American College of Physicians: Internal Medicine — Doctors for Adults ®


How ACP-ASIM is helping to reduce regulatory burdens

From the September ACP-ASIM Observer, copyright 2002 by the American College of Physicians-American Society of Internal Medicine.

By Brett Baker

The College has been working with an interdepartmental task force over the past year and a half to find ways to improve Medicare by reducing regulatory hassles for physicians.

The Physicians' Regulatory Issues Team (PRIT) was established by the Centers for Medicare and Medicaid Services (CMS) to gain better input from physicians and make Medicare more physician friendly. The group's first task was to identify 25 issues that most affect physicians' day-to-day practice.

In earlier columns, I have provided updates on a number of these issues, including payment for preoperative evaluations, a new process for enrolling as a Medicare provider, eligibility requirements for home care and national standards for common lab tests.

The College has recently made significant progress in getting CMS to clarify reimbursement regulations for physicians who supervise residents. CMS is now revising the Medicare requirements that prescribe how teaching physicians must document evaluation and management (E/M) services involving residents in order to receive Part B payment. ACP-ASIM provided extensive comments on draft revisions to the regulations to ensure that teaching physicians are not burdened with excessive, redundant documentation.

The revised regulations are expected to include scenarios that illustrate how teaching physicians involve residents in furnishing E/M services to beneficiaries. The new regulations will also likely provide examples of acceptable and unacceptable medical record notations. CMS intends to implement the revised requirements in the next few months.

To access the entire list of 25 issues with updates on the changes CMS has implemented so far, go to "ACP-ASIM involvement in the Medicare effort to reduce the regulatory burden."

Brett Baker is a third-party payment specialist in the College's Washington office.



ACP-ASIM involvement in the Medicare effort to reduce the regulatory burden

The Centers for Medicare and Medicaid Services (CMS) established an interdepartmental task force called the Physicians' Regulatory Issues Team (PRIT) to reduce Medicare regulatory burdens for physicians.

Using comments from ACP-ASIM, other physician organizations and individual physicians, the PRIT identified the 25 issues that most affect physicians in day-to-day practice. ACP-ASIM is working with CMS to resolve these issues and improve the practice environment for physicians.

Below is a list of the 25 issues, with updates on the progress that has been made in crafting and implementing solutions to these problems.

1. Medicare rules

Issue: Physicians complain that it is difficult to find the "right" answer to questions regarding basic Medicare requirements.

CMS Action: CMS has begun working on a number of new initiatives to improve customer service. These include toll-free lines for physician inquiries at the Medicare contractor sites, a publication of Medicare "basics" for physicians, and a system to capture and compile a list of frequently asked questions, with answers.

ACP-ASIM Involvement: ACP-ASIM is working with CMS to develop a plan to better educate physicians about billing and coding issues. The College also advocates legislation to improve Medicare carriers' customer service.

2. Misunderstanding of practicing physician reality

Issue: Physicians and physician organizations state that CMS does not understand the real pressures and difficulties that practicing physicians face.

CMS Action: CMS has doubled the number of physicians on its staff. It has begun to rely more heavily on the 15-physician Practicing Physicians Advisory Council (PPAC) for advice on Medicare issues. Staff and leadership are participating in county medical society-sponsored preceptorship programs in which they shadow physicians. (Information in the CMS preceptorship program is available online.)

3. Communication

Issue: Physicians and physician organizations say that better communication of existing CMS policies and information would reduce their sense of burden.

CMS Action: CMS has established a monthly series of informative and interactive conference calls to representatives of more than 100 physician organizations. In addition, knowledgeable CMS personnel now participate at the annual conventions of approximately 25 physician/professional organizations each year. Finally, CMS is redesigning its Web site to make it more user-friendly for physicians.

4. Enrollment

Issue: Physicians and physician organizations say the enrollment process is burdensome, time-consuming and overly complicated.

CMS Action: CMS held two town hall meetings with physician and health care industry representatives concerning the enrollment process. As a result, CMS revised the enrollment application to address most, if not all, of the concerns that were raised at these meetings. CMS discarded its single "one-size-fits-all" form and created separate forms for each type of entity. The new form physicians must use is no longer cluttered with questions for other Medicare providers such as durable medical equipment vendors. CMS also set timeframes carriers must adhere to when processing enrollment applications. The new application processing timeframes require carriers to do the following:

  • Make a decision on 90% of applications within 60 days;
  • Make a decision on 99% of applications within 90 days; and
  • Obtain missing information for incomplete applications by telephoning applicants.

More information on enrollment is on the CMS Web site. The site explains the enrollment process and provides application forms and instructions, important contact names and phone numbers and answers to frequently asked questions.

See also "Want to enroll in Medicare? You'll need a new form," in the April 2002 ACP-ASIM Observer.

5. Credentialing for physicians working with Medicare managed care

Issue: Physicians disapprove of the CMS requirement that all physicians in a Medicare Managed Care Plan network have hospital privileges, because it unnecessarily excludes new physicians with provisional hospital privileges from the networks.

CMS Action: CMS has re-evaluated current credentialing standards, including those of the National Committee for Quality Assurance (NCQA). The agency plans to finalize a change soon, and believes it will satisfactorily address this issue.

6. Evaluation and management documentation guidelines

Issue: Physicians and physician organizations say that the E/M guidelines are too complex and time consuming to use in day-to-day medical care.

CMS Action: CMS is working closely with practicing physicians and organized medicine to develop and implement simplified E/M guidelines. CMS is participating in an AMA workgroup that is developing solutions to the documentation problem. CMS plans pilot testing and extensive educational outreach prior to implementing any new documentation guidelines.

ACP-ASIM Involvement: ACP-ASIM is represented on the AMA workgroup and is actively participating in the effort to minimize documentation to allow physicians to spend more time with patients and less on paperwork.

7. Women's health exam

Issue: Physicians say that Medicare's payment policy for women's preventive health services (breast exam, pelvic exam and Pap smear) is too complex and creates daily confusion for patients and physicians' billing staff.

CMS Action: CMS published a booklet, "Women with Medicare," to help beneficiaries understand their financial responsibility when they receive Medicare-covered Pap tests and pelvic/breast exams.

ACP-ASIM Involvement: ACP-ASIM reviewed drafts of the booklet and recommended improvements.

8. Medical review

Issue: Physicians say they feel burdened by the threat of carrier audits and carriers' focus on debatable errors.

CMS Action: CMS has implemented the Progressive Corrective Action (PCA) program, which clarifies the processes Medicare carriers must use when conducting medical reviews. The initiative aims to ensure that the carrier action is commensurate with the severity of the potential problem and stresses education over punitive measures.

CMS published the plain-language document "Pay It Right", which explains the Medicare Integrity Program. Additionally, the Program Integrity Customer Service project is working to better balance physician service needs with program integrity needs.

ACP-ASIM Involvement: ACP-ASIM made numerous recommendations for improving the Medicare medical review process. CMS included many of these recommendations in its PCA program. A summary of the program is included in the ACP-ASIM Practice Management Center publication ">Medicare Medical Review: Safeguards and Advice for Internists and Their Staff."

Although ACP-ASIM is pleased that CMS has implemented the PCA program, it fails to address all of our concerns regarding the medical review process. For example, physicians must still pay the overpayment amount within 30 days even if they appeal the carrier's determination. ACP-ASIM will continues to work with CMS and Congress to resolve these concerns.

9. Office of Inspector General (OIG) compliance guidance

Issue: Physicians say that it is difficult to comply with the OIG's recommendation that they create a resource binder of Medicare laws and regulations because this material is difficult to identify and assemble.

CMS Action: CMS and the OIG are working to identify Medicare laws, regulations and instructions that apply to physicians. CMS will make this list will available to physicians to help them assemble resource binders for their offices.

ACP-ASIM Involvement: ACP-ASIM provided the OIG input while it was writing its voluntary compliance plans for small physician practices. As a result, the OIG compliance guidance better recognizes the resource limitations of small practices and it is more feasible for small practices to implement.

The ACP-ASIM Practice Management Center developed two publications, "The Good Business Approach to Medicare Compliance: a Road Map for Internists" and "Medicare Compliance Action Plan: a Good Business Approach for Smaller Practices," to provide further practical advice. These publications are available online.

10. Reassignment

Issue: Physicians disagree with the requirement that prohibits agencies from billing for services that independent contract physicians provide away from the agency's physical premises. (The agency may not send physicians out to work in an emergency department, for example). The General Accounting Office and the OIG are studying groups that use independent contractor physicians, and their enrollment in the Medicare program.

CMS Action: CMS expects to receive study results in 2002 and will consider recommendations from the study reports.

ACP-ASIM Involvement: In addition to the specific aspect of reassignment rules that CMS is currently reviewing, ACP-ASIM recommends that the agency modify its locum tenens regulations. The College believes CMS should allow a physician who takes a leave of absence to bill for the work of a substituting physician for 120 days, as opposed to the currently allowed 60 days. The period of time should be increased to comply with the Family and Medical Leave Act, the federal law that requires employers to permit employees to take time off to attend to medical or family emergencies. CMS should propose a legislative change if necessary.

11. Advance Beneficiary Notices

Issue: Physicians say that it is difficult to determine under what circumstances an Advance Beneficiary Notices should be completed, especially in the emergency department. The confusion this creates for some beneficiaries and may cause a breach of trust in the physician-patient relationship.

CMS Action: Improved ABN Forms
CMS revised the ABN forms, simplifying the language and removing the inappropriate "not medically necessary" language. The forms are now available for voluntary use. Physicians will be required to use the forms when CMS publishes instructions governing their use (likely in late 2002). The revised, voluntary ABN forms are available online.

Frequently Asked Questions
CMS developed documents with frequently asked questions (FAQs) and answers to address ABN issues. They are:

  • Understanding ABN requirements related to emergency care.
  • A discussion of physician versus laboratory responsibility to execute an ABN, and common patient questions about ABNs.

Coding Issues
In September 2001, CMS took action to address physician concerns that their claims were being denied even though they followed ICD-9 coding instructions. CMS issued instructions to its carriers to prevent them from denying medical necessary services. The CMS instructions, transmittal AB-01-144, provide a step-by-step approach to ICD-9-CM coding. These instructions are online.

12. Carrier bulletins

Issue: Physicians say that Medicare carrier bulletins are too dense, include too much information, and are poorly formatted so that physicians often miss important issues most applicable to their practice.

CMS Action: CMS is working with its Medicare carriers to identify "best practices."

ACP-ASIM Involvement: ACP-ASIM recommends that all Medicare regulations be available electronically. The regulations need to be indexed and cross-referenced by topic. For example, a search for rules pertaining to "critical care" should provide the CPT description, the Medicare Carriers Manual (MCM) policy, relevant CMS program memoranda; relevant Correct Coding Initiative bundling edits, recent OIG reports and any Local Medical Review Policies (LMRPs). Similarly, a search for "screening colonoscopy" should access all pertinent information, such as the CPT definition of the procedure, billing instructions and instructions for reporting a screening colonoscopy that identifies an abnormality.

13. Certificates of medical necessity

Issue: Physicians say the paperwork requirements for certificates of medical necessity (CMN) seem excessive for approving low cost items such as canes, crutches and walkers. They dislike the requirement of frequent re-certification for durable medical equipment that patients need for a lifetime, and would prefer to simply review and sign the CMN form in such cases, rather than complete most of the information themselves.

CMS Action: CMS is currently evaluating the utility and necessity of all CMN forms.

ACP-ASIM Involvement: ACP-ASIM recommends that CMS require physicians complete a CMN form once for lifetime needs. The DME supplier would need to notify the DME Regional Carrier if a beneficiary with a lifetime need ceased to need an supply, item or service (such as home oxygen therapy, for example).

14. Diabetics' glucose monitoring supplies

Issue: Physicians say that the requirement to renew orders for diabetic glucose monitoring supplies every six months is too frequent. They also say the amount of paperwork involved is excessive because physicians must complete separate forms for the DME Regional Carriers, secondary payers and suppliers, which all ask the same information.

CMS Action: CMS is currently revising its policy regarding physician certification of diabetics' glucose monitoring supplies, extending the recertification time frame from six to 12 months and streamlining documentation requirements. CMS expects its improved policy to be implemented in the next few months.

ACP-ASIM Involvement: ACP-ASIM commented on various drafts as CMS worked to improve the policy.

15. Claims resubmission

Issue: Physicians say they feel burdened when incorrect CMS or carrier edits cause claims to be erroneously denied, because once that error is corrected, it often becomes the physician's responsibility to resubmit the claim.

CMS Action: CMS is assessing carriers' claims processing systems to determine how to best address this problem.

ACP-ASIM Involvement: ACP-ASIM recommends that if a carrier makes an error or updates a fee during the course of the year that is made retroactive, the carrier should automatically make the correction to prior payments. The carrier should also inform physicians about corrections through an insert included with a remittance notice or a special notice on its Web site.

16. Coverage of follow-up visits for cancer patients

Issue: Physicians say they have concerns about carrier denials of services they believe are medically necessary, such as cancer monitoring. Some carriers classify these visits as "screening services" and therefore deny them.

ACP-ASIM Involvement: ACP-ASIM recommends that CMS work with medical organizations to develop reasonable billing standards that can be implemented nationally—such as stating when ICD-9 "V" codes justify medical necessity.

17. Coverage of pre-operative evaluations:

Issue: Physicians disagree with carriers' denial of payment for medically necessary pre-operative evaluations. They say that some carriers classify some tests and examinations performed as part of a preoperative work-up as "screening services" and therefore deny payment.

CMS Action: CMS published a reasonable, effective policy that allows physicians to be reimbursed for performing preoperative evaluations for patients facing surgery.

ACP-ASIM Involvement: ACP-ASIM spearheaded the effort to convince CMS to clarify coverage of pre-operative evaluations for its Medicare carriers to ensure that a determination on a patient's fitness for surgery is covered. The CMS policy is consistent with the ACP-ASIM recommendations. For a summary of the policy, see "How to bill Medicare for a pre-operative assessment," in the September 2001 ACP-ASIM Observer.

18. Eligibility determinations:

Issue: Physicians say it is difficult to determine whether a beneficiary is enrolled in Medicare managed care or Medicare fee for service, an important consideration when scheduling tests and consultations.

CMS Action: In October 2001, CMS authorized carriers to communicate eligibility information to physicians and providers by telephone without violating patient confidentiality. The contractor instructions, transmittal AB-01-137, are available online.

19. Home health issues

Issue: Physicians say that the definition of "homebound" is unclear. They fear liability if a patient is later determined to not meet "homebound" criteria.

CMS Action: The Beneficiary Improvement and Protection Act (BIPA) modified the definition of "homebound." It expands the list of circumstances under which patients can leave their home and still be classified as homebound to include participating in adult care and attending religious services.

CMS says physicians should not fear liability as long as their supervision of the patient's home health care is within the bounds of sound medical judgment. However, a physician who knowingly certifies a patient as homebound when the patient is physically able to leave the house can be penalized with civil penalties. The burden of proof for such liability lies with the federal government, which must demonstrate a physician was not truthful, and it is not enough for a physician to mistakenly certify a patient as homebound.

ACP-ASIM Involvement: For a summary of the BIPA change, see "Medicare clarifies its definition of 'homebound'" in the June 2001 ACP-ASIM Observer.

20. Laboratory services

Issue: Physicians have stated that some contractor LMRPs created for laboratory services are not comprehensive in terms of which diagnosis codes are covered for given tests.

CMS Action: CMS participated in an effort to establish uniform Medicare administrative and coverage policies for laboratory tests that was mandated by the Balanced Budget Act of 1997. CMS was a part of a 17-organization committee that developed standard administrative policies and coverage policies pertaining to 23 high-volume tests. CMS published the regulations establishing the uniform policies in November 2001. The new regulations take effect in November 2002. The pending regulation is available through the Government Printing Office website. Click on the link(s) to "Medicare: Clinical Diagnostic Laboratory Services; Coverage and Administrative Policies; Negotiated Rulemaking" under the "Centers for Medicare & Medicaid Services" heading.

ACP-ASIM Involvement: ACP-ASIM participated in the negotiated rulemaking process and believes that the resulting regulation will reduce the administrative burden physicians face in ordering laboratory tests for their patients. The College decided to participate because its members consistently identify Medicare carrier LMRPs for laboratory tests, which limit coverage of certain tests to specific diagnosis codes, as the most prominent day-to-day hassle in their medical practices.

21. Medical residents and physician supervision

Issue: Physicians have stated they are concerned about the requirements for physicians supervising residents. They have stated these requirements are confusing and may lead to debatable "errors."

CMS Action: CMS is working with ACP-ASIM and others to revise the Medicare requirements that prescribe how teaching physicians must document evaluation and management (E/M) services involving residents in order to receive Part B payment. The revised regulations are expected to include scenarios that illustrate how teaching physicians involve residents in furnishing E/M services to beneficiaries and provide examples of acceptable and unacceptable medical record notations. CMS intends to implement the revised requirements in the next few months.

ACP-ASIM Involvement: ACP-ASIM commented on the CMS draft revisions to the teaching physician documentation guidelines in its December 2001 testimony to the PPAC. The CMS draft revision more accurately reflects the teaching environment and it would reduce the pressure on teaching physicians to document redundant, unnecessarily time-consuming information. However, the College offered comments to improve the draft to promote clarity. The College stated that it is essential that CMS minimize ambiguity, especially since Medicare's requirements often by Medicaid and private payers. The College's comments are available in their entirety online.

22. Medicare summary notices

Issue: Physicians have stated they are concerned about language appearing on the Medicare Summary Notices (MSN), a monthly statement sent to beneficiaries detailing the Part B services they received. They have stated these contain explanations that are either confusing or may lead the beneficiary to believe the physician is doing something wrong and may adversely affect the physician - patient relationship.

CMS Action: In March 2002, CMS announced its intent to remove the inflammatory "Stop Fraud" message on MSN. CMS acknowledged ACP-ASIM as the reason the agency is replacing the fraud rhetoric with a more appropriate "be alert" message.

ACP-ASIM Involvement: ACP-ASIM complained that the message prompted beneficiaries to be skeptical of their physician. The College recommended that CMS replace the "Stop Fraud" language in a March 2002 statement to PPAC. The PPAC statement is available online.

23. Prior hospitalization for skilled nursing facility placement

Issue: Physicians have stated they believe the requirement for a three-day period of hospitalization prior to Medicare coverage of Skilled Nursing Facility (SNF) placement should be reconsidered. They have stated this requirement is not reflective of current medical practice, and is costly and burdensome for patients requiring SNF care.

CMS Action: CMS believes that physicians and other providers fail to understand that Congress did not design the SNF benefit to cover custodial "nursing home" care when it developed the benefit. Congress designed the benefit to narrowly focus on "post-hospital extended care," generally a brief and highly skilled extension of an acute stay in the hospital. Congress envisioned the benefit as a less expensive alternative to what would otherwise be the final, convalescent portion of a beneficiary's inpatient hospital stay. CMS believes that criticism of the three-day hospitalization requirement as an impediment to nursing home care is derived, in part, from this misunderstanding. However, Congress gave CMS the authority to eliminate the existing SNF Coverage requirement for a qualifying three-day hospital stay, only if the agency's action:

  • Does not increase overall program costs; and
  • Does not alter the SNF benefit's "acute care nature" (i.e., its orientation towards relatively short-term intensive care).

CMS is currently exploring its options.

24. Seclusion and restraints

Issue: Physicians have stated they disagree with the requirement that a licensed independent practitioner must see/examine a patient within one hour of giving an order for the use of seclusion and/or restraints. They have stated that this requirement is not always feasible, is burdensome, and may fail to promote higher quality of care.

CMS Action: CMS issued the seclusion and restraint rules as an "interim" regulation and invited comments. CMS received numerous comments concerning the one-hour face-to-face requirement. The agency has discretion revise the interim regulation based on the comments it received. It has yet to issue an updated regulation. In the meantime, CMS seclusion and restraints guidelines are available online.

25. Verbal orders

Issue: Physicians have stated they feel burdened by the requirement that verbal orders in the hospital must be signed by the individual physician giving the order. They have stated that the physician's associate or partner, willing to take legal responsibility for the order, should be allowed to sign the verbal order in the ordering physician's absence.

CMS Action: In April 2001, CMS responded to a request from the American Hospital Association (AHA) for clarification on the requirements for authentication and signing of verbal orders. CMS requires authentication of all entries, including verbal orders, with a legible and dated signature "as soon as possible." Most state laws require the prescribing practitioner sign a telephone or verbal order within 48 hours. In assessing compliance with the federal requirement, we ask surveyors to use the 48-hour period as a benchmark or guideline, but not as an absolute rule.

CMS recognizes that in some instances the ordering physician may not be able to authenticate his or her verbal order. Therefore, it is acceptable for a covering physician to co-sign the verbal order of an ordering physician who is "off duty" for the weekend or an extended period of time. CMS notes this practice must be addressed in hospital policy and that verbal orders should occur infrequently (42 CFR 482.23 (c)(2)(iii)).

CMS recognizes there is a strong interest in the hospital industry to modify, if not eliminate, the requirement for authentication of medical record entries, including verbal orders. In the December 19, 1997 proposed hospital regulation, we solicited comments on this requirement. We will address this issue in the final regulation. In the meantime, the CMS response to the AHA letter serves as guidance for the current requirement, which is available online.


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