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November 2001
Volume 65 |
Number 11
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| Medicare Coverage
and Compliance in Pain Management |
Allan R. Escher, Jr., D.O.
Lawrence S. Gorfine, M.D.
Committee on Pain Medicine
On June 14, 2001, Health and Human Services Secretary Tommy Thompson
announced a series of measures to reform the operations of the
Centers for Medicare & Medicaid Services (CMS), known then
as HCFA, and to improve service for the nearly 40 million Medicare
and 37 million Medicaid beneficiaries and their physicians. The
administrator of CMS, Thomas A. Scully, announced three new initiatives
to make CMS “responsive, efficient and accessible.”
First, Mr. Scully proposed the creation of Open Door Policy Committees
chaired by himself and other senior-level staff who will hear
from providers and beneficiary groups in the formulation of policy
input. Second, Regional Forums open to the public would gauge
the effects of CMS policies. Lastly, Mr. Scully proposed the creation
of in-house expert teams to think “out of the box” on
ways to simplify regulations and decrease administrative burdens.
Indeed, such proposals are certainly positive and hopefully will
be of benefit to all physicians.
Pain management patients can present challenges in both diagnosis
and treatment plans. Many patients may have several pain conditions
requiring the involvement of a multidisciplinary approach.
Frequently, the greatest challenge is formulating a treatment
plan that will benefit the patient and also stand up to the scrutiny
of Medicare and other third-party payers. To help meet this goal,
a new Medicare Web site can be reached at <www.hcf.gov/medicare/mr>.
This Web site is an educational tool to help physicians, other
providers and the public better understand the coverage decision
process and to answer common questions. An area of recent heightened
media attention is Medicare fraud.
Many physicians are afraid of fines or even jail for innocent
mistakes. The site provides a brief overview of the government’s
main enforcement tool, the False Claims Act. This act covers offenses
“committed with actual knowledge of the falsity of the claim,
reckless disregard of the truth or falsity of the claim or deliberate
ignorance of the truth or falsity of the claim.” The other
remedy of the federal government is the Civil Monetary Penalties
Law, which has the same standard of proof. In summary, CMS attempts
to distinguish between innocent errors and negligence (erroneous
claims) as opposed to reckless or intentional conduct (fraudulent
claims).
To reduce the incidence of errors, CMS established the Medicare
Integrity Program (MIP). An overview of the MIP is provided in
the form of a 12-chapter manual that gives examples of fraudulent
activities, program memoranda and guidelines. Medical Review,
Benefit Integrity and Medicare Integrity Program Provider Education
and Training (MIP-PET) are discussed in chapter one; also of benefit
are separate exhibits and archives to illustrate the policies
regarding Medicare integrity.
CMS established new contracting entities called the Program Safeguard
Contractors (PSCs). A PSC can perform with CMS authority any or
all of the following: medical review, cost-report audits, data
analysis, provider education and fraud protection. A common fallacy
is the belief that PSCs get bonuses (bounties) for dollars recovered
from providers. CMS is quick to point out that MIP funding is
stable and that all monies recovered are returned to the Medicare
Trust Fund. Physicians may proactively conduct self-audits to
identify coverage and coding errors using the Office of the Inspector
General Compliance Program Guidelines, which can be found at <www.os.dhhs.gov/oig/modcomp/index.htm>.
The coverage of pain procedures by Medicare is a perennial source
of consternation among pain medicine physicians. There are two
types of coverage decisions: National Coverage Decisions (NCD)
and Local Medical Review Policy (LMRP). NCDs are established by
CMS to describe the circumstances for coverage of a specific medical
service procedure or device. Once an NCD is published, the decision
is binding on all carriers, program contractors, peer-review organizations
and Medicare Plus Choice organizations. Of particular importance,
the NCD is binding on an administrative law judge during the claims
review process. The review process in approving an NCD is rigorous
and includes a National Coverage Request Application, Coverage
Decision Memorandum and an expert panel review.
CMS contracts with private insurance groups, variously called
carriers, intermediaries or PSCs, to process Medicare claims.
These “Medicare contractors” then review and render
decisions to ensure that the service is covered under Medicare
Part A or B. However, “in the absence of a specific national
coverage decision, local contractors may make coverage decisions
at their own discretion.” Treatment plans can be constrained
by LMRPs. This is due to the fact that Medicare carriers establish
LMRPs to give guidance to physicians in terms of delivery of care
and payment of care within a specific geographic area. Contractor
medical directors develop these with input from physicians on
advisory committees so that they are “consistent with scientific
evidence and clinical practice.” Contractors’ LMRPs
may be accessed on a monthly basis on the Web site <www.lmrp.net>.
In Florida, policy number E0782 governs the coverage of implantable
infusion pumps. This provides detailed information on such topics
as coding guidelines, LMRP description and indications of medical
necessity for the system. Approved indications are “Chemotherapy
for Liver Cancer,” “Anti-Spasmodic Drugs for Severe
Spasticity,” “Opioid Drugs for Treatment of Chronic
Intractable Pain” and “Other Uses” approved by
the “contractor’s medical staff.” Under the “Other
Comments” section, definitions are given ranging from the
obvious “chronic: persisting over a long period of time”
to the esoteric such as “torsion dystonia.” Under “Advisory
Committee Notes,” one learns that this LMRP was developed
with input from “representatives of the Florida Society of
Anesthesiologists and pain medicine specialists.” This is
the ideal way for LMRPs to be formulated, with the active involvement
of the relevant specialists.
An example of a denied procedure is percutaneous lysis of epidural
adhesions on the basis that it is “not considered medically
reasonable or necessary,” or that the procedure is “investigational.”
Subjective evidence of clinical benefit to the patient in one’s
practice does not translate to Medicare coverage of the service
or procedure. Objective outcomes data provide the best tool to
shape LMRPs in the advisory committee setting. Physicians must
be proactive in the draft process of these LMRPs! One can get
involved by contacting the contractor medical director in one’s
geographic area and offering one’s expertise in the development
of future relevant LMRPs. Also, effective January 1, 2001, contractors
began listing draft LMRPs on their Web site, allowing physicians
to comment electronically. CMS’ new Web site <www.draftlmrp.net>
offers browsing, title searches and expeditious links.
Physicians also can provide input through the Carrier Advisory
Committee (CAC) structure. One should become familiar with the
physicians on the local CAC. If pain management is not represented
on the CAC, one could advocate for its presence. There is definitely
a push under Secretary Thompson to empower physicians to give
input into coverage decisions by Medicare; recent policy revisions
reflect this.
Effective October 1, 2001, there will be annual mandated reviews
of all LMRPs. Carriers must revise within 90 days those that contradict
NCDs, coverage provisions in interpretive manuals or national
payment policies. Changes in transmittal #14 (9/26/01) of the
Medicare Program Integrity Manual mandates the following disclaimer
be included in all LMRPs: “...Although the final decision
rests with the contractor, this policy was developed in cooperation
with advisory groups, which includes representatives from [fill
in appropriate specialty name].” It is up to physicians to
fill in this most appropriate blank.
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Allan R. Escher,
Jr., D.O., is a Pain Fellow at University of South Florida,
Tampa, Florida. |
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Lawrence S. Gorfine,
M.D., is Director and President, Southern Pain Institute,
Lake Worth, Florida. |
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