On November 2, 2023, the Centers for Medicare & Medicaid Services (“CMS”) issued the 2024 Medicare Physician Fee Schedule Final Rule (“Final Rule”) for calendar year (“CY”) 2024. Among other changes, the Final Rule refines and builds on changes finalized in the CY 2023 Physician Fee Schedule Final Rule to the Medicare Shared Savings Program (“MSSP” or “the Program”). These changes become effective on January 1, 2024.

In furtherance of CMS’s goal of having 100% of traditional Medicare beneficiaries treated by a provider in a value-based care model by 2030, the changes are intended to incentivize more Medicare providers and suppliers to join the MSSP and promote long-term participation in the Program. CMS anticipates the changes will increase MSSP participation by 10% to 20%. Some of the key changes to the MSSP are included below.

Shared Savings Program Quality Performance Standard

In an effort to reduce the costs of data aggregation and associated costs, CMS has established a new Medicare Clinical Quality Measure (“CQM”) collection type for MSSP accountable care organizations (“ACOs”) available under the Alternative Payment Model (“APM”) Performance Pathway (“APP”) for performance year 2024 and subsequent performance years. This change comes in response to concerns about reporting all payer/all patient data via the APP due to the cost of necessary system-wide infrastructure for data aggregation. ACOs will continue to have the option to report quality data using the CMS web interface measures, eCQMs and/or Merit-based Incentive Payment System (“MIPS”) CQMs collection types in performance year 2024, as well as the new Medicare CQM reporting option. Standards for benchmarking and data completeness for the Medicare CQM collection type will mirror the MIPS benchmarking and scoring policies. CMS intends for the Medicare CQM option to serve as a transition collection type, moving ACOs toward a digital measurement of quality while allowing ACOs more time to build the infrastructure necessary to report all payer/all patients MIPS CQMs and eCQMs by 2025.

Promoting Interoperability Quality Measure

In the Final Rule, CMS aligned the former MSSP certified electronic health record technology (“CEHRT”) requirements with the MIPS Promoting Interoperability performance category reporting requirement to eliminate the burden of complying with two separate CEHRT program requirements. To further reduce the burden on ACOs, CMS finalized several exclusions from the reporting requirements and delayed implementation of the MIPS Promoting Interoperability performance category until January 1, 2025. For performance years beginning on or after January 1, 2025, an ACO participant, ACO provider/supplier, and ACO professional who is a MIPS eligible clinician must report the MIPS Promoting Interoperability performance category measures and requirements to MIPS and earn a score for the MIPS Promoting Interoperability performance category at the individual, group, virtual group or APM entity level.

Beneficiary Assignment

Several critical MSSP operations are based on an ACO’s assigned population, including eligibility and participation options and financial calculations. CMS finalized several changes to the MSSP’s claims-based assignment methodology, all of which should expand an ACO’s assigned and assignable populations and further CMS’s goal of having all beneficiaries in an accountable care relationship by 2030. These changes, which will apply for the performance year beginning on January 1, 2025, include:

  • Adding a new definition of “expanded window for assignment” that includes the applicable 12-month assignment window and the preceding 12 months;
  • Modifying the definition to “Assignable Beneficiary” to include beneficiaries who receive primary care from nonphysician practitioners (“NPPs”), e.g., nurse practitioners, physician assistants and clinical nurse specialists, during the 12-month assignment window and who receive at least one primary care service from a physician used in an assignment in the preceding 12-months; and
  • Using the expanded 24-month window for assignment in a new “step three” to the claims‑based alignment process that applies only to beneficiaries who received at least one primary care service during the expanded window from an ACO professional who is a primary care physician or who practices in one of the specialist designations set forth in 42 CFR 425.402(c). CMS’s goal is to include additional beneficiaries for assignment who received primary care services from NPPs during the 12-month assignment window, but who also received care from a physician during the preceding 12 months.

Benchmarking Methodology

CMS finalized several updates to the financial benchmarking methodology for ACOs in agreement periods beginning on January 1, 2024, and beyond, including:

  • Altering the calculation of the regional component of the 3-way blended benchmark update factor by capping the risk score growth in an ACO’s regional service area when calculating regional trends used to update the historical benchmark;
  • Applying the same CMS Hierarchical Condition Category risk adjustment model used in the performance year for all benchmark years when calculating risk scores for Medicare fee-for-service beneficiaries for each benchmark year; and
  • Eliminating overall negative regional adjustments to further support participation by ACOs that would have had an overall negative regional adjustment under the previous rule methodology, especially those ACOs serving high-cost populations.

Advance Investment Payment (“AIP”) Policies

Under the Final Rule, new changes will be made to the AIP policies that include:

  • Allowing ACOs to advance to two-sided model levels within the BASIC track’s glide path beginning in performance year 3 of the agreement period in which they receive AIP;
  • Authorizing an ACO receiving AIP to early renew its participation agreement after performance year 2 without triggering full recoupment of AIP at that time;
  • Modifying AIP termination policies to allow CMS to immediately terminate AIPs for future quarters if an ACO voluntarily terminates from the MSSP; and
  • Allowing ACOs receiving AIP to seek reconsideration review of all quarterly AIP calculations.

Key Upcoming Deadlines:

  • December 5, 2023 – Final Application Dispositions
  • December 6-12, 2023 – ACO signing event for participation in the MSSP

Practical Takeaways

  • CMS has finalized several significant changes to the MSSP to encourage participation in the model and ensure increased beneficiary attribution;
  • CMS has shown a willingness to listen to stakeholder feedback and make improvements to the Program that reduce administrative burden and mitigate unintended negative effects of long-term participation in the MSSP;
  • The agency acknowledged receiving comments on future areas of MSSP policy development, including the potential inclusion of an additional track with higher risk/reward than the ENHANCED track and programmatic changes to encourage specialist participation in the model.
  • It is likely that CMS will address these and other potential modifications to the MSSP using existing vehicles such as the annual Physician Fee Schedule Final Rule, rather than stand‑alone rulemakings;
  • ACOs and other stakeholders who have further suggestions to enhance and improve the MSSP should pursue both formal and informal communication pathways with CMS to ensure the agency understands stakeholder concerns and has all relevant information necessary to make informed decisions on future modifications to the Program.