Jan. 11, 2018: National Advocacy Update

As physicians prepare to report their 2017 Merit-based Incentive Payment System (MIPS) data, they should review the Centers for Medicare and Medicaid Services' (CMS) validation criteria for quality, Improvement Activities (IA), and Advancing Care Information (ACI). Physicians and group practices have until March 31, 2018, to submit 2017 data. CMS web interface users—which includes groups with 25 or more clinicians and some alternative payment model (APM) entities—have a shorter timeframe to submit quality data. Their submission window opens Jan. 22, 2018, and closes March 16, 2018, at 8 p.m. Eastern time.

For purposes of quality reporting, physicians and group practices are highly encouraged to work with their electronic health record, qualified registry or qualified clinical data registry vendor to make sure they are following CMS' validation criteria, and that they are prepared to meet CMS' 2017 MIPS submission deadline to ensure successful participation on the practice's behalf. Of note, the ACI validation criteria contain suggested documentation for a Security Risk Analysis.

Further, while IAs are attestation-based, physicians are encouraged to retain documentation supporting their IA performance as outlined in the validation criteria. CMS suggests physicians retain MIPS documentation for six years. Due to the increasing need to reduce administrative burden, the AMA will encourage CMS to continue using attestation-based measures in IA and to identify opportunities for simplified measure reporting under ACI.

Please note that if you are participating in a MIPS APM or an advanced APM, work with your APM Entity to discuss any special considerations regarding your submission and performance feedback. For information on MIPS validation criteria and data submission, please review CMS' QPP Resource Library.

The AMA began the year by submitting comments (PDF) to the Centers for Medicare and Medicaid Services (CMS) on the 2018 Quality Payment Program (QPP) final rule. The AMA, in its Jan. 2 letter, commended CMS on finalizing a number of policies that had been recommended by the Association for the 2018 performance year, including:

• The expansion of the low-volume threshold
• The ability for small groups and solo practitioners to form virtual groups
• New bonus points for small practices and physicians who treat complex patients

The AMA also supported changes within each QPP performance category such as CMS' policies within the Advancing Care Information (ACI) category to extend certified electronic health record technology (CEHRT) flexibility for 2018 and provide a new hardship exemption for small practices.

While the AMA supported many of the policies finalized in the rule, it also expressed extreme disappointment that CMS chose to reverse its earlier decision and will assign the Cost performance category a weight of 10 percent in 2018. The AMA expressed its continued belief that the two measures physicians will be judged on in 2018 are highly flawed, often irrelevant, and jeopardize access to care for patients with high-cost conditions.

The AMA also expressed concerns regarding the methodology used for creating quality measure benchmarks, and provided detailed feedback on alternative methodologies that CMS could use to establish the benchmarks. The AMA will continue to work with CMS throughout 2018 to improve the QPP.

The AMA has outlined its legislative and regulatory priorities for 2018, which are grounded by its mission, policies and long-standing goal of influencing a legal and regulatory environment that supports a healthier nation.

These issues include:

• Protecting access to coverage
• Medicare physician payment reform
• Telemedicine
• Drug pricing transparency
• Insurer issues
• Ending the opioid epidemic
• Prior authorization
• Regulatory relief
• Scope of practice

Late last year, CMS released guidance on the information-blocking attestation requirement for the Advancing Care Information (ACI) component in MIPS. All physicians participating in ACI must show that they are meeting this requirement by attesting to three statements about how they implement and use certified electronic health record technology (CEHRT).

To earn an ACI score, physicians have to act in good faith when implementing and using CEHRT to exchange electronic health information. The AMA views this attestation requirement as overly burdensome and was successful in alleviating the need for physicians to provide documentation showing they have acted in good faith. Per this guidance, physicians must only attest to complying with these requirements.

Furthermore, the AMA was successful in seeking clarification that physicians will not be held responsible for outcomes they cannot reasonably influence or control. For instance, it will not be viewed as data blocking if a physician's EHR is down for maintenance or if data are unavailable due to an EHR malfunction. Physicians participating in the ACI component of MIPS are encouraged to review this guidance from CMS. It is also recommended that physicians alert their EHR vendors to these requirements as many of them directly relate to EHR performance, setup and function.

On Jan. 4, 2018, the Department of Labor (DOL) released a proposed rule regarding Association Health Plans (AHPs) in response to President Trump's Executive Order 13813 (Promoting Healthcare Choice and Competition Across the United States). In the proposed rule, DOL broadens the definition of "employer" under the Employee Retirement Income Security Act of 1974 (ERISA) to include AHPs. By treating the AHP itself as an employer that is sponsoring a single health insurance plan for its employer members, the AHP will be regulated as a group health plan under ERISA. Employer membership in the AHP can be based on common industry (e.g., employers being in the same trade, industry, or line of business) and on geography (e.g., same state or same metropolitan area), and it can include sole proprietors and their dependents.

DOL also proposed that the AHPs must follow the same non-discrimination provisions that any other ERISA plan must follow, including not being able to adjust an individual's premiums based on a health factor like a medical condition or health status. However, AHPs, like other group plans, will be able to make benefit package decisions that could disproportionately impact individuals with pre-existing conditions. Furthermore, if an AHP qualifies for large group market coverage, the AHP will not be required to cover essential health benefits and premiums may vary based on non-health factors like age, gender and occupation.

As described in the proposal, AHPs are a type of "multiple employer welfare arrangement" or MEWA. In 1983, Congress provided an exception to ERISA's broad preemption provision for regulation of MEWAs under state insurance laws. Thus, for example, state insurance laws that regulate solvency, benefit levels or ratings apply to the proposed self-funded AHPs as long as the state law is not inconsistent with ERISA. The AMA is reviewing the proposed rule and plans to submit comments by the March 6 deadline.

• Jan. 11, 2018: Advocacy spotlight on Physicians, payers collaborate on prior-authorization relief
• Jan. 11, 2018: State Advocacy Update