The Center for Consumer Information and Insurance Oversight (CCIIO) released new guidance in November related to several stages of the No Surprises Act’s (NSA’s) Federal Independent Dispute Resolution (IDR) process.

• CCIIO announced that beginning the week of November 28^th:

. . . a party seeking to initiate a payment dispute through the federal Independent Dispute Resolution (IDR) portal will be required to include certain documentation with the notice of initiation submission. Specifically, any party initiating a payment dispute must now upload the following:

1. 1. Documents to confirm the open negotiation period start date (for example, the notice of open negotiation).
   2. Documents to confirm the claim and Qualifying Payment Amount information (i.e., the notices associated with the initial payment or notice of denial of payment).

 Additionally, any party that enters an open negotiation start date more than 34 business days earlier than the date on which the form was completed must now upload documents to confirm that the claim is still eligible for the IDR process. The initiating party must upload at least one of the following: 

1. 1. Documents to confirm the extension approval received from the federal IDR mailbox.
   2. Documents to confirm the certified IDR entity’s request to re-submit the dispute due to batching or bundling errors.
   3. Documents to confirm the 90-day cooling off period has expired. 

 An entity that does not upload the required documentation will not be able to submit the notice of IDR initiation. 

EDPMA has confirmed that this requirement to upload documentation related to the QPA does not preclude providers from initiating IDR in instances where the health plan has failed to make the required disclosures. In those cases, disputing parties should include the remittance advice or other documentation where you believe the QPA should have been disclosed had the health plan met its disclosure obligations.  For departmental guidance on this topic, consult the August 2022 FAQs which state:

Q20: If a plan or issuer has failed to disclose the information it is required to provide when making an initial payment or sending a notice of denial of payment, may a provider, facility, or provider of air ambulance services initiate an open negotiation period and then proceed to the Federal IDR process? 

Yes. In general, providers, facilities, and providers of air ambulance services have 30 business days from the day they receive an initial payment or a notice of denial of payment from the plan or issuer regarding an item or service to initiate open negotiation with respect to that item or service, including in cases in which information required to be provided is missing. However, a plan’s or issuer’s failure to satisfy the disclosure requirements in 26 CFR 54.9816-6T(d)(1) or (2), 26 CFR 54.9816-6(d)(1), 29 CFR 2590.716-6(d)(1) or (2), and 45 CFR 149.140(d)(1) or (2) could adversely affect a provider’s, facility’s, or provider of air ambulance services’ ability to meaningfully participate in negotiations during the open negotiation period and Federal IDR process. 

In these cases, when a plan or issuer fails to comply with the disclosure requirements in 26 CFR 54.9816-6T(d)(1) or (2), 26 CFR 54.9816-6(d)(1), 29 CFR 2590.716-6(d)(1) or (2), and 45 CFR 149.140(d)(1) or (2), providers, facilities, or providers of air ambulance services retain the right to initiate the open negotiation period within 30 business days of receiving the initial payment or notice of denial of payment. In initiating the open negotiation period, the provider, facility, or provider of air ambulance services, must provide the standard open negotiation notice to the plan or issuer, as required in 26 CFR 54.9816-8T(b), 29 CFR 2590.716-8(b), and 45 CFR 149.140(b). After the 30-business-day open negotiation period has lapsed, the provider, facility, or provider of air ambulance services may initiate the Federal IDR process in accordance with the normal timelines. 

Alternatively, in cases in which a plan or issuer fails to comply with the disclosure requirements in 26 CFR 54.9816-6T(d)(1) or (2), 26 CFR 54.9816-6(d)(1), 29 CFR 2590.716-6(d)(1) or (2), and 45 CFR 149.140(d)(1) or (2), providers, facilities, or providers of air ambulance services may request an extension to initiate the Federal IDR process, and provide applicable attestations, by emailing a request for extension due to extenuating circumstances to [email protected], including the time period(s) for which they are seeking an extension. 

Failure by either party to supply information that is required to be submitted to the certified IDR entity (for example, failure to provide the QPA) may lead to a finding by the certified IDR entity that does not take into consideration the absent information, or may lead to the certified IDR entity drawing an inference about the absent information that is adverse to that party. Providers, facilities, and providers of air ambulance services with concerns about a plan’s or issuer’s compliance with the requirements of 26 CFR 54.9816-6T(d)(1), 26 CFR 54.9816- 6(d)(1), 29 CFR 2590.716-6(d)(1), and 45 CFR 149.140(d)(1), including concerns that a plan or issuer is not acting in good faith with respect to this requirement, may contact the No Surprises Help Desk at 1-800-985-3059 or submit a complaint at https://www.cms.gov/nosurprises/policies-and-resources/providers-submit-a-billing-complaint. The Departments will generally enforce the applicable provisions of the No Surprises Act, in conjunction with states where applicable. (Footnotes omitted).

• CCIIO released an updated document, Independent Dispute Resolution (IDR) Notice of Initiation Web Form, which can be accessed here, with the following highlighted changes:
  • Requiring all initiating parties to submit the health plan type associated with the dispute. The plan should have provided this information when they submitted the initial payment or notice of denial of payment or during open negotiation. If the plan fails to provide this information to the provider, the provider may choose the No Plan/Issuer Response option.
  • Requiring an initiating party that is a provider, facility, or a provider of air ambulance services to provide a Tax I.D. number or National Provider Identifier (NPI) number.
  • Adding the ability for initiating parties to include mailing address and other contact information for additional points of contact.

EDPMA continues its close work with ACEP on implementation and advocacy related to the No Surprises Act and will continue to provide additional updates and information.

On November 1^st,  the Centers for Medicare and Medicaid Services (CMS) released the calendar year (CY) 2023 Hospital Outpatient Prospective Payment System final rule. This rule also finalized policies for the new Medicare enrollment designation of Rural Emergency Hospitals (REHs), which were authorized under law to be eligible for Medicare payments beginning on January 1, 2023. Here are the key takeaways from the finalized provisions related to REHs:

• CMS Finalized Provisions from 2 Separate Proposed Rules: The proposed rules for REHs were released in two parts: (1) a standalone proposed rule to set the Conditions of Participation (CoPs) for REHs; and (2) in the CY 2023 OPPS proposed rule where CMS laid out its proposed policies for payment, enrollment, and quality reporting. In this OPPS final rule, CMS finalized provisions for both the CoPs as well as the proposals from the OPPS proposed rule.
• CMS Replied to EDPMA Request For Clarification on Closed CAHs/Rural Hospitals That Would Otherwise Be Eligible to Enroll as an REH. One of the statutory criteria for a facility to be eligible to convert to an REH sets out that the facility must have been a critical access hospital (CAH) or a rural hospital with not more than 50 beds as of December 27, 2020. EDPMA sought clarification about CAH/rural hospitals in existence as of December 27, 2020 but that subsequently closed.  In response to our requests, CMS clarified that “facilities that were CAHs or rural hospitals with not more than 50 beds as of the date of enactment of the CAA and then subsequently closed after that date, would be eligible to seek REH designation after the closure of the facility.”
• CMS Encourages Presence of Emergency-Trained Personnel. As part of the final CoPs related to staffing and emergency services. CMS continued to state that it wanted to proceed cautiously given workforce concerns and provide REHs with the flexibility to staff the facility as appropriate for that facility’s setting. However, in response to requests for requirements that there be some emergency medicine expertise, CMS will require that “the REH be staffed at all times by an individual who is competent in the skills needed to address emergency medical care. The individual must be able to receive patients and activate the appropriate medical resources to meet the care needed by the patient.” CMS also states that it will require that the “individual has the ability to effectively communicate information regarding the condition of patients presenting to the emergency department for treatment to the physician or other practitioner notified of the patient’s arrival.” In addition, under the final CoP requiring a Quality Assessment & Performance Improvement Program (QAPI) Program, CMS also added that an REH must “specifically measure, analyze, and track staffing as a quality indicator.”
• CMS Reverses Course on creation of new REH Stark Exception. CMS did not finalize the creation of a new specific “REH Exception” to the physician-self referral prohibition, which would have allowed physician ownership and investment in REHs, due to stakeholder concerns. CMS reminds stakeholders, however, that for REHs located in rural areas, the “Rural Provider Exception” is available.
• CMS Lays Out REH Quality Reporting Program Framework But No Immediate Reporting Requirements Finalized. With regard to the REH Quality Reporting Program (REHQR), CMS sought feedback on potential measures and criteria for measure selection that it could adopt in the future. While CMS discusses some of this feedback, it did not finalize the use of any specific measures, which means that quality reporting will almost certainly not begin in 2023. However, CMS did finalize that for REHs to participate in the REHQR Program, they must 1) have an account for the purpose of submitting data to the Hospital Quality Reporting (HQR) system and 2) designate a Security Official (SO).

On November 1st, the Centers for Medicare and Medicaid Services (CMS) released the calendar year (CY) 2023 Medicare Physician Fee Schedule (MPFS) final rule. The rule finalizes changes to the MPFS and other Medicare Part B payment policies, along with changes to the Quality Payment Program (QPP).

Here are the big takeaways for emergency medicine from the final rule:

• CMS Finalizes Cut to the 2023 Conversion Factor Teeing Up End of Year Congressional Action. CMS set the final CY 2023 MPFS conversion factor is set at $33.0607, which is down approximately 4.47 percent, or $1.55, from CY 2022. While CMS estimates that emergency medicine will have no overall financial impact form the finalized policies, this does not account for the evaporating 3% conversion factor remedy Congress provided in 2022. Without additional action by Congress, that payment cut will go into effect for 2023. See EDPMA’s action alert to contact your members of Congress.
• CMS Maintains Level 4 ED Visit Value, Departing from AMA RUC Recommendation. CMS generally accepted the CPT and RUC revisions for the following E/M code sets: ED visits, inpatient and observation services; discharge management; nursing facility visits; home and residence visits; and cognitive assessment and care planning services. This included accepting the RUC recommended values for those codes with one exception: CMS finalized its proposal to depart from the RUC recommendation for ED level 4 to preserve the current RVUs of 2.74 rather than reducing it to 2.60 as the RUC had recommended. As part of this package of policies, CMS also finalized adoption of the revised CPT documentation guidelines for emergency department (ED) evaluation and management (E/M) visits. (For more information on the ED E/M documentation guideline changes coming January 1, 2023, see information from AMA CPT via this link.)
• CMS Speaks to Concerns about “8 to 24 Hour Rule.” CMS made clarifications from what it had stated in the proposed rule. While CMS states that the final policy is meant to reflect what is already in the Medicare Claims Processing Manual, CMS admitted it made mistakes in articulating its intended policy in the proposed rule and seeks to clarify these in the final rule. CMS clarified and finalized that the general principles are as follows:
  • When a patient receives inpatient or observation care for less than 8 hours, only the “initial” service shall be reported by the practitioner for the date of admission; no discharge day management code shall be reported
  • When a patient is admitted for inpatient/observation and then is discharged on a different calendar date, the practitioner shall report the “initial service” and the appropriate discharge day management code
  • When a patient receives inpatient or observation care for at least 8 hours and is discharged on the same calendar date, the practitioner should bill the appropriate “same day discharge” code
• CMS Delays Problematic “Time Only” Split (or Shared) E/M Visit Policy But 2024 Rulemaking Will Prove Crucial: As requested by EDPMA, CMS finalized its one year delay of its planned implementation of defining the “substantive portion” (and thus the billing practitioner) of a split/shared visit as “more than half of the total time.” This policy had been set to go into effect on January 1, 2023. Until January 1, 2024 or until CMS issues new rulemaking, substantive portion will continue to be defined as “one of the three key components (history, exam, or MDM)” of the E/M.
• CMS Finalized Continuation of Favorable Medicare Telehealth Services for Emergency Medicine But Advocacy Continues for Post-PHE Policies. CMS reiterated that it will issue program instruction or other subregulatory guidance to implement the extension of the telehealth flexibilities that the Consolidated Appropriations Act, 2022 provided for a period of 151 days after the end of the COVID-19 PHE. With the expected extension of the PHE well into 2023, these issues will need to be addressed later in the year.
• CMS Finalized the Statutorily-Required Category Weights for MIPS and Keeps Performance Threshold to Avoid a Penalty Steady. Per the Medicare and CHIP Reauthorization Act of 2015 (MACRA), the 2023 MIPS performance category weights are as follows: 30% quality; 30% cost; 15% improvement activities; 25% PI. The MIPS performance threshold, which is the minimum number of points needed to avoid a penalty in 2025 based on 2023 performance, will remain at 75 points. As a reminder, under statute, the exceptional performance bonus will no longer be available starting with the 2023 performance year.
• CMS Makes Facility-Based Clinicians Eligible for “Complex Patient Bonus.” Facility-based clinicians will be eligible for the complex patient bonus, even if they do not submit MIPS data.
• CMS Finalizes Emergency Medicine “MIPS Value Pathway.” The MIPS Value Pathways (MVP) titled, “Adopting Best Practices and Promoting Patient Safety within Emergency Medicine,” was finalized as proposed as an optional MIPS participation pathway starting in 2023. More information about the Emergency Medicine MVP can be downloaded here. General information about the MVP pathway, including scoring and registration requirements, can be found here.
• CMS Finalizes Changes to the MIPS Emergency Medicine Specialty Measure Set. Changes to the Emergency Medicine Specialty Set:
  • Added #65: Appropriate Treatment for URI
  • Added #134: Screening for Depression and Follow up Plan
  • Added #226: Tobacco Use: Screening and Cessation Intervention
  • Added #431: Unhealthy Alcohol Use: Screening and Brief Counseling
  • Added new #487: Social Drivers of Health measure
  • Removed Part B claims collection type for #416: ED Utilization of CT for Minor Blunt Health Trauma for Patients Aged 2 through 17 Years
• Questions Remain About 2023 COVID-19 Exception. CMS has not yet announced whether it will continue to offer the MIPS Extreme and Uncontrollable Circumstances (EUC) Exception due to COVID-19 in 2023.

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)
[email protected] 

Filed 10/20/2022