On Tuesday, September 6^th, EDPMA submitted its comment letter responding to proposals included in the calendar year (CY) 2023 Medicare Physician Fee Schedule (MPFS) proposed rule.  The MPFS proposed rule is issued by the Centers for Medicare and Medicaid Services (CMS) and sets health care professional payment rates and other policies, including quality reporting requirements, for the upcoming calendar year. In addition to addressing the planned cuts to the CY 2023 MPFS conversion factor and other downward pressures on Medicare physician payments, key highlights from the CY 2023 MPFS EDPMA comment letter include:

• Emergency Department Evaluation & Management (ED E/M) Codes: CMS proposed adopting the revised CPT documentation guidelines for emergency department (ED) evaluation and management (E/M) visits. These changes are intended to align documentation for all E/M code sets (other than critical care services) with the documentation guidelines adopted for office and outpatient E/Ms in CY 2021. (For more information on the ED E/M documentation guideline changes coming January 1, 2023, see information from AMA CPT via this link.) Because of these documentation guideline changes, the AMA RUC also embarked on a revaluation of all affected codes sets. In this rule, CMS proposed accepting the values for emergency department (ED) evaluation and management (E/M) services as recommended by the AMA RUC for CPT 99281, 99282, 99283, and 99285. However, CMS rejected the RUC recommendation of 2.60 for CPT 99284 and instead proposes to maintain the current work relative value units (RVUs) of 2.74. EDPMA provided support for CMS’ proposed wRVUs for the emergency department visit code set.
• Split (or Shared) E/M Visits: CMS had previously finalized a new January 1, 2023 billing policy for instances in which a physician delivers an E/M service along with a non-physician practitioner. CMS had stated that the practitioner that would bill the service would be the one who performed the “substantive portion” of the service. For January 1, 2023, CMS had set out to define “substantive portion” as “more than half of the total time.” As EDPMA requested prior to CY 2023 rulemaking, CMS has delayed the policy that would have based the determination of the billing practitioner solely on time. The policy is proposed for delay through January 1, 2024 while CMS collects additional input. In the meantime, “substantive portion” will continue to be defined as one of the three key components (history, exam, or MDM) of the E/M or more than half of the total time. EDPMA opposed any future implementation of a definition of “substantive portion” that is based solely on time, particularly as it applies to ED E/M visits.
• Critical Care Services: In the proposed rule, CMS revisited policies that it finalized as part of CY 2022 rulemaking for critical care services described by the following codes:
  • CPT 99291 (Critical care, evaluation and management of the critically ill or critically injured patient; first 30-74 minutes))
  • CPT 99292 (each additional 30 minutes)

In the proposed rule, CMS stated,

At 86 FR 65162, we stated in error, “Similar to our proposal for split (or shared) prolonged visits, the billing practitioner would first report CPT code 99291 and, if 75 or more cumulative total minutes were spent providing critical care, the billing practitioner could report one or more units of CPT code 99292.” We intended to state that CPT code 99292 could be billed after 104, not 75, or more cumulative total minutes were spent providing critical care. As correctly stated elsewhere in the CY 2022 PFS final rule (regarding critical care furnished by single physicians at 86 FR 65160, and regarding concurrent care furnished by multiple practitioners in the same group and the same specialty to the same patient at 86 FR 65162), our policy is that CPT code 99291 is reportable for the first 30-74 minutes of critical care services furnished to a patient on a given date. CPT code 99292 is reportable for additional, complete 30-minute time increments furnished to the same patient (74 + 30 = 104 minutes). We clarify that our policy is the same for critical care whether the patient is receiving care from one physician, multiple practitioners in the same group and specialty who are providing concurrent care, or physicians and NPPs who are billing critical care as a split (or shared) visit.

EDPMA forcefully opposed this uncalled for change and urged CMS to withdraw the proposal as it is confusing and would result in guidance that departs from well-recognized, long-standing CPT critical care “time” policy.

• Telehealth Services: CMS reviewed its policies after the sudden expansion of telehealth services in response to the COVID-19 public health emergency (PHE). As part of the Consolidated Appropriations Act, 2022 (CAA, 2022), Congress extended the flexibilities for telehealth originating site and geographic requirements for a period of 151 days after the end of the COVID-19 PHE. In the CY 2023 MPFS proposed rule, CMS took several steps to effectuate these provisions from the CAA, 2022. Of note, the emergency department visits and critical care services are only approved as Medicare telehealth services through December 31, 2023.  If the PHE should extend past that date, or the “151 days after the end of the COVID-19 PHE” were to extend into 2024, CMS would need to take additional steps to allow for continued telehealth billing for ED visits and critical care services.  CMS has, though, communicated an openness to adding codes in this category to the list permanently if CMS receives more data supporting such a change.  EDPMA encouraged CMS to permanently add CPT 99281 – 99285 and CPT 99291 and 99292 (and their revised 2023 code descriptors) to the Medicare Approved List of Telehealth Services.
• MIPS Value Pathways (MVPs): According to CMS, MVPs are more streamlined sets of existing MIPS measures and improvement activities focused on a condition, procedure, or patient population. Clinicians who opt-in to this pathway will benefit from slightly reduced reporting requirements (i.e., reporting 4 vs. 6 quality measures and attesting to 2 vs. up to 4 improvement activities).  Last year, CMS finalized the “Adopting Best Practices and Promoting Patient Safety within Emergency Medicine” MVP for voluntary use beginning with the 2023 performance year.  EDPMA shared concerns that that the Emergency Medicine MVP only includes five non-QCDR measures. Therefore, in order to ensure that emergency medicine clinicians can take advantage of this new and more focused participation pathway without having to use a QCDR, EDPMA requested that CMS add additional non-QCDR measures to the Emergency Medicine MVP as well as to include the following Improvement Activities:
  • IA_BMH_12: Promoting Clinician Wellbeing
  • IA_AHE_8: Create and Implement an Anti-Racism Plan
• MIPS Specialty Measure Sets: CMS issued several proposals to update the Emergency Medicine MIPS Specialty Measure set. EDPMA questioned CMS’ proposal to re-incorporate measures #226: Tobacco Use: Screening and Cessation Intervention and #431: Unhealthy Alcohol Use: Screening & Brief Counseling after it had previously determined that these measures were inappropriate for Emergency Medicine and removed them from the Emergency Medicine specialty set in 2018. Additionally, EDPMA expressed concern about CMS’ proposal to include measure #134: Screening for Depression and Follow-Up Plan in the Emergency Medicine specialty set.
• Qualifying Participants (QP) in Advanced Alternative Payment Models (APMs): In accordance with the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), clinicians who participate sufficiently in an Advanced APM are considered QPs, qualify for a 5 percent lump sum incentive payment, and are excluded from MIPS. However, after the 2022 performance year, there is no further statutory authority for a 5 percent APM incentive payment for QPs. EDPMA urged CMS to work with relevant stakeholders to develop more specialty-specific APMs, as well as opportunities for specialists to partner with and/or play a more actionable role in existing models and to work with Congress to pass legislation that extends the 5% APM Incentive Payment, provides CMS with the authority to maintain the current QP patient and payment threshold levels, and provides CMS with the flexibility to allow QPs to choose whether they want to be considered under MIPS or the Advanced APM track of the QPP.

The full EDPMA comment letter is available for review here. The CY 2023 MPFS final rule is expected around November 1, 2022 with most provisions effective January 1, 2023.

As EDPMA continues its advocacy efforts, including urging the relevant federal agencies to provide additional guidance and resources to assist practices with the No Surprises Act, the Center for Consumer Information and Insurance Oversight (CCIIO) recently issued several new resources that EDPMA members may find useful navigating the rules and requirements.

• New Frequently Asked Questions (FAQs): On Friday, August 19^th, 2022, CCIIO released new FAQs, which can be accessed via this link. In addition to other helpful information, in these FAQs, CCIIO has addressed a key concern expressed by EDPMA in its advocacy efforts. Under the guidance regarding “Methodology for Calculating Qualifying Payment Amounts,”  CCIIO states,

The Departments have been informed that some plans and issuers establish contracted rates by offering most providers the same fee schedule for all covered services, and then it is up to the providers to negotiate increases to the rates for the services that they are most likely to bill. After the negotiation process, the entire fee schedule may be included in the provider contract, with contracted rate modifications made only to certain service codes based on the negotiations. For example, an anesthesiologist’s contract may include rates for anesthesia services that are a result of negotiations between the plan or issuer and the provider and that are materially different from the contracted rates the plan or issuer has for the same anesthesia services with other providers in specialties that do not bill for those services. Similarly, an anesthesiologist’s contract may also include contracted rates for other services the anesthesiologist does not provide (for example, dermatology services) that are identical to the contracted rates the plan or issuer has with other providers in specialties who similarly do not bill for those services. (Footnote omitted).

To account for these “ghost rates” that could be skewing QPA calculations, CCIIO clearly states here that “if a plan or issuer has contracted rates that vary based on provider specialty for a service code, the median contracted rate (and consequently the QPA) must be calculated separately for each provider specialty, as applicable.” CCIIO is providing a 90-day health plan compliance window with this new clarification. For more details see the full discussion in FAQ #14.

CCIIO also reinforced health plan obligations to provide very specific information with the initial payment or denial of payment.  CCIIO explicitly states, when providing a payment, a health plan that “includes only a general statement that the claim was processed according to applicable state or Federal law and directs the nonparticipating provider to a website for more information” would not meet the requirements for information that must be included with the initial payment or denial of payment.  For more details see the full discussion in FAQ #19.

• Federal IDR Process Status Update: On August 19^th, CCIIO announced, in conjunction with the other relevant federal agencies, a status update on Federal IDR. The document contains statistics on disputes in Federal IDR thus far. Of note, “Between April 15th and August 11th, disputing parties initiated over 46,000 disputes through the federal IDR portal, which is substantially more than the Departments initially estimated would be submitted for a full year,” but only 1,200 have resulted in a payment determination. Nearly half of the 46,000 initiated disputes have been challenged by the non-initiating party. The document states “The primary cause of delays in the processing of disputes is the complexity of determining whether disputes are eligible for the federal IDR process.” The full document can be accessed via this link.
• New Technical Assistance Document for Federal IDR Certified IDR Entities: CCIIO stated that it has issued new guidance for certified IDR entities in an effort to improve the federal IDR process, including further details on policies regarding the “batching” of claims for Federal IDR. Note that CCIIO provides guidance on process for claims that were inappropriately batched, but are otherwise eligible for Federal IDR.  The guidance document states, “Certified IDR entities should direct the initiating party to resubmit the inappropriately batched or bundled qualified IDR items or services within four business days after the certified IDR entity notifies both parties of the inappropriately batched or bundled dispute and the steps for re-submitting the qualified IDR items or services (if they were otherwise eligible under the Federal IDR process timelines and rules) in accordance with the technical direction provided to certified IDR entities by the Departments. If the initiating party does not resubmit the qualified IDR items or services within four business days, the qualified IDR items and services cannot be considered for payment determinations.” The full updated guidance document can be accessed via this link.
• New “Specified State Law” Resource. CCIIO previously released a document to help stakeholders navigate states where only the Federal NSA provisions will apply compared with those states where both the NSA provisions and “Specified State Law” provisions could apply depending on the scope of the state law and the characteristics of the dispute. This week, CCIIO released an updated guidance document with similar information that has been enhanced to include hyperlinks to certain state resources.

On Friday, August 19^th, the U.S. Departments of Labor, Health and Human Services, and Treasury (“the Departments”) released a final rule, revising certain provisions from the July and October 2021 interim final rules that had previously been issued to implement the No Surprises Act. The final rule includes important alterations to the previously issued interim final rules. Here are 3 key areas of importance:

• The Departments Place New Obligations on Health Plans Regarding of Provision of the QPA for “Downcoded” Claims
  In response to the advocacy efforts of EDPMA and its partners, the Departments recognized the negative impact that the payer practice of inappropriate downcoding can have on the basic fairness of Federal independent dispute resolution (IDR). To address these concerns, the Departments took several steps.
• • The Departments codified their previously articulated definition of “downcoding” as “the alteration by a plan or issuer of a service code to another service code, or the alteration, addition, or removal by a plan or issuer of a modifier, if the changed code or modifier is associated with a lower qualifying payment amount than the service code or modifier billed by the provider, facility, or provider of air ambulance services.”
  • The Departments finalized that for claims to which the No Surprises Act is applicable, if a plan or issuer downcodes a claim that when the plan or issuer issues the initial payment, the plan or issuer must:
    • Provide a statement that the service code or modifier billed by the provider, facility, or provider of air ambulance was downcoded
    • Provide an explanation of why the claim was downcoded (including a description of which codes were altered/removed/modified)
    • Provide the amount that would have been the QPA had the downcoding not occurred.

After extensive advocacy by EDPMA and others on this issue, the Departments acknowledged that these requirements were necessary because “it is important for providers and facilities to know whether the plan or issuer has downcoded a particular claim that is subject to the balance billing protections in the No Surprises Act to ensure that providers receive information that may be relevant to the open negotiation process and that could inform a provider’s offer in the Federal IDR process, and which the provider has no other means of ascertaining.”

• The Departments Formalized Past Guidance Making it Clear that Plans/Issuers Cannot Force Providers/Facilities to Initiate Open Negotiation Via Payer-Controlled Mechanisms
  After EDPMA and its partners informed the Departments of the frequent health plan practice of attempting to force providers and facilities to use health plan-created portals in order to initiate the “open negotiation” phase of payment resolution created under the No Surprises Act, the Departments affirmed their past guidance which makes clear that plans cannot require that providers utilize any method or mechanism other than proper submission of the standard Initiation of Open Negotiation form as articulated under the Departments’ rules in order to properly initiate open negotiation. In this final rule, the Departments directly state, “if a provider, facility, or provider of air ambulance services sends the standard notice of initiation of open negotiation to the email address identified by the plan or issuer in the notice of denial of payment or initial payment, that transmission would satisfy the regulatory requirement to provide notice to the opposing party (so long as the provider, facility, or provider of air ambulance services also sends the notice free of charge in paper form upon request).”

The Departments acknowledged that health plans can encourage use of portals and other web-based mechanisms but went on to state that “a plan or issuer cannot refuse to accept the standard notice of initiation of open negotiation from a provider, facility, or provider of air ambulance because the provider or facility did not utilize the plan’s or issuer’s online portal when the standard notice of initiation of open negotiation is provided in a manner consistent with the requirements of the July 2021 and October 2021 interim final rules.”

• The Departments Responded to the TMA Litigation Outcome By Retracting its “Presumptive” QPA Policy But Finalizes Other “Additional Information” Evaluation Standards
  Throughout the final rule, the Departments acknowledge the outcome of the court ruling in favor of the Texas Medical Association. In doing so, the Departments rescinded the previous policies that the qualifying payment amount (QPA) is a presumed appropriate payment amount as well as striking the provision that directed arbiters to select the IDR offer that was closest to the QPA.  The Departments explicitly state, “these final rules do not require certified IDR entities to default to the offer closest to the QPA or to apply a presumption in favor of that offer.”

In its place however, the Departments finalized notable provisions that serve to bolster the relevance of the QPA in Federal IDR.

• • First, the Departments finalized that any “additional information” that is submitted by the disputing parties must meet its standard as “credible” and that certified IDR entities must evaluate whether the “additional information” submitted “relates to” the offer in order to be considered as part of the payment determination along with the QPA.
  • Second, the Departments finalized a new policy that certified IDR entities must avoid considering “additional information” that could result in “double counting.” The Departments state, “The certified IDR entity should consider whether the additional information is already accounted for in the QPA and should not give weight to information related to a factor if the certified IDR entity determines the information was already accounted for in the calculation of the QPA, to avoid weighting the same information twice,” as well as that “if the parties submit information related to more than one of the additional factors, the certified IDR entity should consider whether the information submitted regarding those factors is already accounted for by information submitted relating to other credible information submitted to the certified IDR entity in relation to another factor and, if so, should not weigh this information more than once.”

    As members are digesting the content of the final rule, EDPMA is actively listening to its membership and hears the concern about the new “double counting” standard that seems to be insufficiently-defined, poorly-conceived, duplicative of common sense, and therefore, subject to manipulation by the health plans.  Further, because the Departments are requiring a written rationale from the certified IDR entities every time they consider “additional information” as to why that additional information was not accounted for elsewhere, we understand our membership is extremely concerned that the Departments have provided certified IDR entities with an incentive to dismiss legitimate “additional information” simply because the already-stressed certified IDR entities seek to avoid the administrative burden of providing a written defense of how and why “additional information” used for making the payment determination does not result in double counting.

A link to the full rule can be accessed via this link. EDPMA, as part of the EDPMA/ACEP steering committee, is continuing to analyze the new provisions and consult with partners on next steps. We will keep you updated with additional advocacy efforts and opportunities.

EDPMA filed an amicus brief (with TCEP and VA ACEP) supporting the Texas Medical Association’s lawsuit challenging the problematic Interim Final Rule implementing Dispute Resolution under the No Surprises Act. Additional information can be found here.

On September 13, 2021, EDPMA commented on the Proposed 2022 Update to the Outpatient Prospective Payment System. Read the full letter below.

9/13/21 EDPMA Comment Letter on Proposed 2022 Update to OPPS

EDPMA and ACEP sent the following six joint letters to the federal decision makers (HHS, DOL, IRS, CCIIO, and OMB) on provisions we would like included in the rules implanting the federal No Surprises Act. The No Surprises Act establishes a process for payment and dispute resolution for out-of-network emergency care (and some nonemergency care). Many important issues were left open for the Administration to address in the rulemaking phase. The sixth letter, sent on August 31, 2021, comments on the first Interim Final Rule with Comment on the No Surprises Act.

8/31/21 EDPMA/ACEP Comment Letter on No Surprises Act IFC#1
8/10/21 EDPMA/ACEP Letter to Labor/HHS/Treasury on IDR
6/16/21 EDPMA/ACEP Letter to OMB Re No Surprises Act Implementation
06/14/21 Third EDPMA/ACEP letter to CIIO on NSA Implementation
5/14/21 EDPMA/ACEP NSA Letter 2 re: Technical RCM Advice
3/24/21 EDPMA/ACEP Joint Letter to Biden Administration on No Surprises Act Implementation

EDPMA and ACEP sent the following five joint letters to the federal decision makers (HHS, DOL, IRS, CCIIO, and OMB) on provisions we would like included in the rules implanting the federal No Surprises Act. The No Surprises Act establishes a process for payment and dispute resolution for out-of-network emergency care (and some nonemergency care). Many important issues were left open for the Administration to address in the rulemaking phase. An Interim Final Rule implementing portions of the Act is expected soon.

3/24/21 EDPMA/ACEP Joint Letter to Biden Administration on No Surprises Act Implementation

5/14/21 EDPMA/ACEP NSA Letter 2 re: Technical RCM Advice

06/14/21 Third EDPMA/ACEP letter to CIIO on NSA Implementation

6/16/21 EDPMA/ACEP Letter to OMB Re No Surprises Act Implementation

8/10/21 EDPMA/ACEP Letter to Labor/HHS/Treasury on IDR

EDPMA and ACEP sent the following four joint letters to the Center for Consumer Information and Insurance Oversight (CCIIO) and Office of Management and Budget (OMB) on provisions we would like included in the rules implanting the federal No Surprises Act. The No Surprises Act establishes a process for payment and dispute resolution for out-of-network emergency care (and some nonemergency care). Many important issues were left open for the Administration to address in the rulemaking phase. An Interim Final Rule implementing portions of the Act is expected soon.

3/24/21 EDPMA/ACEP Joint Letter to Biden Administration on No Surprises Act Implementation

5/14/21 EDPMA/ACEP NSA Letter 2 re: Technical RCM Advice

06/14/21 Third EDPMA/ACEP letter to CIIO on NSA Implementation

6/16/21 EDPMA/ACEP Letter to OMB Re No Surprises Act Implementation

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