OHSA Notice of Proposed Rule Making (NPRM) Emergency Response Standard
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Letter to VA Reimbursement of Ambulance Services
The AAA has sent a letter to VA Secretary Denis McDonough asking him to delay the implementation of a final rule that would allow the Department of Veterans Affairs (VA) to reimburse at the lower of billable charges or Medicare rates for certain non-contracted ambulance services. The proposed rule was issued back in 2020 but we understand that the VA could now issue the final rule in January 2023. GMR has been advocating on Capitol Hill for a delay in air and ground ambulance services. The AAA will be issuing later today a request for AAA members to reach out to the VA to also request the delay.
December 12, 2022
The Honorable Denis McDonough
Secretary of Veterans Affairs
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
Dear Secretary McDonough,
The American Ambulance Association (AAA) respectfully requests that the Department delay release and implementation of the final rule on the “Change in Rates VA Pays for Special Modes of Transportation (RIN 2900-AP89).” Reimbursing for services to veterans at Medicare rates would have dire consequences for the ability of ground ambulance service organizations to provide lifesaving 9-1-1 emergency and also interfacility ambulance services not only to veterans but entire communities. We ask that the Department delay the rule until after Congress has had an opportunity to act on the results from the Medicare ambulance data collection system which is currently underway.
As documented by the Government Accountability Office (GAO) in 2007 and 2012, the Medicare program reimburses ground ambulance service organizations below the cost of providing their services when temporary add-ons are not considered. Since 2012, the disparity between the cost of providing ambulance services and reimbursement by Medicare has only increased through sequestration cuts, a reduction in inflation updates, and other Medicare payment policy changes. Ground ambulance service organizations are already facing difficult financial straits and cannot
sustain a reduction in reimbursement from another federal payor.
Ground ambulance service organizations serve as the foundation for emergency medical response for veterans and communities throughout the country. Our members are a vital component of our local and national health care and 9-1-1 emergency response systems and serve as lifelines of medical care for many rural and underserved communities. However, our ability to continue to serve communities is already at risk due to inadequate reimbursement and access to care for veterans would be further jeopardized if the Department were to reimburse at lower levels for ground ambulance services.
The AAA is the primary association for ground ambulance service organizations, including governmental entities, volunteer services, private for-profit, private not-for-profit, and hospital-based ambulance services. Our members provide emergency and non-emergency medical transportation services to more than 75 percent of the U.S. population. AAA members serve
patients in all 50 states and provide services in urban, rural, and super-rural areas.
Again, we request that you delay the release and implementation of the final rule on the “Change in Rates VA Pays for Special Modes of Transportation”.
If you have any questions regarding our request, please do not hesitate to have a member of your staff contact AAA Senior Vice President of Government Affairs Tristan North. Tristan can be reached by phone at (202) 802-9025 or email at tnorth@ambulance.org.
Thank you in advance for your consideration.
Sincerely,
Shawn Baird
President
AAA Posts Reformatted 2023 Public Use File
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CMS Posts 2023 Public Use File
On November 23, 2022, CMS posted the 2023 Ambulance Fee Schedule Public Use Files. These files contain the amounts that will be allowed by Medicare in the calendar year 2023 for the various levels of ambulance service and mileage. These allowable reflect an 8.7% inflation adjustment over the calendar 2022 rates. The 2023 Ambulance Fee Schedule Public Use File can be downloaded from the CMS website by clicking here.
Please note that these files reflect the Medicare allowable based on current federal law. Accordingly, the 2023 Public Use Files do not include the current add-ons (i.e., 2% for urban, 3% for rural, and the super-rural bonus), as these add-ons are currently scheduled to expire on December 31, 2022.
The AAA is actively working with congressional offices to not only extend but hopefully increase, the Medicare ambulance add-ons by the end of the year. If you have not already written to your members of Congress about extending the add-ons at increased levels, please do so today by using the AAA online advocacy tool by clicking here.
Unfortunately, in recent years, CMS has elected to release its Public Use Files without state and payment locality headings. As a result, in order to look up the rates in your service area, you would need to know the CMS contract number assigned to your state. This is not something the typical ambulance service would necessarily have on hand. For this reason, the AAA will be publishing a reformatted version of the CMS Medicare Ambulance Fee Schedule that includes the state and payment locality headings. The reformatted fee schedule will be available on the AAA website in the coming days.
The AAA will also be publishing an updated version of its Medicare Rate Calculator, which we expect to have available on our website once we have a better sense of the timing of the extension of the add-ons.
CMS Update-CY 2023 Final Ambulance Fee Schedule
Member Advisory: CMS Issues CY 2023 Final Ambulance Fee Schedule Rule Updated Data Ground Ambulance Data Collection System
by Kathy Lester, JD, MPH
CMS has released the “CY 2023 Payment Policies under the Physician Fee Schedule and Other Changes to Part B Payment Policies; Medicare Shared Savings Program Requirements; Medicare and Medicaid Provider Enrollment Policies, Including for Skilled Nursing Facilities; Conditions of Payment for Suppliers of Durable Medicaid Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS); and Implementing Requirements for Manufacturers of Certain Single-dose Container or Single-use Package Drugs to Provide Refunds with Respect to Discarded Amounts” (Final Rule). The Final Rule includes proposals affecting ground ambulance services in terms of medical necessity requirements and documentation requirements, as well as to the ground ambulance cost collecting tool.
I. Medical Necessity and Documentation Requirements for Nonemergency, Scheduled, Repetitive Ambulance Services
CMS finalizes the modifications to the documentation requirements codified in regulation pertaining to the medical necessity and documentation requirements for nonemergency, scheduled, repetitive ambulance services, such as those to/from dialysis facilities. The Final Rule clarifies that the Physician Certification Statement (PCS), and additional documentation from the beneficiary’s medical record, may be used to support a claim that transportation by ground ambulance is medically necessary. It also notes that the PCS and additional documentation must provide detailed explanations that: (1) are consistent with the beneficiary’s current medical condition; and (2) explain the beneficiary’s need for transport by an ambulance. Coverage includes observation or other services rendered by qualified ambulance personnel. It maintains the following requirements:
- In all cases, the provider or supplier must keep appropriate documentation on file and, upon request, present it to CMS;
- The ambulance service must meet all program coverage criteria including vehicle and staffing requirements; and
- A signed PCS does not alone demonstrate that transportation by ground ambulance was medically necessary.
CMS declines to “confine this regulatory clarification to the RSNAT prior authorization program, as there may be non-emergent, scheduled, repetitive ambulance transport services outside of that program that would be affected.” (Display Copy 1756) CMS also does not provide further clarification about what it means by the term “additional documentation” because it believes that “the data elements needed will vary depending upon the beneficiary’s specific conditions and needs.” (Id.) CMS also states that “[t]his proposal does not establish new obligations for documentation; rather, it merely clarifies existing requirements.” (Id. at 1757). In response to a comment, CMS also writes, “In addition, our pre-proposal language and proposed regulatory language both reflect that the presence of a PCS alone is not sufficient to demonstrate medical necessity, and, therefore, must be supported by medical documentation.” (Id.) CMS also declined to extend authorization to nurse practitioners and physicians’ assistants, stating that to do so would be outside of the scope of the rule.
II. Ground Ambulance Data Collection Instrument
CMS finalizes the proposed changes to the ground ambulance data collection instrument and instructions with a few additional modifications in response to comments. They fall within four areas: (1) editorial changes for clarity and consistency; (2) updates to reflect the web-based system; (3) clarifications responding to feedback from questions from interested parties and testing; and (4) typos and technical corrections. The updated instrument that includes all of the CY 2023 proposed changes to review and provide comments on is posted on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AmbulanceFeeSchedule/Downloads/Medicare-Ground-Ambulance-Data-Collection-System-Instrument.pdf.
One of these modification is to Section 5, Question 3c, which now reads: Does your organization respond to calls with another non- transporting agency such as a local fire department that is not part of your organization? After the question, the following instructions will be provided: This includes joint responses with other ground ambulance organizations as well as cases where a fire, police, or other public safety department responses to calls for service with your organization. Only consider cases where your ground ambulance does or would have transported the patient, if necessary.
The Final Rule notes that the system already includes an “autosave” feature that saves responses as they are entered. The system also allows the same user to enter information at different times, and/or multiple users to enter information at different times. The system also already includes many validation and error checking steps that are automatically applied as respondents enter information. CMS also noted that it has no plans to adopt additional import functionality prior to the launch of the system, but that it will continue to explore the option of an API. CMS also indicates that the final written tool and web-based platform will align before the system goes live. A print function will also be available for the online submissions.
CMS indicates that the data from the collection system will be made available to the public through posting on the CMS website at least every 2 years. Summary results will be posted by the last quarter. The data collected under the ground ambulance data collection system will be publicly available beginning in 2024.
CMS also indicates that it will not require a ground ambulance organization to fill the data entry submitter and data certifier roles with different individuals.
CMS has also provided additional guidance, including FAQs available at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service- Payment/AmbulanceFeeSchedule/Downloads/Medicare-Ground-Ambulance-FAQs.pdf.
CMS also finalizes its proposal for an automated process for submitting a hardship exemption request and informal review request.
III. Origin and Destination Requirements Under the Ambulance Fee Schedule
In the Final Rule, CMS also responds to comments it received on the Interim Final Rule that expanded the origin and destination requirements. It finalizes the interim final policy that the expanded list of covered destinations for ground ambulance transports including, but are not limited to, any location that is an alternative site determined to be part of a hospital, CAH or SNF, community mental health centers, FQHCs, RHCs, physician offices, urgent care facilities, ASCs, any location furnishing dialysis services outside of an ESRD facility when an ESRD facility is not available, and the beneficiary’s home. The policy will be In effect for the duration of the PHE for the COVID-19 only.
OSHA Publishes Mental Health Resources
OSHA Publishes Resources to Assist Employers with Mental Health & Wellness
The United States Department of Labor Occupational Safety & Health Administration has posted numerous resources and tools for employers to utilize to combat workplace stress. OSHA has published these resources following a survey conducted by the American Psychological Association in 2021 that reported burnout and stress at an all-time high across all professions and that “actions from their employers would help their mental health.”
The resources published by OSHA include:
- Guides for Employers for both Senior Managers and Frontline Supervisors
- Mental Health Checklists for Senior Managers and Frontline Supervisors
- Workplace Stress Sample Survey Questions
- Myth Buster Fact Sheets about Workplace Stress
- Workplace Postings regarding Workplace Stress & Mental Health
- Public Service Announcements on Suicide Prevention Month
- Training Resources for Employers
Employers are starting to recognize the impacts that worker mental health has in the workplace. Statistics cited by OSHA reveal that workplace stress has been reported to cause 120,000 deaths in the U.S. each year. Nearly 83% of workers suffer from work-related stress and more than half of those report that workplace stress impacts their home life. Importantly, for every $1.00 spent on ordinary mental health concerns, employers see a $4.00 return in productivity gains.
The American Psychological Association encourages employers to develop mental health and wellness programs in the workplace. They recommend that employers go beyond simply offering an Employee Assistance Program (EAP). They recommend a cross-departmental review of your company’s EAP offerings to assess if they are meeting your workforce needs. Also, ensure that your program includes mental health professionals from diverse backgrounds and specialties. Additionally, they encourage launching a communications campaign about the things that your EAP professionals can cover, including stress, mental health, and financial guidance. Most importantly, ensure that your frontline leaders are informed and able to communicate the EAP availability and offerings to your team.
Under the Mental Health Parity and Addiction Equity Act (MHPAEA), all employers sponsored health plans are required to offer the same level of health coverage for mental health-related concerns as for any other medical concerns. Most short- and long-term disability insurance plans offer a limited number of free Employee Assistance Plan visits as part of the included benefits. Lastly, American Ambulance Association members get free access to the Counselor Match Program, which provides access to mental health counselors with extensive experience in working with EMS and public safety professionals.
If you need assistance with this, or any other workplace challenges, please contact the AAA at hello@ambulance.org.
CMS Announces 2023 Ambulance Inflation Factor
On October 14, 2022, CMS issued Transmittal 11642 (Change Request 12948), which announced the Medicare Ambulance Inflation Factor (AIF) for the calendar year 2023.
The AIF is calculated by measuring the increase in the consumer price index for all urban consumers (CPI-U) for the 12-month period ending with June of the previous year. Starting in the calendar year 2011, the change in the CPI-U is now reduced by a so-called “productivity adjustment”, which is equal to the 10-year moving average of changes in the economy-wide private nonfarm business multi-factor productivity index (MFP). The MFP reduction may result in a negative AIF for any calendar year. The resulting AIF is then added to the conversion factor used to calculate Medicare payments under the Ambulance Fee Schedule.
For the 12-month period ending in June 2022, the Federal Bureau of Labor Statistics (BLS) has calculated that the CPI-U increased by 9.1%. CMS further indicated that the CY 2023 MFP would be 0.4%. Accordingly, CMS indicated that the Ambulance Inflation Factor for the calendar year 2023 will be 8.7%.
This is the largest inflation update since the implementation of the current Medicare Ambulance Fee Schedule in April 2002. The increase from last year’s 5.1% increase is also the single largest year-over-year increase on record.
EMS Grant Bill Introduced in House
EMS Grant Bill Introduced in House
All EMS Organizations Eligible with Limitations
On Wednesday evening, Representative Andy Kim (D-NJ) along with Representatives Markwayne Mullin (R-OK), Cynthia Axne (D-IA), Mike Carey (R-OH), Marc Veasey (D-TX), Al Larson (D-FL), and Bruce Westerman (R-AR) introduced the Supporting our First Responders Act (H.R. 8994). H.R. 8994 would establish the “EMS Grant Program” with funding at $50 million a year. Grants could be used for the training and retention of paramedics and EMTs, equipment, and facility modifications as well as additional purposes as seen fit by the HHS Secretary.
Of significant importance, private sector ambulance service organizations would be eligible for grants under the program. While the total amount available to private EMS would be capped at 2% or $1 million of the funding per year, H.R. 8994 is the first piece of legislation to explicitly state that private for-profit ambulance service organizations would be eligible to apply directly for such grant funding. The AAA worked closely with the sponsors of H.R. 8994 as well as Boundtree and the National Association of Emergency Medical Technicians (NAEMT) on the introduction of the bill.
Administration Includes Ambulance Add-Ons Extension on CR List
The Biden Administration has issued a list of expiring programs and items that they would like to see or have no objection to being, extended as part of the FY2023 Continuing Resolution. The list includes “Medicare add-on payments for ground ambulance services”. The list also includes a “Suspension of Medicare Sequestration” on which the AAA has been advocating. Congress will need to pass a CR by September 30 to avoid a partial government shutdown.
No determination has been made by congressional decision-makers as to when Congress will address Medicare extenders that expire at the end of the year but most key congressional staff believe extenders will be addressed after the election. Even if extenders are not included in the CR, the list demonstrates the overall support and/or recognition of the Administration for the listed programs and items including the Medicare ambulance add-on payments and suspension of sequestration.
Authorization Issues
Note: The following list is provided for your information. In the event that authorizing
legislation is not enacted in a timely manner, these items will allow either for the
continuation of programs that will be funded in the continuing resolution (CR) or for other
legislative fixes.
Agriculture/Rural Development:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Agriculture, Livestock Mandatory Reporting
No Objection to Inclusion in a CR if Not Enacted First in Other Legislation
HHS, FDA User Fees
HHS, Exclusivity of Certain Drugs Containing Single Enantiomers
HHS, Medical device programs expiration: 1) Authority to accredit 3rd parties to review certain medical device applications; 2) Conformity Assessment Pilot Program for Devices; 3) Device Postmarket Pilot Projects; 4) Inspections by Accredited Persons; 5) Modification to Humanitarian Device Exemption
Commerce/Justice/Science:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Justice, Additional Special Assessment (Expires 9/11/22)
Justice, U.S. Parole Commission (NOTE: Extension for two years is recommended)
Justice, Protection of certain facilities and assets from unmanned aircraft (Also DHS)
Justice, Extending Temporary Emergency Scheduling of Fentanyl Analogues Act (Expires 12/31/22)
Defense:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Defense, North Atlantic Treaty Organization Security Investment Program (NSIP)
Defense, Authority to Provide Temporary Adjust in Rates of Basic Allowance for Housing (BAH) if the Actual Costs of Adequate Housing for Civilians in That Military Housing Area or Portion Thereof Differs from the Current BAH Rates by More than 20 Percent
Defense, Authority for reimbursement of certain coalition nations for support provided to United States military operations (Expires 12/31/22)
Defense, Authority to provide assistance to counter the Islamic State in Iraq and Syria (Expires 12/31/22)
Defense, Authority to provide assistance to the vetted Syrian groups and individuals. (Expires 12/31/22)
Defense, Authority to provide temporary increase in rates of Basic Allowance for Housing (BAH) under certain circumstances (Expires 12/31/22)
Defense, Authority to Support Operations and Activities of the Office of Security Cooperation In Iraq (Expires 12/31/22)
Defense, Authority to waive annual limitation on premium pay and aggregate limitation on pay for Federal civilian employees working overseas (Expires 12/31/22)
Defense, Extension of Certain Expiring Bonus and Special Pay Authorities (Expires 12/31/22)
Defense, Income Replacement Payments for Reserve Component Members Experiencing Extended and Frequent Mobilization for Active Duty Service (Expires 12/31/22)
No Objection to Inclusion in a CR if Not Enacted First in Other Legislation
Defense, Information Operations, and Engagement Technology Demonstrations
Defense, One-time Uniform Allowance for Officers Who Transfer to the Space Force
Defense, Increased Percentage of Sustainment Funds Authorized for Realignment to Restoration and Modernization at Each Installation
Defense, Pilot Program for the Temporary Exchange of Cyber and Information Technology Personnel
Defense, Reauthorization of Authority to Order Retired Members to Active Duty in Highdemand, Low-density Assignments
Financial Services/General Government:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
FCC, FCC General, and Incentive Auction Authority Continuation (NOTE: Extension of auction authority through 9/30/2024 is recommended)
GSA, Pilot Programs for Authority to Acquire Innovative Commercial Items Using General Solicitation Competitive Procedure (NOTE: also covered by DHS)
SBA, Assistance for Administration, Oversight, and Contract Processing Costs
SBA, Commercialization Readiness Pilot Program for Civilian Agencies
SBA, Phase 0 Proof of Concept Partnership Pilot Program
SBA, Pilot Program to Accelerate DOD Awards
SBA, SBIR Commercialization Assistance Pilot Programs
SBA, SBIR Phase Flexibility
SBA, Small Business Innovation and Research (SBIR)
SBA, Small Business Technology Transfer (STTR)
Homeland Security:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Homeland Security, DHS Joint Task Forces
Homeland Security, E-Verify Program
Homeland Security, National Computer Forensics Institute
Homeland Security, National Flood Insurance Program
Homeland Security, Raising the H-2B Cap
Homeland Security, National Cybersecurity Protection System (NCPS) Authorization, including EINSTEIN
Homeland Security, Counter Threats Advisory Board
Homeland Security, Pilot Programs for Authority to Acquire Innovative Commercial Items Using General Solicitation Competitive Procedure (NOTE: also covered by GSA)
Homeland Security, Protection of certain facilities and assets from unmanned aircraft (Also DOJ)
No Objection to Inclusion in a CR if Not Enacted First in Other Legislation
Homeland Security, Authority to grant special immigrant status to religious workers other than ministers
Homeland Security, Waiver of Foreign Residence Requirements for Physicians Working in Underserved Areas (“Conrad State 30” Program)
Interior/Environment:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Interior, Omnibus Public Land Management Act of 2009
Labor/HHS/Education:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Labor, Trade Adjustment Assistance (TAA) for Workers Program (Expired 7/1/22)
HHS, TANF
HHS, Promoting Safe and Stable Families Program
HHS, Liability protections for health professional volunteers at community health centers (HRSA)
HHS, Medical Countermeasures Innovations Partner
HHS, Maternal, Infant, and Early Childhood Home Visiting Program
HHS, Interdepartmental Serious Mental Illness Coordinating Committee
HHS, Increase in Medicaid FMAP for territories
SSA, Demonstration Project Authority (Expires 12/31/22)
No Objection to Inclusion in a CR if Not Enacted First in Other Legislation
HHS, Additional support for Medicaid home and community-based services during the COVID-19 emergency (Expired 3/31/22)
HHS, Suspension of Medicare Sequestration (Expired 3/31/22)
HHS, Medicare IPPS adjustment for low-volume hospitals
HHS, Medicare-dependent hospital (MDH) program
HHS, Puerto Rico Medicaid Payment
HHS, Restriction on Alaska Native Regional Health Entities
HHS, Tick-Borne Diseases Working Group
HHS, Exception for eligible professionals based in ambulatory surgical centers with respect to incentives for meaningful use of certified EHR technology (Expires 12/31/22)
HHS, Incentives for Qualifying Alternative Payment Model Participants (Expires 12/31/22)
HHS, Medicare add-on payments for ground ambulance services (Expires 12/31/22)
HHS, Medicare add-on payments for rural home health services (Expires 12/31/22)
HHS, Temporary Increase in Medicare Physician and Non-physician Practitioners Payments (Expires 12/31/22)
Military Construction/VA:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
VA, Adaptive Sports Assistance Program (formerly limited to Paralympics)
VA, Co-Pays for Hospital and Nursing Home Care
VA, Homeless and Seriously Mentally Ill Veterans- Additional Services at Certain Locations
VA, Homeless and Seriously Mentally Ill Veterans- Treatment/ Rehab
VA, Manila, Philippines Regional Office
VA, SAH – Assistive Technology Grants
VA, Transportation of Beneficiaries
VA, Advisory Committee on Minority Veterans
VA, Advisory Committee on Education (Expires 12/31/22)
VA, Advisory Committee on Homeless Veterans (Expires 12/31/22)
VA, SAH for Veterans Temporarily Residing with Family (Expires 12/31/22)
Transportation/HUD:
Necessary For Extension or Inclusion in the CR if Not Enacted First in Other Legislation
Transportation, Next Generation 9-1-1
CMS End of PHE Roadmap
CMS Prepares Providers and Suppliers for the End of the Public Health Emergency:
CMS Issues Updates on the End of Emergency Waivers and Flexibilities Issued during the PHE
By Kathy Lester, J.D., M.P.H.
Even though it appears that the Biden-Harris Administration will extend the COVID-19 Public Health Emergency (PHE) for at least another 90 days, CMS has begun the process of preparing for the termination of waivers and flexibilities that have been in effect during the pandemic. During the PHE, the American Ambulance Association has worked closely with CMS and Congress to make sure that ground ambulance services were prioritized and provided with waivers and flexibilities to support their integral role as a front-line medical response during the pandemic.
CMS announced its roadmap for the end of the PHE on August 18. The roadmap includes a summary of the policies that will terminate at the end of the PHE, but also notes that CMS intends to keep some policies in place even after the PHE ends. Examples of policies that will continue after the PHE is allowed to expire include certain morbidity and mortality reporting requirements on long-term care facilities and certain telehealth services expanded by Congress.
In its announcement, CMS indicated particular concern about patient safety. “As mentioned by Lee A. Fleisher, M.D.; Michelle Schreiber, M.D.; Denise Cardo, M.D.; and Arjun Srinivasan, M.D., in February 17, 2022, New England Journal of Medicine Perspective, ‘Safety has also worsened for patients receiving post-acute care, according to data submitted to the Centers for Medicare and Medicaid Services (CMS) Quality Reporting Programs…’”
As part of this announcement, CMS released a fact sheet detailing the current status of the Medicare waivers and flexibilities for ambulance providers and suppliers. Some of the policies highlighted in this fact sheet include:
- Vaccine Reimbursement Rates: CMS will continue to pay approximately $40 per dose for administering COVID-19 vaccines in outpatient settings for Medicare beneficiaries through the end of the calendar year that the COVID-19 PHE ends. Effective January 1 of the year following the year that the COVID-19 PHE ends, CMS will set the payment rate for administering COVID-19 vaccines to align with the payment rate for administering other Part B preventive vaccines. CMS plans to continue to pay a total payment of approximately $75 per dose to administer COVID-19 vaccines in the home for certain Medicare patients through the end of the calendar year that the COVID-19 PHE ends.
- Alternative Destination: CMS indicates that it will include this issue in future rulemaking.
- Treat in Place: CMS indicates that the waiver will end with the end of the PHE.
- Repetitive, Scheduled Non-Emergent Ambulance Transport (RSNAT) Prior Authorization: CMS notes that it has already returned to the full model operations including post-payment reviews of claims submitted during the PHE.
- Signature Requirements: Absent indications of potential fraud and abuse, CMS will not review claims for dates of service during the COVID-19 PHE for compliance with the signature requirements.
- Appeal Flexibilities: CMS will allow some of the flexibilities related to the timing of appears to continue consistent with existing authority for appeals once the PHE ends.
The AAA will continue to monitor the PHE and any changes in the waivers and flexibilities specific to ground ambulance services. We encourage members to reach out to our team if concerns or questions arise as CMS winds down the PHE.
CMS Ambulance Open Door Forum Summary
On August 18, 2022, the Centers for Medicare and Medicaid Services (CMS) held its most recent Ambulance Open Door Forum (ODF). As is typically the case, CMS started the ODF with a series of announcements, before opening the call to questions from the ambulance industry.
The first announcement related to proposed changes to the regulations governing the medical necessity requirements for non-emergency, scheduled, repetitive ground ambulance services. Specifically, CMS is proposing to modify the so-called “special rule” for repetitive, scheduled non-emergency services (set forth in the regulations at 42 C.F.R. §410.40(e)(2)(ii)). CMS indicated that these proposed changes would provide necessary and ensure the consistent application of the documentation requirements by its contractors. The proposed change would add language indicating that both the Physician Certification Statement and “additional documentation from the beneficiary’s medical record” could be used to support medical necessity for the ambulance transport. The new language would further indicate that these documents must provide detailed explanations that are consistent with the beneficiary’s current medical condition. On the ODF, CMS encouraged the industry to submit comments on these proposed changes. However, CMS indicated that, because these changes were the subject of ongoing rulemaking, it would not be able to answer any questions on the ODF.
The second announcement related to the proposed changes to the Medicare Ground Ambulance Data Collection System (GADCS) included in the July 2022 Proposed Rule. CMS and its contractor, the Rand Corporation, went through a detailed PowerPoint presentation that summarized these proposed changes. That PowerPoint presentation can be accessed by clicking here.
As part of its discussion of the GADCS, CMS also announced the implementation of an automated process for requesting hardship exemptions and informal review of determinations that an ambulance provider is subject to a financial penalty for failing to properly submit its cost data.
The final announcement related to ambulance services furnished by Rural Emergency Hospitals (REHS). In the FY 2023 Outpatient Hospital Proposed Rule, CMS is proposing to codify in its regulations the statutory requirement that ambulance services furnished by entities that are owned and operated by REHS will be paid under the Medicare Ambulance Fee Schedule. CMS is also proposing to revise the origin and destination requirements to include REHS as both a covered origin and covered destination for ambulance services.
The ODF concluded with a brief Q&A period. All of the questions posed to CMS related to the GADCS. One of the questions placed to CMS was whether it would permit ambulance suppliers to prospectively seek a hardship exemption, i.e., to permit an ambulance supplier to ask now that it be relieved of the financial penalties for failing to report its cost data. The person posing the question specifically referenced ambulance suppliers impacted by the severe flooding in the State of Kentucky. CMS confirmed that an ambulance supplier had to be notified that it was subject to a financial penalty before it was eligible to seek a hardship exemption.
Publicly Bid Medical Equipment Contracts
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New EEOC Guidance on COVID-19 Testing
EEOC Issued New Guidance on Employer Mandatory COVID-19 Testing Policies
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance, What
You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, which
impacted several long-standing COVID-19-related policies. The most significant policy change in the
latest guidance was related to employer mandatory COVID-19 testing. The updated guidance is not likely
to significantly impact EMS employer testing practices for field personnel, but could for those who work
in administrative or non-patient facing roles.
In the latest guidance, the EEOC changed its previous position that employers could generally require
COVID-19 testing for most employees. The EEOC had previously taken the position that it believed that
COVID-19 viral testing was per se, job-related and consistent with business necessity, regardless of the
employer type. Under the latest guidance, the EEOC is now stating that employers will need to more
closely analyze whether viral testing is job-related and consistent with business necessities. In doing so,
employers should utilize any of these factors:
The Center for Disease Control (CDC) level of community transmission.
The vaccination status of employees.
The degree of breakthrough infections are possible for vaccinated workers.
The transmissibility of current variants.
The possible severity of illness from a current variant.
In most instances, EMS employers who require COVID-19 viral testing for field employees for ongoing,
symptomatic, or return to work reasons, are likely to meet the job related and consistent with business
necessity requirement. However, for those employees who are in non-patient-facing roles, it will be far
more difficult to justify mandatory COVID-19 testing and employers should reconsider their position on
mandatory testing.
The guidance also included updates to clarify the timeline factors to consider when handling reasonable
accommodation exceptions for vaccinations and how there could be a reasonable pandemic-related
delay. However, they acknowledged that this is likely less impactful at this point in the pandemic.
Additionally, the guidance highlighted that employers are not under an obligation to engage an
employee who has a serious health condition if the employee has not requested an accommodation
from vaccination.
Many EMS employers are currently required to mandate COVID-19 vaccinations for employees who may
enter or interact with the patients or staff of a covered healthcare facility unless they have a covered
religious or disability-related exemption. After nearly two years of the pandemic and the availability of
COVID-19 vaccinations, those employees who wish to be vaccinated would have done so by now. Those
who remain unvaccinated are doing so by choice.
If you have any questions or concerns regarding the updated guidance or any COVID-19 related
workplace practice, be sure to contact the American Ambulance Association for assistance at
hello@ambulance.org.
Organized Labor is Making a Comeback
In my early EMS leadership career, I worked for an organization that was swallowed up by a large national EMS consolidator. The unsettled times that occurred during, and immediately following the acquisition, led a small group of paramedics to petition for union representation. At the time, I had not yet finished my undergraduate or law degree. My experience with leading a management team through a union campaign was non-existent. The organization hired a labor attorney to work with our team to ensure that we stayed compliant in the weeks leading up to the National Labor Relations Board (NLRB) election.
It was an incredibly difficult time for both the leadership and the employees. Anyone who has lived through a union campaign can tell you, it can make you question the type of leader and manager you think you are. It puts an unbelievable strain upon everyone in the organization. Ultimately, the employees elected not to be represented by a union. As a team, we learned a great deal during this process. We realized that we were not the employee-centric organization that we believed we were. There is an old saying in labor relations, “every company gets the union it deserves.”
Union representation had been on the decline for several decades as numerous laws and regulations have been enacted to address many of the concerns that drove union membership. As we know, the last few years have presented incredible challenges for EMS organizations and their employees. The Biden Administration brings with it a President who has adopted a pro-union agenda and a Secretary of Labor, who is a former union leader.
A recent article published by the National Law Review states that union petitions are up 57%. Nearly every day there is a story of unionization at organizations that were previously not union strongholds. Additionally, polling seems to suggest that Americans view unions far more favorably than they did just over a decade ago. Traditionally, unions used to focus on larger employers, but have recently added all employers, including those with smaller collective bargaining units.
EMS agencies are no exception to this trend in union representation. It should be no surprise to EMS leaders that several unions believe that EMS is ripe for labor organizing. I will not go into all of the reasons that EMS is the focus of labor organizations but suffice it to say, the recent workforce challenges have made their message far more enticing to employees. Recently, an organization that I once was a part of and would not have believed was ripe for organizing, just overwhelmingly voted to be represented by a union.
The Best Strategy
If your organization is committed to remaining in a non-union environment, it is critical that you make this an intentional part of your strategic plan. Generally, employees join unions because they are unhappy or dissatisfied with the relationship they have with the management team or company they work for. This is often articulated by dissatisfaction with pay and benefits, consistency in policy and procedure practices, and the day-to-day interactions with management. More specifically, the relationship or treatment by their immediate supervisor.
The best strategy is to be proactive. This is not something that employers can or should ignore. This must be a stated and intentional part of your organizational strategic plan. Due to the workforce shortage, most organizations have been evaluating their pay and benefits programs. However, we are not always so good at communicating these benefits to our employees. Often, we treat pay and benefits like trade secrets, even with our own folks. EMS is notorious for its rumor mill and it is far better to control or influence the narrative regarding the benefits that your employees enjoy by working for your organization. You will be surprised how many on your team have no idea that some of your benefits exist or are available to them.
Education and communication are key elements in any union-free workplace strategy. Employers should utilize the AAA Total Compensation Statement that highlights all costs associated with pay and benefits.
The leadership team should evaluate the frequency of supervisor-employee interactions and the tools used to track these engagements. The stronger the relationship between the frontline employees and the leadership team, the less likely your employees are to invite an outside third party to represent them. If this is not one of your organization’s leading Key Performance Indicators (KPIs) or Vital Signs, it will disappear into the whirlwind of activity that consumes your team’s day.
Rules of the Road
It is important for your team to know the rules of the road as it relates to a fostering union-free strategy. The playing field is not exactly even. Unions have the right to solicit employees and make promises of increased wages, benefits, and working conditions, regardless of their ability to deliver. However, employers are far more limited in what actions they can take regarding union representation. Employers can find themselves in trouble if they fail to follow some simple rules. Here are a few TIPS to help employers stay compliant.
T – Employers cannot Threaten to discipline or reduce wages and/or benefits if their employees unionize or engage in union activity;
I – Employers cannot Interrogate employees about their activities or feelings on union representation;
P – Employers may not make Promises to employees to improve wages, benefits, or working conditions if they remain union-free;
S – Employers cannot Spy on employees’ union-related activities.
Employers are free to discuss what joining a union might mean for the employee. For example, an employer can say “if the workforce is represented by a union, the terms and conditions of employment will be subject to collective bargaining. The collective bargaining process may result in employees getting more, getting less, or the same wages and benefits that they have now.” The key is, to be honest in all communications with your employees.
A Path Forward
EMS leaders should deliver a clear message to their frontline leadership team. Focus on developing strong relationships with their employees. Encourage open and frequent lines of communication, listen to employee concerns, and address them quickly. Ensure that frontline leaders have been provided training and the TIPS for maintaining a union-free work environment. Lastly, be sure to contact the AAA at hello@ambulance.org if you have questions or need assistance.
National EMS Memorial Bike Ride Registration is OPEN!
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PRF Late Reporting Extended
HRSA announces potential relief for health care providers that missed the deadline to report on their use of Provider Relief Funds
On April 7, 2022, the Health Resources and Services Administration (HRSA) posted a notice that offers providers that missed the deadline to report on their use of HHS Provider Relief Funds the opportunity to potentially be able to file that report and therefore avoid the potential recoupment of PRF funds. The “Request to Report Late” is limited to situations where the failure to timely submit the required report was due to one or more extenuating circumstances.
If you were notified that you failed to submit your required PRF Report on a timely basis and are being asked to return PRF funds, you should read this member advisory carefully.
Relevant Background
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). As part of that Act, Congress allocated $100 billion (increased to $178 billion by subsequent legislation) to the creation of the CARES Act Provider Relief Fund (PRF) which was used to support hospitals and other healthcare providers on the front lines of the nation’s coronavirus response.
Under the terms of the PRF program, health care providers that received more than $10,000 in any reporting period were required to submit a report that provides details on how those funds were expended. The first report covered PRF payments received between April 10, 2020, and June 30, 2020, and was due on or before September 30, 2021. HHS subsequently enacted a 60-day grace period, which ran from October 1, 2021, through November 30, 2021. The second report covered PRF payments received July 1, 2020, and December 31, 2020, and was due on or before March 31, 2022.
Providers that failed to submit any required report by these deadlines are subject to the potential recoupment of those funds.
What HRSA Considers to be “Extenuating Circumstances”
According to the notice, health care providers will be permitted to request the opportunity to complete their report after the deadline to the extent the filing of their report was delayed due to one or more of the following:
- Severe illness or death – a severe medical condition or death of a provider or key staff member responsible for the reporting hindered the organization’s ability to complete the report during the relevant reporting period.
- Nature Disaster – a natural disaster occurred during or in close proximity to the end of the reporting period that damaged the organization’s records or information technology.
- Lack of receipt of reporting communications – an incorrect email or mailing address on file with HRSA prevented the organization from receiving instructions prior to the relevant reporting period deadline.
- Failure to click “Submit” – the organization registered and prepared a report in the PRF Reporting Portal but failed to take the final step to click “Submit” prior to the reporting deadline.
- Internal Miscommunication or error – internal miscommunication or error regarding the individual who was authorized and expected to submit the report on behalf of the organization and/or the registered point of contact in the PRF Reporting Portal.
- Incomplete Targeted Distribution payments – the organization’s parent entity completed all General Distribution payments, but a Targeted Distribution(s) was not reported on by the subsidiary.
Process for Applying for Permission to Submit a “Late Report”
To the extent one or more of the extenuating circumstances described above applies, the provider will be given the opportunity to submit a Request to Report Late Due to Extenuating Circumstances. The timeframe to submit these requests will run from April 11, 2022, to April 22, 2022.
HRSA is indicating that any provider that plans to submit such a request but has yet to register in the PRF Reporting Portal, should register prior to submitting their request.
To submit a request to file late, the provider will need to submit a form indicating the extenuating circumstance(s) that prevented the required report from being submitted in a timely fashion. That form will require the provider to provide a “clear and concise explanation” of the applicable extenuating circumstance. However, providers will not be required to submit any supporting documentation. The provider will be required to attest to the truthfulness and accuracy of their extenuating circumstance.
After submitting their request, the provider will be notified by HRSA whether their request is approved or denied. If the request is approved, the provider will have 10 days from the date of the notification to submit the required report through the PRF Reporting Portal.
If the request is denied, HRSA will proceed with the recoupment of the PRF funds subject to the missed report.
National EMS Memorial Bike Ride Registration is OPEN!
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DOL Electronic Injury & Illness Reporting
Proposed Changes to the OSHA Electronic Injury & Illness Reporting Requirements
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is proposing amendments to its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The current regulation requires certain employers to electronically submit their summary injury and illness data (Form 300A) to OSHA annually. OSHA uses these reports to identify and respond to emerging hazards and makes aspects of the information publicly available.
In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses, the proposed rule would require certain establishments in certain high-hazard industries to electronically submit additional information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report (Form 300, 300A, & 301). The latest proposed rule will require certain employers to submit more detailed information and is a return to the original electronic data submission rule that was proposed in 2016 and rolled back in 2017, prior to the rule taking effect. EMS organizations will be included in those industries that are considered high-hazard and thus, required to submit this information.
As we reported last month, OSHA reported that there was a 249% increase in illnesses and injuries reported by healthcare employers in 2020. This is no surprise given that this was at the heart of the pandemic. OSHA believes this rule will improve the agency’s ability to use the information in its enforcement and compliance assistance efforts to identify workplaces where workers are at high risk.
The proposed rule would:
- Require establishments with one hundred (100) or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. Currently, only the Form 300A summary data is submitted electronically.
- Update the classification system used to determine the list of industries covered by the electronic submission requirement.
- Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
- Require establishments to include their company name when making electronic submissions to OSHA.
Under the proposed rule, establishments with 20-99 employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.
Those interested can submit comments must do so by May 30, 2022. If you have questions about your organization’s reporting requirements under the OSHA Regulations, be sure to contact the AAA at hello@ambulance.org for assistance.
2021 Ambulance Ride-Along Toolkit
2021 Ride-Along Toolkit Now Available!
Educating your members of Congress about ambulance industry issues makes them more likely to support our policy efforts. An easy and effective way to educate them is to invite them to participate in a local Ambulance Ride-Along!
Congress has adjourned for summer recess and members have returned home to their districts and states. This is the perfect opportunity for you to educate your members of Congress about our issues, in particular our Medicare Ambulance Bill, Balance Billing, and access to the Provider Relief Fund, which are all essential to your service.
The most effective way to deliver these key messages is to host your member of Congress or their staff on a tour of your operation and an ambulance ride-along. While COVID-19 has made a traditional ride-along difficult, you can still host them for a virtual site visit to show your operation and how you are handling the public health emergency. The AAA has made the process of arranging a ride-long or scheduling a meeting easy for you with our 2021 Congressional Ride-Along Toolkit.
Everything you need to arrange the ride-along or schedule a meeting during this time of social distancing and virtual participation is included in the Toolkit. Act now and invite your elected officials to join you on an Ambulance Ride-Along!
2021 Medicare Rate Calculator Released
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