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Medicare Program; Payment Policies under the Physician Fee Schedule, August 2009

August 27, 2009

Ms. Charlene M. Frizzera
Acting Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS–1413–P
Room 445–G, Hubert H. Humphrey Building
200 Independence Avenue, SW.
Washington, DC 20201

Re: Medicare Program; Payment Policies under the Physician Fee Schedule and Other Part B Payment Policies for CY 2010; Proposed Rule (CMS–1413–P)

Dear Ms. Frizzera:

We are pleased to submit these comments on the proposed rule for Payment Policies under the Physician Fee Schedule for Calendar Year 2010 on behalf of the American Association for Geriatric Psychiatry (AAGP). The AAGP is a professional membership organization dedicated to promoting the mental health and well-being of older people and improving the care of those with late-life mental disorders. Our membership consists of more than 2,000 geriatric psychiatrists as well as other health care professionals who focus on the mental health problems faced by senior citizens.

Our comments focus on issues related to: (1) improved payments for services of psychiatrists; (2) Medicare telehealth services; (3) consultation services; (4) issues related to the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), including the elimination of discriminatory copayment rates for Medicare outpatient psychiatric services, the Physician Quality Reporting Initiative (PQRI) and incentives for electronic prescribing; and, (5) the CY 2010 update and the Sustainable Growth Rate (SGR).

1. Improved Payments for Services of Psychiatrists

We note that several important changes for CY 2010 are expected to lead to increased payments of + 3 percent for the specialty of psychiatry and +8 percent for the specialty of geriatrics. These two specialties provide services comparable to those provided by the specialty of geriatric psychiatry and the positive impact of the proposed rule on these specialties can be expected to be positive for our specialty as well.

First, the continued transition to fully implemented practice expense relative value units (PE RVUs) under the CMS “bottom-up” methodology and the use of new PE per hour data collected through the AMA’s Physician Practice
Information Survey (PPIS) is projected to increase the practice expense RVUs assigned to many of the services we commonly provide. The PPIS is a multispecialty, nationally representative, PE survey of both physician and NPPs that used a consistent survey instrument and methods highly consistent with those used for the predecessor survey (the AMA’s Socioeconomic Monitoring System survey) and supplemental surveys for selected specialties. We agree with CMS that the PPIS is the most comprehensive source of PE survey information available to date and we support its use.

Second, updated resource-based malpractice RVUs for many of the services we commonly provide are also projected to increase. For the CY 2010 fee schedule, CMS proposes to use: (1) CY 2006 and CY2007 malpractice premium data from 49 States and the District of Columbia for all physician specialties represented by major insurance providers; (2) CY 2008 Medicare payment data on allowed services and charges; and, (3) CY 2008 geographic adjustment data for malpractice premiums. In addition, CMS proposes to use the malpractice premium rates of medical physicists as a proxy (in the absence of actual premium data) to develop malpractice RVUs for technical component services and other services with no physician work. This approach is more realistic than the current charge-based malpractice RVUs or the use of crosswalks to the malpractice premium data of physician specialties. We support the proposed changes to the malpractice RVUs.

While we support the proposed changes, we are concerned that the improvements in payments can be attributed to overall increased payments for E/M services (codes 99201-99499) while overall payments for psychiatric services (codes 90801-90899) are decreased. Our analysis indicates that the overall decreases in payments for psychiatric services are largely due to the elimination of the 5 percent mental health adjustment for selected “Psychiatry” CPT codes that is required by Section 138 of the Medicare Improvements for Patients and Providers Act (MIPPA) 2008. This provision is effective July 1, 2008 until December 31, 2009. This section of MIPPA is not discussed in the proposed rule and physicians who provide the selected “Psychiatry” CPT codes may not understand that much of the reduction in payments they might see in 2010 for these services will be due to the loss of this mental health adjustment that will sunset on December 31, 2009. We would appreciate a brief discussion of this issue in the final rule.

2. Medicare Telehealth Services

Section 149 of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) added Skilled Nursing Facilities (SNFs) as telehealth originating sites effective for services furnished on or after January 1, 2009. In light of this provision, CMS received requests to add nursing facility care codes to the list of telehealth services for CY 2009. In the proposed rule for 2010, CMS rejects the requests to add nursing facility services to the list of telehealth services. The principal reasons for rejection are related to CMS concerns regarding: (1) the quality of life and the quality of care provided to residents of nursing homes and (2) existing regulations at 42 CFR Part 483 that require direct personal contact between the resident and the physician or qualified NPP.

However, for CY 2010, CMS proposes to revise §410.78 to specify that the G-codes for follow-up inpatient telehealth consultations (as described by HCPCS codes G0406 through G0408) include follow-up telehealth consultations furnished to beneficiaries in hospitals and SNFs. The HCPCS codes will designate these services as follow-up consultations provided via telehealth, and not subsequent nursing facility care used for E/M visits. AAGP supports this proposal.

3. Consultation Services

CMS proposes to no longer recognize the billing codes for consultation services (except for telehealth consultations). CMS proposes to assign the work RVUs that were allotted to these services to the work RVUs for new and established office visit services, initial hospital visits, and initial nursing facility visits.

This proposed change would be implemented in a budget neutral manner, meaning it would not increase or decrease PFS expenditures. CMS would make this change budget neutral for the work RVUs by increasing the work RVUs for new and established office visits by approximately 6 percent to reflect the elimination of the office consultation codes and by increasing the work RVUs for initial hospital and facility visits by approximately 2 percent to reflect the elimination of the facility consultation codes. CMS crosswalked the utilization for the office consultation codes into the office visits and the utilization of the hospital and facility consultation codes into the initial hospital and facility visits.

Physicians would bill an initial hospital care or initial nursing facility care code for their first visit during a patient’s admission to the hospital or nursing facility in lieu of the consultation codes these physicians may have previously reported. Because of an existing CPT coding rule and current Medicare payment policy regarding the admitting physician, CMS would create a modifier to identify the admitting physician of record for hospital inpatient and nursing facility admissions. For operational purposes, this modifier would distinguish the admitting physician of record who oversees the patient’s care from other physicians who may be furnishing specialty care. Subsequent care visits would be reported as subsequent hospital care codes and subsequent nursing facility care codes.

We oppose this proposal for the following reasons:

* It is contrary to the principles of a resource-based fee schedule. The original Harvard RBRVS study, refinement panels convened by CMS (at that time, the Health Care Financing Administration) and 5-year reviews in 1997 and 2007 all confirm that the work of consultations is not similar to the work of hospital and office visits. For example, the highest level of inpatient consultation (99255) has work RVUs of 4.00 and a typical time of 110 minutes while the highest level of inpatient hospital care (99233) has work RVUs of 3.78 and a typical time of 70 minutes. It is inappropriate for CMS to assume that the work and times of these services are similar.

* The elimination of the consultation codes will be confusing for physicians and an administrative burden on physicians and CMS contractors.

* CPT 2010 will include changes to further clarify the differences between consultations and visits, thereby eliminating one of the CMS reasons for proposing to no longer recognize consultations.

* The proposal will not be implemented by other payers at the same time as CMS, further increasing the confusion and administrative burden on physicians and payers.

* It may be a violation of section 1848(c)(5) of the legislation that established the physician fee schedule. This provision states:

Coding.-—The Secretary shall establish a uniform procedure coding system for the coding of all physicians' services. The Secretary shall provide for an appropriate coding structure for visits and consultations. The Secretary may incorporate the use of time in the coding for visits and consultations. The Secretary, in establishing such coding system, shall consult with the Physician Payment Review Commission and other organizations representing physicians.

CMS implemented this provision by accepting the coding structure for visits and consultations that was first incorporated into CPT in 1992 and that remains in place today. It is inappropriate to eliminate the consultation codes in the face of overwhelming evidence that visits and consultations are different services.

4. Issues Related to the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA)

Section 102: Elimination of Discriminatory Copayment Rates for Medicare Outpatient Psychiatric Services

Prior to the enactment of the MIPPA, section 1833 (c) of the Act provided that for expenses incurred in any calendar year in connection with the treatment of mental, psychoneurotic, and personality disorders of an individual who is not an inpatient of a hospital, only 62.5 percent of such expenses are considered to be incurred under Medicare Part B when determining the amount of payment and application of the Part B deductible in any calendar year. This provision is known as the outpatient mental health treatment limitation, and has resulted in Medicare paying only 50 percent of the approved amount for outpatient mental health treatment, rather than the 80 percent that is paid for most other outpatient services.

Section 102 of the MIPPA amends the statute to phase out the limitation on recognition of expenses incurred for outpatient mental health treatment, which will result in an increase in the Medicare Part B payment for outpatient mental health services to 80 percent by CY 2014. For CY 2010, section 102 of the MIPPA provides that Medicare will recognize 68.75 percent of expenses incurred for outpatient mental health treatment, which translates to a payment of 55 percent of the Medicare-approved amount. Section 102 of the MIPPA specifies that the phase out of the limitation will be implemented as shown in Table 9 of the proposed rule which is copied below (provided that the patient has satisfied his or her deductible).

TABLE 9: Implementation of Section 102 of the MIPPA









Calendar year Recognized Incurred Expenses Patient Pays Medicare Pays
CY 2009 and prior calendar years 62.50% 50% 50%
CY 2010 and CY 2011 68.75% 45% 55%
CY 2012 75.00% 40% 60%
CY 2013 81.25% 35% 65%
CY 2014 100.00% 20% 80%


At present, §410.155(c) of the regulations includes examples to illustrate application of the current limitation. CMS proposes to remove these examples from the regulations and, instead, to provide examples in this proposed rule, in the Medicare manual, and under provider education materials as needed. AAGP strongly supports this proposal and we appreciate the efforts of CMS to implement this important statutory provision in a timely fashion. We are prepared to work with CMS and other stakeholders to provide appropriate provider and patient education materials.

Sec. 131(b): Physician Payment, Efficiency, and Quality Improvements - Physician Quality Reporting Initiative (PQRI)

AAGP strongly supports the efforts of CMS to improve the quality of care provided to Medicare beneficiaries. For 2010, CMS proposes to provide an incentive payment equal to 2.0 percent of the estimated total allowed charges (based on claims submitted not later than 2 months after the end of the reporting period) for all covered professional services furnished during the reporting period for 2010. Eligible professionals who meet the proposed alternative criteria for satisfactorily reporting for registry-based reporting and for reporting measures groups for the proposed 2010 alternative reporting periods would also be eligible to earn an incentive payment equal to 2.0 percent of the estimated total Medicare Part B PFS allowed charges. Beginning with the 2010 PQRI, group practices who satisfactorily submit data on quality measures also would be eligible to earn an incentive payment equal to 2.0 percent of the estimated total allowed charges for all covered professional services furnished by the group practice during the applicable reporting period. We support all of these proposals.

For 2010, CMS proposes that final PQRI quality measures will be selected from 153 of the 2009 PQRI measures and 149 measure suggestions received in response to the February 2009 invitation to submit suggestions for measures and measures groups for possible inclusion in the 2010 PQRI. CMS proposes to include a total of 168 measures (this includes both individual measures and those that are part of a proposed 2010 measures group) on which individual eligible professionals can report for the 2010 PQRI. AAGP supports the general approach proposed by CMS. We specifically support the four mental health care measures listed below that will continue to be included on the list of measures for CY 2010:

* Major Depressive Disorder (MDD): Antidepressant Medication During Acute Phase for Patients with MDD

* Major Depressive Disorder (MDD): Diagnostic Evaluation

* Major Depressive Disorder (MDD): Suicide Risk Assessment

* Screening for Clinical Depression

As required by section 1848(m)(5)(G), CMS intends to make public the names of eligible professionals and group practices that satisfactorily submit quality data for the 2010 PQRI on the Physician and Other Health Care Professionals Directory. CMS proposes to post the names of eligible professionals and group practices who: (1) submit data on the 2010 PQRI quality measures through one of the reporting mechanisms; (2) meet one of the proposed satisfactory reporting criteria of individual measures or measures groups; and (3) qualify to earn a PQRI incentive payment for covered professional services furnished during the applicable 2010 PQRI reporting period.

We recognize that public reporting is required by statute but we continue to have serious reservations about the release of individual physician data, primarily because the program is still in the early stages of implementation and there is a lack of data on the impact of the PQRI on quality of care and health outcomes. We encourage a cautious approach that would engage all stakeholders in the development and evaluation of a valid and reliable public reporting system. AAGP would be pleased to join CMS and other stakeholders in addressing these and other critical quality-related issues in the future.

Section 132: Incentives for Electronic Prescribing (E-Prescribing) – The E-Prescribing Incentive Program

For 2010, which is the second year of the E-Prescribing Incentive Program, “successful electronic prescribers” will be eligible for an incentive payment equal to 2.0 percent of the total estimated allowed charges for all covered professional services furnished during the 2010 reporting period. CMS proposes the 2010 E-Prescribing Incentive Program reporting period will be the entire year (January 1, 2010 – December 31, 2010).

Electronic prescribing measure

The electronic prescribing measure has 2 basic elements. These include: (1) a reporting denominator that defines the circumstances when the measure is reportable; and (2) a reporting numerator. The 2009 denominator codes are limited to the following codes: Psychiatric diagnostic exams (90801-90802), Psychotherapy (90804-90809), Eye exams (92002-92014), Health and behavioral assessments (96150-96152), Office visits (99201-99215), Office consults (99241-99245), Breast/pelvic screening exam (G0101) and Diabetes self-management training (G0108-G0109). CMS proposes to add Nursing facility services (99304-99316), Home visits (99341-99350) and Medication management (90862) for CY 2010.

We support the inclusion of the psychiatric diagnostic exams (90801-90802) on the list of denominator codes. Code 90801 describes a psychiatric diagnostic interview examination while code 90802 describes an interactive psychiatric diagnostic interview examination using play equipment, physical devices, language interpreter, or other mechanisms of communication. CPT includes a parallel structure for psychotherapy with 6 codes for psychotherapy (codes 90804-90809) and 6 codes for interactive psychotherapy using play equipment, physical devices, language interpreter, or other mechanisms of non-verbal communication (codes 90810-90815). Consistent with the decision to include the interactive diagnostic interview on the list of denominator codes, CMS should also include the interactive psychotherapy codes on the list.

We recommend that codes 90810 through 90815 be added to the list of denominator codes for the electronic prescribing measure.

In CY 2009, to report an applicable case where one of the denominator codes is billed for Part B services, an eligible professional must report one of 3 G-codes specified in the electronic prescribing measure. Currently, the G-codes are the following: One G-code is used to report that all prescriptions in connection with the visit billed were electronically prescribed (G8443); Another G-code indicates that no prescriptions were generated during the visit (G8445); and a third G-code is used when some or all prescriptions were written or phoned in due to patient request, State or Federal law, the pharmacy’s system being unable to receive the data electronically or because the prescription was for a narcotic or other controlled substance (G8446).

To simplify reporting of the measure for 2010, CMS proposes to modify the first G-code (G8443) to indicate that at least 1 prescription in connection with the visit billed was electronically prescribed. In addition, CMS proposes to eliminate the 2 remaining G-codes from the measure’s numerator: G8445; and G8446. AAGP supports this proposal.

“Successful electronic prescriber”

For CY 2010, CMS proposes to revise the criteria for successful reporting of the electronic prescribing measure. Currently, the determination of a successful electronic prescriber is based on the eligible professional’s reporting of the electronic prescribing measure in at least 50 percent of applicable cases. CMS proposes that an eligible professional would be required to report that at least one prescription for a Medicare Part B FFS patient created during an encounter that is represented by one of the codes in the denominator of the electronic prescribing measure was generated using a qualified e-prescribing system for at least 25 times during the 2010 reporting period. AAGP supports this proposal.

5. The CY 2010 Update and the Sustainable Growth Rate (SGR)

Since 1999, PFS rates have been updated under the sustainable growth rate (SGR) system. The general concept under the SGR system is that growth in total expenditures for physicians’ services should be limited to sustainable levels. If expenditures exceed a statutorily determined percentage increase amount, the PFS update for the following year is reduced. If expenditures are less than the percentage increase amount, the PFS update is increased in the following year. The SGR is also a cumulative system. The update is adjusted based on a comparison of cumulative actual spending to target spending from a base period through the current year. Thus, if spending exceeds the target in a single year, the following year’s update must be adjusted to reduce annual expenditures, as well as recoup the difference between target and actual spending in the prior year.

Despite the intended incentives, actual spending under the SGR system has deviated significantly from target spending. In a March 1, 2009 letter from CMS to the MedPAC, CMS estimated the difference between cumulative target and actual spending from the 1996/1997 base year through December 2009 at $69.7 billion. CMS estimated the PFS update would be -21.5 percent for CY 2010.

We continue to be deeply concerned about the impact of the sustainable growth rate (SGR) formula on payments for psychiatric services under the fee schedule. There is no question that a cut of 21.5 percent would adversely affect the quality of care and beneficiary access to physicians’ services. For our members who care for a significant number of patients over age 65, the flawed SGR formula threatens the financial viability of many of their practices. Current payment rates already fail to recognize adequately the added costs of caring for a frail population with multiple chronic conditions and the additional time that must be given to family members and care givers.

While we do not have evidence of a significant increase in the number of psychiatric practices that have placed limits on new Medicare patients, our members are especially vulnerable to these limitations. We do know that a number of geriatric psychiatry practices are near bankruptcy or have been forced to close. Many other geriatric psychiatrists are actively re-evaluating the financial feasibility of maintaining their geriatric practice. At a time when there is growing evidence of undiagnosed and untreated mental illness in the senior population, the SGR formula will erode access to mental health care for growing numbers of elderly and disabled beneficiaries.

To address these problems, we support the provisions of proposed H.R. 3200 – America’s Affordable Health Choices Act of 2009 that would:

* repeal the SGR and provide an MEI update for 2010 instead of a 21.5% cut;

* eliminate all SGR debt accumulated after years of temporary, unfunded fixes;

* establish two new expenditure targets with significantly higher utilization growth allowances than the SGR;

* exclude the cost of physician-administered drugs and laboratory services from the new targets; and,

* re-set the new targets after five years to help reduce the likelihood of future steep cuts under the new targets.

We were pleased to note the CMS proposal to revise the definition of physicians’ services for purposes of the SGR in the 2010 proposed rule for the physician fee schedule. Under the Medicare Volume Performance Standard (the predecessor to the SGR system), CMS defined “physicians’ services” to include physician-administered drugs. Such drugs have remained under the SGR ever since. At the time CMS made the decision to include physician-administered drugs in the definition of “physicians’ services” used to compute the SGR, these drugs represented a much smaller volume of Medicare spending than they have in subsequent years.

Historically, growth in the cost of prescription drugs has far outpaced growth in the cost of other physicians’ services. For example, from the 1st quarter of 1997 through the 1st quarter of 2005, the average annual growth in Medicare spending on drugs included in the SGR was 22 percent compared to 6 percent for all services (including drugs) included in the SGR. As a result, prescription drugs have accounted for an increasingly disproportionate amount of the growth in spending on physicians’ services.

Given the significant and disproportionate impact that the inclusion of drugs has had on the SGR system, CMS now believes it would be appropriate to revise the definition of physicians’ services for purposes of the SGR. CMS concludes that the statute provides the Secretary with clear discretion to decide whether physician-administered drugs should be included or excluded from the definition of “physicians’ services.” As the statute affords the Secretary discretion, CMS proposes, in anticipation of enactment of legislation to provide fundamental reforms to Medicare physician payments, to remove physician-administered drugs from the definition of “physicians’ services” for purposes of computing the SGR and levels of allowed expenditures and actual expenditures in all future years. Moreover, given the past effect of spending growth for physician-administered drugs on future PFS updates, in order to effectuate fully the Secretary’s policy decision to remove drugs from the definition of “physicians’ services” CMS also proposes to remove drugs from the calculation of allowed and actual expenditures for all prior years. We applaud CMS for this proposal and offer our strong support.

Conclusion

We support the proposed increases in practice expense and malpractice expense RVUs in CY 2010 for services commonly provided by psychiatrists. However, we request clarification in the final rule that decreased payments for some psychiatric services in 2010 will be due to the elimination of the 5 percent mental health adjustment that was put in place by section 138 of MIPPA but restricted to the period July 1, 2008 - December 31, 2009.

We support the proposal to clarify in regulation that the G-codes for follow-up inpatient telehealth consultations (as described by HCPCS codes G0406 through G0408) include follow-up telehealth consultations furnished to beneficiaries in hospitals and SNFs. We strongly oppose the proposal to eliminate the consultation codes which we view as a violation of the principles of a resource-based payment system.

Regarding issues related to the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), we support the CMS plans for the elimination of discriminatory copayment rates for Medicare outpatient psychiatric services, the proposals for the PQRI program and the proposals for electronic prescribing. We recommend the inclusion of interactive psychotherapy codes on the list of denominator codes for implementing the electronic prescribing measure. For both PQRI and e-prescribing, we urge caution in the implementation of the public reporting program.

We remain concerned about the flawed SGR formula and the possibility of a -21.5 percent update in 2010 if legislation is not passed to correct this problem. A reduction of this magnitude would be incompatible with continued access to the services of geriatric psychiatrists by Medicare beneficiaries. However, we acknowledge and appreciate the efforts of CMS to increase the likelihood for passage of legislation through the proposal to remove physician-administered drugs from the definition of “physicians’ services” for purposes of computing the SGR and levels of allowed expenditures and actual expenditures in all future years.

Thank you for this opportunity to comment on the proposed rule.

Sincerely,

Christine M. deVries
Chief Executive Officer
and Executive Vice President

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