October 19, 2018

October 19, 2018

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October 17, 2018

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New CMS Proposed Rule Would Refine MACRA

On June 20, the Centers for Medicare & Medicaid Services (CMS) posted a prepublication version of a proposed rule implementing changes to payment for Medicare Part B professional services authorized under the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). The proposal would modify provisions of the November 4, 2016 final rule implementing MACRA.

The proposed rule outlines CMS’s proposed approach to continued implementation of the two tracks of the Quality Payment Program (QPP), the Merit-Based Incentive System (MIPS) and the Alternative Payment Models (APM), as required by the bipartisan MACRA legislation. The proposal sets forth refinements to MACRA’s implementation for 2018 and future years in areas that are generally designed to further minimize the MACRA program’s burden and continue a “go slow” approach to implementation.

The proposed rule would further refine how MACRA’s MIPS participation alternative would subject certain Medicare Part B providers to positive or negative adjustments to their Medicare fee for service reimbursement in 2020.

Key topics and proposals related to MIPS include:

  • Proposals to allow solo practitioners and groups of 10 or fewer eligible clinicians to come together “virtually” to participate in MIPS

  • Modifying the “pick-your-pace” rules from the 2017 performance year to increase the “performance threshold” under which clinicians/practices are held harmless from downside penalties, and maintaining, with slight modifications, many other transition year policies relating to MIPS program. This includes further transitioning MIPS scoring by potentially continuing to score the MIPS “cost” measure at 0 percent, proposing new options for facility-based MIPS reporting/scoring based on the Hospital Value-Based Purchasing program, and providing credit for performance improvement on select MIPS measures

  • Allowing MIPS reporting through multiple data submission mechanisms

  • Changes to the MIPS Advancing Care Information category to allow more hardship exceptions and scoring exclusions, and scoring bonuses for high-complexity patients and practices with fewer than 15 eligible clinicians

The proposed rule also outlines CMS’ proposed refinements regarding entities that can qualify as Advanced APMs that bear financial risk, with attention to the consideration of commercial and other Medicare program risk-bearing arrangements in connection with such determinations. Under MACRA, providers participating in an Advanced APM will not be subject to MIPS payment adjustments, but they will instead have the opportunity to receive additional bonus payments and Medicare fee schedule updates in future years. Key APM participation track themes in the proposed rule include: 

  • Allowing CPC+ participants to be scored under the more generous “medical home” APM rules, even if they have more than 50 clinicians, and relaxing the medical home risk requirements beginning in the 2018 performance year 

  • Outlining a number of significant operational proposals to implement the Other Payer APM/All-Payer QP standards that would provide additional means to meet Advanced APM financial risk requirements and provide additional flexibility relative to determination of Other Payer Advanced APMs

The 1,058 page pre-publication version of the proposed rule is available here. The proposed rule is scheduled to be published in the Federal Register on June 30. Polsinelli will publish a more detailed analysis of the proposed rule, including analysis of potential implications and issues that may be of interest to physicians and other clinicians, health systems, clinically integrated networks and other organizations in early July. We will also be conducting a live webinar on the proposal this summer. Comments on the rule may be provided up to August 21, 2017

© Polsinelli PC, Polsinelli LLP in California


About this Author

Neal Shah, Polsinelli Law Firm, Healthcare Law Attorney

Neal Shah applies his experience in government, private practice, and health care delivery to help identify practical legal solutions to complex regulatory and transactional problems, including:

  • Helping clients comply with the Stark Law, Anti-Kickback Statute, and similar federal and state fraud and abuse laws
  • Establishing and operating Accountable Care Organizations and other coordinated care arrangements
  • Completing self-disclosures of over payments of fraud and abuse liability, including through the CMS Voluntary Self-Referral Disclosure Protocol (SRDP) and...
Sidney Welch, Polsinelli PC, Alternative Payment Models lawyer, Health Care Matters Attorney

Sidney Welch works with clients to best position them in the explosion of health care change. In addition to serving as trusted advisor to large specialty physician practices and technology companies across the country in their everyday operational, transactional, regulatory, and litigation matters, Sidney provides counsel to clients regarding tomorrow’s health care. These cutting edge issues in the area of health care innovation include:

  • Alternative payment models

  • Collaborative health care delivery 

  • Mobile and eHealth 

  • Telehealth 

  • Precision medicine 

  • Health care technology 

  • Privacy and security 

  • Data aggregation and analytics