November 12, 2012

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

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 Rate (SGR) methodology. However, Congress has overridden the required reduction every year since 2003. The Administration is committed to fixing the SGR update methodology and ensuring these payment cuts do not take effect. Predictable, fiscally-responsible physician payments are essential for Medicare to sustain quality and lower health care costs over the long-term.

Legislative correction of the SGR cuts depends not just on ASA and other organized medicine advocates—it depends on you, the constituents and citizen advocates.  We urge you to contact your Senators and Members of Congress as you will be directed by your national and state organizations.

Payment to CRNAs for Chronic Pain Services

The Final Rule puts in place a new policy of paying for all services that are within a CRNA’s scope of practice under state law.  Until now Medicare has only paid physicians for interventional procedures used to treat chronic pain. 

The Medicare statute (Social Security Act Section 1861(bb)(1)) defines services of a CRNA as “anesthesia services and related care furnished by a certified registered nurse anesthetist (as defined in paragraph (2)) which the nurse anesthetist is legally authorized to perform as such by the State in which the services are furnished.”  To extend the benefit for CRNA services to chronic pain procedures, CMS elected to defer to state scope of practice laws and regulations in determining whether “anesthesia services and related care” covers pain medicine.  Stating that “as CRNA training and practice evolve, the state scope of practice laws for CRNAs serve as a reasonable proxy for what constitutes “anesthesia and related care,'” CMS revised the Medicare regulation (42 CFR §410.69(b) “to define the statutory benefit category for CRNAs, which is specified as ‘anesthesia and related care,' as ‘those services that a certified registered nurse anesthetist is legally authorized to perform in the state in which the services are furnished.’”

The American Association of Nurse Anesthetists (AANA) applauded the new Medicare regulation, while “ASA Rebuke[d] CMS Rule for Jeopardizing Patient Safety and Quality Health Care.”

To the extent that state scope of practice laws are clear, CMS’ decision should resolve differences of interpretation among the Medicare Administrative Contractors (MACs).  In 2011, two MACs serving Medicare patients in 18 states began denying claim for CRNA chronic pain management services. Henceforth the MACs will need to examine state law, where the debate over CRNAs’ scope of practice is not new.

In a 2005 advisory opinion,  the Louisiana State Nursing Board gave CRNAs the power “to perform pain management procedures, including but not limited to, peripheral nerve blocks, epidural injections and spinal facet joint infections … based on a physician’s order,” with physician review. The Spine Diagnostic Center of Baton Rouge sued, claiming that these procedures were equivalent to the practice of medicine and therefore outside the scope of nursing. In 2007 the Louisiana Court of Appeal agreed and discontinued the practice.  Nebraska Department of Health regulations authorize CRNAs to provide all pain management services, like anesthesia services, “in collaboration and consultation” with a licensed physician, and permit CRNAs to write prescriptions for controlled substances.  CRNAs are authorized to prescribe controlled substances in half the states.  Not every state scope of practice regulation is clear and unequivocal, however, and further disputes in the state administrative and judicial systems can be expected.

Other Final Rule Provisions Affecting Anesthesiologists and Pain Physicians

The physician value-based payment modifier provides differential Medicare payments to physicians based on comparison of the quality of care furnished to beneficiaries and the cost of care. The statute allows CMS to phase in the value modifier over three years from 2015 to 2017. For 2015, the final rule applies the value modifier to groups of physicians with 100 or more eligible professionals, a change from the proposed rule, which would have set the group size at 25 or above. This change was adopted to gain experience with the methodology and approach before expanding to smaller groups.

The Final Rule lays out next steps to enhance the Physician Compare website, including posting names of practitioners who, as part of the Million Hearts campaign, successfully report measures to prevent heart disease.

It also finalizes changes to the Physician Quality Reporting System (PQRS) and the Electronic Prescribing (e-prescribing) Incentive Programs, including new e-prescribing hardship exemptions for those participating in the Meaningful Use EHR Incentive Program.

The value-based modifier, Physician Compare website and PQRS and EHR Incentive Programs will each be the subject of future Alerts.  If you already have questions about those topics, please bring them to our attention.  The more interactive our communications, the better our information will be.

With best wishes,

Tony Mira
President and CEO