After a long wait, CMS has published the “meaningful use” rules on electronic health record technology. Click here to review the final rule (276 pages) or view a quick summary in a CMS fact sheet. CMS has relaxed the final rules in some respects from its rules proposed in January.
von Briesen Health Law Blog
July 30, 2010
July 8, 2010
CMS Releases its CY 2011 Proposed Rules for HOPDs and ASCs
CMS released its CY 2011 proposed rules for hospital outpatient departments and ambulatory surgery centers on July 2, 2010. The proposed rules update payment policies and rates for hospital outpatient departments and ambulatory surgery centers. Some of the proposed provisions implement portions of the health reform legislation signed into law in March. As described by CMS, notable provisions of the proposed rule include:
Hospital Outpatient Departments
- Waiver of the deductible and copayment for certain preventive services.
- Additional quality measures to report in CY 2011 (six additional measures, including a health information technology measure), CY 2012 (seven additional measures) and CY 2013 (six additional measures).
- Validation of quality reporting, including review of randomly selected cases from each hospital.
- Changes to the supervision requirements for certain non-surgical extended duration services to require direct supervision for the initiation period of such services, followed by general supervision.
- Payment for the acquisition and pharmacy overhead costs of separately payable drugs and biologicals at an amount equal to the average sales price plus six percent.
- Removal of CPT codes 21193, 21395 and 25909 from the inpatient-only list.
Ambulatory Surgical Centers
- Waiver of the deductible and coinsurance for certain preventive services.
- The addition of five surgical procedures to the list of Medicare-covered ASC procedures.
Other Proposed Rules
- Reduced availability of the physician self-referral exceptions for ownership or investment interests in a “whole hospital” or “rural provider” for new physician-owned hospitals and those looking to expand capacity.
- Changes relating to graduate medical education payment.
You can review a summary of most of these provisions on CMS’s website here. A display copy of the proposed rule is available here. CMS will accept comment until August 31, 2010.
CMS Releases its CY 2011 MPFS Proposed Rule
CMS recently released its CY 2011 Medicare Physician Fee Schedule Proposed Rule. Among updated payment policies and rates for services paid under the Medicare Physician Fee Schedule, the proposed rule includes provisions to implement portions of the health reform legislation signed into law in March. As described by CMS, the proposed rule includes provisions, among others, relating to the following:
- Elimination of the deductible and coinsurance that would otherwise apply for most preventive services.
- Coverage of annual wellness visits in which the beneficiary receives personalized prevention plan services.
- Quarterly incentive payments for primary care services furnished by primary care practitioners.
- Quarterly incentive payments for major surgical procedures provided by general surgeons in health professional shortage areas.
- Permission for physician assistants to order post-hospital extended care services.
- An increase in the Medicare payment for certified nurse-midwife services so that it equals 100% of the MPFS.
- Extension of Medicare reasonable cost payments for certain clinical diagnostic laboratory tests performed by hospitals with fewer than 50 beds that are located in certain rural areas as part of their outpatient services.
- An amendment to the in-office ancillary services exception for self-referrals.
- Adjustments to the DMEPOS competitive bidding program (to add 21 metropolitan statistical areas to round 2).
- Modification to the equipment utilization rate assumption for expensive diagnostic imaging equipment used in diagnostic computed tomography and magnetic resonance imaging services.
- Payment revisions for power-driven wheelchairs.
- Reduction of the maximum period for submission of Medicare fee-for-service claims to not more than 12 months.
You can review a summary of each of these provisions on CMS’s website here. A display copy of the proposed rule is available here. CMS will accept comments until August 24, 2010.
May 28, 2010
The FTC Once Again Delays Enforcement of the Red Flags Rule
The Federal Trade Commission announced on May 28, 2010 that it will further delay enforcement of the identity theft “Red Flags” Rule through December 31, 2010. The Rule requires creditors and financial institutions that have certain accounts to develop and implement written identity theft prevention programs. The delay gives Congress time to consider legislation that would affect the scope of entities covered by the Rule. The FTC will begin enforcing the Rule at an earlier date if Congress enacts legislation to limit the scope of the Rule and provides an effective date earlier than December 31, 2010.
You may access the FTC’s announcement here and a von Briesen & Roper Health Law Bulletin on the Rule here.
May 25, 2010
CMS Releases a Supplemental Proposed Rule to Implement Several PPACA Provisions
CMS released a supplemental proposed rule on May 21, 2010 to implement changes in payments for inpatient services in general acute care hospitals and long term care hospitals (“LTCHS”). The changes are required by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively, “PPACA”). The proposed rule supplements the 2011 IPPS Proposed Rule described in a blog on April 22. CMS did not have time to address provisions relating to PPACA in the earlier proposed rule. The provisions in the supplemental proposed rule generally take effect for discharges occuring on or after October 1, 2010. As described by CMS, the supplemental proposed rule includes provisions relating to:
- Protection for hospitals in frontier states;
- Additional payments for hospitals with low per enrollee Medicare spending;
- Temporary improvements to the low-volume hospital adjustment;
- Revisions of certain market basket updates;
- Wage index improvement related to geographic reclassification;
- National budget neutrality in the calculation of the rural floor for the hospital wage index;
- Extension of Medicare-dependent hospitals;
- Technical correction related to critical access hospital services;
- Extension of certain payment rules for long term care services and of a moratorium on the establishment of certain hospitals and facilities; and
- Extension of the rural community hospital demonstration program.
You can review a summary of each of these provisions on CMS’S website here. A display copy of the supplemental proposed rule is available here. CMS will accept comments until June 21, 2010.
May 18, 2010
The HOLC Has Published a Consolidated Version of PPACA and HCERA
The House Office of the Legislative Counsel has created a consolidated version of the Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education Reconciliation Act of 2010 (“HCERA”). PPACA and HCERA form the recent health care reform legislation and must be read side-by-side. Specifically, PPACA was signed by the President on March 23, 2010, but a week later, HCERA was signed by the President and amended PPACA. While the consolidated version is not an official legal document, it is a useful tool for reviewing the health reform legislation. You may access the consolidated version here at the National Conference of State Legislature’s website.
May 10, 2010
The OIG Publishes an Advisory Opinion on Free Pre-authorization Services
The OIG recently published an advisory opinion relating to a proposal for several diagnostic imaging service providers (a clinic and a medical center) to provide free pre-authorization services to physicians and patients. Many insurers require pre-authorization for imaging services. This is a measure intended to prevent over utilization. In the proposed arrangement, the imaging providers would operate a call center that patients and physicians could contact to obtain pre-authorization services. The center would in turn submit necessary information to the insurers.
Before ultimately approving the arrangement, the OIG acknowledged that free pre-authorization services could implicate the federal anti-kickback statute if the intent to induce referrals was present. The OIG noted that free pre-authorization services could constitute prohibited “remuneration” if the physician’s contract with the insurance company required the referring physician to obtain the pre-authorizations. The imaging provider’s provision of the free pre-authorization services would relieve the physician of the burden and expense of obtaining pre-authorizations directly. Additionally, the OIG noted that free pre-authorization services could constitute prohibited “remuneration” even if the insurance contract placed the burden on the imaging provider or did not allocate the responsibility at all. The OIG provided an example in which the physician’s staff is devoting considerable time to obtaining the pre-authorizations and might realize significant savings. Nevertheless, the OIG determined that it would not impose sanctions for the arrangement at issue based on the following factors:
1. Low risk of fraud and Abuse. The arrangement would not target particular referring physicians, but would be available to all patients and physicians regardless of the volume or value of referrals.
2. Additional Safeguards to Reduce Risk of Fraud and Abuse. The imaging providers would not make any payments to the physicians or otherwise have any ancillary agreements with the physicians. Further, the imaging providers would not make assurances to the physicians that the pre-authorization requests would be approved. The imaging providers would only collect and provide documentation of medical necessity as received from the patients or physicians. The arrangement would also comply with all state and federal privacy laws.
3. Transparency. The call center’s staff would identify themselves as representatives of the imaging providers and would disclose the nature of the pre-authorization program. The call center would also provide the referring physicians with a copy of information provided to insurers.
4. Legitimate Business Purpose. The imaging providers have a legitimate business purpose that is wholly distinct from gaining favor with referral sources—that is, it is the imaging providers who have a financial interest at stake and desire to ensure that pre-authorizations are pursued.
The OIG’s advisory opinion only protects the actual requestors of the opinion and cannot be relied on by other entities. That said, it provides helpful guidance because it suggests factors to consider when constructing similar arrangement to reduce anti-kickback risk. You may review the OIG’s Advisory Opinion 10-04 here.
April 28, 2010
Wisconsin’s Governor Signs a Bill to Impose an Assessment on Critical Access Hospitals.
Wisconsin Governor Jim Doyle signed a bill on April 19, 2010 to establish an assessment on the gross patient revenues of critical access hospitals (“CAHs”). A portion of the revenue collected under the assessment will be used to increase payments to CAHs under the Medical Assistance Programs, including Medicaid, largely by producing additional federal matching funds. Consequently, the assessment will help offset a 10% cut in Medicaid payments implemented earlier this year, with payment increases beginning July 1, 2010. The assessment will also help fund a rural physician residency assistance program and a loan assistance program for physicians who agree to practice in a rural area. The specific amount of the assessment (a percentage of the gross patient revenues) is not set forth in the bill. A similar assessment was implemented in Wisconsin last year for non-CAHs. You can review the act establishing the assessment here.
April 22, 2010
CMS Has Released its 2011 IPPS Proposed Rule
CMS has issued a display copy of its 2011 Inpatient Prospective Payment System Proposed Rule. CMS proposes to update payment rates to general acute care hospital by 2.4% to adjust for inflation, but apply a -2.9% Documentation and Coding Adjustment (DCA). The DCA would continue CMS’s efforts to adjust payments to account for changes in documentation and coding practices after the adoption of the MS-DRG system. Such changes in coding practices resulted in higher aggregate payments that did not reflect an actual increase in patient severity of illness. CMS is phasing in the DCA adjustments over time. Overall, CMS estimates that after these proposed changes to the payment rates and other factors, the Proposed Rule would cause a 0.1% drop in total payments made to general acute care hospitals for operating expenses. A few other highlights from the Proposed Rule include:
- Proposed additional quality measures for hospitals to report under the Reporting Hospital Quality Data for Annual Payment Update program.
- Proposed changes to Medicare’s hospital conditions of participation regarding the types of practitioners who may provide rehabilitation services and respiratory care services.
- Proposed changes concerning effective dates for provider agreements and supplier approvals.
- Proposed clarifications concerning whether certain taxes are considered allowable costs.
CMS also proposes to update long-term care hospital (LTCH) rates by 2.4% for inflation, but apply a -2.5% DCA. Overall, CMS expects that after these proposed changes and others, total payments to LTCHs to increase by 0.8%.
CMS notes that it did not have time to address provisions in the Patient Protection and Affordable Care Act enacted on March 23, 2010. CMS, however, will issue separate proposed rules relating to provisions of the Act. Comments to the Proposed Rule are due by June 18, 2010. You can review CMS’s display copy here and summaries from CMS here and here.
April 19, 2010
The 21% Cut in Medicare Physician Reimbursement Has Been Delayed Through May 31, 2010
On April 15, 2010, the President signed the Continuing Extension Act of 2010 (H.R. 4851). The Act, among other actions, delays the 21% cut in Medicare physician reimbursement through May 31, 2010. The cut was originally set to take effect on January 1, 2010, but Congress already delayed the cut several times this year. The latest delay expired April 1, 2010, but CMS instructed contractors to withhold processing claims for ten business days in April in anticipation that Congress would take further action to prevent the cut. The delay once again buys Congress time to fix the sustainable growth rate formula that is responsible for the reimbursement cut. You may access the Act here.