July 29, 2024

Re: Medicare Program: Mitigating the Impact of Significant, Anomalous, and Highly Suspect Billing Activity on Medicare Shared Savings Program Financial Calculations in Calendar Year 2023 [CMS-1799-P]

Dear Administrator Brooks-LaSure:

Accountable for Health (A4H) appreciates the opportunity to submit comments to the Centers for Medicare & Medicaid Services (CMS) on its proposal to mitigate the impacts of significant, anomalous, and highly suspect (SAHS) billing activity on the financial performance of Medicare Shared Savings Program (MSSP) accountable care organizations (ACOs). A4H applauds CMS for taking swift action to address the concerns around abnormal catheter billing and the negative impact it has had on MSSP ACO financial performance. A4H strongly supports CMS’ proposal to remove all Medicare Parts A and B payments for catheter HCPCS codes (A4352 and A4353) from expenditure and revenue calculations for CY 2023 and encourages the agency’s continued attention to identifying and mitigating the impacts of ongoing and future fraud, waste and abuse schemes. As discussed in greater detail below, this action will help to ensure that ACOs are held harmless for spending that is outside of their control.

Accountable for Health is a non-partisan, national advocacy and policy organization accelerating the adoption of effective accountable care. We aim to inform policy that advances the movement in the health care system toward accountable care that achieves better outcomes, improved care experiences, increased access and lower costs.

ACOs use data to analyze population health, provide information to clinicians, to make specialty referrals, and otherwise facilitate decision-making around improving patient care and outcomes. Because of their focus on data and population health information, they are uniquely well situated to identify early aberrant billing patterns, unusual utilization and spending trends. This could include for example, comparing a physician to his or her peers, established thresholds, or historical utilization patterns. ACOs are focused on this information in ways other providers in traditional Medicare are not because they are accountable for health outcomes and cost associated with their population. Recognizing this strength, the HHS Office of Inspector General recommended prioritizing ACO referrals of potential fraud, waste and abuse.¹ We are pleased to see the agency taking steps through this rulemaking and the recently released Medicare Physician Fee Schedule Proposed Rule to create pathways for recognizing this capability and for ensuring ACOs are held harmless for current and future SAHS billing activity.

Medicare spending on the two catheter codes saw a nearly 20-fold increase between 2021 to 2023 – with spending increasing from $153 million to $3.1 billion. The majority of this increase was attributed to roughly one dozen suppliers. Failure to account for these increases could “cause significantly inaccurate and inequitable payments and repayment obligations in the Shared Savings Program if not addressed.” As a result, accounting for this aberrant spending is incredibly important to maintain a strong, sustainable, predictable ACO program.

In the proposed rule, CMS proposes to remove all Medicare Parts A and B payments for HCPCS A4352 and A4353 from expenditure and revenue calculations for CY 2023. This includes adjusting calculations for performance year (PY) 2023 expenditures, CY 2023 benchmark expenditures (for agreement periods beginning on Jan. 1, 2024, Jan. 1, 2025, or Jan. 1, 2026), and trend factors applied to the benchmark when determining financial performance for PY 2023. A4H appreciates CMS taking a comprehensive approach to excluding all claims for these services from both performance year and benchmark expenditures. This methodology offers a straightforward solution to accounting for this problem.

Since the policies would affect a performance year that has already concluded (CY 2023) and would be applicable to benchmarks for ACOs that started agreement periods on Jan. 1, 2024, CMS proposes that the policies would be applied retroactively. CMS notes that its failure to implement these policies retroactively “would be contrary to public interest” and would “undermine both the sustainability of the Shared Savings Program and the public’s faith in CMS as a fair partner.” A4H supports retroactive application of these policies.

Given the department’s recognition of the harm the removed catheter codes would cause, we also encourage the agency to thoroughly review data for other suspect billing patterns identified by impacted ACOs. For example, ACOs have also reported a significant increase in billing for skin substitutes, roughly tripling between 2022 and 2023. This is attributed to five new high-cost codes.

CMS estimates that the proposal may result in an approximate six-week delay of initial performance year determinations and disbursement of shared savings. A4H urges CMS to finalize the proposed rule as expeditiously as it can within its legal authority to minimize the delay in shared savings distribution and delay all other ACO participation deadlines by a commensurate timeline. We would also request that CMS provide additional transparency, adding regional component level to EXPU reports and to detail the financial impact of removing these expenses.

Finally, A4H appreciates that CMS is working on a longer-term solution to addressing SAHS billing beyond 2023 and is proposing a permanent policy as part of its CY 2025 Physician Fee Schedule proposed rule. We appreciate the opportunity to provide feedback and appreciate the agency’s action to account for ACOs’ concerns and hope to see such suggestions mirrored in CMMI guidance to ACO model participants. We look forward to working with CMS on a long-term solution and continued partnership in addressing issues around SAHS billing activity.

Sincerely,

Mara McDermott
CEO
Accountable for Health