8-8-17 Legal Intelligencer article by Lamb McErlane PC partner Vasilios J. Kalogredis, and associate Katherine E. LaDow*

On June 20, 2017, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would alter the Quality Payment Program (the new Medicare value-based reimbursement system) as required by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). CMS hopes the proposed rule will simplify the Quality Payment Program (“the Program”), especially for small, independent, rural practices, while also ensuring fiscal sustainability and high-quality care within Medicare.

The Program, established under MACRA, began in 2017 with the objective of improving health outcomes, implementing fiscal responsibility, minimizing the burden of participation, and offering fair and transparent guidelines. The Program significantly changes how clinicians are paid within Medicare; the Program ended the Sustainable Growth Rate formula and allows health care providers to access tools, models, and resources to aid in patient care. Physicians can choose how they want to participate in the Program based on their practice size, specialty, location or patient population. The proposed rule would amend some existing requirements and it also contains new policies that would encourage participation in either Advanced Alternative Payment Models (APMs) or the Merit-based Incentive Payment System (MIPS).

As the Program moves into its second year of existence, CMS seeks to ensure that there are meaningful measurement mechanisms in place and the opportunity for improved patient outcomes while minimizing the burden on health care providers, improving coordination of care between providers, and supporting participation in Advanced APMs. CMS has proposed the following changes and updates to the Program for performance year 2018:

• Extending the revenue-based nominal amount standard, which was previously finalized through performance year 2018, for two additional years (through performance year 2020). This standard allows an AMP to meet the financial risk criterion to qualify as an Advanced AMP if participants are required to bear the total risk of at least 8% of their Medicare Part A and B revenue.
• Changing the nominal amount standard for Medical Home Models so that the minimum required amount of total risk increases more slowly.
• Providing more detail about how the All-Payer Combination Option will be implemented. This option allows clinicians to become Qualifying AMP Participants (QPs) through a combination of Medicare participation in Advanced APMs and participation in Other Payer Advances AMPs. This option will be available beginning in performance year 2019.
• Providing more detail on how eligible clinicians participating in selected AMPs will be assessed under the APM scoring standard. This special standard reduces the burden for certain AMP participants who do not qualify as QPs, and are therefore subject to MIPS.

Additionally, in order to assist and encourage clinicians to successfully participate in the Program, the Proposed Rule includes the following changes to support doctors and health care providers:

• Offering a Virtual Group participation option. Virtual Groups would be composed of solo practitioners and groups of 10 or fewer eligible clinicians, eligible to participate in MIPS, who come together “virtually” with at least 1 other such solo practitioner or group to participate in MIPS for a performance period of a year.
• Increasing the low-volume threshold so that more small practices and eligible clinicians in rural and Health Professional Shortage Areas (HPSAs) are exempt from MIPS participation.
• Continuing to allow the use of 2014 Edition CEHRT (Certified Electronic Health Record Technology), while encouraging the use of 2015 edition CEHRT.
• Adding bonus points in the scoring methodology for 1) caring for complex patients and 2) using the 2015 Edition CEHRT exclusively.
• Incorporating MIPS performance improvement in scoring quality performance.
• Incorporating the option to use facility-based scoring for facility-based clinicians.
• Adding a new hardship exception for clinicians in small practices under the Advancing Care Information performance category.
• Adding bonus points to the Final Score of clinicians in small practices.
• Continuing to award small practices 3 points for measures in the Quality performance category that do not meet data completeness requirements.

The 1058-page proposed rule is currently being reviewed and comments will be submitted to CMS prior to the Aug 21 deadline. Meanwhile, the American Medical Association has expressed its support for proposed changes.

To read the Proposed Rule, 42 CFR Part 414, visit: https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-13010.pdf.

*Katherine E. LaDow, Esquire, an associate with Lamb McErlane PC., contributed to this article.

Vasilios (“Bill”) J. Kalogredis is Chairman of Lamb McErlane’s Health Law Department. Bill has been practicing health law for over 40 years, representing exclusively physicians, dentists, group practices, other health care professionals and health care-related entities.

*Katherine (“Katie”) E. LaDow, Esquire, an associate with Lamb McErlane PC., contributed to this article. Katie is an associate in the litigation department. She concentrates her practice in the areas of state civil litigation, family law and health law.