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TOA is the Voice of Orthopaedics in Texas!


Few other medical specialties face as many legislative and regulatory challenges as orthopaedics. TOA is the only organization focused completely on public policy issues for orthopaedics in Texas.

TOA members receive regular updates about how state and federal policy decisions will impact their practices through TOA’s e-mail newsletter. TOA members can also log into the website to view more information regarding various issues.

We are involved in numerous issues, including:

Affordable Care Act

Allied Health Provider

Commercial Insurance

Facilities (Hospitals & ASCs)



Physician Ownership

Prescription Drugs

Public Health

Quality Outcomes

Scope of Practice

Sports Medicine

Texas Orthopaedic PAC

Trauma (not available at this time)

Workers’ Compensation

TOA Urges Lawmakers to Contact Congress on BPCI Advanced/CJR Conflict

BPCI Advanced – Medicare’s new physician-led bundled payment program that was announced in January 2018 – will not allow orthopaedic surgeons located in Texas’ five Comprehensive Center for Joint Replacement (CJR) to lead their own bundles for lower extremity joint replacements in the new BPCI Advanced program.

Due to the upcoming March 12, 2018 application deadline, TOA is encouraging TOA members in these CJR markets to contact their Members of Congress to contact the Centers for Medicare and Medicaid Services to allow orthopaedic surgeons to lead their own BPCI Advanced bundles in CJR markets.

The physician groups that have been participating in the existing BPCI Model 2 have demonstrated significant savings for Medicare. A study conducted by the largest BPCI physician group practice (PGP) convener of 15 private practice orthopaedic groups across the nation found that they saved Medicare $3,214 (15 percent) per LEJR episode in 2015 (compared to the 2009-2012 historic baseline data).

TOA has told Congress that patients and orthopaedic surgeons practicing in the CJR markets should not be penalized based on their geographic location.

Click here to view the sample letter.

Click here to view the CJR hospitals around the country.

IPAB and Physical Therapy Included in Congress’ Medicare Extender Package

The U.S. House and U.S. Senate approved a funding resolution on February 9 that includes several Medicare provisions that affect musculoskeletal care:

Physician-owned Hospitals:  No Relief. An effort by Texas lawmakers to allow physician-owned hospitals located in areas affected by the recent hurricane to expand by 50 percent was not included in the bill. However, Congressman Brian Babin of Texas is circulating a request for CMS to provide relief.

IPAB Elimination.  The Independent Payment Advisory Board (IPAB), which was created by the Affordable Care Act to address rising Medicare costs, was eliminated.

Physical Therapy’s Cap. Medicare’s existing “hard” physical therapy cap has been repealed (effective December 31, 2017).  However, it comes at a cost, and Congress relied on several offsets to help pay for it:

Explanation of the “New Cap” for Outpatient Medicare Part B

The threshold for targeted medical review will be lowered from $3,700 to $3,000 through 2027. However, not all claims that go over $3,000 will be subject to medical review. Instead, only a sample of the claims that meet certain criteria, such as high claims denial percentage or certain billing patterns, will be subject to the review.

The $3,000 per beneficiary applies to combined physical therapy and speech language pathology services – or $3,000 in occupational therapy claims alone.

Therapy claims for outpatient Medicare Part B that go over $2,010 (adjusted annually) will require the KX modifier for medical necessity.

Congress gave HHS the regulatory authority to address the manual medical review.

Physical Therapy Assistants Payment Reductions

The legislation will reduce payments to physical and occupational therapy services provided by a therapy assistant to 85 percent.  The payment reduction is scheduled to begin in January 2022 for outpatient therapy services.

The text of the therapy cap provision can be found on page 19. (Click here to view the bill’s language.)

Orthotist and Prosthetist Notes. Orthotist and prosthetist notes are now part of the medical record for purposes of Medicare medical necessity and claims audits.

Per the legislation:

13 Section 1834(h) of the Social Security Act (42 U.S.C. 1395m(h)) is amended by adding at the end the following new paragraph:”
(5) DOCUMENTATION CREATED BY ORTHOTISTS AND PROSTHETISTS. – For purposes of determining the reasonableness and medical necessity of orthotics and prosthetics, documentation created by an orthotist or prosthetist shall be considered part of the individual’s medical record to support documentation created by eligible professionals described in section 1848(k)(3)(B).”.

Stark Modernization. Commentary on the Stark laws begins on page 136 (click here). It exempts holdover lease arrangements and personal service arrangements from the definition of a prohibited compensation arrangement.

Meaningful Use. The bill contains parts of the Health Information Technology for Economic and Clinical Health Act by removing a mandate that meaningful use standards must evolve to be more stringent over time.

MIPS. The bill prohibits CMS from scoring an eligible clinician on improvement in the second, third, fourth, and fifth years (for which MIPS applies to payments).

Both the House and Senate bills block CMS from ever raising cost cutting to more than 30 percent of a physician’s scores.

Physician Fee Schedule. The updated will be reduced from 0.5 percent to 0.25 percent in 2019.

Medicare Announces New Bundled Payments

The Centers for Medicare and Medicaid Services (CMS) announced on January 9, 2018 that it is creating the voluntary Bundled Payments for Care Improvement Advanced (BPCI Advanced) demonstration that requires participants to take on financial risk. In addition, the program, which includes outpatient and inpatient episodes of care, would count as an Advanced APM for MACRA (Medicare’s physician payment program) for a 5 percent provider bonus.

Unfortunately, the proposal could have a harmful effect on markets that are affected by the Comprehensive Center for Joint Replacement (CJR) mandate. Those markets may not be able to participate in BPCI Advanced. Click here for full information.

TOA’s April 13-14, 2018 Annual Conference in Fort Worth included a panel discussion on Medicare’s new bundled payment program.

Medicare-certified acute care hospitals and physician group practices (PGPs) may participate as either Convener Participants or Non-Convener Participants. The application ends on March 12, 2018. The next application period will not occur until January 1, 2020.

Some of the new program’s highlights include:

  • It will include a single payment and risk track. The original BPCI included four models.
  • The program begins on October 1, 2018 and runs through 2023, and it will include all participants to take on downside financial risk. Applications must be submitted by March 12, 2018.
  • For those who miss the initial application, a second application opportunity will open in 2020.
  • BPCI Advanced relies on a retrospective approach. CMS will provide a preliminary target price in advance of the first performance period of each model year prior to calculating a final target price retrospectively based on patient case-mix. The “CMS Discount” will subtract 3 percent from the benchmark that is based on historical fee-for-service spending.
  • As a result of BPCI Advanced not being a shared-savings initiative, participants can participate in this model and accountable care organizations (ACOs).
  • The episodes will last 90 days.
  • BPCI Advanced will qualify as an Advanced APM under MACRA beginning on October 1, 2018, which is the performance period’s effective date. On January 1, 2019, BPCI Advanced participation will result in a 5 percent APM incentive payment and the Qualifying APM Participant (QP) determination.

The CMS Innovation Center will hold a Q&A Open Forum on Tuesday, January 30, 2018 from 11 a.m. – 12 p.m. CST. This event is open to those who are interested in learning more about the model and how to apply. Please register in advance here.

Click here to learn more about the model.

Thirty-two types of clinical episodes will be included. Three outpatient episodes have been added to the inpatient episodes in the earlier BPCI model. Most of the episodes are found in the original BPCI model. However, an episode related to liver disorders is new.

For a list of the 29 Inpatient Clinical Episodes, please see below:

  • Disorders of the liver excluding malignancy, cirrhosis, alcoholic hepatitis *
    *(New episode added to BPCI Advanced)
  • Acute myocardial infarction
  • Back & neck except spinal fusion
  • Cardiac arrhythmia
  • Cardiac defibrillator
  • Cardiac valve
  • Cellulitis
  • Cervical spinal fusion
  • COPD, bronchitis, asthma
  • Combined anterior posterior spinal fusion
  • Congestive heart failure
  • Coronary artery bypass graft
  • Double joint replacement of the lower extremity
  • Fractures of the femur and hip or pelvis
  • Gastrointestinal hemorrhage
  • Gastrointestinal obstruction
  • Hip & femur procedures except major joint
  • Lower extremity/humerus procedure except hip, foot, femur
  • Major bowel procedure
  • Major joint replacement of the lower extremity
  • Major joint replacement of the upper extremity
  • Pacemaker
  • Percutaneous coronary intervention
  • Renal failure
  • Sepsis
  • Simple pneumonia and respiratory infections
  • Spinal fusion (non-cervical)
  • Stroke
  • Urinary tract infection

For a list of the 3 Outpatient Clinical Episodes, please see below:

  • Percutaneous Coronary Intervention (PCI)
  • Cardiac Defibrillator
  • Back & Neck except Spinal Fusion

Key Dates
March 12, 2018 – Application portal closes.
May 2018 – CMS distributes target prices.
June 2018 – CMS offers participant agreements.
August 2018 – Signed participant agreements are due.
October 1, 2018 – Model goes live.
March 31, 2019 – First date for Advanced Alternative Payment Model (APM) qualified participant determination.
January 1, 2020 – Next application period.
December 31, 2023 – End of the first cycle.

Medicare’s Removal from TKA from Inpatient-Only: Clarification

The Centers for Medicare and Medicaid Services (CMS) removed total knee arthroplasty from Medicare’s inpatient-only (IPO) list for the 2018 final rule. However, this does not mean that Medicare will pay for TKA in ambulatory surgery centers (ASCs).

The American Association of Orthopaedic Surgeons (AAOS) produced the following FAQs to answer questions. Click here to view it.

Click here to read TOA’s summary of the final rule.

Medicare’s Quality Payment Program Rule for Year 2 (MIPS/MACRA)

The Centers for Medicare and Medicaid Services (CMS) released the final rule for the Quality Payment Program’s second year on November 2, 2017.

Click here for an extensive overview of the rule.

Click here for an executive summary of the rule:

Among the highlights:

From 90 Days to a Full Year
Physicians will be required to report quality measures for a full year.  The current standard is a 90-day period.

Cost Counts for MIPS
A physician’s Merit-based Incentive Payment System (MIPS) score is made up of four categories: quality, cost, improvement, and Advancing Care Information (ACI), which takes into account the use of EHRs.

Next year, CMS will count performance on cost measures for 10 percent of a physician’s score, even though CMS indicated earlier that it would delay factoring cost into a physician’s score for 2018.

CMS stated that it will use the Medicare spending beneficiary and total per-capital cost measures to calculate the cost performance category score for the 2018 MIPS performance period. Physicians will not be required to take any action because CMS will calculate the scores. The two measures carry over from the Value Modifier program.

The agency said that is developing new episode-based measures on cost with stakeholder input and soliciting feedback on some of those measures in the fall of 2018. CMS also said that it expects to propose new cost measures in future rules and solicit feedback on episode-based measures before they are included in MIPS.

Certified EHRs
The rule will allow physicians to use 2014 edition and/or 2015-certified HER technology in year two of the ACI performance category. A performance will be given for using only 2015 CEHRT.

Low-volume Threshold Exception
Physicians were excluded in 2017 if the practice had no more than $30,000 in Part B charges or saw no more than 100 beneficiaries in a year. For 2018, physicians will be excluded if they have no more than $90,000 in Part B charges or see no more than 200 beneficiaries.

Small practices that do participate in MIPS will be provided five bonus points.  Solo and small practices will also have the opportunity to form virtual groups.

Alternative Payment Models (APMs)
As we have stated in the past, not too many orthopaedic services qualify for the Advanced APM portion of MACRA.  As a result, most orthopaedic surgeons are focusing on the MIPS portion for MACRA.

CMS has hinted in the past that it would like to create more opportunities for surgeons to participate in an Advanced APM.  As a result, we are expecting CMS to announce new physician-led bundled payment models in the near future.  Hospital-led bundled payments typically do not qualify as Advanced APMs.

There is extensive commentary regarding APMs in the rule.  For example, CMS indicated that it plans to develop a demonstration project to look at how physicians participating in Medicare Advantage alternative pay models can qualify for bonus payments.

Twenty-one New Improvement Activities
CMS stated:

In this final rule with comment period, we are finalizing updates to the Improvement Activities Inventor. Specifically, as discussed in the appendices (Tables F and G) of this final rule with comment period, we are finalizing 21 new improvement activities (some with modification) and changes to 27 previously adopted improvement activities(some with modification and including 1 removal) for the Quality Payment Program Year 2 and future years (2018 MIPS performance period and future years) Improvement Activities Inventory.

CMS Announces New Direction for CMMI

CMS announced a request for information regarding the future direction of the CMS Innovation Center.

The Texas Orthopaedic Association will be providing comments regarding solutions for enhancing muculoskeletal in the Medicare program.

Per CMS:

In partnership with clinicians, patients, entrepreneurs, state officials, and others, the Centers for Medicare & Medicaid Services (CMS) plays a leading role in safeguarding the health of America’s future by providing coverage to over 130 million Americans, more than a third of the population of the United States. Our nation’s elderly and most vulnerable citizens depend on these programs for access to care but both programs face fiscal crises. Medicare’s main trust fund is projected to run out in just eleven years, and Medicaid is the second largest budget item for states on average (behind K-12 education) and is growing rapidly. Improving quality and reducing costs are imperative.

One of the most important goals at CMS is fostering an affordable, accessible healthcare system that puts patients first. Through this informal Request for Information (RFI) the CMS Innovation Center (Innovation Center) is seeking your feedback on a new direction to promote patient-centered care and test market-driven reforms that empower beneficiaries as consumers, provide price transparency, increase choices and competition to drive quality, reduce costs, and improve outcomes. The Innovation Center welcomes stakeholder input on the ideas included here, on additional ideas and concepts, and on the future direction of the Innovation Center. In particular, the Innovation Center is interested in testing models in the following eight focus areas:

  1. Increased participation in Advanced Alternative Payment Models (APMs);
  2. Consumer-Directed Care & Market-Based Innovation Models;
  3. Physician Specialty Models;
  4. Prescription Drug Models;
  5. Medicare Advantage (MA) Innovation Models;
  6. State-Based and Local Innovation, including Medicaid-focused Models;
  7. Mental and Behavioral Health Models; and
  8. Program Integrity.

However, the Innovation Center may also test models in other areas.

To be assured consideration, please submit comments online or by email to through 11:59 p.m. EST November 20, 2017.

AAOS Comments on Medicare’s 2018 Quality Payment Rule

The American Association of Orthopaedic Surgeons (AAOS) submitted stakeholder comments to the Centers for Medicare and Medicaid Services (CMS) on its CY 2018 Updates to the Quality Payment Program for physician payments.

Click here to view the letter.

The comments focus on the Merit-based Incentive Payment System (MIPS) and Alternative Payment Model (APM) payment mechanisms found under MACRA.

In addition, the comments ask CMS to discontinue mandatory demonstrations for bundled payments and to introduce physician leadership into alternative payment models.


“We look forward to engaging with CMS, especially on developing outcome based measures for musculoskeletal care as well as on redesigning Medicare value-based payment models such that they are voluntary, physician-led, have accurate price setting, and provide access to data for all participants. Further, we would like to reemphasize that the guiding principle for CMS should be improving patient care. Thus, the QPP should be simplified and not made more complex with each passing year.”

Texas Cities Remain in Medicare’s CJR; Effect of Tuesday’s Announcement

Tuesday’s proposal by the Centers for Medicare and Medicaid Services (CMS) would scale back the Comprehensive Center for Joint Replacement (CJR) mandatory bundles for lower extremity joint replacement and would eliminate the mandatory episode payment models (EPMs) for surgical hip/femur fracture episodes of care (SHFFT).

CMS stated:

Many providers are currently engaged in voluntary initiatives with CMS, and we expect to continue to offer opportunities for providers to participate in voluntary initiatives, including episode-based payment models. We are concerned that engaging in large mandatory episode payment model efforts at this time may impede our ability to engage providers, such as hospitals, in future voluntary efforts.

The Future of CJR
The proposal would cut in half the number of regions subject to mandatory participation in the CJR bundled payment initiative for lower extremity joint replacements (hospitals already participating in the voluntary BPCI program are exempt).  However, the Texas markets would remain in place under the proposed rule.

The End of the EPM Model
Last year, CMS introduced the new SHFFT model that would pay for surgical hip/femur services through episodes of care (a shift away from fee-for-service payments) in numerous markets.  The Trump administration has continued to delay the 2017 start date, and January 1, 2018 is the current start date.  However, this proposed rule would completely eliminate this model.

New Bundled Payment Initiatives in the Future?
TOA has been indicating over the past year that CMS is likely to introduce new voluntary, physician-led bundled payments in the future that would help surgeons meet the Alternative Payment Model (APM) requirements under MACRA.

CMS stated the following in this proposed rule:
“Building on the BPCI initiative, the Innovation Center expects to develop new voluntary bundled payment model(s) during CY 2018 that would be designed to meet the criteria to be an advanced APM.”

Technical Issues with CJR
The proposed rule also included several technical additions to CJR.  Much of it focuses on telehealth services related to lower extremity joint replacement surgery.

Clinical Engagement Lists for APMs
The proposed rule provides commentary on clinical financial arrangement lists related to APMs.

The following commentary is provided by CMS:

Stakeholders have expressed a desire for model changes that would also include in the clinician financial arrangement list physicians, non-physician practitioners, and therapists without a financial arrangement under the CJR model, but who are affiliated with and support the Advanced APM Entity in its participation in the Advanced APM for purposes of the Quality Payment Program.

We agree with stakeholders that these physicians, non-physician practitioners, and therapists should have their contributions to the Advanced APM Entity’s participation in the Advanced APM recognized under the Quality Payment Program; however, since these individuals do not have financial arrangements with the participant hospital, to also include them on the clinician financial arrangement list would be misleading, and could create confusion when CJR model participant hospitals submit lists to CMS.

To increase opportunities for eligible clinicians supporting CJR model participant hospitals by performing CJR model activities and who are affiliated with participant hospitals to be considered QPs, we are proposing that each physician, non-physician practitioner, or therapist who is not a CJR collaborator during the period of the CJR model performance year specified by CMS, but who does have a contractual relationship with the participant hospital based at least in part on supporting the participant hospital’s CMS-5524-P 51 quality or cost goals under the CJR model during the period of the performance year specified by CMS, would be added to a clinician engagement list.

In addition to the clinician financial arrangement list that is considered an Affiliated Practitioner List for purposes of the Quality Payment Program, we propose the clinician engagement list would also be considered an Affiliated Practitioner List. The clinician engagement list and the clinician financial arrangement list would be considered together an Affiliated Practitioner List and would be used by CMS to identify eligible clinicians for whom we would make a QP determination based on services furnished through the Advanced APM track of the CJR model.

This proposal would broaden the scope of eligible clinicians that are considered Affiliated Practitioners under the CJR model to include those without a financial arrangement under the CJR model but who are either directly employed by or contractually engaged with a participant hospital to perform clinical work for the participant hospital when that clinical work, at least in part, supports the cost and quality goals of the CJR model.