Posts Tagged Patient Protection Act

Why is the Government Targeting the Most Charitable Physician Specialty?

Why is the Government Targeting the Most Charitable Physician Specialty?

I don’t get it.  I do not understand why the US government has decided to paint a target on the backs of physicians who, according to the AMA, provide more charity care than any other specialty, in a program that uses so-called hired gun auditors to recoup over-payments in Medicare’s fraud and abuse prevention strategy.  These are physicians who give away, on average, more than $140,000 a year in unreimbursed services to the poor and uninsured (4-10 times more than any other specialty), and serve a larger proportion of Medicaid and under-insured patients than the vast majority of other physicians.  These charitable physicians are willing to treat everyone, regardless of their insurance status or ability to pay, day or night, Sundays and holidays, whether the patients are upstanding citizens or the disheveled homeless.  These docs provide care to everyone who asks to be treated or comes to their door, even if they are intoxicated to near stupor, or ranting obscenities, or smell like a garbage dump, or shed deadly viruses in an epidemic, or are soaked in toxic chemicals released in an accidental spill or a terrorist attack.

None of these physicians are engaged in a criminal enterprise to cheat Medicare and the tax payers out of millions of dollars for care they never provided, or using stolen or purchased patient IDs to submit fake claims, or billing for tests not performed, or charging for equipment they never ordered.  In fact, these specialists work almost exclusively in hospitals that carefully screen their credentials, and in medical groups that have some of the most extensive claims coding and billing compliance programs in the health care industry.  Nonetheless, the government has selected these physicians for auditing under the Medicare Recovery Audit Contract (RAC) program by focusing on the evaluation and management (E&M) CPT codes that are used almost exclusively in claims submitted to Medicare by these specialists.  Other E&M and procedure codes are also being targeted for audits by these RACs, but these other codes are widely  used by many other physician specialties.

There is no question that fraud and false claims are a serious problem for Medicare, and cost taxpayers hundreds of millions of dollars every year.  For every $1 the government spends on these RACs, it gets back $40.  I am all in favor of dealing a heavy blow to those who try to cheat the system, provided the adjudication process is fair and the focus is on activities that are clearly in violation of the rules.  There are those who believe that hiring these private audit contractors on a contingency basis (based on the amount of overpayments they find) is like paying a bounty hunter to bring in a possible suspect dead or alive, especially since many claims that the RACs deem overpaid are frequently found to be ‘not guilty’ on appeal.   The rules that are applied to these claims are, unfortunately, not always clear and concise:  E&M coding in particular is about how sick the patient is, and how complicated or difficult the medical decisions are to make.  In other words, medical coding is an art, not a science, and using an auditor that is financially incentivized to interpret these rules in the most aggressive way, with the threat of big penalties and forfeitures, is like writing a law that stiffs you with a big fine for ‘parking too close to a fire hydrant’ without specifying how close is too close, or paining the curb red.

I don’t doubt that a few of these ‘charitable physicians’ stretch the coding rules a bit, or even overcharge for their services.  It happens, but it’s not the rule, by any means.   I have talked to quite a few of these particular specialists who have experienced RAC audits.  They usually consider themselves to be good at documenting their care, who employ careful and conscientious claims coders for their billing service.  They come away from the RAC audit experience angry, frustrated, baffled, fearful, indignant, and depressed.  These physicians don’t go out of their way to intentionally up-code their claims, or un-bundle them (charge separately for items that should be covered under a single charge), and they take pride in their willingness to treat patients few other physicians are willing to see, regardless of the patient’s ability to pay.   They are all overworked, sometimes underpaid, subject to stress burnout, and challenged by a seemingly impossible mission; and they do this for over 130 million patients in the US every year.  These docs just don’t understand why their government would go out of its way to paint a target on the backs of emergency physicians.

This post also appears in The Fickle Finger

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Missing Priority in ACEP’s Response to Health Reform

When I saw that ACEP had published on its website its proposed new priorities and tactics for addressing the provisions of the Patient Protection and Affordable Care Act of 2010, I read through this document with great interest. The health care reform act passed earlier this year contains a number of important edicts that will impact the practice of emergency medicine for years to come, and I was curious to see the strategies the ACEP Board of Directors had developed in response to this new set of laws, and the regulations that would eventually be hammered out to implement the Act.

I found that ACEP’s ‘High Priority Provisions’ document was cogent, well thought out, and pretty focused, considering the 2000 pages in the Act that had to be reviewed, screened for relevancy to emergency medicine, prioritized, and condensed into a set of strategies that would carry ACEP, its committees, and its lobbyists in D.C. forward for the next several years as health reform evolves. All of these strategies were referenced to the goals and objectives in ACEP’s larger strategic plan. As you would expect from a planning and strategy summary, there aren’t a lot of specifics in the priorities document; and these specifics will likely be spelled out in greater detail as each of the provisions of the Act are addressed in the coming regulations, and as each of the new concepts in health reform, like Accountable Care Organizations and bundled payments, evolve in the marketplace. As you may know, some of ACEP’s strategic goals and objectives, like coverage for emergency care in all health plans, prudent layperson, and the elimination of prior authorization, were in fact incorporated into the Act; and the strategy here will be to make sure that the regulations covering these patient protections are clear and enforceable, and eventually apply to all health plans, including those currently ‘grandfathered’. Other goals in ACEP’s strategic plan, like extending Federal Tort Claims Act liability protections to physicians providing EMTALA-related services, are not part of the Patient Protection Act per se, but they are clearly identified as a strategic priority for consideration in the regulations implementing liability reform in the Act. So, far, so good; the Board has produced a very credible piece of work.

Unfortunately, there is something important that is missing from ACEP’s high priority provisions document. This plan includes several strategies to address the provisions of the Act that address how emergency physicians will be paid for our services, and who will pay us, and how performance will be applied to these payments; but there is no strategy addressing HOW MUCH emergency physicians will be paid for the care we provide. You might be surprised to learn that the Patient Protection Act DOES include provisions that will be used to determine the value of an emergency physician’s services; but you probably would not be surprised to hear that you might not like these provisions very much. Specifically, the Act states that when a plan pays a non-contracted emergency physician, the amount paid must be the greater of a) what plans normally pay for non-contracted emergency physician services, or b) what plans normally pay for discounted, contracted emergency physician services, or c) the Medicare payment. Allow me to summarize: according to the Act, the commercial value of an emergency physician’s services will now (and possibly forever) be determined by the health plan.

You might say, so what? Why is this important to me as an emergency physician, especially if I am an employee of a hospital, or a salaried academician? The answer to these questions lies in the recognition that emergency medicine is not just a profession, it is also a livelihood, a thing that pays for the roof over your head, puts food on the table, and pays for your kid’s college tuition. Now I am pleased that for emergency physicians and for ACEP, our profession and the care of our patients comes before our reimbursement. That is part of our mission: to provide care for all regardless of their ability to pay. We cannot, however, recruit and retain qualified physicians into our EDs to fulfill that mission if we are not paid the fair value of our services, especially by commercial health plans. Here’s another truth that should be recognized: when something comes along that undermines the commercial value of an emergency physician’s services, like a balance billing prohibition in California, or a state regulation equating the value of an emergency physician’s service to a percentage of Medicare rates in Maryland; this doesn’t just affect what emergency physicians in those states get paid, it affects what all emergency physicians in every state get paid, whether they are fee-for-service contractors, or hospital employees, or salaried by a university. The provision in the Patient Protection Act that allows health plans to determine, unilaterally, the commercial value of a non-contracted emergency physician’s services will have DISASTROUS consequences for all emergency physicians in this country. These provisions in the Act completely undermine the concept that our usual, customary and reasonable charges, which are subject to many different market forces, should define the market value of our services.

I don’t know why this part of the health reform act was not specifically addressed in ACEP’s document outlining strategies for the High Priority Provisions of the Patient Protection and Affordable Care Act of 2010; but I think of this strategic plan as a living document, subject to ongoing modification, improvement, and expansion, as all good strategic plans must be. There are a lot of smart docs on ACEP’s Board who understand the importance of this issue. I am optimistic that the question of ‘how much’ our services will be valued, and the standards in the Act that will be used to determine this value, will soon become part of ACEP’s strategic considerations for health reform and the interim final rules that will soon become regulation. Our ability to fulfill our mission depends on it.


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