We have been receiving a lot of questions about 2011 Medicare reimbursement rates, in particular practices want to know why, after Congress passed legislation to stop the scheduled 2011 sustainable growth rate (SGR) cuts and maintain physician payment rates at the 2010 level, their 2011 Medicare payments differ from the 2010 payments.
In this article, we will first review the congressional action taken to stop the SGR cuts from occurring in 2011 and then we will examine other factors influencing the Medicare Physician Fee Schedule (MPFS), which together determine the actual physician payment rate in 2011.
The Medicare SGR method of controlling physician costs, established by the Balanced Budget Act of 1997, has resulted in scheduled physician payment cuts since 2002. Congress has halted the cuts each year since 2003 but the SGR formula is a cumulative, prospective formula so each time the cuts are temporarily stopped it increases the scheduled cut for the following year. However, until a permanent fix for the SGR is established congressional action to postpone physician fee reductions are necessary.
The President signed the Medicare & Medicaid Extenders Act of 2010 (MMEA) into law on Dec. 15th. Section 101 of the MMEA averts the negative 23% SGR update that would otherwise have taken effect on January 1, 2011, instead providing a 0% update to the MPFS for claims with dates of service 01/01/2011- 12/ 31/2011. The MMEA is not a permanent solution but rather another temporary fix to the SGR formula that gives Congress until the end of this year to come up with a permanent solution.
The MMEA also extends the existing 1.0 floor on the physician work GPCI (geographic practice cost indices) for services furnished through Dec. 31, 2011. The work floor ensures that practices in geographic areas with relatively low work costs are not paid less than average for the work relative value unit (RVU) component.
Major factors influencing the 2011 Medicare Physician Fee Schedule:
Sustainable Growth Rate & Conversion Factor Update
Still, the SGR formula and resulting conversion factor update is just the starting point in determining physician payments under the Medicare physician fee schedule and as we will discuss later in this article the 2011 conversion factor is subject to the economic impact of the other physician fee schedule changes.
Transition to AMA Physician Practice Information Survey Data
However, section 303 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) requires CMS to use the medical oncology supplemental survey data submitted in 2003 for oncology drug administration services. Therefore, the practice expense (PE)/hourly rate (HR) for medical oncology, hematology, and hematology/oncology reflects the continued use of these supplemental survey data.
Rebasing of the Medicare Economic Index
For 2011, CMS rebased and revised the MEI using the 2006 physician cost expense data, and as a result, adjusted the proportion of the RVUs assigned to physician work, practice expenses and professional liability insurance.
Adjusted expenditure weights after MEI rebasing:
In the 2011 Final Rule, CMS finalizes their proposal to make the necessary MEI rebasing adjustments without making an adjustment directly to the work RVUs by increasing the PE RVUs by an adjustment factor of 1.181 and the malpractice RVUs by an adjustment factor of 1.358 and to adjust the conversion factor to maintain budget neutrality.
As a result of the MEI rebasing in 2011, specialties that have a high proportion of total RVUs attributable to work are estimated to experience a decrease in aggregate payments, while specialties that have a high proportion attributable to PE are estimated to experience an increase in aggregate payments.
In fact, the payment rate for the majority of the drug administration codes, which have a high proportion of total RVUs attributable to PE, did increase in 2011 due to this rescaling of the MEI.
The Budget Neutrality Factor
In 2011, the budget neutrality adjustment (BNA) is applied to the CF twice. First, because the 2011 RVU changes (e.g. the misvalued code revisions) would have resulted in a decrease in Medicare physician expenditures of more than $20 million, the CF was increased by 1.0043 to offset the estimated decrease and maintain budget neutrality. Second, the CF was decreased by 0.9175 in order to offset the increase in Medicare physician payments due to the CY 2011 rescaling of the RVUs to match MEI weights.
Figure 2, illustrates the calculation of the final 2011 CF beginning with the MMEA mandated 0% update, the application of the +0.4% and -8.3% budget neutrality adjustments to arrive at the final 2011 CF of $33.9764.
Figure 2 Source: CMS Transmittal 833
The 2011 CF of $33.9764 represents a drop of $2.8965 per RVU from the 2010 CF of $36.8729. Nevertheless, a decrease in the CF does not necessarily mean a decrease in payment. Indeed, the 2011 changes in the RVUs resulted in an increase in the payment for most drug administration codes despite the decrease in the CF. Figure 3 below illustrates the effect of the CF and RVU changes for CPT codes 96413 and 96372.
Figure 3 *payment rates reflect the Medicare National Payment
Section 6507 of the Patient Protection and Affordable Care Act (now referred to as the ACA), mandates that National Correct Coding Initiative (NCCI) methodologies be adopted by Medicaid effective for dates of service on or after October 01, 2010. An NCCI methodology has four components:
Prior to this ACA requirement, the NCCI edits, which have been mandatory for Medicare since 1996, were voluntary for State Medicaid programs and not widely used by them.
Background on the NCCI Program
Implemented in January 1996, the NCCI coding policies are based on coding conventions defined in the American Medical Association’s (AMA) Current Procedural Terminology Manual (CPT®) and Medicare policies, edits and coding guidelines developed by national societies, standard medical practice, and/or current coding practice.
In October 2004, the Office of Inspector General (OIG) issued the report Applying the National Correct Coding Initiative to Medicaid Services which found that in 2001 State Medicaid agencies paid $54 million for services that would have been denied if the NCCI edits had been used. In their report, the OIG recommended that CMS encourage States to explore the use of the Medicare NCCI edits in their Medicaid programs.
Implementing NCCI in the Medicaid Program
For this reason, CMS is allowing states until March 31, 2011 to consider edits on an individual basis and identify edits for deactivation. CMS also allows states to apply additional edits, to service types not currently implemented in the Medicare context, which would promote correct coding and reduce the error rate for claims payments.
CMS maintains a Medicaid NCCI webpage that contains an overview of the NCCI edits, the NCCI and MUE edit files, the Medicaid NCCI Policy Manual as well as information on the Medicaid NCCI appeals process.
The current interim Medicaid NCCI Policy Manual is a revision of the Medicare NCCI Manual and is subject to further Medicaid review and revision. Medicaid intends to incorporate appeals of NCCI procedure-to-procedure edit denials and MUE denials into its own appeals process. In the interim, the Medicare appeals process for these edits will serve as the basis for the Medicaid appeals process.
Medicaid claims that have coding that is not compatible with the CMS established parameters will be reported with the following Explanation of Benefit (EOB) codes on the Provider Remittance Advice:
5924 – Invalid NCCI Billing Combination
3396 – Units of Service Exceed Medically Unlikely Edit
As first reported in the January 30, Oplinc Fast Facts, practices nationwide are experiencing Medicare denials on several drugs based on the CMS Medically Unlikely Edits (MUEs). The MUEs are edits developed by CMS to reduce the paid claims error rate for Part B claims. An MUE for a HCPCS/CPT code is the maximum units of service that a provider would report under most circumstances for a single beneficiary on a single date of service.
The MUE edit is an automated prepayment edit that prevents inappropriate payments. Those claim lines that report units of service greater than the MUE value for the HCPCS/CPT code on the claim line are denied. A claim line denial due to an MUE may be appealed.
Not every HCPCS/CPT code has an MUE and not all MUEs are listed in the MUE file. According to CMS, due to fraud and abuse concerns, some MUEs are not published. In fact, the current MUE file does not include any HCPCS J-codes. When a practice receives a denial base on an unpublished MUE it can be challenging to identify the MUE value allowed, as Medicare contractors are instructed by CMS not to disclose that proprietary information.
Practices are currently reporting drug denials based on the MUE edits with Medicare contractors reporting that the units billed exceed the maximum number of units allowed according to the CMS MUEs that are effective January 1, 2011.
Oncology practices have reporting the following drugs denying due to the MUE edits:
The MUEs are supposed to be set at a level high enough to allow for medically likely daily frequencies of services provided in most settings. However, claims filed for fulvestrant and fluorouracil were denying even though the dosage billed was within the recommended dose for the drug.
Due to the quick communication from practices to their various state societies and in turn, their communications to ASCO, two of the identified drug issues have been successfully contested. Correct Coding Solutions, LLC (CCS), the Medicare Contractor for the NCCI and MUE edits has confirmed that the MUEs for both fulvestrant (J9395) and fluorouracil (J9190) will be adjusted in the next MUE quarterly update effective April 1, 2011. At that time, the increased MUE value for both fulvestrant and fluorouracil will be retroactive to 1/1/2011.
In the meantime:
Fluorouracil claims for dates of service from 1/1/2011 – 3/31/2011:
Individual claim payment decisions can be appealed through your Medicare Part B contractor or MAC.
If you are experiencing MUE denials on drugs other than the three listed above, notify your state oncology society and/or ASCO. Although the MUE edits are developed by CCS, and therefore any adjustments to them must be made by CCS, it may be helpful to engage your Medicare contractor and make them aware of this issue.
Most importantly, be sure your billing department is aware of this issue and that these drug claims are not written off as uncollectible. The MUE files are updated quarterly and practices should remain alert for any future MUE denials on drugs.
2011 CODING CHANGES
Practices should carefully review the new HCPCS and CPT codes each year and promptly update their practice management systems and charge sheets.
As a reminder, there are no grace periods for new, revised and deleted HCPCS and CPT codes. New and revised codes are effective for services performed on or after January 1, 2011 and deleted codes are effective December 31, 2010.
New, Revised & Deleted HCPCS
As seen in Figure 5, the majority of deleted codes represented multiple HCPCS codes for the same drug in different billing units. In each of these cases, the remaining 2011 HCPCS for the drug is the code representing the smallest billing unit. Therefore, care must be taken to bill the appropriate number of units and accurately report the correct amount of drug used. When changes to the HCPCS/CPT codes, (e.g. description and/or billing units) are made each staff member responsible for identifying codes to be billed should be made aware of the changes.
The elimination of the HCPCS for multiple sizes of a drug does not relieve the responsibility for reporting the appropriate national drug code (NDC) numbers. If you use multiple vial sizes of a drug, the specific NDC numbers for each vial used must be reported to those payers requiring NDC information.
Finally, a new code that more accurately describes the procedure of intraperitoneal chemotherapy has been developed and is effective for dates of service on or after January 1, 2011. The description of the new CPT code 96446 does not include the requirement of peritoneocentesis, instead the description simply reads, 96446 Chemotherapy administration into the peritoneal cavity via indwelling port or catheter.
As shown in Figure 6, the Medicare allowable for the new CPT code 96446 reflects the elimination of the work/expense involved in peritoneocentesis with a lower Medicare allowable than the deleted CPT code 96445.
UPDATED POVERTY INCOME GUIDELINES PUBLISHED
On January 20, 2011, the Health and Human Services Department (HHS) published the 2011 HHS Poverty Guidelines. The HHS poverty guidelines are updated at least annually, and are used as an eligibility criterion by a number of federal programs. In addition, many non-federal low-income assistance programs use these guidelines, or percentage multiples of the guidelines, in determining eligibility.
2011 Federal Poverty Income Guidelines
Source: Federal Register Federal Register vol. 76, no. 13, January 20, 2011
Financial Guidelines for Patient Assistance in the Medical Office
The OIG states that offering a discount to an uninsured patient will not implicate the federal anti-kickback statute, so long as the discount is not linked in any way to referrals of federal health care program business.
On the other hand, providers who routinely waive or discount copayments or deductibles for Medicare or other federal health program beneficiaries may run afoul of both the Federal False Claims Act and the Federal anti-kickback law.
The routine waiver of copayments or deductibles may provide a financial incentive for federal program patients to receive services at the waiving practice. Therefore, routine waivers can be an inducement. Inducements violate the anti-kickback law and subject the provider to civil and criminal fines and exclusion from the federal health care programs. Providers may however, discount or waive copayments or deductibles for these patients when financial hardship is demonstrated.
In a 2004 bulletin, the OIG clarified their view on discounts offered to uninsured or underinsured patients stating, “The fraud and abuse laws clearly permit the waiver of all or a portion of a Medicare cost-sharing amount for a financially needy beneficiary.” The OIG further states that the “financial need” criterion is not limited to indigence but can include any reasonable measures of financial hardship. The OIG explains in the document that under the fraud and abuse laws, Medicare cost-sharing amounts may be waived as long as all of the following conditions are met:
While stating their belief that a good faith determination of financial need may vary depending on the individual patient’s circumstances, the OIG identified the following factors that might be taken into account when making such a determination of financial need:
On June 24, 2004, Lewis Morris, Chief Counsel to the Inspector General, said the law clearly permits health care providers to waive Medicare and Medicaid cost-sharing amounts for financially needy beneficiaries and the OIG has a long-standing and well-publicized position supporting these financial hardship waivers. In his testimony, Morris makes clear that the OIG’s guidance to hospitals on charity care applies equally to other health care providers.
If your practice offers financial assistance to patients, it is suggested that the discount of charges be based on written practice policy. While the criteria for determining the patient’s eligibility for a discount is left to the practice the Office of Inspector General (OIG) states that the criteria must be applied uniformly to both Medicare and non-Medicare patients.
Medical practices that provide care to uninsured or underinsured patients often base financial assistance eligibility on the patient’s assets and the Federal Poverty Guidelines. In practices with formal charity care policies, patients whose assets are insufficient to pay the amount due are generally qualified for financial assistance on a sliding scale based on a comparison of their income and the Federal Poverty Guidelines.
Carefully review your private payer contracts prior to implementing any discount or patient assistance programs for patients covered under managed care contracts. Look for stipulations requiring specific financial hardship assessments be made prior to extending any discounts and any provisions requiring the collection of copayments and deductibles.
Finally, have your healthcare attorney review your written Patient Assistance Policy for adherence to all applicable federal and state laws and regulations.
IMPLEMENTATION OF NEW MEDICAID RAC PROGRAM DELAYED
Among the many provisions in the ACA is the requirement for the expansion of the Recovery Audit Contractor (RAC) Program to state Medicaid programs. Section 6411 of the ACA, requires States to establish programs to contract with RACs to audit payments to Medicaid providers by December 31, 2010.
CMS published the proposed rule, Medicaid Program: Recovery Audit Contractors, with comment period, in the November 10, 2010 Federal Register. In response to the proposed rule, the AMA sent a letter detailing concerns with the proposed Medicaid RAC rule and urging CMS to issue Medicaid RAC program rules "that are consistent with the Medicare RAC program requirements, thereby empowering states to avoid problems already encountered and addressed in the Medicare RAC program."
The AMA letter was signed by 25 national physician organizations and state medical organizations from all 50 states and the District of Columbia.
In an information bulletin dated February 1, CMS announced the delay of the implementation date, originally scheduled for April 1, 2011. In the bulletin, CMS states, "Out of consideration for state operational issues and to ensure states comply with the provisions of the final rule, we have determined that states will not be required to implement their RAC programs by the proposed implementation date of April 1, 2011.” According to CMS, the new implementation date will be issued later in 2011 in the Medicaid RAC Program final rule.
The newly revised CMS brochure, “The Medicare Appeals Process: Five Levels to Protect Providers, Physicians, and Other Suppliers” provides an updated overview of the Medicare Part A & Part B appeals process. The CMS brochure provides detailed information on each of the five levels of appeal illustrated in Figure 7.
ORIGINAL MEDICARE PARTS A & B
Figure 7 *AIC - 2011 Amount in Controversy
ABOUT THE EDITOR
CPT® is a Trademark of the American Medical Association Current Procedural Terminology (CPT) is copyright 2011 American Medical Association. All Rights Reserved. No fee schedules, basic units, relative values, or related listings are included in CPT. The AMA assumes no liability for the data contained herein.