Comments to CMS in Response to 2020 Physician Fee Schedule and QPP Proposed Rule


September 26, 2019

Secretary Azar and Administrator Verma,

Thank you for this opportunity to comment on the proposed rule, CMS-1715-P, “2020 Revisions to Payment Policies under the Physician Fee Schedule and Other Changes to Part B Payment Policies.”

The Association of American Physicians and Surgeons continues to strongly object to the Merit-based Incentive Payment System (MIPS) and other provisions of the “Quality Payment Program” (QPP).

In the proposed rule, CMS outlines the “transformation of MIPS” through “MIPS Value Pathways.”  While, “reducing reporting burden” and “measures that are more relevant to a clinician’s scope of practice” sound like improvements, the underlying flaws in the program remain. It is improper to subject physicians to penalties for delivering individualized patient care while protecting patient privacy.

AAPS agrees with the Medicare Payment Advisory Commission (MedPAC) that MIPS must be scrapped in its entirety. Therefore we cannot embrace reforms that leave intact provisions antithetical to practicing medicine in a manner upholding the Oath of Hippocrates.

In addition to our call for the repeal of the Quality Payment Program, we ask for these additional reforms:

1) Delay “Appropriate Use Criteria” (AUC) red tape that discourages and delays needed diagnostic testing.

We ask CMS to put the brakes on steps toward full implementation of the “Appropriate Use Criteria Program.”  Requiring physicians to consult a federally overseen “Clinical Decision Support” algorithm when choosing care for their patients not only creates more paperwork burden, but is an improper intrusion into the physician-patient relationship.  CMS has already exercised its discretion to delay enforcement of AUC mandates from 2018 to 2020, and it should do so again. Halting this program, while working with Congress to repeal it, is the right choice to protect patient choice and will also further the goals of CMS to reduce administrative burden.

2) Revoke requirements that private contracts between Medicare patients and physicians opted-out of Medicare be re-signed every two years.

We ask that 42 C.F.R. § 405.415(h) be revised, and (o) revoked, in compliance with the administrative simplification directives of the Administration and statutes as revised by MACRA. In fact, if CMS is looking for a regulation to revoke in accordance with the Executive Order on “Reducing Regulation and Controlling Regulatory Costs,” which requires the elimination of two regulations for every new regulation, then 42 C.F.R. § 405.415(o) is an excellent regulation to consider for deletion. The MACRA statute reduces regulatory burdens on physicians opted out of Medicare, but corresponding regulations that impact patients and their private contracts with opted-out physicians were not properly revised in past rulemaking.  It is not statutorily justified to require that a contract between a patient and opted-out physician be tied to a 2-year period. Patients and physicians should maintain the flexibility to agree upon any mutually desired contract length. Contracts should be allowed to remain in effect as long as the physician remains opted out of Medicare.

In addition, confusion exists in the patient and physician community regarding this requirement, partly due to inconsistent guidance provided by CMS and its contractors. Ending this requirement would be the best way to resolve the confusion.

The revision of 42 C.F.R. § 405.415(h) and revocation of (o) would also advance HHS goals of “reducing barriers to choice and competition and increasing the availability of high-quality care at affordable prices.”

Thank you for considering and acting on the above requests. We would welcome questions or further discussion as needed.


Jane M. Orient, M.D.

Executive Director