The Value of Feedback
Centers for Medicare & Medicaid Services seeks to implement merit-based incentive payment system.
By Alpha Lillstrom Cheng, JD, MA
September 9, 2016
The Private Practice Section’s (PPS) federal policy efforts focus on advocating for and supporting the passage of bills that impact private practice physical therapy. However, the passage of legislation is not the end of the road for policy development. After a bill is signed into law by the President, the intent and direction of the law needs to be determined and implemented by an agency in the executive branch. The Department of Health and Human Services (HHS) and its Centers for Medicare & Medicaid Services (CMS) are tasked with drafting, proposing, and finalizing regulations that put meat on the bones of health care laws. Through a process known as “notice of proposed rulemaking” (NPRM), CMS releases draft regulations to the public and requests feedback and comments from stakeholders. Based on the summary, analysis, and draft comments developed by your lobbying team, PPS routinely weighs in on these proposals on behalf of the membership.
The bipartisan Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) became law last April. MACRA abolished the sustainable growth rate (SGR) formula for Medicare provider compensation and also laid the groundwork for the gradual shift of Medicare reimbursement from volume to value—from fee-for-service to pay-for-performance. As a result, CMS is tasked with consolidating several existing programs, including Medicare and Medicaid electronic health record (EHR) incentive programs, Physician Quality Reporting System (PQRS), and the Value-Based Payment Modifier (VM) into a single program called the Merit-Based Incentive Payment System (MIPS). Starting in 2019, MIPS allows annual payment updates to be provided to a list of eligible professionals—physicians, physician assistants, nurse practitioners, clinical nurse specialists, and certified registered nurse anesthetists—for providing high-value care based on their performance in four categories: quality, use of EHR, clinical practice improvement activities, and cost. Physical therapists will eventually be added to the list of eligible professionals and when that time comes, this list of measures could be problematic because physical therapists are not currently required to use all of the measurement mechanisms referenced.
In May 2016, CMS issued an NPRM1 (see the Links sidebar) seeking to implement the MIPS provisions of MACRA. As noted, physical therapists are not a part of MIPS at this time but they may be added to the program after two years. We believe that the parameters used for applying MIPS to those providers in this first group provide insight into how the program will affect physical therapists when it is expanded in the future. Therefore on June 27, PPS submitted comments to CMS addressing its proposed regulations seeking to align Medicare payments with the cost and quality of patient care. The PPS emphasized that the regulations as proposed are largely focused on hospital-based providers as well as those practicing in large groups. The highlights of PPS’s comments are as follows:
Expanding Application to Additional Nonphysical Providers
The MACRA law calls for MIPS to be implemented in 2019, beginning with the list of medical professionals. But the law allows the Secretary of HHS to add nonphysician eligible professionals (such as physical therapists, occupational therapists, and speech language pathologists) in year three of MIPS. In its comments, PPS reminded CMS that physical therapists have been included in quality reporting under Medicare part B in the PQRS program since its inception in 2007 and as a profession have exceeded the overall eligible professional participation rate by 10 percent. PPS shared its concerns that the exclusion of physical therapists from the MIPS program data collection in 2017 and 2018 will have a strong negative impact on the reporting rate of quality measures by physical therapists. Furthermore, PPS is concerned that a lack of data during these years may give the public an incorrect impression that physical therapists are choosing to not participate in MIPS when instead they are legislatively excluded.
Discontinuing Current Payment Adjustment Programs and Transitioning Exclusively to MIPS2
As noted earlier, MACRA calls for the sunsetting of payment adjustments under three existing programs (PQRS, VM, and EHR incentives) for Medicare-enrolled physicians and other practitioners. CMS plans to continue payment adjustments only through 2018 (NPRM, 2016, p. 28170). Without extensions through 2020, current payment adjustment programs such as PQRS will be eliminated for those practitioners not in the first set of eligible professionals to be paid through MIPS. As a result, there will be a minimum two-year gap in the applicability of a quality-reporting program for physical therapists. PPS pointed out that such a lapse should be avoided as it would not allow physical therapists to be recognized financially (and compensated equitably) for their contributions to quality or outcomes because there will be no mechanism by which physical therapists can receive any kind of bonus or incentive payment.
Allowing for Voluntary Participation in MIPS
PPS praised CMS’s proposal to grant physical therapists the ability to voluntarily participate in MIPS in 2017 and subsequent years in order to gain reporting experience with the program before being required to participate (NPRM, 2016, p. 28173).3 As an incentive, PPS suggested that CMS should automatically apply the therapy cap exceptions process to the patients of private practice physical therapists who voluntarily participate in MIPS.
Defining the Low-Volume Threshold
MACRA exempts clinicians whose practices are below a low-volume threshold from participating in MIPS. CMS proposes to define low-volume clinicians or groups as those who meet both of the following criteria: do not exceed Medicare billing charges less than or equal to $10,000 and [emphasis added] provide care for 100 or fewer Part B–enrolled Medicare beneficiaries for a particular performance period (NPRM, 2016, p. 28178).4 Because physical therapy for complicated patients can be very costly, some private practice physical therapists could be denied the low-volume threshold after caring for only a few extremely expensive patients. This could introduce a perverse incentive for providers and result in limited access to care. PPS suggested the Secretary use her discretion to define the “low-volume threshold” within the parameters of the law, which required that only one of the tests be met. The PPS urged the Secretary to change the definition of “low-volume” provider to “an individual who provides care for 100 or fewer Part B–enrolled Medicare beneficiaries or [emphasis added] an individual MIPS-eligible clinician or group who, during the performance period, has Medicare billing charges less than or equal to $10,000” (See the Links sidebar, PPS comments, p.5).
As directed by MACRA, the Secretary is required to emphasize the application of outcome-based measures where feasible (NPRM, 2016, p. 28186).5 When including physical therapists in MIPS, CMS should take existing National Quality Forum (NQF)–endorsed outcome measures for rehabilitation therapists and other reporting pathways into account when determining the number of measures and the methods it will require. PPS also suggested that patients of private practice physical therapists who collect and report outcomes measures should automatically be eligible for exception from the Medicare therapy cap.
Advancing Care Information
Under the proposed rule, in order to receive credit for Advancing Care Information (ACI), clinicians would report customizable measures that reflect how they use technology and EHR in their day-to-day practice, with a particular emphasis on interoperability and information exchange. This poses a problem for private practice physical therapists because under current law, physical therapists are not required, nor are they rewarded or incentivized, for utilizing an EHR system. Fortunately, CMS plans to assign a weight of zero to the ACI performance category if there are an insufficient number of measures applicable for MIPS clinicians. If CMS decides the overall MIPS score for physical therapists would include the use of EHR, PPS encouraged CMS to provide a phased-in reporting requirement similar to that granted to physicians when the “Meaningful Use” program began in order to give nonphysician provider groups time to prepare to use EHR.
Clinical Practice Improvement Activities
The implementation of MIPS includes scoring an entity on Clinical Practice Improvement Activities (CPIA), which are defined as activities likely to improve outcomes. Clinicians may select activities that match the goals of their practice. Additionally, CMS proposes to evaluate small practices (consisting of 15 or fewer professionals) and those in rural or underserved areas using less stringent criteria. PPS voiced its appreciation for this provision, which will likely impact the majority of its members. PPS also praised the agency’s emphasis on activities that have a proven association with improved health outcomes and that clinicians are able to choose from among more than 90 options for activities that match their practice’s goals and services. However, PPS did suggest that only measures pertinent and applicable to the type of clinician and practice focus should be required rather than the number of measures that is currently required by PQRS. In its comments, PPS argued that a focus on the quantity of measures creates a paperwork exercise that is of little value to the patient. Moreover, time spent on the measures during a patient treatment session can outweigh the potential bonus (or penalty) for that time spent. Such a policy would not be a practical incentive nor valuable use of patient time.
One of the criteria within MIPS is the cost of care (NPRM, 2016, p. 38181).6 PPS pointedly expressed that therapists are not in a position to have their performance evaluated on the total cost of care at this time. Numerous studies demonstrate the positive impact of early therapy intervention in reducing therapy utilization and improving outcomes, and in some cases, even decreasing the need for additional costly interventions. However, physical therapists in private practice have little to no control over when the patient begins therapy. Until physical therapists are able to initiate timely intervention, responsibility for part of the cost-of-care calculation is premature. PPS pointed out that this is yet another reason why Medicare should enable physical therapists to be the entry point to care for Medicare beneficiaries with certain conditions.
While PPS appreciates CMS’s goal of quarterly performance feedback (NPRM, 2016, p. 28277)7 and has long encouraged the agency to develop timely, actionable feedback reports for providers, it suggested that feedback received on less than a quarterly basis is insufficiently timely for business, patient, and clinical management purposes. Historically, the feedback for claims-based reporting has been significantly delayed and this lag time must be shortened. PPS argued that without timely feedback (e.g., received within six weeks of the last date for data submission) meaningful quality improvement cannot be achieved.
The implementation of the MIPS will impact physical therapists in private practice, as well as outpatient physical therapy services furnished in a variety of settings and types of facilities, for the foreseeable future. PPS offered its perspective on relevant aspects of the NPRM on which it has standing, experience, and valuable points to share. The comments submitted by PPS on behalf of the over 4,100 members of the PPS sought to convey to CMS how the proposed rules would impact the practice of physical therapy in a private practice setting as well as offer reasonable and constructive suggestions for improvement. The final rule is expected to be published this fall.
1. “Medicare Program, Merit-Based Incentive Payment System (MIPS), and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician Focused Payment Models”, published May 9, 2016, Federal Register Vol.81, No.89, www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, pp. 28166.
2. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, p. 28170.
3. Ibid. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, p. 28173.
4. Ibid. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, p. 28178.
5. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, p. 28186.
6. Ibid. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, pp. 38181.
7. Ibid. www.gpo.gov/fdsys/pkg/FR-2016-05-09/pdf/2016-10032.pdf, pp. 28277.
Alpha Lillstrom is a registered federal lobbyist working with Connolly Strategies & Initiatives, which has been retained by PPS. An attorney by training, she provides guidance to companies, nonprofit organizations, and political campaigns. For six years, she served as Senior Policy Advisor and Counsel for Health, Judiciary, and Education issues for Senator Jon Tester (Montana), advising and contributing to the development of the Affordable Care Act, as well as working on issues of election law, privacy, government transparency, and accountability. Alpha has also directed Voter Protection efforts for Senators Bob Casey, Al Franken, Russ Feingold, and Mark Begich. She was Senator Franken’s Policy Director during his first campaign and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.