September 8, 2000
WEEKLY UPDATE for September 8, 2000
LEGISLATIVE UPDATE
1) Overview
2) Patient
Protections-the Battle Continues...
3) Medicare
Prescription Drug Legislation (S. 3016)
4) Amendment
Expanding and Opening the National Practitioner Database
(H.R. 5122)
5) Child Passenger Protection Act of 2000
(S. 2070)
SPECIAL REGULATORY UPDATE
1) ACEP Meets
with HCFA Regarding Medicaid Emergency Services
Issues
2) HCFA Reports on OPPS Implementation
3)
HCFA Issues Clarification Regarding OPPS EMTALA
Provisions
4) HCFA Issues New Program Memorandum
Regarding Audit Processes
5) HHS Issues Final Rule
for Electronic Transactions in Health Care
6) HCFA
Issues Proposed Medicare Physician Fee Schedule for
2001
7) OIG Solicits Input for Compliance Risk
Guidance for the Ambulance Industry
8) HCFA Issues
Regulation Implementing BBRA
9) HCFA to Train
Physicians on Physician Encounter Data Collection
10)
GAO Reports M+C Plans Overpaid by $5.2 Billion in
1998
11) HCFA Issues Guidelines on Medicaid Managed
Care Fraud and Abuse
12) OIG Issues Report Regarding
FFS Medicare Payments to Excluded Physicians
13) GAO
Issues Report Regarding Medicare Fee Schedule Payments
for Rural Ambulances
14) FDA Issues Final Guidance on
Reuse of Single Use Devices
WELCOME TO THE 911
LEGISLATIVE NETWORK!
LEGISLATIVE UPDATE
1) Overview
Congress returned to Washington last week to finish
an ambitious list of legislation before final
adjournment which is slated for October 6. Partisan
bickering and the looming elections suggest little will
be accomplished during the next four weeks. The House
and Senate have not completed action on most of the
bills that fund government activities and programs. The
White House has threatened to veto those appropriations
bills that have made it to conference. Because House
Republicans, in particular, are anxious to avoid a
politically dangerous showdown with the White House that
could lead to another government shutdown, it is likely
they will agree to spending increases for many domestic
programs. On health issues still to be settled, the
House version of the Labor HHS bill allots $6.6 million
for poison control centers, leaving trauma and emergency
care without subsidy; while the Senate version denotes
$20 million for poison control and $3 million for trauma
and emergency care. Tax reform, prescription drug
benefits for Medicare recipients and a patients' bill of
rights will almost certainly be decided after the
election when the 107th Congress convenes in
January.
In the meantime, the dynamics of the Senate have
changed following the death of Sen. Paul Coverdell
(R-GA). The seat is temporarily filled by former Gov.
Zell Miller (D-GA), a moderate Democrat, who will hold
the position until the November elections. Sen. Miller
makes the 50th vote for the Balanced Budget Act (BBA)
and could allow VP Al Gore to cast the tie-breaking vote
on the BBA. Sen. Coverdell's assignment to the Finance
Committee is being filled by Sen. Larry Craig (R-ID), a
friend of Sen. Majority Leader Trent Lott (R-MS), and a
fiscal conservative. His appointment could make a
difference in the outcome of the BBA "give back"
bill.
We do expect a budget reconciliation bill to reach
the President's desk this year. The Senate Finance
Committee approved the session's second reconciliation
bill measure this week in the Senate on a 19-0 vote. The
bill focuses on retirement savings and other tax
provisions are expected as negotiations continue. The
House Ways & Means Committee has until September 13
to report its versions of the second and final
reconciliation package. The Committee indicates that it
will contain retirement incentives and earmarks for debt
reduction from the anticipated surplus. Other bills such
as the BBA "give back bill" or the "patients' bill of
rights" may be attached to the reconciliation bill
because it can not be filibustered in the Senate.
2) Patient Protections-the Battle Continues...
Congressional advocates of a patients' bill of rights
continue to press for passage of a bill the President
will sign. Rep. Charlie Norwood (R-GA) has been meeting
with Speaker Dennis Hastert (R-IL) and others to develop
a version of the House-passed Norwood-Dingell bill that
would be acceptable to Senate Republicans. To date,
discussions have failed to produce any tangible results.
Many in Congress believe the bill's fate rests at the
center of the calculation that weighs enactment of a
bill against political gain if a bill is not passed. At
the same time, opposition to a bill outside the halls of
Congress has intensified.
On September 7, the American Association of Health
Plans (AAHP) aired a new round of commercials designed
to block congressional action on any patients' bill of
rights. Their television ads suggest that this
legislation would devastate HMOs and would lead to a
flood of frivolous lawsuits. AAHP also launched a
campaign to have 100,000 citizens contact their
legislators to raise questions about the cost of the
Norwood-Dingell bill.
PLEASE CALL YOUR LEGISLATORS-- KEEP UP THE
HEAT!
Members of the 911 Network are urged to contact
their Senators and Representatives to reiterate their
support for the Norwood-Dingell bill and for the
emergency services provisions in the bill. The message
is: "A compromise between the House and Senate versions
of a patients' bill of rights must contain emergency
services provisions as written in the Norwood-Dingell
bill. Please pass real patient protection legislation
before the November 7 elections." Call Ann LaBelle with
questions, at 800-320-0610, extension 3015.
3) Medicare Prescription Drug Legislation (S.
3016)
Senate Finance Committee Chair William Roth (R-DE)
introduced a bill establishing an outpatient
prescription drug assistance program for low-income
Medicare beneficiaries and those beneficiaries with high
drug costs on September 7. This bill would provide a
short-term fix for the politically hot Medicare
prescription drug issue. Through out the year,
congressional Republicans have been divided on the
details of how to provide a drug benefit. Now Senate
Republicans and some House Republicans are supporting
Roth's bill, which is a version of GOP nominee George W.
Bush's plan to create state grants to help seniors buy
drugs. Democrats say that this approach would exclude
millions of middle class elderly who also need this
help.
Costing $20 billion dollars over five years, the bill
would provide immediate assistance to low income
seniors. Republicans view this bill as an interim
measure and hope to work on more comprehensive Medicare
reform in the 107th Congress. In response, Senate
Democrats vowed to pass a comprehensive bill that
guarantees all seniors the same premiums and
benefits.
4) Amendment Expanding and Opening the National
Practitioner Database (H.R. 5122)
Rep. Tom Bliley (R-VA), Chairman of the House
Commerce Committee, proposed legislation that would
publicly disclose a national database of doctors and
health professionals who have had legal or disciplinary
action against them. Expanding the 10-year old National
Practitioner Data Bank, the bill would also expand the
system to report felonies and misdemeanors committed by
doctors. The bill is expected to be marked up within the
next two weeks and may be included in a reconciliation
bill later this month. Many have suggested that this
bill is Chairman Bliley's way of retaliating against the
AMA for promoting the patients' bill of right and Rep.
Tom Campbell's (R-CA) bill that gives physicians the
right to bargain collectively with health plans.
5) Child Passenger Protection Act of 2000 (S.
2070)
Sponsored by Sen. Peter Fitzgerald (R-IL), the Child
Passenger Protection Act is a bill that improves the
safety standards for child restraints in motor vehicles.
The bill is scheduled for mark up on September 20 and
Senate leaders are optimistic for its passage by the end
of the session. ACEP has supported this bill since its
introduction.
REGULATORY UPDATE
1) ACEP Meets with HCFA Regarding Medicaid Emergency
Services Issues
In early September, ACEP President Dr. Michael Rapp
and Federal Affairs Director Michelle Fried, along with
the Emergency Department Practice Management
Association, met with HCFA's Director of Medicaid and
State Operations and other senior HCFA officials
regarding HCFA's Medicaid policies for emergency
services. HCFA was eager to discuss practices that
states, managed care organization, and PCCMs are
utilizing that are not in compliance with the Balanced
Budget Act of 1997. HCFA had reviewed the detailed
information we presented in advance of the meeting, and
expressed great interest in working with us to solve the
problems that are occurring. We also discussed
retroactivity of claims payment for claims that were
denied in violation of the BBA and HCFA's policies
related to coverage of emergency services in the
Medicaid fee-for-service program. The meeting was very
positive and HCFA committed to work with us on these
issues. Please update Michelle on a continuing basis
regarding experiences with Medicaid prudent layperson
implementation in your state, including problems and
"best practices." Michelle may be reached at mfried@acep.org.
2) HCFA Reports on OPPS Implementation
In late August, the Health Care Financing
Administration reported that the majority of claims
covered by the Medicare Outpatient Prospective Payment
System (OPPS) are being processed correctly.
Implementation of OPPS began on August 1, despite the
fact that hospitals pushed for a delay until October 1.
HCFA has informed its fiscal intermediaries that a
contingency plan designed to pay claims in the event
that HCFA's systems were not working properly would not
be needed. HCFA noted, however, that due to the
complexity of the OPPS system, some "glitches" were to
be expected and have been found in the standard systems
and Outpatient Code Editor (OCE). HCFA admitted that
these problems are likely to result in claims processing
errors. HCFA hopes all of the glitches will be addressed
by October 1, 2000. A copy of the "Important Notice of
Outpatient Prospective Payment System Implementation,"
is available on HCFA's web site at: http://www.hcfa.gov/whatsnew.
3) HCFA Issues Clarification Regarding OPPS EMTALA
Provisions
On August 3, 2000, the Health Care Financing
Administration issued an interim final rule clarifying
issues related to the EMTALA provisions contained in the
Medicare hospital outpatient prospective payment system
regulation that was published in the Federal Register on
April 7, 2000. One of ACEP's biggest concerns with the
April 7 rule related a requirement to provide
beneficiaries treated in a hospital outpatient
department or hospital-based entity that is not on the
main campus with an Advance Beneficiary Notice (ABN)
prior to the delivery of services. ACEP argued that this
requirement conflicted with the purposes of EMTALA and
with previous guidance from the Office on Inspector
General regarding EMTALA, and asked that HCFA revise the
regulation to exempt services performed pursuant to
EMTALA requirements. HCFA agreed with ACEP's comments
and clarified that hospitals are not required to deliver
ABNs before screening and stabilizing a patient with an
emergency medical condition. The August 3 rule also
clarified the requirement that staff in an off-campus
department that is not usually staffed with physicians,
RNs or LPNs contact emergency personnel at the main
hospital campus before arranging an appropriate transfer
to a medical facility other than the main hospital. HCFA
stated in the August 3 rule that the contact with
emergency personnel at the main hospital should not
delay an appropriate transfer, and should be made either
after or concurrently with the actions needed to arrange
the transfer.
4) HCFA Issues New Program Memorandum Regarding
Audit Processes
In early August, the Health Care Financing
Administration issued a new program memorandum revising
its prepayment and postpayment audit processes. Key
provisions of the program memorandum include the
following:
- A carrier's decision to conduct medical review
should be data driven.
- Medical review should be no more extensive than is
necessary to address the nature and extent of the
identified problem (e.g. a small level of
non-compliance does not merit a 100% prepay review).
- Error Rate is important in deciding how to address
problems.
- Carriers should consider the past history of
physicians' billing errors and their willingness to
address the problems.
- Carriers must consider the amount of the
undercoding.
- Physician education and feedback is essential to
solve both individual physician or widespread (among
region and/or specialty) billing problems. If the
billing problem is widespread, the carrier must work
with the specialty and state medical societies on
educational efforts.
- Carriers must provide comparative data to the
physician about how the physician varies from other
physicians in the same payment specialty area or
locality.
- Carriers must remove a physician from medical
review as soon as possible when the physician
demonstrates compliance with Medicare billing
requirements.
- Carriers must send written notification to all
physicians when they are placed on medical review and
removed from medical review.
- The carrier must make a reasonable effort to
accommodate a physician's request for a meeting.
- If a carrier must contact a physician as a result
of more than one problem, the carrier must ensure that
its contacts are necessary, timely and appropriate,
not redundant.
- HCFA does not consider it an efficient use of
medical review resources to deny claims that are
routinely appealed and reversed. Therefore, carriers
must consider the Administrative Law Judge reversal
rate in deciding whether or not to implement medical
review.
The program memorandum, "Medical Review Progressive
Corrective Action," is effective October 1, 2000 and is
available on HCFA's web site at: http://www.hcfa.gov/pubforms/transmit/memos/comm_date_dsc.htm.
5) HHS Issues Final Rule for Electronic Transactions
in Health Care
In late August, the Department of Health and Human
Services issued a final rule regarding industry
standards for the electronic transmission of health
information. The rule is one of several that HHS is
required to promulgate pursuant to the administrative
simplification provisions of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA).
According to HHS, there are currently approximately 400
formats for electronic health care claims, making it
difficult and expensive for providers and plans.
Entities covered by the regulation, including health
plans, health care clearinghouses, and providers who
transmit administrative data in electronic form, will be
required to comply with the regulation by October 2002.
Small health plans will have to comply by October 2003.
The new rule establishes the content and formats to be
used in submitting claims and other administrative data
electronically between health care entities.
Pursuant to HIPAA, the transactions that are required
to use the new standards include:
- health claims and equivalent encounter information
- enrollment and disenrollment in a health plan
- eligibility for a health plan
- health care payment and remittance advice
- health plan premium payments
- health claim status
- referral certification and authorization
- coordination of benefits
HHS has posted "questions and answers" about the rule
on its web page at:
http://aspe.hhs.gov/admnsimp/faqtx.htm
6) HCFA Issues Proposed Medicare Physician Fee
Schedule for 2001
In late July, the Health Care Financing
Administration published a proposed rule in the Federal
Register establishing the Medicare physician fee
schedule for 2001. In 2001, the practice expense
component of the fee schedule will be 25 percent
charge-based and 75 percent resource-based. Regarding
practice expense, HCFA recommended that the AMA include
a question on the SMS survey about how many hours are
spent providing uncompensated care. ACEP has been asking
HCFA to recognize the uncompensated care costs related
to EMTALA in the practice expense component of the
physician fee schedule, and is pleased that HCFA
continues to recognize the importance of the issue.
However, HCFA's recommendation is not adequate since the
AMA has stated that it will no longer be fielding the
SMS survey. We will continue to work with HCFA to
develop a solution to this problem. HCFA did make some
refinements to the practice expense component of the fee
schedule. Overall, these changes are not expected to
have much of an effect on payment to emergency
physicians.
In the proposed rule, HCFA stated that it is
proposing to correct an inconsistency between the
pricing of observation care codes and its policies
regarding payment for hospital admissions and discharges
on the same day. HCFA's proposed new policy would
significantly reduce RVUs for certain observation care
codes. On a positive note, HCFA is proposing to increase
the work RVUs for critical care codes 99291 and 99292.
These RVUs had been reduced last year.
7) OIG Solicits Input for Compliance Risk Guidance
for the Ambulance Industry
On August 17, 2000, the Office of Inspector General
published a notice in the Federal Register soliciting
input and recommendations from interested parties as the
OIG develops Compliance Risk Guidance for ambulance
services providers. The notice stated that the ambulance
industry has experienced a number of cases of ambulance
provider and supplier fraud and abuse and that the
industry expressed an interest in the guidance. The OIG
is soliciting input regarding the most common fraud and
abuse risk areas for the ambulance industry. The
Compliance Risk Guidance will provide guidance on how to
address the risk areas, prevent the occurrence of fraud
and abuse, and develop corrective actions when problems
are identified.
8) HCFA Issues Regulation Implementing BBRA
In early August, the Health Care Financing
Administration issued an interim final rule to implement
changes resulting from the Balanced Budget Refinement
Act of 1999. The rule included changes regarding
payments for indirect and direct graduate medical
education. The rule contains details regarding how a
hospital will compute the full-time equivalent cap for
direct GME payments and the IME adjustment. The rule
also provides for additional payment to teaching
hospitals equal to the additional amount the hospitals
would have been paid for FY 2000 if the IME adjustment
formula for that year had been the same as for FY
1999.
9) HCFA to Train Physicians on Physician Encounter
Data Collection
The Health Care Financing Administration is planning
to hold a series of training sessions for physicians who
work with managed care plans regarding requirements for
submitting physician encounter data to Medicare+Choice
organizations. The Balanced Budget Act of 1997 required
HCFA to implement a risk adjustment payment methodology
for payment to Medicare+Choice organizations that
accounts for variations in payment based on health
status of the organizations' enrollees. Beginning
October 1, Medicare+Choice organizations must submit
physician encounter data for services provided on or
after October 1. The encounter data will include both
diagnostic and procedure codes.
The training sessions are scheduled to take place:
September 7 in Chicago, Illinois; September 13 in Tampa,
Florida; and September 20 in San Diego, California.
Other sessions may be scheduled at a later date.
Additional information about the training sessions is
available of HCFA's web site at: http://www.hcfa.gov/events/events.htm.
10) GAO Reports M+C Plans Overpaid by $5.2 Billion
in 1998
In late August, the General Accounting Office
reported that the Health Care Financing Administration
overpaid Medicare+Choice plans by an estimated $5.2
billion in 1998. The report, "Medicare+Choice: Payments
Exceed Cost of Fee-for-Service Benefits, Adding Billions
to Spending," stated that HCFA paid $3.2 billion more on
Medicare+Choice enrollees than it would have if the
beneficiaries had been in the Medicare fee-for-service
program. An additional $2 billion in excess payments
resulted from a combination of spending forecast errors
and payment provisions in the Balanced Budget Act of
1997. The report will be available on the GAO's web site
at http://www.gao.gov/.
11) HCFA Issues Guidelines on Medicaid Managed Care
Fraud and Abuse
HCFA recently released "Guidelines for Addressing
Fraud and Abuse in Medicaid Managed Care." The purpose
of the document is to provide ideas and guidelines to
assist states and other stakeholders in preventing,
identifying, investigating, reporting and prosecuting
fraud and abuse in Medicaid managed care plans.
The guidelines address a wide variety of fraudulent
and abuse practices in Medicaid managed care,
including:
- definitions and case examples of ongoing
investigations and successful prosecutions of fraud
and abuse in managed care versus fee-for-service
systems,
- roles of Medicaid purchasers and consumers in
fraud and abuse,
- utilization of electronic and other data to
identify fraud and abuse,
- key components of an effective managed care fraud
and abuse program,
- required and suggested reporting mechanisms at all
levels, and
- suggested fraud and abuse tools and provisions
that can be used in a state's managed care system,
including contracts and programs.
The document was developed by a work group, which
included representatives from State Medicaid Agencies,
Medicaid Fraud Control Units, and HCFA. The guidelines
are available on HCFA's web site at: http://www.hcfa.gov/medicaid/fraudgd.pdf.
12) OIG Issues Report Regarding FFS Medicare
Payments to Excluded Physicians
In late August, the Office of Inspector General
issued a report, "Medicare Payments to OIG Excluded
Physicians," which concluded that the "exclusion
fee-for-service Medicare payments were made in 1997 to
physicians who had been excluded from the Medicare
program. The OIG determined that improper payments of
only $35,800 were made to only 21 physicians who had
been excluded from the Medicare program. The OIG
reported that most of the improper payments were due to
human error, but that some were alleged to be due to
incomplete or faulty exclusion information. The report
noted that HCFA is in the process of implementing
reforms to try to improve the system. The report is
available on the OIG's web site at http://www.hhs.gov/oig/oei/whatsnew.html.
13) GAO Issues Report Regarding Medicare Fee
Schedule Payments for Rural Ambulances
In late July, the Government Accounting Office issued
a report that recommended that the Health Care Financing
Administration implement a payment adjuster for rural
ambulances. HCFA is in the process of drafting a
proposed rule to implement a Medicare ambulance fee
schedule, based on the recommendations of a negotiated
rulemaking committee. The report stated that once the
ambulance fee schedule is implemented, it will be
necessary for HCFA to make payment adjustments to
ambulance providers who transport beneficiaries in
low-population, isolated areas. The report is available
on the GAO's web site at http://www.gao.gov/.
14) FDA Issues Final Guidance on Reuse of Single Use
Devices
In early August, the Food and Drug Administration
issued final guidance for industry and FDA staff
regarding reprocessing and reusing "single-use" medical
devices. The guidance, "Enforcement Priorities for
Single-Use Devices Reprocessed by Third Parties and
Hospitals," states that the FDA will regulate hospitals
and third parties that reprocess single-use devices in
the same manner in which the agency now regulates the
original device manufacturers. Thus, these hospitals and
third parties will be subject to pre-market notification
and approval requirements, registration and listing of
firms, submission of adverse event reports,
manufacturing requirements, labeling requirements, and
others. The guidance document is available on the FDA's
web site at: http://www.fda.gov/cdrh/comp/guidance/1168.pdf.
WELCOME TO THE 911 LEGISLATIVE NETWORK!
Steve Fisher, MD (Rep. Patrick Kennedy, D-RI)
Don
Hoechlin, MD (Rep. Ken Calvert, R-CA)
Kelly Larkin,
MD (Rep. Ken Bentsen,
D-TX) | 
Printable version
Send link via
email