Legal Intelligencer article by Lamb McErlane Health Law Chair Vasilios J. (Bill) Kalogredis with contributions from attorney Artyom (Art) Sharbatyan.

In October 2022, the Centers for Medicare & Medicaid Services (CMS) expanded the archive for Doctors and Clinicians (DAC) on the Provider Data Catalog (PDC) to provide access to Merit-based Incentive Payment System (MIPS) program performance data from all previous years that were publicly reported on Care Compare and the PDC.

MIPS was established by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), and came into effect on January 1, 2017, the first year of the Quality Payment Program (QPP). MIPS is one way to participate in the Quality Payment Program and it determines Medicare payment adjustments by using a composite performance score. Based on that score eligible clinicians (ECs) may receive a payment bonus, a payment penalty, or no payment adjustment. Under MIPS, ECs may earn said payment adjustments for professional services covered under Part B based on the evaluation of an EC’s performance across different performance categories. These categories focus on quality and cost of the patient care provided by ECs, improvements to the clinical care processes and patient engagement, and the use of certified electronic health record technology (CEHRT) by the ECs to support and promote the electronic exchange of health information.

Before now, since the inception of MIPS in 2017, CMS has made available to the public only one year’s worth of program performance data at a time. With this expansion CMS provides performance data and demographic information of all previous years by enabling users to have access to all publicly reported MIPS measure and attestation performance figures, along with category and final scores, from the beginning of the MIPS program to the most recent performance year. In expanding the archive, CMS has reacted to the concerns of clinicians, researchers, and other interested parties who desired access to all historic publicly reported MIPS performance data.

In its October Fact Sheet, CMS provided a disclaimer under which it cautioned users to use awareness when utilizing historical data when drawing year-to-year comparisons as certain aspects of the MIPS program make it inappropriate to make such comparisons.

Given the phased approach to eligibility the types of clinicians eligible for MIPS increased over time, and eligibility exclusions changed. Besides, individual clinicians’ MIPS eligibility status can change from year to year. Clinicians can meet their MIPS obligation by submitting their individual MIPS performance, being included in a group’s reporting of their aggregate performance or being included in an Alternative Payment Model’s (APM’s) reporting of its aggregate performance. Clinicians have options regarding the measures for which they choose to report their performance as well as can change their selections from year to year. Additionally, as a result of reliability testing, measures may be available one year, but not another. Lastly, clinicians and groups significantly impacted by circumstances out of their control during a performance year (such as during the 2020 Pandemic) can submit an extreme and uncontrollable circumstances (EUC) MIPS exception application, which may result in the reweighting of one or more MIPS performance categories.

CMS gives access to its official data that is used on the Medicare Care Compare website and directories through the CMS web site (can be found by searching MIPS data archives on www.cms.gov). The goal is to make the necessary data readily available. Users can view the data, download its individual datasets in a variety of formats directly after performing a prefiltered search based on the topic of interest, as well as access such data through an Application Programming Interface (API), which lets developers connect other applications to the data in real time.

If a provider is eligible for MIPS for a given performance year the provider generally has to report activity data collected during the performance year. Traditional MIPS is the original framework available to the ECs for collecting and reporting data. This data is then used to evaluate EC’s performance. It is measured across 4 areas – quality, improvement activities, promoting interoperability, and cost. The performance across the MIPS performance categories, each with a specific weight, will result in a MIPS final score of 0 to 100 points. This final score will determine if the payment adjustment applied to EC’s covered professional services is negative, neutral, or positive.

Quality

The Quality performance category is worth 30 percent of the MIPS final composite score for 2022. It is 10 percentage points lower than that of 2021. In certain situations, an EC may be excluded from a specific performance category, and the weight of that category may be shifted to the Quality category. The quality performance category measures health care processes, outcomes, and patient experiences of their care.

Improvement Activities

The Improvement Activities (IA) performance category evaluates how ECs improve their care processes, enhance patient engagement in care and improve access to care. The participation in activities is intended to improve clinical practice. The IA category generally accounts for 15 percent of the MIPS final score. For 2022 calendar year, IAs have a minimum of a continuous 90-day performance period unless otherwise provided in the activity description. The number of activities an EC is required to report depends on various factors such as the size of the practice and whether the practice is in a rural or underserved area.

Promoting Interoperability

The Promoting Interoperability (PI) category of MIPS replaces the Medicare EHR Incentive Program, also known as Meaningful Use, and is responsible for 25% of MIPS final score. PI promotes patient engagement and the electronic exchange of health information using CEHRT. The participating ECs report a single set of PI objectives and measures.

However, there are specific circumstances where clinicians are not required to report this category. In such instances, unless the clinician or group chooses to submit PI data, CMS will generally shift the weight of the PI performance category to the Quality category.

Cost

The Cost category replaces the Medicare Value Modifier Program for eligible clinicians and is responsible for 30% of MIPS final score. The category weight is 10 percent higher for 2022 performance year compared to that of 2021. This performance category assesses the cost of the patient care provided by the EC. It calculates cost measures, based on EC’s Medicare claims, to determine the cost of the care provided to certain patients.

The Cost performance category is intended to assess MIPS ECs on their ability to manage their patients’ use of healthcare resources under the Medicare program. For performance year 2022, Cost performance category assesses the following measures:

• The overall cost of care provided to Medicare patients, with a focus on the primary care they received
• The cost of services related to a hospital stay provided to Medicare patients
• Costs for items and services provided during 23 procedural and condition-based episodes of care for Medicare patients.

The Future of MIPS

MIPS has drawn criticism from physicians and stakeholders for being overly complicated. In an effort to simplify program requirements and lessen the burden on clinicians, CMS has reviewed MIPS and tried to address the concerns by removing unnecessary extraneous components over the past few years. It tries to move away from siloed reporting of measures and activities towards focused sets of measures and activities that are more meaningful to a clinician’s practice, specialty, or public health priority. Additionally, beginning in the 2023 performance year, clinicians will also have the option to report via the MIPS Value Pathway (MVP) framework instead of traditional MIPS.

Since the introduction of QPP in 2017, CMS has gradually updated MIPS participation tracks in order to recognize the distinctive variation in clinician practices, further refine program requirements, respond to stakeholder feedback, lessen reporting burden, encourage meaningful participation, and enhance patient outcomes.

In addition to achieving better health outcomes and lowering costs for patients, CMS anticipates that MVPs will result in comparable performance data that helps patients make more informed healthcare decisions. Traditional MIPS participation is still an option for clinicians, and CMS has not set a date for the final switch when it will no longer be accessible.

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Vasilios J. (Bill) Kalogredis, Esq. has been exclusively advising physicians, dentists, and other health care professionals and their businesses as to contractual, regulatory and transactional matters for over 45 years. He is Chairman of Lamb McErlane PC’s Health Law Department. bkalogredis@lambmcerlane.com. 610-701-4402.

*Artyom (Art) Sharbatyan, Esq., an associate in Lamb McErlane’s Health Law Department, contributed to this article. Art has extensive real life practical experience in the healthcare field with particular concentration in dental practice groups. He represents healthcare providers in their business and legal needs at Lamb McErlane, PC’s Health Law Department. asharbatyan@lambmcerlane.com; 610-701-4416.

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