http://www.ngsmedicare.com/wps/portal/ngsmedicare/!ut/p/c4/04_SB8K8xLLM9MSSzPy8xBz9CP0os3gDr2BnRzdTEwN3YwMjA0_H0FDXMH8jA3dLM_2CbEdFAOFxTSo!/

Please be sure to review your correct NYS payment locality.

Again, as you should know, CONGRESS voted on at least five (5) separate Medicare Physician Fee Schedules for calendar year 2010.  This caused the Medicare contractors to reprocess physicians’ claims for the first 5 months of the 2010 year and resulted in some peculiar recovery actions. Please use the following link to locate your elected officials and contact them to urge that 2010 not be repeated:  http://www.mssny.org/mssnyip.cfm?c=s&nm=Grassroots_Action The Medicare fee schedule needs to be properly addressed.  Fixing the flawed Medicare payment system and protecting Medicare beneficiaries’ access to doctors is vital.  Congress must pass legislation permanently reforming the SGR and address this issue once and for all.  The pattern of threatened SGR cuts and last-minute Congressional rescues is in itself not a sustainable solution and must be remedied.

Regina

Regina McNally, VP

Division of Socio-Medical Economics

Medical Society of the State of New York

New tools help doctors and other healthcare providers improve quality of care

Thu Oct 20 – People with Medicare will be able to benefit from a new program designed to encourage primary care doctors, specialists, hospitals, and other healthcare providers to coordinate their care under a final regulation issued today by the Department of Health and Human Services (HHS).  Created by the Affordable Care Act, these final rules on Accountable Care Organizations add to the menu of options for providers looking to better coordinate care for patients and will make it easier for providers to deliver high quality care and use healthcare dollars more wisely.

The initiatives announced today are just two of several efforts made possible by the Affordable Care Act to help bring better health, better care and lower costs not just to Medicare beneficiaries, but to all Americans.  For example, the Bundled Payments for Care Improvement Initiative and Comprehensive Primary Care Initiative offer alternatives to coordinate and improve healthcare.

The two initiatives launched today – the Medicare Shared Savings Program and the Advance Payment model – will help providers form Accountable Care Organizations and reflect the significant input provided by stakeholders as well as lessons learned by innovators in care coordination in the private sector.

• The Medicare Shared Savings Program will provide incentives for participating healthcare providers who agree to work together and become accountable for coordinating care for patients.  Providers who band together through this model and who meet certain quality standards based upon, among other measures, patient outcomes and care coordination among the provider team, may share in savings they achieve for the Medicare program.  The higher the quality of care providers deliver, the more shared savings the providers may keep.

• The Advance Payment model will provide additional support to physician-owned and rural providers participating in the Medicare Shared Savings Program who also would benefit from additional start-up resources to build the necessary infrastructure, such as new staff or information technology systems.  The advanced payments would be recovered from any future shared savings achieved by the Accountable Care Organization.

The Shared Savings Program final rule is posted at: http://www.ofr.gov/OFRUpload/OFRData/2011-27461_PI.pdf.

The CMS press release is available at: http://www.cms.gov/apps/media/press/release.asp?Counter=4132.

The Advanced Payment solicitation is posted at: http://innovations.CMS.gov/areas-of-focus/seamless-and-coordinated-care-models/advance-payment/.

For more information, fact sheets are posted at: http://www.HealthCare.gov/news/factsheets/2011/10/accountable-care10202011a.html and http://www.CMS.gov/ACO/.

The joint CMS and HHS Office of Inspector General (OIG) Interim Final Rule with Comment Period addressing waivers of certain fraud and abuse laws in connection with the Shared Savings Program is posted at:  www.OFR.gov/inspection.aspx.

The Antitrust Policy Statement is posted at: www.FTC.gov/opp/aco/ and http://www.justice.gov/atr/public/health_care/aco.html.

The Internal Revenue Service (IRS) Fact Sheet, Tax-Exempt Organizations Participating in the Medicare Shared Savings Program through Accountable Care (FS-2001-11), will be posted at: http://www.IRS.gov.

For additional information you may view the CMS Fact Sheets  (10/20) posted at:  https://www.CMS.gov/apps/media/fact_sheets.asp

Federal Register Links:

ACOs: http://www.ofr.gov/OFRUpload/OFRData/2011-27461_PI.pdf

Stark Waivers: http://www.ofr.gov/OFRUpload/OFRData/2011-27460_PI.pdf

Advanced Payment: http://www.ofr.gov/OFRUpload/OFRData/2011-27458_PI.pdf

For dates of service in September 2011, influenza vaccinations are being priced using the 2010-2011 influenza season rates.

What This Means to You

Providers are receiving incorrect payment for influenza vaccination claims. If you identify influenza vaccinations where you were paid incorrectly, please hold your appeal requests. As soon as the pricing files are updated you will be notified and you may request an adjustment of your claims. Until the new pricing files are uploaded National Government Services cannot reprocess any claims. If you have not already submitted your influenza vaccinations for September, please consider holding your claims until the new pricing files are in effect.

Current Status

10/20/2011: National Government Services is aware of this issue and is working in collaboration with the Centers for Medicare & Medicaid Services (CMS) in order to rectify the pricing disparity as soon as possible. Thank you for your patience.

National Government Services, Inc.

Corporate Communications

Only 10% of the NGS’ Medicare provider volume has tested their HIPAA Version 5010 claims on an individual basis.  If you bill electronically, please be sure that you or your billing vendor, clearinghouse or service provider has successfully tested your claims submission before the January 1, 2012 deadline (i.e. the first two weeks of December).  Please make sure, by asking them, if you have not asked them, already.  Not doing so will have serious negative cash flow implications – your claims will not be paid.  If you do not have an Administrative Simplification Compliance Act (ASCA) waiver, you will not be permitted to default to paper claim filing.

In May 2011, CMS released an updated version of the Advance Beneficiary Notice of Noncoverage (ABN) (form CMS-R-131), which will replace the 2008 version of this form.  The 2011 version contains no substantive changes from the 2008 version of the notice and was approved by the Office of Management and Budget.  The 2008 and 2011 ABN notices are identical except that the release date of “3/11” is printed in the lower left hand corner of the new version.  The ABN is used by all providers, practitioners, and suppliers paid under Medicare Part B, as well as hospice providers and religious non-medical healthcare institutions (RNHCIs) paid exclusively under Part A.

When the 2011 ABN was posted to the CMS website on Mon May 16, CMS announced a mandatory use date of Thu Sep 1 and permitted providers and suppliers to begin using the new form immediately.  Subsequently, we received requests from the industry to extend this deadline in order to permit providers and suppliers with pre-printed stockpiles of ABNs time to exhaust their supplies.

Providers and suppliers are allowed to use either the 2008 or 2011 version of the ABN through the end of this year; beginning Sun Jan 1, 2012, they must begin using the 2011 version.  ABNs issued after Sun Jan 1 that are prepared using the 2008 version of the notice will be considered invalid by Medicare contractors.  2008 versions of the ABN that were issued prior to Sun Jan 1 as long-term notification for repetitive services delivered for up to one year will remain effective for the length of time specified on the notice.

Information and a copy of the 2011 version of the ABN (form CMS-R-131) can be found online at http://www.CMS.gov/BNI, under the “FFS Revised ABN” link.

The Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals with emergency departments (and Critical Access Hospitals) to provide a medical screening examination to any individual who comes to the emergency department and requests such an examination, and prohibits hospitals with emergency departments from refusing to examine or treat individuals with an emergency medical condition (EMC). The provisions of EMTALA apply to all individuals (not just Medicare beneficiaries) who attempt to gain access to a hospital for emergency care. The regulations define “hospital with an emergency department” to mean a hospital with a dedicated emergency department (ED) and define “dedicated emergency department” as any department or facility of the hospital that: (1) is licensed by the state as an emergency department; (2) is held out to the public as providing treatment for emergency medical conditions; or (3) on one-third of the visits to the department in the preceding calendar year actually provided treatment for emergency medical conditions on an urgent basis.

Enforcement of EMTALA is complaint driven, i.e., the investigation of a hospital’s policies and procedures, and any subsequent sanctions, are initiated by a complaint. CMS surveyors review the bylaws, rules, and regulations of the medical staff and the ED policies and procedures manual to help determine if a hospital is in compliance with EMTALA requirements. If the results of a complaint investigation indicate that a hospital violated one or more of the anti-dumping provisions of EMTALA, a hospital may be subject to termination of its provider agreement and/or the imposition of civil monetary penalties (CMPs). CMS refers cases it has investigated to the HHS Office of Inspector General (OIG) when CMS finds violations that appear to fall within the OIG’s EMTALA jurisdiction. CMPs may be imposed by the OIG against both the hospital and individual physicians for EMTALA violations. The OIG can also terminate a physician’s provider agreement for gross and flagrant or repeated EMTALA violations. A physician found to have violated EMTALA may also be sanctioned by the state licensing board, payors and other third-party entities, and be sued by the hospital for indemnification.

TO RECEIVE THE COMPLETE 19-PAGE REPORT, Contact the Nassau County Medical Society at nassaumed@verizon.net.

The Administration issued its long awaited Medicare Shared Savings/Accountable Care Organization (ACO) regulation on Mar. 31. The Medicare ACO program is a voluntary, three-year program to further develop the ACO model of health care delivery reform. The Centers for Medicare and Medicaid Services (CMS) issued the proposed regulation and comments are due on June 6. Prior to the release, CMS Administrator Don Berwick, MD, reached out to AMA leadership to emphasize the Administration’s interest in our comments. CMS and the Office of the Inspector General (OIG) also issued a joint solicitation of comments on proposed waivers for Medicare ACOs from the self-referral, anti-kickback, and civil monetary penalties statutes. The Federal Trade Commission (FTC) and the Department of Justice (DOJ) issued a proposed policy statement on antitrust and ACOs, and the Internal Revenue Service (IRS) issued a notice pertaining to tax-exempt entities, as well. All these agencies are providing opportunities for the public to comment. The AMA is reviewing the hundreds of pages of these documents in-depth and will be working with the Federation in developing comments.

The documents can be viewed at:

• CMS proposed rule on ACOs:

http://www.ofr.gov/OFRUpload/OFRData/2011-07880_PI.pdf

• CMS/ OIG notice on waiver designs:

http://www.ofr.gov/OFRUpload/OFRData/2011-07884_PI.pdf

• FTC/ DOJ notice on antitrust enforcement policy and ACOs:

http://www.ftc.gov/os/fedreg/2011/03/110331acofrn.pdf

• IRS notice on ACO participation by tax-exempt organizations:

http://www.irs.gov/pub/irs-drop/n-11-20.pdf

“The department certainly did not act irrationally in concluding that these doctors — ‘who work long hours, serve as high skilled professionals, and typically share some or all of the terms of employment of career employees’ — are the kind of workers that Congress intended to both contribute and benefit from the Social Security system,” said Chief Justice John Roberts, who wrote the opinion for the court.

Under the Social Security Act, medical residents were exempt from FICA taxes under an exception carved out for those performing services “in the employ of…a school, college, or university…if such service is performed by a student who is enrolled and regularly attending classes at such school, college or university.”  However, Mayo officials argued that residents fall under a Social Security tax exemption for student employees whose work is part of their education. The Treasury Department took away that exemption in 2004 for medical students who work more than 40 hours per week. Mayo Clinic officials wanted the court to overturn a federal appeals court ruling and restore the student exemption for medical residents. It also wanted a refund of the money it had withheld and paid to the IRS on its residents’ stipends during the second quarter of 2005.

In arguments before the Supreme Court, Mayo’s lawyer argued that the IRS’ decision that anyone who works over 40 hours a week at a hospital can no longer be classified as a student was arbitrary and capricious.

The Supreme Court decision is available at http://www.supremecourt.gov/opinions/10pdf/09-837.pdf

Given the new direction for the nation’s health system, the AMA has developed Health System Reform Insight to help you understand the health system reform legislation and what it means to you and your patients.

A key component of the Affordable Care Act (ACA) is a provision—effective in 2014—that requires most individuals to purchase health insurance or pay a penalty. In addition, the ACA significantly expands health insurance coverage to the uninsured through the Medicaid program. Since passage of the ACA, numerous lawsuits have been filed, several of which are summarized below, challenging the constitutional authority of Congress to enact an individual mandate and expand the Medicaid program.

Individual mandate

Section 1501 of Title I of the ACA requires that most individuals maintain minimum essential health insurance coverage for themselves and their dependents. Those who fail to do so will be required to pay a penalty, administered through the tax code for each month of noncompliance. Qualified individuals will be provided subsidies to help pay for their premiums and cost-sharing. Others will be exempt from the individual mandate, including those with qualifying religious exemptions, those in a health care sharing ministry, individuals not lawfully present in the United States and incarcerated individuals. No penalty will be imposed on those without health insurance coverage for less than 90 days, members of Indian tribes, individuals whose household income does not exceed 100 percent of the federal poverty level (FPL), or any individual who is determined by the secretary of Health and Human Services to have suffered a hardship with respect to being able to obtain health insurance coverage under a qualified health plan.

The individual mandate is generally consistent with AMA policy, which states that individuals and families earning greater than 500 percent of FPL should be required to obtain health insurance coverage for at least catastrophic health care and evidence-based preventive health care. For those earning less than 500 percent of FPL, the individual responsibility requirement is supported only upon implementation of a system of refundable tax credits or other subsidies to help obtain health insurance coverage. AMA policy also supports using the tax structure to achieve compliance.

Medicaid expansion

The Medicaid provisions in the ACA significantly expand Medicaid eligibility. Beginning in 2014 or earlier if the state chooses, nonelderly, nonpregnant individuals with income below 133 percent of FPL will be newly eligible for Medicaid. The ACA also adds new mandatory benefits that states must cover. From 2014 to 2016, the federal government will cover 100 percent of the Medicaid costs of these newly eligible individuals, with the percentage dropping to 90 percent and the states covering the difference by 2020. AMA policy supports maintaining Medicaid as a safety net program and covering all individuals with incomes below the poverty level.

Constitutional challenges

Since its enactment, several lawsuits have been filed challenging the constitutionality of various provisions of the ACA. Although challenges to the law have deployed a wide range of constitutional arguments, the main questions are whether the individual mandate is a permissible exercise of congressional power under the commerce clause in Article 1 of the Constitution, whether the individual mandate (if ruled to be unconstitutional) can be “severed” from the rest of the ACA (leaving intact other provisions in the ACA), and whether the expansion of the Medicaid program under the ACA is “coercive” to states.

Summary of cases

Commonwealth of Virginia v. Sebelius (U.S. District Court, Eastern District of Virginia)
On Dec. 13, 2010, in the first ruling against the constitutionality of the individual health insurance mandate, Judge Henry Hudson held that the ACA’s mandate that all individuals must purchase health insurance or pay a penalty is unconstitutional. This ruling, however, is limited to Section 1501 of the ACA (the minimum essential coverage provision). And because the ACA does not include a severability provision (i.e., maintaining the rest of the statute when one provision is determined to be unconstitutional), he exercised his judicial discretion to sever Section 1501 from other provisions of the law. Judge Hudson also declined to issue an injunction blocking the entire law, noting that the mandate does not take effect until 2014, and that his ruling would most likely not be the final word on this issue. Further, Judge Hudson rejected the government’s claims that the ACA was valid under the Constitution’s “necessary and proper” clause, and that the penalty for failing t obtain health insurance is a tax that could be upheld under the “general welfare” clause. This case most likely will be appealed to the U.S. Court of Appeals for the Fourth Circuit.

State of Florida v. U.S. Department of Health and Human Services (U.S. District Court, Northern District of Florida)
This lawsuit was brought by 13 states (there are now 20 participating states and the National Federation of Independent Business) challenging the constitutionality of the individual health insurance mandate and the expansion of Medicaid. On Oct. 14, 2010, Judge Roger Vinson dismissed four of the six claims in the lawsuit. The two remaining claims involve the constitutionality of the individual mandate as an exercise of congressional authority to regulate interstate commerce and make laws “necessary and proper” for carrying out its powers, as well as the claim that expansion of the Medicaid program is coercive because it “coerces and commandeers” states to devote their limited financial resources to achieve federal aims, thereby violating the 10th Amendment to the Constitution. Oral arguments on the merits of the case, as well as motions for summary judgment from both sides, were heard on Dec. 16, 2010.

Thomas More Law Center v. Obama (U.S. District Court, Eastern District of Michigan)
On Oct. 7, 2010, Federal District Court Judge George Steeh dismissed this case, and found the individual mandate constitutional under the commerce clause. This case has been appealed to the U.S. Court of Appeals for the Sixth Circuit.

Liberty University, Inc. v. Geithner (U.S. District Court, Western District of Virginia)
On Nov. 30, 2010, Federal District Court Judge Norman Moon ruled that the requirement that most Americans obtain health insurance coverage falls within Congress’ authority to regulate interstate commerce. This case has been appealed to the U.S. Court of Appeals for the Fourth Circuit.

What happens next?

After the Courts of Appeals issue their rulings, it is widely expected that the constitutional challenges to the ACA ultimately will be determined by the U.S. Supreme Court, most likely this year or in 2012.

For more information

Visit the ACA litigation blog website for news, legal analysis and official documents related to ACA legal challenges.