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

Federal and State Regulatory and Legislative Issues

Physician Groups Call Upon HHS to Provide Financial Relief to Providers

The American College of Surgeons, the American Medical Association, and other organizations that represent the health care community sent a letter April 7 to U.S. Department of Health and Human Services (HHS) Secretary Alex Azar requesting immediate financial assistance for physicians on the front lines during the COVID-19 pandemic. The letter notes that physicians across the country are taking heroic action to treat COVID-19 patients, providing ongoing care for patients with chronic conditions and urgent needs, and incurring significant financial losses due to postponing nonessential procedures and visits. Specifically, the organizations urge HHS to provide one month of revenue to each physician, nurse practitioner, and physician assistant enrolled in Medicare or Medicaid to account for financial losses and non-reimbursable expenses.

Congress intended to provide relief to physician practices that are suffering financial loss because of COVID-19 by designating funding in the Public Health and Social Services Emergency Fund in the Coronavirus Aid, Relief and Economic Security (CARES) Act. The statute requires HHS to interpret eligibility for the funding broadly to include all physicians who are experiencing revenue losses and non-reimbursable expenses as a result of the COVID-19 pandemic.

New Medicaid Waivers Empower States to Treat Pandemic Patients

The Centers for Medicare & Medicaid Services (CMS) approved its 44th 1135 waiver April 3, providing regulatory relief to states so that they can effectively ensure COVID-19 patients have access to care. The expedited application and approval process of these waivers empowers state governments to temporarily suspend prior authorization requirements, provide beneficiaries more time for appeals and fair hearings, relax rules to more quickly enroll providers, and allow out-of-state providers to bill for services delivered to Medicaid beneficiaries, among other allowances.

CMS also updated its frequently asked questions (FAQs) for state agencies that administer Medicaid and for the Children’s Health Insurance Program. The updated FAQs address eligibility requirements, benefit expansion, cost sharing, and financing.

Connecticut Governor Extends Liability Protections

Connecticut Gov. Ned Lamont issued an Executive Order April 5 that would extend protection from civil liability for actions or omissions in support of the state's COVID-19 Response. Under the Executive Order, any health care professional or health care facility is immune from civil liability for any injury or death allegedly sustained because of a health care practitioner’s or health care facility's acts or omissions undertaken in good faith while providing services in support of the state's COVID-19 response. These acts or omissions include those resulting from a lack of resources because of the COVID-19 pandemic, which thereby rendered the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required.

CMS Further Amends Extreme and Uncontrollable Circumstances Policies for the QPP 2019 Performance Year

The Centers for Medicare & Medicaid Services (CMS) March 30 released the Regulatory Revisions in Response to the COVID-19 Public Health Emergency (PHE) interim final rule with comment (IFC). The IFC includes updates to the Extreme and Uncontrollable Circumstances policies for the Medicare Shared Savings Program Accountable Care Organizations (ACOs) and the Merit-based Incentive Payment System (MIPS) for the 2019 performance year to implement additional relief for the Quality Payment Program (QPP) in conjunction with the data submission deadline extensions and other exemptions announced on March 23.

CMS previously originally extended the 2019 data submission deadline for both MIPS and Shared Savings Program ACOs from March 31, 2020, to April 30, 2020, and will apply the automatic extreme and uncontrollable circumstances policy to MIPS eligible clinicians who submitted 2019 MIPS data as an individual for less than two performance categories and who are not part of a group that submitted data on behalf of its clinicians. These individuals will automatically receive a final score equal to the 2019 performance threshold, which will result in a neutral payment adjustment on covered professional services furnished in the 2021 payment year.

The IFC amends the MIPS extreme and uncontrollable circumstances policy as it applies to groups, virtual groups, and individual clinicians who are ineligible for automatic reweighting for 2019. As written, this policy does not automatically apply to groups, virtual groups, or individuals who submitted data on two or more categories, but they may apply for reweighting of the performance categories based on extreme and uncontrollable circumstances. To provide additional relief for these groups, CMS extended the deadline to apply for reweighting of the quality, cost, promoting interoperability, and improvement activities performance categories based on extreme and uncontrollable circumstances from December 31, 2019, to April 30, 2020. CMS also modified the policy to create an exception for MIPS eligible clinicians or groups that already submitted data for any performance categories but demonstrate that they have been adversely affected by the PHE. Under this exemption, the performance categories still would be reweighted and the previously submitted data would not void the application for reweighting.

In the IFC, CMS also amended the extreme and uncontrollable circumstances policy of the Shared Savings Program ACOs. Historically, this policy has not allowed for the determination that an ACO had been impacted by an extreme and uncontrollable circumstance if the quality reporting period had been extended, as it was for the 2019 performance year. To offer additional relief, CMS revised this policy so that CMS can more easily waive quality reporting requirements for ACOs for 2019. ACOs that are unable to report quality because of extreme and uncontrollable circumstances will have their quality score set at the mean quality performance score for all Medicare Shared Savings Program (MSSP) ACOs for the applicable performance year. For ACOs that can completely report all quality measures, CMS will use the higher of the ACOs’ quality performance score or the mean quality performance score for all MSSP ACOs. In terms of adjusting the amount of shared losses an ACO must pay back to CMS, CMS also determined that 100 percent of assigned beneficiaries for all Shared Savings Program ACOs will be determined to reside in an area affected by an extreme and uncontrollable circumstance and that the number of affected months will begin with March and continue through the end of the PHE.

CMS acknowledges that these provisions may be insufficient to provide the necessary relief for physicians who are affected by the PHE, and the agency may explore further policy changes in future rulemaking.

The American College of Surgeons is tracking all regulations offering relief to surgeons who participate in CMS quality programs and will continue to share updates as necessary. CMS released a fact sheet that discusses the provisions within the interim final rule. The full IFC text can be accessed here. All additional questions can be directed to QualityDC@facs.org.