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Iowa Healthcare Law Blog

News & Updates on Legal, Policy, & Business Issues Facing the Health Care Industry in Iowa


Posted in MACRA - Medicare Access and CHIP Reauthorization Act


A new Congress has convened, a new administration is at the helm, and repeal of the Affordable Care Act (ACA) is on the docket, an action of consequence for, among other things, the Medicare Shared Savings Program (MSSP), primary care medical homes, and other Medicare-developed alternative payment models (APMs). On the other hand, the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), establishing a Medicare Part B Quality Payment Program (QPP), is bipartisan legislation of little debate. The American Medical Association, the American Hospital Association, and over 100 other health care entities have appealed to the Administration to preserve value-based care.  https://www.premierinc.com/wp-content/uploads/2017/01/Jan-25-letter1-24-17-Administration.pdf. So, even in the midst of ACA uncertainty, MACRA and its QPP are moving forward. The Centers for Medicare and Medicaid Services (CMS), by rule, has developed a QPP structure that went live on January 1, 2017.

Physicians and other QPP-eligible clinicians need to act in calendar year (CY) 2017, to avoid a 4% Part B payment reduction and to be eligible for positive payment adjustments or incentives in CY 2019. Unless excluded from the QPP (in which event, no reductions in Part B payment are made and no payment rewards are earned), Medicare Part B enrolled physicians and other clinicians identified by CMS as QPP-eligible are required to participate in one of two QPP tracks – MIPS (Merit-based Incentive Payment System) or Advanced APM (Alternative Payment Model). Clinicians participating in MIPS report performance either individually or through their group or APM Entity. Clinicians participating in the QPP through an Advanced APM do not report directly to CMS, rather, they participate in the quality processes of their Advanced APM. Not all APMs are “advanced” under the QPP so limited numbers of clinicians will participate through this QPP track; most clinicians will participate through MIPS.

Recognizing that it takes a lot to understand and prepare for QPP performance and reporting, CMS has established three MIPS “Pick Your Pace” performance options for CY 2017: minimal (“test”), partial, and full. Eligible clinicians or groups participating in MIPS can avoid a 4% Part B payment reduction in CY 2019 by successfully participating at the minimal (testing) level, requiring performance and reporting on only one Quality measure or one Improvement Activity or the required measures in Advancing Care Information on one Medicare patient once sometime in CY 2017; selecting performance on one Quality measure has the added advantage of permissible reporting through claims or a certified EHR system, two reporting options not available in the other MIPS performance categories. Eligible clinicians wanting to earn positive Part B payment adjustments in CY 2019 should consider either partial or full participation beginning no later than October 2, 2017. Exceptional performance bonuses are best assured through full MIPS reporting.

There are three key QPP program cycles to keep in mind: 1) MIPS performance and Advanced APM participation begin in CY 2017; 2) MIPS reporting begins in CY 2018, ending no later than March 31, 2018; and 3) MIPS Part B payment adjustments and bonuses and Advanced APM incentives payments occur in CY 2019. Some clinicians and their practice groups may be set up and ready to go. Certainly clinicians and groups reporting under legacy quality program like the Physician Quality Resource Program (PQRS), the Value-based Payment Modifier (VM), and the Electronic Health Record (EHR) Incentive Program for Eligible Professionals will be familiar with aspects of the QPP, yet there are differences.

Physicians and other eligible clinicians who have not yet started might ask themselves the following —

  • Am I eligible to participate in the QPP? All Medicare-enrolled physicians are eligible to participate in CY 2017 but not all other Medicare-enrolled clinicians are. Eligible clinicians must participate, unless excluded, or suffer a 4% reduction in Part B payments in CY 2019.
  • Even if eligible, am I excluded from QPP participation in CY 2017? How and when will I know if I am excluded? For most otherwise eligible clinicians, QPP exclusion will occur in failing to meet MIPS Medicare Part B patient and billing thresholds. CMS uses historical Part B data to determine low-volume status and expects to have information available on an eligible clinician’s CY 2017 MIPS low-volume exclusion status before mid-year 2017.
  • Will I be participating in the QPP through an Advanced APM? If so, you will not be participating in MIPS unless you fail to meet Advanced APM substantial participation thresholds as a “qualifying participant” (QP) and as a “partial qualifying participant” (Partial QP), in which case you are required to participate in MIPS.
  • If I am participating in the QPP through MIPS, will I report as an individual or as part of a group or APM Entity? Eligible clinicians cannot participate in MIPS both as an individual and through a group or APM Entity.
  • What level of MIPS “Pick Your Pace” reporting – minimal (testing), partial, or full — will I select for CY 2017? Deciding as early as possible gives you time to prepare and, if you so elect, to participate at more than the minimal level, thereby not only avoiding a negative Part B payment reduction in CY 2019 but also increasing your chances for a positive payment adjustment and maybe even a bonus.
  • What measures will I report? MIPS clinicians and groups will need to take time to become familiar with the four MIPS performance categories, their measures, and their scoring potential. Eligible clinicians in Advanced APMs perform and report through their Advanced APMs.
  • What mechanism will I use to report MIPS performance? Does that reporting mechanism require prior approval, certification, or registration? Again, time is needed to become familiar with allowed reporting mechanisms for each MIPS performance category and to assure that reporting mechanisms you prefer to use have met any required prior certifications, registrations, or approvals.

Some physicians and other eligible clinicians may be asking whether to participate in the QPP at all. Eligible clinicians are not required to participate in the QPP as a condition of Medicare Part B enrollment. Again, though, not participating in CY 2017 will result in a 4% reduction in Medicare Part B payment in CY 2019 unless a physician or other eligible clinician is otherwise excluded from the QPP. This blog writer encourages QPP participation in CY 2017. If not excluded and if not participating in an Advanced APM, consider participation in MIPS at least at the minimal level to avoid the 4% Part B payment reduction in CY 2019 and to become familiar with the mechanics of the QPP. The QPP appears here to stay and the stakes get higher each year.

This posting hopes to introduce its readers to the QPP, particularly emphasizing MIPS. Many QPP details and logistics necessarily are left unaddressed. The following interrelated QPP arenas are touched upon –

CMS updates its QPP home page regularly at https://qpp.cms.gov/.  Assistance also is available by contacting the QPP Help Desk at (866) 288-8292, TTY: 1-877-715-6222, or emailing at QPP@cms.hhs.gov. CMS continues to post its QPP webinar materials and sources for technical assistance. Comments in CMS’ final MACRA rule, published in the Federal Register on November 4, 2016, provide a wealth of information; that rule is available from the QPP website as well as at https://www.gpo.gov/fdsys/pkg/FR-2016-11-04/pdf/2016-25240.pdf.

Disclaimer: Below is what this writer knows and understands about the QPP at the time of this writing. If CMS explains or advises differently, follow CMS!! This blog post does not constitute and should not be read as giving legal advice.


The QPP’s two tracks – MIPS and Advanced APM

To avoid Part B payment reductions, eligible clinicians not otherwise excluded from the QPP must participate in one of these two tracks. Because the Advanced APM track is more narrowly focused on those alternative payment models (APMs) that meet CMS’ criteria for accomplishing MACRA’s value-based payment goals, most eligible clinicians will participate in MIPS. No clinician can participate in both tracks at the same time.

MIPS – very generally

  • MIPS is a Medicare Part B payment adjustment program tied to individual clinician, group, or APM Entity group scores received on measurements or activities in four designated performance categories.
  • Eligible clinicians participate in MIPS by default unless they qualify for and participate through an Advanced APM, in which event they cannot participate in MIPS.
  • Clinicians participating through MIPS are “MIPS eligible clinicians.”
  • MIPS eligible clinicians perform and report data to CMS either individually or through their practice group or APM Entity group. If reporting performance data as an individual, an eligible clinician’s Part B payment adjustment percentage will be based on individual performance. If reporting performance data as a group or APM Entity group, each eligible clinician within the group will receive a percentage Medicare Part B payment adjustment reflecting the group’s performance. If a group elects MIPS participation as a group, all eligible clinicians must participate as a part of the group except where some members of the group may be in an APM Entity group that elects to MIPS participation as an APM group. On the other hand, a group may elect MIPS participation on an individual basis, in which event all eligible clinicians in the group would participate as individuals except for members who may be participating in an APM within the group.
  • Eligible clinicians may also participate in MIPS through an APM Entity group that is a MIPS APM. MIPS APMs are a subset of APM Entity groups that meet CMS criteria to merit MIPS APM special performance scoring. Most, if not all, Advanced APMs also have been designated by CMS as MIPS APMs, but not all MIPS APMs are Advanced APMs, including these CMS-designated MIPS APMs: Medicare Shared Savings Program (MSSP) Track 1, the one-sided track of the Oncology Care Model (OCM), and the one-sided risk arrangement in the Comprehensive End-Stage Renal Disease Care (CEC) model. Eligible clinicians participating in an Advanced APM who fail to meet both Advanced APM “substantial participation” thresholds as a QP and Partial QP then must participate in MIPS; if their Advanced APM also is a MIPS APM, they will be scored as MIPS participants according to the MIPS APM scoring standard. CMS’ December 29, 2016, APM chart, including Advanced APMs and MIPS APMs, is at https://qpp.cms.gov/docs/QPP_Advanced_APMs_in_2017.pdf. Special MIPS scoring also is accorded to CMS-recognized Medical Home Models with MIPS-participating eligible clinicians.

Advanced APM – very generally

  • The Advanced APM track encourages clinicians to shift from fee-for-service to delivery models in which clinicians assume risk for cost and quality.
  • Not all APMs qualify as Advanced APMs for QPP incentive payment purposes. APMs considered by CMS to be “advanced” are involved in rigorous care improvement activities and participants in Advanced APMs take on financial risk for potential losses, are accountable for performance on meaningful quality metrics, and must use certified EHR technology. Advanced APMs include expanded medical home models under the CMS Innovation Center.
  • For CY 2017 and CY 2018, eligible clinicians can participate in the Advanced APM track only through a Medicare APM designated by CMS as “Advanced.” Beginning in CY 2019, eligible clinicians also will be able to participate in the Advanced APM track through Other Payer APMs recognized by CMS as “Advanced.” An “Other Payer Advanced APM” is a payment arrangement with a payer other than Medicare that meets CMS criteria for designation as an Advanced APM
  • To be eligible to receive an Advanced APM incentive payment, eligible clinicians in Advanced APMs must “qualify” by meeting CMS-designated Advanced APM “substantial participation” thresholds, in which event they become Advanced APM QPs. QPs then earn the 5% Medicare Part B incentive by participating in their Advanced APMs. QPs are excluded from participation in MIPS.
  • In certain instances, eligible clinicians in Advanced APMs will fall short of the “substantial participation” thresholds for becoming a QP but will satisfy CMS-designated participation thresholds for becoming a Partial QP. Partial QPs cannot earn Advanced APM incentives but have the option to switch to MIPS and potentially earn a positive MIPS Part B payment adjustment.
  • Participants in an Advanced APM who fail to satisfy Advance APM participation thresholds to become either a QP or a Partial QP must shift to MIPS.
  • Eligible clinicians switching to MIPS from an Advanced APM that also is a MIPS APM will be scored for MIPS performance consistent with the MIPS APM scoring standard.

CMS estimates that in CY 2017, 70,000-120,000 eligible clinicians will participate in the QPP through an Advanced APM while 592,000-642,000 eligible clinicians will participate through MIPS.

Program periods, payment periods, QP performance periods, and incentive payment base periods

  • The QPP’s “program periods,” sometimes referenced as “performance periods,” are calendar years for gathering and recording performance data. CY 2017 is the QPP’s first program period.
  • The QPP’s “payment periods” are calendar years in which MIPS Part B payment adjustments are made, MIPS exceptional performance bonuses are awarded, and Advanced APM incentives are paid. CY 2019 is the QPP’s first payment period.
  • “Low volume threshold determination periods” are time frames established by CMS for assessing an eligible clinician or group’s satisfaction of Medicare Part B patient and billing thresholds for participation in MIPS. The determination period covers a 24-month time frame with two segments for CMS analysis of historical claims data, one during an initial 12-month period prior to a program performance period followed by another 12-month period during the performance period to capture additional clinicians or groups whose thresholds were not examined in the initial period. For purposes of determining CY 2017 MIPS low-volume threshold exclusions, CMS will initially examine twelve months of claims data starting from September 1, 2015 to August 31, 2016, with a 60-day claims run out; the second determination period will look to twelve months of claims data starting from September 1, 2016 to August 31, 2017, with a 60-day claims run out.
  • “QP performance periods” are time frames established by CMS for assessing an eligible clinician’s level of participation in an Advanced APM to determine whether that clinician “substantially participated” in the Advanced APM, thereby earning QP or Partial QP designation. The QP performance period is January 1-August 31 of a calendar year that is two years prior to the QPP incentive payment period. The first QP performance period for determining whether eligible clinicians participating in an Advanced APM satisfy QP participation thresholds necessary to receive the 5% incentive in CY 2019 is January 1–August 31, 2017.
  • Advanced APM “incentive payment base periods” are calendar years immediately preceding each payment period used by CMS to calculate the amount of lump sum 5% incentive payments to be paid to QPs in an Advanced APM. CY 2018 is the QPP’s first Advanced APM incentive payment base period for calculating the lump sum 5% incentive payment amount to be paid to QPs in CY 2019.

Eligible Part B clinicians and groups

Only certain identified categories of Medicare enrolled clinicians receiving Part B payments are able to participate in the QPP.

  • For the first two years of the QPP (program periods CY 2017 and CY 2018 and payment periods CY 2019 and CY 2020), clinicians eligible to participate in the QPP include physicians, a term defined by Medicare to include MDs, DOs, podiatrists, dentists, chiropractors, and optometrists; physician assistants; nurse practitioners; clinical nurse specialists; and CRNAs.
  • Practice groups of these eligible clinicians who bill through Medicare Part B also are able to participate. For QPP and MIPS purposes, a “group” is defined by CMS as a single TIN with two or more eligible clinicians (including at least one MIPS-eligible clinician) as identified by their individual NPIs who have reassigned their billing rights to the TIN.
  • Eligible clinicians may also participate in MIPS through an APM Entity group. An “APM Entity” is defined by CMS to mean an entity that participates in an APM or payment arrangement with a non-Medicare payer through direct arrangement or as provided by law. An “APM Entity group” means a group of eligible clinicians participating in an APM Entity.
  • Other Medicare-enrolled clinicians (i.e., physical and occupational therapists, qualified speech language pathologists, qualified audiologists) are scheduled to become eligible for QPP participation beginning with program period CY 2019 and payment period CY 2021, but may voluntarily report performance in CY 2017 and CY 2018 to become familiar with the QPP.

CMS has set forth MIPS identifiers it will use for eligible clinicians, groups, and APMs. Eligible clinicians, groups, and APM Entity groups do not apply to CMS for identifiers.

  • For individual clinicians, CMS will utilize an identifier based off of the clinician’s NPI and each TIN under which the clinician submits Part B billings and has reassigned benefits. MIPS performance will be assessed separately for each TIN under which the eligible clinician bills. CMS, however, will use a single TIN/NPI clinician identifier for MIPS percentage payment adjustment purposes.
  • For groups, CMS will use the group’s billing TIN. Again, once the group’s performance has been scored, CMS will apply the MIPS percentage payment adjustment to each TIN/NPI in the group.
  • For APM Entity groups, CMS will use a unique combination of the APM identifier, the APM Entity identifier, TIN, and the NPIs for each participating eligible clinician.

CMS will continue to give consideration to identifiers and their appropriate use for MIPS performance and payment adjustment purposes.

QPP-eligible clinicians excluded from MIPS or ineligible for Advanced APM incentives

Eligible clinicians are excluded from MIPS and, as such, have no MIPS performance and reporting obligations and face no negative Part B payment adjustments for any program and payment period in which 1) they are newly enrolled in Medicare, 2) they fail to meet MIPS Medicare Part B patient and billing thresholds, or 3) they are participating as QPs or Partial QPs in an Advanced APM.  Similarly, eligible clinicians participating in an Advanced APM will receive no Advanced APM incentive for any program and payment period in which they fail to meet Advanced APM substantial Medicare Part B patient and billing participation thresholds for becoming an Advanced APM qualifying participant (QP); if they also fail to meet Partial QP participation thresholds, they must then switch to and participate in MIPS.

MIPS exclusion for QPP-eligible clinicians newly enrolled in Medicare. Physicians and other clinicians otherwise eligible to participate in the QPP are excluded from MIPS during the program performance year in which they first become enrolled in Medicare Part B through PECOS.

  • “Newly-enrolled” references clinicians who have never before submitted Medicare claims as an individual, as an entity, as part of a physician group, or under a different billing number or TIN.
  • To illustrate this exclusion, a physician newly enrolled through PECOS in April of 2017 cannot (and need not) participate in MIPS in CY 2017; Medicare Part B payment to that physician in CY 2019 will not be adjusted, either upward or downward. That same physician would be eligible (and required) to participate in MIPS in CY 2018 to avoid downward payment adjustments in CY 2020, unless otherwise excluded; for instance, a physician newly enrolled in CY 2017 may not have yet achieved sufficient Part B volume to avoid low-volume MIPS exclusion for CY 2018.
  • CMS intends to conduct quarterly determinations throughout a program performance period to inform newly-enrolled clinicians of their ineligibility to participate in MIPS during that particular program and payment period.
  • Newly-enrolled Medicare Part B clinicians excluded from MIPS are not excluded, however, from participating in an Advanced APM during their enrollment year.*

MIPS exclusion for low-volume QPP-eligible clinicians or groups. In order to participate in MIPS during a program performance period (i.e., CY 2017), a MIPS eligible clinician or group must both bill Medicare Part B more than $30,000 allowed charges and provide care to more than 100 Part B-enrolled beneficiaries during a low-volume threshold determination period set by CMS in rule.

  • Eligible clinicians or groups not meeting either or both of these volume requirements are not eligible to participate in MIPS during that program period and will not be subject to Part B payment adjustments either upward or downward in the corresponding MIPS payment period.
  • For most eligible clinicians and groups, the CY 2017 low-volume threshold determination period is September 1, 2015-August 31, 2016. CMS will use claims data to determine whether a MIPS eligible clinician or group of such clinicians is excluded from MIPS and intends to provide a NPI-level look-up feature to allow MIPS eligible clinicians and groups to check on their Part B patient and billing amounts to determine if they fail to meet volume participation requirements prior to or shortly after the start of each program period. For CY 2017, CMS anticipates having low-volume threshold information available before mid-year.
  • CMS determines low volume threshold exclusions for individual eligible clinicians at the TIN/NPI level and for each TIN/NPI held by the clinician. CMS determines low volume threshold exclusions for eligible groups of clinicians at the TIN level.
  • Individual QPP eligible clinicians determined by CMS to be low-volume providers may still be required to participate in MIPS but through their practice groups if CMS determines that the individual’s practice group satisfies MIPS volume threshold requirements. In the same way, if a group fails to meet MIPS threshold requirements but an eligible clinician within the group satisfies the threshold requirements under another TIN/NPI combination, the clinician is required to participate in MIPS under that combination.
  • CMS estimates that approximately 32% of clinicians eligible to participate in the QPP through MIPS in CY 2017 will not meet MIPS volume requirements; these low volume threshold clinicians represent approximately 5% of Medicare Part B spending.
  • The GAO is examining the feasibility of financial risk pooling for smaller physician practices and is slated to release a report of its findings in 2017. The report is to focus on the challenges small, rural, and underserved area medical practices face in participating in QPP-like programs. In addition, CMS continues to examine and seek input on the feasibility of “virtual groups” of no more than 10 otherwise unrelated clinicians reporting MIPS performance data; eligible clinicians now excluded from MIPS may be able to participate in future years by joining virtual groups.

MIPS exclusion of eligible clinicians participating in the QPP through an Advanced APM. Eligible clinicians or clinician groups participating in the QPP through an Advanced APM and meeting Advanced APM “substantial participation “ thresholds required to become a QP are excluded from participating in MIPS. These participants would receive incentive payments for their quality efforts through the Advanced APM.

Advanced APM “significant participation” threshold requirements. Eligible clinicians participating in the QPP through an Advanced APM earn incentive payments by substantially participating in that Advanced APM as evidenced by meeting designated QP Medicare Part B patient or payment thresholds.  Eligible clinicians in an Advanced APM who fail to satisfy either of these QP threshold requirements are ineligible to receive Advanced APM incentive payments.

  • To meet Advanced APM “substantial participation” thresholds for performance periods CY 2017 and CY 2018, eligible clinicians must see 20% of their Medicare Part B patients (“patient count method”) or receive 25% of their Medicare Part B payments (“payment amount method”) through their Advanced APM. Clinicians who satisfy either of these Advanced APM participation thresholds in a performance period become QPs and are eligible to receive the Advanced APM 5% incentive payment in the corresponding payment period (CY 2019, CY 2020). Advanced APM substantial participation thresholds increase in future program and payment periods.
  • Whether Advanced APM substantial participation thresholds are met is determined by CMS at the entity level rather than at the individual eligible clinician level unless an exception applies allowing individual determination. Under this approach, CMS will evaluate the aggregate experience of all eligible clinicians listed as participating in an Advanced APM to determine whether the aggregate experience satisfies at least one of the substantial participation thresholds. If yes, all eligible clinicians are considered QPs and will receive the 5% Part B payment incentive. If no, an eligible clinician may still be able to meet Advanced APM substantial participation thresholds through another Advanced APM in which that eligible clinician participates or if the eligible clinician’s combined participation in two or more Advanced APMs satisfies threshold requirements.
  • Eligible clinicians participating in an Advanced APM but not meeting threshold requirements for becoming a QP may be able to satisfy lower threshold requirements set by CMS for becoming a “Partial QP.” For CY 2017 and CY 2018, the Partial QP threshold requires eligible clinicians to either see 20% of their Medicare Part B patients or receive 10% of their Medicare Part B payments through their Advanced APM. Partial QPs are not eligible for the 5% Advanced APM incentive but may elect to opt-in to MIPS. The Advanced APM makes that election on behalf of all of its eligible clinicians. If the Advanced APM elects MIPS participation and is a MIPS APM, QPs will be subject to MIPS APM scoring. If the Advanced APM elects not to participate in MIPS, Partial QPs would not face negative MIPS Part B payment adjustments for that program and payment period across all TINs associated with the Partial QP’s NPI.
  • Eligible clinicians in an Advanced APM not meeting either QP or Partial QP substantial participation thresholds in a given performance period must participate in MIPS and if the Advanced APM also is a MIPS APM, performance will be scored consistent with the MIPS APM scoring standard.
  • Medicare Advantage patients seen and Medicare Advantage payments received for services provided by eligible clinicians in an Advanced APM are not considered in determining satisfaction of Advanced APM substantial participation thresholds.
  • Professional services provided at a critical access hospital (CAH), rural health clinic (RHC), or a federally qualified health center (FQHC) meeting CMS criteria may be applied to satisfy Advanced APM substantial participation thresholds under the patient count method.

MIPS Part B payment adjustments, MIPS exceptional performance bonuses, and Advanced APM Part B payment incentives

MIPS payment adjustments. Clinicians participating in MIPS continue to be paid under Medicare Part B’s fee-for-service system and become eligible for MIPS performance-based payment “adjustments” either upward, downward, or neutral depending upon the clinician’s success in meeting MIPS performance benchmarks and reporting requirements.

  • MIPS Part B payment adjustments for payment period CY 2019 based on results from performance period CY 2017 are 4% (+/-); for payment period CY 2020 based on CY 2018 performance, 5% (+-); for CY 2021 based on CY 2019 performance, 7% (+-); and for CY 2022 based on CY 2020 performance, 9% (+-).
  • MIPS scores performance on a 0-100 scale. CMS sets a performance threshold each year for purposes of determining those points in scoring resulting in negative payment adjustments, neutral payment adjustments, positive payment adjustments, and exceptional performance bonuses. For the CY 2017 performance period and the CY 2019 payment period, CMS has set a performance threshold of 3.0 and intends to make CY 2019 Part B payment adjustments as follows:
  • Performance score 0-0.75: negative 4% payment adjustment.
  • Performance score 0.76-2.9: greater than negative 4% and less than 0% (neutral) payment adjustment. CMS expects very few eligible clinicians to fall in this range.
  • Performance score of 3.0: 0% (neutral) payment adjustment.
  • Performance score of 3.1-66.9: greater than 0% but no greater than 4% payment adjustment using a scaling factor to assure budget neutrality.
  • Performance score of 70.0-100: positive MIPS payment adjustment of up to 4%, depending on scaling for budget neutrality purposes, plus an exceptional performance bonus of at least 0.5% but no more than 1.0%.
  • If participating as an individual, the eligible clinician receives a Part B percentage payment adjustment based on the individual’s performance score; if participating through a group, the eligible clinician’s percentage payment adjustment is that earned by the group. CY 2019 percentage Part B payment adjustments are made at the eligible clinician level regardless of whether the clinician participated as an individual or through a group

MIPS exceptional performance bonuses. An “exceptional performance” bonus pool of $500 million has been set aside for eligible clinicians who receive a MIPS reporting score of 70 or more in CY 2017. The bonus will be at least 0.5% and no more than 1.0%.  Exceptional performance bonuses are now slated to be available in each of the QPP’s first six years.

Advanced APM payment incentives. Eligible clinicians participating in the QPP through an advanced APM and meeting substantial participation thresholds to become a QP qualify to receive Medicare Part B payment “incentives.” Partial QPs are not eligible for incentives but have the option to switch to MIPS.

  • The Advanced APM incentive payment to QPs is 5% for payment periods CY 2019-CY 2024.
  • Payment of the incentive is based on the QP’s substantial participation in the Advanced APM, not on individual QP performance on Advanced APM metrics. The QPP does not alter how an Advanced APM measures and rewards success to its participants within its design. CMS’ criteria for becoming an Advanced APM provide assurances that individual eligible clinicians who meet Advanced APM substantial participation thresholds for becoming a QP merit receipt of the Advanced APM incentive.
  • Individual QPs in Advanced APMs are paid a lump-sum incentive in a payment period (i.e., CY 2019) equal to 5% of the QP’s estimated aggregate payments for Part B covered professional services provided during an incentive base period across all billing TINs associated with the QP’s NPI. Medicare Part B payments do not include Medicare Advantage, Federally Qualified Health Clinic (FQHC) prospective payments, or Rural Health Clinic (RHC) all-inclusive rate (AIR) payments and, as such, the 5% incentive will not reflect amounts paid for professional services provided by the QP under these payment systems.
  • CMS will calculate the 5% lump sum incentive payment to be received by QPs based on claims data available three months after the end of an incentive base period to allow time for claims to be processed. For instance, the CY 2019 incentive would be based on claims submitted by the QP with dates of service from January 1, 2018 through December 31, 2018, and processing dates of January 1, 2018 through March 31, 2019. CMS expects to notify both the Advanced APM and QPs participating in the Advanced APM of the incentive payment amount as soon as CMS has calculated the amount and performed all necessary validations.
  • Payment of each QP’s calculated incentive amount is made to the QP’s Medicare enrolled billing TIN affiliated with the Advanced APM through which the QP was determined to be a QP. The TIN is the billing unit used by CMS for both individual QPs and group QPs; when payment is made to the QP group’s TIN, CMS does not direct how payment is then distributed to QPs within the TIN. Clinician QPs are required to be identified on a CMS-maintained Participation List for their respective Advanced APM. For QPs participating in an Advanced APM while providing services in a Method II Critical Access Hospital (CAH) (where payments are based on the Medicare Part B physician fee schedule), the incentive payment will be made to the CAH TIN affiliated with the Advanced APM.

Non-patient facing MIPS eligible clinicians and groups

Non-patient facing MIPS-eligible clinicians not otherwise excluded from MIPS report MIPS performance consistent with measures and reporting requirements applicable to them. While the definition of a non-patient facing MIPS eligible clinician or group is not specialty-specific, CMS sought input from organizations representing non-patient facing clinicians in the most affected fields of anesthesiology, pathology, radiology/imaging, and nuclear medicine regarding MIPS performance measures and reporting for these clinicians and groups.

  • A “non-patient facing MIPS eligible clinician” is an individual MIPS-eligible clinician who bills 100 or fewer patient facing encounters (including telehealth) during the non-patient facing determination period.
  • A group is defined as “non-patient facing” if more than 75% of NPIs billing under the group’s TIN meet the definition of a “non-patient facing individual MIPS eligible clinician” during a non-patient facing determination period.
  • A “patient-facing encounter” occurs when an eligible clinician or group bills for services such as general office visits, outpatient visits, and procedure codes; CMS intends to publish a list of patient-facing encounter codes on its QPP website.
  • CMS has established a determination process that allows it to inform clinicians of their non-patient facing status using historical claims data prior to the onset of a MIPS performance period and to add other clinicians to the list of non-patient facing MIPS eligible clinicians as appropriate before the close of a performance period.

The four MIPS performance categories

MACRA sets forth the four MIPS performance categories: Quality, Advancing Care Information, Improvement Activities, and Cost. Eligible clinicians must elect to report performance either individually or through their groups or MIPS APMs; that decision is then applicable to reporting across all four performance categories.

  • The Quality performance category is similar to the legacy Physician Quality Reporting System (PQRS). Quality measures are selected annually through a call for quality measures process and a final list of quality measures will be published by November 1 preceding each QPP program period. For CY 2017, the MIPS performance category weight for Quality is 60%.
  • The Improvement Activities performance category is new. Improvement activities support broad aims within healthcare delivery, including care coordination, beneficiary engagement, population management, and health equity. For CY 2017, the MIPS performance category weight for Improvement Activities is 15%.
  • The Advancing Care Information performance category is similar to the legacy EHR Incentive Program for Eligible Professionals. For CY 2017, the MIPS performance category weight for Advancing Care Information is 25%.
  • The Cost performance category is similar to the legacy Value-based Payment Modifier (VM) program. For CY 2017, the MIPS performance category weight for Cost is 0%.

Eligible clinicians or groups with scores of 70 or more earn positive Part B payment adjustments scaled for budget neutrality and are eligible for exceptional performance bonuses of at least 0.5% and not more than 1.0%. Eligible clinicians or groups with scores of 4-69 receive a positive payment adjustment scaled for budget neutrality but are not eligible for exceptional performance bonuses. Eligible clinicians or groups with scores of 3 points earn neutral payment adjustments. All clinicians and groups will earn at least 3 points if they successfully participate at the minimal (testing) level in CY 2017. Eligible clinicians or groups with scores of less than 3 earn negative payment adjustments. Again, doing nothing in CY 2017 earns a score of 0 and results in a negative 4% Part B payment adjustment in CY 2019.

The three CY 2017 “Pick Your Pace” MIPS performance options

CMS recognized, in working with representatives of the medical community, that MACRA transition would prove challenging for many medical practices and eligible clinicians in those practices. As a result, for the CY 2017 program period only, CMS has developed three MIPS “Pick Your Pace” participation options: minimal (testing), partial, or full.

  • Minimal (testing) participation in CY 2017 requires reporting on at least one Quality measure, or one Improvement Activity, or the required measures in the Advancing Care Information category on a single Medicare Part B patient for any period of time in CY 2017; avoids a negative Part B payment reduction in CY 2019; and likely earns no positive payment adjustment.
  • Partial participation in CY 2017 requires reporting on more than one Quality measure or more than one Improvement Activity or reporting more than the required measures in the Advancing Care Information category for a continuous 90-day period sometime between January 1 and December 31; avoids negative Part B payment adjustment in CY 2019; and could earn a small upward Part B payment adjustment. An eligible clinician must begin measurement reporting no later than October 2, 2017, to satisfy the continuous 90-day period requirement.
  • Full participation in CY 2017 requires reporting for at least a continuous 90-day period or, ideally, the full year on the required number of measures in each of the Quality (i.e., six quality measures, including one outcome measure, or one specialty-specific or subspecialty-specific measure set), Improvement Activity (i.e., up to four activities), and Advancing Care Information (i.e., five required measures) categories; avoids negative Part B payment adjustments in CY 2019; could earn positive payment adjustments; and may result in an exceptional performance bonus for eligible clinicians with performance score is 70 or above.
  • Eligible clinicians and groups do not register for MIPS and need not inform CMS regarding which “Pick Your Pace” option they elect to pursue.

CMS explains: The size of your payment adjustment will depend both on how much data you submit and your quality results. Submitting required data on measures in all MIPS performance categories best positions the eligible clinician or group to earn the maximum percentage Part B payment adjustment allowed in a payment period. Again, in CY 2017, no reporting is required for the Cost category.

Many details regarding these MIPS performance categories, the “Pick Your Pace” options, performance scoring methodologies, special reporting requirements applicable to certain eligible clinicians (i.e., non face-to-face clinicians, small practices of fewer than 15 participants or practices in rural or health professional shortage areas, medical homes, MIPS APMs), and other program matters necessarily are not set forth in this Web positing. Again, readers are advised for starters to consult the CMS QPP home web page at https://qpp.cms.gov for further specifics, to seek educational opportunities, and to remain current with resources and advisories issued by CMS.

Reporting mechanisms and deadlines for each performance category

CMS has offered individuals and groups different ways in which they may report performance in each of the performance categories.

  • Quality measures are reported to CMS by individual eligible clinicians using a Qualified Clinical Data Registry (QCDR), a qualified registry, certified EHR technology, or claims and by groups using a QCDR, a qualified registry, certified EHR technology, administrative claims, the CMS Web Interface (for groups of 25 or more) or CAHPS for MIPS Survey vendor. Note: To encourage the use of CEHRT submission mechanisms, CMS awards bonus points in quality scoring for measures gathered and reported electronically via QCDR, a qualified registry, the CMS Web Interface, or CEHRT technology.
  • Improvement Activities measures are reported to CMS by individual eligible clinicians using attestation, a QCDR, a qualified registry, or an EHR vendor and by groups using attestation, a QCDR, a qualified registry, an EHR vendor, or, for groups of 25 or more, the CMS Web Interface.
  • Advancing Care Information measures are reported to CMS by individual eligible clinicians using attestation, a QCDR, a qualified registry, or an EHR vendor and by groups using attestation, a QDCR, a qualified registry, or an EHR vendor.
  • Cost measures do not require reporting of any data to CMS but will be calculated by CMS from Medicare administrative claims data submitted for billing on Part B claims to determine total per capita costs for all attributed Medicare beneficiaries and a Medicare Spending per Beneficiary (MSPB) measure.

In reporting, eligible clinicians and groups must use the same MIPS identifier for all performance categories and must use only one reporting mechanism per performance category; for instance, a clinician reporting on six performance measures in the Quality category could not report three of those measures via claims and three via a certified EHR system.

Certain reporting mechanisms require certification, approval, and/or registration.

  • If an eligible clinician or group elects to use EHR technology for reporting clinical quality measures (CQM) as permitted in the Quality performance category, that EHR technology must be certified to the 2014 or 2015 edition (or combination of both) of the Office of National Coordinator’s (ONC) Health IT Certification Program and must use the most recent eCQM specifications for those measures which, for CY 2017, were published by CMS in April 2016. Specifications may change for eCQM reporting in future performance periods.
  • If an eligible clinician or group elects to use a Qualified Clinical Data Registry (QCDR) for reporting as permitted in the Quality, Advancing Care Information, and Improvement Activities performance categories, that QCDR must be approved by CMS. CMS anticipates that a listing of approved QCDRs for CY 2017 QPP reporting purposes will be available by May 2017. QCDRs approved for PQRS reporting have not been grandfathered for QPP/MIPS reporting purposes.
  • If an eligible clinician or group elects to use a qualified registry for reporting as permitted in the Quality, Advancing Care Information, and Improvement Activities performance categories, that qualified registry must be approved by CMS.
  • If an eligible clinician or a group elects to use an EHR vendor for reporting as permitted for groups in the Quality performance category and for individuals and groups in the Advancing Care Information and Improvement Activities categories, that EHR vendor must be certified by the ONC.
  • If a group elects to use a Consumer Assessment of Health Care Providers and Systems (CAHPS) for MIPS Survey vendor for reporting as permitted in the Quality performance category, that vendor must be approved by CMS. If a group intends to submit performance data through CAHPS, it must register as a group by June 30, 2017.
  • If a group of 25 or more clinicians elects to use the CMS Web Interface for reporting as permitted in the Quality and Advancing Care Information performance categories, it must register as a group by June 30, 2017.
  • Note of distinction: Claims submissions, when permitted, require appendage of data as directed by CMS. Administrative claims submissions require no additional data, rather CMS gathers what it needs.

The MIPS CY 2017 performance data reporting period begins on January 2, 2018, and closes on March 31, 2018. If technically feasible to do so, CMS may allow optional early MIPS reporting. Time frames for submitting CY 2017 performance data vary depending upon the reporting mechanism used to submit that data. For instance,

  • The CY 2017 MIPS submission period for performance data submitted through a qualified registry, a QCDR, an EHR, or attestation is January 2, 2018-March 31, 2018.
  • CY 2017 MIPS submission period for performance data submitted through Medicare Part B claims with CY 2017 dates of service requires processing of those claims no later than 60 days from December 31, 2017.
  • CY 2017 MIPS submission period for performance data submitted through the CMS Web Interface is an 8-week period after December 31, 2017, to begin no earlier than January 1, 2018, and to end no later than March 31, 2018, to be later defined by CMS.

Submission deadlines could change. Readers should verify applicable deadlines before the end of the year through the QPP home page at https://qpp.cms.gov and/or QPP program advisories.

CMS feedback reports to MIPS participants

MACRA requires CMS to provide MIPS eligible clinicians with timely confidential feedback on their performance under the quality and cost performance categories beginning July 1, 2017, yet CMS will receive no MIPS performance reports until early 2018. To comply with statutory requirements, CMS now intends to use the 2015 Annual Quality and Resource Usage Reports (QRURs) released on September 26, 2016, as its first MIPS quality and cost feedback report for those eligible clinicians and groups that submitted QRURs under the VM program. CMS continues to work on MIPS feedback processes.

CMS notification of MIPS Part B payment adjustments and opportunity for targeted review

Because of QPP budget neutrality, the range of payment adjustments within a stated percentage (i.e., CY 2017, +-4%) counts on MIPS winners and losers. CMS estimates that ordinarily negative Part B payment adjustments will equal the amounts paid for positive Part B payment adjustments. After the close of each MIPS reporting period, CMS will then determine the percentage Part B payment adjustment to be received for MIPS performance reported by eligible clinicians and groups in light of the total monies available to make those adjustments.

  • CMS now intends, if feasible, to inform MIPS participants of their Part B payment adjustment percentages for CY 2019 in its CY 2018 performance feedback reports or, if not feasible, CMS will notify participants via another route no later than December 1, 2018.
  • MIPS participants can request informal targeted review of CMS’ adjustment calculations consistent with timeframes and other requirements set forth in rule and in guidance issued by CMS.

CMS public reports

CMS will post information regarding MIPS performance of eligible clinicians and groups in each performance period on a public Web site in an easily understandable format. At this time, CMS has indicated that its postings will be available on Physician Compare. CMS continues to work on the details associated with its QPP public reporting obligations as directed by MACRA.


Indeed, there is much to learn about the QPP and its many details and logistics. CMS released its final MACRA rule (with opportunity for further comment on identified issues) on October 14; that rule was published in the November 4, 2016 Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2016-11-04/pdf/2016-25240.pdf. The QPP regulation is codified at 42 Code of Federal Regulations (CFR) Part 414, Subpart O or, more specifically, 42 CFR 414.1300-414.1465, available by searching http://www.ecfr.gov. CMS’ comments in the final rule provide a wealth of information and understanding but the rule is very long and it can be a daunting task to locate needed specifics.

Again, a key resource is CMS’ Quality Payment Program web page at https://qpp.cms.gov. The webpage links to a wide range of QPP information, tools and resources and is updated regularly; interested persons can sign up to receive QPP email updates. CMS also has established a QPP Service Center for questions by calling 1-866-288-8292, TTY: 1-877-715-6222, or emailing at QPP@cms.hhs.gov.

CMS has dedicated $100 million to provide QPP technical assistance to MIPS eligible physicians in small practices, practices in rural areas, and practices located in health professional shortage areas. When available, CMS will announce selected contractors. CMS also encourages contact with Practice Transformational Networks (PTNs) and Support Alignment Networks (SANs) located in each state; go to https://qpp.cms.gov/docs/QPP_Where_to_Go_for_Help.pdf to learn more about these entities and receive CMS emails for current information on available technical resources.

QPP learning opportunities are available outside of CMS through, for instance, the Iowa Medical Society, https://www.iowamedical.org, and the American Medical Association (AMA), https://www.ama-assn.org/; the AMA actively engaged with CMS in developing features of the QPP to best align with physician practices. Many medical specialty societies also are assisting their members with QPP logistics.


The Medicare program, and Part B payments under it, remains important for most Iowa physicians and their patients particularly as Iowa’s elderly population continues to increase. CMS Medicare enrollment data shows that in 2015, 572,550 Iowans were covered under Medicare Part A and/or Part B, with 485,444 participating in original Medicare. The QPP is a Medicare Part B program. Starting now to become comfortable with, and even proficient in, the QPP is an investment of time and resources with potential return for years to come.

*This article was updated on February 15, 2017 as to MIPS exclusion for QPP-eligible clinicians newly enrolled in Medicare, upon receipt of the CMS-researched response to the author’s inquiry on that point.

President-Elect Trump Names Rep. Tom Price, MD (R-GA) as HHS Secretary, Seema Verma, Health Care Consultant, as CMS Administrator

Posted in Affordable Care Act (ACA), American Medical Association, Centers for Medicare and Medicaid Services-CMS, Health and Human Services (HHS), MACRA - Medicare Access and CHIP Reauthorization Act

Medicare/Medicaid Reform and ACA Repeal on the Horizon, MACRA Moves Forward for Now

The new administration’s agenda for health care may have come into clearer focus with President-Elect Donald Trump’s nomination of House Representative Tom Price, MD, a Republican from Georgia, as Secretary of Health and Human Services (HHS) and Seema Verma, MPH, as CMS Administrator. The American Medical Association (AMA) released a statement of strong support for Congressman Price, encouraging a swift confirmation vote. “Dr. Price,” the AMA said, “has been a leader in the development of health policies to advance patient choice and market-based solutions as well as reduce excessive regulatory burdens that diminish time devoted to patient care and increase costs.”

Rep. Price, an orthopedic surgeon, is particularly known for his outspoken opposition to the Affordable Care Act (ACA) and bills introduced by him to repeal it. He currently serves as chair of the House Budget Committee, and is closely aligned with House Speaker Paul Ryan (R-WI) in calling for Medicare and Medicaid reform and ACA repeal. He supports making Medicare a “defined contribution” program, giving beneficiaries financial help to purchase their own health insurance coverage, and converting Medicaid into a block grant program, leaving it up to individual states to define and administer their programs with minimal federal requirements. Rep. Price sponsored the “Medicare Patient Empowerment Act of 2015” (H.R. 1650), a bill to allow physicians to privately contract with Medicare patients, and cosponsored the “Helping Families in Mental Health Crisis Act” (H.R. 2646); the latter bill passed the House in July of this year but has not been acted upon by the Senate.

Ms. Verma is a health care consultant who holds a Master in Public Health (MPH) degree from Johns Hopkins University. Ms. Verma has had extensive experience with the ACA and Medicaid, particularly in working with GOP governors in designing and implementing ACA Medicaid expansion in their states. She worked closely with Governor Mike Pence in establishing Indiana’s Medicaid expansion program and also advised Iowa on the Iowa Health and Wellness Plan, Iowa’s approach to Medicaid expansion, and, more recently, in privatizing Iowa Medicaid.

While Rep. Price voted in support of the bipartisan Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), as a member of the GOP Doctors Caucus, he joined in a October 6, 2016 letter to CMS outlining several concerns with MACRA implementation. “MACRA brings significant changes to physician workflows,” the letter says, “yet most physicians remain entirely unaware of MACRA or its implications.” When CMS released its final MACRA rule on October 14, Rep. Price issued a statement calling for careful scrutiny of the rule, noting that the GOP Doctors Caucus “is deeply concerned about how this rule could affect the patient-doctor relationship.” The GOP Doctors Caucus is an 18-member group of Republican representatives who also are health care providers.

Rep. Price recently issued a strong statement of support for House passage on November 17, 2016, of the Midnight Rules Relief Act, H.R. 5982. That bill would make it easier for Congress to halt rules adopted by federal agencies toward the end of the current administration through a joint resolution process affecting several rules rather than on a rule-by-rule basis. H.R. 5982 has yet to be considered by the Senate. Even if Rep. Price and the GOP Doctors Caucus remain concerned about MACRA, congressional nullification of the MACRA rule as “midnight” action is highly unlikely. Once Rep. Price assumes his new post as HHS Secretary, however, he could direct CMS to amend or delay the MACRA rule or certain aspects of it. The MACRA rule now is scheduled to go into effect on January 1, 2017.

Time Remains to File a request for Informal Review of CY 2017 PQRS Negative Payment Adjustment

Posted in Centers for Medicare and Medicaid Services-CMS

QRUR Informal Review Also Available.

Physicians and other eligible professionals and practices who failed to meet criteria for satisfactory PQRS reporting in calendar year (CY) 2015 now face a negative 2% adjustment in Medicare Part B payments for CY 2017. Physicians who believe CMS has inappropriately determined that a negative PQRS payment adjustment applies to them have until November 30* to request an informal review.  CMS set forth the following instructions for requesting an informal review.  *Deadline for requesting informal review of VM calculations now extended to December 7, 2016.

  1. Go to the Quality Reporting Communication Support Page (CSP) [Note: this page will not under maintenance and not available November 18-20.]
  2. In the upper left-hand corner of the page, under “Related Links,” select “Communication Support Page”
  3. Select “Informal Review Request”
  4. Select “PQRS Informal Review”
  5. A new page will open
  6. Enter Billing/Primary Taxpayer Identification Number (TIN), Individual Rendering National Provider Identifier (NPI), OR Practice Site ID # and select “submit”
  7. Complete the mandatory fields in the online form, including the appropriate justification for the request to be deemed valid. Failure to complete the form in full will result in the inability to have the informal review request analyzed. CMS or the QualityNet Help Desk may contact the requestor for additional information if necessary.
CMS will inform persons requesting further review of its review determination by email within 90 days of the request. CMS review decisions are final.

Further information is provided in CMS’ PQRS informal review fact sheet. Persons with questions may contact CMS’ QualityNet Help Desk at 1-866-288-8912 (TTY 1-877-715-6222) or Qnetsupport@hcqis.org Monday-Friday from 7:00 a.m. to 7:00 p.m. Central Time. CMS advises: to avoid security violations, do not include personal identifying information, such as Social Security Number or TIN, in e-mail inquiries to the QualityNet Help Desk.

CMS also has reminded physician groups and solo practitioners that the CY 2015 QRURs (Quality and Resource Use Reports), showing performance in that year to determine receipt of a Value Modifier (VM) payment adjustment in CY 2017, were released on September 26, 2016. Physicians also have the opportunity to seek CMS informal review of their QRUR findings through November 30, 2016. The process for doing so is available on CMS’ 2015 QRUR and 2017 Value Modifier webpage. Help Desk Information is the same as listed above.

*This Post revised on Dec. 1. 2016 as to extended deadline for requesting informal review of VM calculations.

CMS publishes Final MACRA Rule for MIPS and APM Incentives

Posted in Centers for Medicare and Medicaid Services-CMS, Electronic Health Records, Health and Human Services (HHS), Healthcare costs, Medicaid

On October 14, 2016, the Centers for Medicare & Medicaid Services (CMS) released its final rule implementing the new Quality Payment Program for physicians in lieu of the repealed sustainable growth rate factor (SGR). Rather than facing substantial annual reductions in Medicare payment fees as a result of the SGR, physicians now have two interrelated pathways to earn quality-based, cost efficient incentive payments under Medicare:  the Merit-based Incentive Payment System (MIPS) or Advanced Alternative Payment Models (Advanced APMs). MIPS consolidates three existing quality-based incentives programs – the Physician Quality Reporting System (PQRS), the Physician Value-based Payment Modifier (VM), and the Medicare Electronic Health Record (EHR) Incentive Program – while maintaining an ongoing focus on achieving quality and cost efficiencies through use of certified EHR technology (CEHRT).

CMS indicates that substantial changes have been made in response to stakeholder comments. In particular, CMS has implemented transitional policies throughout the rule, including allowing physicians to “pick their pace of participation” for the first performance period beginning January 1, 2017. CMS notes that eligible clinicians will have three flexible options to submit data to MIPS and a fourth option to join Advanced APMs to promote participation and avoid negative payment adjustments in 2019. CMS also has established a $100 million ($20 million each over a five year period of time) technical assistance program for small independent practices, particularly those in rural and health professional shortage areas.

The details are many. In releasing its final rule, CMS also makes available information regarding the criteria for and operational requirements of each of these programs. Click here to learn more: http://www.hhs.gov/about/news/2016/10/14/hhs-finalizes-streamlined-medicare-payment-system-rewards-clinicians-quality-patient-care.html.

The final rule becomes effective on January 1, 2017. CMS also provides a 60-day opportunity for stakeholder comment on specific issues identified throughout the rule. The final rule has been released in prepublication form at https://qpp.cms.gov/docs/CMS-5517-FC.pdf, with formal publication in the Federal Register slated for a future date.


Posted in Affordable Care Act (ACA), Health and Human Services (HHS)

Physicians subject to the Rule must meet notice and posting obligations by October 16, 2016.

The federal Department of Health and Human Services (HHS), through its Office for Civil Rights (OCR), has published its final Rule implementing Section 1557 of the Affordable Care Act (ACA), 42 U.S.C. 18116, prohibiting discrimination in health care programs and activities. The new Rule, like Section 1557, specifically focuses its prohibitions and requirements on four already existing federal nondiscrimination laws: 1) Title VI of the Civil Rights Act of 1964, prohibiting discrimination based on race, color and national origin; 2) the Age Discrimination Act of 1975; 3) Section 504 of the Rehabilitation Act of 1973; and, 4) the sex discrimination provisions of Title IX of the Education Amendments of 1972 (extended by Section 1557 to health care). Section 1557 is in addition to rights and remedies available under these four laws. While the nondiscrimination prohibitions of Section 1557 have been in effect since passage of the ACA in March of 2010, this final Rule advises health care consumers of their Section 1557 rights and informs affected health care programs and activities of their Section 1557 obligations.

The Nondiscrimination Rule became effective on July 18, 2016, except for extended time periods set forth in the Rule. The Rule can be found either in the May 18, 2016 Federal Register, with the actual Rule found on pp. 31465-31473, or in the Code of Federal Regulations at 45 C.F.R. Part 92. This post addresses 1) physicians who are “covered” by the Nondiscrimination Rule; 2) administrative obligations covered physicians must satisfy; and 3) the general scope of prohibited discriminatory practices regularly impacting covered medical practices.

First steps physicians are encouraged to consider to assure compliance under the Rule include:

  • Determine whether the physician is a covered entity under this Rule. Most are.
  • Develop the practice’s nondiscrimination notice and, for small-sized publications and communications, the practice’s nondiscrimination statement as well as multi-language tagline language assistance statements for posting in office locations, on the physician’s practice website, and in significant publications and communications consistent with the requirements of the Rule prior to October 16, 2016.
  • For physician practices with 15 or more employees, designate an individual to coordinate compliance under the Rule and develop grievance procedures for receipt and investigation of complaints.
  • Become familiar and assure compliance with the Rule’s requirements for language assistance for individuals with limited English proficiency (LEP) and for auxiliary aids and assistance for individuals who are disabled.
  • Be aware that covered entity physicians are prohibited by this Rule from discriminating based on sex, including gender identity, in the provision of medical or other program services.
  • Determine whether the medical practice offers employee health benefit programs subject to the Rule’s Nondiscrimination requirements and assure compliance.

As noted throughout this post, definitions in the Rule are important to understanding the Rule’s prohibitions and requirements.

  1. Physicians as covered entities subject to Section 1557 and the HHS Nondiscrimination Rule

Physicians are subject to Section 1557 enforcement and the compliance requirements of the Nondiscrimination Rule if they are “covered entities.” Being a covered entity under the Nondiscrimination Rule is not the same as being a HIPAA covered entity. A physician is a Section 1557 covered entity if the physician operates a health program or activity, any part of which receives Federal financial assistance.

“Health care programs or activities” subject to the Rule includes the provision or administration of health-related services as well as assistance to individuals in obtaining health-related services. Hospitals,  ambulatory surgical centers, physician practices, Federally qualified health centers, nursing facilities, residential or community-based treatment facilities, laboratories, home health agencies, hospices, group health plans, health insurance issuers, and other similar entities fall within the definition of a health program or activity. State Medicaid, CHIP, and Basic Health programs also come within this definition.

“Federal financial assistance” is broadly defined to include any grant, loan, credit, subsidy, contract (including a contract of insurance but not a procurement contract), or any other arrangement involving the provision of funds, services, or property by the Federal government. In its rulemaking comments, HHS identifies Federal funding situations that either do or do not subject physicians to Section 1557 jurisdiction and the requirements of the Nondiscrimination Rule.

To begin, HHS sticks to the OCR’s long-stated position that receipt of Medicare Part B payments, standing alone, does not constitute Federal financial assistance. Payments to physicians by a health plan issuer which, itself, is a recipient of Federal financial assistance also do not constitute Federal financial assistance, nor does either employment by a hospital which receives Federal financial assistance or receipt of Federal student loan monies through an educational institution, the intended recipient, even when loan monies are passed on to the student who then makes payments to the educational institution.

HHS points to “numerous” other ways, however, in which a physician would be a recipient of Federal financial assistance. Cited examples include Medicare meaningful use and other similar incentive payments; Medicaid payments; grants from the National Health Service Corps (NHSC); National Institute of Health (NIH) funding; Health Resources Service Administration (HRSA)-funded community health centers; Substance Abuse and Mental Health Services Administration (SAMHSA)-funded programming; and CMS gainsharing demonstration projects. Too, HHS notes that many physicians will be obligated to meet the requirements of the Nondiscrimination Rule through contracts they sign with health plans who, themselves, are covered entities obligated to ensure compliance with Federal nondiscrimination requirements by network providers treating their enrollee beneficiaries. Even hospital-employed physicians may become covered entities through outside practice endeavors. Laboratories, whether hospital-based, office-based, or freestanding, receiving Federal monies through Medicare or Medicaid for covered laboratory tests are considered by HHS to be covered entities.

Based on searches of its databases, HHS believes that most physicians receive Federal financial assistance in their own right, making them covered entities subject to Section 1557 and the Nondiscrimination Rule. Physicians are not alone. Health insurers and other health care providers receiving Federal financial assistance also are bound by the Rule.

An additional word of note for covered physicians. Even though self-funded employer benefit plans generally are not covered entities (except to the extent their third party administrators are as covered health plans), employee health benefit programs provided by covered physicians generally are subject to the Rule. “Employee health benefit programs” is defined in the Rule which also establishes conditions under which such programs are covered, including when an employee health benefit program is provided by a covered entity “principally engaged in providing or administering health services. Covered physicians bear liability for Rule violations by their covered employee health benefit programs.

2. Administrative requirements of the Nondiscrimination Rule

The Nondiscrimination Rule imposes technical administrative obligations upon entities covered by it. Three such requirements are: 1) posting of notices; 2) establishing grievance procedures (if applicable); and 3) designating an employee contact person (if applicable). Specifically –

  • A covered entity employing 15 or more persons must designate at least one employee to coordinate its efforts to comply with and carry out the covered entity’s responsibilities under Section 1557 and the Nondiscrimination Rule. This requirement became effective on July 18, 2016, the effective date of the Rule.
  • A covered entity employing 15 or more persons must adopt grievance procedures incorporating due process standards and providing for prompt and equitable resolution of grievances alleging any discriminatory action prohibited by Section 1557 and the Nondiscrimination Rule. Appendix C to the Rule sets out a sample grievance procedure. This requirement became effective on July 18, 2016, the effective date of the Rule.
  • All covered entities, regardless of size, must meet the content and posting requirements of the Rule notifying individuals, among other things, that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability; that the covered entity, free-of-charge, provides auxiliary aids and services, as appropriate, for individuals with disabilities and language assistance for individuals with limited English proficiency (LEP); and how to file a grievance with the covered entity and a discrimination complaint with the OCR. Covered entities also must post taglines, or short statements, written in at least the top 15 languages spoken by LEP individuals in State, indicating the availability of language assistance for LEP individuals at no cost. Required posting points include 1) office locations; 2) the practice’s website; and 3) significant publications and communications of the medical practice, with small-sized publications and communications requiring only a nondiscrimination statement and language assistance taglines in the two most relevant languages spoken by LEP individuals in the State. Specifics regarding notices, taglines and posting requirements are found in the Rule.The notice and posting requirements become effective within 90 days (October 16, 2016) of July 18, 2016, the effective date of the Rule.

What are the 15 most prominent languages spoken by LEP individuals in Iowa? While the OCR does not appear to mandate a resource for answering this question, in its comments it references the U.S. Census Bureau’s 2009-13 American Community Survey which, for Iowa (https://www.census.gov/data/tables/2013/demo/2009-2013-lang-tables.html), shows the following top 15 languages spoken by LEP individuals in our State: 1) Spanish, 2) Chinese, 3) Vietnamese, 4) Serbo-Croatian, 5) German, 6) Arabic, 7) Laotian, 8)Korean, 9) Hindi, 10) French, 11) Pennsylvania Dutch, 12) Thai, 13) Tagalong, 14) Karen, and 15) Russian; the top 2 languages show as Spanish and Chinese.* The OCR has translated language assistance taglines in each of these languages. Consult this OCR site as well as Appendixes A and B of the Rule for sample nondiscrimination notice and nondiscrimination statement language. The OCR also has translated its sample nondiscrimination notice and statement; covered entities are required to post their nondiscrimination notices/statements only in English but are encouraged to post in other languages as well.

3.  Prohibited discriminatory practices and affirmative obligations of covered entities

The Nondiscrimination Rule prohibits discriminatory practices excluding an individual from participation in, or denying benefits for, or otherwise discriminating in a heath program or activity on the basis of race, color, national origin, sex, age or disability. The Rule then provides clarification on certain points. For instance, a covered entity may operate a health program or activity that is restricted to members of one sex if the covered entity can demonstrate an “exceedingly persuasive” justification that such limitation is “substantially related” to the achievement of an important health-related or scientific objective. Both the Rule and HHS’ comments on it provide direction in understanding its reach.

Requirements of particular interest to covered entity medical practices include the following —

  • Language assistance services for LEP persons. Medical practices covered by the Rule must take reasonable steps to provide meaningful access for LEP individuals receiving or likely to receive services from them. While not required, the Rule encourages implementation of a language access plan appropriate to each medical practice’s particular circumstances. LEP language assistance services must be provided free of charge, must be accurate and timely, and must protect the privacy and independence of the LEP individual. The Rule specifically defines “qualified interpreters” for LEP individuals, “qualified translator,” and “qualified bilingual/multilingual staff” and sets forth specific requirements for use of video remote interpreting services. A covered entity is prohibited from requiring an LEP individual to provide his or her own interpreter or from relying upon others (i.e., adult, minor child) accompanying the LEP individual to interpret or facilitate communication except in narrow circumstances permitted by the Rule. A LEP individual cannot be required to accept language assistance services.
  • Physician practices must review the definitions, prohibitions and requirements of the Rule regarding assistance to LEP individuals. Medical practices familiar with guidance statements re: interpreter services for LEP individuals issued by the OCR in 2003 may find they already are in substantial compliance with the Rule’s LEP language assistance requirements. No medical practice, however, should assume compliance absent review of this section of the Nondiscrimination Rule.
  • Accommodations for and effective communication with individuals with disabilities. The Nondiscrimination Rule requires covered entity medical practices to ensure that communications with individuals with disabilities are as effective as communications with others receiving services from them. “Qualified individual with a disability” and “disability” are defined by the Rule. By reference, the Rule imposes upon covered entities nondiscrimination regulatory standards already in place for public entities (28 C.F.R. Part 35) to meet the communication needs of the disabled. The Nondiscrimination Rule and its referenced communications standard also set forth requirements for facility accessibility and signage and accessibility by the disabled to electronic and information technology. Covered entities should be familiar with the “fundamental alteration” and “undue financial and administrative burdens” considerations of the Rule and its referenced standard which, in certain circumstances, may grant relief for medical practices in accommodating specific requests of disabled patients; covered entities bear the burden of showing they meet this standard.
  • Covered entity medical practices familiar with the requirements of the American with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act must, nonetheless, carefully review the requirements of this section of the Nondiscrimination Rule and its referenced communications standard. HHS explained in comments that the Rule imposes a higher ADA standard upon covered entities in meeting the communication needs of the disabled, particularly in requiring covered entities to give priority consideration to auxiliary aids or services requested by the disabled individual. Policies and procedures covered physicians may now have in place for accommodating the needs of the disabled may not be in accord with revised compliance expectations set forth in the Nondiscrimination Rule.
  • Covered entities must furnish appropriate auxiliary aids and services as necessary to afford individuals with disabilities and their companions an equal opportunity to participate in the covered entity’s services, programs and activities; the type of aids or assistive services will vary depending upon several factors set forth in the referenced communications standard. Importantly, the Rule and its reference standard now require that a covered entity, in determining what types of auxiliary aids and services are needed, must give primary consideration to what the disabled individual has requested. A covered entity shall not require a disabled individual to bring another individual along to interpret for him or her and shall not rely upon others (i.e., adult or minor child) accompanying the disabled individual except in narrow circumstances permitted by the referenced standard. The referenced standard also addresses video remote interpreting services, use of telecommunications, and telephone emergency services. “Auxiliary aids and services” and “qualified interpreter for an individual with a disability” are defined by the Nondiscrimination Rule.
  • Gender identity. The Nondiscrimination Rule’s prohibitions and requirements relating to discrimination based on sex give specific address to issues of gender identity. “Gender identity” is defined to mean “an individual’s sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different than an individual’s sex assigned at birth.” A covered entity is required to treat individuals consistent with their gender identity. Services ordinarily or exclusively available to individuals of one sex may not be denied to a transgender individual based on the individual’s sex assigned at birth, gender identity, or recorded gender. Covered entity health insurers may not limit or restrict coverage for sex-specific health care services to a transgender individual based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded are different from the one to which such health services are ordinarily or exclusively available. A “transgender” individual is an individual whose gender identity is different from the sex assigned to that individual at birth.  Litigation challenging the gender identity requirements of the Rule has been filed by several parties in federal court.

The Nondiscrimination Rule is not without its complexities. The overview provided by this post has not addressed all of the Rule’s specific requirements. The OCR has developed a web page of resources to assist covered entities with compliance.

This post is informational only and is not meant to be, nor does it provide, legal advice.

*This article was updated on October 12, 2016, with new HHS information re-sequencing the 15 most prominent languages spoken by LEP individuals in Iowa. 


Posted in Centers for Medicare and Medicaid Services-CMS, Electronic Health Records, Healthcare costs, MACRA - Medicare Access and CHIP Reauthorization Act

CMS proposed rule details Medicare’s new physician “Quality Payment Program”

Reporting under new measures slated to begin in 2017

The Centers for Medicare & Medicaid Services (CMS), the federal agency responsible for Medicare payment to physicians, released a proposed rule on April 27, 2016, setting forth key provisions of its Quality Payment Program for physicians, implementing key provisions in the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA repealed the Sustainable Growth Rate (SGR) formula for annually adjusting Medicare payment to the nation’s physicians, replacing the SGR with a value-based payment system to be developed by CMS consistent with MACRA’s directives. The proposed rule has been published in the May 9, 2016 Federal Register. Comments are due by June 27, 2016.

The proposed Quality Payment Program has two payment incentive tracks: 1) a Merit-based Incentive Payment System (MIPS) focused on successfully achieving quality measures, and 2) a payment incentive based on significant participation in an Advanced Alternative Payment Model (APM). Most physicians will be impacted by MIPS. Under the Quality Payment Program, “eligible professionals” now will be “eligible clinicians,” including physicians, physician assistants, nurse practitioners, clinical nurse specialists, and CRNAs as well as practice groups that include these clinicians.

MIPS consolidates components of Medicare’s Physician Quality Reporting System (PQRS), the Physician Value-based Payment Modifier (VM), and the Medicare Electronic Health Record (EHR) Incentive Program while maintaining a strong incentive focus on integrated use of certified EHR technology (CEHRT). Through MIPS, CMS proposes to pay eligible clinicians for providing high quality, efficient care through identified success in four (4) performance categories –

  1. Cost (10% of total score in year 1). Replaces the cost component of the VM, also known as Resource Use. The cost score would be based on Medicare claims, requiring no clinician reporting. This category uses over 40 episode-specific measures to account for differences among specialties. Clinicians must see a sufficient number of patients (generally at least 20) for a cost measure to be scored. If a clinician does not have enough patient volume in any cost measure, then a cost score will not be calculated; CMS will reweight the cost category to zero and adjust other MIPS category scores to make up the difference.
  2. Quality (50% of total score in year 1). Replaces PQRS and the quality component of the VM. Clinicians would select six reporting measures rather than nine (9) as currently required under PQRS. The rule proposes more than 200 measures to select from; more than 80% of the quality measures proposed are tailored to specialists. Clinicians may opt to report a specialty measure set specifically designed around certain conditions and specialty types. Using claims data, CMS also will calculate population measures, two for individual clinicians and small groups of 2-9 clinicians and three for groups of 10 clinicians or more.
  3. Clinical Practice Improvement Activities (15% of total score in year 1). Activities falling within this CPIA category include care coordination, beneficiary engagement, and patient safety. Eligible clinicians select activities that match their practice’s goals from a list of more than 90 options. Clinicians also are eligible to receive credit in this category for participation in APMs and Patient-Centered Medical Homes (PCMHs).
  4. Advancing Care Information (25% of total score in year 1). Replaces the Medicare EHR Meaningful Use program for physicians. Eligible clinicians would choose to report customizable measures that reflect how they use EHR technology in their practices. A clinician’s overall score in this category would be made up of a base score and a performance score. A base score is derived from clinician response to identifiable measures within six objectives: (i) Protect Patient Health Information; (ii) Patient Electronic Access; (iii) Coordination of Care through Patient Engagement; (iv) Electronic Prescribing; (v) Health Information Exchange; and (vi) Public Health and Clinical Data Registry Reporting. A performance score is derived from measures clinicians select from three of these objectives: Patient Electronic Access. Coordination of Care through Patient Engagement, and Health Information Exchange. Clinicians must achieve the Protect Patient Health Information objective, which requires a security risk analysis, to receive a performance score and must engage in immunization registry reporting under the Public Health/Registry reporting objective. Clinical Decision Support and Computerized Provider Order Entry reporting no longer will be required.

Medicare will begin measuring clinician reporting under MIPS in calendar year (CY) 2017, with payments based on those measures beginning in CY 2019. MACRA requires MIPS to be budget neutral. As such, clinicians’ MIPS scores will be used to compute positive, negative, or neutral payment adjustments. In CY 2019, negative adjustments can be no greater than 4% and positive adjustments can be up to 4%. These percentages increase to 5% in CY 2020, 7% in CY 2021, and 9% in CY 2022. MACRA also provides $500 million annually for exceptional performance bonuses in CY 2019-CY 2023, an amount not subject to budget neutrality. Under MACRA, CY 2019 is the last year for a 0.5% physician fee schedule increase.

A second incentive payment option for clinicians is participation in an Advanced APM. Clinicians successfully meeting Advanced APM criteria receive a 5% Medicare payment boost, need not report under MIPS, and cannot receive MIPS payment incentives. An Advanced APM must accept risk, must be a CMS Innovation Center model or a statutorily-required demonstration, must base clinician payment on quality measures, and must require use of certified EHR technology by at least 50% of its clinicians. PCMHs expanded under Innovation Center authority can qualify as APMs without taking on financial risk. Only clinicians who participate “to a significant extent” by receiving enough of their payments or seeing enough of their patients through an Advanced APM are eligible for the 5% payment incentive.

Many more details are set forth in the proposed rule. CMS summaries of the proposed rule are available, as is the proposed rule.

A closing note. CMS has been working in collaboration with America’s Health Insurance Plans (AHIP), major commercial payers, the National Quality Forum (NQF), and other stakeholders to promote multi-payer alignment on core measures for physician quality programs. In February 2016, the collaboration announced seven (7) sets of clinical quality measures in the areas of 1) ACOs, PCMHs, and primary care; 2) cardiology; 3) gastroenterology; 4) HIV and Hepatitis C; 5) medical oncology; 6) obstetrics and gynecology; and 7) orthopedics. Additional information regarding this public/private payer alignment effort can be found at Core Quality Measure Collaborative.


Posted in Medical Records, Mental Health, Release of Information

2016 Amendments Permit Disclosure for Care Coordination Only Under State Law

One of the more challenging aspects of medical records management are federal and state legalities around release of substance abuse and mental health patient information. This year, the Iowa General Assembly passed legislation, Senate File 2144, to permit disclosure of otherwise confidential behavioral health information under Iowa law for care coordination purposes. SF 2144 was signed by Governor Branstad on April 6 and became effective on that day.

SF 2144 first amends Iowa Code section 125.37, confidentiality of substance abuse treatment facility records, to permit disclosure of patient records for care coordination purposes “if not otherwise restricted by federal law or regulation.” In the same way, SF 2144 amends Iowa Code chapter 228, disclosure of mental health and psychological information, to permit disclosure of confidential mental health information for care coordination purposes “if not otherwise restricted by federal law or regulation.” Care coordination is defined by reference to Iowa Code section 135.154* as “the management of all aspects of a patient’s care to improve health care quality.”

Behavioral health providers are encouraged to remain cautious before disclosing sensitive substance abuse and mental health patient information within SF 2144’s broadly defined context of care coordination. To the extent that this new Iowa law conflicts with federal laws and regulations, federal law prevails. Too, permissible disclosures under SF 2144 must satisfy conditions, such as those set forth in section 228.2, governing permissible disclosures.

SF 2144 can be found at this link: https://www.legis.iowa.gov/legislation/BillBook?ga=%24selectedGa.generalAssemblyID&ba=SF2144.

*Note:  Upon transfer of the Iowa Health Information Network (IHIN) from the Iowa Department of Public Health to a nonprofit entity, SF 2144’s definitional references to section 135.154 will change to Iowa Code section 135D.2.

Iowa Supreme Court Crafts An Avenue Of Relief For Employers Who Fail To Notify Injured Workers That Medical Care Is No Longer Authorized

Posted in Workers' Compensation

Even so, employers are best protected in giving statutory notice and medical providers are best protected in assuring that continued care remains authorized.

Notification requirements imposed by Iowa’s workers’ compensation law upon employers authorizing care for an injured employee took center stage in a recent decision of the Iowa Supreme Court. In that case, Ramirez-Trujillo v Quality Egg, L.L.C., et. al. (No. 14-0640, filed April 15, 2016), an employee suffered back injuries from a slip and fall at work. The employer acknowledged the workplace injury and authorized care through a care provider selected by the employer. The employee received treatment for acute low back pain and muscle spasms until the authorized provider released the employee to return to full duty work without restrictions. Weeks later, however, the employee returned to the authorized care provider for additional treatment for acute low back pain and muscle spasms over a period of several months.

The employer claimed that this additional course of treatment was not related to the employee’s work injury and disavowed cost liability. The employee argued, however, that her continued care was causally-related to her workplace injury and, further, the employer remained liable in failing to provide her with notice that care was no longer authorized as required by Iowa’s workers’ compensation law. In particular, Iowa Code section 85.27(4) states in pertinent part:

For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. If the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that the employer is no longer authorizing all or any part of the care and the reason for the change in authorization. (All emphases added).

The employer conceded it had not given statutory notice but argued the employee should have known that care received several weeks later was not authorized.

The workers’ compensation commissioner found that the employee’s second round of care was not causally-related to her workplace injury but assigned cost liability to the employer for failing to give statutory notice. On appeal, the district court and the Iowa Court of Appeals agreed that the employee’s continued care was not causally-related to her workplace injury, but disagreed on the employer’s cost liability for failure to give statutory notice. The Supreme Court (“Court”) made no finding on whether the second course of care was related to the employee’s workplace injury, saying that an employee is not required to establish medical causation in challenging the employer’s failure to give section 85.27(4) notice.

The Court focused solely on the meaning and intent of section 85.27(4) and, in doing so, engaged in an exhaustive analysis of this statutory provision, concluding that section 85.27(4) means what it says. “[A]n employer who authorizes care is responsible for the cost of the care up to the time when the employer notifies the employee it is no longer authorizing the care.” Employers under this statute have the power to choose care and with that, the Court said, comes the responsibility to monitor care for the purpose of determining when further care will no longer be authorized.

However, the Court went on to say that section 85.27(4)’s notice obligation is not meant to permit “an employee to take advantage of an employer by seeking compensation after the fact for care the employee knew or should have known was not within the scope of the employer’s prior authorization.” As such, an employer who fails to give statutory notice nonetheless should be permitted to show, by a preponderance of the evidence, that the employee knew or reasonably should have known either that the care the employee received was unrelated to the employee’s claim for workers’ compensation benefits or the employer no longer authorized the care. The Court sent the case back to the workers’ compensation commissioner to make this evidentiary finding under the facts in this case.

One justice dissented, arguing that section 85.27(4)’s notice obligation is clear and unambiguous and employers are well-equipped to monitor care and give such notice when the employer deems it appropriate to no longer authorize that care. If the legislature had meant to give employers a second option of proof, it would have said so in the law. “With due respect, the clear language of the statute and its bright-line allocation of responsibility for care provided by authorized providers prior to notice of a change is far superior to (and far simpler than) the majority’s new unwieldy standard.”

This case, decided in April of 2016, was about disputed costs for care received from May 2010-April 2011, and liability for those costs is still not settled. If nothing else, employers are reminded by this case that the legislature meant business when it imposed section 85.27(4) workers’ compensation notice obligations upon them. Similarly, medical providers treating injured workers may want to assure as reasonably as they can that care provided to an injured worker continues to be authorized by the employer. As the old saw goes, time is money. Engaging in protracted evidentiary battles around liability is far from free.

Paul Drey Addresses Iowa Medical Society Conference

Posted in Iowa Medical Society

Brick Gentry’s president Paul Drey twice addresses the Iowa Medical Society (IMS) at its Annual Conference in Coralville, Iowa this month.

Protect Yourself: The Basics of Employment Contracts,” illuminates considerations for physician employment agreements. The program synopsis raises important questions:  “The work does not end once you verbally accept a position. But does the offer meet your needs? Will this contract limit your practice options in the future? Find out answers to these questions and more during this session.”

Paul Drey’s second presentation is in conjunction with Timothy Irhig, M.D., of UnityPoint Clinic – Trinity Palliative Medicine. “Legal and Ethical Issues Related to End-of-Life Care,” is summarized in the IMS program: “Carrying out the wishes of patients at the end of their lives is important. When a patient has an advanced directive, healthcare professionals need to know what the legal and ethical guidelines are regarding the decisions that were made prior to or early in their disease process. This session features information you need to care for your patients and protect yourself.”


Posted in Electronic Health Records, HIPAA, Medical Records, Release of Information

HIPAA AND FEES FOR MEDICAL RECORDS – Updated OCR guidance sets limits.

Physicians and other HIPAA covered entity providers are familiar with HIPAA’s rule on fees that may be charged when individuals request copies of their medical records. The federal Office of Civil Rights (OCR), the enforcement agency for the HIPAA Privacy Rule, recently released updated guidance directives on when fees may be imposed and limitations on costs that may be included in assessing such fees. Medical practices, especially those with separate HIPAA and non-HIPAA medical record fee schedules, may be surprised at what the OCR is now saying.

HIPAA Privacy Rule 164.524(c)(4) is at the center of the OCR’s guidance. According to that rule, individuals requesting a copy of their protected health information (PHI) may be charged a reasonable, cost-based fee that includes only (i) the cost of labor for copying the PHI, whether in paper or electronic format; (ii) supplies for creating the paper or electronic media consistent with the individual’s request; and (iii) postage if the individual has requested mailing. The rule also permits assessing a fee for costs in preparing an explanation or summary of the individual’s PHI when agreed to by the individual.

In its guidance, the OCR further clarifies appropriate costs that may be considered in setting a fee and those costs that may not. A fee may reflect labor costs incurred in creating and delivering an electronic or paper copy in the form and format requested or agreed upon by the individual after the requested PHI has been identified, retrieved, compiled/collated, and readied for copying. More specifically, the fee may consider labor costs incurred in –

  • Photocopying paper PHI;
  • Scanning paper PHI into an electronic format;
  • Converting electronic PHI in one format to the format requested by or agreed upon by the individual;
  • Transferring (e.g., uploading, downloading, attaching, burning) electronic PHI from the covered entity’s system to a web-based portal when the PHI is not already maintained in or accessible through the portal, portable media, e-mail, app, personal health record, or other manner of delivery of the PHI;
  • Creating and executing a mailing or e-mail with the requested PHI.

A fee may not take into account labor costs associated with verification, documentation, searching for, retrieving, segregating or otherwise preparing the PHI for copying; maintaining systems; or recouping capital for data access, storage, or infrastructure, even if such costs are authorized by State law.

Supply costs appropriately considered in setting a fee include paper toner for paper copies and CD or USB drives for electronic media as may have been requested or agreed upon by the individual. However, a covered entity may not require an individual to purchase portable media; rather, individuals have the right to have copies of their PHI mailed or e-mailed to them upon request.

Even if a covered entity’s fee takes into account only permissible costs, that fee also must be reasonable. While conventional wisdom might assume continued increases in legitimate medical record fee costs, the OCR believes advances in automation and technology predict decreasing labor costs and, in certain instances, even disappearance of such costs.

Additional points of clarification from the OCR include the following —

  • While a permissible fee may be charged to individuals requesting copies of their PHI, “covered entities should provide individuals who request access to their information with copies of their PHI free of charge,” particularly if the individual requesting access cannot afford the fee.
  • A covered entity may not charge a fee when individuals access their PHI through the covered entity’s certified EHR system. A covered entity, the OCR maintains, incurs no labor or supply costs when individuals access their PHI through an available View, Download, or Transmit function on a covered entity’s EHR system.
  • Individuals cannot be charged a fee to only inspect their PHI at the covered entity’s office.

The OCR emphasizes that covered entities must give individuals requesting copies of their PHI advance notice of fees that may be charged. In addition, covered entities should post on their web sites an approximate fee schedule for regular types of access requests and should be prepared, upon request, to provide a breakdown on factors that make up their fees. A covered entity may calculate their fees in three ways: actual costs, average costs, or flat fee for electronic copies; the OCR details how each of these calculations can be made.

The OCR specifically addresses fees that may be charged to third parties requesting an individual’s PHI as authorized by the individual. When individuals request that their copied PHI be sent to a named third party, the HIPAA fee rule applies and, the OCR says, “It doesn’t matter who the third party is.” Similarly, if a third party, on behalf and at the direction of an individual, forwards an individual’s request for release of the individual’s PHI to that third party, the HIPAA fee rule applies. On the other hand, if a third party initiates a request for an individual’s PHI on the third party’s behalf and with the individual’s authorization, then HIPAA’s fee limitations do not apply.

Even if State law specifies fees to be charged for medical records, covered entities are bound by the limitations of the HIPAA fee rule unless a covered entity can show that the State’s fee schedule is based on the same types of costs permitted by HIPAA and is reasonable. Iowa law specifies limitations on fees that may be assessed for medical records in two instances: 1) requests for medical records for workers’ compensation purposes, Iowa Administrative Code 876-8.9, and 2) release of medical records to a party adverse to the individual in litigation consistent with a patient waiver or court order whereby fees charged must be consistent with the workers’ compensation fee schedule or as otherwise specified, Iowa Code section 622.10(6). In each of these Iowa-defined situations, individuals authorize release of their medical records not as an exercise of their HIPAA individual rights of access but as required by law and regulation. Arguably, these are the type of third party releases to which the HIPAA fee rule does not apply. Medical practice believing otherwise, however, should then assure that their fee charges in these instances of Iowa law and regulation do not exceed amounts permitted by the HIPAA fee rule.

The OCR’s guidance on medical record fees is contained within a comprehensive release entitled, Individuals’ Right under HIPAA to Access their Health Information, 45 CFR 164.524, found at http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html. This practical resource includes specific OCR responses to many frequently asked questions (FAQs) on individual rights of access to PHI and fee charges. This OCR guidance document gives important insight into how this chief regulator reads these HIPAA rules. It is well worth the read.