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September 15, 2022

Another Week, Another ACEP Response: ACEP Responds to Medicare Outpatient Hospital Regulation

In back-to-back weeks, ACEP has submitted responses to major annual Medicare proposed regulations: last week it was the Physician Fee Schedule (PFS), and this week, it’s the Medicare Outpatient Prospective Payment System (OPPS). While the PFS is definitely the most impactful reg that ACEP responds to each year, the policies within the OPPS reg also can significantly affect you as emergency physicians and your patients since they focus on the facility payments that hospitals receive for outpatient services (including emergency care).  

One of the main topic areas in the CY 2023 OPPS proposed reg relates to rural emergency hospitals (REHs). Now, REHs may sound familiar. The Centers for Medicare & Medicaid Services (CMS) already issued a proposed reg outlining conditions of participation (CoP) for REHs, to which ACEP responded. However, the OPPS reg proposes additional policies, including the creation of a new quality payment program and a payment methodology that provides additional Medicare facility payments to REHs. All the proposed REH policies from both regs will be finalized in the CY 2023 OPPS final reg that will be released by November 1, 2022—60 days prior to the start of the year. Don’t worry, you can rely on Regs and Eggs for a summary and analysis of the REH policies once the final reg is released.

In response to the proposed REH quality reporting program, ACEP provides specific recommendations on potential quality measures to include in the program. We specifically support the inclusion of “OP-18: Median Time from ED Arrival to ED departure for Discharged ED Patients,” which is a measurement of emergency department “boarding.” It will be important to track whether REHs have the capacity and staff necessary to appropriately treat their patients in a timely manner.

We also highlight for CMS that a potential barrier to quality reporting that REHs may encounter is accessing the data they need to improve their quality performance and availability of staff to analyze the data. REHs may not have the capital to invest in a registry or other mechanism for receiving and analyzing data. Thus, we ask CMS to consider contributing additional resources to REHs to specifically help them with their quality reporting and data analytic capabilities.

With respect to REH reimbursement, the statute that created this new facility type—the Consolidated Appropriations Act— allowed for an additional five percent payment for each service delivered in REHs as well as a monthly payment for REHs. These additional payments would go to the REH facilities themselves under the OPPS, not the physicians or other clinicians who actually provide the services. In order to incentivize physicians and other clinicians to work in rural areas and appropriately staff REHs, ACEP strongly recommends that CMS consider creating an add-on code or modifier under the PFS that clinicians could append to claims for services delivered in REHs. CMS could consider setting the value of this add-on code or modifier at five percent of the PFS rate for each code that is billed—consistent with the additional OPPS payment that the statute provides. In other words, although the statute provides an additional payment for facilities, there must also be a commensurate payment for clinicians under the PFS in order for REHs to have the resources and staff necessary to be a viable option for patients who need emergency treatment or other services in rural areas.

Beyond REH policies, another major portion of ACEP’s response is dedicated to a request for information (RFI) from CMS on how data that the agency collects could be used to promote competition across the health care system or protect the public from the harmful effects of consolidation within health care. As you all may recall, ACEP has been actively looking into this issue and asked our members a series of questions about mergers or acquisitions in emergency medicine back in April in response to the Antitrust Division of the Department of Justice’s (DOJ’s) and Federal Trade Commission’s (FTC’s) joint Request for Information on Merger Enforcement.

In the response to the RFI in the OPPS reg, we echo much of our findings from this questionnaire, highlighting the good, the bad, and the ugly effects of vertical and horizontal consolidation. We also discuss the dire consequences of the rise in insurer consolidation and urge CMS to consider the issue of health care consolidation in all sectors, rather than limiting its focus to “provider consolidation.” Furthermore, we note the difficulty ACEP has had obtaining a comprehensive source of information about the parent organizations for individual emergency medicine practices—as we try to better understand trends of emergency medicine practice ownership. We have attempted to study this issue itself with consultants, who determined that even among public and proprietary databases, any effort to collect data on ownership becomes outdated relatively quickly and would be inaccurate when attempting linkage to other metrics on quality, cost, and physician autonomy, due to the lack of standardization and the rapid pace of consolidation and contracts changing hands every month. We state in our response that the ever-changing nature of health care markets, like the emergency medicine market, may pose challenges for CMS as it attempts to collect data on consolidation.

All in all, with some notable exceptions, we conclude that the current practice of consolidation in the emergency medicine marketplace, at the hospital system, insurer, and physician practice level, detrimentally affects physicians’ interests and wellbeing, which in turn may impact their ability to serve their patients. We therefore recommend to CMS that the agency assess the labor-related impacts of consolidation in health care and how changes to the labor market affect patient care, and then release data and reports to help the public better understand how mergers and acquisitions can lead to anti-competitive and harmful practices.

That’s a summary of the main portions of our OPPS response. Stay tuned for next week, where Regs and Eggs may be discussing yet another regulatory response from ACEP! Could it be three weeks in a row? You’ll have to wait and see!

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

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