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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 March 15, the Medicare Payment Advisory Commission (MedPAC) and the Medicaid and CHIP Payment and Access Commission (MACPAC) released their respective annual Medicare and Medicaid reports to Congress. Of note, MedPAC recommends that physician payments in 2024 be increased by half of the Medicare Economic Index (MEI)—which is an indicator that captures the rising costs of providing physician services.  ACEP has joined the AMA in calling for Congress to instead update payments by the full MEI. 
  • On March 9, ACEP responded to a CMS proposed rule that would streamline the ways in which certain payors conduct their prior authorization processes. Specifically, CMS is proposing to require all impacted payors to implement and maintain an application programming interface (API) by calendar year (CY) 2026. The API would automate the prior authorization process (i.e., require the process to be electronic).
  • On March 6, ACEP submitted comments on a proposed rule issued by HHS called the “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” This proposed rule rescinds part of a previous rule issued in the last Administration regarding the conscience rights of physicians and other health care practitioners.
  • On February 27, CMS issued a fact sheet, preparing beneficiaries and providers of any changes expected in health care delivery (e.g., waivers, flexibilities, etc.) as HHS is planning to end the current public health emergency (PHE) on May 11, 2023, based on current COVID-19 trends.
  • On February 24, CMS announced that certified independent dispute resolution (IDR) entities would resume processing payment determinations on February 2, for disputes involving items or services furnished before October 25, 2022. Certified IDR entities will continue to hold issuance of payment determinations that involve items or services furnished on or after October 25, 2022 until the Departments issue further guidance. ACEP, the American College of Radiology, and the American Society of Anesthesiologists wrote a letter to CMS asking the agency to issue this revised guidance as soon as possible.
  • On February 23, ACEP responded to the Substance Abuse and Mental Health Services Administration’s (SAMHSA’s) supplemental proposed rule implementing the elimination of the requirement that practitioners obtain a waiver to prescribe certain schedule III – V medications for the treatment of opioid use disorder (OUD) as a result of the amendments made in the Consolidated Appropriations Act, 2023. We thank SAMHSA for effectuation of the elimination of this wavier. However, we encourage SAMHSA and the Drug Enforcement Agency (DEA) to swiftly release guidance around the 8-hour training requirements included in the Act.
  • On February 21, the Center for Medicare & Medicaid Innovation (CMMI) announced it is accepting applications from Medicare-enrolled providers, suppliers and Accountable Care Organizations (ACOs) to participate in the two-year extension of the Bundled Payments for Care Improvement (BPCI) Advanced Model. In October 2022, CMS extended the Model for 2 years, to December 31, 2025. The Application Portal will stay open for 100 days and close on May 31, 2023 at 5 pm EST. Successful applicants will start participation in the extension of the Model on January 1, 2024.
  • On February 15, ACEP sent a letter to the FDA asking the agency to consider adding buprenorphine to the list of essential medicines. There has been a lot of discussion among our members that many hospital pharmacies are not carrying buprenorphine, despite the fact that more physicians are now able to prescribe it. Further, since buprenorphine is classified as a “suspicious order” according to current DEA regulations, many community pharmacies are hesitant to stock buprenorphine, and there is a misperception that there are limits around how much of the medication pharmacies can carry at one time. The request to the FDA aligns with an approved 2022 Council resolution, "2022 Council Resolution 29: Buprenorphine is an Essential Medicine and Should be Stocked in Every ED," which asks ACEP to advocate for the FDA to add buprenorphine to its list of essential medications.
  • On February 14, CMS announced three Center for Medicare & Medicaid Innovation (CMMI) models for testing in Medicare Parts B and D and Medicaid to help lower the high cost of drugs, promote accessibility to life-changing drug therapies, and improve quality of care.
  • On February 13, CMS issued a proposed rule to require Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities to disclose to CMS and states additional nursing home ownership and management information to increase the transparency.
  • On February 13, ACEP responded to a proposed rule issued the Substance Abuse and Mental Health Services Administration (SAMHSA) related to medication for the treatment of opioid use disorder.
  • On February 13, ACEP and EDPMA sent another letter to federal agencies related to No Surprises Act implementation-- this time expressing multiple concerns about the significant increase in the non-refundable independent dispute resolution (IDR) administrative fee in 2023, from $50 to $350, and the impact such a high fee will have on emergency physicians and their patients.
  • On February 8, ACEP submitted a formal request to CMS to have the lower-level ED E/M codes (levels 1-3) and the observation codes be permanently added to the Medicare Telehealth Services List. ACEP and 45 other organizations previously sent a letter to CMS asking the agency to extend the availability of codes that have been temporarily added to the Medicare Telehealth Services List until the end of calendar year (CY) 2024 in order to align with the new telehealth timeframe that Congress established in the major omnibus bill. While we made this request for CMS to extend the codes through CY 2024, in the event that CMS does not do so, we thought it would be prudent to also ask CMS to add at least some of the codes permanently to the Medicare Telehealth Services List.
  • On February 2, the National Quality Forum (NQF) formally recommended that CMS adopt an emergency-medicine specific cost measure into the Merit-based Incentive Payment System (MIPS).

 

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