April 2004
Volume 68 |
Number 4 |
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Locum Tenens Anesthesiologists:
New Medicare Payment Policy
Karin Bierstein, J.D.
Assistant Director of Governmental Affairs (Regulatory)
Until now an anesthesiology group using a locum
tenens or other independent contractor physician
has not been able to bill Medicare directly for
the services of that physician. Typically the locum
tenens has submitted claims in his or her own name,
and the Medicare remittances have gone into a “lockbox”
bank account from which the bank automatically sweeps
funds into an account maintained by the group. Practices
can now bill for the locum tenens’ services
and receive payment without resorting to such convoluted
arrangements.
The need for lockbox devices or sweep accounts reflected
the previous text of the Social Security Act and
the strictures of the Medicare Carrier Manual section
(3060) on the reassignment of benefits. The November
2003 Medicare Prescription Drug legislation, among
many other things, amended the law to allow a hospital,
group practice or other “entity” to
bill for physician services provided under a contract.
The new law calls upon the Secretary of Health and
Human Services to define the conditions that such
contracts would have to satisfy.
The Centers for Medicare & Medicaid Services
(CMS) issued the requisite revision to the Medicare
Claims Processing Manual (which has replaced the
Carrier Manual) on February 27. Chapter 1, Section
30.2.7 now states that:
A carrier may make payment to an entity (i.e.,
a person, group, or facility) enrolled in the Medicare
program that submits a claim for services provided
by a physician or other person under a contractual
arrangement with that entity … The contractual
arrangement between the entity and the physician
or other person should include the following program
integrity safeguards:
1. Joint and several liability is shared
between the entity submitting the claim and the
person actually furnishing the service for any
Medicare overpayment relating to such claim.
2. The person furnishing the service has unrestricted
access to claims submitted by the entity for the
services provided by that person.
“Program integrity” is CMS-speak for
prevention of fraud and abuse. The joint and several
liability clauses that locum tenens contracts should
include make both the anesthesiology group and the
contracted physician responsible for not overbilling
Medicare. This principle does not appear unreasonable.
The unrestricted access clause is necessary to hold
the contracted physician accountable for the claims
submitted in his or her name.
The CMS language says contracts “should include”
rather than “must include” the two clauses.
Although there is no absolute requirement, it would
be prudent for anesthesiology practices to add the
clauses to existing contracts, possibly through
simple addenda.
An independent contractor anesthesiologist who is
concerned about whether the “entity”
is enhancing his or her claims might additionally
consider an indemnification provision in the written
agreement. Likewise a group may be able to protect
itself against creative reporting by an independent
contractor through an indemnification agreement.
Groups have long been able to submit claims to Medicare
for the services of independent contractor nurse
anesthetists. The Social Security Act explicitly
permits Medicare to pay the group, hospital or other
entity for the services of a contracted nurse anesthetist.
Propofol
Use Restricted to Anesthesia Professionals
The American Association for Accreditation of
Ambulatory Surgery Facilities (AAAASF) has changed
its standards and, as of March 1, requires that
only anesthesiologists or nurse anesthetists administer
propofol. This follows AAAASF’s evaluation
of reports of several patient deaths that occurred
in facilities “without adequate resuscitation
equipment and/or personnel airway management training.”
The AAAASF <www.aaaasf.org>
now accredits approximately 1,100 facilities.
Its Board of Directors includes Jeffrey Apfelbaum,
M.D., chair of ASA’s Committee on Quality
Management and Departmental Administration.
Medicare
Will Delay Payments on Non HIPAA-Compliant Claims
after July 1
CMS has informed the physician community, through
the American Medical Association (AMA), that beginning
July 1, Medicare carriers will not process electronic
claims that do not comply with the Health Insurance
Portability and Accountability Act (HIPAA) until
the 27th day after receipt. Compliant claims will
continue to be processed within 14 days. The two-week
penalty is designed to encourage providers to
make sure that their claims are in the correct
HIPAA format.
What if the carrier itself is responsible for
an anesthesiologist’s inability to file
a the HIPAA-compliant claim? CMS has created a
complaint mechanism known as the Administrative
Simplification Enforcement Tool (ASET) on its
Web site <htct.hhs.gov/>
or <www.cms.hhs.gov/hipaa/hipaa2/enforcement/default.asp#complaint>.
This is how ASET works:
Each ASET user must register
with the Office of HIPAA Standards (OHS) and create
a user identification name and password. The user
must have a valid e-mail account to create a user
I.D. This user name and password will be used
for ongoing access to ASET. Once registration
is completed, the user can enter ASET to file
a complaint. To file a complaint, the user must
provide information regarding the complainant,
the specific transaction and the party that the
complaint is being filed against.
Once all the information is entered, the system
processes the complaint and conducts any necessary
testing on data files that have been uploaded,
and the complaint is referred to OHS for analysis.
In some instances, the complainant may be asked
to submit their complaint and supporting documentation
by mail.
ASET is available not just to complain about
Medicare carriers. You may use it to complain
about any of your “trading partners,”
including private payers and claims clearinghouses.
AMA also has posted a complaint mechanism, “Physicians
Click and Complain,” on its Web site <www.ama-assn.org>.
AMA aggregates the information and forwards summaries
with physician names and other identifying data
removed. This process is very similar to the online
Health Plan Complaint Form (HPCF) for physicians
to register complaints about the unfair business
practices they encounter with health plans and
third-party payers (e.g., inappropriate “bundling”
of services). ASA is collaborating with AMA in
collecting general payment hassle information,
and the HPCF is available on the “Members
Only” section of the ASA Web site as well
as under the AMA’s “Click and Complain”
icon.
Locked
Anesthesia Carts: ASA Leaders Pay a Visit to CMS
On February 17, ASA President-Elect Eugene P.
Sinclair, M.D., First Vice-President Orin F. Guidry,
M.D., and Jerry A. Cohen, M.D., Professional Standards
Section Chair and ASA Representative to the Joint
Committee on Accreditation of Healthcare Organizations
(JCAHO) Hospital Professional and Technical Advisory
Committee, and Karin Bierstein, J.D., met with
officials of the Centers for Medicare & Medicaid
Services (CMS) to discuss medication security
and the issue of locked anesthesia carts.
Some JCAHO and state health department surveyers
continue to interpret the section of the federal
regulation governing pharmacy services in hospitals
that states “All drugs and biologicals must
be kept in a locked storage area” to mean
that anesthesia carts must be locked unless they
are in active use. This draconian view would mean
that before anesthesiologists can transfer patients
emerging from anesthesia to the gurney and to
the recovery unit, they must remove all syringes
and vials from the tops of the carts and make
sure that all medications are locked up. The only
exception would occur in those lavishly staffed
surgical suites that can assign a nurse or a technician
to stay in the operating room monitoring the unlocked
cart when the anesthesia personnel leave with
the patient.
The CMS officials were sensitive to the patient
safety implications raised by this interpretation.
They also were receptive to the ASA
“Position Statement on Security of Medications
in the Operating Room” and
to our representatives’ descriptions of
the already high levels of security in busy surgical
suites to which only authorized persons have access.
We are optimistic that the Agency will issue new
“Interpretive Guidelines” for surveyors
that will clarify appropriately the circumstances
and times when anesthesia carts must indeed be
locked. The ASA Washington Office has been told
that the new guidelines may be published on the
CMS Web site <cms.hhs.gov>
as early as May.
In the meantime, hospitals receiving a citation
for having unlocked carts in a secure operating
room can request a reconsideration from the CMS
regional office. Contact information is available
through <mail@ASAwash.org>.
Source Material:
Revision 111 to the Medicare Claims Processing Manual,
Change Request 3083, 2/27/04 <www.cms.hhs.gov/manuals/pm_trans/R111CP.pdf>.
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