Germane Solutions has provided our comments to CMS, shared below, and we invite you to review and provide your thoughts and feedback in the comment section. If you would like to submit your own comments to CMS, please follow the instructions in our previous blog post, "Potential GME Impact Following CMS 2025 IPPS Proposed Rules" that is linked at the bottom of this page.
We are encouraged that CMS is revisiting the guidance provided in the 2009 Federal Register regarding what determines whether a program should be considered new for Medicare payment purposes. That guidance focused on four primary criteria as follows:
The residents are new, and
The program director is new, and
The teaching staff are new.
The program is newly accredited
CMS in this proposed rule is seeking “to establish in rulemaking additional criteria for determining program newness.” We applaud this effort as those organizations seeking to start new GME programs need clarity regarding whether their programs will be viewed by CMS as truly new programs and thus eligible for CMS funding of those programs as new programs. Starting new GME programs is an expensive proposition and those institutions seeking to start new GME programs need assurances that their programs will be considered new and be eligible for CMS funding as new GME programs. Historically, the interpretation of the aforementioned criteria created ambiguity and offered limited guidance for hospitals and health systems to confidently start new programs. With these updates to the rules, we believe it will provide more concrete rules for institutions targeting new GME programs.
While the CMS concern is primarily focused on whether any given program is eligible for CMS funding as a new GME program, we would encourage CMS to also ensure that their policies do not:
inadvertently stifle the much-needed development of new GME programs,
create criteria that inhibit the ability of an institution to create a quality GME program.
The physician shortage is impending and there has been a significant effort by many organizations to directly address this shortage both nationally and locally through the development of additional Graduate Medical Education opportunities. Given that Congress has established a cap on the number of physicians that Congress will fund, i.e., the 1996 FTE cap, the ability of hospitals to develop new GME programs using the new program funding mechanism provided in the regulations is a critical piece to address the physician shortage. Thus, CMS must balance its concern for allowing new program funding for only those programs that are truly new, with the stark reality that new programs are critical to addressing the physician shortage. So, we encourage CMS to recognize that creating criteria that severely limit an institution’s ability to develop new GME programs will have the long-term ramifications of significantly exacerbating the predicted physician shortage.
Therefore, our comments provide recommendations that are designed to support CMS in developing criteria that are clear, easy to understand/implement and minimize unintended consequences. To that end, we have organized our comments following the CMS sections in the proposed rule as follows:
a. Newness of Residents,
b. Newness of Faculty and Program Director – RFI (Request for Information),
c. Commingling of Residents in a New and an Existing Program – RFI,
d. One Hospital Sponsoring Two Programs in the Same Specialty – RFI.
1. Newness of Residents
The newness of residents in a program was one of the primary criteria outlined in the 2009 Federal Register for assessing whether the program is truly new. According to this criterion, these new residents should be residents who have recently graduated from medical school and have no training experience in an ACGME-approved residency program. However, it must be noted that most existing programs also [SD1] have residents who have recently graduated from medical school and have no residency training experience. So, this criterion is not a defining difference that distinguishes a program as new. Conversely, the mere presence of residents with previous residency training experience that are admitted to a new program as a PGY 2 or higher doesn’t indicate that the program is not new. For these reasons we encourage CMS to focus on the total number of non-PGY1 residents coming from a singular program, to prevent the movement of an existing program as a whole or in significant part to another hospital and claim it as a new program, and provide clear direction as to how many experienced residents admitted to a new program will be eligible for new program funding.
We understand that the CMS concern has always been the movement of a GME program, either as a whole or a significant part, from one institution to another institution and then claiming it as a new program. CMS reasoned that this would be an impermissible increase in the Congressionally mandated limit on funding through the 1996 FTE cap. We agree with the CMS concern; however, using the new resident criterion to somehow prevent this from happening is not an optimal solution.
Finally, we wanted to note that many GME programs rely on experienced residents as a critical component of the overall training, which serves to increase the overall quality of their GME program. These experienced residents often provide additional training and mentorship for the new residents, which serves to increase the overall quality of their GME program, especially in the initial years of a new program. For this reason, we agree with the CMS proposal to allow new program funding for a certain number of experienced residents being admitted to the new GME program. Again, the mere presence of experienced residents is not a good indicator of the newness of the GME program. However, we understand that CMS believes there should be a reasonable limit on the number of experienced residents that will be eligible for the new program funding treatment.
CMS has proposed to allow no more than 10% of the total number of residents trained over the 5-year period to be for residents who had training experience in other programs. While we applaud CMS' recognition that experienced residents from other programs are permitted to join the new GME program and receive new program funding, we believe that 10% is too low and would suggest that 30% is more reasonable. Using 10% as a threshold is particularly unworkable for small programs, since their new program may not even be large enough to add one experienced resident. Whereas using a 30% threshold would allow even a small program to at least add 1 experienced resident. In addition, a 30% threshold ensures that a significant majority of the residents are recent graduates of medical school, but provides greater flexibility for the program to recruit a number of experienced residents to enhance the quality of the education program. We also suggest that this 30% threshold be used as an admitting criterion, that is, if the number of experienced residents admitted to the new program in a program year is no more than 30% of the total residents admitted in that program year, then those experienced residents are eligible for new program funding until they complete the program or leave the program. Thus, as an example, an Internal Medicine program that is approved for a total of 18 slots (6 slots per PGY year) would in their first year admit 6 PGY 1 (recent graduates from medical school) residents and be allowed to admit 2 experienced residents PGY2 or higher (30% times 6 slots is 1.8 slots rounded to 2 slots). In year 2 they would admit 6 PGY 1 residents and be allowed to hire 2 experienced residents. In year 3 they would admit 6 PGY 1 residents and if no residents have left from the year 1 or 2, then they would have a total of 18 slots filled (6-PGY 1s, 6-PGY 2s and 6 PGY 3s) and thus would not be allowed to admit any more experienced residents. Where a new program has residents that leave the program, for whatever reason, that new program is allowed to admit experienced residents to fill that slot and that resident is eligible for new program funding. A new program that admits more than the experienced residents allowed under this rule would not be eligible for the new program funding for those experienced residents, rather those experienced residents would be reported as a current year resident subject to the FTE cap.
To summarize our comments on the proposed rule for New Residents:
Regarding using the count of new residents or a percentage of new residents to total residents, we believe these are not a good measure for assessment of whether a program is new. Therefore, we request CMS eliminate the new resident criterion as an evaluation criterion for assessing whether a program is new.
To address the CMS concern of an existing GME program moving, either as a whole or in significant part, from one institution to another institution we recommend CMS focus on identifying whether more than 50% of experienced residents are coming from a singular program.
We recommend CMS allow up to 30% (on a rounded basis) of the residents admitted to the new program to be experienced residents, that is PGY 2 or higher. The eligible experienced residents admitted under this rule are eligible to receive the new program funding until they complete or leave the new program. Experienced residents admitted in excess of that allowed by this rule shall be treated as residents that are subject to the existing, that is non-new program, FTE cap.
2. Newness of Faculty and Program Director – RFI (Request for Information),
We agree that some assessment of the composition of the Faculty and where a Program Director is recruited from are reasonable criteria to be used when assessing whether a program is new. We applaud CMS for recognizing the importance/reasonableness of an institution in hiring experienced staff, that is, the staff has previous experience in either administration of another GME program and/or previous teaching experience. However, we also believe that CMS must recognize that policies that severely restrict an institution’s ability to recruit qualified candidates, experienced or otherwise, are detrimental to the development of new physicians to address the physician shortage, hampers the development of a quality education program, and is ultimately damaging to the quality of the healthcare system long-term. While the Accreditation Council for Graduate Medical Education (ACGME) is not part of the federal government, it is the sole, private accrediting body recognized by CMS for medical specialties outside of Dental and Podiatry. The requirements set forth by ACGME will need to be taken into careful consideration to not impact future development of programs and encourage clinical excellence for the future caregivers of the country and beyond.
Therefore, our comments recognize the importance of hiring quality staff for a new GME program and also provide clear guidance to institutions when building their new programs so they will know CMS will agree that their program is new and be eligible for the new program funding. Our comments will address each of the Program Director and the Faculty in turn.
Program Director
CMS is questioning “whether it would make sense to define a similar period of time (for example, 10 years or 5 years) during which an individual must not have been employed as the program director in a program in the same specialty”. CMS also notes that the ACGME common program requirements state that a program director qualification “must include specialty expertise and at least three years of documented educational and/or administrative experience, or qualifications acceptable to the Review Committee”. In light of the ACGME requirements, the CMS question of requiring a program director for a new program to not have been a program director for the previous 5 or 10 years is unworkable for the following reasons:
The ACGME would likely conclude that an individual who has not worked as a program director or assistant program director for 5 or 10 years is in no way qualified to be a program director today; therefore, the program would be unable to achieve initial accreditation
A policy this draconian would essentially either eliminate the development of new programs entirely or, as a minimum, severely hamper an institution in its efforts to develop a quality program.
The pool of qualified program directors is already very limited, so this requirement would basically reduce the pool of qualified program directors to almost zero.
This policy would severely restrict the ability of program director’s or assistant program director’s growth opportunities by making it nearly impossible for them to move to other organizations.
This policy is likely not legally enforceable as it severely restricts the ability of program directors or assistant program directors to move from one institution to another institution, which is depriving the worker of their legal rights to change jobs.
While it may be an unwritten rule, the ACGME requires GME experience within the last 3-5 years of practice or they are deemed to not be in compliance with the specialty-specific requirements. If the rule was changed to 10 years, only physicians who have been out of teaching for a significant period of time would be eligible to lead newly created programs. Furthermore, current ACGME practices only allow up to 10 years of prior experience to be listed. Any experience prior to 10 years cannot be included.
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For these reasons, we recommend there should not be any restriction for a PD to move from one program to another program, and we recommend the “new PD” criterion be removed from the criteria for determining whether a new program is truly new. To assist in new program development across the country, CMS should be encouraging current and dynamic leadership team members to assist in starting new programs instead of hindering the PD's ability to grow and expand. By enforcing this rule, it essentially creates a non-compete clause for all private and public institutions which does not allow a PD to shift to a different job in their expertise areas.
Finally, we believe that the fact that a Program Director has previous recent work experience is not a proper criterion for assessing whether a program is new. As stated previously it is in CMS’s and the institution’s best interests that the Program Director have recent experience as a program director or assistant program director in that this will help to make the new program successful and of higher quality right from the start. In those instances where an existing program is moving from one institution to another institution it is the movement of a PD along with a significant number of faculty that would be a better indicator that the program is not truly new.
To summarize our comments on the proposed rule for New Program Director:
Regarding the use of New Program Director as a criterion for assessment whether a program is new, we believe it is not a good measure for assessment of whether a program is new. Therefore, we request CMS eliminate the new Program Director criterion as an evaluation criterion for assessing whether a program is new.
We recommend CMS eliminate any requirement regarding the number of years that the candidate for the new Program Director must not be in a program director or assistant program director position. Rather, we believe CMS should encourage new programs to include current experienced candidates so their new program will have a more likely chance for success and enhance the quality of their new program.
Faculty
Like the Program Director position, CMS is questioning whether it “might make sense to consider whether a staff member taught in another program in the same specialty at any point during the 5 years prior to their employment in the “new” program, as 5 years is the time associated with building a new FTE cap, but not to consider teaching experience from more than 5 years ago”. As with the comments above regarding the Program Director, CMS created this criterion to prevent the movement of faculty, as a whole or in significant part, from one institution to another institution. We agree that moving an existing program, as a whole or in significant part, from one institution to another institution and then claiming it is new should not be allowed. However, making sure the faculty has no experience teaching for the last 5 or 10 years is a poor way to prevent this.
Before continuing, we believe it is important to distinguish between faculty and core faculty roles. Faculty positions are given to physicians across the country for their participation in Medical School and residency training alike. There are not any specifications on their true involvement in the program or the amount of time they contribute to GME. Core Faculty is a specific term used by the ACGME to distinguish the primary teachers of GME programs. These positions are required by each program specialty and these physicians must have active board certifications in their respective programs. Furthermore, the required amount of core faculty members and their protected time vary by specialty as outlined by the ACGME. The Core Faculty is who CMS should be carefully monitoring and the non-core faculty should not have any restrictions. Moving forward, we are specifically referencing core faculty positions.
Like the reasons provided above related to the Program Director, we believe it is in the best interests of CMS, the new program, and the healthcare system long-term that there be few barriers to hiring experienced faculty in a new GME program. However, we also recognize that it is in the best interests of all parties that a lot of the faculty be physicians that are already practicing at the institution seeking to develop a new program. Thus, the goal of any policy should be to allow some flexibility to hire experienced faculty while encouraging current practicing physicians at the institution to become faculty.
We recommend CMS consider the following guidelines with respect to the composition of the faculty:
To make sure the institution has maximum flexibility to hire experienced faculty, we recommend there be no restrictions on the number of experienced faculty recruited from outside the CBSA or a contiguous CBSA of the institution. This policy provides maximum flexibility for the new program with the ability to hire as many experienced faculty as they need to so they can develop a quality new program and increase the likelihood of the new program’s success both short-term and long-term.
We agree with the CMS suggestion “that 50 percent of the teaching staff may come from a previously existing program in the same specialty, but if so, the 50 percent should comprise staff that each came from different previously existing programs in the specialty” but would modify this rule so that it would only apply to experienced faculty hired within the hospitals CBSA area or a contiguous CBSA area. There should be no restrictions on hiring experienced faculty outside of the hospital's CBSA area or a contiguous CBSA area.
We believe these guidelines provide CMS with the ability to make sure a new program is truly new while at the same time providing the new program with clear guidance regarding how CMS will assess whether a program is new. In addition, the new program will have significant flexibility to supplement the faculty recruited from the existing physicians practicing at the institution with experienced faculty so that the development of a quality new program is enhanced.
Furthermore, many ACGME specialties require academic experience for the Core Faculty as well as the Program Director as previously mentioned. Between scholarly activity and prior teaching experience being required, this cannot be achieved unless the Core Faculty members are coming from other existing programs. Potentially distinguish between different program specialties.
To summarize our comments on the proposed rule for New Faculty:
Regarding the use of Faculty as a criterion for assessment of whether a program is new, we believe it is not a good measure. Therefore, we request CMS eliminate the new Faculty criterion as an evaluation criterion for assessing whether a program is new.
We recommend CMS eliminate any requirement regarding the number of years that the new faculty candidate must not be in a teaching position. Rather we believe CMS should encourage new programs to include current experienced candidates so their new program will have a more likely chance for success and enhance the quality of their new program.
To address the CMS concern regarding the movement of an existing program, as a whole or in significant part, from one institution to another institution, we recommend that CMS specify that to be a new program:
Up to 50 percent of the teaching staff may come from a previously existing program in the same specialty in the hospital's CBSA area or a contiguous CBSA area, but if so, no more than 3 faculty for any given specialty may come from the same hospital.
There are no restrictions for the number of experienced faculty from outside of the CBSA or a contiguous CBSA of the geographic location of the hospital.
3. Commingling of Residents in a New and an Existing Program – RFI
CMS is requesting information to better understand the commingling of residents between two different programs. While this is something that has occurred for many years, CMS wants to ensure it is not being taken to the extreme and existing programs are not effectively expanding and taking advantage of new program funding opportunities.
First, we propose that there should be no restrictions on the commingling of residents and fellows when it comes to didactic lectures. Assuming that the existing didactic curriculum currently meets ACGME and Specialty Board requirements requiring a new program to develop a separate and distinct didactic schedule would lead to lower quality lectures for the learners of the new program. We have previously and will continue to encourage the best educators at each institution to provide knowledge and expertise to the various programs to which it is applicable and not require separate and distinct lectures for each program. Further, learners from various specialties are permitted to commingle in didactic lectures that are mutually relevant, so the same logic should be extended to learners of new and existing programs. There are already numerous sharing opportunities between institutions and between specialties across the country for didactics to help lessen the burden of the teaching faculty.
The next case we will address is new and existing programs of different specialties. The case of new and existing programs of the same specialty will be addressed in the following section, “One Hospital Sponsoring Two Programs in the Same Specialty”. We propose that there should be no restrictions on the commingling of residents and fellows when it comes to new and existing programs of different specialties. It is common practice for learners in different specialties to take part in specific rotations simultaneously when training requirements set forth by the ACGME overlap. For example, there could be residents from Internal Medicine, Family Medicine, Emergency Medicine, along with others all rotating on the same inpatient team. The presence of existing residents in this case does not impact the newness of the new program. If anything, the commingling of new and existing residents in this case would strengthen the experience of the new residents by receiving complex material from existing infrastructure.
In summary, we believe that there should be no restrictions on the commingling of residents in new and existing programs of different specialties or in didactic lectures of any specialty because the presence of existing learners in these cases do not impact the newness of the new program.
4. One Hospital Sponsoring Two Programs in the Same Specialty – RFI
Historically, hospitals have been able to sponsor two programs in the same specialty as long as the newness criteria were met by the institution, including separate program directors, separate staff, and separately matched residents. This has been something that has come to light in the last few years with the election of rural reclassification in so many hospitals across the country which allows for new IME cap growth and development. Historically, hospitals would not receive FTE cap for expanding an existing program but with starting a new program they would be eligible to create new FTE cap.
We believe that there are two separate and distinct cases in which a “hospital” would sponsor two programs of the same specialty:
First, it is very important how the term “hospital” is defined. Many hospitals across the country share the same provider number but have multiple separate and distinct hospital campuses where they provide care. If the program is serving a different patient population at a different site, there should be no restriction to starting a new program (that meets the newness criteria) similar to if a nearby non-teaching hospital is interested in starting a new program.
Second, many hospitals across the country are creating new programs of the same specialty of an existing program with different “tracks”. These tracks help specialize training into various areas such as primary care, hospitalist, rural focus, high-risk OBGYN, and community health to name a few. For many of these tracks, the programs are large enough to meet the ACGME requirements for the minimum program sizes for new programs. In our opinion, if the program can meet the newness criteria outlined by CMS for the new program and show that there is a very clear and distinct reason for starting a new program, there should not be any limitation to creating multiple programs in the same hospital (hospital in this case being defined as one specific site)
We, too, are against hospitals starting new programs in the same specialty, serving the exact same patient population, and focusing on the same clinical curriculum. However, if CMS is wanting to put restrictions on the growth of new programs in this area, the patient population, training locations, and focus of the programs will need to be taken into account to not stifle the future growth of training programs in the country. I do not necessarily agree with this point. Existing programs can accept residents who have previously came from other training programs to finish their training including transfers and changing of their specialties. How I understand CMS’s current guidance is that they should be new i.e. directly from medical school and not anything else.
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