Aegis Compliance & Ethics Center, LLP
Electing to Form a Virtual Group under MIPS
In its CY 2018 Updates to the Quality Payment Program (“QPP”) (82 FR 53568) CMS finalized the set of requirements it proposed in June 2017 (82 FR 30010) for two or more Taxpayer Identification Numbers (“TIN”s) associated with at least one National Provider Identifier (“NPI”) forming a “virtual group.” CMS states that the primary reason a solo practitioner or group practice might want to form a virtual group is to improve its MIPS final score – thus increasing its MIPS adjusted payments. CMS has not placed a limit on the number of TINs that may combine to form a virtual group. For one TIN to combine with another, each TIN must have at least one MIPS eligible clinician (see 42 CFR 414.1305) who meets the threshold requirement for MIPS participation – $90k in Medicare Part B billing/year AND at least 200 Medicare Part B patients/year – and 10 or fewer eligible clinicians, one of whom needs to be a MIPS eligible clinician. The term “eligible clinician” simply means a medical professional as defined in the Social Security Act.
Virtual Group Election Process
CMS requires a MIPS eligible clinician, or group so inclined, to elect to form a virtual group before the start of the performance period (for the 2018 performance period, the deadline was 12/31/17) and participation is limited to one virtual group for the duration of the performance period. Virtual group participants need to execute a formal agreement identifying all eligible clinicians billing under the virtual group’s TINs. Election applies to all MIPS eligible clinicians within a group practice. Only purchasing a practice or its closure (i.e. its TIN is extinguished) will end participation in a virtual group during the performance period.
CMS offers solo practitioners and group practices the option of a two-stage eligibility determination. In stage 1, if CMS determines a solo practitioner or group is ineligible then that solo or group practice can avoid the cost of preparing a formal agreement, registering with CMS and other related activities associated with virtual group formation. If a solo practitioner or group declines the stage 1 eligibility determination and goes straight to stage 2 then CMS will make its eligibility determination only after a solo practitioner or group expends for the above and risks losing those resources in the event CMS determines they are ineligible to form a virtual group.
Virtual Group Performance Reporting
CMS states that all eligible clinicians within a virtual group – not just MIPS eligible clinicians – must provide performance data for the performance year (Quality, Cost, Improvement Activity, and Advancing Care). Nevertheless, only MIPS eligible clinicians will receive payment adjustments. Unlike MIPS eligible clinicians not in virtual groups, members of virtual groups do not report individual clinician performance data. Instead the performance data for all clinicians is aggregated and then submitted to CMS. CMS does not consider this a regulatory burden on clinicians who are not MIPS eligible but still must report. CMS received significant pushback from stakeholders who felt that the burden of aggregating performance data across all TINs within a virtual group should be borne by CMS and not the virtual groups. CMS claims that – right now, anyway – it is not “technically feasible” for it to aggregate performance data, but will take the suggestion from stakeholders under advisement.
Virtual Group Assessment & Scoring
The MIPS final score methodology (see 42 CFR 414.1380) applies to virtual groups. Each individual MIPS eligible clinician will be judged according to the final score achieved by the virtual group, after aggregating performance data. Payment adjustments will still be made at the level of a TIN/NPI, however. CMS believes that performance data aggregation and scoring results in “…a comprehensive measurement of performance, shared responsibility, and an opportunity to effectively…coordinate resources…” (82 FR 53535, at 53614). For participants in both a virtual group and a MIPS Alternative Payment Model (“APM”), they will be scored under both MIPS and the APM entity score (CMS has a special APM scoring standard) but only receive payment adjustments based on the APM score. Likewise, participants in a virtual group that are also Qualified Advanced APM Participants will receive payment adjustments according to the Advanced APM rules.
Choosing to Elect
Virtual groups seem to offer clinicians a chance to improve their final score by cutting deals with other solo practitioners or groups that have comparative advantages in one or more performance reporting categories. However, a possible negative outcome is virtual “grouping” according to resources (i.e. wealthier practices forming virtual groups that reinforce pre-existing advantages). CMS does take into consideration the struggles of rural practices and practices that have a disproportionate share of the most difficult cases but cannot anticipate all exigencies. Because virtual groups only exist for the duration of the performance period (right now, one year) they can re-form quickly after jettisoning lower performing solo practitioners or groups, which may partially defeat the legislative intent behind allowing virtual groups. CMS says it will revisit and propose new rules on size of virtual groups, geography and specialty.