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Medicare Act Holds Buried Treasure For Therapists

Published on Mon Feb 02, 2004

The therapy cap moratorium isn't the only good news for therapists.

Therapists who have been drowning in Medicare's administrative quagmire can take heart: Congress has thrown them a lifeline.
 
Buried in the thousands of pages that make up the newly enacted Medicare Prescription Drug, Improve-ment and Modernization Act of 2003 lie regulatory reform provisions that could ease therapists' administrative burdens.
 
The provisions, gathered under the "Regulatory Reform" heading under Title IX of the bill, were signed into law by President Bush Dec. 8 along with the rest of the bill. Probably the most helpful provision will be the one allowing providers to simply correct minor technical errors on claims without going through the timely and costly full-blown appeals process, says Kathy Thompson, with the Visiting Nurse Associations of America.
 
The Department of Health and Human Services will work with both its Medicare contractors and provider representatives to develop a process that will allow those simple corrections to take place, according to Section 937 of the bill.
 
The new process should be in place by December 2004, the bill indicates.
 
Among the host of changes, the following provisions are particularly helpful:

 

  • Overpayments (Section 935). Medicare now is restricted from recouping overpayments until a reconsideration decision on the matter is rendered - in other words, until the provider has exhausted the first level of appeals.

     
  • Appeals for deceased patients (Section 939). This provision, which took effect upon enactment, allows providers and suppliers to appeal claims determinations when a patient dies and there is no other party to take up the appeal.

     

  • Extrapolation limits (Section 935). Medicare is prohibited from extrapolating overpayment amounts unless the provider has a high level of payment errors or "educational intervention" fails to correct the problem, the bill says.
     
    While this is good news, opponents of extrapolation are likely to think the provision doesn't go far enough in limiting the controversial practice, in which a small number of claims are reviewed and the error rate is projected out to the provider's universe of claims for the same time period to generate an overpayment amount. "It doesn't go to the core of the problem," says attorney Bill Sarraille with Sidley Austin Brown & Wood in Washington, DC.

     

  • Contractor responses (Sections 921 and 903). The bill gives intermediaries and carriers a 45-day time limit to respond in writing to written inquiries they receive from providers and beneficiaries. And it protects providers from penalties if they follow Centers for Medicare & Medicaid Services or contractor-written guidance that ends up being wrong.

     

  • Pre-payment review (Section 934). Starting a year from now, contractors may conduct random pre-payment review only if they are developing system-wide error rates or are working under other narrow circumstances, the bill mandates. And CMS must publish regulations spelling out the requirements for terminating non-random pre-payment review.

     

  • Retroactive application of policies (Section 903). The law prohibits CMS from applying "substantive changes" retroactively. There are two loopholes that would allow retroactive application however: if the change complies with a statutory requirement, or if it's in the "public interest."

     

  • Regulation timeline (Section 902). CMS can't drag its feet any longer when it comes to issuing regulations, at least not without a good excuse. The agency can't let three years elapse from proposed rule to final regulation unless it justifies publicly the reason for the delay. And new material can't be introduced in a final rule unless it is a "logical outgrowth" of what was originally proposed, the provision says.

    The Cloud Behind The Regulatory Silver Lining

    That was the good news.
     
    Unfortunately, not all of the items passed in the "Regulatory Reform" section of the newly enacted Medicare law are good for therapists and other providers.
     
    The regulatory reform provisions were "designed to respond to a series of concerns articulated across provider types," Sarraille. They attempt to address "a number of nagging issues and concerns," especially regarding appeals.
     
    In some cases they make things better, in some cases they codify existing policy - and in some cases "they are not better," Sarraille says.

    For example, Section 931 of the law requires Administrative Law Judges to move from the Social Security Administration to the Department of Health and Human Services by October 2005. ALJs hear appeals regarding Medicare claims, and often reverse contractor determinations.
     
    "Although the law requires steps to be taken to ensure the independence of ALJs after the transition, it is difficult to conclude that the number of positive outcomes for providers will remain the same," worries Burtonsville, MD-based attorney Elizabeth Hogue.
     
    The ALJs have been a "reality check" for Medicare contractors making claims determinations, Sarraille insists. Moving them to HHS will undermine the independence that made them a fair avenue for Medicare appeals.
     
    "Any reductions in positive results for providers may be explained by saying that now, at last, under CMS' jurisdiction, ALJs understand the criteria and how they are to be applied," Hogue predicts.
     
    Editor's Note: To see the full text of the bill, go to     http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.00001:.

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