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Regulatory Affairs

What We Do

As part of our overall federal advocacy strategy, ACEP’s Regulatory Affairs team plays an active role in monitoring and influencing federal regulations and other policies developed by federal agencies. ACEP also advocates on behalf of our members to reduce burdensome requirements that impact their ability to treat patients, ensure fair reimbursement, and eliminate unfair insurer billing practices.

Emergency physicians provide the vast majority of acute care for Medicare and Medicaid patients in the U.S. Medicare rates are often used to set Medicaid and private payor payment rates, yet they do not cover the costs of providing care and have not kept up with the pace of inflation over the last few decades. However, inadequate Medicare and Medicaid payment rates ultimately damper the medical student pipeline and make it more challenging for patients seeking emergency care.

Given the importance of Medicare payment policies on emergency physician reimbursement, ACEP has advocated to both the Centers for Medicare & Medicaid Services (CMS) and to Congress to address the payment deficiencies in Medicare and impose payment rates that increase with inflation.   

The annual Medicare Physician Fee Schedule (PFS) regulation makes updates not only to Medicare physician payments for the next calendar year, but also to the Quality Payment Program (QPP), the major quality reporting program for physicians under Medicare. Failure to successfully participate in the Merit-based Incentive Program (MIPS)—the main track within the QPP—could result in a 9 percent reduction to your Medicare payments. 

In addition, ACEP works with other influential nongovernmental organizations to advocate for important issues affecting emergency physicians.

Medicare Reimbursement

Medicare reimbursement rates fare extremely important for emergency physicians. not only do they affect Medicare payments, but they serve as the basis for which private payors establish their own individual payment levels.

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Merit-based Incentive Payment System (MIPS)

The Medicare Physician Fee Schedule (PFS) regulation makes updates to the Quality Payment Program (QPP), the major quality reporting program for physicians under Medicare. 

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Updates

  • ACEP submitted a comment letter on the proposed rule for the FY 2024 Medicare Inpatient Prospective Payment System (IPPS)--the comments included expressing significant concerns about the proposed adoption of the Sepsis and Septic Shock measure, as well as support for potential future addition of two geriatric care measures which align well with ACEP's Geriatric ED Accreditation program, or GEDA.  
  • The COVID-19 public health emergency (PHE) ended on May 11. Read this blog post from February (with some updates) about how the end of the PHE affects you and your patients.
  • On May 9, the DEA released a temporary extension of the COVID-19 telemedicine flexibilities for controlled medications this morning. The DEA had hinted that they would be extending these flexibilities in the past few weeks, without specificity of the extension term. As laid out in the temporary rule, the full set of telemedicine flexibilities regarding prescriptions of controlled medications as were in place during the COVID-19 PHE will remain in place through November 11, 2023. Additionally, for any practitioner-patient telemedicine relationships that have been or will be established on or before November 11, 2023, the full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID-19 PHE will continue to be permitted via a one-year grace period through November 11, 2024. In other words, if a patient and a practitioner have established a telemedicine relationship on or before November 11, 2023, the same telemedicine flexibilities that have governed the relationship to that point are permitted until November 11, 2024. 
  • On May 1, HHS, through CMS, announced investigations of two hospitals for failure to offer necessary stabilizing care to an individual experiencing an emergency medical condition, in violation of EMTALA In addition, HHS wrote to hospital and provider associations to reinforce that federal EMTALA requirements “continue to require that healthcare professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition.”
  • On April 27, HHS, Labor, and Treasury issued reports on the No Surprises Act Independent Dispute Resolution process. The quarterly report shares the same data elements as the initial report released last December for the fourth quarter of 2022. The status update provides additional summary data up to March 31, 2023. Of note, providers have won 71 percent of the IDR disputes thus far.
  • On April 24, CMS issued a proposed reg that would expand access to health care through the Affordable Care Act (ACA) Marketplaces, Medicaid, and the Children’s Health Insurance Program (CHIP) by allowing coverage for Deferred Action for Childhood Arrivals (DACA) recipients.
  • On April 12, The Office for Civil Rights (OCR) within HHS issued a proposed rule that would prohibit the use or disclosure of protected health information (PHI) to investigate, or prosecute patients, providers, and others involved in the provision of legal reproductive health care.
  • On April 11, ACEP responded to a proposed rule issued by CMS that would require the disclosure of certain ownership, managerial, and other information regarding Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities.
  • On April 11, the Office of the National Coordinator for Health Information Technology (ONC) issued a proposed rule to implement the Electronic Health Record (EHR) Reporting Program provision of the 21st Century Cures Act. The proposed rule would establish new Conditions and Maintenance of Certification requirements for health information technology (health IT) developers under the ONC Health IT Certification Program. 
  • On April 11, OCR issued a short regulation stating that it was extending its enforcement discretion and will continue not to impose penalties on practitioners that do not use HIPAA-compliant telehealth technology (like Skype and Facetime) for 90 days post the end of public health emergency (until 11:59 p.m. on August 9, 2023).
  • On April 10, CMS issued the FY 2024 Inpatient Prospective Payment System proposed rule—the major annual rule that updates Medicare hospital payments. The changes to under IPPS would result in an overall increase in IPPS payments of 2.8 percent. Policies in the proposed rule address rural emergency hospitals, social determinants of health, physician-owned hospital expansion, and other issues.
  • On March 31, the Medicare Board of Trustees released the 2023 Medicare Trustees Report, an annual report which evaluates the current status of the two Medicare Trust Funds and provides financial projections for the next 75 years. This year’s report estimates that the Hospital Insurance (HI) Trust Fund, which covers costs under Medicare Part A, will be depleted by 2031, three years later than in last year’s report.
  • On March 29, the FDA approved Narcan, 4 milligram (mg) naloxone hydrochloride nasal spray for over-the-counter (OTC), nonprescription, use – the first naloxone product approved for use without a prescription.
  • On March 17, CMS issued revised guidance for the independent dispute resolution (IDR) process that takes into account the recent Texas Medical Association Court Order. The new guidance removes the flawed "double counting" provision and states that independent arbiters must consider all evidence presented to them by the disputing parties (without weighting the qualifying payment amount more heavily than any other factor or assuming that other factors are already incorporated into the qualifying payment amount). At last, the guidance seems to closely reflect what the No Surprises Act statute actually says. This is a major advancement in ACEP's advocacy push to make the arbitration process more fair and balanced. After being suspended for services delivered after Oct. 25, 2022, IDR process is now finally reopened for all claims! Hopefully now since the IDR process is reopened, arbiters can start working through the significant backlog.
  • On March 15, the Medicare Payment Advisory Commission (MedPAC) and the Medicaid and CHIP Payment and Access Commission (MACPAC) released their respective annual Medicare and Medicaid reports to Congress. Of note, MedPAC recommends that physician payments in 2024 be increased by half of the Medicare Economic Index (MEI)—which is an indicator that captures the rising costs of providing physician services. ACEP has joined the AMA in calling for Congress to instead update payments by the full MEI.

 

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