October 8, 2020

ACEP Responds to a Major Proposed Reg: 2021 Medicare Physician Fee Schedule

Earlier this week, ACEP submitted a letter to the Centers for Medicare & Medicaid Services (CMS), responding to its proposed calendar year (CY) 2021 Medicare Physician Fee Schedule (PFS)—which was released in early August. This is a major regulation that affects Medicare physician payments and the Merit-based Incentive Payment System (MIPS).

As this is just a proposed reg, CMS is collecting comments from external stakeholders and uses that feedback to help inform the final policies. You can read a summary of ACEP’s comments here and the full 42-page response here—but here are the key highlights of our response:

Emergency Medicine Payment Reduction

The most significant policy that ACEP weighed in on was CMS’ decision to increase the office and outpatient evaluation and management (E/M) services and add a new add-on code for complexity for these services in 2021. To preserve budget neutrality, CMS proposed to reduce the Medicare conversion factor by 10.6 percent in 2021 from $36.09 to $32.26—dropping it to one of the lowest levels it has been in 25 years. CMS estimates that emergency physicians will experience a 6 percent reduction to their reimbursement in 2021.

ACEP Response: ACEP lays out, in detail, the specific impact that a 6 percent reduction would have on patients’ access to emergency care—highlighting how the COVID-19 public health emergency (PHE) will exacerbate the effects of such a reduction. We make the following three policy recommendations:

  • To account for the additional expenses that hospital-based clinicians must absorb when treating patients during the COVID-19 PHE, ACEP strongly urges CMS to implement a 20 percent COVID-19 professional services claims-based payment adjustment.
  • ACEP urges CMS to delay the implementation of the add-on code for complexity to CY 2022 or later or consider eliminating the code altogether.
  • ACEP recommends that CMS and the Department of Health and Human Services (HHS) utilize its special “1135” waiver authority under the COVID-19 PHE to waive the budget neutrality requirement for all of CY 2021.

Valuation of Emergency Department E/M Codes for CY 2021

ACEP strongly advocated for CMS to increase the value of the emergency department (ED) E/M codes to appropriately align with the revised office and outpatient E/M code levels for new patients. In this reg, CMS proposes to accept our recommendations and increase ED E/M codes to match the values that we had specifically advocated for. According to CMS, the increase in the value of these codes will cause emergency physician payments to bump up by approximately 3 percent. However, CMS’ budget neutrality rules cancels it out, leaving the net 6 percent reduction noted above.

ACEP Response: ACEP thanks CMS for supporting our rationale and proposing our recommended values. We strongly urge the agency to finalize the increases as proposed. These increases are absolutely critical to help offset a portion of the significant budget neutrality adjustment to the conversion factor.


During the COVID-19 PHE, CMS took numerous steps to expand the use of telehealth under Medicare. Specifically, CMS temporarily added many codes, including all five ED E/M codes (CPT codes 99281 to 99295) to the list of approved telehealth services. In the proposed reg, CMS breaks out the codes that it temporarily added to the list of approved telehealth services into three buckets:

  1. Codes that CMS is proposing to be permanently included on the list of approved telehealth services.
  2. Codes that CMS is proposing to be included on the list of approved telehealth services for the remainder of the calendar year in which the PHE ends (now the end of 2021).
  3. Codes that CMS is proposing to be removed from the list of approved telehealth services once the PHE ends.

CMS proposes in the reg to include the ED E/M codes levels 1-3 in Bucket 2, which means these codes would be on the list of approved telehealth services through the end of CY 2021. CMS also proposes to place ED E/M codes levels 4 and 5 (CPT codes 99284 and 99285) as well as hospital, intensive care unit, emergency care, and observation stays and critical care services) in Bucket 3.

ACEP Response: ACEP urges CMS to add the ED E/M codes levels 1-3 permanently to the list of approved Medicare telehealth services. We also ask that CMS consider adding higher-level ED E/M codes, the observation codes, and at least a subset of the remaining critical care codes to Bucket 2. Further, we believe that CMS should test the use of these high-level ED codes and critical care codes in Centers for Medicare & Medicaid Innovation (CMMI) models.

Payment for Medication Assisted Treatment (MAT) in the ED

CMS proposes to pay for medication assisted treatment (MAT) delivered in the ED starting in 2021—a proposal ACEP has advocated for in the past.

ACEP Response: ACEP strongly supports the addition of the new add-on code and urges CMS to finalize the proposal as proposed.

Medicare Coverage for Opioid Use Disorder (OUD) Treatment Services Furnished by Opioid Treatment Programs (OTPs)

In last year’s reg, CMS implemented a new Medicare benefit for the treatment of OUD furnished by OTPs. In this proposed reg, CMS proposes several refinements to the new benefit. One of the new proposals is to expand the definition of OUD treatment services to include opioid antagonist medications, such as naloxone.

ACEP Response: ACEP supports the proposal but strongly recommends that CMS introduce a proposal in next year’s reg that would allow EDs to get reimbursed for administering naloxone and emergency physicians and other clinicians working in EDs to get compensated for the time that is spent counseling patients on how to appropriately use naloxone at home.

Electronic Prescribing of Controlled Substances

CMS is implementing a provision of the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act, which requires electronic prescribing of controlled substances (EPCS) under Medicare Part D. To help inform CMS’s implementation of this requirement, the agency recently issued a request for information (RFI). ACEP’s response to the RFI can be found here. In this reg, proposes to require EPCS by January 1, 2022 (a delay of one year from the statutorily required date of January 1, 2021).

ACEP Response: ACEP supports the proposal to delay the ECPS requirement for Medicare Part D until at least 2022 and encourages CMS to work closely with the Drug Enforcement Administration (DEA) on implementing the requirement.

MIPS Value Pathways (MVP) Framework

CMS proposed in last year’s reg to create the MIPS Value Pathways (MVPs), an approach that would allow clinicians to report on a uniform set of measures on a particular episode or condition in order to get MIPS credit. CMS previously indicated that it would propose the first set of MVPs in this reg, so that some MVPs could be implemented in 2021. However, due to the COVID-19 pandemic, CMS did not propose any MVPs for 2021 in this year’s reg. Rather, CMS is postponing MVPs to at least 2022 and seeks comment on proposed revisions to the MVP guiding principles.

ACEP Response: ACEP lays out overall concerns with the process CMS is proposing for developing and proposing MVPs. We also highlight issues with CMS’ proposals on capturing the patient voice; incorporating population health measures into MVPs; promoting the use of digital performance measure data submission technologies; adding a criterion that denominators must be consistent across the measures; incorporating qualified clinical data registries measures into MVPs; and meeting the Promoting Interoperability performance category requirements.

Performance threshold under the MIPS program

CMS is proposing to increase the performance threshold (the threshold that a clinician must exceed to be eligible for a payment bonus) from 45 points in 2020 to 50 points in 2021. There is also an additional performance threshold that is applied to reward clinicians for exceptional performance. CMS is proposing to maintain the exceptional bonus threshold at 85 points in 2021.

ACEP Response: ACEP believes that increasing the performance threshold from 45 points to 50 points is reasonable. However, we caution CMS against increasing the performance thresholds above 60 points in 2022, given the downstream effects of our continued response to the COVID-19 PHE. We also support CMS’ proposal to maintain the additional performance threshold at 85 points for the 2021 MIPS performance period and encourage CMS not to increase this threshold going forward.

Performance Category Weighting in Final Score

CMS proposes to increase the Cost category to 20 percent in 2021 and to 30 percent by 2022. CMS proposes to make corresponding decreases to the Quality category weight (the Quality category weight would be 40 percent in 2021 and 30 percent in 2022).

ACEP Response: ACEP supports the proposal, recognizing that the Cost category is required by law to reach 30 percent by 2022. We continue to express concern about the lack of available cost measures that are meaningful and attributable to emergency physicians.

Qualified Clinical Data Registries (QCDR) Requirements

CMS includes a number of proposals that would affect ACEP’s QCDR, the Clinical Emergency Data Registry (CEDR).

ACEP Response: ACEP responds to each individual QCDR proposal directly. In general, we are concerned that some of the proposals may make it more difficult and burdensome for QCDRs to participate in MIPS successfully.

Alternative Payment Model (APMs)

CMS is proposing technical changes around how clinicians can qualify for the 5 percent MACRA bonus for participation in Advanced APMs.

ACEP Response: ACEP strongly encourages CMS to develop more Advanced APMs that our members can directly participate in, starting with ACEP’s APM, the Acute Unscheduled Care Model.

CMS will release the final reg in late November or early December, and we’ll do a deep dive at that time to clarify what the finalized policies will mean for you in 2021.

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

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