Happy New Year! I hope you all were able to take some well-deserved time off and enjoy time with your friends and families during the holiday season. As we start another year, I wanted to set the stage by providing a brief overview of a few of the major regulatory issues we will be facing in 2022. While some of these are unfortunately perennial (which begs the question of whether we are in the year 2022 or “2020 too”), they are nonetheless still important to lay out.
- COVID, COVID, COVID: As we enter into the third year of dealing with this pandemic, we recognize that many of you are unfortunately contending with pretty dire situations at your emergency departments (EDs): staffing shortages that are understandably causing burn-out; a lack of testing which makes it difficult for you or your colleagues to safely return to work; and ever-changing clinical protocols and treatment options to keep track of.
ACEP continues to monitor the issues you as emergency physicians are facing closely, and we are in routine contact with various federal agencies that are contributing to the response. For example, earlier this week, we asked the U.S. Food and Drug Administration (FDA) to work with other agencies to increase the supply of testing and prioritize health care workers in the testing queue— since it is critical that front-line workers such as yourselves have access to tests. Further, we have a meeting later this month with the U.S. Department of Health and Human Services (HHS) and the Office of the Surgeon General to discuss the issues of provider fatigue and burn-out and what specific steps the federal government can take to support you all during this difficult time. Finally, as clinical protocols and best practices change, we are constantly relaying updates from the Centers for Disease Control and Prevention (CDC) through many of our communications channels, including updating our COVID-19 “Field Guide”.
Further, while EDs volumes across the county are pretty much back to pre-pandemic levels, some of you and/or your group practices may still require additional resources to cover the increased expenses and uncompensated costs you have incurred from treating COVID-19 patients. In 2022, HHS will continue to make payments from the “Phase 4 Distribution” of the Provider Relief Fund. You can also continue to submit claims for testing and treatment services and vaccinations for uninsured patients and get reimbursed at Medicare rates through the Health Resources and Service Administration (HRSA) Uninsured Program.
Finally, ACEP is monitoring the Centers for Medicare & Medicaid Services (CMS) and Occupational Health and Safety Administration (OSHA) requirements around vaccinations and testing. Although both sets of requirements are currently being challenged in federal court, OSHA and CMS are going forward with implementation. OSHA recently announced that it in order to provide employers with sufficient time to come into compliance, it will not issue citations for noncompliance with any requirements before January 10 and will not issue citations for noncompliance with the testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the OSHA standard. In addition, CMS released guidance on how facilities in certain states should comply with the vaccination requirements, including a timeline for when staff must receive each dose of the vaccine. These requirements, along with pre-existing OSHA safety requirements, will continue to be enforced throughout 2022 as long as the COVID-19 public health emergency (PHE) continues.
- No Surprises Act Implementation: As you undoubtedly know, the patient protections required by the No Surprises Act went into effect on January 1. It is important to emphasize that ACEP strongly supports these protections, which include the ban on balance billing for emergency services delivered by out-of-network providers, and worked with Congress for years to ensure that they were enacted. As described in numerous Regs & Eggs blogs, the specific policy that we take issue is the approach the federal government has decided to take to implement the independent dispute resolution (IDR) process—which can be used to ultimately determine payments for out-of-network services. A couple weeks ago, on December 22, ACEP, the American College of Radiology (ACR), and the American Society of Anesthesiologists (ASA) brought a lawsuitagainst the federal government charging that this policy will ultimately harm patients and access to care (you can read ACEP's press release here.) Earlier in December, the American Medical Association (AMA) and American Hospital Association (AHA) filed a complaint and motion to stay against the federal government related to the implementation of the No Surprises Act. ACEP issued a press statement supporting the goals of this lawsuit.
We will have to wait and see how these lawsuits play out in 2022. However, the various potential outcomes of the lawsuits have no bearing on the patient protection requirements themselves. And, as these new requirements actually go into effect, you all will undoubtedly face operational issues as everyone attempts to comply with them. ACEP will be tracking these issues, and we are already working on resources to help you understand the new requirements (stay tuned for more on these resources in the coming weeks). There are also numerous fact sheets and guidance documents available on the CMS No Surprises Act website. Further, the AMA has created some resources that are available here.
- Medicare Payments and Policy: In 2022, we will again attempt to address the same issue that we’ve had in the past regarding Medicare payments. As described in a recent Regs & Eggs blog post, in December of last year, Congress provided a one-year fix to an expected 3.75 percent cut to the 2022 Medicare Physician Fee Schedule (PFS) Conversion Factor, offsetting 3 percent of that cut. In anticipation of the one-year fix expiring at the end of 2022, we again will have to work with CMS and Congress throughout the year to protect providers from taking another cut in 2023.
In addition, in the 2022 Medicare PFS regulation released last November, CMS laid out policies that will affect emergency physicians in 2022 and going forward. One major change coming your way relates to documenting and billing “split” or “shared” evaluation and management (E/M) visits when the visit is performed in part by both a physician and a non-physician practitioner (NPP) who are in the same group and the physician performs a substantive portion of the visit. To determine the appropriate E/M level to use, office and outpatient services use time as a major factor. Certain activities (like preparing to see the patient, obtaining a patient’s medical history, etc.) are used to calculate the time. In the PFS reg, CMS phases in a new policy for determining the substantive portion of a visit in all facility settings (including the ED), except for critical care. In 2022, the history, physical exam, medical decision making (MDM), or more than half of the total time can be used to determine the substantive portion of the visit. However, starting in 2023, time (as defined by the list of “qualifying” activities that comprise a service) will be used for the purposes of determining the substantive portion of a visit. Time has never been used to determine the E/M code level for ED services, so this represents a major change. We are having a meeting with CMS later this month to discuss some of the potential operational issues you all may face as this policy is implemented.
Another Medicare regulatory issue we will need to monitor is the reimbursement and delivery of emergency telehealth services. CMS has announced that Medicare will continue to reimburse ED E/M telehealth services through the end of calendar year 2023. However, in order to for these services to be permanently added to the list of telehealth services that can be billed under Medicare, CMS will need to receive and evaluate data that prove that the delivery of emergency telehealth services adds clinical value to patients. ACEP is interested now in collecting any data that exists (even unpublished) on how the delivery of emergency telehealth services has improved quality and reduced costs. It is also important to remember that other telehealth flexibilities (like the waivers to the originating site and geographic restrictions) expire once the COVID-19 PHE ends. Practically speaking, this means that as soon as the COVID-19 PHE ends, you will only get Medicare reimbursement for telehealth services when the patient is located at a facility in a rural area of the country (i.e., patients cannot receive services at home, and you will not receive Medicare payments for telehealth services in urban areas). ACEP supports legislation that would permanently eliminate these telehealth restrictions.
Last, but not least, the requirements for the Merit-based Incentive Payment System (MIPS) are significantly increasing in 2022. MIPS is the major quality reporting program under Medicare, and the penalties associated with MIPS non-compliance can reach as high as 9 percent of your total Medicare revenue. Specifically, CMS is removing certain bonus points and scoring floors and has decided to increase the performance threshold (the point threshold you need to obtain to avoid a penalty and obtain a bonus) to 75 points. CMS expects that many more clinicians will not meet the threshold and will receive a penalty. While you may be able to claim a COVID-19 hardship exception again in 2022, eventually you will be required to fully participate in this difficult program. Related to MIPS, I wanted to remind you all to take advantage of the upcoming opportunity to participate in field testing of the first, and only, emergency medicine-specific cost measure (which could make its way into the MIPS program as soon as 2023).
- Violence in the Emergency Department: Violence in the ED has been a serious issue for years and has only gotten worse during the pandemic. An ACEP survey showed that nearly half of emergency physicians have experienced violence in the ED and 80 percent of emergency physicians said that violence in the ED was harming patient care.
There is some promising news to report that will hopefully help prevent and address violent episodes in the ED. Starting on January 1, The Joint Commission (TJC) has begun enforcing new workplace violence prevention requirements to guide hospitals in developing strong workplace violence prevention programs. ACEP contributed to the development of these new requirements by participating in an expert workgroup and supplying comments. Read our fact sheet that provides an overview of the new standards. In addition, ACEP is expected to have a representative on a panel that will help guide the development of a new OSHA standard. The panel will hopefully start meeting early this year.
- Treatment of Patients with Opioid Use Disorder in the Emergency Department: In 2021, we experienced some major positive regulatory changes that helped increase access to buprenorphine for the treatment of opioid use disorder (OUD). First, based on feedback from ACEP, CMS finalized a policy that allows for Medicare reimbursement of medication-assisted treatment (MAT) in the ED. That policy became effective at the beginning of last year. Second, the Biden Administration released practice guidelines last April that effectively removed the training requirements associated with the “X-waiver”—which is needed to prescribe buprenorphine. These guidelines did not eliminate the X-waiver requirement, and ACEP is still pushing for legislation that would accomplish this goal.
Congress also enacted changes to the “three-day rule” for administering buprenorphine in the ED that were supposed to go into effect in 2021. The “Three-Day” Rule is an exception to the X-waiver requirement, which allows non-waivered physicians to administer, but not prescribe, buprenorphine to patients for up to three days in emergency situations. While current regulations require patients to come back to the ED each day within the three-day period to receive treatment, legislation passed by Congress fixed that issue by calling on the Drug Enforcement Administration (DEA) to change the regulations to allow providers to dispense three days’ worth of medication to patients at one time. The DEA was required by law to update the regulations by June 2021, but up to now has not done so. We hope to see these revised regulations early this year.
Those are the top issues on my list for now, but there will undoubtedly be other big issues we face in the year ahead. However, no matter what issues we do face, you can be sure that ACEP will be here advocating on your behalf— and you can always find out what you need to know on Regs and Eggs!
Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.