American College Of Surgeons - Inspiring Quality: Highest Standards, Better Outcomes

ACS Regulatory Relief Wins

Over the past year, the American College of Surgeons Division of Advocacy and Health Policy (ACS DAHP) has positioned the College at the forefront of the regulatory relief movement through efforts such as actively participating in all regulatory reform events hosted by the Department of Health & Human Services (HHS) and the Centers for Medicare & Medicaid (CMS); providing feedback to Congressional leaders on the impact of unnecessary regulations on patient care; sending a letter to federal health care officials asking for their help in easing administrative requirements; and responding to proposed regulations in order to highlight their inherent burdens and to offer recommendations to provide regulatory relief.

As a result of these actions, the ACS’ regulatory wins include:

CMS Reduces Administrative Burden Relative to Preoperative History and Physical Assessments

In response to comments received from the ACS and other organizations, CMS finalized a rule that eliminates policies that require physicians to conduct a complete medical history and physical assessment on each patient not more than 30 days before the date of procedure. CMS replaced this requirement with one that instead allows ambulatory surgical centers (ASC) to establish their own policy and guidelines for preoperative evaluations in conjunction with the operating surgeon, which is specific to the patient and the type of surgery being performed. CMS also made similar changes to requirements applicable to hospital outpatient departments.

In addition, CMS removed provisions requiring ASCs to have a written transfer agreement with a local hospital or ensuring that all physicians performing surgery in the ASC have admitting privileges in a local hospital. However, ASCs must continue to have an effective process for immediate transfers to a hospital for patients requiring emergency medical care beyond the capabilities of the ASC. The Agency also decreased its requirements for health care facilities to conduct an annual review of their emergency preparedness programs to a biennial review.

2018 Merit-based Incentive Payment System (MIPS)

MIPS Participation

  • Exclude physicians from being required to participate in MIPS if they see less than 200 Medicare Part B patients or bill less than $90,000 for Part B services

MIPS Scoring

  • Extended flexibility to set the MIPS performance threshold—the final score a physician must meet in order to avoid a payment penalty under the MIPS program—at a value other than the national mean or median composite performance score
     Read more about ACS’ advocacy activities related to the MIPS performance threshold.

    The ACS strongly advocated for provisions included in the Bipartisan Budget Act (BBA) of 2018 (signed into law on February 9), which added greater flexibility to the MIPS program. Under the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015, CMS would have been required to set the performance threshold for avoiding a MIPS penalty in 2019 at either the mean or median performance score of all MIPS participants. The BBA extended CMS’ flexibility to establish a performance threshold at an amount other than the mean or median for an additional three years.
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  • Additional assistance and bonus opportunities under MIPS for small practices and physicians who treat complex patients

Advancing Care Information Performance Category

  • Flexibility to continue to use 2014 edition certified electronic health record technology (CEHRT) and earn a bonus for using 2015 edition CEHRT to report Advancing Care Information (ACI) measures
  • New ACI hardship exceptions for small practices and physicians with electronic health records (EHRs) that are no longer certified for use due to patient safety and security issues

Quality Performance Category

  • Physicians only required to report six quality measures—a decrease from the nine-measure requirement under the Physician Quality Reporting System (PQRS) program

Cost Category

  • Slower transition to counting cost measures in the MIPS total score during reporting year 2019–2021
     Read more about ACS’ advocacy activities related to the MIPS cost category.

    The ACS strongly advocated for provisions included in the Bipartisan Budget Act (BBA) of 2018 (signed into law on February 9), which added greater flexibility to the MIPS program. During reporting years 2017 and 2018, CMS was given the authority under the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015 to weight cost measures—which include total per capita costs for all attributed Medicare beneficiaries as well as Medicare spending per beneficiary—at zero for 2017 and 10 percent in 2018. Beginning in 2019, CMS would have been required to count cost at 30 percent of the total MIPS score. The BBA extended CMS’ flexibility to count cost measures at between 10 percent and 30 percent of the total MIPS score for an additional three years.
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Physician Payment Issues

  • Avoidance of significant cuts to surgeons’ payments based on flawed malpractice (MP) insurance premium data
     Read more about how the ACS helped prevent payment reductions for surgeons.

    CMS pays providers for their services according to the Physician Fee Schedule (PFS), under which payments are determined based on the relative amount of physician work, practice expense, and MP insurance associated with a specific service.

    In the 2018 PFS, CMS proposed to calculate reimbursement rates for MP insurance using data that the ACS believes are incomplete and would unfairly reduce payments for surgeons. To protect surgeons from inappropriate payment cuts, the College led a coalition of 21 surgical specialty societies in an effort to review and respond to CMS’ proposed calculation methodology. On September 28, 2017, the ACS sent a letter to CMS and HHS outlining the coalition’s concerns with the insufficient data used to determine how providers are reimbursed for MP insurance coverage. 

    In a second letter to CMS, the ACS reiterated that CMS’ proposed methodology to calculate MP insurance reimbursement rates may overpay providers whose practices furnish more nonsurgical services and underpay providers whose practices furnish more surgical services. The College urged CMS to collect more robust data on MP insurance to ensure that payments are determined accurately for all medical specialties.

    In response to the issues raised by the ACS, CMS suspended its proposed changes to the MP reimbursement calculation methodology and acknowledged that the data collected for some specialties—particularly surgical specialties—were not sufficient enough to determine appropriate payment rates. Thanks to the ACS’ advocacy efforts, surgeons will not experience significant payment cuts due to flawed processes and data.
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  • Increased focus on CMS data collection and review methodologies in order to accurately calculate physician reimbursement for MP insurance
  • Reporting of patient relationship categories and codes finalized as voluntary instead of mandatory for all 2018 claims
  • “Low priority” designation for the enforcement of the critical access hospital (CAH) 96-hour certification requirement in medical record reviews
     Read more about the ACS’ efforts to mitigate the impact of the 96-hour certification requirement on the clinical workflow and patient access to care
    CAHs are expected to comply with specific rules in order to participate in and receive payments from the Medicare program. One such rule applied to CAHs is the 96-hour certification requirement, a provision under which physicians must attest that a patient admitted to a CAH may reasonably be discharged within 96 hours. Inpatient CAH stays exceeding 96 hours are not eligible for payment under Medicare Part A.

    The 96-hour rule, which is a federal law mandated by Congress, has imposed significant burdens on surgeons, particularly for those who provide services to rural Medicare beneficiaries. The ACS believes that strict compliance with this requirement may violate the Emergency Medical Treatment and Labor Act (EMTALA) and limit patients’ access to essential care. In 2013, the College developed a three-pronged strategy to mitigate the effects of the 96-hour certification requirement: (1) work with CMS to explore administrative options to offer relief from the rule, (2) develop a legislative solution to repeal the rule, and (3) provide education to surgeons about the rule.

    The ACS has utilized this strategy and remained active in advocacy efforts related to eliminating the 96-hour rule over the past six years.  The College’s grassroots campaigns initiated several attempts at legislative repeal of the rule and allowed Fellows to engage with their Congressional representatives.

    Following ACS discussions with HHS and CMS leadership about regulatory relief, the 96-hour certification requirement received heightened scrutiny at the regulatory level, and in the 2018 Inpatient Prospective Payment System, CMS enacted a policy that makes the 96-hour rule a low priority for medical record reviews occurring on or after October 1, 2017. CMS stated that it will not require Medicare auditors to conduct medical record reviews of the 96-hour certification requirement absent any evidence of potential fraud, waste, or abuse.
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Health Information Technology Issues

  • Efforts initiated to modernize evaluation and management (E/M) guidelines to better align E/M coding and documentation with EHRs and the current practice of medicine
  • Removal of an outdated requirement that directed HHS to continue to make Meaningful Use (MU) standards more stringent over time
     Read more about MU standards and the ACS’ efforts to address this requirement.

    The MU program was introduced by Congress as part of the Health Information Technology for Economic and Clinical Health (HITECH) Act to encourage physicians to show "meaningful use" of a CEHRT. MU sets specific CEHRT objectives that physicians and hospitals must meet to qualify for participation in CMS incentive programs. The HITECH Act currently directs the HHS Secretary to make MU standards more stringent over time.

    The College believed that increasingly stringent MU requirements would not lead to improvements in patient care, and were unnecessary and unfair to both patients and providers. The Bipartisan Budget Act (BBA) of 2018, which was signed into law on February 9, included language from H.R. 3120, removing the HITECH Act provision requiring HHS to increase the stringency of MU standards. The ACS issued a support letter for H.R. 3120 and was pleased to see its inclusion in the BBA.
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