On Monday, ACEP submitted a comprehensive response to the Centers for Medicare & Medicaid Services’ (CMS’) Calendar Year (CY) 2022 Physician Fee Schedule (PFS) and Quality Payment Program (QPP) proposed regulation. The PFS and QPP reg is the major annual regulation that impacts Medicare payments for physicians and other health care practitioners for the next calendar year. The rates included in the PFS often serve as the basis for which many private payors revise their reimbursement levels. The reg also includes updates to the Merit-based Incentive Payment System (MIPS)—the quality performance program established by the Medicare Access and CHIP Reauthorization Act (MACRA).
Found below are highlights of ACEP’s response. CMS must review all public comments (including ours!) and issue a final regulation implementing policies for CY 2022 by November 1, 2021—sixty days prior to the start of the calendar year.
PHYSICIAN FEE SCHEDULE (PFS) POLICIES
Medicare Payment Cuts
In this proposed reg, CMS proposes a PFS conversion factor of $33.58, a decrease of $1.31, or 3.75 percent, from the CY 2021 PFS conversion factor of $34.89. The conversion factor reflects the expiration of a 3.75 percent bump up that Congress added to the conversion factor in 2021. These reductions stem from CMS’ decision to increase the office and outpatient evaluation and management (E/M) services in 2021. There is an existing budget neutrality requirement under the Medicare PFS which forces CMS to make an overarching negative adjustment to physician payments to counterbalance any increases in code values that CMS implements. CMS usually does this by adjusting the Medicare “conversion factor” which converts the building blocks of PFS codes (relative value units or RVUs) into a dollar amount.
Physicians must continue to deal with annual updates to Medicare payments that do not cover the increased costs due to inflation of providing care. Along with the 3.75 percent across-the-board reduction, the two percent sequestration reduction continues to apply year after year. Furthermore, there is another “Pay-Go” sequester of 4 percent that is scheduled to begin at the start of 2022—making the total overall projected cut starting January 1 at 9.75 percent. Emergency medicine clinicians will experience this across-board reduction to their reimbursement in 2022. This cut to emergency medicine, if finalized, would jeopardize the nation’s critically-needed safety net. ACEP requests that CMS do everything within its authority to mitigate the reduction.
Evaluation and Management Services: Split or Shared Services
CMS is proposing a number of refinements to current policies for split or shared evaluation and management (E/M) visits and critical care services.
Emergency Department (ED) Services
CMS lists activities that can count when time is used to select E/M visit level when performed and regardless of whether or not they involve direct patient contact—and then seeks comments on whether there should be a different listing of qualifying activities for purposes of determining the total time and substantive portion of split (or shared) ED visits, since those visits also have a unique construct.
Given that time is not a component of ED E/M services, ACEP believes that the proposed list needs to be refined to remove time-based activities and to better represent medical decision making (MDM) as the driving force determining the substantive portion of an ED visit.
In the reg, CMS clarifies that if more than one E/M visit is provided on the same day, to the same patient, by the same physician, or by more than one physician in the same specialty in the same group, only one E/M service may be reported unless the E/M services are for unrelated problems. CMS is also proposing to CMS’ proposal to bundle critical care into separately billable procedures.
ACEP asks that CMS consider allowing the reporting of a critical care service when an E/M service is completed and the patient later becomes unstable. We are also opposed to CMS’ proposal to bundle critical care into separately billable procedures. In addition, ACEP believes that CMS should not the finalize the proposal and continue to separately reimburse critical care along with procedures that do not contain critical care as part of a global surgical package.
Extension of “Category 3” Codes on the List of Approved Telehealth Services
In last year’s reg, CMS examined which of the codes that are temporarily on the list of approved Medicare telehealth services during the COVID-19 public health emergency (PHE) would remain on the list for an extended period or permanently. CMS broke out the codes that it temporarily added to the list of approved telehealth services into three buckets:
- Codes that CMS decided to include on the list of approved telehealth services permanently.
- Codes that CMS has decided to remove from the list of approved telehealth services once the PHE ends.
- Codes that CMS decided to include on the list of approved telehealth services for the remainder of the calendar year in which the PHE ends (i.e. until December 31, 2021). These codes were added to the list of approved telehealth services on a “Category 3”
CMS placed all the ED E/M codes (the codes that you as emergency physicians typically bill in the ED), the critical care codes, and some observation codes on the approved telehealth list for the remainder of the year after the PHE expires (i.e., Category 3). CMS did note last year that it still needs to see more data and evidence about the benefits of providing ED E/M, critical care, and observation services via telehealth in order to permanently add these codes to the list of approved telehealth services.
In this year’s reg, CMS is proposing to extend the amount of time the codes in Category 3 would remain on the list of telehealth services through December 31, 2023.
ACEP strongly supports this proposal, as it will take some time to collect the data needed to make a compelling case to CMS on whether all or some of the emergency medicine codes that are temporarily on the approved list of telehealth services on a Category 3 basis should be added to the list permanently. In all, this proposal, if finalized, means that you as emergency physicians can continue to provide emergency telehealth services and bill Medicare using the ED E/M codes, critical care codes, and some observation codes at least through the end of 2023.
However, ACEP does not support limiting Medicare telehealth coverage for certain services (the second bucket highlighted above) to the end of the PHE instead of including them in Category 3 and allowing them to remain on the approved list of telehealth services for a longer period of time. We specifically request that Initial Observation and Observation Discharge Day Management (CPT 99218 – 99220; CPT 99234- 99236) be added to Category 3.
Mental Health Telehealth Services
CMS is also implementing a provision of the Consolidated Appropriations Act that removed the geographic restrictions and added the home as originating site for telehealth services specifically when treating patients with a mental health disorder. CMS is requiring that an in-person visit take place six months after a telehealth visit.
We support the statutory provision to eliminate the geographic restrictions and to add the home as an originating site for telehealth services when used for the treatment of a mental health disorder. However, ACEP is concerned with CMS’ proposal to require that patients must have an in-person visit with their treating physician or a physician from the same practice every six months.
Comment Solicitation for Impact of Infectious Disease on Codes and Ratesetting
CMS is soliciting comments about PHE-related costs that could be accounted for by establishing new payment rates for new services to inform future rulemaking.
Given lessons learned during the COVID-19 PHE and other infectious disease outbreaks, CMS should consider reimbursing for certain direct and indirect activities that physicians typically take on during these pandemics or other extreme circumstances.
Physician Assistant (PA) Services
CMS is proposing to implement a provision of the Consolidated Appropriations Act that allows Medicare to pay PAs directly for their services. Currently, Medicare only can pay the employer of the PA and PAs cannot bill Medicare directly.
While ACEP understands that CMS is required by statute to implement this provision of the law, we have strong concerns with this policy, as we believe it could lead to PAs providing unsupervised care in the ED. ACEP strongly believes that PA and nurse practitioners (NPs) should not perform independent unsupervised care in the ED. This holds true regardless of state laws or hospital regulations. In the case of rural and underserved areas, supervision may require telehealth services or real-time off-site emergency physician consultation.
Appropriate Use Criteria Program
Created in the Protecting Access to Medicare Act (PAMA), the Appropriate Use Criteria (AUC) program will eventually require physicians ordering advanced imaging for Medicare beneficiaries to first consult AUC through approved clinical decision support mechanisms in order for the furnishing provider to be able to receive payment. The AUC requirements, which were originally supposed to go into effect in 2017, have already been delayed several times, most recently to January 1, 2022. In this reg, CMS proposes to delay the effective date again, this time to January 1, 2023.
ACEP strongly supports the proposed implementation delay to 2023. Overall, we believe that the program is unnecessary and could harm patient care in the ED by postponing vital treatment. We request that CMS work with Congress to repeal this program.
Electronic Prescribing of Controlled Substances
CMS is continuing to implement a provision of the SUPPORT Act, which requires that the prescribing of controlled substances under Medicare Part D be done electronically. In the reg, CMS:
- Proposes certain exemptions to the electronic prescribing of controlled substances (EPCS) requirement.
- Proposes to allow prescribers to be able to request a waiver where circumstances beyond the prescriber’s control prevent the prescriber from being able to electronically prescribe controlled substances covered by Part D.
- Proposes to extend the start date for compliance actions to January 1, 2023 in response to stakeholder feedback. However, CMS is soliciting comment on whether the original date of January 1, 2022 should remain, in light of the proposed exceptions to the mandate.
ACEP supports the proposal to delay EPCS requirement for Medicare Part D until 2023. ACEP also supports the proposed exceptions but notes that we have had issues getting buprenorphine prescriptions filled through electronic prescribing. Buprenorphine is also an extremely valuable tool in the ED to help start patients on the path towards recovery. Given the effectiveness of buprenorphine in treating patients with opioid use disorder and the issues some physicians have experienced with electronically prescribing this medication, we believe that buprenorphine prescriptions should be an additional exception to the EPCS requirement. We also strongly support the CMS proposal not to impose penalties on physicians for non-compliance with the EPCS requirement. CMS’ proposed compliance actions are definitely an appropriate level of enforcement and should be finalized.
QUALITY PAYMENT PROGRAM (QPP) POLICIES
Health Equity Data Collection Request for Information
CMS Proposal and ACEP Response:
ACEP provides some insights from the emergency medicine perspective regarding CMS’ questions related to the future potential stratification of quality measure results by race and ethnicity and how to improve demographic data collection. We also discuss some interventions that are currents being employed in the ED to help identify barriers to health such as transportation and access to food and housing.
MIPS Value Pathways (MVPs)
CMS has heard feedback, including from ACEP, that MIPS reporting should be streamlined and more meaningful to clinicians. Therefore, CMS created the MIPS Value Pathways (MVPs), an approach that will allow clinicians to report on a uniform set of measures on a particular episode or condition in order to get MIPS credit.
ACEP developed and proposed an emergency medicine-focused MVP and CMS is proposing to adopt it. The first batch of seven MVPs, which includes ACEP’s MVP, will start in 2023. The delayed start date of 2023 will provide practices the time they need to review requirements, update workflows, and prepare their systems as needed to report MVPs.
CMS also proposes additional MVP requirements, a process for registering for an MVP, and a revised scoring methodology. Participation in an MVP will initially be voluntary. In addition, CMS seeks comment on fully transitioning away from traditional MIPS to MVPs after 2027.
ACEP strongly supports the adoption of the emergency medicine-focused MVP, the “Adopting Best Practices and Promoting Patient Safety within Emergency Medicine MVP” in 2023. ACEP believes that it will help improve quality of care, reduce costs, and transition emergency physicians to alternative payment models (APMs)—as it aligns with ACEP’s proposed APM, the Acute Unscheduled Care Model (AUCM).
With respect to the MIPS sunset date, ACEP cannot comment on whether the end of 2027 is an appropriate sunset date for traditional MIPS—but in general we believe that MVP reporting should be voluntary for the foreseeable future. It is difficult to know what the landscape of MIPS reporting will look like at that point in time. In all, we want to ensure a level playing field, where all clinicians have the opportunity to participate in MVPs.
MIPS Category Weighting
MIPS includes four performance categories: Quality, Cost, Improvement Activities, and Promoting Interoperability. Performance on these four categories (which are weighted) roll up into an overall score that determines an upward, downward, or neutral payment adjustment that providers receive two years after the performance period (for example, performance in 2022 will impact Medicare payments in 2024). In the reg, CMS is proposing to reduce the quality category weight from 40 to 30 percent and increase the Cost category from 20 to 30 percent. These new weights are required by law.
General Performance Category Weights Proposed for 2022:
- Quality: 30% (down from 40% in 2021)
- Cost: 30% (up from 20% in 2021)
- Promoting Interoperability (EHR): 25%
- Improvement Activities: 15%
ACEP recognizes that Cost category weighting is required by law to reach 30 percent in 2022. However, given the unprecedented and significant disruptions to the health care system and MIPS due to the COVID-19 PHE, we urge CMS to use its 1135 waiver authority under then COVID-19 public health emergency or the Extreme and Uncontrollable Circumstances Exception policy to maintain the weight of the Cost Performance Category at 20 percent.
The Performance Threshold
The performance threshold is the score that clinicians need to achieve to avoid a penalty and receive a bonus. For the first five years of the program (2017-2021), CMS had the discretion to set the performance threshold at any level it chose. CMS used this flexibility to set artificially low thresholds, making it easier for clinicians to avoid a penalty. However, starting in 2022, CMS is required by law to set the threshold at the mean or median of prior performance. CMS therefore is proposing to set the threshold at 75 points in 2022 (the mean score during the 2017 performance period), a significant increase from the 2021 threshold of 60 points. There is also an additional bonus for exceptional performance. CMS is proposing to set that exceptional bonus threshold at 89 points.
ACEP opposes increasing the performance thresholds that high in 2022, given the downstream effects of our continued response to the COVID-19 PHE. CMS should consider using the 1135 waiver authority it has under the PHE or its Extreme and Uncontrollable Circumstances Exception policy to waive the statutory requirement of using the mean or median of performance of a prior use to establish the threshold, and instead keep the performance threshold at 60 points and the exceptional performance category at 85 points in 2022.
Other Quality Proposals
CMS is proposing to maintain the current data completeness threshold (the percentage of applicable patients on which providers must report on for a particular measure) at 70 percent for the 2022 performance period but is proposing to increase the data completeness threshold to 80 percent for the 2023 performance period.
ACEP opposes the proposed increase in the threshold for 2023.
Scoring Rules for Measures Without a Benchmark or That Do Not Meet Case Minimums
CMS is proposing to change its existing policy to award three points to measures without a benchmark or that do not meet the case minimum. CMS is instead proposing to establish a five-point floor for the first two performance periods for new measures. Thus, except for new measures in the first two performance periods, measures without a benchmark or that do not meet the case minimum will receive 0 points (except when reported by small practices—small practices will still receive 3 points for reporting these measures).
ACEP opposes this proposal since groups of all sizes—not just smaller groups—sometimes cannot make the case minimum for certain measures.
CMS Proposal and ACEP Response:
ACEP opposes the proposal to eliminate bonus points for reporting high-priority and outcome measures as well as measures that meet end-to-end electronic reporting criteria.
That’s the summary of our response! Again, this is largest regulation impacting physicians, so we definitely want to make sure that we sufficiently respond to all proposals that affect you as emergency physicians and your patients.
Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.