The long and winding history of federal regulations and court rulings connected with the No Surprises Act continues to grow with every passing month it seems. The latest NSA rules are discussed in today’s alert.
There are some things that we’ve just come to expect: a paycheck at regular intervals, power outages that seemingly occur with every storm and the daily (if not hourly) mess made by a busy toddler. Expectations serve a purpose. They psychologically prepare us for what is sure to come—whether good or bad.
For those trying to get a handle on the rules connected with federal No Surprises Act (NSA), it sure seems as if there is something new every month or so—whether that involves a federal court ruling, a process pause or a revised regulation. It’s something we’ve come to expect. So, what is the latest and greatest when it comes to rules and rulings surrounding the NSA? The following will provide a brief overview.
Opening the Portal
No, we’re not talking about opening a portal to the fifth dimension or stepping through a doorway in time. Such sci-fi vortices seem rather tame in comparison to the back-and-forth jolts to which the healthcare community has been recently subjected relative to the independent dispute resolution (IDR) portal and overall process.
This past December 15, those federal departments empowered to promulgate regulations with respect to the NSA—specifically Health and Human Services (HHS), Treasury and Labor (hereinafter jointly referred to as “the Departments”)—reopened the Federal IDR portal for all dispute types. You will recall that it is through this electronic portal that providers may initiate a request for a federally certified IDR mediator when there is a dispute over the reimbursement amount involving a medical service where the provider does not participate with the patient’s insurance plan.
Over the last several months, there has been a series of announcements by the Departments relative to the IDR portal being opened, then paused, then open again, then closed, etc. The December 15 action by the Departments that reopens the portal includes the addressing of previously initiated batched disputes, new batched disputes, and new single disputes involving air ambulance services.
According to the December 15th announcement:
The Federal IDR process protects consumers against out-of-network balance billing by providing a process whereby providers (including air ambulance providers), facilities, and health plans can resolve payment disputes for certain out-of-network charges. Since August 2023, parts of the portal to submit Federal IDR disputes were closed due to recent court orders and opinions. The portal is now fully operational.
So, unless something has transpired between December 15 and the writing of this article, anesthesia providers can fully avail themselves of the IDR portal. “But,” you interject, “isn’t there a cost to accessing this process?” Funny you should ask.
Paying the Piper
On December 18, 2023, the Departments issued a final rule on IDR administrative fee and certified IDR entity fee ranges. A fact sheet was published by the Centers for Medicare and Medicaid Services (CMS) summarizing the major elements of the final rule.
The rule specifically finalizes an administrative fee of $115 per party for disputes initiated on or after the effective date of the rule. The CMS fact sheet goes on to state the following:
For disputes initiated on or after the effective date of this rule, the Departments are finalizing a certified IDR entity fee range of $200-$840 for single determinations and $268-$1,173 for batched determinations. Further, for batched determinations exceeding 25 dispute line items, the Departments are finalizing the proposal that certified IDR entities may set a fixed fee within the range of $75-$250 for each increment of 25 dispute line items included in the batched dispute, beginning with the 26th line item. The Departments are finalizing the proposal that the certified IDR entity fee ranges will remain in effect until the Departments propose and finalize different certified IDR entity fee ranges in subsequent notice and comment rulemaking.
The final rule provides that the administrative fee amount will be established no more frequently than once per calendar year. This is in response to comments requesting more stability in the administrative fee amount.
So, it remains up to each provider to determine if the cost of disputing an insurance payment is worth the fee, effort and potential frustration. The American Society of Anesthesiologists has recently stated that it is generally pleased that the Departments are allowing the batching of disputed claims as part of the IDR process. The question is, will this be enough to convince anesthesia providers to brave the portal?
Should you have any questions, please reach out to your account executive.
Among the maxims we Americans have heard and repeated over the decades is one that lauds a common-sense approach to preparedness and self-preservation: “An ounce of prevention is worth a pound of cure.” The old chestnut is actually profound for those who opt to ponder its ultimate meaning. “If only I had let the faucet drip during last night’s hard freeze, I wouldn’t have woken up to a busted water pipe.” That’s the kind of rue and regret that gets expressed when the adage above is not observed. It’s always cheaper to prevent a disaster than the cost of the disaster itself.
Fending Off Disaster
Are there disasters waiting to happen for those in hospital administration? You bet there are. But these can be significantly limited in size and scope where those facilities have a comprehensive and well-functioning corporate compliance program. Just like the compliance plan guidance that the Office of Inspector General (OIG) for the U.S. Department of Health and Human Services (HHS) has issued for medical groups, there are certain elements that should be a part of a hospital’s or health system’s compliance program. Indeed, the OIG has published at least two sets of compliance plan guidelines related to hospitals—one in 1998 and a supplemental document in 2005.
Part of a sound compliance program is identifying risk areas—especially those areas that could lead to fraud, waste and abuse in connection with a federal healthcare program, such as Medicare or Medicaid. Each facility should have a compliance officer who is tasked with identifying issues at their location that have a real potential for violating various federal regulations, such as coding, documentation of services, documentation retention, billing, etc. These risk areas should be identified, documented and disseminated in the form of training for appropriate personnel. Policies should be put in place to minimize these identified risks.
Ratcheting up the Pressure
In the fall of 2022, the U.S. Department of Justice (DOJ) promulgated new crime guidelines applicable to U.S. corporations. Known as the Monaco guidelines (named for Deputy Attorney General Lisa Monaco who formulated the guidelines), the DOJ document is primarily seen as an attempt by the federal government to put more teeth into prosecuting non-compliant behavior by American companies, including individuals within such companies. In fact, this may be the big takeaway from the Monaco guidelines.
Specifically, the guidelines provide for “individual accountability” as the primary emphasis of its new enforcement policy. In other words, it won’t be just the corporation’s board held responsible for improper acts, but the individuals who directly perpetrated them, whether that be the CEO, CFO or lower-level staffer. The guidelines provide for expedited powers to go after such individuals once identified.
Timeliness of cooperation in the DOJ’s investigations will also be taken into account when assigning penalties. It therefore will behoove the institution to move quickly to fully provide whatever information the government requests during its investigation into potential wrongdoing within the facility. Monaco stated that corporate leadership will be “on the clock,” indicating an expectation that there should be no stonewalling the investigative activity.
History of misconduct will also be a component in the assessment of penalties by the DOJ. Prior wrongdoing by the same individuals will be deemed of special concern. The agency will also take into consideration the corporation’s track record of response to inappropriate behavior among its personnel. Thus, it will be important for the hospital to ensure that its compliance plan contains real teeth when it comes to responding to bad behavior. That is, there should be documented consequences meted out to employees who engage in non-compliant behavior—up to and including termination.
So much unpleasantness can be avoided by simply having a compliance plan that actually works. It must target real areas of risk; it must have sufficient consequences for non-compliance; and it must be effectively communicated to staff members. After all, an ounce of prevention . . . well, you know.
For anesthesia groups wishing to remain independent, strategic planning is a must. As part of these planning sessions, practices must take into account the impact of an increasingly depressed Medicare reimbursement landscape. Today’s article looks at the relevant trends and strategies groups will want to consider.
Declining Medicare payment rates for anesthesia are probably more significant than most anesthesia providers realize. Most providers understand that these governmental rates are significantly discounted and that the percentage of Medicare cases greatly impacts the potential overall yield per billed unit. What most do not stop to think about is the strategic impact of American demographic trends and that the migration of cases from traditional inpatient venues to outpatient facilities has dramatically changed the economics of call coverage. The dramatic increase in endoscopic anesthesia cases has created a whole new set of challenges and opportunities. As Medicare coverage options evolve, it becomes increasingly difficult to optimize practice revenue potential.
Medicare Rates Continue to Erode
The sad but unfortunate reality is that current Medicare payment rates for anesthesia do not begin to cover the cost of providing the care. A review of data for six Coronis clients (two from the East, two from the Midwest and two from the west) reveals an average anesthesia rate for 2023 of $21.88, and the projection is for this rate to drop further in 2024. This represents a decrease of 5.5 percent from the 2019 rate of $23.14. As a point of reference, if an anesthesia provider generates 10.000 billable units per year and the only source of payment is Medicare, this would only yield total revenue potential of $218,800, and this assumes that all potential revenue could be collected. The reality is that Medicare intermediaries only pay 80 percent of the allowable, leaving a remaining 20 percent to be collected from secondary coverage or the patient. If the patient is covered by Medicare and MediCal, and lives in California, there is no additional 20 percent payment.
If one wanted to benchmark these rates against the Consumer Price Index for Medical services, which has been tracking at about five percent per year, the problem is obvious. The deficit must be covered by payments from non-Medicare plans and hospital support. This is why the greatest challenge facing virtually every practice these days is to generate enough revenue to recruit and retain an appropriate number of qualified providers.
The Challenge is Compounded by the Size of the Medicare Population
CMS data and projections indicate that currently about 18 percent of all Americans are covered by Medicare. Given an aging population, the projection is that the Medicare population will increase dramatically as baby boomers continue to age. The fastest growing segment of the American population is people over 80. The good news is that, as the tables below indicate, the Medicare surgical population has not increased over the past five years, although this may be partially explained by the impact of the pandemic in 2021 and 2022. The overall average Medicare percentage for the six practices stayed at about 35 percent, which is obviously not representative of all practices across the country. Not included in this percentage is the Medicaid population, which can be as much as an additional 10 percent of severely discounted units.
The data for the six practices indicates that the percentage of outpatient cases continues to increase. While about 52 percent of total billed units were generated in outpatient venues in 2019, the percentage has now increased to 60 percent.
The percentage of patients who have opted for HMO plans is significant. While many of these HMO plans minimize the patient’s responsibility, many also make it more difficult for anesthesia providers to get paid.
The Impact of Colonoscopy
The dramatic increase in anesthetics for endoscopy and especially colonoscopy has created an additional set of challenges. While these cases are typically short in duration, productivity is the key to profitability. Recent coding changes also had the effect of reducing the base value for most cases and thereby diminishing the revenue potential. At an average rate of $21.88, the typical Medicare colonoscopy only generates $131.28 when paid in full.
While it is true that, for many anesthesia practices, endoscopy has been the fastest growing and most profitable line of business, this trend may well have run its course.
Coverage Implications
As practices expand their scope to include a more diverse collection of venues, coverage requirements become more difficult to meet. Typically, for a large multi-site practice, 60 percent of all units are generated in outpatient venues. It used to be that only hospitals would provide financial support, but many practices are now having to request subsidies from outpatient facilities. This is simply a function of the fact that, as the number of anesthetizing locations increases, too often the utilization decreases.
Since 75 percent of the revenue generated per location is typically produced between 7 AM and 3 PM, this means that night coverage is usually a financial loss leader. There is a concept that has started to gain currency: the misery index. It reflects the percentage of cases that must be done after 5 PM and on the weekends.
The tables below indicate changes in the acuity of Medicare patient care over the five-year period. Note that the acuity of inpatient care has increased, as compared to the acuity of outpatient care that has remained fairly constant. These percentages represent aggregated data for the six practices included here. In other words, traditional inpatient venues are covering increasingly older and sicker patients.
Managing the Medicare Challenge
An ongoing decline in Medicare rates is inevitable. This is just one of the many challenges with which today’s anesthesia practices must contend. As is so often the case in business, one practice’s challenge is another practice’s opportunity. Inevitably, this means thinking outside the box. Most practices have three options. This is where strategy is critical. They can (a) try to replace the falling Medicare revenue with other revenue, such as higher rates from commercial payers; (b) attempt to increase their subsidy from the facilities they serve, which seems to be the most common option most are exercising; or (c) explore ways to reduce the cost of anesthesia care through improved operating room efficiency and more creative scheduling. Status quo is never a viable option. If independent practice is the goal, then exploring strategic options is the only solution.
Should you have any questions, please reach out to your account executive.
There’s trouble in Paradise . . . again. The federal government has created a rule that has upset many in the hospital community, resulting in legal action taken by the American Hospital Association (AHA), among other entities. The rule at issue involves the prevention of hospitals from utilizing third-party technologies in connection with hospitals’ webpages. To put it another way, “the rule imposes limitations on the application of common third-party web technologies responsible for capturing IP addresses on sections of publicly accessible web pages for hospitals,” according to a January 8 report in Becker’s Health IT.
Stirring the Pot
According to Becker’s, HHS’ Office for Civil Rights (OCR), along with the Federal Trade Commission (FTC), began sending letters this past July to 66 hospitals and health systems across the country, warning them that their websites may be using disallowed tracking tools. This, no doubt, created quite a stir in the hospital sector, ultimately leading to a decision by the AHA to file suit in November.
The AHA’s position is that the federal agencies have incorrectly held that the collection of online data for advertising and backend operations might constitute a breach of federal health privacy laws. According to Becker’s, the HHS rule comes at a time when “many hospitals and health systems in the U.S. are facing lawsuits that allege third-party tracking tools on their websites and patient portals have been sending patient information to tech giants like Meta and Google.” As of last May, some 18 hospitals or health systems were facing such lawsuits.
Boiling Over
On Jan 5, the AHA filed a brief challenging the December 2022 rule issued by the Department of Health and Human Services’ Office for Civil Rights. Again, that rule acts to restrict the use of standard third-party web technologies that capture IP addresses on portions of hospitals’ public-facing webpages.
In the “Introduction and Summary” section of its brief in support of a motion for summary judgment in a case before the U.S. District Court for the Northern District of Texas, the AMA asserted the following:
The U.S. Department of Health and Human Services (HHS) has issued a new rule that is flawed as a matter of law, deficient as a matter of administrative process, and harmful as a matter of policy. The rule prohibits the use of certain technologies that make healthcare providers’ public webpages more effective in sharing vital information with their communities. In doing so, it exceeds the government’s statutory and constitutional authority, violates the substantive and procedural requirements for agency rulemaking, and injures the very people it purports to protect.
The brief went on to state:
The rule is contrary to law because it restricts the use of information that is not protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Count 1), and it also is final agency action that violates the Administrative Procedure Act (APA) because it provided an arbitrary-and-capricious rationale (Count 2) and failed to go through the notice-and comment process (Count 3). On each of these purely legal claims, Plaintiffs are entitled to summary judgment because there are no genuine disputes of material fact.
This issue is far from being resolved. We have the above-referenced action currently in play, and there are the other lawsuits against hospitals that will have to be adjudicated, as well. As to the case in which the AHA is a party, it might be worth noting that it is before a Texas judicial panel. Interestingly, it has been a Texas federal court that has recently handed the federal government a series of defeats relative to a different legal issue—the No Surprises Act regulations. Though those cases were before the Eastern District of Texas, it would not be surprising to see the Northern District court take a similar pro-provider position. Stay tuned.
The Medicare Physician Fee Schedule for 2024 contains several provisions concerning drugs and biologicals that will have an impact on pain practices. This alert provides a summary of those provisions.
We have provided three alerts in the past few weeks devoted to provisions within the 2024 Medicare Physician Fee Schedule (PFS) final rule applicable to the anesthesia and pain community. This alert seeks to summarize what the final rule has to say about drugs and biologicals, which we believe will be of interest to many of our readers—especially those in a chronic pain practice. Based on a review of a fact sheet published by the Centers for Medicare and Medicaid Services (CMS), we have highlighted the following areas of focus.
Opioid Treatment Programs
The final rule extends current flexibilities for periodic assessments that are furnished via audio-only telecommunications through the end of CY 2024. CMS will allow Opioid Treatment Programs (OTPs) to “bill Medicare under the Part B OTP benefit for furnishing periodic assessments via audio-only telecommunications when video is not available to the beneficiary, to the extent that use of audio-only communications technology is permitted under the applicable SAMHSA and DEA requirements at the time the service is furnished, and all other applicable requirements are met.”
The intent of this extension, according to CMS, is to promote continued beneficiary access to these services by minimizing potential disruptions to services following the end of the COVID-19 PHE. The extension is also intended to better align telehealth flexibilities for OTPs with telehealth flexibilities authorized for certain other settings.
Drugs and Inflation
The Inflation Reduction Act (2022) contains several provisions that affect payment limits for beneficiary out-of-pocket costs for certain drugs payable under Part B. The final rule contains the following actions:
Section 11402 amends the payment limit for new biosimilars furnished on or after July 1, 2024, during the initial period when ASP data is not available. The final rule codifies this provision.
Section 11403 makes changes to the payment limit for certain biosimilars with an ASP that is not more than the ASP of the reference biological for a period of five years. CMS implemented Section 11403 of the IRA under program instruction, as permitted under Section 1847A(c)(5)(C) of the Act. The final rule contains changes to regulatory text to reflect these provisions.
Section 11101 requires that beneficiary coinsurance for a Part B rebatable drug is to be based on the inflation-adjusted payment amount if the Medicare payment amount for a calendar quarter exceeds the inflation-adjusted payment amount, beginning on April 1, 2023. CMS issued initial guidance implementing this provision, as permitted under Section 1847A(c)(5)(C) of the Act, on February 9, 2023, and is finalizing “conforming changes” to regulatory text.
Discarded Drug Amounts
In the 2023 PFS final rule, CMS adopted policies to implement Section 90004 of the Infrastructure Investment and Jobs Act. Among them, were (a) reporting requirements for use of the JW modifier to report discarded amounts of drugs from single-dose containers and the use of the JZ modifier for such drugs with no discarded amounts; (b) an increased applicable percentage of 35 percent for a category of drugs with unique circumstances; and (c) a dispute resolution process.
In the 2024 PFS final rule, these additional policies were added, including:
Timelines for the initial and subsequent discarded drug refund reports to manufacturers.
The method of calculating refunds for discarded amounts from lagged claims data.
The method of calculating refunds when there are multiple manufacturers for a refundable drug.
Increased applicable percentages for certain drugs with unique circumstances (e.g., drugs with small volume doses and rarely utilized orphan drugs).
An application process by which manufacturers may request an increased applicable percentage for a drug with unique circumstances.
Modification to the JW and JZ modifier policy for drugs payable under Part B from single-dose containers that are furnished by a supplier who does not administer the drug.
Electronic Prescribing for Controlled Substances
The final rule provides for the issuing of a prescriber notice of non-compliance as the non-compliance action for subsequent measurement years. CMS may consider a prescriber’s non-compliance under the CMS EPCS program in its processes for assessing potential fraud, waste, and abuse. In some instances, this could result in a referral to law enforcement or revocation of billing privileges in the event that evidence of fraud, waste, or abuse is present.
CMS is also finalizing the following provisions:
Remove the same entity exception.
Determine compliance by counting unique prescriptions in the measurement year by prescription number assigned by the pharmacy and included in the Part D claims data. This would exclude refills (which are not separately transmitted) from the compliance calculations and include renewals, which are assigned a new prescription number by the pharmacy.
Update the exception for emergencies to allow CMS to identify which emergencies qualify for the exception and establishing that, as a default, prescribers impacted by the recognized emergency exception would be excepted for the entire measurement year.
Updates to extraordinary circumstances waivers to further clarify the process for applying for a waiver, the circumstances in which CMS can grant a waiver and establishing that approved waivers would apply to the entire measurement year.
The final rule also clarifies that the CMS EPCS Program will continue to align with Part D e-prescribing standards.
Blue Cross/Blue Shield of Massachusetts (BCBSMA) has announced that, effective January 1, 2024, it is implementing a set of diagnosis-driven claim edits to reinforce its existing medical policy (MP 154) that sets forth the conditions for payment of monitored anesthesia care (MAC) in an endoscopy case in the outpatient setting. Essentially, the BCBSMA announcement is giving anesthesia providers a heads-up that where a patient’s diagnosis or physical status does not meet the MP 154 threshold for billing MAC, the provider will not receive reimbursement from the payer. Where a provider believes that payment may be an issue, he/she should have the patient sign the attached waiver form prior to the service.
Conditions that would meet the medical necessity threshold of MP 154 include, for example, the following:
ASA status III – V
Severe obesity
History of adverse reaction to sedation
History of inadequate response to sedation
Findings consistent with sleep apnea
The use of MAC is considered NOT medically necessary for endoscopy procedures “in patients at low to average risk of complications related to the use of moderate sedation.” Furthermore, MAC for routine screening and diagnostic colonoscopy in ASA Class I patients is deemed to be NOT medically necessary.
You’ve seen the old signs: “Out to lunch” or “Gone fishing.” Such messages placed conspicuously in front of small businesses may have been commonplace in the low-tech days of the last century, but these phrases now serve as a descriptor of either laziness or craziness. At the very least, careless disregard may be the modern-day messaging implicit in these memes. The problem is that running a 21st-century business in a carefree manner can invite predators to engage in a fishing expedition at your own expense.
In late December, the Office for Civil Rights (OCR), an agency under the aegis of the U.S. Department of Health and Human Services (HHS), announced a financial settlement with a private medical group following a phishing attack that affected the electronic protected health information (ePHI) of 34,862 patients. The term “phishing” describes a particular kind of cyberattack that employs clever methods to entice individuals to disclose sensitive information via electronic communication, such as email. Typically, the method involves the impersonation of a trustworthy source, such as a co-worker or supervisor. Such an attack scored a major hit on Lafourche (pronounced “Lah-foosh”) Medical Group (LMG), a Louisiana-based clinical practice specializing in emergency medicine, occupational medicine and laboratory testing.
Baiting the Hook
On May 28, 2021, LMG filed a breach report with HHS stating that a phishing attack, which occurred the previous March, enabled a hacker to successfully gain access to ePHI. This exposed sensitive patient information, including diagnoses, frequency of visits and treatment locations. Phishing attacks, generally, often involve identity theft, monetary exploitation and harm to one’s reputation. And all this, in turn, can lead to mental anguish and financial loss on the part of the patient. Phishing is considered a very serious danger by cyber security experts because of its potential to cause large-scale harm.
In response to the breach report, the OCR investigated the case and found that the medical group was in violation of multiple regulations that arise from the Health Insurance Portability and Accountability Act (HIPAA). It was determined that, prior to the 2021 reported breach, LMG failed to conduct a risk analysis to identify potential threats or vulnerabilities to ePHI across the organization as required by HIPAA. The OCR also discovered that the group had no policies or procedures in place to regularly review information system activity to safeguard PHI against cyberattacks. This, dear readers, is what we call being “out to lunch” from a vigilance standpoint. Such reckless disregard is not only illegal, it’s actually harmful to your own financial interests.
Resolution and Restitution
As a result of the federal investigation, LMG agreed to pay OCR a fine of $480,000 and to implement a corrective action plan that is to be monitored by the agency for two years. Specifically, the group has agreed to take the following actions:
Establish and implement security measures to reduce security risks and vulnerabilities to ePHI in order to keep patients’ protected health information secure;
Develop, maintain and revise written policies and procedures as necessary to comply with the HIPAA rules; and
Provide training to all staff members who have access to patients’ PHI on HIPAA policies and procedures.
Tales and Takeaways
The LMG case serves as a cautionary tale for medical entities, generally—including hospitals. This marks the first settlement imposed by the OCR that involved a phishing attack. According to the agency’s director, Melanie Fontes Rainer:
Phishing is the most common way that hackers gain access to healthcare systems to steal sensitive data and health information. It is imperative that the healthcare industry be vigilant in protecting its systems and sensitive medical records, which includes regular training of staff and consistently monitoring and managing system risk to prevent these attacks. We all have a role to play in keeping our healthcare system safe and taking preventive steps against phishing attacks.
It should be reiterated that healthcare providers, health plans and data clearinghouses regulated by HIPAA are required to file reports with HHS in the event of large breaches of ePHI. Based on the breach reports received in 2023, nearly 90 million individuals were affected by large breaches last year. This is up from 55 million individuals affected from breaches in 2022. So, these attacks are not going way; they are only increasing. Hospitals must have measures in place that comply with HIPAA requirements and that are sufficient to defend against the dangling hook that is already in the water.
For more information on a hospital’s responsibility relative to cybersecurity and breaches, check out the OCR’s website at OCR Home | HHS.gov.
SUMMARY: As we close 2023 and look towards the new year of reporting with CMS, we walk through the requirements and changes CMS has made. This alert will serve as a guide on what you can expect and how you can best position yourself and your practice to comply with the Quality Payment Program. This update includes an overview of the MIPS program for 2024, including reporting requirements, measure updates and recommendations for anesthesia groups relative to overall participation.
At the end of the year, CMS provides the healthcare industry with the details of the upcoming reporting year with the Quality Payment Program (QPP); and, last Friday, they released the full list of registries that have been approved for reporting for 2024. Coronis Health has been approved for reporting as a Qualified Clinical Data Registry (QCDR) and a Qualified Registry (QR) for the ninth year, which not only allows us to support our clients in an engaged and supportive way but continues to allow us to be an active participant in the development and deployment of this program over the years. This release, along with the update to the 2024 Medicare Physician Fee Schedule (PFS) Final Rule, provides us with the full landscape of what CMS expects and how we are to comply with the QPP. This alert will walk through the requirements of 2024 reporting and be a resource to review if you have any questions about how you need to participate next year.
MIPS Category Review
The QPP has two main payment tracks: the Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APM). This update is going to primarily focus on the MIPS track, but we will make some references to the APM. If you have any questions about the APM reporting track, please reach out to your account executive so that we can check your eligibility. Under MIPS, there are four categories to consider, which are Quality, Cost, Improvement Activities and Promoting Interoperability. Some special considerations exist for anesthesia around these categories that we will walk through below. Your participation with MIPS should consider your needs with CMS compliance, strategic value of having this quality data tracked, and potential secondary benefits gained through your facility contracts or payer contracts. Based on your answers, you can review whether reporting through the traditional MIPS track or through a MIPS Value Pathway (MVP) is more advantageous and determine if you should report as an individual or as a group. This can get confusing quickly, but, hopefully, this review will clarify the program as it relates to anesthesia for 2024.
Previous years afforded anesthesia a bit of flexibility with reporting, and 2024 is thankfully no exception. This is primarily because CMS classifies the anesthesia specialty as “non-patient facing clinicians.” This status may be confusing given the nature of anesthesia care, but it is useful as it provides the specialty with options on how it chooses to participate with the QPP. One of the most important benefits is the automatic reweighting of the Promoting Interoperability (PI) MIPS category, which is the new version of the CMS 2012 Meaningful Use program. This is useful as it eliminates the requirement to comply with this category altogether and assigns the composite points that would be assigned to the Quality category. The Cost category is automatically calculated by the government, which leaves only the Quality and the Improvement Activities as the ones that anesthesia providers need to consider. Since CMS decided to keep the weighting of these categories stable for 2024, that means that the Quality category is worth 55 percent of your total score and Improvement Activities is worth 15 percent.
When your compliance in these categories is added together, a minimum of 75 points or more is required to avoid a penalty in 2024. The program isn’t all or nothing, however. 2024 reporting will result in a nine percent penalty assessed on your 2026 Medicare Part B payments if your total score is between 0 and 18.75 composite points. Anywhere from 18.76 to 74.99 composite points will assign a negative adjustment between nine percent and zero percent on a linear sliding scale. 75 composite points exactly will have a neutral adjustment, and anything above will have a sliding scale of a positive, but budget-neutral positive, adjustment. We don’t know exactly what this positive adjustment will be, but you can expect a maximum of around 3.5 percent of your 2026 Medicare Part B payments. This value may substantially increase as the COVID-19 hardship exemption ends, but we will update you if we see any major changes.
One other element of flexibility that anesthesia enjoys is that CMS includes a minimum threshold of collections from Medicare Part B payments. If a clinician collects less than $90,000 in traditional Medicare, they may be excluded from the program altogether. This doesn’t restrict your reporting if you want to participate and seek a bonus, but it may not obligate you if you have no interest. If you are curious about your status, you can search here with your NPI using the MIPS participation lookup tool. Coronis Health will review this on your behalf, as well, but feel free to check anytime.
CMS updated the program with one big change. The data completeness requirement has increased to 75 percent for quality category reporting (up from 70 percent in 2023), meaning clinicians will need to report on 75 percent of each measure’s full year eligible population to be fully counted. There are a few more measures to choose from this year through the Coronis Health or the other anesthesia registries. The list of measures includes the following:
#404: Anesthesiology Smoking Abstinence
#424: Perioperative Temperature Management
#430: Prevention of Post-Operative Nausea and Vomiting (PONY) – Combination Therapy
#463: Prevention of Post-Operative Vomiting (POV)- Combination Therapy (Pediatrics)
#AQI73: Prevention of Arterial Line-Related Bloodstream Infections
#AQI67: Consultation for Frail Patients
#ABG44: Low Flow Inhalational General Anesthesia
Under the traditional MIPS model, you would be required to report on at least six of the above measures. It will be important to choose the measures together with your team at Coronis Health as there are considerations around maximum scores achievable with the above measures through its historical benchmarks.
One thing to keep in mind is the final 2024 measures have not yet been published on the CMS website. These generally are viewable in the Resource Library, and we hope to see these posted by January 2, 2024. If there are any substantial changes to these measures, we will let you know; but, for now, review the above list, and you can select a minimum of six of them if participating in the traditional MIPS program.
Regarding Improvement Activities, there were some changes, but they don’t substantially affect anesthesia, with one exception. We will review this topic further in the next section, but CMS added an improvement activity for better support of the MIPS Value Pathways (MVPs). It is described as:
IA_MVP: Practice-Wide Quality Improvement in MIPS Value Pathways
In essence, you can consider this improvement activity to double dip on MVP participation as it gives you an automatic credit for the category if you participate in an MVP. Given that support, there are a few considerations with MVPs for 2024.
MIPS Value Pathways
In 2023, CMS introduced the MVP reporting pathway as a method to simplify the entire process of reporting measures to CMS. In essence, the MVP provides a prescriptive list of options and a reduced burden of reporting to enable easier overall compliance with the QPP. This is a great way to comply; and, with Coronis Health as your partner, we will additionally work with you to maximize your bonuses. To do so, we will work on a combination of strategies to evaluate the best option with traditional MIPS, MVP, or, if you are a participant with ACO, through a reporting option called an APM (Advanced Alternate Payment Model). If you are participating in an ACO and have any questions about how the APM works, let your account executive know, and we can review your options.
The new year will include some potential changes with the MVP options for anesthesia. Currently, this is only published in the 2024 Medicare Physician Fee Schedule (PFS) Final Rule as a proposed change, but we will update you on the officially published MVP list when the QPP pages are updated. However, for this year, you can choose any four of the following measures if reporting through the Coronis Health QCDR:
#404: Anesthesiology Smoking Abstinence
#424: Perioperative Temperature Management
#430: Prevention of Post-Operative Nausea and Vomiting (PONY) – Combination Therapy
#463: Prevention of Post-Operative Vomiting (POV)- Combination Therapy (Pediatrics)
#487: Screening for Social Drivers of Health (NEW)
AQI48: Patient-Reported Experience with Anesthesia
The MVP bundle additionally requires an Improvement Activity; but, as outlined above, the new measure (IA_MVP: Practice-Wide Quality Improvement in MIPS Value Pathways) allows providers to bypass this requirement by being able to double dip and not be overly concerned with the reporting of this category. However, if you are interested in reporting other improvement activities for an alternative reason, you can select two medium-weighted or one high-weighted improvement activity. The only catch to an MVP is that you must proactively register between April 1, 2024 and November 30, 2024, which Coronis Health can do on your behalf.
The measures to choose from are as follows:
Improvement Activities (2 Medium or 1 High)
IA_BE_6: Regularly Assess Patient Experience of Care and Follow Up on Findings – High
IA_BE_22: Improved practices that engage patients pre-visit – Medium
IA_BMH_2: Tobacco use – Medium
IA_CC_2: Implementation of improvements that contribute to more timely communication of test results – Medium
IA_CC_15: PSH Care Coordination – High
IA_CC_19: Tracking of clinician’s relationship to and responsibility for a patient by reporting MACRA patient relationship codes – High
IA_EPA_1: Provide 24/7 Access to MIPS Eligible Clinicians or Groups Who Have Real-Time Access to Patient’s Medical Records – High
IA_MVP: Practice-Wide Quality Improvement in MIPS Value Pathways – High
IA_PCMH: Electronic Submission of Patient Centered Medical Home accreditation – High
IA_PSPA_1: Participation in an AHRQ-listed patient safety organization – Medium
IA_PSPA_7: Use of QCDR data for ongoing practice assessment and improvements – Medium
IA_PSPA_16: Use of decision support and standardized treatment protocols – Medium
The MVP option may be the easiest way to comply with the QPP requirements for 2024, but we can work with you to be strategic about your measure selections to achieve the maximum composite points possible. Feel free to review the details of the MVP at the CMS website.
More information will be coming from us about the registration process but consider the MVP as your easiest avenue to meet overall QPP compliance for 2024. Until then, if you have questions about this topic, please contact your account executive or you can reach out to us at info@coronishealth.com.
Seeing non-descript shapes and fuzzy images is a common occurrence for those driving on a stormy night with fogged-up windshields. You can see lights coming at you, but you can’t see the road itself or its yellow dividing line. The murkiness of the view can be downright dangerous—even with wipers going at full tilt. In such conditions, it is imperative to get a clearer view—whether that means turning on the defrost or manually wiping away the film of fog with your own hand.
Gaining clarity, sharpening the scene can be critical in helping individuals to better interpret and react to the myriad of data points constantly coming into view. Whether that’s navigating hazardous driving conditions or selecting a healthcare provider in the wake of a concerning diagnosis. As it concerns the latter, greater clarity may be on the way.
Transparency on Track
According to a December 11 article in Becker’s CFO Report, the U.S. House of Representatives could call for a vote in the next few days on The Lower Costs, More Transparency Act (LCMTA). The measure would force hospitals, ambulatory surgery centers, labs, imaging service providers and pharmacy benefit managers to meet new price transparency requirements. The bipartisan legislation, which was first introduced on September 8, not only seeks to improve price transparency but also contains provisions meant to lower overall costs for patients and employers.
According to Beckers, the key takeaways from the proposed LCMTA include the following items:
The legislation would require healthcare price information from hospitals, payers, labs, imaging providers and ASCs to publicly list the prices they charge patients.
Hospitals would be required to publish all standard charges for at least 300 shoppable items and services. The charges would be published through machine-readable files and would have to include payer-specific negotiated charges in addition to charges for cash-paying patients.
Under the proposed legislation, ASCs, when owned by a hospital, would be required to make public insurer-negotiated rates and cash prices for all items and services, as well as prices for approximately 300 shoppable services.
The proposed bill would also reduce costs for patients and employers by requiring payers and pharmacy benefit managers to disclose negotiated drug rebates and discounts, revealing the true costs of prescription drugs.
Medicare Advantage organizations would be required to report to the U.S. Department of Health and Human Services (HHS) information about PBMs, pharmacies and other providers when they share common ownership.
The proposed bill would eliminate $8 billion a year in proposed disproportionate share hospital cuts during fiscal year 2024 through 2025, as well as $7 billion in funding for the Medicaid Improvement Fund.
The legislation would lower out-of-pocket costs for seniors who receive medication at a hospital owned facility or physician office and expand access to more affordable generic drugs.
Under the bill, employers would be equipped with the drug price information they need to get the best deal possible for their employees.
The proposed bill also fully pays for investments into programs that strengthen the healthcare system by the following actions:
The funding of community health centers, deemed crucial for patients in rural and underserved areas, would be extended through 2025. The proposed funding is $4.4 billion per year.
Supporting training programs for new physicians in communities.
Preserving Medicaid funding for hospitals that provide care to uninsured and low-income patients.
Extending funding for research to find better treatments and a cure for diabetes, which CMS said affects more than 38 million Americans.
Rationale and Next Steps
In a September 8 press release, Rep. Virginia Foxx, chair of the House Education and the Workforce Committee, stated the following:
Hidden fees, dishonest billing, and other harmful practices in the healthcare industry have left patients in the dark about the cost of care. No patient should be saddled with higher premiums just because he or she wasn’t presented with all of the facts. This good faith effort will allow patients to cut through the confusion in the healthcare marketplace and make informed decisions.
The House could vote on the LCMTA this week. If passed, it would then have to proceed through the next steps of approval before becoming law. We will keep you updated on the bill’s progress.
He’s coming right at you. A 295-pound defensive end who is attempting to bull rush you on the inside gap; and all that stands between him and your franchise quarterback is you. Blocking is one of the essentials of American football. It’s considered a major asset for those who can execute it well. But blocking, in some contexts, is a definite no-no and could wind up actually costing you.
A few weeks ago, the U.S. Department of Health and Human Services (HHS) published a proposed rule that would establish disincentives for healthcare entities and individual providers determined by HHS’ Office of Inspector General (OIG) to have committed “information blocking.” The OIG describes this term as occurring “when a provider knowingly and unreasonably interferes with the access, exchange, or use of electronic health information except as required by law or covered by a regulatory exception.”
Proposed Penalties
The proposed rule implements the HHS Secretary’s authority under section 4004 of the 21st Century Cures Act (Cures Act) and acts to complement the OIG’s rule that established information blocking penalties for the other actors previously identified by Congress. These include health information technology (IT) developers of certified health IT or other entities offering certified health IT, health information exchanges, and health information networks. Specifically, the OIG’s final rule establishes civil money penalties authorized by the Cures Act that applies to these IT entities. According to an HHS press release, if the OIG determines that one of these entities has committed information blocking, it may be fined up to $1 million per violation. Again, this is based on an earlier OIG final rule.
Now, back to the HHS proposed rule. In it, the federal department seeks to establish certain disincentives for healthcare organizations, such as hospitals, as well as for individual practitioners, who have been determined by the OIG to have engaged in information blocking. The OIG is then to refer such organizations and individuals to the Centers for Medicare & Medicaid Services (CMS). Upon receiving a referral, CMS will be empowered to perform the following disciplinary actions:
Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) would be deemed to not be a meaningful electronic health record (EHR) user in an applicable EHR reporting period. The impact on eligible hospitals would be the loss of 75 percent of the annual market basket increase; for CAHs, payment would be reduced to 100 percent of reasonable costs.
Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), an eligible clinician or medical group would be held to not be a meaningful user of certified EHR technology in a performance period and would therefore receive a zero score in the Promoting Interoperability performance category of MIPS, if required to report on that category. According to the HHS press release on the proposed rule, “The Promoting Interoperability performance category score typically can be a quarter of a clinician or group’s total MIPS score in a year.”
Under the Medicare Shared Savings Program, a healthcare provider in an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier would be deemed ineligible to participate in the program for a period of at least one year. This may result in a healthcare provider being removed from an ACO or prevented from joining an ACO.
Of course, HHS is only getting started with these proposed punishments. The proposed rule includes an appeal to the general healthcare community for additional ideas on disincentives that would apply to those not impacted by the rule as currently proposed. Translation: there may be more disincentives in the final rule or future rulemaking.
Rationale and Response
Obviously, HHS believes it is off to a good start with these proposed provisions. According to HHS Secretary Xavier Becerra:
HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information. We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future.
To ensure appropriate sharing and the protection of patient privacy and preferences, the information blocking regulations include exceptions, such as the privacy exception.
The proposed rule was published in the Federal Register on November 1, 2023. It remains available for public comment via the Federal Register, but comments must be submitted no later than 11:59 p.m. ET on January 2, 2024.
In light of the Supreme Court’s decision in American Hospital Association v. Becerra [142 S. Ct. 1896 (2022)] and the district court’s remand to the responsible federal agency, the Centers for Medicare and Medicaid Services (CMS) issued a final rule outlining the remedy for the invalidated OPPS 340B-acquired drug payment policy for calendar years 2018-2022. CMS published a final rule earlier this month that will act to remedy the payment rates the Court held to be invalid. This final rule will affect nearly all hospitals paid under the Outpatient Prospective Payment System (OPPS).
Background
Section 340B of the Public Health Service Act (hereinafter, “340B”) allows participating hospitals and other providers to purchase certain covered outpatient drugs or biologicals (hereinafter referred to collectively as “drugs”) from manufacturers at discounted prices. Prior to 2018, the Medicare payment rate for Part B covered outpatient drugs provided in outpatient hospitals was generally the statutory default of average sales price (ASP) plus six percent.
In the 2018 OPPS final rule, CMS adjusted the payment rate for 340B drugs to ASP minus 22.5 percent to reflect more accurately the actual costs incurred by 340B hospitals when acquiring 340B drugs. This rate applied from 2018 through approximately the third quarter of 2022. To comply with statutory budget neutrality requirements under the OPPS, CMS made a corresponding increase to payments to all hospitals (340B hospitals and non-340B hospitals) for non-drug items and services, which was in effect from 2018 through 2022.
Before the Bar
Here is a brief review of recent court decisions and subsequent rulemaking that led to the most recent final rule:
On June 15, 2022, the Supreme Court unanimously ruled that the differential payment rates for 340B-acquired drugs were unlawful because, prior to implementing the rates, the U.S. Department of Health and Human Services (HHS) failed to conduct a survey of hospitals’ acquisition costs under the relevant statute.
On September 28, 2022, the U.S. District Court for the District of Columbia vacated the differential payment rates for 340B-acquired drugs going forward. As a result, all 2022 claims for 340B-acquired drugs paid on or after September 28, 2022 were paid at the default rate (generally ASP plus six percent).
In the 2023 OPPS final rule, CMS finalized a general payment rate of ASP plus six percent for drugs acquired through the 340B Program, consistent with the agency’s policy for drugs not acquired through the 340B program.
As required by statute, CMS implemented a 3.09 percent reduction to the payment rates for non-drug items and services to achieve budget neutrality for the 340B drug payment rate change for 2023. This budget neutrality change ensured the 2023 OPPS conversion factor was equivalent to the conversion factor that would have been in place had the 340B drug payment policy never been implemented.
Provisions of Final Rule
Lump Sum Payments
An additional payment will be made to affected providers for 340B-acquired drugs as a one-time lump sum payment. Based on monies paid and still owed in connection with the program, CMS is making a one-time lump-sum payment to each 340B-covered entity hospital that was paid less due to the now-invalidated policy. The final rule contains the calculations of the amounts owed to each of the approximately 1,700 affected 340B covered entity hospitals.
Beneficiary Copayments
Beneficiary copayments make up approximately 20 percent of the payments affected 340B covered entity hospitals did not receive due to the 340B payment policy. Because CMS is structuring the remedy as a lump-sum remedy payment, providers are not able to bill beneficiaries for that cost sharing. To account for this, and to ensure that affected 340B providers are put in as close to the same position as if the 340B payment policy had never existed, Medicare is accounting for beneficiary cost sharing within the one-time lump sum payment to affected hospitals. Consequently, affected 340B covered entity hospitals may not bill beneficiaries for coinsurance on remedy payments.
Prospective Offset for Higher Payments for Non-Drug Items
Because CMS is now making additional payments to affected 340B covered entity hospitals to pay them what they would have been paid had the 340B policy never been implemented, CMS is making a corresponding offset to maintain budget neutrality as if the 340B payment policy had never been in effect. To carry out this required $7.8 billion budget neutrality adjustment, CMS will reduce future non-drug item and service payments by adjusting the OPPS conversion factor by minus 0.5 percent starting in 2026. CMS is finalizing for the prospective offset to start for 2026. CMS will continue this adjustment until the full $7.8 billion is offset, which CMS estimates to be 16 years.
For Medicare Advantage payment, more information is in the Hospital Outpatient Prospective Payment System Update on Payment Rates for Drugs Acquired through the 340B Program – Informational for MAOs memorandum that was issued by CMS on December 20, 2022.
New Providers
CMS is finalizing that providers that did not enroll in Medicare until after January 1, 2018, and thus did not fully benefit from the increased payment for non-drug items and services from 2018 through 2022, are excluded from the prospective rate reduction.
For the last several years, anesthesia providers have been able to rely on a clear standard for determining whether or not an anesthesia service should be considered a general anesthetic. That standard may be going away.
It’s something that philologists and etymologists would readily affirm: words and their meaning tend to be a moving target. That is, language and individual words within that language evolve over time so that the original meaning may no longer be reflected in later usage. “Cool” no longer refers only to relative temperature; it has also come to mean “neat.” And “neat” no longer just means “tidy”; it can also mean “awesome.” Interestingly, “awful” used to mean full of awe and wonder; now it has a completely negative connotation. So, yes, definitions are constantly changing, and medical terms are no exception to this dynamic.
Anesthesia’s Merriam-Webster
Over the years, compliance departments and medical practices have relied, in part, on definitions and position statements issued by the American Society of Anesthesiologists (ASA) to provide some semblance of authoritative guidance in compliance-related matters. Where Medicare, the Code of Federal Regulations and other authoritative sources are silent, the ASA is looked to for leadership on anesthesia-related matters. Indeed, the federal courts have taken into consideration the position statements of the ASA when formulating their opinions and handing down their decisions. How the ASA defines certain terms, therefore, is of some import.
As we have noted in previous alerts, the “definition” of a general anesthetic, according to the ASA, has for the last several years included the following verbiage: “If the patient loses consciousness and the ability to respond purposefully, the anesthesia care is a general anesthetic, irrespective of whether airway instrumentation is required.” The implication of the above statement is that if the patient loses consciousness—even for a moment, even if loss of consciousness was not part of the anesthesia plan—the anesthesia service is a general anesthetic.
It is the above language that led consultants and compliance experts around the country to advise their anesthesia clients that a planned monitored anesthesia care (MAC) service may not always end up as a MAC. As we have pointed out in the past, sedation is often used with modern MAC services, and that sedation is often in the form of propofol. When propofol is used, this often results in the patient losing consciousness at some point during the case. The planned MAC service has now, in such a scenario, just met the definitional threshold of a general anesthetic and should be so denoted on the anesthesia record.
Now all this may be changing. Or is it?
The Morphing of Meaning
On November 21, the ASA published on its website a revised version of its “Statement on Distinguishing Monitored Anesthesia Care (“MAC”) from Moderate Sedation/Analgesia,” which has an official approval date of Oct 18, 2023. Oddly enough, it was the MAC position statement that had contained the ASA’s definition of a general as reflected in the above-referenced section noted in bold. According to the new revised version of the statement, that entire section has been scrapped. In other words, the “If the patient loses consciousness . . .” language has now been deleted from the ASA’s MAC position statement.
Seeing a change in language, meaning or definition in this regard should come as no surprise. The anesthesia community remembers when, prior to the “if the patient loses consciousness” language, the ASA’s positional statement on MAC included the following statement: “Monitored anesthesia care refers to those clinical situations in which the patient remains able to protect the airway for the majority of the procedure.” The implication was that, if the patient could not protect the airway for a majority of the procedure, the mode of anesthesia was a general.
So, definitions do change; and the ASA’s definition or description of what constitutes a particular anesthesia technique is subject to periodic review and revision. We have just come through such a process, but what does this mean for the anesthesia provider who is charged with not only implementing an anesthetic but accurately documenting it?
Implication of Change
Excising the “if the patient loses consciousness . . .” verbiage was not the only change in the ASA’s October 18 MAC position statement. The following new language was added: “Please also refer to ASA’s Continuum of Depth of Sedation: Definition of General Anesthesia and Levels of Sedation/Analgesia.” So, what do these changes mean from a practical, real-world standpoint for the anesthesia provider who must determine which anesthesia technique to mark on the intraoperative anesthesia record? It means that providers would be forced to consult the ASA’s above-referenced “Continuum of Depth of Sedation” position statement to determine whether their anesthetic service met the standard of a general or MAC. Here’s what that statement says—first, as to MAC:
Monitored Anesthesia Care (“MAC”) does not describe the continuum of depth of sedation, rather it describes “a specific anesthesia service performed by a qualified anesthesia provider, for a diagnostic or therapeutic procedure.” Indications for monitored anesthesia care include “the need for deeper levels of analgesia and sedation than can be provided by moderate sedation (including potential conversion to a general or regional anesthetic.”
The statement continues with its description of a general anesthetic:
General Anesthesia is a drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation. The ability to independently maintain ventilatory function is often impaired. Patients often require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function may be impaired.
So, with MAC, the service does not require sedation. It’s not about sedation; it’s about monitoring, with the expectation that the patient may require conversion to a general or regional based on what’s taking place during the surgical session. Since today’s MACs often involve sedation drugs, the patients will at times lose consciousness. So, if that happens, would not this still meet the definitional threshold of a general—even with the dropping of the recent language from the MAC position statement?
With the new version of the MAC position statement now implemented, the default threshold for meeting a general, as described in the Continuum of Depth of Sedation statement, still describes a state of losing consciousness. That statement then goes on to use terms such as “often” and “may” to describe other circumstances that could arise in this unconscious state. That does not mean that a general must include an impairment of an ability to maintain ventilatory function or assistance in maintaining airway. So, the takeaway is that the removal of the recent general anesthetic definition (“if the patient loses consciousness and the ability to respond purposefully . . .”) may be of little consequence. The only unqualified requirement in the Continuum statement to meet the standard of a general is loss of consciousness (to include not being arousable).
So, here’s a scenario. It’s a planned MAC. You administer propofol. The patient loses consciousness and is not arousable, though the patient remains non-intubated. With the new version of the MAC position statement, this scenario would still reflect a general, and “general” should therefore be documented as your anesthesia technique.
Definitions and descriptions may morph from time to time; but, occasionally, the meaning remains essentially the same. If you have any questions on this topic, feel free to contact your account executive.
Sometimes we buy on time. That may call for making a few installment payments. Our reporting on the highlights of the 2024 Outpatient Prospective Payment System (OPPS) final rule seems to be working out in similar fashion, i.e., in installments. In this third installment on Medicare’s final rule for the outpatient hospital setting, our focus will be exclusively on the quality programs set forth by the Centers for Medicare and Medicaid Services (CMS), effective January 1, 2024.
According to a fact sheet released by CMS, the agency is finalizing changes to the Hospital Outpatient Quality Reporting (OQR) and Rural Emergency Hospital Quality Reporting (REHQR) programs to further its goals of “meaningful measurement and reporting of quality of care in the outpatient setting.”
Outpatient Quality Reporting
The Hospital OQR program is a pay-for-reporting measure that requires hospitals to meet quality reporting requirements. Facilities that fail to meet these requirements will receive a reduction of 2.0 percentage points in their annual payment or fee schedule update.
In the 2024 OPPS final rule, CMS is finalizing modifications of three measures:
The COVID-19 Vaccination Coverage Among Healthcare Personnel (HCP) measure to align with the updated Centers for Disease Control and Prevention (CDC) National Healthcare Safety Network measure specifications;
The Cataracts: Improvement in Patient’s Visual Function Within 90 Days Following Cataract Surgery measure, to require use of one of three specific survey instruments to measure change in visual function pre- and post-operatively to further standardize data collection and reduce facility burden; and
The Appropriate Follow-Up Interval for Normal Colonoscopy in Average Risk Patients measure, to align with updated clinical guidelines.
In addition, CMS is finalizing, with modification, the adoption of a new measure in these programs: the Risk-Standardized Patient-Reported Outcomes Following Elective Primary Total Hip and/or Total Knee Arthroplasty measure. According to the CMS fact sheet, this measure “will provide specific insight into the quality of care of a common procedure.” The measure will extend the voluntary reporting period to a total of three years prior to requiring mandatory reporting beginning with the 2028 reporting period for the 2031 payment determination.
Conversely, CMS is not finalizing its proposal to re-adopt the Hospital Outpatient Facility Volume Data on Selected Outpatient Surgical Procedures measure after consideration of commenter feedback. Commenters requested that CMS reconsider what data is collected for this measure to provide a complete picture of procedural volume that is meaningful to both patients and providers. The agency is also reassessing how the volume data is publicly displayed to ensure meaningfulness and relevance to providers, consumers, and other interested parties.
Further, the final rule adopts an additional measure in the Hospital OQR Program: the Excessive Radiation Dose or Inadequate Image Quality for Diagnostic Computed Tomography (CT) in Adults electronic clinical quality measure (eCQM). The purpose of this measure is to promote patient safety. The measure extends the voluntary reporting period to a total of two years prior to requiring mandatory reporting beginning with the 2027 reporting period for the 2029 payment determination.
CMS is not finalizing its proposal to remove the Left Without Being Seen measure due to a recent increase (worsening) of LWBS rates in the agency’s routine monitoring and evaluation that warrants further investigation. Requests for comments were also solicited in the measure topic areas of patient safety and sepsis, behavioral health (including mental health and suicide risk), as well as telehealth in the hospital outpatient setting. A summary of the comments received is included in the final rule.
Rural Emergency Hospital Quality Reporting
The REHQR Program is a new quality reporting system for specially designated rural emergency hospitals (REHs) that must provide emergency department (ED) services and observation care and may also opt to provide additional outpatient services. These REHs are required by statute to submit quality measure data.
In the 2024 OPPS final rule, CMS is finalizing the adoption and codification of several standard quality program reporting policies, as well as the adoption of four initial measures for the REHQR Program. The four initial measures, consisting of three claims-based measures and one chart-abstracted measure, are:
Abdomen Computed Tomography – Use of Contrast Material;
Median Time from Emergency Department (ED) Arrival to ED Departure for Discharged ED Patients;
Facility Seven Day Risk Standardized Hospital Visit Rate after Outpatient Colonoscopy; and
Risk-Standardized Hospital Visits Within Seven Days After Hospital Outpatient Surgery.
In addition, CMS summarized comments received on the use of eCQMs, care coordination measures, and a tiered approach for quality measures and reporting requirements to incentivize REH reporting.
For a comprehensive review of the quality reporting rules for 2024, please consult the final rule, which can be found at the following website: 2023-24293.pdf (federalregister.gov)
Not every anesthesia practice has a winning strategy when it comes to the all-important relationship with the hospital. Today’s article addresses the dynamics of that relationship and how anesthesia groups can successfully manage it.
Too many anesthesia practices are experiencing a less than collaborative relationship with the administration of the facility where they provide services. Given what an important role anesthesia plays in the management of the operating rooms, this can be a particularly troubling state of affairs. Anesthesia services bring such value to the facility. The anesthesia provider does more to enhance the patient’s overall surgical experience than the surgeon, leading many to wonder why the relationship is not more compatible. Obviously, part of the explanation is historical. In many facilities the anesthesia providers were the masked men about whom little was known. More recently, many in the administration see them as the annoying providers who are always asking for a bigger subsidy or other forms of financial support.
Clearly, it does not help when the only interactions between the anesthesia department and the hospital administration occur at the time of a contract renewal. Some might even argue that the lack of a productive and meaningful dialogue is by design: it is part of a strategy to enhance the administration’s power over the group. An arm’s length relationship makes it easier to hold the anesthesia providers accountable. While such relationships may have been the norm in the past, most observers would now agree this status quo is no longer appropriate in today’s highly competitive healthcare environment. The anesthesia challenge is how to change the paradigm.
Administration Perspective
Certainly, we all need to be understanding of the challenges faced by hospital administrators in the current environment. If the anesthesia practice is experiencing revenue challenges, we can be sure that the hospital is experiencing them as well. If the anesthesia practice wants to discuss additional financial support, it is safe to assume that it is not the only specialty engaged in such efforts. It should not come as any surprise that administrative staff is being challenged on many levels. This makes it especially difficult to get their attention and establish a working dialogue.
Anesthesia’s Strategy
Best practices are notable in medicine. Some anesthesia practices pride themselves on their close working relationship with administration. Key members have regular meetings with hospital leadership and are in the loop in critical decision-making affecting the management of the operating rooms. Some even have members on the hospital board of directors. The question is, to what do we attribute such administrative success? What strategies have these practices pursued to ensure they have an optimal working relationship with their customers?
As is true of so many things, success is a function of focus and commitment. The group must be committed to a close working relationship with administration. It does no good to simply view the CEO as a tough customer. He must be seen as a business partner. Collaborative problem-solving must be the goal. Regular and consistent communication is essential. This seems so logical and such common sense; why is it not the norm? For one thing, everyone’s time is valuable and scarce. Anesthesia concerns are not often at the top of the list of hospital executives who are typically more focused on developing new lines of business and revenue opportunities. There is often a perception that administration is most happy when they don’t have to deal with any anesthesia issues. Most anesthesia providers are happiest when they have the freedom and flexibility to do their cases as they see fit. Regulatory requirements and administrative responsibilities are nothing more than an unnecessary annoyance to most.
Clearly, the anesthesia provider’s perspective is conditioned by the nature of anesthesia practice where the objective is to get patients comfortably and safely through the trauma of surgery. Anesthesia tends to have the shortest decision cycle in medicine. Critical clinical issues rarely require more than a matter of seconds to resolve. When they need something from administration, like a bigger subsidy, they approach it with the same level of impatience they approach clinical care. Unfortunately, this is not how business people think or act. More often than not, the implicit objective of management decision-making is maintenance of the status quo. Herein lies a fundamental disconnect. Administrators want and need data to analyze and assess options. This is what anesthesia providers often perceive as paralysis by analysis. What many groups have come to understand is that this is an opportunity for education. They need to have the patience and commitment to educate the administration.
One anesthesia chairman developed an operating room utilization report that compared coverage hours by billable anesthesia hours by anesthetizing location. Each month he dropped off a copy of the report for the COO. At first the COO did not take the information seriously, but over time he came to see its value. Eventually, the chairman was able to convince the hospital not to open any location that would not generate 45 ASA units. The process took a number of months, but eventually the administration understood its relevance.
A good strategy that has worked for many practices is to be seen as a problem solver. Identify challenges and issues that need to be addressed and provide workable solutions. With each problem or issue that the practice addresses and solves, the group buys credibility. Eventually, it becomes a go-to source for solutions.
Ultimately, a practice must be seen as a good business partner. Strong leadership is critical. It is essential that the practice speaks with one voice and that all providers act accordingly. Disunity can easily be the fatal flaw that causes administration to lose faith in the practice and consider other options. If you have questions, feel free to contact your account executive.
In a follow-up to our previous alert, we would like to provide our readers with additional takeaways from the 2024 Outpatient Prospective Payment System (OPPS) final rule, that was published earlier this month by the Centers for Medicare and Medicaid Services (CMS). Based on a fact sheet provided by CMS that summarizes the key provisions of the final rule, hospitals officers will want to be aware of the issues highlighted below.
Dental Services
For 2024, CMS is finalizing Medicare payment rates for over 240 dental codes to align with the dental payment provisions in the 2023 Physician Fee Schedule final rule by assigning them to clinical APCs. This is intended to bring greater consistency in Medicare payment for different sites of service and help ensure patient access to dental services performed in the hospital outpatient setting.
CMS is reassigning HCPCS code G0330 from the Dental Procedures APC (APC 5871) to Level 4 ENT Procedures (APC 5164) for 2024. HCPCS code G0330 is used to describe facility services for dental rehabilitation procedures performed on a patient who requires anesthesia (e.g., general, monitored anesthesia care) and use of an operating room. The final APC assignments and status indicators for the dental codes can be found in the CY 2024 OPPS Addendum B.
Rural Emergency Hospitals
As you will recall, the 2023 OPPS final rule established the Rural Emergency Hospital (REH) provider type. A hospital is eligible to convert to an REH if it is a critical access hospital or rural hospital with no more than 50 beds, participating in Medicare as of the date of enactment of the Consolidated Appropriations Act (CAA), 2021. Eligible hospitals that convert to an REH receive an enhanced rate for REH services and a fixed monthly facility payment.
While some Tribal and IHS hospitals have expressed interest in converting to an REH, they have expressed significant reservations about transitioning from their existing payment methodology under the All-Inclusive-Rate (AIR), published annually by the IHS in the Federal Register, to the REH payment methodology. In response, the 2024 OPPS final rule implements a policy where IHS and Tribal facilities that convert to REHs will be paid for hospital outpatient services under the same AIR that would otherwise apply if these services were performed by an IHS or Tribal hospital that is not an REH. The existing beneficiary coinsurance policies applicable to such services under the AIR would remain the same. Per the rule, IHS and Tribal facilities that convert to REHs would receive the REH monthly facility payment consistent with how this payment is applied to REHs that are not tribally or IHS operated.
340B Drug Program
Section 340B of the Public Health Service Act allows participating hospitals to purchase certain covered outpatient drugs from manufacturers at discounted prices. For 2024, CMS will continue to pay for 340B acquired drugs and biologicals at the statutory default rate, which is generally ASP plus six percent. The payment for 340B-acquired drugs and biologicals will not differ from the payment rate for drugs and biologicals not acquired through the 340B program.
CMS issued a final rule prior to the release of this 2024 OPPS final rule on November 2, 2023, discussing the remedy for payment for 340B acquired drugs for CYs 2018 to 2022. We will be providing information on this topic in an upcoming alert.
Industry Response
The American Hospital Association was quick to weigh in on its overall assessment of the 2024 OPPS final rule. In a press release earlier this month, the organization’s executive vice president, Stacey Hughes, expressed concern that the government had once again provided an inadequate update to hospital payments for Medicare services. The 3.1 percent increase for next year was seen as insufficient given the financial difficulties still facing many of America’s frontline medical facilities. She expressed hope that the U.S. Congress would step in to provide additional funding before the end of the year.
On a separate issue, the AHA’s executive vice president expressed a desire to cooperate with CMS in its effort to increase price transparency, stating:
The AHA will be carefully reviewing the changes to the Hospital Price Transparency Rule to ensure they continue to advance our shared objective with CMS of making it easier for patients to access pricing and cost information while reducing unnecessary administrative burden and costs on hospitals and health systems.
We will be providing an additional alert in the coming weeks addressing the quality incentive programs for outpatient hospital services, as well as a treatment of the separate 340B drug final rule also released this month.
