David Schillinger, MD, FACEP
Shanna Howe
Rep. Neal Dunn (R-Fla.)
William Freudenthal, MD, FACEP
Charlie Schuyler

Charlie Schuyler
William Freudenthal, MD, FACEP
Rep. Larry Bucshon (R-Ind.)
Shanna Howe
David Schillinger, MD, FACEP

FOR IMMEDIATE RELEASE 

EDPMA Files Amicus Brief Holding Federal Regulators Accountable To Implement the No Surprises Act As Required By Law 

McLean, Virginia – The Emergency Department Practice Management Association (EDPMA) filed an amicus brief today in support of the Texas Medical Association (TMA), Dr. Adam Corley and Tyler Regional Hospital, LLC’s lawsuit against federal regulators challenging the implementation of the No Surprises Act (Rule) that clearly favors health plans.  

Last fall, EDPMA, and the Virginia and Texas College of Emergency Physicians filed an amicus brief in support of TMA’s first lawsuit challenging federal regulators on the process to resolve reimbursement disputes between insurance plans and physicians, with special emphasis on the adverse effects the Rule threatens on the delivery of emergency care. The TMA plaintiffs won this lawsuit.  

The court ruled that the NSA was not ambiguous and required that all the factors listed in the statute should be considered in determining the final payment amount. In the settled TMA case, the court clearly stated that the methodology used by health plans to calculate the QPA was incompatible with the No Surprises Act.  

However, nothing really changed regarding how arbitrators resolved billing disputes between healthcare plans and physicians. In fact, arbitrators continue to unfairly skew independent dispute resolution (IDR) results in favor of insurers.  

“EDPMA fully supports claims in the TMA lawsuit that simply ask that the No Surprises Act be followed as written so that the arbitrators charged with resolving payment disputes would not anchor the payment amount to the QPA and that their decision making is rooted in the statute. If the current final rule and de-facto benchmark standard goes unchecked, emergency medicine physicians, their practices and their value as our nation’s healthcare safety net are in jeopardy. Access to emergency care – which was vital to assisting our country through the pandemic – will be compromised with fewer resources to emergency care while the health plans then and now continue to post record profits,” says Don Powell, DO, FACEP, EDPMA Chair of the Board.

EDPMA will continue to advocate for emergency medicine physicians and their practices to ensure fair reimbursement to protect patients and their in-network choices.  

About EDPMA:
EDPMA is the nation’s only professional physician trade association focused on the delivery of high quality, cost-effective care in the emergency department. EDPMA’s membership includes emergency medicine physician groups of all sizes, as well as billing, coding, and other professional support organizations that assist healthcare providers in our nation’s emergency departments. Together, EDPMA’s members deliver or directly support health care for approximately half of the 146 million patients that visit U.S. emergency departments each year. 

Contact:
Cathey Wise
703.506.3282 (direct) l 817.905.3310 (cell)
cathey.wise@edpma.org 

Filed 10/20/2022

The Centers for Medicare and Medicaid Services (CMS) recently issued two rulemaking vehicles to implement the new facility enrollment designation of Rural Emergency Hospitals (REHs) as created by Congress when it passed the Consolidated Appropriations Act, 2021. The statutory provision allows for the establishment of REHs by essentially allowing already-existing critical access hospitals (CAHs) and certain rural hospitals to convert to REHs. Eligible facilities will be able to enroll as REHs under statute for January 1, 2023 services. In preparation for the rules, EDPMA created a work group tasked with developing policies and requests for changes where needed. As a result of these efforts, EDPMA responded to both REH proposed rule comment solicitations:

• REH Conditions of Participation (CoPs): On August 25^th, EDPMA responded to the CMS proposed rule related to the creation of CoPs for REHs. The proposals were largely based on already-existing CoPs for critical access hospitals and rural hospitals. EDPMA made several requests as part of its response:
  • EDPMA urged CMS to provide an enrollment option for those CAHs or rural hospitals that otherwise meet the REH eligibility criteria but closed subsequent to December 27, 2020 to enroll as an REH.
  • EDPMA emphasized the importance of clinical services delivered at an REH being led by a physician with, at the minimum, experience in the practice of emergency medicine, noting that the expertise of a board-certified emergency physician should be relied upon whenever medically necessary and available.
  • EDPMA encouraged express guidance from CMS on the ability of emergency physicians who are performing the medical director and other supervisory responsibilities to meet these requirements remotely (provided all remote requirements are met).
  • EDPMA recommended that CMS clarify its staffing requirements so that the expertise of a physician be available 24 hours a day/7 days a week.
  • EDPMA urged CMS to work with Congress and state governments to address the complexities and variations in the abilities of physicians to provide telemedicine services across state lines.
  • EDPMA recommended that CMS add provisions to the REH CoP that require the “written agreements” with Level 1 and Level 2 trauma centers and the “system . . . for referral from an REH to different levels of care” to include the capacity for telemedicine capabilities with a physician with, at the minimum, experience in the practice of emergency medicine.

You can review the full EDPMA response to the REH CoP proposed rule here.

• REH Enrollment, Payment, Quality Reporting, and Other Provisions: As part of the calendar year (CY) 2023 Hospital Outpatient Prospective Payment System (OPPS) proposed rule, CMS issued proposals related to several other policies for REHs for the January 1, 2023 effective date. EDPMA made several requests in response to these proposals:
  • EDPMA reiterated its request that CMS provide an enrollment option for those CAHs or rural hospitals that otherwise meet the REH eligibility criteria but closed subsequent to December 27, 2020 to enroll as an REH.
  • Statute sets payments for “REH Services” at 105% of the rate that would otherwise be paid in a hospital outpatient department. EDPMA recommended that CMS define “REH services” more broadly in order to implement these regulations more in line with Congressional intent and recommended that CMS modify its proposal so as to reimburse the professional (and not just the facility) claim for outpatient services at 105% of traditional fee-for-service payment.
  • EDPMA recommended that CMS issue explicit guidance about the Medicare Physician Fee Schedule claims submission process for professional services delivered in the REH setting.
  • EDPMA requested that CMS explicitly include CAH emergency physician availability costs as part of its methodology for calculating Monthly REH Facility Payments or, in the alternative, to administer this funding to REHs via a mechanism that will allow REHs to dedicate these resources to staffing their emergency departments.
  • EDPMA supported CMS’ proposals to allow REH utilization of the “change of information” enrollment form and for REH placement in the “limited risk” screening category.
  • EDPMA encouraged CMS to finalize its proposal that the Medicare Outpatient Observation Notice (MOON) will not be required for use in the REH setting.
  • EDPMA supported CMS’ proposal to ensure that physician REH ownership and investment interests are specifically safeguarded through a new Stark exception.
  • EDPMA expressed concern about the list of potential measures under consideration for the REH Quality Reporting (REHQR) program, which largely consists of current or past Hospital Outpatient Quality Reporting (OQR) Program measures and does not accurately reflect care in REH settings and recommended that CMS look beyond the OQR measures and instead work with clinical and patient stakeholders to develop a new, custom set of measures that better reflects the unique challenges associated with providing care in the REH setting.

The full EDPMA CY 2023 OPPS comment letter on these REH provisions is available here.

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.