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May 28, 2020

Summertime is Approaching…Which Means Reg Season is Coming Soon!

Memorial Day marks the unofficial start to summer, and for those of us in the health policy community, summertime is the busiest time of the year: Reg Season!

Every year, the Centers for Medicare & Medicaid Services (CMS) issues major regulations that make changes to the Medicare payment systems for various types of health care professionals and facilities.

The annual cycle for these major regs works like this:

Step 1: CMS proposes changes to Medicare payments for the following year in a proposed reg;

Step 2: There is a 60-day public comment period where the public can submit feedback on the proposals (click here to see ACEP’s responses to previous Medicare regs); and

Step 3: CMS issues a final reg, where the agency responds to comments and establishes the final policies for the following year. The final reg is issued 60 days prior to the start of the new year, giving stakeholders enough time to understand the final policies before they become effective.

As ACEP’s Director of Regulatory Affairs, I help coordinate ACEP’s responses to the proposed regs during the 60-day comment period (step 2 above). For emergency physicians, the most important reg is the Medicare physician fee schedule (PFS), which affects physician and other health care professional payments. The proposed PFS reg comes out in the heart of the summertime (typically the end of June, early July), thereby causing summer to truly be Reg Season!

While summer is not quite upon us, I want to give you a heads up on three key policies that we are looking out for in the upcoming PFS proposed reg (which will affect 2021 Medicare physician payments). I have a feeling that these policies are going to keep me quite busy during Reg Season.

Emergency Telehealth Services

CMS will consider ACEP’s formal request to permanently add the emergency department (ED) evaluation and management (E/M) codes to the list of approved Medicare telehealth services. As discussed in a previous blog and an article I authored for MedPage Today, CMS has temporarily allowed you to bill the ED E/M codes, observation codes, and critical care codes when performing emergency telehealth services during the COVID-19 pandemic. In order to keep up the momentum we’ve built in telehealth and not return to a pre-pandemic telehealth world, CMS must take action in the upcoming PFS reg and permanently add these codes to the list of approved telehealth services.

Emergency Medicine Reimbursement

As you may recall, one of the biggest issues in last year’s PFS reg was CMS’ decision to increase the office and outpatient E/M services in 2021. Annual changes to Medicare physician payments are required to be budget neutral, so this large increase to the office and outpatient E/M codes is likely to reduce Medicare reimbursement to emergency medicine by approximately -7 percent or even more (since most emergency physicians don’t bill the office and outpatient E/M codes).

We cannot let this upcoming reduction to emergency medicine become a reality, especially in light of the huge financial hit that EDs and emergency physicians like yourselves have taken during the pandemic. We have strongly advocated for CMS to increase the value of the ED E/M codes, levels 1 through 3, to align with the corresponding levels for the office and outpatient E/M codes for new patients and to take other actions to offset some of the expected reduction to emergency medicine reimbursement. Depending on how CMS addresses our previously articulated concerns in the upcoming proposed PFS reg, we will be certain to highlight in our comments what effect a reduction to emergency medicine reimbursement would have on the health care safety net that all Americans rely on and have truly come to appreciate now as our country faces this unprecedented crisis.

Merit-based Incentive Payment System (MIPS)

MIPS is the major Medicare quality reporting program for physicians. Over the last few years, CMS has slowly ramped up the program’s reporting requirements, making it more difficult for you to receive a bonus and avoid a penalty. Some of you may have temporarily pushed MIPS reporting to the side during the pandemic—focusing all your time and energy on tackling the deadly virus. However, CMS has still not laid out what modifications to current 2020 requirements it will make in response to the pandemic.

Right now, the 2020 MIPS requirements finalized in last year’s PFS reg are still in place—but the expectation is that in the upcoming PFS reg, CMS will implement some hardship exemptions to protect physicians, such as yourselves, who may not have been able to meet the reporting requirements because of the pandemic. We hope that CMS will take a balanced approach in the reg—ensuring that physicians who aren’t able to meet the requirements due to the pandemic are held harmless from any possible penalties, while still rewarding those physicians who are able to continue reporting and investing in quality improvement activities.

Before concluding, I want to update you on a few changes to the financial support options that were made right before the holiday weekend. Here they are in case you missed them:

Provider Relief Fund: As you likely know, the Provider Relief Fund is a $175 billion pot of funding appropriated by Congress to help health care providers with health care related expenses or lost revenues due to COVID-19. The Department of Health and Human Services (HHS) is constantly making changes to the program (go to our ACEP webpage to find up-to-date information about the fund). This past week:

  • HHS announced a 45 day extension to accept the terms and conditions for Provider Relief Fund payments. This means that you now have 90 days from when you received a payment to either accept the terms and conditions or return the funds. However, HHS had previously announced that you have until June 3rd to attest to the terms and conditions and submit required revenue information to receive a tranche 2 payment. That seems to possibly conflict with the new announcement (90 days after you first received funding from tranche 1 on April 10th would mean on or around July 9th for most of you). I will let you know if HHS provides a clarification.  In the meantime, you should stick to the June 3rd deadline for attesting to the terms and conditions and submitting financial information required for tranche 2 payments.  
  • HHS also provided nearly $4.9 billion in additional relief funds to skilled nursing facilities and $500 million in payments to the Indian Health Service and tribal hospitals, clinics, and urban health centers.

HHS is close to distributing all of the initial $100 billion that Congress appropriated in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). However, HHS has not yet stated how it plans to allocate the remaining $75 billion that Congress provided in the Paycheck Protection Program and Health Care Enhancement Act (the COVID 3.5 package). While many of you or the groups that you work in have already received funding from the Provider Relief Fund, we recognize that in most cases, the funding you’ve received does not come close to covering your lost revenues and increased expenses due to the pandemic. ACEP is pushing HHS to allocate a portion of the remaining $75 billion to you and your groups to supplement what you’ve already received, as we continue to inform HHS that emergency physicians have been hit especially hard by the pandemic and are most likely to be exposed to the disease and miss work.

The Paycheck Protection Program (PPP): PPP loans are still available, and if you are interested in applying, I encourage you to visit the Small Business Administration’s (SBA’s) website and review the frequently asked questions (FAQs) document to find out more details. This past week, the SBA, in conjunction with the Department of Treasury, issued an interim final reg that includes some important clarifications on how to calculate certain costs for the purposes of figuring out your loan forgiveness amount.

That’s all for this week. Thank you for all you are doing every day from the frontlines!

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!

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