ACS Advocacy Brief: November 9, 2023

CMS Releases CY 2024 MPFS Final Rule

The Centers for Medicare & Medicaid Services (CMS) released the calendar year (CY) 2024 Medicare Physician Fee Schedule (MPFS) final rule on November 2.

Beginning January 1, CMS will implement a split (or shared) evaluation and management (E/M) billing policy for E/M visits provided in part by physicians and in part by nonphysician practitioners (NPPs) in hospitals and other institutional settings. The billing provider for such visits will be the physician or NPP who furnished the “substantive portion” of the visit. Based on new Current Procedural Terminology (CPT^®) guidance, CMS has defined “substantive portion” to mean more than half of the total time spent by the physician or NPP performing the split/shared visit or the substantive part of the medical decision-making during the split/shared visit.

The ACS had submitted comments on September 8 in response to the Agency’s MPFS proposed rule issued earlier in the year.

In the final rule, the Agency also finalized a separate payment for add-on code G2211 to account for visit complexity associated with certain office/outpatient E/Ms. The ACS continues advocacy efforts to stop payment cuts to surgeons resulting from implementation of this add-on code.

All ACS members are urged to use the SurgeonsVoice website and send a prewritten, customizable email to their Members of Congress to help stop the planned 3.4% cut for surgeons.

Additionally, CMS indefinitely paused the appropriate use criteria (AUC) program for advanced diagnostic imaging and rescinded AUC program regulations. The Agency also temporarily expanded the scope of originating sites for services furnished via telehealth to include any site where the beneficiary is located at the time of the telehealth service, including an individual’s home.

The final rule and fact sheet on its payment provisions are available online for public review. Contact lfoe@facs.org for more information.

Coalition Letter, Led by ACS, Calls for Congress to Stop Medicare Payment Cuts

On November 6, the ACS led a letter signed by 54 physician and healthcare provider organizations calling on Congress to stop the 3.4% cut to Medicare payment that was finalized in the calendar year 2024 MPFS final rule.

In the final rule, CMS acknowledged that, due to budget neutrality requirements, most of the cut was created due to the implementation of the new G2211 code.  Without Congressional intervention, these cuts will go into effect on January 1, 2024.

The ACS remains committed to working with Congress on addressing the challenges to the Medicare payment system. However, in the absence of long-term reform, Congress must act now to fully stop the cut.

Write to your Senators/Representative and tell them to stop the full 3.4% cut before it goes into effect on January 1!

ACS Joins Letter to Congressional Champions on Medicare Budget Neutrality Reform

The ACS, along with national medical organizations and state medical societies, signed a letter to Representatives Brad Wenstrup, DPM (R-OH), Greg Murphy, MD (R-NC), and Michael Burgess, MD (R-TX), thanking them for their leadership in drafting a proposal to reform the budget-neutrality policies that have been responsible for eroding Medicare physician payment levels.

The letter also highlights that reforming budget neutrality, combined with other reforms such as an annual payment update tied to inflation, will help to improve the financial viability of physician practices—particularly those in rural and underserved areas.

Medicare Physician Payment and Administrative Burden Reduction under Review in House

The House Energy and Commerce Health Subcommittee recently held a hearing on legislative proposals to improve the Medicare physician payment system and reduce administrative burden for physicians. Lawmakers considered numerous proposals, including legislation to mitigate scheduled Medicare payment reductions, reform the use of prior authorization in Medicare Advantage, expand facility-based scoring in the Merit-based Incentive Payment System to better incentivize care quality and reduce reporting burden, and extend payment incentives for participation in alternative payment models, among others.

The ACS submitted a statement for the record expressing support for these proposals as well as calling on Congress to take additional steps, including stopping all pending Medicare payment cuts for 2024, providing an annual inflationary update to the MPFS, and ensuring more alternative payment models are available to physicians. The ACS also joined a coalition letter in support of Medicare payment reform.

The hearing highlights Congress’s attention to the concerns of the medical community regarding payment instability and administrative burden challenges. The ACS will continue to work with lawmakers to address these critical issues.

CMS Releases CY 2024 OPPS/ASC Final Rule

CMS released the CY 2024 Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System final rule on November 2. The ACS submitted comments on September 8 in response to the Agency’s OPPS/ASC proposed rule issued earlier in the year.

In the proposed rule, CMS considered removing four bariatric and colectomy CPT codes from the Inpatient Only (IPO) list, which would make these codes eligible for reimbursement in the outpatient and ambulatory settings. After extensive joint advocacy efforts opposing such removal by the ACS, the American Society for Metabolic and Bariatric Surgery, and the Society of American Gastrointestinal and Endoscopic Surgeons, CMS maintained IPO status for the bariatric and colectomy CPT codes, stating that patient safety and access could be jeopardized should they be removed from the IPO list. In addition, CMS maintained several anterior abdominal and parastomal hernia repair CPT codes on the IPO list.

CMS also finalized changes to the Hospital Outpatient Quality Reporting (OQR) program and Ambulatory Surgical Center Quality Reporting (ASCQR) program, including modifications to multiple quality measures. CMS chose not to implement the proposed Hospital Outpatient/ASC Facility Volume Data on Selected Outpatient Surgical Procedures measure due to public comments stating CMS should reconsider what data is collected for the measure to provide a complete picture of procedural volume that is meaningful for both patients and providers. The ACS also opposed the adoption of this measure in comments to the proposed rule.

The final rule and fact sheet are available online for public review. Contact regulatory@facs.org for more information. 

Updated, Future of QPP Policies Discussed in MPFS Final Rule

The MPFS final rule also included updates on performance year 2024 of the Quality Payment Program (QPP). The ACS submitted comments September 8 in response to the Agency’s QPP proposed rule issued earlier in the year.

As part of the College’s response to the Agency’s QPP proposals, the ACS provided input on the future of the QPP, advocating that a new type of “programmatic” measure could be a more meaningful participation pathway for clinicians.

A programmatic measure is defined as a measure that represents a specific clinical program and combines structure, process, and outcomes measures along with improvement activities in hopes of informing patients about the care they seek and driving care teams to improve. Programmatic measures are modeled after ACS verification and accreditation programs, such as those for cancer, bariatric or geriatric surgery.

The QPP offers two pathways for providers who participate in Medicare: The Merit-based Incentive Payment System (MIPS), and Advance Alternative Payment Models (APMs). Performance in MIPS in 2024 can result in payment adjustments of up to +/- 9% in 2026.

For the 2024 performance year (2026 payment year), CMS finalized several new MIPS policies; however, many of the major MIPS policies remain the same from 2023 to 2024. Key policies that remain unchanged include the performance threshold of 75 points required to avoid a penalty in 2026 (based on 2024 performance), and the performance category weights values:

• Quality: 30%
• Cost 30%
• Improvement Activities (IA): 15%
• Promoting Interoperability (PI): 25%

For new policies, CMS also finalized five additional MIPS Value Pathways (MVPs), which can be reported on a voluntary basis starting with the 2024 performance year, making a total of 16 MVPs available for reporting in 2024.

MVPs are a new MIPS reporting pathway that aims to align measures and activities across the noted performance categories to simplify MIPS, with the goal of creating a more meaningful set of measures centered around an episode of care or condition. MVPs are also intended to create a glidepath toward utilizing APMs.

The ACS is evaluating the final rule and will submit comments to CMS where appropriate. The final rule is available for public review, along with resources on its QPP provisions. Contact hjeffcoat@facs.org for more information.

CMS and ONC Release Proposed Rule to Establish Disincentives for Information Blocking

On October 30, the CMS and the Office of the National Coordinator for Health Information Technology (ONC) released a proposed rule, “21st Century Cures Act: Establishment of Disincentives for Health Care Providers That Have Committed Information Blocking.” The proposed rule would implement a provision in the 21st Century Cures Act stating that a healthcare provider who has committed information blocking will be subject to appropriate disincentives set forth through notice and comment rulemaking.

Previously, a final rule released in July established civil monetary penalties for information blocking committed by health information technology (IT) developers or other entities offering certified health IT, health information exchanges (HIE), or health information networks (HIN).

Information blocking is defined as a practice by an “actor”—healthcare providers, HIN, HIE, and certified health IT developer—that is likely to interfere with access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception. The new proposed rule focuses on healthcare providers and includes proposals that pertain to hospitals, critical access hospitals, individual clinicians, accountable care organizations (ACOs), and ACO participants.

The ACS is reviewing the proposed rule and will submit comments where appropriate. Contact hjeffcoat@facs.org for more information. 

In-Progress Federal Appropriations Bills Do Not Include Funding for HHS, Work Continues

Congress passed a short-term Continuing Resolution (CR) earlier this year to fund the government through November 17. Since then, both the House and Senate have made progress towards passage of individual fiscal year (FY) 2024 spending bills, but neither chamber has passed funding for the Department of Health and Human Services (HHS).

The House proposed appropriations bill includes wide-scale cuts to healthcare programs, including $3.8 billion cut for the NIH, $216 million cut to the National Cancer Institute, and eliminates funding for firearm injury prevention research at the CDC and NIH and the Agency for Healthcare Research and Quality (AHRQ).

In addition to the significant cuts proposed, several amendments have been offered. Amendments are not final and will be debated but are a good indication of priority areas for members of Congress. Of note, there is an amendment that would prevent funding from going to a hospital or other organization that runs a postgraduate physician training program, such as a residency, that provides training to refer, assist in, counsel, or perform abortions if the program mandates abortion training or penalizes a student who opts out of abortion training. 

Additionally, other amendments include prevention of federal funds from ever being used for firearm public health research and also contains new language that that would block HHS from declaring a public health emergency related to gun control.

Disagreements over the amendments and policy riders continue. With the November 17 deadline quickly approaching, another CR is inevitable, but the timing and scope remains unclear. Speaker of the House Mike Johnson has floated CR deadlines of January or April 2024. A CR that maintains current funding levels is the best-case scenario for ACS appropriations priorities. However, last year’s agreement to avoid a government shutdown and raise the debt limit stipulated a 1% cut across the board for all domestic spending if all 12 appropriations bills are not passed by January 1, 2024, so cuts to healthcare programs are likely.   

ACS Responds to House Budget Committee Health Care Task Force RFI

In October, the ACS submitted a response to a request for information (RFI) from the US House Budget Committee Health Care Task Force on proposals to improve outcomes and reduce federal healthcare spending in the budget.

The ACS response highlighted ongoing efforts to partner with Congress and the Biden Administration on improving access, affordability, and quality for surgical patients. The ACS also joined the Regulatory Relief Coalition in sending a response that focused on increasing transparency and oversight in Medicare Advantage plans’ over-utilization of prior authorization, which create unnecessary delays in patient care.  

House Committee Focuses on Rural Healthcare Access

Representative Jason Smith (R-MO), Chair of the House Ways and Means Committee, issued an RFI on improving access to healthcare in rural and underserved areas.

The ACS’s response to the RFI highlights legislative efforts to strengthen the surgical workforce, particularly in underserved areas, including establishing a general surgery workforce shortage area designation, reducing the burden of student loan debt on physicians, and reauthorizing the Health Professional Shortage Area Surgical Incentive Payment Program.

In addition, the response calls on Congress to stabilize the Medicare physician payment system and take steps to make more APMs available to physicians to encourage them to practice in underserved areas and aid the transition to value-based care.

The ACS is dedicated to improving access to healthcare in rural and underserved areas and will continue to work closely with Congress on these issues.

Dr. Jason Wilson Is 2023 ACS Advocate of the Year

Board-certified breast and melanoma surgeon Jason P. Wilson, MD, MBA, FACS, from Clearwater, Florida, was selected as the 2023 ACS Advocate of the Year. The honor was presented last month at the Annual Business Meeting of Members during Clinical Congress 2023 in Boston, Massachusetts.

Dr. Wilson was selected for his unwavering commitment to the College’s advocacy and political efforts. He is active in the ACS, having served as the Young Fellows Association (YFA) Liaison to the General Surgery Coding and Reimbursement Committee, the YFA Governing Council Advocacy Workgroup Chair, and on the SurgeonsPAC Board. He is active within the Florida Chapter as the current secretary, a Governor, and the State Chair of the Commission on Cancer.

Dr. Wilson is active within the Florida Medical Association, serving on the Council on Legislation and the Florida Medical Association PAC Board Executive Council. He also is medical director of surgical practices for the West Region with BayCare Medical Group.

As a surgeon who understands how critically important it is to continue to educate and engage with lawmakers in Washington, DC, to effect change and protect surgery’s voice in the halls of Congress, Dr. Wilson is an exemplary choice for Advocate of the Year.

Runners-up were also recognized for their outstanding participation:

• Marion C.W. Henry, MD, MPH, FACS, FAAP
• James C. Jeng, MD, FACS
• Daniel P. Schaefer, MD, FACS
• John H. Armstrong, MD, FACS
• Don Selzer, MD, FACS
• Alisha Reiss, MD, FACS
• Shannon Foster, MD, FACS