President Donald Trump has signed an executive order that commits the Department of Health and Human Services (HHS) to taking a series of regulatory and subregulatory actions intended to enhance the fiscal sustainability of the Medicare program, reduce regulatory burdens on providers, and increase beneficiary choice.  The planned initiatives, which would require further policy development and potentially statutory changes, generally are in line with market-based themes the Administration has emphasized previously.  The President also used the Executive Order to slam proposed “Medicare for All” legislation, which the Administration claims would “destroy our current Medicare program.”

In particular, the executive order provides that within one year, the HHS Secretary must propose regulations to:

  • Provide Medicare beneficiaries with diverse and affordable plan choices by: encouraging innovative MA benefit structures and plan designs (including allowing beneficiaries to share in cost savings); reducing barriers to obtaining Medicare Medical Savings Accounts; promoting supplemental benefit; and encouraging telehealth innovations.
  • Adjust MA plan network adequacy requirements to account for state health market competitiveness and access to telehealth services and other innovative technologies.
  • Eliminate rules that burden providers, create inefficiencies, or undermine patient outcomes. More specifically, HHS should eliminate burdensome billing requirements, conditions of participation, supervision requirements, benefit definitions, and Medicare licensure requirements that exceed statutory mandates.
  • Ensure appropriate Medicare reimbursement to primary and specialist health providers for time spent with patients and, to the extent allowed by law, reimburse clinicians based on work performed rather than the clinician’s occupation.
  • Streamline the approval, coverage, and coding processes to bring innovative products to market faster with appropriate reimbursement. This should include minimizing steps between Food & Drug Administration (FDA) approval and Centers for Medicare & Medicaid Services (CMS) coverage decisions; facilitating parallel FDA and CMS review; and clarifying Medicare coverage standards.  CMS also should modify the Value-Based Insurance Design payment model to remove disincentives to MA coverage of new technologies.
  • Improve the availability of quality and cost data to enable seniors to make better health care decisions and hold providers and plans accountable.

In addition to these regulatory mandates, the executive order directs HHS to:

  • Study how Medicare FFS payments could be modified to more closely reflect the prices paid by MA and commercial plans. Separately, the Secretary must study “approaches to transition toward true market-based pricing in the FFS Medicare program,” including through:  shared savings and competitive bidding in FFS Medicare; use of MA-negotiated rates to set FFS Medicare rates; and novel approaches to information development and sharing to enable markets to lower cost and improve quality for FFS Medicare beneficiaries.  Note that changes to the fundamental structure of Medicare FFS payments to providers (outside of an Innovation Center or other demonstration program) could require statutory changes.
  • Identify and remove unnecessary barriers to private contracts that allow Medicare beneficiaries to obtain the care of their choice and facilitate market-driven prices.
  • Ensure that Medicare policies promote site neutrality.
  • Use claims data to inform providers about practice patterns that may pose undue patient risks, are outliers, or are outside recommended standards of care.
  • Revise policies to preserve Social Security retirement benefits for seniors who choose not to receive Medicare Part A benefits, and propose administrative improvements to the Medicare beneficiary enrollment process.

The executive order also calls on HHS to enact policies to combat Medicare fraud, waste, and abuse, “including through the use of the latest technologies such as artificial intelligence.”  Citing the executive order, on October 21, 2019, CMS released a request for information (RFI) on “Using Advanced Technology in Program Integrity,” seeking “innovative, but fiscally prudent and operationally feasible, ways to conduct program integrity more effectively and efficiently.”  Among other things, the RFI requests comments on the potential impact of artificial intelligence medical record review technologies in reducing the burden of medical review; how to incorporate documentation requirement repositories; how to improve provider enrollment; and how to improve data analytic and data system capabilities.  Comments will be accepted until November 20, 2019.