The case centers on whether CMS’ inclusion of nurse practitioners in MIPS, despite their role in non-primary care settings, is reasonable. Caroline Lopez, representing the government, argued that the courts cannot address this issue due to legal restrictions on reviewing cost measures under MIPS. She further contended that CMS’ policy was sound because it tracks the types of care provided by clinicians, not necessarily the type of practice.
Lopez explained that nurse practitioners and physician assistants are classified by CMS as primary care providers because of their billing patterns, which suggest they typically provide primary care services. “If the underlying Medicare data did not indicate that these nurse practitioners were billing for primary care, they wouldn’t come within the measure,” Lopez said.
However, the anesthesia practices’ attorney, Eric McArthur of Sidley Austin LLP, argued that nurse practitioners should not be considered primary care providers simply because they assist in running an anesthesia practice. McArthur emphasized that the inclusion of these practitioners in the cost attribution methodology could lead to unfair financial consequences for anesthesia practices, as it could result in them being held accountable for the entire cost of a patient’s Medicare care. This could include post-operative care such as monitoring pain levels and medication, which falls outside of primary care.
