Monday, July 19, 2021

CMS Releases Hospital Outpatient Proposed Rule for CY2022; Proposes $2M Fines

On July 19, 2021, after market close, CMS released the annual proposed Outpatient Rule (OPPS Rule) for CY2022.  Comment period will run for 60 days.

  • See press release here.
  • See Fact Sheet here.
  • See the Federal Register page here.
  • See the early or "typescript" version here.
    • Clocks in at 863 pages.
  • Importantly, see the Related Files page (Excel spreadsheets of prices, etc), here.
  • Early trade press at Healthcare Dive here.
  • Deep dive by Thomas Sullivan at "Policy & Medicine," here.
$2M Penalty Linked to Price Transparency

Consonant with recent reports that only a few percent of hospitals are following January 2021 price transparency regulations from the Trump Administration (here), the Biden administration is proposing to raise penalties to between $100,000 and $2M dollars per year, depending on hospital size by bed-count.  The price transparency rule has triggered lawsuits (here) and confusion (here).

There's a humorous section around 751-752 on ways some hospitals have hidden or blocked access to the required machine-readable pricing files.  See an article on hospitals in the 5% who complied, here.

Re-use CY2019 Data

Generally, CMS uses (re-uses) CY2019 claims data for CY2022 prices, due to the abnormal nature of the CY2020 Covid year.

Two Trump-Biden Reversals (Inpatient Only List, ASC List)

The Trump administration had proposed to drop an inpatient-only list of procedures (e.g. nonpayable in hospital outpatient setting), but the Biden administration wants to keep it for "patient safety."   Along the same Trump/Biden vein, CMS  had recently revised criteria for ASC (ambulatory surgical center) procedures, but will flip back to the older criteria.  "CMS proposes to remove 258 of the 269 ASC procedures" that were added last year under DJT.

Special Payment for Non-Opioid Analgesics 

Two non-opioid analgesics, Exparel and Omidria, are paid for separately in the ASC setting rather than packaged, due to SUPPORT Act 6082(a), see 1833(5)(22)(A) (text here).   There's a fairly complex discussion of this topic that I haven't fully absorbed yet.   Typescript version of rule, see p 64-84.


Although not directly related to the price transparency rules discussed here, there's another topic on transparency and access.  Beginning April 5, 2021, providers are supposed to open EMR information so that "patients [have] access without charge to all the health information in their electronic medical records 'without delay.'  "    Obviously this creates tension between providing access "without delay" and the need for elaborate controls to prevent hoaxing or phishing, even more complex when patients have limited computer literacy, have conservators or guardians, etc.   One entry point here, another here.  This is called the "Information Blocking Rule" (hence the verbal connection to the outpatient price transparency issue noted earlier) but it is actually an "information UN-blocking" rule.