This Week – September 6, 2014

This Week in Washington DC:

  1. Thank You ACG Members: Roughly 450 GI clinicians submit comments to CMS!
  2. U.S. Court of Appeals in D.C. to Consider ACA Subsidies: May overturn recent 3 judge-panel ruling

ACG and Members Submit Comments to CMS Proposed Rules
ACG would like to thank the nearly 450 GI clinicians who took time from their schedules to send letters to CMS on the future of endoscopy payment. These letters represented nearly 20 percent of all comments posted to CMS in response to the 2015 Medicare physician fee schedule (PFS) proposed rule.

On Tuesday, September 2nd, ACG, AGA and ASGE sent detailed joint comment letters to CMS on both the CY2015 PFS proposed rule and the CY2015 Hospital Outpatient Prospective Payment System (HOPPS)/Ambulatory Surgical Center (ASC) proposed rule.

While CMS reviews comments and prepares the final rules for release in early November 2014, ACG will continue to work with leaders at CMS and on Capitol Hill to make sure the voice of gastroenterology is heard.

Highlights of the PFS Comment Letter:

Request for delay

  • ACG and the GI societies called upon CMS to delay final review of upper endoscopy codes and interim final review of lower endoscopy codes until CMS undertakes review, as proposed, of codes for which moderate sedation is inherent. Delay would also allow these codes to benefit from the new transparency process proposed by CMS.


  • ACG and the GI societies offered compelling data and arguments for appropriate valuation of upper and lower endoscopy services and improved transparency in establishing reimbursement for PFS services.
  • The societies asked for adequate reimbursement for obesity behavioral group counseling.
  • The letter stated that changes are needed to the process in which codes are identified as "potentially misvalued."

Definition of colorectal cancer screening

  • The societies urged CMS to exercise its administrative authority to waive Medicare beneficiary coinsurance for a screening colonoscopy with polyp removal. ACG continues to urge Congress to pass the SCREEN Act (S. 608/HR 1320) as the bill would not only resolve this patient cost-sharing issue but also protect Medicare reimbursement for colonoscopy and encourage the use of quality improvement registries.
  • The proposed rule states that anesthesia is included in the definition of a screening colonoscopy, which means that the patient would have no cost-sharing for either the anesthesia or colonoscopy. However, the societies sought clarification from CMS on how it will implement its proposal to waive beneficiary cost-sharing for the administration of separately billable anesthesia for a screening colonoscopy.

Medicare Value Based Payment Modifier Program

  • ACG and the GI societies emphasized that the planned downward payment adjustments are too steep and need further refining before implementation.

U.S. Court of Appeals to Hear Case on ACA Subsidies
The full U.S. Court of Appeals for the District of Columbia on Thursday, September 4th granted an Obama administration petition to rehear a case that threw into doubt the legality of subsidies for millions of Americans participating in a federal exchange.

In July, a three-judge panel from this D.C. court ruled that subsidies to purchase health insurance are only permissible in states that have set up their own health exchanges (Halbig V. Burwell). However, just a few hours later that same day, a separate three-judge panel from the federal appeals court in Richmond, VA ruled that both state and federally facilitated health exchanges are eligible for these subsidies (King v. Burwell).

The D.C. Circuit scheduled oral arguments for Dec. 17th, which sets the stage for a ruling next winter or spring. The majority of these 11 judges were appointed by Democratic presidents. Thus, analysts predict the full court will overturn the three-judge panel’s earlier ruling.

The plaintiffs in the King case also have the opportunity to request a review by the full panel of judges in Richmond, VA court. There are two ongoing suits sitting in the federal courts in Oklahoma and Indiana as well. The U.S. Supreme Court review remains a possibility. If the Supreme Court agrees to accept the case, a final ruling resolving the fate of the subsidies could come as soon as early next summer.



The Patient Protection and Affordable Care Act (now know as the ACA) provides for subsidies in the form of tax credits to assist people to purchase health insurance. Persons up to 400% of the federal poverty level (FPL) are eligible for these subsidies. In 2014, this means that a single person earning $46,680 per year is at the 400% level, or a family of four earning $95,400 per year.

Section 1311 of the ACA delegates the responsibility of setting of exchanges to the states. However, since Congress cannot compel states to implement federal law, Section 1321 of the ACA provides that the Federal Government will set up an exchange for any state refusing or unable to establish its own health exchange. At issue is the language in the ACA authorizing premium assistance/subsidies for those purchasing insurance (Section 1401). Specifically, Section 1401 of the ACA only mentions exchanges "established by the state under Section 1311."

In May 2012, the Internal Revenue Service (IRS) released the regulation implementing these premium assistance rules under the ACA, providing that tax credits are available for eligible persons purchasing health insurance through an exchange established by the state or administered by the Federal Government.

The plaintiffs argue that the ACA clearly allows premium assistance only for those purchasing health insurance when established by the state. The Obama Administration argues that when considering the congressional intent, and reading the ACA in full context, it is clear that subsidies are authorized for purchasing health insurance when exchanges are established by state as well as when the Federal Government has to step into the shoes of the state when it is unwilling or unable to establish a health exchange.

Impact to Your GI Practice and Your State:

The IRS regulation remains in effect until further guidance from the courts. As a practice and business owner, premium assistance in the form of tax credits is available to eligible employees purchasing health insurance in a state that has established its own exchange, as well as in a state where the Federal Government runs the exchange.

The issue may have significant impact to your patients in the future. Only sixteen states and D.C. run their own exchanges. What’s more, three of these states (OR, MA, and MD) may switch and rely on the Federal Government to administer the exchange beginning in 2015. According to the Kaiser Family Foundation, out of the 6.7 million people who have signed up for health insurance (federal and state exchanges) and are eligible for premium assistance, an estimated 4.6 million people live in states where the Federal Government administers the health exchange. This means that many of your patients may drop, or be forced to drop, their health insurance should the courts ultimately agree with the three judges in the Halbig case.

Please stay tuned for further updates. Please also share and discuss your thoughts with fellow ACG members on the ACG GI Circle. To login and share your comments, go to and sign in as a member. Once you have done so, click here and then click the orange "Visit ACG GI Circle" button to be taken to the GI Circle site. If you have not yet activated your ACG GI Circle account, please email us at

Contact Brad Conway, VP Public Policy, with any questions or for more information.

Brad Conway