5 Regulatory Issues for Physician Groups to Watch in 2023
By Chris Emper, JD, MBA
Government Affairs Advisor
NextGen Healthcare
Original Publish Date: February 7, 2023
In the final two months of 2022, the Centers for Medicare and Medicaid Services (CMS) released over 5,000 pages of new regulations and the U.S. Congress passed into law a 4,000-plus page omnibus spending bill that had over 1,000 pages of healthcare provisions. Unsurprisingly, many physician groups are still trying to dig through all of this paper to make sense of what these 2022 end-of-year laws and regulations will mean for them.
But now it’s January and the 2023 new year is here…which means it is also the perfect time to look ahead and consider what’s coming next—especially with a new Congress and several key regulatory initiatives already underway! As such, here are my Top Regulatory Issues for Physician Groups to Watch in 2023:
- Prior authorization “reforms.” Physicians consistently identify the payer prior authorization process as a top source of professional burnout and job dissatisfaction. In response, the government wants to issue new regulations to limit those burdens and further digitize the prior authorization process. In December, CMS released a proposed rule focused on electronic prior authorization that includes several new Application Programming Interface (API) requirements applicable to payers operating in government sponsored programs (Medicare Advantage, Medicaid, CHIP, and individual market exchanges). Provisions included in that rule would automate the prior authorization process and facilitate the exchange of requests and decisions from a provider’s EHR or PM system. The rule would also add a new Electronic Prior Authorization measure to the Merit-based Incentive Payment System (MIPS) Promoting Interoperability category that providers would be required to report starting in 2026. The proposed rule is open for public comment through March 13, and following the close of the comment period, CMS could issue a final rule in late 2023. Meanwhile, the U.S. Department of Health and Human Services’ (HHS) Office of the National Coordinator for Health IT (ONC) is expected to soon release its own proposed rule with new EHR certification requirements related to this new prior authorization process. Once finalized, this would have important implications for both certified EHR companies and their provider clients.
- Price transparency and cost estimate mandates. In an effort to boost transparency and eliminate surprise medical bills, the 2020 No Surprises Act law included a provision that requires healthcare providers to offer patients detailed pre-visit cost estimates. The specific requirements for these estimates vary by payer and visit type and are currently at different stages of implementation. As of January 2022, providers are required to furnish good faith cost estimates (GFEs) to uninsured or self-pay individuals. However, CMS has indefinitely delayed enforcement of the co-provider and co-facility requirements for uninsured or self-pay individuals (which will eventually force providers to include cost estimates for all items and services “reasonably” expected to occur during a scheduled visit, including those from other providers, facilities, and labs). CMS has also indefinitely delayed the requirements for providers to share data with payers so that payers can furnish a pre-visit advanced explanation of benefits (AEOB) document to insured patients intending to submit claims. In a fall 2022 Request for Information (RFI), CMS admitted that the lack of data standards and interoperability among healthcare providers and between payers and providers was the reason for these delays. In 2023, CMS is likely to issue rulemakings to implement these outstanding No Surprise Act requirements. These rules would likely create new financial data sharing standards and processes that will be extremely important for providers, insurers, and technology companies.
- The “next” stage of Cures Act data sharing rules. The 2016 21st Century Cures Act law included three key policies intended to advance health data interoperability: (1) EHR certification program updates; (2) information blocking; and (3) the trusted exchange framework. These policies have been slowly but gradually implemented over the past several years but each is set for major movement in 2023. As of January 1, 2023, the 2015 Edition Cures Update* will be the only certified EHR technology (aka CEHRT) accepted in the Quality Payment Program (QPP) and other federal programs. This means that 2023 will be a major EHR transition or “upgrade” year for many providers. (Some federal programs such as MIPS only require 90 days of CEHRT per calendar year making the upgrade deadline October 2, 2023, for many providers.) Regarding the Trusted Exchange Framework and Common Agreement (TEFCA), ONC’s government contractor, The Sequoia Project, opened the application portal in October 2022 for the first time for prospective Qualified Health Information Networks (QHINs). As a result, in 2023 we will likely see the first-ever QHIN approvals, signings of the Common Agreement, and onboardings of networks for operational data exchange. Regarding information blocking, 2023 could very well be the year when HHS finally decides to finalize its penalty and enforcement policies, which would trigger a new compliance deadline for providers. Lastly, even though these three policies/programs are not fully implemented, ONC is set to release its next “round” of proposed regulatory updates. In January or February, ONC is expected to release a new proposed rule that includes updates for each of its major Cures Act policies.
- Implementation of once-in-a-decade ACO reforms. Last year, CMS finalized several key changes to the regulations governing Medicare’s largest Accountable Care Organization (ACO) program, the Shared Savings Program (MSSP). The changes were intentionally made to increase program participation and they include: offering new and existing ACOs additional time (years) in the program before being forced to take on downside risk and offering risk-free advance shared savings payments to certain types of new ACOs. During the 2023 application cycle (which formally begins in June), we will see whether these changes deliver the boost in physician participation that CMS envisioned when it touted the finalized polices as “the most significant reforms since the program was established in 2011.” These new regulations could also spur physician groups to reevaluate their ACO strategy, consider new partnerships or models, and pursue opportunities with payers outside of Medicare.
- Bipartisan telehealth, behavioral health, and Medicare payment laws. The 118th Congress is off to an interesting start and many are wondering what new healthcare laws the divided Congress will produce? It is important to note that with a divided Congress where Republicans control the House and Democrats control the Senate, legislation must be bipartisan to pass into law. Therefore, healthcare policies that only have the support of one political party (i.e. Medicare expansion, ACA repeal) will not be able to pass into law. Instead, Congress has an opportunity to pass meaningful legislation on several bipartisan issues, including Medicare payment reform, telehealth, and behavioral health (BH). The 4,000-plus-page spending bill that the previous Congress passed in December touches on each of these issues (eliminating some of the 2023 Medicare payment cuts, extending pandemic-era Medicare telehealth policies through 2024, and extending several BH provider grant programs), but all of those reforms are temporary. The opportunity for this Congress is to build on the bipartisan work done last year to pursue more expansive and permanent reforms in each of these areas. Obviously, if passed into law, any such legislation would have a significant impact on many physician groups.
*In March 2022, NextGen Healthcare announced that its NextGen® Enterprise EHR achieved the Office of the National Coordinator for Health Information Technology (ONC-Health IT) 2015 Edition Cures Update Health IT certification via Drummond Group LLC, an Authorized Certification Body (ACB). This made NextGen Healthcare the first EHR developer to certify a complete EHR solution to the 2015 Edition Cures Update criteria. To learn more about NextGen Healthcare Enterprise EHR’s 2015 Edition Cures Update certification, please see here. In October 2022, NextGen® Office also received ONC Health IT Cures Update certification, followed by Mirth® Connect by NextGen Healthcare in January 2023. See here and here.