Although August was a slow month for Congress, the AAOS regulatory team was busy analyzing the provisions set forth by the Centers for Medicare & Medicaid Services (CMS) in its two proposed payment rules for fiscal year 2020: the Outpatient Prospective Payment System/Ambulatory Surgical Center (OPPS/ASC) and the Medicare Physician Fee Schedule (MPFS). The Academy submitted formal comments prior to the Sept. 27 deadline, but if finalized, the proposed changes will have significant impact on physician practice and reimbursement. Key takeaways of the proposals are described herein.
Total hip arthroplasty (THA) removed from inpatient-only (IPO) list
CMS’ proposal to remove THA from the IPO list was met with concern given the recent challenges faced by physicians and patients following the removal of total knee arthroplasty (TKA) from the IPO list in 2018. AAOS supports the American Association of Hip and Knee Surgeons’ position on the issue. The Academy agrees that until all of the issues regarding TKA removal from the IPO list are addressed, it would be irresponsible to do the same with THA. AAOS further requests that CMS refrain from removing any procedures from the IPO list until the issues that surfaced with the removal of TKA are resolved.
TKA moved to the ASC covered procedure list
AAOS supports the proposal to add TKA to the list of ASC covered procedures. To mitigate some of the safety concerns with the transition, the Academy would support CMS’ suggestion to require that individual postoperative patient safety plans be developed specifically for TKA procedures in ASCs. The determination of how to best provide adequate and timely care to Medicare beneficiaries should fall under the purview of the patient-surgeon relationship, as these are the individuals who shoulder the risk of these procedures. This step toward site neutrality may increase choice and competition, leading to lower costs of care for patients.
The OPPS/ASC proposed rule includes several provisions to address the call for price transparency presented in President Trump’s executive order on the topic, which was signed in June. CMS is proposing an expansion of hospital charge display requirements to include charges and information based on negotiated rates for common shoppable services and items in a consumer-friendly format. In the rule, CMS outlines the logistics for mandating the publishing of prices for 300 shoppable services on consumer-friendly websites. The list includes Medicare Severity Diagnosis-related Groups 470 (major joint replacement) and 460 (spinal fusion).
The rule also proposes making public the gross and payer-specific standard charges for hospital items and services, including the negotiated rates of reimbursement for employed physicians and nonphysician practitioners.
AAOS supports the implementation of price transparency measures. However, mandates to make payer-specific charges public will likely be met with legal challenges from commercial payers.
CMS proposes to impose prior authorization requirements for five classes of cosmetic procedures. The agency suggests that provisional affirmations be implemented for procedures within 10 business days for nonemergent decisions and within two business days for expedited reviews “when a delay could seriously jeopardize the beneficiary’s life, health, or ability to regain maximum function.” AAOS believes that this time period is too long, and such prior authorization delays create excessive barriers to care for patients, particularly older adults. Given the ongoing effort to reform prior authorization processes, AAOS supports CMS’ proposal to at least mitigate some of the burden associated with the program through the proposed exemptions. Further, AAOS believes that it is reasonable to exempt those practitioners who achieve a prior authorization provisional affirmation rate of at least 90 percent.
CMS made overtures on the issue of “surprise billing” by sharing that it considered including “the services provided by physicians and nonphysician practitioners who are not employed by the hospital, but who provide services at a hospital location” as part of its definition of “items and services” in the new price transparency proposal. The agency suggests that by publicizing these payment rates, patients will be better equipped to estimate their total cost of care when, for example, an out-of-network anesthesiologist or other provider is on their surgical team. This information will theoretically lead to a decrease in “surprise” medical bills. However, AAOS views the issue of surprise billing as a symptom of inadequately narrow networks and believes that the solution is legislative action in favor of an independent dispute-resolution process between providers and insurers.
Updates to evaluation and management (E/M) codes and global surgical codes
CMS is proposing amendments to the 2019 policy changes for office/outpatient E/M visits, effective Jan. 1, 2021. The update proposes retaining payment for the five levels of office/outpatient E/M visit codes for established patients and reducing to four levels of E/M visits for new patients. CMS is also proposing to adopt coding recommendations by the Current Procedural Terminology (CPT) Editorial Panel and resurveyed by the American Medical Association Relative Value Scale Update Committee (RUC), with minor refinement, including:
- deletion of CPT code 99201 (level 1 new patient office/outpatient E/M visit) and adoption of the revised CPT code descriptors for CPT codes 99202–99215
- elimination of the use of history and/or physical exam to select among code levels
- choice of time or medical decision-making to decide the level of office/outpatient E/M visit (using the revised CPT interpretive guidelines for medical decision making)
- payment for prolonged office/outpatient E/M visits using the revised CPT code for such services, including separate payment for new CPT code 99XXX and deletion of Healthcare Common Procedure Coding System (HCPCS) code GPRO1 (extended office/outpatient E/M visit), which was previously finalized for 2021
- revision to the descriptor for HCPCS code GPC1X and deletion of HCPCS code GCG0X
- increase in value for HCPCS code GCG1X and permit for it to be reported with all office/outpatient E/M visit levels
CMS is proposing to assign separate payment rather than a blended payment for each office/outpatient E/M code, except for CPT code 99201. This code will be deleted by CPT, as well as the new prolonged visit add-on CPT code (99XXX).
Although CMS is proposing to approve all of the RUC-recommended updates to the work relative value units for the office/outpatient E/M codes, it is not applying these adjusted values for E/M updates to the global surgical codes. In response to this disparity, AAOS, along with 52 other specialty societies, signed onto an American College of Surgeons letter urging CMS to apply the updated values for E/M codes to the global codes.
Scope of practice
Physician assistants (PAs) will see an increase in autonomy if the proposed rule is finalized. CMS is proposing to broaden PAs’ scope of practice by documenting their approach to work with physicians in the medical record and listing the services provided. This regulatory update would be performed in conjunction with state scope of practice and supervision laws. Although the assistance PAs provide surgeons during office visits is essential, there is concern that an increase in autonomy of nonphysician practitioners will lead to narrowing reimbursement for some members.
Physician self-referral law (Stark law)
CMS is seeking comments on how to revise its process for issuing advisory opinions. Specifically, it is proposing to shorten the advisory opinion issuance time period from 90 days to 60 days and to adopt an hourly fee of $220 for the preparation of an advisory opinion. It is also seeking comment on the burden of existing certification requirements and the exemption from sanctions for parties that have already received a favorable advisory opinion. AAOS continues to advocate for Stark law reform and improved integration of services in both the legislative and regulatory arenas.
CMS is proposing a new Merit-based Incentive Payment System (MIPS) Value Pathway (MVP) beginning with the 2021 MIPS Performance Period/2023 MIPS Payment Year. CMS’ stated aim with this new proposal is to “improve value, reduce burden, help patients compare clinician performance, and better inform patient choice in selecting clinicians.” The agency acknowledges feedback from stakeholders that the current MIPS framework lacks clarity and meaningfulness and can be burdensome for many clinicians who participate in the program. The MVP proposal seeks to address these issues by unifying the four existing performance categories (i.e., quality, cost, promoting interoperability, improvement activities) to encompass a “track” of activities that more closely align with actual clinical episodes of care. Its goal is to have some specialty- and/or health condition-specific measures incorporated into such a framework. Because this is a very early-stage concept, CMS is looking for considerable feedback on this proposal. AAOS asked for clarity on this new concept and would likely be supportive of this pathway if it reduces physician burden and can provide a direct transition to the advanced alternative payment model pathway for participating clinicians.
Qualified clinical data registries
CMS is proposing a requirement for qualified clinical data registries (QCDRs) and qualified registries to support submission of quality, improvement activities, and promoting interoperability performance measure categories by the 2021 performance period and for all subsequent years. AAOS appreciates CMS’ efforts to streamline the MIPS program and has asked for guidance in the final rule on meeting this requirement. QCDRs may also be required to provide services to clinicians and groups that help improve the quality of care for patients. These services would be separate from improvement activities. AAOS supports an expansion of quality reporting through QCDRs but encourages CMS to delay implementation of this proposal indefinitely and instead search for alternatives that do not place disproportionate burden on a single reporting pathway. QCDRs are currently required to provide performance feedback to participating clinicians and groups at least four times per year. Starting with the 2021 performance year, CMS is proposing a requirement for QCDRs to include feedback on how clinicians and groups compare to their peers on respective measures. AAOS is pleased CMS recognizes the powerful analytic capabilities of QCDRs and supports this proposal.
It should be noted that these changes are being proposed by CMS and are by no means current regulation. Because the OPPS/ASC and MPFS proposed rules include several changes to historically challenging issues for providers and patients, AAOS looks forward to sharing further updates when the final rules are released later this fall.
Alix Braun, MPH, is a regulatory advocacy specialist in the AAOS Office of Government Relations.