ACEP ID:

Regulatory Affairs

What We Do

As part of our overall federal advocacy strategy, ACEP’s Regulatory Affairs team plays an active role in monitoring and influencing federal regulations and other policies developed by federal agencies. ACEP also advocates on behalf of our members to reduce burdensome requirements that impact their ability to treat patients, ensure fair reimbursement, and eliminate unfair insurer billing practices.

Emergency physicians provide the vast majority of acute care for Medicare and Medicaid patients in the U.S. Medicare rates are often used to set Medicaid and private payor payment rates, yet they do not cover the costs of providing care and have not kept up with the pace of inflation over the last few decades. However, inadequate Medicare and Medicaid payment rates ultimately damper the medical student pipeline and make it more challenging for patients seeking emergency care.

Given the importance of Medicare payment policies on emergency physician reimbursement, ACEP has advocated to both the Centers for Medicare & Medicaid Services (CMS) and to Congress to address the payment deficiencies in Medicare and impose payment rates that increase with inflation.   

The annual Medicare Physician Fee Schedule (PFS) regulation makes updates not only to Medicare physician payments for the next calendar year, but also to the Quality Payment Program (QPP), the major quality reporting program for physicians under Medicare. Failure to successfully participate in the Merit-based Incentive Program (MIPS)—the main track within the QPP—could result in a 9 percent reduction to your Medicare payments. 

In addition, ACEP works with other influential nongovernmental organizations to advocate for important issues affecting emergency physicians.

Medicare Reimbursement

Medicare reimbursement rates fare extremely important for emergency physicians. not only do they affect Medicare payments, but they serve as the basis for which private payors establish their own individual payment levels.

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Merit-based Incentive Payment System (MIPS)

The Medicare Physician Fee Schedule (PFS) regulation makes updates to the Quality Payment Program (QPP), the major quality reporting program for physicians under Medicare. 

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Updates

  • On November 28, CMS issued a memo directed to hospital leaders reminding them of their responsibility to “provide adequate training, sufficient staffing levels, and ongoing assessment of patients and residents for aggressive behavior and indicators to adapt their care interventions and environment appropriately.” In the memo, CMS references an April 2020 Bureau of Labor Statistics Fact Sheet that healthcare workers accounted for 73 percent of all nonfatal workplace injuries and illnesses due to violence in 2018, and states that “with appropriate controls in place,” workplace violence can be addressed. CMS reiterates that they “will continue to enforce the regulatory expectations that patient and staff have an environment that prioritizes their safety to ensure effective delivery of healthcare.”
  • On November 28, HHS released a long-awaited proposed rulethat implements a provision from the CARES Act (passed in March 2020) that partially aligns 42 CFR Part 2 with HIPAA. 42 CFR Part 2 (Part 2) is a set of regulations that govern the confidentiality of patient records for the treatment of substance use disorder (SUD). Part 2 currently imposes different requirements for SUD treatment records protected by Part 2 than the HIPAA Privacy Rule, which can create barriers to information sharing by patients and clinicians.
  • On November 28, ACEP and EDPMA sent a letter to the Biden Administration expressing concern about the number of independent dispute resolution (IDR) claims being placed on hold, as well as the recent announcement the IDR fees (the fee that the arbitrator charges for the IDR process) will INCREASE in 2023. The rationale for the increase in fees is that the arbitrators are sorting through many more claims than expected, and in many cases, have to do a lot of work just to determine whether or not the claim is even eligible for the federal IDR process. In the letter, we argue that health plans are not providing the information that they are supposed to provide, which would help make the process much more efficient. One solution to this (besides more enforcement, which we also argue for) is to require health plans to use certain Remittance Advice Remark Codes (RARCs)when providing the disclosures that are required along with the initial payment or notice of denial for out-of-network services under the No Surprises Act. These RARCs, which are currently optional, very clearly lay out whether the claim is subject to federal or state law and therefore would certainly help clear up a lot of confusion that is impeding the success of the federal dispute resolution process.
  • On November 23, ACEP responded to a proposed rule issued by the Department of Labor that modifies the criteria used to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). In ACEP’s response, we state that we appreciate the Department of Labor’s effort to ensure that there is a fair process for determining whether an individual is deemed an employee or independent contractor. However, we believe it is important for the Department of Labor to recognize the complexity of health care employment structures when issuing its finalized policies. Therefore, we request that the Department of Labor in the final rule specifically address the dynamic health care labor market and perhaps consider creating a stand-alone policy specific to health care that will ensure that health systems and providers have the flexibility to engage in contractual and employment arrangements that will best meet their needs and the needs of their communities.
  • On November 15, the FDA issued a Federal Register notice, Safety and Effectiveness of Certain Naloxone Hydrochloride Drug Products for Nonprescription Use, that will help lead the way for some naloxone products that now require a prescription to become available over-the-counter.
  • On November 7, the CMS Innovation Center (CMMI) released a one-year report on the implementation of its refreshed strategic vision and objectives, which were originally announced in the fall of 2021 to build the foundation for a health system that "achieves equitable outcomes through high-quality, affordable, person-centered care." The report includes a focus on the role of specialty care in the delivery of high-quality accountable care. In conjunction with the report,CMMI officials wrote a blog post that outlines the agency’s strategy to support testing models and tools to improve access to high-quality, value-based specialty care. In the blog post, CMMI states that in the long term it plans to test a new mandatory acute episode payment model that improves acute care and care transitions, while supporting the goals of longitudinal, accountable care.”
  • On November 3, the CDC released their 2022 Clinical Practice Guideline for Prescribing Opioids for Pain, officially revising the 2016 Guideline. The CDC issued its draft guideline earlier this year, and ACEP and SAEM submitted a joint response. The CDC has released a suite of tools and resources to help patients and clinicians understand and use the recommendations in the new guideline in their pain care decision making. The CDC has also developed a partner toolkit that includes key messages and sample social media content to support communication about the 2022 Clinical Practice Guideline.
  • On November 3, ACEP submitted two responses: one to a CMS proposed rule that would help streamline Medicaid enrollment and another to a CMS request for information (RFI) on how to address administrative and regulatory barriers that impede our ability to advance health equity and reduce health disparities.
  • On November 1, CMS released a Medicare annual payment reg for CY 2023 that impacts payments for outpatient hospital services. The reg includes finalized conditions of participation (CoPs) for a new facility-type in Medicare called rural emergency hospitals (REHs), as well as other REH and hospital outpatient policies that were included in the CY 2023 OPPS proposed reg. ACEP responded to both the REH CoP proposed reg and the CY 2023 OPPS proposed reg. Here is a high-level summary of the reg.
  • On October 31, HHS, the Department of Labor, and the Department of the Treasury released revised No Surprises Act guidance documents based on the independent dispute resolution (IDR) policies that were finalized in the August final regulation.

 

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