On July 13, the U.S. Centers for Medicare & Medicaid Services (CMS) released the Calendar Year (CY) 2022 Physician Fee Schedule and Quality Payment Program Proposed Rule (“Proposed Rule”), requesting comments on the regulatory proposals, which set Medicare physician reimbursement rates for the year and make changes to Medicare physician payment policy. ACOFP responded to the request, submitting comments on September 10, with highlights included below.

Proposed Changes to the Physician Fee Schedule

Extension of Category 3 Telehealth Services Through CY 2023

CMS proposed expanding the timeframe for the availability of the 135 new services CMS added to the Medicare telehealth list during the COVID-19 public health emergency (PHE) on a Category 3 basis through CY 2023. According to CMS, Category 3 services are temporarily available during the PHE and would likely have a clinical benefit when provided through telehealth, but there is not enough evidence to permanently add these services to the Medicare telehealth list. This extension would provide more time for evidence to be developed. Category 3 services are scheduled to be removed from the Medicare telehealth list after the PHE ends.

ACOFP expressed its support for this proposal, also requesting that CMS consider expanding access to audio-only telehealth services for primary care services.

Split (or Shared) E/M Visits

CMS proposed updates to its policies for split or shared evaluation and management (E/M) visits to address the role of non-physician practitioners (NPPs) on medical teams, clarifying the payment conditions necessary to bill Medicare for these services. CMS proposed that split(or shared E/M visits be defined as E/M visits provided by a physician and an NPP in the same group in a facility setting, in addition to proposing that practitioners providing the substantive portion—more than half of the total time spent—of E/M split or shared visits bill for the visit.

ACOFP urged CMS to permit medical decision-making (MDM), in addition to time, be available for a provider when determining the “substantive portion” of an E/M visit in order to ensure certainty in its billing procedures and prevent practice disruptions.

Primary Care Exception for Teaching Physicians

CMS proposed that only teaching physicians use MDM to select an E/M level under the primary care exception to prevent excessive billing of high-level E/M services by residents.

ACOFP recommended that CMS allow teaching physicians to use either time or MDM under the primary care exception. In ACOFP members’ experiences, teaching physicians are monitored closely and are not abusing the primary care exception.

Vaccine Administration Request for Information

CMS recognized the low vaccination administration payment rates under Medicare and requested feedback on issues related to vaccine payment.

ACOFP urged CMS to develop a payment rate that incorporates costs associated with administering vaccine services and ensures that family physicians do not experience a financial loss in providing these important services.

Opioid Treatment Program Payment Policy

CMS proposed allowing opioid treatment programs to provide counseling and therapy services through audio-only interaction after the COVID-19 PHE.

ACOFP expressed support for this proposal because ACOFP believes the use of audio-only technology is beneficial, especially for individuals who do not have access to broadband or audio/visual technology.

Drug Enforcement Agency (DEA) Enrollment Proposal

CMS proposed expanding its authority to deny a physician’s Medicare enrollment to include instances where a physician surrenders his or her DEA certificate pursuant to an order to show cause.

ACOFP urged CMS to carefully consider each case before denying a provider’s Medicare enrollment to ensure that CMS is not disenrolling physicians who have reasons to surrender their DEA certificate that do not merit a denial of Medicare enrollment.

COVID-19 Vaccine Exemptions from Certain Self-Referral Rules

CMS proposed amending an exception to the physician self-referral law (“Stark Law”) to ensure COVID-19 vaccines fall under an exception in order to not be considered designated health services.

ACOFP expressed support for this proposal, believing this change will encourage physicians to make referrals for vaccines without fear of violating the Stark Law.

Health Equity Request for Information

CMS requested feedback on ways the agency can improve its data collection policies to help address health inequities across its programs and policies.

ACOFP voiced its strong support for addressing racial and ethnic disparities, while urging CMS to develop data collection policies that do not burden healthcare professionals.

Proposed Changes to the Quality Payment Program

MIPS Value Pathways Transition

CMS has made plans to transition away from the Merit-based Incentive Payment System (MIPS) to MIPS Value Pathways (MVPs) to provide more comprehensive services for patients selecting clinicians and to facilitate movement into Advanced Alternative Payment Models. CMS proposed this transition to address the concern that MIPS did not allow adequate differentiation of performance across practices, as MVPs are designed to focus on a specific condition or specialty.

ACOFP recommended that the transition from MIPS to MVPs should be slow so physicians can become familiar with the program. ACOFP also urged CMS to ensure that the MVP program does not require providers to invest additional funding in their electronic health record systems, which is an overburdensome requirement for MIPS.

MIPS Value Pathways Reporting

CMS made efforts to design MVP reporting requirements similar to MIPS, including the use of performance categories. The MVP reporting requirements consist of:

  • A foundational layer, which includes a population health measure and a promoting interoperability performance category
  • A quality performance category
  • An improvement activities performance category
  • A cost performance category

ACOFP urged CMS to work with stakeholders and policy experts to establish measures that are relevant and meaningful to MVPs and to the provider specialties participating in the program.

Next Steps

CMS is reviewing submitted comments and is expected to issue a final rule in late October/early November. ACOFP will continue to monitor agency activity and will provide an update on how CMS responded to ACOFP’s comments once the final rule is released.

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