Posted in Other CMS DevelopmentsCMS has finally posted the Medicare clinical laboratory fee schedule (CLFS) rates for 2019, which are based on private payer data as mandated by the Protecting Access to Medicare Act of 2014 (PAMA). The files reflect payment rate changes announced in a December 14, 2019 CMS transmittal, which also discussed policy changes including revisions to the definition of “applicable laboratory.”
Posted in Other CMS DevelopmentsCMS has posted calendar year 2019 Medicare fee schedule rates for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS). The 2019 update factor is 2.3%, although other pricing policies are applied in specific circumstances. For instance, adjusted fee schedule amounts for former competitive bidding areas are based on single payment amounts in effect December 31, 2018 increased by 2.5%. Additional details are provided in a CMS transmittal.
Posted in Health Care Industry EventsCMS is hosting a Special Open Door Forum on December 18, 2018 to discuss changes to Healthcare Common Procedure Coding System (HCPCS) policies for the 2019-2020 coding cycle. As previously reported, CMS expects the changes to increase transparency in the HCPCS coding process. The Special Open Door Forum will provide stakeholders with an opportunity to ask questions regarding the HCPCS changes.
The Office for Civil Rights (OCR) is requesting public input on reforms to Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules to promote care coordination and the health system’s transformation to value-based health care while protecting the privacy and security of individuals’ protected health information (PHI). Specifically, in a request for information (RFI) to be published on December 14, 2018, OCR seeks feedback on ways current policy could be modified the meet the following goals:
Additional background information and more detailed questions are presented in the RFI. Comments are due February 11, 2019.
Posted in Other CMS DevelopmentsResponding to longstanding industry criticisms, the Centers for Medicare & Medicaid Services (CMS) has announced a number of changes to the Healthcare Common Procedure Coding System (HCPCS) coding process for 2019. Most of the new policies are intended to increase transparency regarding CMS HCPCS coding decisions. The one substantive change of note is that CMS is eliminating its requirement that items other than drugs and biologicals demonstrate 3% market volume (although CMS will still require applicants to submit specified marketing data to support a new code). With regard to improving transparency and clarity in the HCPCS decision process, CMS is:
According to CMS, its changes to the HCPCS process seek to “facilitate the adoption of new technologies while balancing the burden on payers and providers and considers program needs.” We would note, however, that these modifications to the application process do not address broader concerns that CMS’s standard for new codes is too rigid, particularly for medical devices, which results in insufficiently-granular codes and imposes a barrier to adoption of new medical technologies.
CMS is currently accepting applications for HCPCS codes that would go into effect January 1, 2020; the application deadline is January 7, 2019.
Posted in Other CMS DevelopmentsIn a transmittal issued last week, the Centers for Medicare & Medicaid Services (CMS) extended newly-revised supervision rules for certain diagnostic tests paid via the Medicare Physician Fee Schedule (MPFS) to services paid under the Outpatient Prospective Payment System (OPPS) for hospital outpatient departments. The transmittal relates to services performed by a registered radiologist assistant who is certified and registered by the American Registry of Radiologic Technologists, or a radiology practitioner assistant who is certified by the Certification Board for Radiology Practitioner Assistants (RAs/RPAs).
Effective January 1, 2019, diagnostic tests paid under the MPFS that would otherwise require a “personal” level of supervision (Level 3, in the room throughout the procedure), may be furnished under a “direct” level of physician supervision to the extent permitted by state law and state scope of practice regulations for tests performed by RAs/RPAs. This policy was included in the final MPFS rule for calendar year (CY) 2019, which we summarized here. There are currently 28 states that are reported to have such statutes or regulations relating to RAs/RPAs. CMS has followed up with additional guidance applying the new supervision requirements to tests performed by RA/RPAs for Medicare hospital outpatients. Transmittal 251 (Change Request 11043), dated November 30, 2018, updates the Medicare Benefit Policy Manual to provide that the technical component of all tests, except for Medicare inpatients, that must be performed under the personal (in the room) supervision of a physician, may be performed under direct physician supervision (defined below) if those services are performed by RAs/RPAs who are authorized to perform the test under state law. Similar to the newly-revised supervision rules for diagnostic tests paid under the MPFS, the application of this new requirement to Medicare hospital outpatients becomes effective January 1, 2019.
The meaning of “direct supervision” differs in the MPFS and OPPS rules. For testing services performed for Medicare beneficiaries in physician offices and IDTFs under the MPFS, “direct supervision” is defined to mean that the supervising physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of that test. For tests performed for Medicare hospital outpatients in an on-campus or off-campus outpatient department of the hospital under the OPPS, “direct supervision” means that the physician must be immediately available to furnish assistance and direction throughout the performance of the procedure. The OPPS does not impose a proximity requirement so long as the supervising physician can be immediately available to furnish assistance and direction.
It should be noted that the MPFS Final Rule – now also applicable to Medicare hospital outpatients – only impacts the supervision requirements associated with an RA’s/RPA’s performance of diagnostic tests. It does not allow an RA/RPA to perform radiology interventional/surgical procedures or otherwise modify existing restrictions on an RA’s/RPA’s scope of services. Additionally, even if state law permits RAs/RPAs to perform various non-test radiology procedures, the new Medicare rule is limited to the scope of physician supervision of diagnostic tests.
Although the new rules relax the standard for physician supervision of tests when an RA/RPA performs certain diagnostic tests, unchanged are CMS rules that state that only fully licensed physicians may supervise tests. RAs/RPAs may perform a diagnostic test if permitted within their state scope of licensure, but they may not supervise technologists who perform diagnostic tests. Such supervision must be performed by a physician.
The Health Resources and Services Administration (HRSA) has announced that it will implement its January 5, 2017 340B drug pricing program rule on January 1, 2019. The oft-delayed final rule addresses: (i) the calculation of the 340B “ceiling price” that may be charged to covered entities; (ii) the substantive standards applicable to civil monetary penalties (CMPs); and (iii) the procedures applicable to the imposition of CMPs. In the preamble, HRSA indicated that it will “assess the need for further rulemaking and guidance after the rule is in effect.” HRSA also stated that it plans to release the 340B ceiling pricing reporting system “shortly,” and the agency will ensure all impacted stakeholders receive education and training on the reporting system. Separately, HRSA projects that it will publish 340B ceiling prices on April 1, 2019.
Posted in Other HHS DevelopmentsHealth and Human Services Deputy Secretary Eric Hargan has selected 15 health industry and investment professionals to participate in the Deputy Secretary’s Innovation and Investment Summit (DSIIS), which will hold its inaugural meeting on December 18, 2018. As previously reported, this initiative is intended to provide a forum for private sector and government experts to discuss ways to facilitate more investment and accelerated innovation in health care; the group will not be recommending HHS health care investments.
Posted in Other CMS DevelopmentsCMS has released its final 2019 Medicare clinical laboratory fee schedule (CLFS) payment determinations for new and reconsidered clinical lab test codes. Specifically, CMS finalized the basis for establishing the payment rate (crosswalking or gapfilling), along with the agency’s rationale for the decision.
Posted in Department of Health and Human ServicesThe Centers for Medicare & Medicaid Services (CMS) has issued its final Medicare physician fee schedule (PFS) rule for calendar year (CY) 2019. In addition to updating rates for physician services, the rule adopts changes to numerous other Medicare Part B policies. Highlights of the final rule include the following:
For information regarding the AUC implementation schedule, see our previous post. Continue Reading
Posted in Department of Health and Human ServicesThe Centers for Medicare & Medicaid Services (CMS) has finalized Medicare Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) rates and policies for calendar year 2019. Notably, CMS adopted some – but not all – of its proposed policies intended to promote more “site-neutral payments” for different types of providers.
Hospital Outpatient Provisions
CMS adopted a 1.35% update to Medicare OPPS rates for 2019, with the update reduced by 2.0% for hospitals that fail to meet quality reporting requirements. Payment changes for individual procedures vary.
In the final rule, CMS reiterated its concern that “current payment incentives, rather than patient acuity or medical necessity, are affecting site-of-service decision-making.” To that end, CMS adopted several policies intended to promote site neutrality, particularly with regard to off-campus hospital provider-based departments (PBD) that are “excepted” under section 603 of the Bipartisan Budget Act of 2015. Section 603 provides that effective January 1, 2017 certain off-campus PBDs are generally paid under the physician fee schedule (PFS), rather than the typically higher-paying OPPS, unless an exception applies. For 2019, CMS finalized policies to:
CMS did not adopt its proposal to revise payment when an excepted PBD expands into new lines of service, although CMS stated that it will monitor expansion of services in off-campus PBDs and, if appropriate, the agency may propose future rulemaking in this area. More broadly, CMS repeats its interest in future rulemaking “to systematically control for unnecessary increases in the volume of other hospital outpatient department services,” while maintaining “beneficiary access to new innovations.”
Other policies adopted in the final rule include the following: Continue Reading
Medicare end-stage renal disease (ESRD) prospective payment system (PPS) payments are expected to increase by 1.6% — or about $210 million — in calendar year (CY) 2019 under the final rule published on November 14, 2018. The Centers for Medicare & Medicaid Services (CMS) has adopted a CY 2019 ESRD PPS base rate of $235.27, up from $232.37 in 2018. This rate is based on a 1.3% productivity-adjusted market basket increase and the application of a wage index budget-neutrality adjustment factor of 0.999506. CMS also expects that outlier policy changes in the final rule will increase payments by 0.3%.
The final rule updates a number of other ESRD policies, including: expanded Transitional Drug Add-on Payment Adjustment (TDAPA) eligibility and a revised payment basis for new renal dialysis drugs and biological products beginning January 1, 2020; revised low-volume payment adjustment regulations; an update to the acute kidney injury dialysis rate to $235.27 (the same as the CY 2019 ESRD PPS base rate); and modifications to ESRD Quality Incentive Program (QIP) reporting requirements and measures.
Furthermore, this rule included significant changes to Medicare reimbursement policies pertaining to durable medical equipment, prosthetics, orthotics and supplies; these policies are summarized in a separate post.
The Trump Administration is considering a controversial plan, the International Pricing Index (IPI) model, which would tie Medicare Part B prescription drug payment rates to amounts paid for such drugs in other developed countries. The Centers for Medicare and Medicaid Services’ proposed IPI model also would replace the current “buy and bill” system for Part B drugs with a new drug distribution and billing model. Comments on the proposal are due December 31, 2018.
Reed Smith has prepared a client alert analyzing the IPI model; the alert is available here.
The Centers for Medicare & Medicaid Services has confirmed that it expects to have a “temporary gap” in the durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) competitive bidding program (CBP) during calendar years 2010-2020. As a result, beginning January 1, 2019, Medicare beneficiaries may receive DMEPOS items from any Medicare-enrolled supplier until such time as new CBP contracts go into effect. When competitive bidding resumes, it will be under new program rules, as discussed below. Furthermore, CMS has announced that it intends to include in the next round of the CBP the following new product categories: ventilators, off-the-shelf back braces, and off-the-shelf knee braces. CMS has posted the specific HCPCS codes it intends to subject to bidding within these new product categories, and the agency will accept comments on these codes through December 3, 2018. [Note — CMS subsequently extended the comment deadline until December 17, 2018.]
Future Competitive Bidding Program Rules. In a final rule scheduled to be published on November 14, 2018, CMS adopted a number of “market-oriented reforms” and technical policy changes for future rounds of competitive bidding. According to CMS, the new rules will simplify the bidding process, preserve beneficiary access to items and services, and make the DMEPOS CBP more sustainable.
Of particular note, CMS has finalized its proposed “lead item pricing” methodology. Rather than bid on each item/HCPCS code in a product category for each competitive bidding area (CBA), suppliers will submit a single bid for the item in the product category designated by CMS to have the highest total nationwide Medicare allowed charges. CMS will calculate a single payment amount (SPA) for that lead item in the CBA based on the highest amount bid within the winning bids, rather than the median of winning bids. Thus under this methodology, suppliers in the winning range will be paid at least what they bid for the lead item, which CMS expects “will have a positive economic impact on bidding suppliers.”
Under the final rule, the SPAs for non-lead items will be based on the relative difference in the fee schedule amounts for the lead and non-lead items (prior to fee schedule adjustments based on CBP pricing). CMS provides an example of a non-lead item such as a wheelchair battery with an average 2015 fee schedule amount of $107.25, and a lead item (Group 2, captains chair power wheelchair) with an average 2015 fee schedule amount of $578.51. The ratio for these items would be computed by dividing $107.25 by $578.51 to get 0.18539. If the maximum winning bid/SPA for the power wheelchair (lead item) is $433.88, the SPA for the wheelchair battery (non-lead item) would be computed by multiplying $433.88 by 0.18539 to generate an SPA of $80.44.
Fee Schedule Updates. In the Final Rule, CMS adopted without change its three proposed methodologies for updating the DMEPOS fee schedule, depending on the geographic area in which the items and services were furnished: Continue Reading
The Centers for Medicare & Medicaid Services’ (CMS) final calendar year 2019 Medicare home health prospective payment system (HH PPS) rule boosts rates by 2.2% next year and ushers in broader case-mix methodology reforms for 2020.
With regard to the 2019 update, the final rule increases HH PPS rates by 2.2% ($420 million) compared with 2018 levels. The rate increase is based on a home health agency (HHA) market basket update of 3.0%, minus a 0.8 percentage point multifactor productivity adjustment, with a 0.1% increase tied to outlier payment spending and an offsetting 0.1% decrease stemming from a new statutory rural add-on classification policy. The final 2019 national, standardized 60-day episode payment rate is $3,154.27, compared with the 2018 rate of $3,039.64; the rate for an HHA that does not submit required quality data is $3,092.55.
The final rule establishes a new temporary transitional payment for home infusion therapy services in 2019 and 2020, in advance of implementation of a new home infusion therapy benefit in 2021, as mandated by the 21st Century Cures Act. This benefit covers professional services, including nursing services, patient training and education, and monitoring services associated with administering infusion drugs using an item of durable medical equipment in a patient’s home. CMS defines “infusion drug administration calendar day” for purposes of the temporary transitional payment to mean the day on which home infusion therapy services are furnished by skilled professionals in the individual’s home on the day of infusion drug administration. The skilled services provided on such day must be so inherently complex that they can only be safely and effectively performed by, or under the supervision of, professional or technical personnel.
CMS acknowledges stakeholder concerns regarding the scope of this definition, including criticism that the definition does not encompass professional services that may be provided outside of the home. CMS intends to monitor the effects of the new definition on access to care; if warranted and within the limits of the agency’s statutory authority, CMS could engage in additional rulemaking or issue additional guidance regarding this definition. CMS invites comments on its interpretation and its potential impact on access to care; comments will be accepted until December 31, 2018. In a related policy, the final rule finalizes new safety and accreditation standards for home infusion therapy suppliers.
The final rule includes numerous other proposals impacting home health benefit and payment policies beginning in 2019. For instance, the rule defines remote patient monitoring for the Medicare home health benefit and adds the cost of remote patient monitoring as an allowable HHA administrative cost. The rule also eliminates the current requirement that the certifying physician must estimate how much longer skilled services will be needed when recertifying patient eligibility for home health care. In addition, the final rule updates Home Health Quality Reporting Program policies, including removal of seven quality measures, and it modifies Home Health Value-Based Purchasing Model measures and the performance scoring methodology.
More sweeping changes to the HH PPS go into effect in 2020 under the final rule, as mandated by the Bipartisan Budget Act of 2018. Specifically, the final rule implements a new “Patient-Driven Groupings Model” (PDGM) effective January 1, 2020, which is intended to base HHA reimbursement on patient clinical characteristics, rather than therapy service thresholds. The model uses 30-day episodes of care, rather than the current 60-day episode, and will be implemented in a budget-neutral manner. CMS intends to provide additional guidance and training to HHAs and other stakeholders, including through manual updates, articles, and provider calls, “to ensure a smooth transition between the current payment model and the PDGM.”
After multiple implementation delays, the Health Resources and Services Administration (HRSA) now seeks to move up the effective date of its January 5, 2017 rule on 340B drug pricing program ceiling price calculation and civil monetary penalties (CMPs). By way of background, HRSA most recently delayed implementation of the 2017 rule because the Trump Administration was “developing new comprehensive policies to address the rising costs of prescription drugs.” However, in a proposed rule scheduled to be published on November 2, 2018, HRSA states that it has “determined that the finalization of the 340B ceiling price and civil monetary penalty rule will not interfere with the Department’s development of these comprehensive policies.” Thus HRSA now proposes to “cease any further delay” and change the effective date from July 1, 2019, to January 1, 2019.
HRSA is providing a comment period of only 21 days, which HRSA deems “sufficient to provide affected parties the opportunity to provide their views as this rule is uncomplicated and simply proposes to change an effective date,” and because “affected parties have had multiple opportunities to provide comments on the appropriate effective date of the January 5, 2017 final [rule].” Note that the extended implementation delay has also been the subject of a lawsuit by hospital associations and other stakeholders.
Posted in Legislative DevelopmentsPresident Trump has just signed into law HR 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act. The bipartisan legislation includes almost 200 provisions intended to strengthen opioid prevention and treatment efforts and bolster law enforcement tools.
Among many other things, the new law:
In addition, HR 6 makes it illegal to knowingly and willfully pay or receive remuneration in return for referring an individual to a recovery home, clinical treatment facility, or laboratory, with respect to services covered by a health care benefit program in or affecting interstate or foreign commerce. The provision includes certain exceptions intended to protect “legitimate referrals,” and it does not apply to conduct that is prohibited under 42 U.S.C. 1320a–7b (the Federal Anti-Kickback Statute). Penalties for violations include fines of up to $200,000 and/or 10 years in prison for each occurrence.
Also notably, HR 6 expands the Open Payments program to require manufacturers to report certain payments or transfers of value to the following additional types of practitioners: physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and certified nurse midwives. This provision applies to reports submitted beginning January 1, 2022.
As part of the Trump Administration’s fall regulatory agenda, the Department of Health and Human Services (HHS) emphasizes its commitment to “reducing and streamlining its regulations and improving the transparency, flexibility, and accountability of its regulatory processes.” One of the specific deregulatory initiatives noted is a future proposed rule to remove outdated Medicare and Medicaid conditions of participation for long-term care providers.
Other top regulatory priorities in the HHS Statement of Regulatory Priorities for Fiscal Year 2019 include: combatting the opioid crisis; increasing oversight of individual health insurance markets; lowering prescription drug costs; and moving to a value-based healthcare system (which could include “Stark” physician self-referral and HIPAA policy changes).
The agenda also includes the anticipated timing of almost 200 pending and future HHS regulatory actions, the majority of which are Food and Drug Administration and Centers for Medicare & Medicaid Services regulations.
Posted in Other CMS DevelopmentsIn an effort to “modernize the Medicare program and bring the latest technologies and innovations to Medicare beneficiaries,” CMS has announced revisions to the local coverage determination (LCD) process. Specifically, under authority provided in the 21st Century Cures Act and taking into account stakeholder feedback, CMS has issued Program Integrity Manual (PIM) changes intended to promote transparency, clarity, and consistency in the development of LCDs. As provided in the 21st Century Cures Act, CMS is requiring Medicare administrative contractors (MACs) to post information about LCDs under development on their websites at least 45 days before the effective date of such a determination. The information must include (1) the determination in its entirety, (2) when and where the proposed LCD was first made public, (3) hyperlinks to the proposed LCD and a response to public comments, (4) a summary of evidence that was considered in the development of the LCD, and (5) an explanation of the rationale that supports the determination. Beyond this statutory mandate, the PIM changes include numerous other policies intended to help “ensure that companies can get therapies and devices to patients more efficiently.” For instance, CMS is:
The implementation date for the new provisions is January 8, 2019. CMS invites interested stakeholders to submit feedback on their experiences with the revised LCD process to LCDmanual@cms.hhs.gov; the agency will consider making additional revisions based on the feedback it receives.
Looking ahead, the Trump Administration’s fall 2018 regulatory agenda indicates that the CMS intends to issue a proposed rule early in 2019 on Medicare coverage of innovative technologies. Specifically, the proposed rule would modify the Medicare coverage process in order “to streamline coverage of breakthrough technologies [that] have the potential to improve patient health outcomes and quality of care.” CMS currently anticipates releasing the rule in March 2019.
Posted in Other CMS DevelopmentsThe Centers for Medicare & Medicaid Services (CMS) has announced that 1,299 entities have signed agreements to participate in the Administration’s new Bundled Payments for Care Improvement (BPCI) Advanced episode payment model, which runs from October 1, 2018 through December 31, 2023. According to CMS, BPCI Advanced participants include 1,547 Medicare providers and suppliers (832 acute hospitals and 715 physician groups) in 49 states plus Washington, DC and Puerto Rico.
BPCI Advanced will test whether bundled payments for 29 inpatient and 3 outpatient clinical episodes will lead to reduced Medicare expenditures while improving quality of care for Medicare beneficiaries. As previously reported, BPCI Advanced builds on the original BPCI initiative, with a number of key differences. For instance, while both versions of the model seek to incentivize providers to furnish services more efficiently during an episode of care while maintaining quality, BPCI Advanced participants must assume downside financial risk from the outset of the model performance period. BPCI Advanced also includes different clinical episodes than BPCI (including new outpatient episodes), and it qualifies as an Advanced Alternative Payment Model under the physician Quality Payment Program.
CMS has posted the names of the BPCI Advanced participants and an extensive collection of educational and background materials about the new model on its BPCI Advanced web page.
