American College Of Surgeons - Inspiring Quality: Highest Standards, Better Outcomes

American College of Surgeons response to Centers for Medicare and Medicaid Services request for information related to the Medicare Access and CHIP Reauthorization Act (MACRA)

Key Provisions of MACRA

  • Full and permanent repeal of the broken sustainable growth rate (SGR) formula used to calculate Medicare physician payments
  • Annual positive updates of 0.5 percent from July 2015 to 2019
  • Maintenance of fee-for-service as a payment option
  • Elimination of current-law penalties from the existing quality programs, such as the Physician Quality Reporting System (PQRS), Electronic Health Record (EHR) Meaningful-Use Program and the Value-Based Modifier (VBM) Program in 2019, and combining these programs into a single Merit-Based Incentive Payment System (MIPS). The merit-based program would be based on physicians achieving a threshold, or benchmark. Such a system makes it possible for all providers who reach these quality benchmarks to achieve positive incentives or payment updates
  • Incentives to move into advanced alternative-payment models (APMs), including 5 percent bonus payments from 2019 to 2024, and exemption from some other reporting requirements
  • Inclusion of appropriate pathways for surgeons to develop, test, and participate in APMs, such as the Clinical Affinity Groups (CAGs) in ACS’s Value-Based Update (VBU) proposal
  • Prohibits CMS from implementing its plan to transition 10- and 90-day global payments to 0-day global payments
  • Clarification that no standard or guideline created under federal health programs shall be construed as setting the standard of care for purposes of malpractice claims.

Frequently Asked Questions

What’s Next? The Future of Medicare Physician Payment in the Post-SGR Era

Stark Law

The ACS supports the in-office ancillary services exception (IOASE) to the “Stark” law and rejection of a proposal to restrict the IOASE for advanced imaging, radiation therapy, anatomic pathology, and physical therapy. View letters to the following congressional committees: Energy & Commerce, Finance, and Ways & Means.

The ACS supports the halt legislation that may provide audiologists with unlimited direct access to Medicare patients without a physician referral. H.R. 4035 and S. 2046 inappropriately provides audiologists with unlimited direct access to Medicare patients without a physician referral.

ACS Stark Law Comments: Stark Law in MACRA Implementation

Critical Access Hospital 96-Hour Rule

Surgeons working at Critical Access Hospitals (CAHs) have encountered new barriers to caring for their patients, and in some cases have been forced to send patients to other hospitals far from their homes to receive care.

To qualify for Medicare certification and to continue participating in Medicare, CAHs must meet minimum health and safety standards known as conditions of participation. In addition, Medicare also imposes certain conditions of payment that must be met for a CAH to receive Medicare Part A reimbursement.

The CAH 96-hour rule, as drafted in 1997, imposed both a condition of participation and a condition of payment for CAHs requiring that all patients be transferred or discharged within 96 hours. In 1999, Congress modified the condition of participation with the clear intent of providing more flexibility, by making the 96 hour limit an annual average rather than a requirement for each patient. The condition of payment, however, was not similarly modified.

Until recently, only the condition of participation, which requires that acute inpatient care does not exceed 96 hours on average per patient, had been enforced by CMS. The condition of payment, on the other hand, which states that the CAH will only receive payment if a physician certifies that a patient being admitted can be expected to be discharged or transferred within 96 hours, was virtually unknown until September 5, 2013, when CMS released a document on a related policy that indicated that the 96-hour rule would be more strictly enforced. This was the first time many CAHs and surgeons working at CAHs had heard of the 96-hour rule’s certification requirement.

Since then, some CAH administrators have begun requiring surgeons to sign certifications that their patients admitted as inpatients will be reasonably expected to be discharged or transferred within 96 hours. This is cause for concern because until now, many rural surgeons have commonly performed procedures in CAHs with expected stays possibly to exceed 4 days. And while an individual patient may stay more than 96 hours, CAHs have had no difficulty in maintaining the 96 hour average required by the CMS condition of participation.

In response to the recent CMS notice on enforcement of the 96 hour rule, Representative Adrian Smith (R-NE) and Senator Pat Roberts (R-KS) have introduced the Critical Access Hospital Relief Act (H.R. 169/S. 258). This bill would simply remove the 96 hour rule condition of payment, leaving in place the currently enforced 96 hour average patient stay required by the condition of participation. Both the House and Senate versions of this bill have gained broad bipartisan support.

H.R. 169 Letter of Support

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Medicare Audit Accountability Act

The Centers for Medicare & Medicaid Services (CMS) launched the Medicare Recovery Audit Contractors (RAC) program in 2010 to identify and prevent improper payments to Medicare providers. These contractors are paid a contingency fee for each claim they deny. Lawmakers and providers are concerned that the lack of accountability for RACs has led to inaccurate audit findings and a high volume of appeals. Rep. George Holding (R-NC) has introduced H.R. 2568, the Fair Medical Audits Act of 2015, which is intended to bring accountability to the RAC program. There is a growing concern by many physicians that the lack of accountability has resulted in inaccurate audit findings and a high volume of appeals. In fact, the Office of Inspector General (OIG) found that nearly half of the audits that are appealed by providers are overturned by CMS judges in favor of the provider.

The current lack of transparency in the audit process hampers these “good actors” in Medicare from understanding their errors and improving their future compliance rates. Providers are already struggling to adapt to evolving billing and payment rules in the Medicare program, and the flaws in the audit and appeals process impose additional significant administrative and financial burdens. H.R. 2568, introduced by Rep. George Holding (R-NC), addresses this lack of transparency and due process in the RAC audit and appeal process by:

  • Setting forth requirements for Medicare contractors including knowledge of ICD/CPT/HCPCS codes, and clinical experience
  • Penalizing contractors who have a certain percentage of their overpayment determinations overturned
  • Requiring contractors to reimburse certain documentation requests to reduce provider burdens, thus improving accountability
  • Promoting RAC education programs
  • Ensuring prompt payment to the provider by requiring at most 30 business days from the decision of reversal
  • Changing the “look back” period from four to two fiscal years

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