Nurse Practitioners Implore IRS to Change Medical Care Regs

August 10, 2020

Sunita Lough
Deputy Commissioner for Services and Enforcement
Internal Revenue Service (IRS)
P.O. Box 7604
Ben Franklin Station
Washington, DC 20044

Re: Certain Medical Care Arrangements; Reg-109755-19

Dear Deputy Commissioner Lough,

The American Association of Nurse Practitioners (AANP), representing more than 290,000 nurse practitioners (NPs) in the United States, appreciates the opportunity to comment on this proposed rule regarding certain medical care arrangements, particularly the section regarding direct primary care (DPC) arrangements. This proposed rule is in response to Executive Order 13877 “Improving Price and Quality Transparency in American Healthcare To Put Patients First.” In this proposed rule, the IRS requested feedback regarding whether a contract between an individual and a nurse practitioner should be included in the definition of a “DPC arrangement.” NPs provide a substantial portion of the high-quality primary care in this country and they are included in the majority of state laws regarding DPC arrangements and other delivery models focused on primary care. Accordingly, we strongly urge the IRS to include contracts between NPs and their patients in the definition of “DPC arrangements” to improve patient access to direct primary care.

NPs are advanced practice registered nurses (APRNs) who are prepared at the masters or doctoral level to provide primary, acute, chronic and specialty care to patients of all ages and walks of life. 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 practice in nearly every health care setting including schools and school-based clinics, hospitals, 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), nursing facilities (NFs), colleges and universities, retail clinics, public health departments, nurse managed clinics, homeless clinics, and home health. NPs hold prescriptive authority in all 50 states and the District of Columbia. NPs complete more than one billion patient visits annually.

Reports issued by the American Enterprise Institute¹, the Brookings Institution ², the Federal Trade Commission³ and HHS⁴,⁵,⁶ have all highlighted the importance of NPs in delivering primary care. This includes the Administration's report on “Reforming America's Healthcare System Through Choice and Competition.”⁷ In the report, the Administration recommended reforming scope of practice laws to “allow all healthcare providers to practice to the top of their license, utilizing their full skill set.” ⁸ In making this recommendation, the report highlighted economic analysis which showed that authorizing APRNs to practice to the top of their license would lower health care costs and increase access to care, particularly in rural and underserved communities.⁹

The value of improving access to NPs was also recently recognized by Executive Order (EO) 13890: Protecting and Improving Medicare for Our Nation's Seniors, which included a section on addressing regulatory policies that create disparities in reimbursement between physicians and nurse practitioners within the Medicare program.¹⁰ Including NPs in the definition of “DPC arrangement” is consistent with the goal of removing reimbursement disparities expressed by EO 13890. Below are our comments in response to certain provisions of this proposed rule. We look forward to working with the IRS to ensure that NPs and their patients are fully included in DPC and other medical care arrangements.

Definition of Direct Primary Care Arrangement

The IRS is proposing that “[e]xpenses paid for medical care under section 213(d) include amounts paid for a direct primary care arrangement.”¹¹ As noted above, the IRS solicited feedback on whether contracts between NPs and their patients should be included in the definition of “direct primary care arrangement.”¹² The IRS also requested comment on whether the definition of “primary care services” in section 1833(x)(2)(B) is appropriate when provided by a non-physician practitioner. Regarding the definition of “direct primary care arrangement, the answer is yes, we strongly urge the IRS to include NPs and their patients in the definition of “DPC arrangement.” The definition of “primary care services” should be consistent whether provided by an NP or a physician. Excluding NPs and their patients from “DPC arrangements” would unnecessarily limit access to DPC, treat patients differently for tax purposes based on their health care provider of choice and conflict with state laws.

A. Definition of Direct Primary Care Arrangement

For the reasons mentioned below, we recommend that the IRS amend the proposed definition of “direct primary care arrangement” to state: A “direct primary care arrangement” is a contract between an individual and one or more primary care practitioners under which the practitioner or practitioners agree to provide medical care (as defined in section 213(d)(1)(A)) for a fixed annual or periodic fee without billing a third party. A “primary care practitioner” is a physician or nurse practitioner as defined in section 1833(x)(2)(A)(i) of the Social Security Act.

The IRS' proposed definition of” primary care physician” is adopted from paragraph (I) of the definition of ”primary care practitioner” in section 1833(x)(2)(A)(i) of the SSA.¹³ However, the complete definition of “primary care practitioner” in this section of the SSA includes nurse practitioners.¹⁴ Additionally, the current IRS definition of “medical care”, to which the new definition of “DPC arrangement” is being added, is provider neutral and focuses on the type of health care being provided, not the licensure of the clinician providing the care.¹⁵ Thus, excluding NPs from the proposed definition of “DPC arrangement” is inconsistent with the section of the Social Security Act that serves as the basis for the IRS' definition of primary care and would be a departure from the current IRS definition of “medical care.”

The importance of NPs to the primary care workforce also supports inclusion in the definition of “DPC arrangement.” NPs have long been recognized for providing high-quality¹⁶, cost-effective¹⁷ primary care in their communities. Approximately 70% of all NP graduates deliver primary care¹⁸ and NPs comprise approximately 25% of our primary care workforce, with that percentage growing annually.¹⁹ The percentage of patients receiving primary care from NPs is also higher in rural communities.²⁰,²¹ The reliance of the primary care system on NPs has been recognized across all payers. As of 2018, there were more than 145,000 NPs billing for Medicare services, making NPs the largest and fastest growing Medicare designated provider specialty.²² Over one-third of Medicare beneficiaries received a billable service from an NP.²³ Patients with employer-sponsored insurance are also receiving an increasing number of primary care services from NPs.²⁴ According to the Direct Primary Care Frontier, 29 states have enacted DPC legislation.²⁵ A review of these state laws shows that over two-thirds of states include NPs in the definition of primary care provider (or similar term). Thus, excluding NPs and their patients from the definition of “direct primary care arrangements” would be inconsistent with the importance of NPs in our primary care system and the majority of state DPC laws.

Additionally, other agencies and primary care models have recognized the value of NP-led primary care. For example, NPs are authorized to lead the primary care teams in the Centers for Medicare and Medicaid Innovation (CMMI) Primary Care First Models and the Comprehensive Primary Care Plus Demonstration. They are recognized as primary care providers in accountable care organization (ACO) models including the Medicare Shared Savings Program and the Next Generation ACO demonstration.

In 2019, CMS amended the definition of primary care provider in the Programs of All-Inclusive Care for the Elderly (PACE) interdisciplinary team to include nurse practitioners. Previously, PACE providers had to request waivers to authorize NPs to lead the interdisciplinary team. The PACE patient population is primarily composed of dual-eligible beneficiaries with multiple comorbidities who require comprehensive and complex care.²⁶ In the final rule, CMS states that commenters strongly supported this change and that CMS believed it would enable PACE organizations to expand their programs while maintaining the same quality of care.²⁷

NPs also have primary care authority within the Indian Health Services and the Veterans Health Administration (VHA). Recently, on July 31, 2020, the VHA issued a final rule on their Program of Comprehensive Assistance for Family Caregivers which established that every primary care team had to include a physician, advanced practice registered nurse (such as an NP), or a physician assistant.²⁸ Nurse practitioners are also recognized by the Joint Commission as being authorized to serve in the role of primary care clinicians in Patient-Centered Medical Homes. To summarize, including NPs and their patients in the definition of “DPC arrangement” is consistent with the current IRS definition of “medical care”, the SSA definition of “primary care practitioner” used by federal agencies and advanced primary care models, and the important role of NPs in delivering innovative, patient-centered primary care to patients across the country.

B. Definition of Primary Care Services

The IRS also requested feedback on “how to define primary care services provided by a non-physician practitioner, including whether the definition of primary care services in section 1833(x)(2)(B) of the SSA is appropriate.”²⁹ First, the definition of “primary care services” should be consistent for nurse practitioners and physicians. The models and programs mentioned above, including state DPC laws, do not define primary care services differently based on licensure. Additionally, creating a separate definition of primary care services would unnecessarily limit NP scope of practice. “As licensed, independent practitioners, NPs practice autonomously and in coordination with health care professionals and other individuals. NPs provide a wide range of health care services including the diagnosis and management of acute, chronic, and complex health problems, health promotion, disease prevention, health education, and counseling to individuals, families, groups and communities.”³⁰

Second, the definition of “primary care services” in section 1833(x)(2)(B) of the SSA is a limited code set that does not represent the full range of primary care services that would be provided under a “DPC arrangement.” Limiting the services to those codes would restrict the flexibility to provide care that is inherent to DPC and lead to significant administrative burden on behalf of both clinicians and patients. State DPC laws typically use broader definitions of “primary care” that do not limit primary care services to a specific set of codes.³¹ Again, we reiterate that there should be no difference in what services are considered included in a “DPC arrangement” whether provided by an NP or a physician.

Conclusion

Nurse practitioners are providing a substantial portion of the high-quality primary care that our country requires. This is reflected in policies established by government agencies, advanced primary care payment models, state DPC laws, and most importantly by the millions of patients who choose NPs as their primary care providers. For the reasons mentioned above, we strongly encourage the IRS to include NPs and their patients in the definition of “DPC arrangement” and to not unnecessarily restrict the services they are authorized to provide. This will increase the ability of patients to enter “DPC arrangements” with their health care provider of choice, consistent with the goals of Executive Orders 13877 and 13890.

We thank the IRS for the opportunity to comment on this proposed rule. Our members are committed to providing the highest-quality primary care to their patients and communities. We look forward to further engagement on this important issue. Should you have comments or questions, please direct them to MaryAnne Sapio, V.P. Federal Government Affairs, msapio@aanp.org.

Sincerely,

David Hebert
Chief Executive Officer
AANP
Austin, TX