As you expected, if you have been reading our Alerts, the final version of the Medicare Physician Fee Schedule Rule for 2013 contains a massive payment reduction: Medicare Conversion Factors  20122013Difference Anesthesia Services(national average)$21.52$15.93-26.0% Other Services$34.0376$25.0008-26.5%   As you also know, the 26% and 26.5% cuts are unlikely to go into effect.  If they do go into effect, because Congress fails to take action before December 31st, Congress will almost certainly enact a fix early in the new year, as it has done every year but one (2002) since the Sustainable Growth Rate (SGR) formula first start mandating reduction. In announcing the Final Rule, the Centers for Medicare and Medicaid Services (CMS) itself said: The final rule with comment period also includes a statutorily required 26.5 percent across-the-board reduction to Medicare payment rates for more than 1 million physicians and non-physician practitioners under the Balanced Budget Act of 1997’s Sustainable Growth...

[Author’s Note: A version of this article originally appeared in the August 2012 issue of Anesthesiology News.] In a much awaited pronouncement, on June 1, 2012, the U.S. Department of Health and Human Service’s Office of Inspector General issued Advisory Opinion 12-06 addressing the propriety of two popular schemes to extract money from anesthesiologists, the so-called “company model” and the purported “management fee.” The advisory opinion could not be more welcome: Just as Willie Sutton, the bank robber, targeted banks “because that’s where the money is,” owners of ambulatory surgery centers continue seek a share of anesthesia fees. According to a survey conducted by the American Society of Anesthesiologists, 41% of the responding anesthesia practices (125 out of 308) reported being requested by an ASC or its referring physician practice to adopt a company model. Not surprisingly, those 125 practices reported that out of the total 332 requests to participate in...

Effective November 1, 2012, Wisconsin Act 160 (Act 160) establishes a licensure requirement for anesthesiologist assistants (AAs).  Prior to Act 160, AAs practiced under delegated authority.  Act 160 also established the requirements for obtaining AA licensure, AA’s scope of practice, anesthesiologist supervision requirements as well as a Council on Anesthesiologist Assistants.  This announcement summarizes some of the key aspects of the new law that Wisconsin anesthesiology providers need to know. AA Scope of Practice Act 160 provides that an AA may assist an anesthesiologist in the delivery of medical care.  The medical care tasks that may be assigned by the supervising anesthesiologist, falling within the AA’s scope of practice, are the following: Developing and implementing an anesthesia care plan for the patient;Obtaining a comprehensive patient history and performing relevant elements of a physical exam;Pretesting and calibrating anesthesia delivery systems and obtaining and interpreting information from the systems and from monitors;Implementing medically accepted...

Many states have laws or regulations in place that require health insurers in the state to reimburse claims within a certain timeframe or face penalties, oftentimes in the form of interest applied to the amount of the claim. Such laws or regulations are typically called “Prompt Pay” laws or “Clean Claim.” While each state or, sometimes, insurer, defines the requirements for a claim to be a “clean claim,” generally, a “clean claim” is a claim that has all of the information an insurer needs to either pay or deny the claim. A “non-clean claim” is a claim that requires additional information or documentation to make it clean. Each state sets forth the timeframes in which insurers have to reimburse a clean claim. Absent certain exceptions (e.g., instances of suspected fraudulent activity, contractual provisions setting forth alternative timeframes, etc.), failure to adhere to the timeframes results in penalties oftentimes in the form of...

With a new calendar year just over two months away, the medical and healthcare communities have begun the annual flurry of end-game activity seeking to influence payment rates.  Anesthesiologists need little reminder of the Sustainable Growth Rate (SGR) threat and the 27 percent cut in Medicare payment that will take effect on January 1, 2013, unless Congress intervenes. On October 15th, more than 100 national medical societies, including the American Society of Anesthesiologists, sent letters to the Senate Finance Committee, the House Ways and Means Committee and the House Energy and Commerce Committee highlighting the urgency of fixing the SGR problem for a new reason: The sustainable growth rate (SGR) formula is an enormous impediment to successful health care delivery and payment reforms that can improve the quality of patient care while lowering growth in costs. Physicians facing the constant specter of severe cuts under the SGR cannot invest their time,...

Several clients have inquired as to the documentation and correct coding and billing for Transesophageal Echocardiography (TEE) services. A TEE is a special diagnostic tool, which may be used by properly trained physicians (i.e., anesthesiologists, cardiologists) to benefit patient care. A separately reported TEE may be performed for monitoring and/or diagnostic purposes. However, many payers will only reimburse diagnostic studies.   For example, to establish conditions such as myocardial ischemia or cardiac valve disorders, the anesthesiologist will be utilizing the transesophageal echo for diagnostic purposes. In this case, when the anesthesiologist has the additional certification or documented training in residency, and is privileged by the hospital to do the complete procedure, the anesthesiologist can and should bill separately for the TEE in addition to the anesthesia. The correct CPT code for the complete procedure is 93312. When you bill for both the anesthesia and the TEE, the coder must append...

By Abby Pendleton, Esq., Carey Kalmowitz, Esq. and Adrienne Dresevic, Esq. The Health Law Partners, P.C., Southfield, MI On June 1, 2012, the Department of Health and Human Services Office of Inspector General (the “OIG”) issued its Advisory Opinion No. 12-06, which provides long-awaited guidance to the health care industry regarding the legal permissibility of an anesthesia delivery service model commonly referred to as the “company model.” Insofar as Advisory Opinion No. 12-06 is the initial OIG guidance that specifically focuses on such an arrangement and determines that the factual paradigms presented implicate risks under the Medicare and Medicaid Antikickback Statute (the “AKS”), this Advisory Opinion understandably is capturing broad attention within the medical and legal communities. While OIG Advisory Opinion 12-06 clarifies the almost-axiomatic observation that company model arrangements, especially those that contain the indicia that the OIG historically has identified as problematic under the AKS, certainly have the potential...

The Office of the Inspector General (OIG) within the Department of Health and Human Services has published its Work Plan for 2013.  On the list of Medicare issues on which the OIG will focus next year is the following: Anesthesia Services—Payments for Personally Performed Services (New) We will review Medicare Part B claims for personally performed anesthesia services to determine whether they were supported in accordance with Medicare requirements. We will also determine whether Medicare payments for anesthesiologist services reported on a claim with the “AA” service code modifier met Medicare requirements. Physicians report the appropriate anesthesia modifier to denote whether the service was personally performed or medically directed. (CMS’s Medicare Claims Processing Manual, Pub. No. 100-04, ch.12, § 50) The service code “AA” modifier is used for anesthesia services personally performed by an anesthesiologist, and the “QK” modifier is used for medical direction of two, three, or four concurrent...

The acronym “HIPAA” has become a household name since the enactment of the Health Information Portability and Accountability Act of 1996, which, among other things, established rules for protecting and securing patients’ health information. In fact, it is not uncommon to hear about breaches of patient information costing healthcare providers and suppliers six and seven figure civil monetary penalties or settlements. Typically, such settlements and penalties have arisen out of patient complaints that the privacy of their protected health information (PHI) has been compromised. However, beginning November 2011, patient complaints will not be the only way in which the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) will learn about non-compliant entities.Section 13411 of the American Recovery and Reinvestment Act of 2009, which established the Health Information Technology for Economic and Clinical Health (HITECH) Act, requires the Secretary of HHS to “provide for periodic audits to ensure...

Abby Pendleton, Esq., The Health Law Partners, P.C., Southfield, MIStephanie P. Ottenwess, Esq., The Health Law Partners, P.C., Los Angeles, CAOn March 7, 2012, the Centers for Medicare and Medicaid Services (CMS) published its Notice of Proposed Rule Making (NPRM, or proposed rule) for Stage 2 user requirements for the Medicare/Medicaid Electronic Health Record (EHR) Incentive Program (“meaningful use,” or MU) in the Federal Register. 77 FR 13698.1 There is a three pronged focus to the Stage 2 criteria: standardizing data formats to dramatically simplify how information is both captured and shared across disparate IT systems in order to be better able to coordinate care with other physicians; ensuring that patients be able to access and easily download their healthcare records and images for their own use; and expanding the scope of tracked quality metrics to include specialists and to reflect and improve specific patient outcomes as well as care coordination.Although subsequent to...

The percentage of patients requiring the highest level of service in the emergency department at Faxton St. Luke’s Healthcare in Utica, NY rose 43 percent in 2009, as reported in the New York Times on September 21, 2012.  Level 5 ED visit services (CPT® code 99285) at Baptist Hospital in Nashville, TN increased by 82 percent in 2010, and by a comparable amount at Methodist Medical Center of Illinois in Peoria.  More than 80 percent of Methodist Memorial’s Medicare ED evaluation and management (E/M) claims were for Level 5 services in 2010, as they were at Yuma Regional Medical Center in Yuma, AZ in 2007.  At Baylor Medical Center in Irving, TX, 64 percent of all ED visits for Medicare patients were Level 5 services, and another 16 percent were Level 4.These are just a few examples of hospitals experiencing a startling rate of growth of high-intensity E/M services during the last few...

October 1, 2012, as we noted in last week’s Alert, is the deadline for ambulatory surgical centers to begin reporting quality measures to CMS or face payment penalties.  October 1st is also a momentous date for hospitals, with the start of the Medicare Hospital Inpatient Value-Based Purchasing (VBP) Program.Value-Based Purchasing for HospitalsThe VBP Program is scheduled to launch a week from now, as required by the Affordable Care Act. This program marks the beginning of an historic change in how Medicare pays health care providers and facilities—for the first time, hospitals across the country will be paid for inpatient acute care services based on care quality, not on the quantity of the services they provide.In fiscal year 2013, which starts on October 1st, the VBP Program will pay out an estimated $850 million to more than 3,500 participating hospitals based on their overall performance on a set of twenty quality measures....

Many “Covered Entities” within the meaning of the privacy and security provisions of the Health Insurance and Portability Act of 1996 (HIPAA) are managing more and more of their patient information electronically.  Indeed, not moving to electronic health records (EHRs) may cost physicians a percentage of their Medicare remittances—or at least the loss of a potential bonus of up to $44,000—under the EHR Incentive Program, as discussed in our last several Alerts.Collecting, analyzing, reporting and storing electronic patient information present perhaps even greater HIPAA challenges than does the use of paper records, however.  Data entered on a computer can be copied more easily, more cheaply, more prolifically and even passively.  Once unsecured data are moved from the computer on which they are created to other media, manually or wirelessly, controlling the information becomes nearly impossible.  The key word in the preceding sentence is “unsecured.”  The recently finalized HIPAA regulations on Breach Notification impose...

Last week, we announced the availability of a new web-based electronic health record (EHR) that will permit anesthesiologists to satisfy the Meaningful Use requirements for the Medicare EHR Incentive Program.  Although this technology, F1RSTUse, is relatively simple, requires little additional data entry and is an option for ABC clients and non-clients alike, it will not be the best solution for every reader.  Those of you who are not in a position to implement F1RSTUse or any EHR will be interested in a new hardship exception created by CMS when it released the final regulation on the Stage 2 Meaningful Use requirements on August 23, 2012.Anesthesiologists not participating in the EHR Incentive Program are the targets of the new exception based on “scope of practice,” along with radiologists and pathologists.  In the final rule, CMS added a new section, §495.102(d)(4)(iv), to the regulations which provides that “eligible professionals” (EPs) who designate their...

On Thursday, August 23, 2012 the Centers for Medicare and Medicaid Services (CMS) released the final rule on Stage 2 of the federal electronic health record (EHR) system incentive program.ABC is very pleased to announce F1RSTUse, the first complete EHR platform built exclusively for anesthesiologists and pain management specialists to satisfy easily Stage 1 of Meaningful Use as required to earn the Medicare EHR incentive payment.  Stage 1 requirements remain in effect for the next several years; one of the major changes of the August 23rd final rule was to extend the deadline to meet Stage 2 criteria until 2014.  Other changes contained in the 672-page rule (PDF) will be reviewed in future Alerts.The industry has been discussing the impracticality of attesting to Meaningful Use with current technologies and relationships that are in place for anesthesia.  We at ABC also noted the lack of ease implementing this requirement for the specialty.  Attestation was...

Preparing for negotiations requires an appreciation of the other side’s needs, wants, values and constraints.  Anesthesiologists who have contracts with their hospitals or surgery centers are in a continuous cycle of negotiations—as soon as one contract is signed, it is time to start working toward the next agreement.  One good place to start in understanding the facility’s position is to look at the advice hospitals are receiving from their consultants.  Below is an article recently written for that audience by ABC Vice President for Regulatory Affairs & Research Joette Derricks, CPC, CHC, CMPE, CSSGB.  This article addresses hospital employment of physicians who bill using RBRVS Relative Value Units, and of course anesthesiologists use the Relative Value Guide’s Base and Time Unit methodology and typically have group exclusive contracts to provide services to the hospital’s patients, but the discussion below can be read with the differences in mind. It is important to...

Anesthesiologists and pain physicians who have been receiving bonuses for participating in Medicare’s Physician Quality Reporting System (PQRS) should continue to do what they have been doing.  The proposed Fee Schedule rule (NPRM) for 2013 does not contain any new requirements affecting those who are already successfully participating, as we noted summarily in last week’s Alert.For physicians who have yet to earn a PQRS incentive payment, the NPRM would make reporting easier in future years.  This is important, because failure to report PQRS measures will result in financial penalties beginning in 2015—based on reporting in 2013.  The amount of the payment adjustment, positive or negative, will be as follows: 2013+0.5% 2014+0.5% 2015-1.5% 2016 on-2.0% CMS has stated that one of its major goals in developing its proposed changes was to increase participation to 50% of eligible providers in 2015.  In 2010, the overall level of participation was only 24 percent.  (“2010 Reporting Experience, Including Trends (2007-2011): Physician...

Anesthesiologists, nurse anesthetists and anesthesiologist assistants who last validated their enrollment in Medicare prior to March 25, 2011 are going to have to revalidate again by March 23, 2013. The revalidation is required under Section 6028 of the Affordable Care Act.  According to this statutory provision, all providers and suppliers who were initially enrolled before March 25, 2011 and have not revalidated since then must revalidate their enrollment information within 60 days of receiving notice from their carriers, but no later than March 23, 2013.This is a hassle for physicians and allied health professionals who enrolled or revalidated as Medicare providers in 2009, 2010 or up until March 22nd of this year.  Normally, providers have five years to revalidate.   It may be of modest consolation that the burden will be considerably greater for institutional providers and especially for suppliers.  That is because the revalidation is intended to combat Medicare fraud, by bringing...

CMS has proposed to begin paying certified registered nurse anesthetists (CRNAs) for providing certain pain management procedures on a nationwide basis.  The discussion in the proposed rule on the Medicare Physician Fee Schedule for calendar year 2013, issued on July 6, 2012, sets forth the history and the considerations in expanding the types of services for which CRNAs may bill Medicare.Currently, whether pain services may be reported by CRNAs varies from state to state.  There are two circumstances that must be present for Medicare to pay for CRNA pain services:CRNAs must be permitted to perform pain medicine procedures under state scope of practice laws, andThe Medicare contractor for the state must have determined that chronic pain management is closely related to anesthesia and that CRNA-performed pain procedures are therefore covered by the Medicare program.It is important to understand that Medicare pays for specific benefits, not for all medical, nursing and other health services. ...

The Supreme Court’s decision on the fate of the Patient Protection and Affordable Care Act (PPACA or, more commonly, ACA) is due to be announced at 10:15 on Thursday morning, June 28.  We are not jumping the gun by beginning to write this Alert ahead of the decision – the take-away message is that whether the ACA stands or falls, in whole or in part, anesthesiologists need to continue developing their role in perioperative care.Towards the Perioperative Surgical Home™ Model of CareCoordinated medical care is now an established value and goal in both the public and private sectors.  “Silos” and “fragmentation” are pejorative terms used to describe the type of health care delivery system that policymakers seek to leave behind. Many anesthesiologists began expanding their role in coordinating perioperative care long before the ACA was written, in pre-anesthesia testing through post-operative pain medicine services.  Several years ago, the American Society of Anesthesiologists...