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Regs & Eggs - January 2, 2020

Reflections on 2019: A year full of regulatory victories

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Happy New Year! 2019 has come to a close, and it's time to reflect on an exciting and productive year in the regulatory world. Here are ACEP’s top 10 advocacy achievements of the past year (in no particular order):

  1. Eating and Drinking in the ED: Spending hours in the ED without being able eat or drink impacts both your physical well-being and your decision-making ability. In March, ACEP worked with The Joint Commission and the U.S. Occupational Safety and Health Administration (OSHA) to clarify that emergency staff can eat and drink at an ED workstation during their shifts.
  2. The Awesome AUCM: Recognizing a gap in Medicare alternative payment models (APMs) that are available for emergency physicians, ACEP developed the Acute Unscheduled Care Model (which we fondly referred to as AUCM or “awesome”). In September, the Secretary of the Department of Health and Human Services (HHS) stated that he believes that Centers for Medicare & Medicaid Services (CMS)’s Innovation Center should incorporate core elements of the AUCM into future APMs, paving the way for you to potentially receive a 5 percent Medicare payment bonus under the Quality Payment Program. In 2019, ACEP also started our own initiative to promote participation in emergency medicine-focused models that would be sponsored by other payors besides Medicare, like Medicaid and private insurers.
  3. ED Violence: Addressing ED violence is one of ACEP’s top priorities, and we believe more needs to be done at the federal level to protect you and your patients. Earlier this year, ACEP supported legislation that would require OSHA to institute a standard to reduce or prevent workplace violence, and the bill passed the U.S. House of Representatives in November. We have been in contact with OSHA to ensure that any standard it eventually develops effectively addresses ED violence. ACEP also joined forces with the Emergency Nurses Association to launch “No Silence on ED Violence.” This joint effort aims to support, empower, and protect those working in EDs by raising awareness of the serious dangers emergency health clinicians face every day.
  4. Drug Shortages: The ongoing shortage of life-saving medicines is one of the biggest challenges emergency physicians face on a daily basis. Fortunately, progress is finally being made to address this critical issue. In October, the U.S. Food and Drug Administration (FDA) released its long-awaited Drug Shortages Task Force report, “Drug Shortages: Root Causes and Potential Solutions.” ACEP played a key role in encouraging the FDA to focus on finding solutions to address drug shortages. Recently, ACEP President Bill Jaquis, MD, FACEP, spoke with the FDA’s new Commissioner, Stephen Hahn, MD, FASTRO, about continuing our partnership on this important issue, highlighting previous ACEP’s advocacy efforts.
  5. Care for Patients with Opioid Use Disorder: ACEP has strongly advocated for the increased use of medication-assisted treatment (MAT) in the ED, better access to naloxone in communities, and the availability of non-opioid alternatives for pain management. In May, we met with Elinore McCance-Katz, MD, PhD, who leads the federal Substance Abuse and Mental Health Services Administration (SAMHSA), to discuss existing challenges and our recommendations on how to improve treatment for patients with Opioid Use Disorder, including the resources and tools ACEP has created for you and your patients. We also responded to multiple requests for information throughout the year, where we called on federal agencies to start reimbursing for MAT in the ED and to remove obstacles to care, like the X-waiver requirement for prescribing buprenorphine, the “three-day rule” limitation for administering buprenorphine, and current prior-authorization requirements.
  6. Exemption from Appropriate Use Criteria Program: The Appropriate Use Criteria (AUC) Program will soon start requiring physicians ordering advanced imaging for Medicare beneficiaries to first consult AUC to be able to receive payment. The federal law that created the program includes an exemption for emergency medical conditions. As a result of our advocacy, CMS clarified that this exemption includes instances where the emergency medical condition is suspected, but not yet confirmed. As you know, it’s often difficult to differentiate whether a patient is experiencing an emergency or non-emergency condition just based on presenting symptoms. Therefore, this clarification was critical to ensuring that you and your colleagues aren’t forced to go through the unnecessary step of consulting AUC in possibly emergency situations. It is essential that your hospital administrators understand this exemption as well as the clarification. Therefore, in August, ACEP drafted a sample letter for you to share with your hospital administrators encouraging them to make sure the exemption is properly implemented in your ED.
  7. Ongoing Meetings with CMS Quality Leadership: Throughout the year, ACEP met with leaders at CMS who focus on quality-related policies to discuss specific issues that impact you and your patients. Through our ongoing meetings, we have developed relationships with key personnel, established ourselves as a trusted partner, and successfully arbitrated Merit-based Incentive Payment System (MIPS) policies—the major quality reporting program for physicians under Medicare— that will make reporting quality measures easier and a more meaningful experience.
  8. Definition of “Hospital-Based” for Groups: Speaking of MIPS, due to ACEP’s advocacy, going forward most of you will no longer need to report on one of its four performance categories— Promoting Interoperability—thereby significantly reducing your overall reporting burden. Currently, clinicians who are considered “hospital-based” as individuals are exempt from this category. However, before now, if individual clinicians decide to report as a group, they would lose the exemption status if a single group member does not meet the definition of hospital-based. In a victory for ACEP and our members, CMS announced in November that it was altering this policy starting in 2020 by exempting groups from the Promoting Interoperability category as long as 75 percent of individuals in the group meet the definition of hospital-based.
  9. Appropriate Medicare Reimbursement: In November, CMS finalized a policy that increases payment in 2020 for ED evaluation and management (E/M) services—the most commonly billed services for emergency physicians. These services have been historically undervalued, and the increase was the result of many months of behind-the-scenes work by ACEP members and staff who were able to successfully argue for a more appropriate valuation. Unfortunately, our work is not done yet. In the same reg, CMS also finalized a proposal that will lead to a reduction in reimbursement to emergency medicine in 2021. So, while emergency physician services will be more appropriately valued in 2020, payments for these same services may be significantly reduced the following year. Fortunately, CMS is leaving the door open to re-evaluating this policy in the 2021 reg, and we will be working hard to ensure that these payment reductions do not become a reality.
  10. The Regs & Eggs Blog: Last, but not least, in June, ACEP launched Regs & Eggs—the only blog focused on the regulatory issues that matter most to emergency physicians and patients—where we provide weekly updates on new proposed or final regulations, demonstrations, grant opportunities, or other announcements from federal agencies, like CMS or the Veterans Administration.

Well that’s a wrap on 2019! May 2020 bring us even more regulatory victories that will give you the additional flexibility and resources that you need to better serve your patients!

Until next week, this is Jeffrey saying, enjoy reading regs with your New Year’s eggs!

jeff headshot.PNGIf you have any questions or want to weigh in on other regulatory items, feel free to email me: jdavis@acep.org.
Jeffrey Davis is the Director of Regulatory Affairs at the American College of Emergency Physicians (ACEP). He manages ACEP’s formal response to federal policies and works with federal agencies and other stakeholders to help advance ACEP’s federal affairs agenda. Prior to that, Jeffrey worked in the Budget Office at the U.S. Department of Health and Human Services for nearly eight years. Jeffrey came to the Government as a Presidential Management Fellow, and in his position in the Budget Office, he advised top level officials on major budgetary and policy considerations within Medicare and prepared detailed analyses of Medicare regulations and legislation. Jeffrey has a Masters of Science in Health Policy and Management from the Harvard T.H. Chan School of Public Health and a Bachelors of Arts degree from Duke University.

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