This past Friday I drove to Avery County, which is in western NC to provide a day of pro bono services for the victims of Hurricane Helene. Apparently, FEMA is denying applications based on flooding not being covered. The NC Bar asked for attorney volunteers to appeal FEMA denials. I figured FEMA denials must be similar to Medicare or Medicaid denials. During one victim’s story, it seemed clear that neighbors were receiving disproportionate treatment. One neighbor may be reimbursed 100%, while next door neighbor may be denied. Similarly, a recent legal challenge in the Fifth Circuit Court of Appeals has sparked a critical discussion on the Centers for Medicare and Medicaid Services (CMS) policy concerning its Merit-Based Incentive Payment System (MIPS). In a case involving four Texas-based anesthesia practices, U.S. Circuit Judge Cory T. Wilson raised concerns about the policy’s apparent inconsistencies, which the practices argue will result in a $4 million reduction in reimbursements. The case has shone a spotlight on how certain CMS policies may disproportionately impact specialized practices, particularly in anesthesia, and why such measures may be problematic for providers working in complex, non-primary care specialties.
The heart of the issue is a policy under the MIPS program, which attributes total Medicare costs to clinicians based on the types of care they provide. The controversy centers on the fact that nurse practitioners (NPs) working under anesthesiologists are being classified as “primary care providers” under this system, a classification that the anesthesia practices argue is both inappropriate and detrimental. Judge Wilson seemed perplexed by CMS’s rationale, pointing out the inconsistencies in attributing costs to nurse practitioners working in anesthesia practices, which are traditionally excluded from primary care attribution.
During oral arguments, Judge Wilson questioned the logic behind the attribution of Medicare costs to nurse practitioners, pointing out that these clinicians, while integral to anesthesia practices, do not provide primary care services. “It does seem incongruous to me that you’re attributing costs to nurse practitioners and physician assistants in a specialty practice that’s otherwise excluded from attribution of cost,” Judge Wilson remarked. This observation underlined a significant point: that the cost measures used by CMS should reflect the nature of the practice and the specialized services being provided, rather than broadly applying a system meant for primary care settings to specialty practices like anesthesia.
Counsel for the government defended CMS’s stance by arguing that the classification is based on the type of care provided rather than the type of practice. She explained that the government sees nurse practitioners as primary care providers when they are engaged in activities such as post-operative care, which often involves assessing patient pain levels or managing medication. According to the government, if a nurse practitioner is billing for these types of services, then it is reasonable to attribute Medicare costs to them in the MIPS system.
However, the provider-plaintiffs countered that such a classification misrepresents the role of nurse practitioners within anesthesia practices. Anesthesia, by its nature, is a highly specialized field that requires unique expertise, and while nurse practitioners are an essential part of these practices, they do not provide the comprehensive primary care services that the MIPS system aims to measure. The providers emphasized that assigning total Medicare costs to nurse practitioners based on their post-operative role would result in unfair financial penalties for anesthesia practices.
The practices argue that under the current system, the mere involvement of a nurse practitioner in post-surgical care does not make them a “primary care provider.” Rather, these practitioners are fulfilling an important, but specialized, role within a broader anesthesia practice. Plaintiffs’ counsel illustrated this with an analogy: “My car needs gasoline to run. That doesn’t mean that gasoline is part of my car; that means my car uses gasoline to run down the road.” In the same way, nurse practitioners support anesthesia care, but they should not be viewed as primary care providers just because of certain billing practices associated with their post-operative duties. For now, the Fifth Circuit’s scrutiny of CMS’s policy serves as an important step in ensuring that specialty providers are not unfairly burdened by one-size-fits-all regulations.
Judge Wilson’s questioning highlighted the critical gap in understanding between CMS’s broad application of the MIPS system and the realities of specialty care. His concern about the classification of nurse practitioners under this policy reflects a growing frustration with one-size-fits-all regulations that fail to account for the nuanced and specialized nature of certain medical practices.
For anesthesia providers, this case represents more than just a financial issue; it is about the integrity of the health care delivery model. Anesthesia practices are not primary care providers, and their care models should not be evaluated using metrics designed for a different type of service. The decision in this case could have significant implications for how Medicare policies are applied to specialty practices going forward.
As the case moves through the courts, there is hope that a more reasonable, nuanced approach will be adopted—one that recognizes the unique role of anesthesia providers and ensures that reimbursement systems are fair and reflective of the specialized care these providers offer. For now, the Fifth Circuit’s scrutiny of CMS’s policy serves as an important step in ensuring that specialty providers are not unfairly burdened by one-size-fits-all regulations.