September 8, 2022

ACEP Responds to Major Annual Medicare Proposed Regulation Impacting Physician Payments

On Tuesday, ACEP submitted a comprehensive response to the Centers for Medicare & Medicaid Services’ (CMS’) Calendar Year (CY) 2023 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 Quality Payment Program (QPP)—the quality performance program established by the Medicare Access and CHIP Reauthorization Act (MACRA). For a summary of the reg itself, please click here.

Found below are highlights of ACEP’s 52-page response. CMS must review all public comments (including ours!) and issue a final regulation implementing policies for CY 2023 by November 1, 2022—sixty days prior to the start of the calendar year.


Medicare Payment Cuts

CMS proposes a PFS conversion factor of $33.08, a decrease of $1.53 from the CY 2022 PFS conversion factor of $34.61. The conversion factor reflects the expiration of a 3.0 percent bump that Congress added to the conversion factor in 2022. There is also an additional cut of 1.4 percent due to the budget neutrality requirement. The total cut to the conversion factor is roughly 4.4 percent.

ACEP is extremely concerned that 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 4.4 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 2023—making the total overall projected cut starting January 1 at 10.4 percent.

Emergency medicine clinicians will experience this across-the-board reduction to their reimbursement in 2023. 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. We strongly urge the agency to work with Congress to enact meaningful physician payment reform that will add more stability to the PFS.

Evaluation and Management Services

AMA CPT Documentation Requirements

In the reg, CMS discusses the American Medical Association (AMA) Current Procedural Terminology (CPT) documentation changes and proposes to adopt most of these changes in coding and documentation. However, CMS is proposing to maintain the current billing policies that apply to the evaluation and management (E/M) codes while the agency considers potential revisions that might be necessary in future rulemaking. ACEP supports the stated goals of reducing the unnecessary documentation burden and bringing CPT and CMS into better alignment while maintaining a resource-based system that also decreases the need for audits. Although the new guidelines are significantly better, especially including robust definitions of included terms, ACEP has submitted a Code Change application to the CPT Editorial Panel asking for small changes in the medical decision making (MDM) grid to better reflect patient care in the emergency department (ED) setting, which are not captured in a document originally designed for office-based service, especially as they relate to escalation of care and social determinants of health.

Emergency Department E/M Codes

CMS is proposing to reject the AMA Relative Value Scale Update Committee (RUC) recommendation for CPT 99284 and keep the value at 2.74 Relative Value Units (RVUs).

ACEP strongly supports this proposal. We have previously argued that the ED E/M codes should retain their relative values as compared to the office and outpatient E/M codes. Our argument was in line with previous statements from the RUC. In fact, the RUC has three times (1997, 2007, and 2018) recommended that the ED E/M codes should be the same value as the new patient office or other outpatient E/M codes for levels 1 through 3 and that levels 4 and 5 should be higher. We appreciate that CMS continues to give credence to this argument and believes that it is appropriate to retain the historic relativity between the new patient office or other outpatient codes and the ED E/M codes.

Critical care

CMS is proposing to change the threshold for reporting CPT 99292 in addition to the base code of CPT 99291 from 75 minutes to 104 minutes.

ACEP notes that this proposed critical care policy differs from long-standing CPT policy, and we believe will therefore increase provider confusion and administrative burden. We also believe that if CMS adheres to this policy, the value of the first hour of critical care should be increased commensurately, since it is currently based on 60 minutes of critical care.

Observation Services

Overall concerns: CMS is proposing to accept the CPT coding changes that merge the codes previously describing observation services into the inpatient E/M code set. ACEP is generally concerned with the overall ability of emergency physicians to adopt all the changes that CMS is proposing for 2023 due to staffing shortages and complications in workflow implementation. Thus, we believe CMS should consider delaying or phasing in some of the changes to the observation codes and billing requirements, specifically the enforcement of the 8-to-24-hour rule related to observation encounters that transcend the calendar date.

Valuation of New Combined Codes: ACEP notes that CMS’ proposed revisions to the values for inpatient and observation E/M visits create an inconsistent relativity across the code family as compared to office and outpatient E/M services.

Billing For Both an ED Service and An Observation Service: CMS proposes to retain the policy that a billing provider may only bill initial hospital or observation care service if the physician sees a patient in the ED and decides to either place the patient in observation status or admit the patient as a hospital inpatient, in contradiction to the CPT policy. Therefore, ACEP requests that CMS provide language in the final rule to clarify how to appropriately bill for these services.

8-to-24-Hour Rule: ACEP is concerned about the application of the 8-to-24-hour rule (the policy that applies when observation services transcend a calendar date) with the elimination of the inpatient hospital and observation code sets due to the contradictions between CPT and CMS policy. We ask CMS for clarification on how to report this type of interaction between clinicians of different groups in the transition from observation to inpatient care and reiterate our request for CMS to delay enforcement of the 8-to-24-hour rule.

Prolonged Services: CMS establishes new Healthcare Common Procedure Coding System (HCPCS) prolonged services codes (GXXX1- GXXX3) based on their refutation that “there is inherently greater complexity of patient need or intensity of work for E/M visits furnished in non-office settings (for example, inpatient, ED, and home settings) compared to the office settings.” ACEP strongly disagrees that the complexity and intensity of E/M visits delivered in office settings are the same as they are in facility-based settings such as the ED. We also question the need to create the new CMS prolonged service code GXXX1 when CPT has a code that describes this same service, namely CPT 993X0, which will become available in 2023. We ask CMS to recognize the existing code CPT 993X0 with values of 0.81 work, 0.31 practice expense (PE), and 0.03 personal liability insurance (PLI) for a total facility RVU of 1.15.

Split/Shared Services: In last year’s reg, CMS finalized a policy for determining whether a physician or non-physician practitioner should bill for an E/M service that they both were involved in delivering (called split/shared services). ACEP, the AMA, and many other specialty societies have strongly opposed using only time to determine the substantive portion of a split/shared E/M service and formally requested that CMS reverse its policy and instead modify it to allow the determination to be made based on time OR MDM.

In this year’s reg, CMS proposes to delay the implementation of the full transition to using only time to determine the substantive portion of a split/shared E/M service until 2024. ACEP supports the CMS proposal to delay the implementation of the full transition to time, and we continue to support the current policy to use the history, physical exam, MDM, or more than half of the total time spent with a patient to determine the substantive portion of the split/shared visit. We believe that the time a physician and non-physician practitioner each spend with a patient does not necessarily dictate which clinician actually provided the “substantive” portion of a service. Thus, we strongly urge CMS to revise the split or shared visit policy to allow the physician or non-physician practitioner who is managing and overseeing the patient’s care to bill for the service, thereby preventing the disruption of team-based care.

Telehealth Services

ACEP continues to support CMS’ decision to include all five ED E/M code levels 1-5 (CPT codes 99281-99285), the critical care codes, and some observation codes on the list of approved telehealth services on a “Category 3” basis. These services will remain on the list until December 31, 2023. However, in order for the codes to remain permanently on the list of approved telehealth services, CMS needs to see more data and evidence about the benefits of providing these services via telehealth to meet a “Category 2” review.  Under Category 2, CMS must assess clinical studies and other evidence that demonstrates that the use of a telecommunications system to deliver the service produces demonstrated clinical benefit to the patient.

We strongly supported the delivery of telehealth services by board-certified emergency physicians—and we have seen some extremely positive effects of using telehealth during the pandemic. However, meeting the Category 2 criterion is an unreasonably high bar, and it will take a significant amount of time to collect the data needed to meet it.

We do not believe that CMS should need to look at whether the act of providing a service via telehealth adds additional clinical value. Telehealth is simply a means by which health care clinicians deliver services—an extremely useful tool that clinicians can employ to expand access to care. In other words, if a physician provides a specific high-quality service to a patient, we should expect it to be as effective and add as much clinical value regardless of whether it was delivered in-person or via telehealth. We should not have to prove that providing a service via telehealth adds even more clinical value than conducting the service in-person. We therefore suggest that CMS consider revising its Category 2 criterion in future rulemaking.

Rebasing and Revising the Medicare Economic Index

The Medicare Economic Index (MEI) reflects the weighted-average annual price change for various inputs involved in delivering physicians’ services. While the MEI is no longer used to update the conversion factor, as it was under the Sustainable Growth Formula (SGR), it is still used to determine the relative cost share weights for RVUs and Geographic Practice Cost Indices (GPCIs). CMS proposes to rebase and revise the MEI using data from 2017 to reflect more current market conditions faced by physicians in furnishing physicians’ services. However, CMS proposes to delay the implementation of the proposed rebased and revised MEI cost weights for both PFS rate-setting and the proposed CY 2023 GPCIs.

ACEP supports CMS’ proposal to the delay in implementation of the MEI cost share weights for purposes of the CY 2023 GPCIs and PFS rate-setting. Before any substantive changes to the GPCI and RVU relative rates are implemented, we believe that the PFS conversion factor must be stabilized. The annual reductions to the conversion factor, including the proposed 4.4 percent reduction to the CY 2023 conversion factor, are unacceptable. CMS estimates there would be a large negative impact on numerous specialties, including emergency medicine (-8.0 percent), if the RVU cost share weights were revised according to the updated MEI cost share weights. It would be premature to implement a significant change to the PFS that would have a drastic impact on payments when there is such instability already present within the PFS.

Geographic Practice Cost Indices (GPCIs)

CMS proposes updates to the GPCIs (which are used to update Medicare payments based on geography), as the agency is statutorily required to do every three years. CMS proposes to phase in half of the proposed GPCI adjustments in CY 2023 and the remaining half in CY 2024.

ACEP supports CMS’ approach to updating the GPCIs and believes that it is appropriate to use more updated data sources to determine the GPCI relative values for work, practice expense, and malpractice. As stated above, we also strongly support CMS’ proposal to the delay in implementation of the MEI cost share weights for purposes of the CY 2023 GPCIs.

Medicare Payments for Dental Services

CMS is proposing to clarify and codify certain aspects of the current Medicare fee-for-service (FFS) payment policies for dental services and is seeking comment on payment for other dental services that are substantially related and integral to the clinical success of an otherwise covered medical service.

ACEP supports this effort from CMS to expand coverage for dental conditions which are inextricably linked to progressive infections and other conditions covered by Medicare.

Modifications Related to Medicare Coverage for OUD Treatment Services Furnished by OTPs

CMS is allowing Opioid Treatment Programs (OTPs) to initiate treatment of buprenorphine via two-way audio/video communications technology, as long as that method of providing care is authorized by the Drug Enforcement Administration (DEA) and Substance Abuse and Mental Health Services Administration (SAMHSA).

ACEP believes CMS should continue to make it a priority to promote the initiation of medication-assisted treatment (MAT) both by OTPs and outside of OTPs, including the ED. Additionally, we believe CMS should work to improve access to and use of medically-assisted treatment (MAT) for the treatment of other substance abuse disorders beyond opioid use disorder (OUD), and one way of accomplishing this goal is to modify the current add on code for initiating MAT in the ED for the treatment of OUD (G2213) to include treatments for all substance use disorders, including alcohol use disorder. 

Medicare Shared Savings Program

The Medicare Shared Savings Program (MSSP) is the national accountable care organization (ACO) program, which serves over 11 million Medicare beneficiaries. In the rule, CMS is proposing to make numerous changes to the program. 

Overarching Comments: ACEP overall supports these proposals, but we urge CMS to create additional incentives for specialists like emergency physicians to get engaged in the MSSP and other ACO initiatives, including alternative payment models (APMs). ACEP created an emergency medicine APM called the Acute Unscheduled Care Model (AUCM), which CMS could consider incorporating into the MSSP and other ACO initiatives.

Screening for SDOH and Screen Positive Rate for SDOH and Future Measures Development RFI: CMS is seeking comment on two new measures: Screening for Social Drivers of Health (SDOH) and Screen Positive Rate for Social Drivers of Health. Overall, ACEP believes that quality measures should account for risk factors such as lack of access to food, housing, and/or transportation that affect patients’ ability to adhere to treatment plans.

Addition of New Consumer Assessment of Healthcare Providers & Systems (CAHPS) for MIPS Survey Questions RFI: CMS seeks input on potential modified questions in the CAHPS for Merit-based Incentive Payment System (MIPS) survey pertaining to health disparities and price transparency.

  • Discrimination Question: CMS is considering adding a question about insensitive treatment based on social demographics. ACEP reaffirms that denial or delay of the provision of emergency care on the basis of race, religion, sexual orientation, gender identity, ethnic background, social status, type of illness, or ability to pay is unethical.
  • Price Transparency: CMS is seeking input on adding a question to CAHPS about the discussion of cost with their health care team. ACEP appreciates the effort in ensuring price transparency, but notes that it is nearly impossible for emergency clinicians to approximate costs initially, and therefore, emergency care should be excluded from this question.

Requirement for Electronic Prescribing for Controlled Substances for a Covered Part D Drug under a Prescription Drug Plan or MA-PD Plan

CMS is proposing to delay compliance of the electronic prescribing for controlled substances (EPCS) requirement by another year, until January 1, 2024, but is seeking comment on what penalties to implement going forward starting in 2025. ACEP supports the proposal to delay the EPCS requirement until 2024 but is disappointed that CMS did not consider factors unique to emergency medicine when establishing the final exceptions and requirements. We also continue to oppose the imposition of any financial penalties for those who do not comply with the requirements.


The Quality Payment Program (QPP), established by MACRA, includes two tracks: the Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APMs). MIPS includes four performance categories: Quality, Cost, Improvement Activities, and Promoting Interoperability (formally Meaningful Use). Performance on these four categories (which are weighted) roll up into an overall score that translates to an upward, downward, or neutral payment adjustment that providers receive two years after the performance period (for example, performance in 2023 will impact Medicare payments in 2025). Those who successfully participate in Advanced APMs can receive a five percent bonus and are exempt from MIPS.  However, the last year a clinician can receive a bonus under current law is 2024, based on the clinician’s participation in the Advanced APM in 2022.  Most emergency physicians do not participate in Advanced APMs, and therefore must meet the MIPS requirements.

MIPS Value Pathways (MVPs)

ACEP Recommendations for Modifying MVPs: The 2023 performance year is the first year of a new reporting option in MIPS called the MIPS Value Pathways (MVPs). MVPs represent 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 an emergency medicine-focused MVP that CMS will be including in the first batch of MVPs starting in 2023. While we are excited about the implementation of this MVP, the Adopting Best Practices and Promoting Patient Safety within Emergency Medicine MVP, we are generally concerned that not many clinicians will actually report through the MVP next year. 

Due to the COVID-19 public health emergency, hardship exemptions have been in place for the 2019, 2020, 2021, and 2022 MIPS performance periods. Therefore, for some clinicians, 2023 may be the first time they participate in MIPS in four years. These clinicians may not be willing to take a risk and try a new method for reporting in MIPS, especially when the potential downside is significant – a nine percent reduction in reimbursement on all Medicare covered professional services. To encourage participation in MVPs, we recommend the following:

  • Create More Incentives for Participating in MVPs: ACEP continues to believe that there should be some additional incentives for initially participating in an MVP over traditional MIPS. ACEP strongly recommends that CMS include at least a five-point bonus for participating in an MVP initially. Clinicians who participate in MVPs should also be held harmless from any downside risk for at least the first two years of participation.
  • Eliminate the Foundational Layer: MVPs include a “foundational layer” of population-based claims measures. ACEP believes that measures that should be included in MVPs are only those that have been developed by specialty societies to ensure they are meaningful to a physician’s particular practice and patients and measure things a physician can actually control.

Quality Performance Category of MIPS

Data Completeness:  CMS is proposing to maintain the current data completeness threshold at 70 percent for the 2023 performance period but is proposing to increase the data completeness threshold to at least 75 percent for the 2024 and 2025 performance period. ACEP opposes the proposed increase in the threshold for the 2024 and 2025 performance periods because it would increase administrative burden and overall cost of complying with MIPS requirements.

Modifications to the MIPS Quality Measure Set: CMS is proposing to add five quality measures to the emergency medicine specialty set. ACEP supports the addition of the Appropriate Treatment for Upper Respiratory Infection (URI) measure, but opposes the following proposed additions: Preventive Care and Screening: Screening for Depression and Follow-Up Plan; Preventive Care and Screening: Tobacco Use: Screening and Cessation Intervention; and Preventive Care and Screening: Unhealthy Alcohol Use: Screening & Brief Counseling. We also have concerns about the Screening for Social Drivers of Health measure in terms of its applicability to emergency physicians.

Cost Performance Category

ACEP encourages CMS to continue to develop episodes that capture the clinical screening, diagnostic testing, and stabilization work done by emergency physicians before a patient is admitted into the hospital. CMS’ contractor, Acumen, convened a workgroup that developed an emergency medicine episode-based cost measure. ACEP nominated a few individuals to serve on that workgroup, and we are pleased that three ACEP members are participating in it—including as the chair of the workgroup. We are hopeful that this measure will be proposed in next year’s rule for implementation starting in CY 2024.

CMS is also proposing to establish a maximum cost improvement score of one percentage point for the Cost performance category beginning with the CY 2022 performance period/2024 MIPS payment year. ACEP does not support this proposal and believes that CMS should increase the maximum cost improvement score to at least five percent due to the Cost category’s significant impact on a clinician’s MIPS score.

Improvement Activities Performance Category

CMS proposes to add four new improvement activities, modify five existing improvement activities, and remove six existing improvement activities. ACEP has comments on a few of the proposed changes.  We oppose the removal of PSPA 6: Consultation of the Prescription Drug Monitoring Program and PSPA 20: Leadership engagement in regular guidance and demonstrated commitment for implementing practice improvement change and support the addition of IA_PCMH: Electronic submission of Patient Centered Medical Home accreditation; Create and implement a plan to improve care for lesbian, gay, bisexual, transgender, and queer patients; and Create and implement a language access plan. 

Promoting Interoperability

Although most emergency physicians are deemed hospital-based clinicians and are therefore exempt from the Promoting Interoperability performance category of MIPS, there are a few proposals that ACEP comments on. One of these relates to the Query of Prescription Drug Monitoring Program (PDMP) measure. CMS is proposing to require clinicians to report this measure beginning in CY 2023 and proposing to expand it to include Schedule III and IV drugs in addition to Schedule II opioids.  

ACEP is concerned with CMS’ proposal to mandate and expand this measure simultaneously as best practices for PDMPs are still being established.

Calculating the Final Score

Complex Bonus: ACEP strongly supports the proposal that a facility-based MIPS eligible clinician would be eligible to receive the complex patient bonus, even if they do not submit data for at least one MIPS performance category. We urge CMS to finalize the proposal.

Facility-based Scoring Option: In the Fiscal Year (FY) Inpatient Prospective Payment System (IPPS) final rule, CMS stated that it will suppress measures under the Hospital Value-Based Purchasing Program (HVBP) in FY 2023. CMS instituted a similar policy last year, and hospitals again will not receive a HVBP score and will not be eligible for any positive or negative payment adjustments based on their performance in the program.

ACEP is disappointed that CMS again has decided to eliminate the facility-based scoring option under MIPS in 2022. In order to protect hospital-based clinicians that depend on this option, ACEP strongly believes that CMS should reverse that decision and provide hospital-based clinicians a viable opportunity to utilize this option. CMS could consider using an HVBP score from a prior year in order to determine a MIPS eligible clinician’s facility score. If CMS is not able to use other data to determine a facility score, then CMS should create a hold harmless provision to ensure that hospital-based clinicians are not penalized and do not receive a downward adjustment simply because a facility score is not able to be calculated.

Performance Threshold: CMS proposes to keep the threshold that clinicians need to achieve in order to avoid a penalty at 75 points in 2023—the same threshold the agency established or 2022.  ACEP supports CMS’ decision not to raise the threshold in 2023.

Qualified Clinical Data Registries (QCDRs)

QCDRs are third-party intermediaries that help clinicians report under MIPS. ACEP owns and operates its own QCDR, the Clinical Emergency Data Registry (CEDR)We strongly believe that CMS should continue to refine the QCDR option to provide better incentives for organizations, including medical associations such as ours, to continue to invest in their QCDRs and develop new, meaningful measures for specialists to use for MIPS reporting and other clinical and research purposes. Conversely, CMS should refrain from finalizing proposals that would impose significant and unreasonable burdens on QCDRs.

QCDR Measure Approval Criteria: CMS proposes to revise its QCDR measure approval requirements by delaying the requirement for a QCDR measure to be fully developed and tested until the CY 2024 performance year. ACEP supports this proposal and requests that CMS also delay the testing requirements for measures in MVPs.

Remedial Action and Termination of Third-Party Intermediaries: CMS proposes one revised and one new requirement for Corrective Action Plans (CAPs) and proposed termination of certain approved QCDRs and Qualified Registries that continue to fail to submit performance data. ACEP does not support these proposals and believes it is premature to institute such a policy given the impact COVID-19 has had on MIPS participation and QCDR stewards.

Advanced APMs

After performance year 2022, which correlates with payment year 2024, there is no further statutory authority for a five percent bonus for those who become Qualifying APM Participants (QPs) for a year (i.e., those who participate in an Advanced APM). In performance year 2023, which correlates with payment year 2025, the statute does not provide for any type of incentive for clinicians who become QPs. Beginning in CY 2026, there is a separate conversion factor update under the PFS for clinicians who participate in MIPS and those that are QPs. The conversion factor update for clinicians who are QPs is 0.75 percent, and the update for clinicians who are not QPs (and therefore must participate in MIPS) is 0.25 percent.

CMS believes that after CY 2026, clinicians who participate in MIPS and receive a positive MIPS adjustment (in addition to the general 0.25 percent conversion factor adjustment they will receive) may actually receive a higher overall payment under the PFS than those who participate in Advanced APMs and only receive a 0.75 percent conversation factor increase. CMS is therefore concerned that there may be more of an incentive to participate in MIPS than Advanced APMs.

While ACEP shares CMS’ concerns about the relative incentive between participating in MIPS and being in Advanced APMs, we believe it is important to reiterate that many specialists, including emergency physicians, do not have an opportunity to participate in Advanced APMs in the first place. In order to fill this gap in available emergency medicine APMs, ACEP developed the AUCM—but we are still waiting for CMS to incorporate elements of the model into existing APMs. It is therefore unfair to specialists that they had no reasonable chance to ever qualify for the now-expired five percent APM incentive payment. CMS should make it a priority to work with Congress on extending the five percent bonus.

That’s the summary of our response! Again, this is largest regulation impacting physicians, so we definitely wanted to make sure that we sufficiently responded 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.

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