This afternoon, the Centers for Medicare and Medicaid Services (CMS) released the calendar year (CY) 2023 Medicare Physician Fee Schedule (MPFS) proposed rule.  For CY 2023, CMS proposes an MPFS conversion factor of $33.0775. That represents a 4.42% reduction from the CY 2022 MPFS conversion factor due to the expiring 3.0% boost to the conversion factor provided by Congress for CY 2022 as well as an additional budget neutrality adjustment generated by the CY 2023 proposed policies.

• Emergency Medicine Overall Impact. CMS estimated that the overall impact of the rule on emergency medicine is a 1% increase in payments. However, note that this estimate does not factor in the expiring CY 2022 congressionally-mandated 3% boost to the conversion factor.
• ED E/M Codes: Generally speaking, CMS proposes to adopt 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 proposed rule, CMS proposes to accept 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 RVU of 2.74.

• Split (or Shared) 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. As EDPMA requested, CMS has delayed the policy that would have based the determination of the billing practitioner solely on time. This policy is proposed for delay through January 1, 2024 while CMS collects additional input.
• QPP. Per usual, CMS proposes modifications to the reporting requirements under the Quality Payment Program (QPP), including the Merit-based Incentive Payment System. As a reminder, CY 2023 reporting under the QPP will affect payment adjustments for services furnished in CY 2025.

EDPMA will continue to analyze the proposed rule and provide additional details. EDPMA plans to comment on the proposed rule before the end of the 60-day comment period.

• A link to the full rule can be found here.
• A CMS press release is available here.
• A CMS fact sheet can be accessed here.
• CMS also provided additional resources on the CY 2023 QPP policies in a zip file available here.

EDPMA in our partnership efforts with the American College of Emergency Physicians (ACEP) have worked to highlight the issues our members are experiencing with health plan compliance with their obligations under the No Surprises Act.  After sending multiple letters with examples of health plan non-compliance and meeting with staff from the Center for Consumer Information and Insurance Oversight (CCIIO), EDPMA is pleased to announce that CCIIO has released a new guidance document, Federal Independent Dispute Resolution Process Checklist of requirements for group health plans and group and individual health insurance issuers.

The full document can be accessed here.

EDPMA’s members consistently report that health plans are not providing federally required information to bill patients’ out-of-network services and to proceed with the federal Open Negotiations and Independent Dispute Resolution (IDR) processes that are part of the No Surprises Act.  To advocate on your behalf, we wrote a letter to federal agencies last month that provided: 1) specific examples of health plan non-compliance; and 2)  policy recommendations that would help address these non-compliance issues. EDPMA thanks our members who shared their redacted data to support this advocacy effort.

Last week, EDPMA and ACEP met with the Center for Consumer Information and Insurance Oversight (CCIIO) at the Centers for Medicare & Medicaid Services (CMS) staff to follow-up on our letter.  During the meeting, we described to CCIIO what specific health plan non-compliance issues we are experiencing, provided specific recommendations, and also requested additional guidance on how we should proceed with the Open Negotiations and IDR processes when there is limited or missing information from health plans (information that was required by the first interim final rule implementing the No Surprises Act).  We also emphasized the critical need for strong enforcement to ensure health plans provide information as required by law.

CCIIO made two important points about complaints:

1. If a complaint remains unresolved and the timelines around the Open Negotiation and IDR processes become difficult to adhere to, disputing parties can file for an extension.
   • As outlined in the IDR guidance (page 29), you file for an extension due to extenuating circumstances by emailing a Request for Extension due to Extenuating Circumstances to [email protected].
   • We explained to CCIIO that this solution is not optimal for providers since it delays when they would receive an appropriate payment from health plans, and it allows health plans to keep funds that they owe to providers.
2. You are allowed to “batch” complaints against one health plan.  In other words, instead of submitting a complaint for each individual claim, you can submit all the complaints against one health plan at once.  This may help save time and speed up the time in which your complaints are processed and adjudicated by CMS.

CCIIO staff stated that they heard many of these issues before and have received many complaints from providers that health plans are not providing all the required information.  CCIIO also claimed they resolved about 25% of all complaints, and there is a significant backlog of unresolved complaints.  Further, they stated that when a complaint is resolved, they request documentation from the health plan and continue to work with them to systematically resolve similar complaints moving forward. While CCIIO confirmed they are hosting internal conversations about how to enforce non-compliance, they did not offer specifics on enforcement processes or outcomes.

We believe the meeting was productive and we are reassured that CCIIO is acutely aware of these issues and is taking them seriously. Because CCIIO did not commit to adopting our policy recommendations, we will continue to follow-up with CCIIO on these requests.

As always, EDPMA has your back by advocating on your behalf and providing the resources you need to manage a successful business.

As a reminder, you can submit billing complaints by clicking here or by contacting the No Surprises Help Desk at 1-800-985-3059.

On March 22, 2022, EDPMA and ACEP sent a joint letter to the Departments of Health & Human Services, Labor, and Treasury providing feedback on the independent dispute resolution (IDR) Portal, which will be used to help facilitate claims through the federal IDR process under the No Surprises Act. The letter can be found here.

The Emergency Department Practice Management Association (EDPMA) is pleased to announce Cathey Wise, CAE as its new executive director. Wise will lead the EDPMA’s professional team to meet the organization’s mission to advocate for emergency department physician groups and their business partners to enhance quality patient care through operational excellence and financial stability.

“As the leader in the business of emergency medicine, EDPMA looks to Wise to guide and strengthen its advocacy efforts to ensure fair payment to emergency medicine physicians and their business partners,” says EDPMA Board Chair, Don Powell, DO. “We are confident her skills and experience will help EDPMA to continue to thrive in membership and member value, education and resources, revenue, and advocacy.”

Wise comes with an extensive background in emergency medicine and non-profit management. She most recently served as Executive Director of the Emergency Medicine Residents’ Association (EMRA). She helped increase EMRA’s membership by 63 percent, member-centric events by 240%, and non-dues revenue by triple digits.

“I’m beyond thrilled to have this opportunity to be part of an organization that is so important when it comes the care that patients receive—both when they are facing a crisis that has brought them to the emergency room—and in managing what can be very complex billing scenarios after,” commented Wise. “Likewise, I’m also excited to work to ensure that policies enable and support emergency department providers in operating successful businesses.”

Wise will meet with EDPMA members in person at the organization’s annual meeting, Solutions Summit 2022—Quality Connections: Ready, Set, Grow!, taking place April 24-27 at the Omni Amelia Island Resort in Florida. EDPMA members and stakeholders will convene to learn, engage, and network with the leaders in emergency medicine. The event will also kick-off the celebration of EDPMA’s 25-year anniversary.

• Effective immediately, withdraw guidance documents that are based on, or that refer to, the portions of the Rule that the court invalidated. Once these documents have been updated to conform with the court’s order, we will promptly repost the updated documents.
• Provide training on the revised guidance for certified IDR entities and Disputing Parties. This training will be offered through webinars and roundtable discussions, and will occur after the above-referenced documents are updated.
• Open the IDR process for submissions through the IDR Portal. For disputes for which the open negotiation period has expired, the Departments will permit submission of a notice of initiation of the IDR process within 15 business days following the opening of the IDR Portal.

Importantly, the Departments note that all previous patient protections provided by the No Surprises Act remain in effect.

• The HHS guidance (via the Centers for Medicare and Medicaid Services) can be found here.
• The DOL guidance (via the Employee Benefits Security Administration) can be found here.

WASHINGTON – On February 23, 2022, the U.S. District Court for the Eastern District of Texas granted the Motion for Summary Judgment filed by the Plaintiffs – the Texas Medical Association and Dr. Adam Corley – regarding their lawsuit challenging the federal government’s interim final rule implementing the independent dispute resolution process for reimbursement disputes between physicians and insurers.

The Memorandum Opinion and Order states “the Court concludes that the Rule conflicts with the Act and must be set aside under the Administrative Procedure Act (“APA”). … In sum, the Court holds that (1) Plaintiffs have standing to challenge Defendents’ September 2021 interim final rule implementing the No Surprises Act, (2) the Rule conflicts with the unambiguous terms of the Act, (3) the Departments improperly bypassed notice and comment in implementing the challenged portions of the Rule, and (4) vacatur and remand is the proper remedy.”

The Emergency Department Practice Management Association (EDPMA), an organization representing the practice of Emergency Medicine, filed an amicus brief, along with Texas ACEP and Virginia ACEP, in support of the Texas Medical Association’s and Dr. Adam Corley’s Motion for Summary Judgment.  Throughout the legislative process, stakeholders agreed that patients should be removed from billing disputes and held only to their in-network cost-sharing amounts.  EDPMA strongly supports the patient protections.

The Motion for Summary Judgment did not challenge these protections.  The focus of the Motion and the court’s order is the process for resolving reimbursement disputes between insurance plans and physicians.  Early legislative proposals that relied on a benchmark set at the plan’s typical in-network rate were rejected in favor of a compromise that considered evidence submitted by both the plans and the physicians. The statute clearly provides that the arbiter “shall consider” eight factors before deciding appropriate payment. The interim final rule would have inappropriately prohibited the arbiter from considering seven of those required factors except in special circumstances.

“EDPMA is thrilled that the Court has vacated and remanded the problematic Rule.  Congress was clear when it passed the landmark No Surprises Act last year: protect patients from unavoidable and unexpected costs without jeopardizing patient access to care,” said Don Powell, D.O., Board Chair of EDPMA. “The Rule would have allowed insurers to manipulate payment standards with little or no transparency on the health plan’s calculation of ‘median in-network’ rates. This would have harmed not just commercially insured patients, but the rural, medically vulnerable and indigent populations who rely on our nation’s emergency departments as an important safety net.

“With the COVID-19 pandemic, and the latest wave of new variants, emergency department safety net resources have been stretched to the breaking point. We see the Rule would have led to dire effects on the overall viability of our emergency medical care system. We urged the Administration to amend the Rule to be consistent with the language of the statute and Congressional intent — and now the Court has forced them to do so.”