Medicare Program: Payment Policies under the Physician Fee Schedule for CY 2011, Aug 2010
August 23, 2010
Donald M. Berwick, M.D
Centers for Medicare & Medicaid Services
Department of Health and Human Services
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 2011; Proposed Rule (CMS-1503-P)
Dear Dr. Berwick:
We are pleased to submit these comments on the proposed rule for Payment Policies under the Physician Fee Schedule for Calendar Year 2011 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) the elimination of the 5 percent mental health adjustment and the proposed rebasing of the Medicare Economic Index (MEI); (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. Elimination of the 5 Percent Mental Health Adjustment and Proposed Rebasing of the Medicare Economic Index (MEI)
We note that several important changes for CY 2011 are expected to lead to decreased payments for the services of geriatric psychiatrists in 2011. First, the 5 percent mental health adjustment that was initially established by section 138 of the Medicare Improvements for Patients and Providers Act (MIPPA) and subsequently extended by section 3107 of the Patient Protection and Affordable Care Act (ACA) will expire on December 31, 2011. While we would welcome the support of CMS for an extension of the 5 percent adjustment in future legislation, we acknowledge that CMS has no discretion to continue this adjustment in 2011. We raise this issue because it heightens our concern over the proposed Medicare Economic Index (MEI) rebasing that will lead to decreased payments in 2011.
As shown by the impact table in the proposed rule, 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 total allowed charges for the specialty of psychiatry by +1 percent and the total allowed charges for the specialty of geriatrics by +2 percent. These two specialties provide services comparable to those provided by the specialty of geriatric psychiatry and the positive impact of the proposed rule on the PE RVUs for services provided by these specialties can be expected to be positive for our specialty as well. Unfortunately, the MEI rebasing completely negates these positive changes. The impact of MEI rebasing is projected to be -3 percent and -2 percent for the specialties of psychiatry and geriatrics, respectively.
We note that CMS proposes to convene a technical advisory panel later this year to review all
aspects of the MEI, including the inputs, input weights, price-measurement proxies, and
productivity adjustment. The panel’s analysis and recommendations will be considered in future rule making to ensure that the MEI accurately and appropriately meets its intended statutory purpose. In light of the possibility that the MEI could be revised based on the advice of the technical advisory panel, we urge CMS to delay implementation of the MEI rebasing and any other MEI changes until the advice of the technical advisory panel is reviewed by CMS and recommendations for change, if any, are considered. We request that this be done through future rulemaking. In light of the pending work of the technical advisory panel, AAGP opposes rebasing the MEI in 2011.
2. Medicare Telehealth Services
Section 1834(m)(4)(F) of the Social Security Act defines telehealth services as professional consultations, office visits, office psychiatry services, and any additional service specified by the Secretary. For 2011, CMS proposes to add the following CPT codes for health and behavior assessment and intervention (HBAI) to the list of covered telehealth services:
• CPT code 96153 (Health and behavior intervention, each 15 minutes, face-to-face; group (2 or more patients))
• 96154 (Health and behavior intervention, each 15 minutes, face-to-face; family (with the patient present)).
When furnished as individual services, HBAI services are currently on the list of Medicare telehealth services. In the CY 2007 and CY 2010 PFS rulemaking cycles, CMS stated that group services such as HBAI could not be appropriately delivered through telehealth because the group dynamic was viewed as central to the core education and training components of these particular services. CMS continues to believe that is the case for group psychotherapy. However, upon further consideration, CMS now believes the group dynamic is not central to the core education and training components of HPAI services and proposes to identify them as covered telehealth services.
AAGP supports this proposal which should improve access to these services for Medicare beneficiaries in certain geographic areas such as rural health professional shortage area (HPSAs).
3. Consultation Services
For CY 2010, CMS eliminated the reporting of all CPT consultation codes and assigned 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. In the 2011proposed rule, CMS notes that clinical experience with this new PFS policy has been growing over the first 6 months of CY 2010. To improve future PFS payment accuracy, CMS seeks public comments on the perspectives of physicians and non-physician practitioners caring for Medicare beneficiaries under this current PFS coding and payment methodology.
Last year we strongly opposed the proposed elimination of the consultation codes. We were extremely disappointed that CMS implemented the proposal in the final rule. The experience of our members to date reaffirms our position that the elimination of the consultation codes was – and remains - inappropriate 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 confirmed 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 is confusing for physicians and an administrative burden on physicians and CMS contractors.
• CPT 2010 includes changes that further clarify the differences between consultations and visits, thereby eliminating one of the CMS reasons for no longer recognizing consultations.
• The proposal has not been implemented by other payers at the same time as CMS, further increasing the confusion and administrative burden on physicians and payers.
• The coding structure for visits and consultations that was first incorporated into CPT in 1992 remains in place today.
It is inappropriate to eliminate the use of consultation codes in the face of overwhelming evidence that visits and consultations are different services. AAGP requests that CMS restore the use of the consultation codes in 2011. If it is determined this cannot be done without first proposing this change from current policy, we request that CMS include the restoration of the use of consultation codes as a proposal in the proposed rule for 2012.
4. Issues Related to the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA)
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. This section of the proposed rule describes proposed changes to PQRI program, a number of which would implement provisions of the Patient Protection and Affordable Care Act (ACA). In particular, ACA extends PQRI incentive payments at 1.0 percent for 2011 and 0.5 percent for 2012 through 2014.
CMS proposes to use its authority to revise the criteria for satisfactorily reporting data on quality measures so that, for 2011, each measure reported using claims-based reporting must be reported for at least 50 percent of the eligible professional’s patients for whom services were provided during the reporting period. (The statute requires the proportion to be 80 percent, with discretion given to the Secretary for years after 2009 to revise the criteria in consultation with stakeholders and experts.)
In proposing the change, CMS states that although the 80 percent sample size is intended to prevent selective reporting to achieve higher performance rates, experience with claims-based reporting has revealed difficulties. In particular, CMS reports that its analysis of 2007 and 2007 PQRI experience found that failure to meet the 80 percent reporting requirement was a major reason that only half of EPs qualified for an incentive payment in those years. CMS believes that lowering the requirement will encourage greater participation in PQRI, and that it would still be difficult to selectively report under a 50 percent requirement because quality data codes must be submitted contemporaneously with the claim.
Consistent with the proposed change with respect to reporting of individual measures through claims, CMS also proposes to require a 50 percent sample for claims-based submission of measures groups. In addition, CMS proposes that for registry-based reporting of measures groups in 2011, the minimum patient numbers or percentages must be met by Medicare Part B fee-for-service patients exclusively. AAGP supports all these proposals.
For 2011, CMS proposes that the final PQRI quality measures will be selected primarily from the 2010 PQRI measures. CMS proposes to include a total of 198 measures (this includes both individual measures and measures that are part of a proposed 2011 measures group) on which individual EPs can report for the 2011 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 2011:
• 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 and Follow-Up Plan
Section 1848(m)(5)(G) of the Act requires the Secretary to post on the CMS website, in an easily understandable format, a list of the names of eligible professionals (or group practices) who satisfactorily submitted data on quality measures for the PQRI and the names of the eligible professionals (or group practices) who are successful electronic prescribers. In addition, section 10331(a)(1) of the ACA, requires the Secretary to develop a Physician Compare Internet website by January 1, 2011, on which information on physicians enrolled in the Medicare program and other eligible professionals who participate in the PQRI program would be posted.
To meet the ACA deadline of January 1, 2011, with respect to establishing the Physician Compare website, CMS proposes, for 2011 PQRI, to use the current Physician and Other Health Care Professional Directory as a foundation for the Physician Compare website. As in 2010 PQRI, CMS proposes to continue to make public the names of EPs and group practices that satisfactorily submit quality data for the 2011 PQRI. Previously, this was posted on the Physician and Other Health Care Professionals Directory. For the 2011 PQRI, CMS intends to post the information on the Physician Compare website that must be developed by January 1, 2011.
Specifically, CMS proposes to post the names of EPs and group practices that: (1) submit data on the 2011 PQRI quality measures through one of the reporting mechanisms available for the 2011 PQRI; (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 2011 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 eRx Incentive Program
For 2011, which is the third year of the eRx Incentive Program, successful electronic prescribers will be eligible for an incentive payment equal to 1.0 percent of the total estimated Medicare Part B PFS allowed charges. CMS notes that eRx incentive does not apply to an eligible professional who earns an incentive payment under the Medicare electronic health record (HER) incentive program which begins in 2011. The incentive payments for successful electronic prescribers for future years are authorized as follows:
• 1.0 percent for 2012.
• 0.5 percent for 2013.
Beginning in 2010, a negative PFS payment adjustment applies to those who are not successful electronic prescribers. Specifically, for 2012, 2013, and 2014, if the EP is not a successful electronic prescriber for the reporting period for the year, the PFS amount for covered professional services furnished by such professionals during the year shall be less than the PFS amount that would otherwise apply over the next several years by: 1.0 percent for 2012; 1.5 percent for 2013; and, 2.0 percent for 2014.
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 2010 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), Nursing facility services (99304-99316), Home visits (99341-99350) and Medication management (90862).
CMS proposes to retain the denominator codes used in 2010. CMS also proposes to retain what constitutes a “qualified” e-prescribing system (based upon certain required functionalities that the system can perform). AAGP supports these proposals.
The agency also proposes to retain the numerator G-code used in 2010, G8553 (At least 1 prescription created during the encounter was generated and transmitted electronically using a qualified electronic prescribing system). And, for 2011, CMS proposes to again consider successful e-prescribing to involve a minimum threshold of 25 times (patient encounters) during which at least 1 prescription was generated using a qualified e-prescribing system. CMS also proposes to retain the current policy limiting e-prescribing incentive payments to professionals having Medicare Part B allowed charges for covered professional services to which the e-prescribing measure applies (that is, the denominator codes) of 10 percent or more of the total Medicare Part B physician fee schedule allowed charges for all covered professional services furnished by the EP during the reporting period. AAGP supports these proposals.
5. Issue Related to the Patient Protection and Affordable Care Act (ACA): Medicare Coverage of Annual Wellness Visit Providing a Personalized Prevention Plan
Section 4103 of the ACA provides for coverage of an annual wellness visit, which includes and/or takes into account a health risk assessment (HRA), and creates a personalized prevention plan for beneficiaries, subject to certain eligibility and other limitations. Section 4103 of the ACA also requires the identification of elements that must be provided to a beneficiary as part of the first visit for personalized prevention plan services and requires the establishment of a yearly schedule for appropriate provision of such elements thereafter.
CMS proposes that the first annual wellness visit include the following:
• Establishment of the individual’s medical and family history;
• Establishment of a list of current providers and suppliers that are regularly involved in providing medical care to the individual;
• Measurement of the individual’s height, weight, body mass index (or waist circumference, if appropriate), blood pressure, and other routine measurements as deemed appropriate, based on the individual’s medical and family history;
• Detection of any cognitive impairment;
• Review of the individual’s risk factors for depression, based on the use of an appropriate screening instrument;
• Review of the individual’s functional ability and level of safety;
• Establishment of a written screening schedule for the next 5 to 10 years and a list of risk factors and conditions for which primary, secondary or tertiary interventions are recommended or underway, and a list of treatment options and their associated risks and benefits;
• Furnishing of personalized health advice and a referral, as appropriate, to health education or preventive counseling services or programs; and
• Any other element determined appropriate by the Secretary through the National Coverage Determination process.
With respect to this new benefit, CMS proposes to define several terms, including “detection of any cognitive impairment” which, for the purpose of this new benefit, is defined as an “assessment of an individual’s cognitive function by direct observation, with due consideration of information obtained by way of patient report, concerns raised by family members, friends, caretakers, or others.”
Although this new “wellness” benefit typically will be provided by primary care practitioners, we would like to comment on this proposed definition in the interest of maximizing the clinical benefits of this new Medicare-covered service. We are concerned that a requirement for unstructured observation will be insufficient to identify readily treated cognitive problems, such as those caused by medications, nutritional deficiencies or thyroid problems. And, while there is currently no cure for Alzheimer’s disease or related dementias, early identification has significant benefits.
Consistent with the proposed requirement related to depression, we recommend the use of an appropriate screening instrument for the detection of any cognitive impairment. AAGP recommends that the proposed definition for the detection of any cognitive impairment be revised as follows with proposed new text underlined and in italics:
§410.15 Annual wellness visits providing Personalized Prevention Plan Services:
Conditions for and limitations on coverage.
Detection of any cognitive impairment, for the purpose of this section, means assessment of an individual’s cognitive function by direct observation, with due consideration of information obtained by way of patient report, concerns raised by family members, friends, caretakers or others and the use of an appropriate screening instrument, which the health professional may select from various available standardized screening tests designed for this purpose and recognized by national medical professional organizations.
As noted above, CMS proposes that the first annual wellness visit include a review of the individual’s risk factors for depression, based on the use of an appropriate screening instrument. We strongly support this proposal. However, based on a review of the medical literature and the USPSTF recommendations that indicate that the optimum frequency for those services is unknown, CMS concludes that it would be premature and beyond the current evidence to require that they be included in the definition of subsequent visits.
AAGP disagrees with this conclusion. The fact that the optimum frequency for depression screening is not known is an insufficient basis for excluding such screening from subsequent visits. The statute limits subsequent visits to no more than one per year. In the geriatric population, the risk of change over a 12 month period is not insignificant. Consequently, we recommend that CMS revise the proposed regulations for subsequent visits at § 410.15 to match the same requirement related to depression that is specified for the initial visit. Specifically, we recommend that the regulations for the subsequent visit include the following language:
Review of the individual’s potential (risk factors) for depression, including current or past experiences with depression or other mood disorders, based on the use of an appropriate screening instrument for persons without a current diagnosis of depression, which the health professional may select from various available standardized screening tests designed for this purpose and recognized by national medical professional organizations.
6. The CY 2010 Update and the Sustainable Growth Rate (SGR)
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 more than 26 percent in 2011 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.
We were pleased by the CMS decision to revise the definition of physicians’ services for purposes of the SGR in the 2010 physician fee schedule. CMS concluded that the statute provided the Secretary with the discretion to exclude physician-administered drugs from the definition of “physicians’ services.”
It is clear that the cost of eliminating the flawed SGR formula has led to the recent legislation that temporarily blocks the implementation of reduced updates. Unfortunately, every delay in eliminating the flawed formula leads to even more negative updates when the temporary “fix” expires. In 2010, the problem has been especially severe and unless Congress acts soon, significant payment cuts will go into effect on December 1, 2010.
To reduce the cost of eliminating the SGR formula, we believe CMS should take additional administrative actions similar to the 2010 decision to exclude physician-administered drugs from the definition of “physicians’ services.” We recommend that CMS convene a meeting of stakeholders to identify reasonable and appropriate administrative changes that could be implemented as soon as possible. The goal of eliminating the flawed SGR formula will not be met without a commitment by CMS to reduce administratively the cost of a legislative fix.
In response to the CMS request for comments on the 2011 proposed rule for the Medicare physician fee schedule, AAGP has made the following points:
• We oppose the proposed rebasing of the MEI in 2011;
• We support the addition of the CPT codes for group health and behavior assessment and intervention (HBAI) to the list of covered telehealth services;
• We continue to oppose the elimination of the consultation codes and request that their use by restored as soon as possible;
• We support the 2011 proposals for the PQRI program and the proposals for electronic prescribing. For both PQRI and e-prescribing, we urge caution in the implementation of the public reporting program;
• We request a revision of the proposed definition of the “detection of any cognitive impairment” under the new annual wellness visit established by section 4103 of ACA to require the use of an appropriate screening instrument; and,
• We remain concerned about the flawed SGR formula and the possibility of a -26 percent update in 2011 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. We recommend that CMS convene a meeting of stakeholders to identify reasonable and appropriate administrative changes that could reduce the cost of permanently eliminating the flawed SGR formula through legislation.
Thank you for this opportunity to comment on the proposed rule.
Christine M. deVries
Chief Executive Officer/Executive Vice President