McDermottPlus is pleased to bring you Regs & Eggs, a weekly Regulatory Affairs blog by Jeffrey Davis.
Click here to subscribe to future blog posts.
November 3, 2023 – Hungry for some Regs & Eggs? Well, you are in luck, because this week, the Regs & Eggs buffet is open, with your choice of eggs made any style. Enough regs were released this week to feed an entire family—and the McDermottPlus team is here with +Insights and other helpful analyses to help you digest them all (be sure to check this website in the next few days as new +insights pop up!). While I usually dig deep into the regs, this week I’m just going to explain what’s on the menu and let you choose which of the regs to sample.
Scrambled: The Physician Fee Schedule Final Reg
If you want your eggs scrambled, then try out the calendar year (CY) 2024 Physician Fee Schedule (PFS) final reg. The Centers for Medicare & Medicaid Services (CMS) released this major reg on November 2, 2023. CMS finalized most of the proposals as proposed. Of note is a 3.4% cut to overall Medicare reimbursement for clinicians, which is similar to what was proposed. Despite objections to the proposed utilization assumption estimates for a new add-on code for complexity, G2211, CMS decided to finalize the code and the utilization assumptions, leading to an approximate 2% negative adjustment to the PFS conversion factor to preserve budget neutrality.
Beyond the conversion factor cut, CMS finalized many of its proposals around extending telehealth flexibilities, including creating a new process for adding telehealth codes to the Medicare telehealth list. CMS also will establish new payments for community health integration services, social determinants of health risk assessment and principal illness navigation services provided by social workers, community health workers and other auxiliary personnel. In addition, CMS is finalizing the following policies:
Finally, CMS is finalizing some, but not all, of its proposed modifications to the Merit-Based Incentive Payment System (MIPS), the Medicare quality and cost performance program for clinicians. Importantly, based on feedback from stakeholders, CMS decided to maintain the 2024 MIPS performance threshold at 75 points in 2024 rather than increasing it to 82 points as proposed. While CMS had projected that over half of clinicians would receive a penalty with an 82-point threshold, CMS now projects that only 22% of clinicians will receive a penalty with the threshold remaining at 75 points.
We are working on a comprehensive summary of the reg, so stay tuned!
Over Easy: The Outpatient Prospective Payment System Final Reg
While there is nothing necessarily easy about the CY 2024 Outpatient Prospective Payment System (OPPS) final reg, the cooks over at CMS finalized most of the policies as they were proposed in the OPPS proposed reg:
McDermottPlus is also working on a detailed summary of this reg as well!
Fried: 340B Remedy Final Reg
CMS served up fried eggs in the release of the 340B remedy final reg on November 2, 2023. Many commenters objected to CMS’s proposals, and despite these comments, CMS has decided to finalize its proposals mostly as proposed.
Specifically, in response to a 2022 Supreme Court of the United States decision that invalidated CMS’s reduction to 340B payments, CMS is providing a one-time, lump-sum refund to hospitals that had payments reduced because of the now-invalidated policy. This payment will account for the difference in what was paid to the hospitals and what should have been paid had the cut not been implemented. CMS will implement the payment cuts remedy in a budget-neutral manner, by reducing the OPPS conversion factor by 0.5% starting in CY 2026 (a one-year delay from the proposed starting date of 2025). CMS estimates that it would take 16 years to recoup all of the additional payments that were made from 2018 through September 27, 2022.
Soft-Boiled: Provider Information Blocking Disincentives Proposed Reg
On November 1, 2023, CMS issued a proposed reg that would establish disincentives for providers who violate the information blocking requirements of the 21st Century Cures Act. While these requirements have been in effect for a while, so far there have been no penalties for providers whom the US Department of Health and Human Services Office of Inspector General (OIG) has determined to have committed information blocking. The proposed reg also provides information related to OIG’s investigation of claims of information blocking and proposes to establish a process for sharing information with the public about healthcare providers that OIG determines have committed information blocking.
With respect to the disincentives, CMS proposes penalties for some, but not all, providers that are subject to the information blocking requirements:
Comments on the proposed rule are due on January 2, 2024.
For additional information, see this blog post by CMS and the Office of the National Coordinator for Health Information Technology (ONC). ONC and CMS will host an information session on the proposed rule on November 15, 2023. You can access fact sheets and other resources and sign up for the information session on the ONC website.
Hard-Boiled: No Surprises Act Independent Dispute Resolution Operations Proposed Reg
Lastly, if you want a hard-boiled egg, try the extremely technical independent dispute resolution (IDR) proposed reg that the US Departments of Health and Human Services, Labor and the Treasury (the Departments) released on October 27, 2023. This McDermottPlus +Insight (written by my colleague Kristen O’Brien and me) highlights the major proposals in the reg. Please read this +Insight and let us know if you have any questions!
The Departments proposed many process changes that are meant to facilitate negotiations prior to the IDR process, help reduce the number of ineligible disputes that initiating parties put forth, and help speed up payment determinations by certified IDR entities (arbiters). The Departments also took into account stakeholder feedback about how to broaden batching requirements. However, since the Departments are cooks in this kitchen, they didn’t have to give everyone everything they wanted—and they didn’t. Some batching policies that specialties (especially emergency medicine) wanted were not granted.
Interestingly, the Departments also proposed many changes to the structure and collection of the administrative fee, even though they issued a proposed reg on the IDR fees just a short while ago. These proposed changes seem to override the previous proposals in the long run, so many of the comments that stakeholders submitted on the previous reg may ultimately be moot. With respect to this particular policy, the Departments seem to have overcooked the hardboiled egg in their previous reg and therefore decided to make a fresh batch of hard-boiled eggs with this reg.
Comments are due on this proposed reg by January 2, 2024. The Departments expect most of the policies to go into effect by either August 2024 or January 2025. Health plans, however, are expected to register in the IDR portal (which will help providers identify specific health plans) as soon as the final reg is issued.
**************************************************************************************
Now that you have the menu, it’s time to dig in! As you do so, let us at McDermottPlus know if you need help digesting these regs and understanding how their full implications may affect your organization.
Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!
For more information, please contact Jeffrey Davis. To access the full archive of Regs & Eggs, visit the American College of Emergency Physicians.
To subscribe to Regs & Eggs, please CLICK HERE.
