November 17, 2021

CMS Issues 2022 Medicare Physician Fee Schedule Final Rule

Holland & Knight Alert
Suzanne Michelle Joy

Highlights

  • The Centers for Medicare & Medicaid Services (CMS) has released the calendar year (CY) 2022 Medicare Physician Fee Schedule (MPFS) Final Rule, which goes into effect Jan. 1, 2022.
  • With a temporary COVID-19-related 3.75 percent payment boost expiring, the final CY 2022 MPFS conversion factor (CF) is $33.59, a $1.30 decrease from the CY 2021 MPFS CF of $34.89. Combined with other potential payment cuts, providers could be facing more than 9 percent in Medicare payment cuts next year unless Congress intervenes.
  • CMS finalized several telehealth policies, including retaining Medicare Category 3 telehealth services through 2023 and other telehealth codes through at least 2022, and permanently lifting geographic restrictions and adding a beneficiary's home as an originating site for mental health and substance use disorder treatment telehealth services, provided certain in-person requirements are met.
  • Notably, CMS reversed its proposal to bundle critical care visits with global surgical codes without increasing payment after hearing from stakeholders that the change could jeopardize access to critical care services.

The Centers for Medicare & Medicaid Services (CMS) on Nov. 2, 2021, released the calendar year (CY) 2022 Medicare Part B Physician Fee Schedule (MPFS) Final Rule.

With a temporary COVID-19 Public Health Emergency (PHE)-related 3.75 percent payment boost expiring, the proposed CY 2022 MPFS conversion factor (CF) is $33.59, a $1.30 decrease from the CY 2021 MPFS CF of $34.89. Combined with the 2 percent Medicare sequester and up to 4 percent cuts possible to pay for the American Rescue Plan under pay-as-you-go rules, providers could be facing more than 9 percent in Medicare payment cuts next year unless Congress intervenes before Jan. 1, 2022, when the cumulative cuts are scheduled to take effect.

To learn more about the MPFS Final Rule, review the following resources:

This Holland & Knight alert summarizes a number of key provisions in the CY 2022 MPFS Final Rule. Unless otherwise noted, the provisions go into effect on Jan. 1, 2022.

Telehealth Services

CMS will extend Category 3 services until the end of CY 2023 to provide more time to collect data. CMS also added Current Procedural Terminology (CPT) codes 93797 and 93798, and Healthcare Common Procedure Coding System (HCPCS) codes G0422 and G0423 to the list. A complete list of 2022 Medicare telehealth services is available on the CMS website. In addition, information on submitting a service for future consideration is available.

As set forth in the Consolidated Appropriations Act (CAA), the home of a beneficiary will permanently qualify as an originating site and geographic restrictions will not apply to mental health telehealth services. CMS clarifies that the definition of home can include temporary lodging such as hotels and homeless shelters as well as locations a short distance from the beneficiary's home. However, an in-person service must have been furnished to the beneficiary within six months prior to the date of the telehealth service, as well as within 12 months after the telehealth visit.

CMS notes that patients and practitioners should ultimately determine the cadence of meeting during the year, who may decide to meet more often than annually, as driven by clinical needs on a case-by-case basis. There is a limited exception to the preceding six-month in-person requirement for patients with co-occurring mental health disorders or substance use disorder. There are exceptions to the 12-month requirement based on individual circumstances. Specifically, if the patient and practitioner agree that the benefits of an in-person, non-telehealth service within 12 months of the mental health telehealth service are outweighed by risks and burdens associated with an in-person service, including potential worsening of the patient's condition or undue hardship, and the basis for that decision is documented in the patient's medical record. This latter exception does not apply to the six-month requirement.

CMS will monitor claims data for potential overbilling, drops in quality of care or difficulty accessing in-person care. The required in-person service may be furnished by another physician or practitioner of the same specialty/subspecialty within the same group if the physician or practitioner who usually furnishes the service described is not available. It also needs to be documented in the patient's medical record whether a mental health service was provided in-person or via telehealth, and that the patient has the ability to obtain any needed point of care testing, including vital sign monitoring and laboratory studies.

CMS will permit the use of audio-only communication technology for home-based mental health telehealth services under certain conditions, including that the practitioner have the capacity to furnish two-way, audio/video telehealth services but is using audio-only technology due to beneficiary preferences or limitations. CMS also requires a modifier to track audio-only services.

Finally, under the CAA, a rural emergency hospital, which is a new Medicare provider type effective in 2023, will be added to the list of telehealth originating sites.

For CY 2022, the payment amount for HCPCS code Q3014 (telehealth originating site facility fee) is $27.59. The Medicare telehealth originating site facility fee and the Medicare Economic Index (MEI) increase by the applicable time period is shown in Table 18.

Opioid Use Disorder (OUD) Treatment Services

Take-home supplies of opioid antagonist medications will be subject to the geographic adjustment and annual updating via the MEI. Payments for medications dispensed/administered as part of an adjustment to the bundled payment will be considered duplicative if a claim for the same beneficiary on the same date of service was separately paid under Medicare Parts B or D. CMS created a new add-on code for a new, higher dose naloxone hydrochloride nasal spray product, and will permanently allow opioid treatment programs to furnish therapy and counseling services using audio-only calls in cases where audio/video communication technology is not available to the beneficiary provided a modifier is affixed.

COVID-19 Vaccines and Monoclonal Antibodies

CMS will maintain the current payment rate of $40 per dose for administration of the COVID-19 vaccines through the end of the calendar year in which the PHE ends, after which it will set a payment rate that aligns with other Part B preventive vaccines, around $30. CMS will continue its add-on payment of $35.50 when a COVID-19 vaccine is administered in the home until the end of the year in which the PHE expires. However, it is not billable when a different preventive vaccine is concurrently being administered in the home.

CMS will continue to pay for COVID-19 monoclonal antibody therapeutic products as vaccines until the end of the calendar year in which the PHE expires. In the interim, CMS will continue to pay for the products at 95 percent of Average Wholesale Price (unless provided for free by the government), plus administration rates of $450 for administration in a healthcare setting and $750 for administration in the home. Starting the full calendar year following the end of the PHE, CMS will treat COVID-19 monoclonal antibody therapies as typical complex biological products paid under Section 1847A of the CAA. These reimbursement policies are summarized in Table 32.

Supervision Requirements

CMS solicited comments on whether to permanently allow direct supervision requirements to be met through virtual presence using real-time audio/video communication technology after the PHE ends. CMS did not finalize this policy but said it will consider stakeholder input in future policymaking.

Evaluation and Management (E/M) Visits

Split/Shared Visits. Defined as E/M visits in an institutional setting performed in part by a physician and non-physician provider (NPP) in the same group. CMS expanded the scope to include new and established patients, initial and subsequent visits, critical care visits, prolonged services and certain Skilled Nursing Facility/Nursing Facility visits. The provider who performs the "substantive portion," (i.e., more than half) of the visit would bill for it, which can be based on history, exam, medical decision-making or total time (except critical care services, which must be based on total time). Overlapping time spent by both providers would be counted once. For noncritical care visits, CMS would use the same list of activities used to select E/M visit level for time-based billing. The billing practitioner would be required to sign and date the medical record identifying the two individual practitioners who performed the visit and attach a modifier indicating it was a split/shared visit.

Critical Care Services. CMS adopted the Current Procedural Terminology (CPT) definition and list of bundled services for critical care services, which may be furnished on multiple days, are furnished in critical care settings and must require the full attention of the physician or NPP. The billing practitioner would report CPT code 99291 for the first 30 to 74 minutes of critical care services and would use CPT code 99292 thereafter for additional 30-minute increments. Noncontinuous time would be aggregated. Critical care services could be furnished concurrently to the same patient on the same day by more than one practitioner in more than one specialty provided that it is not duplicative of other services and meets definitional requirements. Providers in the same specialty and in the same group may provide concurrent follow-up critical care on the same date provided that they use the code for subsequent time intervals. Time spent by more than one practitioner in the same group with the same specialty would be combined for purposes of meeting the time requirement to bill the initiating code. No other E/M visit could be billed for the same patient on the same date as a critical care service by the same practitioner, or by practitioners of the same specialty in the same group. Critical care visits could be furnished as split/shared visits and the policies above would generally apply except CMS would use a different list of qualifying activities, as described on pages 31-32 of the CPT Codebook. Practitioners would be required to document the total time critical care services were provided and the role played by each practitioner, and attest that any services furnished were medically reasonable and necessary. In a reversal of its proposed policy, CMS will not bundle critical care visits with global surgical codes but may consider in future rulemaking an adjustment that would be used to identify critical care that is billed in conjunction with a global surgical procedure, and would discount one of the services rather than paying for both in their entirety.

Teaching Physician Services. Only the teaching physician's total time performing qualifying activities will count toward determining office/outpatient E/M visit level. This includes time that the resident performs qualifying activities when the teaching physician is present. It excludes time spent by the resident furnishing care without the presence of the teaching physician and time that is general and not limited to discussion that is required for the management of a specific patient. After the COVID-19 PHE, the teaching physician presence requirements can be met through real-time audio/video communication technology only in residency training sites located outside of metropolitan statistical areas (MSAs).

Primary Care Exception. Only medical decision-making (MDM) – not time – can be used to select office/outpatient E/M visit level under the primary care exception. Upon the conclusion of the PHE, levels 4-5 office/outpatient E/M visits will no longer be included in the primary care exception.

Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)

Mental Telehealth Services. For CY 2022, CMS will expand the definition of RHC or FQHC mental health visits to include telehealth encounters paid at the same rate as in-person services and will allow RHCs and FQHCs to furnish mental health visits using audio-only interactions based on beneficiary preference or capability using modifier 95. CMS finalized that an in-person service must be provided within six months prior, and every 12 months thereafter, with certain exceptions when the risk and burdens outweigh the benefits of an in-person service, which must be documented in the medical record.

COVID-19 PHE Flexibilities. The temporary authority to pay RHCs and FQHCs for furnishing distant site Medicare telehealth services expires when the PHE ends. While they will continue to be able to serve as an originating site, they will be paid under the RHC All-Inclusive Rate (AIR) or FQHC Prospective Payment System (PPS). For the duration of the COVID-19 PHE, the 50-bed cap to determine whether an RHC is subject to a payment limit will be based on the number of beds on the cost report prior to the PHE.

Payment Policy Updates. Under the 2021 CAA, starting April 1, 2021, all RHCs are subject to an updated payment limit per visit, which will gradually increase annually until 2028. In 2022, the rate is $113 per visit. The CY 2022 MEI update is 2.1 percent. The CAA authorizes RHCs and FQHCs to begin receiving payment for hospice physician services under the FQHC PPS or RHC AIR beginning next year. In this rule, CMS clarifies the scope of benefits and services. The U.S. Department of Health and Human Services (HHS) will allow RHCs and FQHCs to bill for transitional care management services furnished for the same beneficiary during the same service period, including those that span 30 days. CMS received feedback that enrolling all Indian Health Service- and tribally-operated outpatient facilities/clinics as FQHCs and making them eligible for payment at the Medicare outpatient per visit rate/AIR is not an approach favored by stakeholders. Finally, RHCs enrolled in Medicare after 2020 will no longer be allowed to file consolidated cost reports.

Valuing Specific Services

The finalized work relative value units (RVUs), work time, direct practice expense (PE) inputs and other payment information for all CY 2022 payable codes are available on the CMS website under downloads for the CY 2022 MPFS final rule.

Physician Assistant (PA) Services. Under the CAA, effective Jan. 1, 2022, PAs are authorized to bill the Medicare program and be paid directly for their services the same way nurse practitioners (NPs) and clinical nurse specialists (CNSs) do, including incident to services. They will be paid at 80 percent of the lesser of the NPP's actual charge or 85 percent of the amount that would be paid to a physician under the MPFS. They may also reassign their billing rights and choose to incorporate as a group comprised solely of practitioners in their specialty and bill the Medicare program.

Therapy Services. CMS is required by statute to apply a 15 percent payment reduction to occupational therapy services and outpatient physical therapy services that are provided, in whole or in part, by a physical therapist assistant (PTA) or occupational therapy assistant (OTA) which CMS defines as when more than 10 percent of the service is furnished by the PTA or OTA. The discount will be applied to the 80 percent of allowed charges. CMS makes refinements to its de minimis policy to clarify concerns raised by stakeholders in response to earlier guidance.

Medical Nutrition Therapy (MNT) and Related Services. MNT services are paid at 100 percent (instead of 80 percent) of 85 percent of the MPFS-approved amount without patient cost sharing. CMS specified that registered dietitian or nutrition professional services are provided on an assignment basis and clarified that referral for MNT services must be from a physician and that "co-signatures" from another provider type do not qualify.

Additional Procedures Furnished During Colorectal Cancer Screening Tests. All policies were finalized as proposed. The CAA requires reducing Medicare coinsurance for certain colorectal cancer screening tests including flexible sigmoidoscopies, colorectal cancer screening tests and screening colonoscopies, regardless of whether there is a removal of tissue or other matter, or another procedure performed in connection with and in the same clinical encounter as the screening test and it is later billed as a diagnostic test. The reduced coinsurance will be phased-in accordingly: CY 2020 – 20 percent; CY 2023-2026 – 15 percent; CY 2027-2029 – 10 percent; CY 2030-onward – zero percent. Medicare will pay the difference.

Rehabilitation Services. CMS finalized several changes to establish consistent terminology, definitions and requirements and added COVID-19 as a covered condition for pulmonary rehabilitation (PR), including those who experience persistent symptoms (including respiratory dysfunction) for at least four weeks. CMS also removed the direct physician-patient contact requirement for PR services.

Medical Nutrition Therapy Services. CMS will no longer require referral by a "treating" physician; referral by a qualifying physician will suffice and notes that the statute prevents it from extending referral privileges to other types of providers. CMS adjusted glomerular filtration rate (GFR) criteria to bring it in line with updated standards for moderate kidney disease.

Multiple Procedure Payment Reduction (MPPR) and Outpatient Prospective Payment System (OPPS) Cap. CMS added several services to the list of codes subject to the OPPS cap.

Laboratory Specimen Collection and Travel Policies. Increased nominal specimen collection fees and associated travel allowances for the collection of COVID-19 testing will conclude with the PHE. CMS will permanently allow use of electronic travel logs and will issue further guidance in this regard.

Emerging Technologies. For CY 2022, CMS established values for emerging technologies by cross-walking them to existing CPT codes and is considering refining the PE methodology for emerging technologies such as artificial intelligence (AI) that may not appropriately qualify as indirect costs.

Coding Valuation and Corrections. CMS permanently adopted coding and payment for Healthcare Common Procedure Coding System (HCPCS) code G2252 (brief communication technology-based service, such as virtual check-in service) using a crosswalk to the value of CPT code 99442 and made several technical changes.

Updates to Pricing Inputs. This is the final year of the supply and equipment pricing update (Table 10). CMS made updates to clinical labor pricing (Table 8) to reflect the supply and equipment pricing updates, and updated the recommended prices for approximately 70 supply and equipment codes identified by the commenters (Table 9). Finalized Clinical Labor Pricing Updates are reflected in Table 12 and the specialty impact can be found in Table 13. More information can be found in the CMS downloads section for the rule.

Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging Services

CMS delayed the effective date for the penalty phase to either Jan. 1, 2023, or the first January following the end of the COVID-19 PHE, whichever is later. Penalties will not apply to imaging services ordered prior to, but furnished on or after the effective date of the AUC program. When the penalty phase begins, CMS will return claims for correction and resubmission. It may deny claims in the future. Furnishing professionals that modify an order with a replacement and/or additional imaging service, and are unable to reach the ordering professional for a new order, may append the claim for the original order. CMS created a series of claims processing edits and modifiers to address specific scenarios and identify exempt claims, including allowing more than one ordering practitioner to be listed on a claim and address scenarios where Medicare is the secondary payer.

Removal of Select National Coverage Determinations

CMS finalized two National Coverage Determinations (NCDs) for removal: 1) enteral and parenteral nutritional therapy; and 2) positron emission tomography (PET) scans and expanded criteria for future NCD removal, including when local determinations would be more appropriate, when the technology is obsolete or when superseded by more recent policy.

Medicare Ground Ambulance Data Collection System

CMS finalized specific wording changes to the data collection questions to address stakeholder comments and reduce confusion. Because of the COVID-19 pandemic, CMS previously delayed data collection. To collect data over multiple years (as was intended) CMS will delay data collection and reporting for selected Year 3 organizations an additional year, to 2023 and 2024, which would align with Year 4 organizations. Year 1 and 2 organizations will collect data in 2022 and report in 2023. CMS will notify an eligible ground ambulance organization that it has been selected to report data for a year at least 30 days prior and will post a list of selected organizations on the CMS webpage. Ground ambulance organizations have five months into the reporting year to report their data. If they do not sufficiently report, they will receive a 10 percent payment penalty the following calendar year. CMS will begin publicly posting this data in 2024. Data collection components are summarized in Table 38.

Medicare Diabetes Prevention Program (MDPP)

In response to participate feedback, CMS shortened the program to one year, but increase total payments to a maximum of $705, as broken down in Table 39. Specifically, CMS redistributed all the ongoing maintenance sessions phase performance payments to certain core and core maintenance session performance payments and increased attendance payments. To boost participation, CMS will also waive the $599 Medicare enrollment fee for all MDPP providers.

Medicare Enrollment

CMS generally extended its scope of authority to deny or revoke enrollment. Specifically, it now covers cases where a provider suspends his/her U.S. Drug Enforcement Administration certificate in response to an order to show cause, failure to supply timely additional documentation in response to a prepayment or post-payment audit, and extends to administrative or management services personnel such as billing or human resource specialists.

The agency also clarified the process for rebutting Medicare deactivations. Specifically, providers/suppliers will typically have 15 calendar days from the date of written notice to submit a rebuttal. Rebuttals must be submitted in a signed and dated letter specifying any disputed facts/issues with reasoning plus any supporting documentation. Rebuttals do not suspend or postpone the deactivation's implementation. If CMS does determine the deactivation was erroneous, it would be reversed. Failure to submit a complete rebuttal within the time frame constitutes a waiver of all rebuttal rights.

Finally, Independent Diagnostic Testing Facilities with no beneficiary interaction, treatment or testing at their location will be partially or wholly exempt from several requirements.

Physician Self-Referral Updates

CMS finalized several clarifications pertaining to: 1) the prohibition on certain unit of service-based compensation formulas for the lease or use of office space or equipment, 2) exception requirements for COVID-19 vaccines, and 3) the definition of "unit." CMS will update the code list each quarter, which it will publish to the CMS website. The agency will provide an advance 30-day notice and comment period. Tables 41 and 42 identify the additions and deletions, respectively, to the comprehensive Code List that become effective Jan. 1, 2022.

Medicare Part B Drugs

Starting next year, manufacturers will be required to report each quarter average sales price (ASP) data for all national drug codes (NDCs) under the same U.S. Food and Drug Administration (FDA) approval application for Part B drugs regardless of whether or not they have Medicaid drug rebate agreements. Any item, service, supply or product payable under Part B as a drug or biological in existing drug pricing reporting requirements will be included, including repackaged products. A civil monetary penalty of up to $10,000 may be applied for each drug price misrepresentation per day. CMS details the ASP payment limit calculation methodology, which uses a volume-weighted average of the average sales price and calculates with and without self-administered drugs and uses the lesser of the two, excluding certain drugs in short supply.

E-Prescribing for Part D Drugs

CMS encourages all providers to conduct e-prescribing as soon as feasible, but due to the pandemic, delayed the e-prescribing compliance deadline to no earlier than Jan. 1, 2023, and Jan. 1, 2025, for beneficiaries in long-term care facilities (excluding nursing facilities covered under Part A). Violators will receive a letter from CMS. At this time, CMS is not proposing penalties but may do so in the future. CMS also finalized several new exemptions for when the prescriber and dispensing pharmacy are the same entity, recognized emergencies (with a CMS-approved waiver), low-volume prescribers and extraordinary circumstances (including lack of broadband access). Prescribers will be considered compliant if they prescribe at least 70 percent of their Part D controlled substances prescriptions electronically (excluding those covered by an exception).

Open Payments Program

The Open Payments Program posts public information about the financial relationships between the pharmaceutical and medical device industry and providers. CMS finalized several data requirement changes that would be effective for data collected in CY 2023 and reported in CY 2024, including: 1) adding payment information (e.g., check numbers) to identify payments; 2) adding an option to recertify annually when no records are reported; 3) disallowing record deletions without a substantiated reason; 4) updating ownership and investment interest definitions to align with the IRS definitions; 5) disallowing publications delays for payment records; 6) clarifying that the exception for short-term loans applies for 90 total (not consecutive) days; 7) removing the option to submit a general payment record so that all entities must submit an ownership record; and 8) requiring companies with reportable data within past two years to maintain up-to-date contact information.

Quality Payment Program

Merit-Based Incentive Payment System (MIPS)

Reporting and Scoring. CMS added certified nurse-midwives and clinical social workers to the list of MIPS eligible clinicians (ECs). Web interface will cease to be available to group MIPS reporters after 2022. Under statute, the weights of the four performance categories for 2022 (and moving forward) will be: Quality – 30 percent; Cost – 30 percent; Improvement Activities – 15 percent; and Promoting Interoperability – 25 percent. The 2022 MIPS threshold is 75 points (up from 60), and the exceptional performance threshold is 89 points. Moving forward, MIPS performance threshold must be set on mean or median performance. CMS made the complex patient bonus methodology more challenging in part by adding a social complexity element and terminated the high-priority measure and e-prescribing bonuses. However, the agency did institute a new 5 to 7 point floor to incentivize reporting new measures. Scoring policies are summarized in Tables 60 and 61. Weight redistributing policies are summarized in Tables 63-65. The maximum MIPS payment penalty for 2022 onward is 9 percent; the bonus depends on penalties collected.

Future Goals. CMS intends to transition to full digital quality measurement by 2025 and is working to convert current electronic clinical quality measures (eCQMs) to the Fast Healthcare Interoperability Resources (FHIR) standard and believes Application Programming Interfaces (APIs) will play a major role in standardizing and exchanging data. CMS also intends to make achieving health equity a key priority of future improvement programs.

Quality Category. CMS will maintain the data completeness threshold at 70 percent for 2022 and 2023. The agency extended Web Interface as an available reporting mechanism through 2022. As it does every year, CMS made changes to the quality measure inventory, including adding two new administrative claims measures, which are summarized in Appendix 1. CMS will prioritize digital and electronic quality measures for future adoption.

Cost Category. CMS finalized five new episode-based measures, including two new chronic condition measures, which are summarized in Tables 52 and 54. Specifications for those measures are available on the CMS website. The agency also adopted formal criteria for what would constitute a "substantial change" for cost measures, which would impact future benchmarking and scoring, as well as a stakeholder development process for new cost measures (including priority criteria), and a new policy for not scoring measures in instances where outside factors may impede effective, reliable measurement.

Improvement Activities Category. CMS made changes to the improvement activities inventory, summarized in Appendix 2, many of which are centered around health equity. The 50 percent group threshold will now apply to subgroups. Activities will be required to meet eight criteria. CMS will also take into consideration six priority factors. CMS will immediately suspend any activity that may pose a safety concern or is obsolete. Nominations for new activities should be submitted by Jan. 5 of the relevant performance year to receive full consideration.

Promoting Interoperability (PI) Category. The query of prescription drug monitoring program measure will remain optional in 2022 with 10 available bonus points. The Public Health Registry Reporting, Clinical Data Registry Reporting and Syndromic Surveillance Reporting measures will also remain optional worth up to five bonus points if at least one of the three is reported. The immunization registry reporting and electronic case reporting attestation-based measures will both become mandatory unless an exclusion is claimed. The 2022 PI objectives and measures and scoring methodologies are summarized in Tables 56-58. Other changes include removing existing attestation statements B and C, and adding a new attestation requirement certifying to an annual self-assessments using Safety Assurance Factors for EHR Resilience (SAFER) guidelines. Additionally, small practices will no longer be required to submit hardship exception applications; instead CMS will automatically reweight the PI category if no data is received. For 2022 NPPs will continue to have the category reweighted, though CMS may consider changing this in the future. Finally, CMS sought comment on how to better align category requirements with the HL7 FHIR standard and better incentivize patient access through patient portals or other third-party applications such as OpenNotes, and may consider such changes in future rulemaking.

MIPS Value Pathways (MVPs)

Timeline and Participation. CMS delayed MVPs until 2023. It will begin as optional, but eventually CMS intends to sunset traditional MIPS and require reporting via MVPs. MIPS ECs will generally be able to participate in MVPs, with limited exceptions. CMS will start with seven MVPs (Appendix 3) and plans to add more in the future.

Subgroups. Subgroup reporting will be optional to start and required for multispecialty groups beginning in 2026 for all categories except PI. MIPS vendors will be required to support MVP reporting at the subgroup level for relevant MVPs starting in 2023.

Registering. MVP reporters must register by Nov. 30 of the relevant performance year with their choice of MVP; selected measures; list of associated tax identification number/national provider identifier (TIN/NPI) combinations; and subgroup name (if applicable). Those reporting Consumer Assessment of Healthcare Providers and Systems (CAHPS) for MIPS survey results must register by June 30 of the relevant performance year. Tables 48 and 49 summarize the MVP registration process.

Reporting Requirements. MVP reporting requirements are summarized in Table 47. CMS does not prescribe a certain number of measures for MVPs but says "to the extent possible" MVPs should include a maximum 10 quality measures and improvement activities. All MVP reporters must select a population health measure plus four additional quality measures (including at least one outcome measure or high-priority measure), either two medium-weighted or one high-weighted improvement activity (or participate in a patient-centered medical home or comparable specialty practice), and any cost measures assigned to that MVP. The full set of PI measures will apply to all MVPs.

Data Scoring and Feedback. MVP scoring will generally mirror MIPS, but the small practice bonus will not be capped. Facility-based scoring will apply. Small practices will not be penalized for reporting fewer than four quality measures if they report all of the measures relevant to them. MVP reporters will receive performance feedback relative to others who report the same MVP. Public posting of MVP data will be delayed for one year and posting of data on new measures or activities will be delayed one to two years.

Alternative Payment Model (APM) Performance Pathway (APP)

Subgroup reporting will be allowed under the APP starting in 2023. Facility-based scoring is not available under the APP. Web Interface will continue to be available through the 2024 performance year. Tables 50 and 51 summarize the final 2022 APP measures set.

Medicare Shared Savings Program (MSSP)

Application Process. To reduce burden, CMS will only require disclosure of prior participation and sample participant agreements upon request. CMS reduced required payment mechanism amounts in half and current Accountable Care Organizations (ACOs) may elect to decrease their amount without signing a new participation agreement. Moving forward, ACOs are only required to update repayment amounts if the recalculated amount exceeds the previous by at least $1 million and will be notified by CMS in writing if that is the case.

Beneficiary Assignment. CMS made changes to the list of primary care services used for beneficiary assignment. The number of assigned beneficiaries will be counted at the beginning of the performance year (as opposed to being based on historical data). ACOs with preliminary prospective assignment must provide written notice to all fee-for-service (FFS) beneficiaries prior to or at their first primary care visit each year. ACOs with prospective assignment must do so for all prospectively assigned beneficiaries.

Quality Performance. Table 35 summarizes the 2022 MSSP measures set, which includes replacing the All-Cause Unplanned Admissions for Multiple Chronic Conditions for ACOs measure with the matching MIPS measure. In 2022, all ACOs must administer the CAHPS for MIPS survey and will be evaluated by CMS on two claims-based measures. In addition, ACOs must choose to report 10 Web Interface measures or three electronic clinical quality measures. CMS held the minimum quality performance threshold at 30 percent for 2022 (though it will increase to 40 percent in 2023), and finalized several policies to encourage ACOs to report eCQMs. Table 34 summarizes complete reporting requirements and quality performance standards for 2022 and beyond. Web Interface will be available through the end of the 2024 performance year.

Advanced APM Incentive Payment Methodology

The CAA froze Qualified Participant (QP) thresholds at 2019-2020 levels for 2021-2022. Starting with 2023 performance, QP thresholds will increase to 75 percent for the payment threshold and 50 percent for the patient count threshold (and 50 percent and 35 percent for the partial QP thresholds, respectively). Under the All-Payer Combination Option, ECs also have to meet separate Medicare minimums. The 2022 QP thresholds are listed in Table 75. For each step in the APM incentive payment decision hierarchy, CMS will first search for TINs associated with the QP during the performance period, and if no such TIN was available, then it will search for TINs associated with the QP during the payment year. If CMS needs to divide the incentive payment between multiple TINs, it will apportion the payment based on the share of total payments for covered professional services made to each TIN in the base year.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


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