Medicare's impending fiscal cliff for physicians
If the federal government does go over the "fiscal cliff" in a little more than a week, don't expect those overseeing physician reimbursements to pad the fall.
The Centers for Medicare and Medicaid Services (CMS) on Dec. 19 announced in an email and conference call with physicians that Medicare claims filed after the first of the year will be processed as normal, which means likely including a planned 26.5 percent reduction in the Medicare physician services conversion factor.
Physicians are also facing an additional 2 percent cut in the Medicare physician payment rate because of the Budget Control Act's sequestration provision.
Under current law, clean electronic claims are not paid sooner than 14 calendar days (29 days for paper claims) after the date of receipt. In similar past situations, CMS has taken advantage of that provision to have its contractors hold claims for up to 10 business days before processing them, in order to give Congress more time to act and to avoid processing claims twice when the conversion factor is in flux.
“The negative update of 27 percent under current law for the 2013 Medicare Physician Fee Schedule is scheduled to take effect on January 1, 2013,” CMS wrote in the email. “Given the current progress with the legislation, CMS must take steps to implement the negative update.”
CMS did say that it would notify physicians on or before Jan. 11, 2013, about the status of Congressional action to avert the negative update and next steps. Claims with dates of service on or before Dec. 31, 2012, will be unaffected in any case.
Ongoing efforts to avoid the cliff and override the planned rate reduction have so far failed and won't resume until after Christmas at the earliest.
In the meantime, you are advised to start taking steps to mitigate the disruption and meet your own financial obligations in January, in case the cuts actually take effect. This includes re-assessing your Medicare participation options and the extent to which you can continue to afford to care for Medicare beneficiaries. If you decide to limit your involvement with the Medicare program, notify your Medicare patients promptly, so that they, too, can explore other options to seek health care and medical treatment. Finally, you are encouraged to contact your Congressional representatives about this matter, and the American Academy of Family Physicians has provided a convenient means to do so.
–Kent Moore, Senior Strategist for Physician Payment for the American Academy of Family Physicians
Rethinking your Medicare participation options?
With just a little more than three weeks left before the wheels could fall off Medicare payments, you may be rethinking your level of involvement with the program.
Congress may step in again this year to avoid the scheduled 26.5 percent cut tied to the Sustainable Growth Rate formula. But if not, here is a brief look at the options open to you and ways to reduce your Medicare exposure, even if you remain a participating physician.
You have three Medicare contractual options. You can sign a participating (PAR) agreement, accepting Medicare's allowed charge as payment in full; elect to be a non-PAR physician, which allows you to take Medicare patients on a case-by-case basis and bill patients for more than the Medicare allowance for unassigned claims; or opt out and become a private contracting physician who bills Medicare-eligible patients directly for your services.
You have until Dec. 31 to change your Medicare participation or non-participation status for 2013. Before making a change in status, you should first determine that you are not bound by any contractual arrangements with hospitals, health plans, or other entities that require you to be a PAR physician.
Even if you choose to continue being a PAR physician, there are ways that you can limit your Medicare exposure. For instance, you can refuse to treat Medicare patients except on an emergency basis. Medicare is a voluntary program, and nothing requires you to treat Medicare patients in your practice if you do not wish to do so. You can also limit your practice to existing Medicare patients only and accept no new Medicare patients. Lastly, you can reduce the number of Medicare patients in your practice.
–Kent Moore, Senior Strategist for Physician Payment for the American Academy of Family Physicians
AAFP responds to proposed rule on 2013 Medicare physician fee schedule
On Aug. 22, 2012, the American Academy of Family Physicians (AAFP) responded to the proposed rule on the 2013 Medicare physician fee schedule. As promised, I am sharing that response with you. Here are some of the highlights; the AAFP:
- Supports the Centers for Medicare & Medicaid Services' (CMS) proposal to create a code for post-discharge transitional care management as a short-term payment strategy; however, the AAFP urges CMS to limit the use of the code to the patient's primary care physician,
- Supports CMS’s intent to investigate potentially misvalued codes, especially in regard to the number and level of post-operative evaluation and management services assumed to be included in global surgical services,
- Urges CMS to not implement the Institute of Medicine recommendations pertaining to geographic practice cost indices, and instead asks that CMS refocus it's efforts on ensuring a properly distributed healthcare workforce that is meeting the demands of a growing beneficiary population,
- Agrees with the proposal to add coverage of ‘‘additional preventive services’’ and supports the proposal to add them to the list of Medicare telehealth services for 2013; however, the AAFP questions several of the proposed payment amounts for these services,
- Supports the CMS proposal to create new criteria for being a successful electronic prescriber for groups of two to 24 eligible professionals,
- Strongly supports CMS’s proposal to streamline the implementation of the Physician Quality Reporting System incentive and reporting programs within the context of the Medicare Shared Saving Program,
- Mostly supports the CMS proposal to begin applying the value-based payment modifier only to groups of 25 or more eligible providers in 2015, so the agency can begin learning how to properly fulfill the statutory requirements; however, the AAFP remains concerned with CMS’s inability to specify the exact amount of the upward payment adjustment because of budget neutrality considerations,
- Fully supports the agency’s proposal to begin Medicare Part B coverage of the Hepatitis B vaccine for high-risk groups, specifically persons with diabetes.
The full text of the AAFP response is available online.
The comment period for the proposed rule ends on Sep. 4, 2012. After that deadline, we will have to wait for the final rule to see what CMS decides to do on all of these issues. CMS is expected to release the final rule on the 2013 Medicare physician fee schedule on or around Nov. 1, 2012.
Medicare physician fee schedule redux
In a previous blog, I posted about the proposed rule on the 2013 Medicare physician fee schedule. I subsequently received questions regarding whether or not the American Academy of Family Physicians (AAFP) had any involvement in the creation of the proposed 2013 fee schedule and what impact the fee schedule might have on family physicians. To the best of my knowledge, AAFP was not directly involved in the creation of the proposed 2013 Medicare physician fee schedule. The Centers for Medicare & Medicaid Services (CMS) essentially reserves sole responsibility for its creation.
AAFP advocates with CMS throughout the year on elements of the physician fee schedule, and the results of that advocacy can be seen in CMS's estimate of the proposed rule's impact on family medicine. Specifically, CMS estimates that family physicians will experience approximately a 7 percent increase in Medicare allowed charges in 2013, based on what is in the proposed rule (see page 12 of the AAFP's summary of the proposed rule). That percentage is higher than any other specialty listed. So, although AAFP can't take responsibility for creating the proposed rule, it can certainly take some credit for the estimated positive impact on family physicians.
AAFP is preparing a response to
the proposed rule in advance of the Sep. 4, 2012, deadline for comments, and I look forward to sharing that with you in a future post. In the meantime, thanks for the questions, and please let me know if you have more.
The Office of Inspector General looks at evaluation and management services
The services that family physicians report most often are evaluation and management (E/M) services. The codes for these services represent the "bread and butter" of family medicine. Thus, it's a big deal and understandably unnerving when the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services decides to scrutinize them.
However, that's just what the OIG did, and the resulting report, Coding Trends of Medicare Evaluation and Management Services, found that, from 2001 to 2010, physicians increased their billing of higher level E/M codes in all types of E/M services. This finding, of course, comes as no surprise to those in the industry, and there are many plausible and justifiable explanations for it, including the following:
- Extensive coding education provided to physicians during that time, leading to arguably better coding of what physicians have always been doing,
- Implementation of electronic medical records, which facilitate documentation,
- Greater incidence of chronic diseases.
It's notable that the OIG did not evaluate the appropriateness of Medicare E/M payments or the documentation behind the claims in question. The OIG indicated that it would save these questions for subsequent evaluations. The OIG did recommend that the Centers for Medicare and Medicaid Services (CMS) encourage its contractors to review physicians’ billing for E/M services. CMS partially concurred with the OIG recommendation. However, they noted that the average E/M error was approximately $43, while it cost between $30 and $55 to review an E/M note. Thus, CMS pointed out that there were other Part B areas that might have a higher priority for it and its contractors.
So, what's a family physician to do? First, don't panic. As the CMS response implies, they have bigger fish to fry when it comes to claims reviews. Second, do make sure that your documentation supports the level of E/M services that you are billing. With the OIG paying attention, CMS may follow suit, and you need to be prepared, if they do.
ICD-10 delay may be in the works
With 5010 implementation effective Jan. 1, 2012, the next major hurdle facing physicians and the rest of the health care system is implementation of International Classification of Diseases, 10th Edition (ICD-10). Currently, that is slated to happen on Oct. 1, 2013.
Or is it? This week, officials at the Centers for Medicare and Medicaid Services (CMS) and Health and Human Services (HHS) announced that a delay in implementation may be forthcoming. First, on Tuesday, acting CMS Administrator Marilyn Tavenner told reporters that the CMS will "re-examine the timeframe" for ICD-10 implementation through a rulemaking process. She did not say when that rulemaking process will begin, and she did not actually say that implementation will be delayed.
Then, on Wednesday, HHS Secretary Kathleen G. Sebelius announced that HHS will initiate a process to postpone the date by which certain health care entities have to comply with ICD-10. In a press release, the agency stated, "HHS will announce a new compliance date moving forward."
So, it appears that a delay in implementation is in the works. However, how much of a delay and to whom it will apply remain unknown. Pending answers to those questions in the form of a posting in the Federal Register, physician practices are probably best advised to continue preparing for implementation on Oct. 1, 2013. Like the Boy Scouts, it is better to be prepared, lest the anticipated delay does not come to fruition.
Prior authorization: It's not just for private payers anymore
Prior authorization has been a longstanding tool used primarily by private payers for a variety of purposes, including controlling costs. To date, public payers, such as Medicare, have used it less frequently. Based on a recent announcement from the Center for Medicare & Medicaid Services (CMS), that may be changing. CMS is getting ready to launch two new demonstration programs that may impact physicians and make them further justify claims submitted for payment.
First, CMS will conduct a demonstration program, called Fee-for-Service Recovery Audit Prepayment Demonstration, to allow Medicare Recovery Audit Contractors (RACs) to review claims on a prepayment basis in certain states to ensure that the provider complied with all Medicare payment rules. The RACs will conduct prepayment reviews on certain types of claims that historically result in high rates of improper payments (e.g., inpatient hospital claims for short stays). These reviews will focus on seven states with high populations of fraud- and error-prone providers (FL, CA, MI, TX, NY, LA, IL) and four states with high volumes of claims for short inpatient hospital stays (PA, OH, NC, MO) for a total of 11 states.
The agency also will conduct a demonstration program to establish a prior authorization for power mobility device claims (electric wheelchairs). This demonstration project is for all people with Medicare who reside in seven states with high populations of fraud- and error-prone providers (CA, IL, MI, NY, NC, FL, TX). Under the prior authorization program, documentation to support a claim must be submitted before the power mobility device is delivered.
Both demonstrations are expected to begin on or after June 1, 2012. A notice about the demonstrations appeared in the Federal Register on Feb. 7, 2012.
Medicare RVU proposals: Two out of three ain't bad
On June 6, the Centers for Medicare & Medicaid Services (CMS) published a proposed notice in the Federal Register, in which it laid out its initial decisions related to the Five-Year Review of work relative value units (RVUs) under the Medicare physician fee schedule. Family physicians looking for good news in the proposed notice should find some, except when it comes the valuation of observation care in a hospital.
First, the good news. CMS stated that it intends to increase the work RVUs for nursing facility discharge services, represented by codes 99315 and 99316. The proposed new values will put these codes on par with the corresponding codes for hospital discharge day services (99238 and 99239).
CMS also proposed to publish increased values for preventive medicine services codes (99381-99397). Although Medicare does not cover these services, many other payers do. The proposed RVUs represent an increase over the current RVUs in each case, reflecting a more appropriate recognition of the value of preventive medicine services. Publication of the new values will provide a basis for other payers to use those values in setting their own fee schedules.
Now for the bad news. In the proposed notice, CMS indicated its intent to maintain the current work RVUs for initial observation care (codes 99218-99220) and to decrease the work RVUs for codes 99234-99236, which include observation admission and discharge on the same date.
CMS’s rationale, as stated in the proposed notice is that “we [CMS] do not believe the work RVUs of the initial observation care codes (99218, 99219, and 99220) should be equivalent (or close) to the initial hospital care codes (99221, 99222, and 99223).” Instead, CMS believes that “the acuity level of the typical patient receiving outpatient observation services would generally be lower than that of the inpatient level" and that "if the patient’s acuity level is determined to be at the level of the inpatient, the patient should be admitted to the hospital as an inpatient.” The CMS recommended values for 99234-99236 are subsequently affected by CMS’s recommendations for 99218-99220.
CMS’s belief that the acuity level of the typical patient receiving outpatient observation services would generally be lower than that of the inpatient level is an assumption, not a documented statement of fact. In reality, hospital inpatient and outpatient status is often as much a function of payment policy as it is patient acuity. That is, hospitals not infrequently declare a patient’s status as “inpatient” or “outpatient” based on what they calculate will be most financially advantageous (e.g., based on a comparison of what Medicare will pay under the outpatient versus inpatient prospective payment systems), which does not necessarily equate to patient acuity.
CMS will not finalize its proposals until this fall, when it publishes the final rule on the 2012 Medicare physician fee schedule, so CMS may yet change its mind with respect to any or all of the above. Whatever CMS finally decides will be reflected in Medicare's payment for the services in 2012.
The old "new patient" conundrum
In its most recent Medicare Quarterly Provider Compliance Newsletter (PDF download) the Centers for Medicare and Medicaid Services (CMS) highlighted an issue that apparently continues to be a problem for some physicians. Namely, when is a patient "new" for purposes of billing evaluation and management (E/M) services?
CMS defines a "new" patient in Chapter 12 Section 30.6.7 (PDF download) of the Medicare Claims Processing Manual as "a patient who has not received any professional services, i.e., E/M service or other face-to-face service (e.g., surgical procedure) from the physician or physician group practice (same physician specialty) within the previous 3 years." This is essentially the same definition as in Current Procedural Terminology (CPT), which states, "A new patient is one who has not received any professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years." CPT defines "professional services" as "those face-to-face services rendered by a physician and reported by a specific CPT code(s)."
A simple way to determine if a patient is new is to ask yourself this question: "Have I (or another physician of my specialty within our group practice) provided a face-to-face service to this patient within the past 3 years?" If the answer is no, then the patient is new to you for purposes of coding and billing the E/M service that you are providing to him or her. If the answer is yes, then you must consider the patient established. Determination of whether the patient is new or established should not be made solely on whether the chart presented was new. Coding or charge entry staff should search for past billing records using the patient's social security number and date of birth, and if a billing record is found, contact the appropriate staff to compare the charts and determine if the patient is established.
While some of your patients may be new, this issue is not, and apparently, it continues to sufficiently confuse some physicians that CMS felt it necessary to remind folks about the definitions involved. CMS issues the Medicare Quarterly Provider Compliance Newsletter to help physicians and their billing staffs understand the claims submission problems found by Medicare contractors and how to avoid certain billing errors and other improper activities when dealing with the Medicare. In light of that, you may want to check your own understanding of the new patient issue and related coding and billing practices, lest this become a compliance issue in your practice.
Facing the new face-to-face requirement for Medicare home health services
Did you know that Medicare will soon begin enforcing a requirement that a physician who certifies a patient as eligible for Medicare home health services must see the patient either within 90 days prior or 30 days after the start of home health care? If not, read on. If so, you may still want to read on for more information.
As an outgrowth of section 6407 of the Patient Protection and Affordable Care Act, the Centers for Medicare and Medicaid Services (CMS) is requiring that a physician who certifies a patient as eligible for Medicare home health services must see the patient. The law also allows the requirement to be satisfied if a non-physician practitioner (NPP) sees the patient, when the NPP is working for or in collaboration with the physician. The provision was effective as of Jan. 1, 2011, but CMS agreed in December to delay enforcement until April 1, 2011.
The provision requires that, as part of the certification form itself, or as an addendum to it, the physician must document that the physician or NPP saw the patient, and document how the patient’s clinical condition supports a homebound status and need for skilled services. As noted, the face-to-face encounter must occur within the 90 days prior to the start of home health care or the 30 days after the start of care. When a physician orders home health care for the patient based on a new condition that was not evident during a recent visit, the certifying physician or NPP must see the patient within 30 days after admission.
The new requirement includes several features intended to accommodate physician practices. In addition to allowing NPPs to conduct the face-to-face encounter, Medicare will allow a physician who attends to the patient but does not follow the patient in the community, such as a hospitalist, to certify the need for home health care based on their face-to-face contact in the hospital and to establish and sign the plan of care. Medicare will also allow such physicians to certify the need for home health care based on their face-to-face contact with the patient, initiate the orders for home health services, and “hand off” the patient to his or her community-based physician to review and sign off on the plan of care. Finally, in rural areas, the law allows the face-to-face encounter to occur via telehealth, in an approved originating site.
The American Academy of Family Physicians and others are advocating with CMS to extend the enforcement date to no earlier than July 1, 2011, based on confusion with and resistance to the paperwork obligations for physicians, still evolving policy interpretations and guidance on the part of CMS, and the simple need for more time to ensure that physicians and NPPs understand the rule. A decision by CMS on this request is still pending, so as of now, April 1, 2011, remains the key date.
CMS has made additional guidance available via an article (PDF download) on the Medicare Learning Network web site. Additionally, CMS has posted frequently asked questions and answers regarding this requirement in the Spotlights section of the Home Health Agency Center section of the CMS web site.
From CMS, the better late than never department
Like the buddy who swears he will pay you the $20 he borrowed from you months ago, the Centers for Medicare and Medicaid Services (CMS) announced recently that it will finally reprocess a large number (i.e., hundreds of millions) of Medicare fee-for-service claims to account for retroactive Medicare payment increases implemented in 2010. The AAFP and others had urged CMS as recently as December to make good on its debt.
On Mar. 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act. Various provisions of the new law were effective Apr. 1, 2010, or earlier and, therefore, were implemented some time after their effective date. In addition, corrections to the 2010 Medicare Physician Fee Schedule (MPFS) were implemented at the same time as the Affordable Care Act revisions to the MPFS, with an effective date retroactive to Jan. 1, 2010.
Due to the retroactive effective dates of these provisions and the MPFS corrections, a large volume of Medicare fee-for-service claims need to be reprocessed. This week, CMS staff stated on their monthly Open Door Forum for physicians, nurses, and allied health professionals that Medicare contractors will start reprocessing those claims within two weeks, while taking steps to ensure that new claims are accurately processed going forward. CMS also issued a public notice to this effect.
In most cases, no requests for adjustments are necessary, as the Medicare contractor will automatically reprocess the claims. Only claims that include services with submitted charges that are lower than the revised 2010 fee schedule amount cannot be automatically reprocessed. For those claims, you will need to request a reopening or adjustment. CMS has stated that in this situation, it will waive the normal one-year time limitation for the request for reopening claims, as this meets the “good cause” exception.
CMS has requested that claims not be resubmitted, because they will be denied as duplicate claims. CMS also reminded physicians of the Office of Inspector General's (OIG) policy related to waiving beneficiary cost-sharing amounts attributable to retroactive increases in payment rates based on the operation of new federal statutes or regulations. Specifically, physicians and other providers will not be subject to OIG administrative sanctions if they waive beneficiary liability in this situation, if they follow the criteria in the OIG policy statement.
It is unlikely that you will get all of the money that Medicare owes you all at once. Adjustments owed to you will be added to future remittance advices as the 2010 claims are reprocessed. If you have any questions in this regard, CMS advises you contact your local Medicare contractor.
In the meantime, it might be time to see that buddy about the $20 he owes you.
The 2011 Medicare physician fee schedule is here
An initial review shows positive news with respect to the primary care bonus that is effective in 2011. CMS apparently responded positively to comments from the American Academy of Family Physicians and others to change the primary care incentive payment implementation rules to make it more inclusive. As a result, CMS estimates that, under the new, less restrictive rules, about 80 percent of family physicians will qualify for the bonus.
On the downside, the final rule with comment period announces a reduction to payment rates for physicians' services in 2011 under the sustainable growth rate (
The final rule will appear in the Federal Register on Nov. 29, 2010, and CMS will accept comments on certain aspects of it until Jan. 2, 2011.
Accountable care organizations and the future of physician payment
As promised in the meeting agenda, an FTC panel debated circumstances under which independent health care providers participating in an ACO could engage in price point negotiations with private payers without running afoul of federal antitrust laws that prohibit price-fixing. Also, panel participants explored different ways in which the HHS secretary could exercise waiver authority or create new exceptions and safe harbors related to the physician self-referral law, the federal anti-kickback statute, and the civil monetary penalty law, for the purpose of encouraging the creation and development of ACOs. The AAFP submitted comments that were included in the meeting record, and the Academy will continue to track the progress of the issues discussed.
New time limit for filing Medicare claims
Historically, as authorized by statute and the Centers for Medicare and Medicaid Services (
In the past,
The first new exception would apply when
- At the time the service was furnished the beneficiary was not entitled to Medicare; and
- The beneficiary subsequently received notification of Medicare entitlement effective retroactively to or before the date of the furnished service.
The second new exception would apply when
- At the time the service was furnished the beneficiary was not entitled to Medicare;
- The beneficiary subsequently received notification of Medicare entitlement effective retroactively to or before the date of the furnished service; and
- A state Medicaid agency recovered the Medicaid payment for the furnished service from the provider or supplier 11 months or more after the date of service.
In the case of the first new exception, the time to file a claim would be extended through the last day of the 6th calendar month following the month in which the beneficiary received notification of Medicare entitlement effective retroactively to or before the date of the furnished service. In the case of the second new exception, the time to file a claim would be extended through the last day of the 6th calendar month following the month in which the state Medicaid agency recovered the Medicaid payment for the furnished service from the provider or supplier.
For the existing exception, the extension of time is the last day of the 6th calendar month following the month in which the error or misrepresentation is corrected. However, no extension of time will be granted when the request for this particular exception is made to
CMS's proposals are generally consistent with PPACA, and the proposed additional exceptions are welcome. However, one has to question why
Also, as regards the exception due to error or misrepresentation on the part of Medicare, one would think the extended time limit should be based on the month in which the error or misrepresentation is corrected and the physician has been notified of that fact. As proposed, the extended time limit begins when the error or misrepresentation is corrected, without apparent regard to whether the physician is aware of that fact. Recognizing that there may be some time between when the error or misrepresentation is corrected and when the physician is notified of this fact, it is at the latter point (i.e., the point at which the physician becomes aware of the correction) that the extended time limit should begin from a physician perspective.
Finally, there is a question that CMS does not address with respect to the exception based on retroactive beneficiary enrollment. Namely, the extended time limit commences with notification of the Medicare beneficiary regarding his or her retroactive entitlement effective date. However, if the beneficiary does not, in turn, notify the physician of the retroactive entitlement until after the extended claims filing time limit expires, does the beneficiary remain responsible for payment of the service? Hopefully, CMS will address this question in the final rule.
In the meantime, if you have yet to file a claim for dates of service before 2010, you have until the end of the year to do so, and the 12-month clock is ticking to file claims for services provided this year.
2010 Medicare physician fee schedule: Here we go again!
I feel like a broken record.
On April 1 (see "2010 Medicare physician fee schedule: Stop me if you've heard this one before"), I shared with you how the Senate had again failed to pass legislation avoiding a 21 percent cut in the Medicare payment rate to physicians. As a result, the cut was technically effective with dates of service on or after April 1, 2010, but the Centers for Medicare & Medicaid Services (CMS) again instructed its contractors to hold claims for services paid under the fee schedule for the first 10 business days of April to give Congress time to rescind the cut.
It actually took 15 days. On April 15, Congress passed and the President signed legislation that extended the 2009 Medicare physicians payment rate until May 31, 2010.
Now May 31 has come and gone, and I know that you will be shocked to learn that Congress again failed to act. Actually, to be fair to the House of Representatives, it was the Senate that again failed to act. The House passed a bill on May 28 that would have increased the payment rate by 2.2 percent for the rest of 2010 plus an additional 1 percent in 2011. The Senate, however, determined that there was insufficient time to consider the bill before their Memorial Day recess and left Washington without action on the bill.
Consequently, the 21 percent cut is technically in effect again for dates of service on or after June 1. And once again, CMS has instructed its Medicare contractors to hold claims for services paid under the fee schedule for the first 10 business days of the month to give Congress time to rescind the cut.
Congress returns from its recess on June 7. What will happen then is anyone's guess. In the meantime, it's the same tune and a different verse, and it's beginning to sound like the blues to most physicians.