CHICAGO — At the American Academy of Orthotists and Prosthetists Annual Meeting and Scientific Symposium Bruce “Mac” McClellan, CPO, LPO, FISPO, FAAOP, presented an update on some of the legislative and reimbursement issues facing O&P practitioners.
CMS physician template
McClellan, immediate past president of the American Academy of Orthotists and Prosthetists (AAOP), discussed the Orthotic and Prosthetic Alliance’s response to Medicare’s proposed lower limb prosthesis electronic clinical template.
“CMS came up with a proposed template as a guide for physicians regarding information to be included in the medical record for what CMS considers to be appropriate documentation for lower limb prostheses. With appropriate physician documentation guidelines, we as practitioners should be less likely to be financially punished for physicians’ poor or missing documentation. However, the document they have proposed is very burdensome and long. Since it is sometimes difficult to get physicians to document just the appropriate K-level, adding additional information to the template that has little to do with establishing the K-level is problematic. As some people have put it, it seems to be a document that seeks to find ways to exclude people from getting prosthetic care, vs. including them.”
The Alliance specifically outlined its objections to the proposed template in a talking points memo:
Function: The proposed template over-emphasized the medical status of the patient rather than focusing on the current or functional potential of the patient.
Importance of prosthetists’ records: The template emphasizes the physician’s records as determinative of medical necessity of prosthetic limb care without any specific recognition of the clinical records of the prosthetist.
Physician burden: The extensive set of medical conditions that must be assessed and recorded by physicians prescribing lower limb prostheses will result in noncompliance by many physicians due to the template’s complexity and time intensity. With no additional physician reimbursement to serve as a motivator, delays in patient care can be expected at best and at worst, “prosthetists may have to repay Medicare for appropriately delivered prosthetic care when records outside of the prosthetists’ control are the only records considered relevant to the medical necessity determination.”
Extensive medical questions: The extensive sets of medical questions listed in the template seem to correlate the existence of certain comorbid conditions with patient ineligibility for prosthetic care.
Although CMS invited public comment through open forum calls, the calls did not meet the essentials of CMS’s own standards regarding the rules for public comment, McClellan said. The document was scheduled to be forwarded to the Office of the National Coordinator for Health Information Technology, where it would at some point potentially be integrated into the Electronic Submission of Medical Documentation (ESMD) system.
“I don’t know how long it would take ESMD to integrate it into the system. If and when they do, we are told its usage is going to be voluntary. But, if CMS decides to say it is mandatory, then it is mandatory.”
McClellan said the Alliance has worked with the Amputee Coalition to create a better template but it is “a work in progress.” This is an alternative template geared more toward functional considerations.
“If CMS is to proceed with using a template for lower limb prostheses, the template should be designed to allow both physicians and prosthetists to fill out key elements in their respective areas of expertise. In fact, by statute, the prosthetists’ notes are also a valid part of the medial record in determining medical necessity,” McClellan said.
The Alliance wrote a letter to the Office of Inspector General last Nov. 18 that addressed concerns that regional Medicare administrative contractors have not taken the necessary steps to prohibit CMS from paying unqualified providers who bill for O&P services.
“CMS says they have, but evaluation of CMS’s own documentation shows that they have not,” McClellan said.
“It was mandated in the Beneficiaries Improvements and Protection Act of 2000 in Section 427, that the secretary of the HHS would define what ‘qualified providers’ are, and thus identify who should provide and be reimbursed for O&P care. Thirteen years later, it is still not done,” McClellan said. “They have been ignoring the law. This is not a regulation, it is a statute.”
Another CMS statute, called Transmittal 656, requires only licensed practitioners and suppliers in licensure states be paid for O&P care. Currently fifteen states require licensure for O&P practitioners.
“This also has never been effectively enforced,” McClellan said.
“Licensure is important, and if we ever do get this strictly enforced, it will be great because we will be better protecting patients,” he said. “The Academy and AOPA (American Orthotic and Prosthetic Association) both support licensure.”
OTS, exploded orthotic codes
McClellan said coding for off-the-shelf (OTS) orthoses “has been a battle against CMS labeling things that clearly are above and beyond the expertise — or rather, lack of expertise — of a patient or unqualified person to fit to a patient. ‘Off-the-shelf’ is defined by congressional mandate. Orthotic devices identified as such can be put on independently by the patient with only minimal self-adjustment required.
McClellan was on a sub-committee of the Alliance that examined every orthotic L-code and from that list came up with only 22 codes that legitimately fell under the congressional definition of OTS. CMS disagreed with that assessment, because it redefined, by regulation, the definition of ‘off-the-shelf’, McClellan said.
“By changing the definition to include ‘others’ to assist in the fitting, they expanded the scope of devices to include 55 codes. Further, they have taken 23 of those devices and “exploded” them into two separate codes for each so they can be billed as either off-the-shelf or as professionally fit and modified. This has the potential to lead to confusion and other problems in the future. For example, if a physician writes a prescription for an OTS orthosis which is then determined by the certified orthotist at the time of fitting not to be sufficient to provide the intended outcome, how is this to be handled? Will the patient have to return to the physician for re-assessment? If the physician issues a new prescription for a more comprehensive device, will he then have to go back to his medical record and corroborate the change?”
McClellan said on Nov. 13, the Alliance sent a letter to CMS indicating that a CMS policy statement sent out in July 2013 regarding prosthetic covers and covering systems was inaccurate and unjustified. The notice stated that lower limb prosthetic covers (L5704-L5707) and protective covering systems (L5962, L5964 and L5966) should not be billed together for the same lower limb prosthesis.
“Apparently someone at CMS had made the incorrect determination that a custom shaped foam cover for an endoskeletal prosthesis was incompatible with having a prosthetic skin put over it,” McClellan said.
The notice stated that protective covering systems — prosthetic skins — were “specialized covers intended to be used in unusually harsh environmental situations” and shouldn’t be billed along with a cosmetically shaped foam covers except in rare cases.
The Alliance pointed out several things in the notice that were incorrect or inaccurate, McClellan said. The Alliance also requested a meeting via conference call with CMS officials, but received a response that said CMS had done a “thorough review of the development of the involved codes” and would not participate in a call.
“Unfortunately, this is demonstrative of CMS’s working relationship with most providers. It should be a symbiotic working relationship to the benefit of all, but it is not,” McClellan said.
RAC audits and appeals
Although McClellan and other O&P professionals recognize the legitimacy and necessity of audits, some object to the way they have been conducted.
“There are aspects of the audit process that are not fair,” McClellan said. “For example, when prosthetic practitioners are financially punished for something that is either missing or deficient in a physician’s medical record that is wrong.”
He acknowledged there may be practitioners in the field who will bill for more expensive devices strictly for reimbursement purposes. “However, for those of us who practice fairly and legitimately, the audit process should be fair, equitable and defensible. I don’t disagree with the premise of audits, just the unfair manner in which they have been done.”
McClellan also addressed the 24-month delay to bring a claims dispute to an administrative law judge (ALJ), with a projected 28-month wait. By law, he said, the maximum waiting period is 90 days.
“From 2010 to 2013, OMHA’s (Office of Medicare Hearings and Appeals) claims grew by 184%. Their backlog in just under 2 years grew from 92,000 claims to 460,000 claims. That is how far behind they are. This is a big problem. It is a violation of our rights to due process. Yet we are still expected to file an appeal to the ALJ within the 60-day deadline after the QIC [qualified independent contractor] has ruled. We’re being held to a standard while the government is not,” McClellan said.
“Unfortunately, the government thinks it doesn’t have to listen to us. But CMS does have a boss: Congress. Congress is the only institution with direct oversight over CMS. With that in mind, you need to get involved. Talk to your legislators and make them aware of problems we are having being dealt with equitably by our governmental agencies.”
McClellan also detailed some of the improvements to be made in the audit program. For instance, RAC auditors must wait 30 days to allow for discussion before sending the claim to the MAC [Medicare administrative contractor] for adjustment.
“Providers won’t have to choose between initiating a discussion and an appeal. RAC auditors must confirm receipt of discussion requests within 3 days,” McClellan said. “Prior to this, you had no idea if they got it.”
Also, RACs must wait until the second level of appeal is exhausted before they receive their contingency fee.
“It is unbelievable to me that they would have ever received anything upfront,” he said. “They have never seen the patient. The physician has seen the patient, the prosthetist has seen and treated the patient, yet there is a person at a computer who can override those two professionals and request a refund without due process having been served.”
On Feb. 18, CMS said it would pause RAC activity. McClellan said this was due, in part, to contractual changeovers.
“They are bidding out new contracts for qualified, independent contractors. This may take some time to complete. Meanwhile, the last day a RAC can send improper payment files to a Medicare administrative contractor for the purposes of adjustment is June 1. However, this does not reduce the provider’s financial liability for RAC identified overpayments. Also, instead of the RAC audits being done by the four independent regions, there is going to be one centralized RAC auditor system for hospice, home health and DME-POS, he said.
McClellan said through clean documentation and successful audit challenges, practices should, to some extent, be able to keep the RAC audits at bay.
“If you have a high rate of winning appeals against RAC audits, they are proposing that you will probably be looked at less stringently in the future,” he said. “People who have a low rate of winning appeals will continue to be scrutinized more carefully. So that is a good incentive to do business the right way and make sure your documentation is correct.” — by Carey Cowles
Disclosure: McClellan is immediate past president of the American Academy of Orthotists and Prosthetists.