Washington Watch for August 2018

Carter L. Alleman, J.D.

CMS Releases CY 2019 MPFS and QPP Proposed Rule

The Centers for Medicare & Medicaid Services (CMS) issued the calendar year (CY) 2019 Medicare Physician Fee Schedule (MPFS) and Quality Payment Program (QPP) proposed rule. Under this rule, CMS estimates a 1 percent increase to the total payment for MPFS services for general surgery for CY 2019. CMS also introduces various changes to evaluation and management (E/M) visit codes and payments to reduce administrative burden and to better align E/M coding and documentation with the current practice of medicine.

Specifically, CMS proposes to allow providers to choose to document office/outpatient E/M visits using medical decision making or time instead of using the 1995 or 1997 E/M documentation guidelines; alternatively, providers could continue using the current documentation process. The agency also proposes to collapse levels two through five of office/outpatient E/M visits and adopt a single payment amount for these visits.

In addition, the rule also includes updates to year three (CY 2019) of the QPP. In 2019, surgeons participating in the Merit-based Incentive Payment System (MIPS) will need to meet CMS’ proposed performance threshold of 30 points—a 15-point increase from 2018—to avoid a negative payment adjustment. Other notable proposed changes to the QPP and MIPS include the introduction of facility-based measurement for providers who furnish most of their services on a hospital campus and an increase to the Cost category weight in MIPS to 15 percent of the total score (a 5-percentage point increase from 2018). Additionally, the proposed rule states MIPS payment adjustments will only apply to covered professional services under the MPFS beginning with 2019, which is the first payment year of the QPP. 

The proposed rule is available for public review, along with fact sheets on its MPFS and QPP provisions.

Key House Committee Discusses Modernizing Outdated Stark Law

The House Committee on Ways and Means held a hearing titled Modernizing Stark Law to Ensure the Successful Transition from Volume to Value in the Medicare Program. At the hearing, Eric Hargan, Deputy Secretary, U.S. Department of Health and Human Services, signaled that the Centers for Medicare & Medicaid Services (CMS) was interested in finding ways to modernize the law to help foster the development of innovative care models. At present, the Stark Law unintentionally serves as a roadblock for many physicians who are interested in developing and implementing alternative payment models (APMs). CMS recently released a Request for Information regarding the modernization of the Stark Law.

Request for Information on Anti-Kickback Statute Released

Secretary of the U.S. Department of Health and Human Services (HHS) Alex Azar issued a request for information on the anti-kickback statute, which prohibits payments for recommending products or services to patients covered by Medicare or Medicaid. HHS also plans to take action to revise the rules under the Health Insurance Portability and Accountability Act (HIPAA) and regulations dealing with privacy and substance use records at 42 CFR Part 2.

CMS Releases 2017 MIPS Performance Feedback and Final Scores

The Centers for Medicare & Medicaid Services (CMS) released performance feedback and final scores for surgeons who participated in the 2017 performance year of the Merit-based Incentive Payment System (MIPS). In addition to their performance feedback and final scores, surgeons can now access their Medicare Part B payment adjustments for the 2019 payment year.

To access this information, surgeons will need to visit the Quality Payment Program (QPP) website and log in using their Enterprise Identity Management (EIDM) credentials. Surgeons who believe an error was made in calculating their 2019 MIPS payment adjustment have until September 30 to request a targeted review. Some circumstances in which surgeons may choose to request a targeted review include the following:

• Finding errors or data quality issues on the measures and activities submitted.
• Being erroneously excluded from the alternative payment model (APM) participation list and not being scored under APM scoring standard.
• Not being automatically reweighted even though the MIPS eligible clinician qualifies for automatic reweighting due to the 2017 extreme and uncontrollable circumstances policy .

To submit a request, surgeons will need to log in to their EIDM account through the QPP website and be prepared to provide additional documentation to support the request. If the review is approved, CMS will update the final score and associated payment adjustment.

For more information about the MIPS payment adjustments and final scores, refer to the CMS fact sheet and the user guide.  

Justice Anthony Kennedy Retires

Justice Anthony Kennedy announced his plans to retire from the Supreme Court effective July 31. Kennedy was first nominated to the court in 1987. The confirmation process for the President’s nominee is likely to dominate the Senate schedule through the fall.

Bipartisan Support Emerges for Biennial Budgeting

House Speaker Paul Ryan (R-Wis.) and Minority Leader Nancy Pelosi (D-Calif.) both expressed support for moving from single-year budget resolutions to two-year budgets during a hearing at the Joint Select Committee on Budget and Appropriations Process Reform last week. Under Ryan’s proposal, lawmakers would agree upon top line funding levels every two years and pass six of the 12 appropriations bills each year. Pelosi agreed with the idea of a biennial budget but argued that Congress should continue to pass 12 single appropriations bills each year. The change to the congressional schedule would help avoid government shutdowns and reduce the use of continuing resolutions (CRs), while adding more long-term predictability to spending decisions. The Select Committee was created to propose changes to the current budget process and is required to make recommendations that have bipartisan support from a majority of panel members by November 30.

Drug Pricing Report Released

Senate Finance Committee Democrats released a report on Medicare drug prices and the pharmaceutical supply and payment chains. The report argues that every part of the drug supply chain stands to benefit from higher prices due to financial arrangements in the delivery system. The lawmakers believe that the current administration is underestimating the challenges in the way of reducing drug prices and argue that real reform will require exposing the profit motives within the industry. The report was released ahead of the Committee’s hearing titled “Prescription Drug Affordability and Innovation: Addressing Challenges in Today’s Market,” in which panel members heard from U.S. Department of Health and Human Services (HHS) Secretary Alex Azar.

Doc Caucus Urges CMS to Revise Low-Volume Threshold

The House GOP Doctors Caucus has written to Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma requesting that the agency reduce the number of physicians excluded from the Merit-based Incentive Payment System (MIPS) as CMS works to set participation thresholds for 2019. The lawmakers express concerns that limited physician participation in MIPS restricts the possible upward payment adjustments for high performers in the program, or the 2018 performance year, CMS raised the low-volume threshold to exclude doctors with no more than $90,000 in Part B charges or those who saw 200 Medicare beneficiaries or fewer. Approximately 60 percent of otherwise eligible providers were excluded from MIPS in 2018, largely based on the low-volume threshold.

The letter points out that high performers are expected to receive an aggregate upward adjustment of 1.1 percent for 2019 based on their 2017 performance, despite the law allowing for adjustments of up to four percent. The lawmakers argue that MIPS needs to utilize the maximum incentives allowed for the program to reach its full potential. CMS is expected to include 2019 updates for the Quality Payment Program, which includes MIPS, in the upcoming Physician Fee Schedule rule.

President Trump Announces Supreme Court Nominee

President Trump announced his decision last week to nominate Brett Kavanaugh to fill the Supreme Court seat being vacated by Justice Anthony Kennedy. Kavanaugh is a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

FDA Approves Freeze-Dried Plasma for Combat Troops

The Food and Drug Administration (FDA) announced an emergency use authorization that will allow the Department of Defense to provide freeze-dried plasma for the treatment of soldiers with combat injuries. The announcement settles a dispute between the two agencies over access to the product, which has not been formally approved by the FDA. The Pentagon originally attempted to establish its own process for approving drugs and devices.

Wilkie Confirmed as VA Secretary

The Senate confirmed Robert Wilkie to be Secretary of Veterans Affairs. Wilkie previously served as assistant secretary of defense under President George W. Bush, and more recently as a Pentagon undersecretary for defense in the current administration. During his confirmation process, Wilkie assured lawmakers that he opposed efforts to privatize the agency. Wilkie’s predecessor David Shulkin had faced internal disagreements regarding the role of private care for veterans.

Senate Opioid Package in Question

The Senate may not have time to vote on a legislative package to address the opioid crisis before Labor Day, as originally intended. An opioid bill was one priority for Senate Majority Leader Mitch McConnell (R-Ky.), which led to his decision to cancel the chamber’s August recess. But the Senate is now focused on the nomination of Brett Kavanaugh to the Supreme Court and funding the federal government before the end of the fiscal year and has yet to reach an agreement on which measures to include in a bipartisan response to the opioid epidemic. Any Senate-passed plan would have to be reconciled with the House legislation that was passed in June. The House package (H.R. 6) was comprised of over 50 individual, largely bipartisan, bills. The Senate is considering four bills from the Health, Education, Labor, and Pensions (HELP) Committee, Finance Committee, Commerce Committee, and Judiciary Committee.

House Committee Approves PAHPA Reauthorization Bill

The House Committee on Energy and Commerce voted to advance the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2018 (PAHPAI), H.R. 6378, to the full House of Representatives. This legislation would reauthorize the Pandemic and All Hazards Preparedness Act (PAHPA) for another five years. Funding for PAHPA expires September 30..