "guardrails" of comprehensiveness and affordability of coverage, which could have an adverse impact on patients, particularly those with pre-existing conditions.

As we noted in our prior comment, under the 2018 guidance financial assistance would be allowed for short-term, limited duration insurance (STLDI) plans,/7 and CMS had previously acknowledged that STLDI plans would weaken States' individual market single risk pools./8

We agree that section 1332 waivers should focus on increasing access to affordable, high-quality health care for all Americans and that doing so is consistent with the goal of advancing health equity. As noted in this proposed rule, HHS expects that after the COVID-19 Public Health Emergency individuals will be transitioning from Medicaid coverage to the Exchange./9

We encourage the promotion of 1332 waivers that would streamline this transition and ensure that patients who move from Medicaid to the Exchange are able to maintain continuity of care both in terms of their health care provider and the treatment and services that they are receiving through Medicaid.

Conclusion

We thank you for the opportunity to comment on this proposed rule and your continued efforts to increase access to care and address health equity. We look forward to discussing these issues with you. Should you have comments or questions, please direct them to MaryAnne Sapio, V.P. Federal Government Affairs, [email protected], 703-740-2529.

Sincerely,

Jon Fanning, MS, CAE, CNED

Chief Executive Officer

American Association of Nurse Practitioners

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Footnotes:

1/ https://www.aanp.org/advocacy/advocacy-resource/position-statements/quality-of-nurse-practitioner-practice.

2/ https://www.aanp.org/advocacy/state/state-practice-environment.

3/ https://www.cms.gov/files/document/2019cpsmdcrproviders6.pdf

4/ https://www.cms.gov/files/document/2019cpsmdcrphyssupp6.pdf

5/ NP Fact Sheet (aanp.org)

6/ Rural and Nonrural Primary Care Physician Practices Increasingly Rely On Nurse Practitioners, Hilary Barnes, Michael R. Richards, Matthew D. McHugh, and Grant Martsolf, Health Affairs 2018 37:6, 908-914.

7/ Section 1332 State Relief and Empowerment Waiver Concepts, Discussion Paper, November 29, 2018, at page 13.

8/ 83 FR 7437, 7443.

9/ 86 FR 35156, 35170.

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The proposed rule can be viewed at: https://www.regulations.gov/document/CMS-2021-0113-0002

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