Proposed CY 2010 Medicare Physician Fee Schedule and Other Part B Payments Rule
On July 1, 2009, CMS published its proposed changes to the Medicare Physician Fee Schedule ("MPFS") and other Part B payment policies for CY 2010 (CMS-1413-P). A pre-publication copy is available for review at the Office of the Federal Register, and the official version should be published in the Federal Register on July 13, 2009. CMS will accept comments until August 31, 2009. If adopted, the changes described below will generally become effective for services furnished on or after January 1, 2010.

Some of the key highlights include:

• Sustainable Growth Rate (SGR): Absent legislative action to forestall the SGR, CMS is projecting a resulting overall reduction to MPFS payment rates of -21.5 percent for CY 2010.
  
  
• Increase in Payment for Primary Care: CMS is proposing several changes to the MPFS intended to increase payment to general practitioners, family practitioners, internists, and geriatric specialists by between 6 and 8 percent. Among the proposed changes are: (1) discontinue payment for consultation codes, and redistribute savings into a higher rate for equivalent evaluation and management services; (2) increase payment rates for the "Welcome to Medicare" preventive care visit; and (3) update the malpractice expense relative value units (RVUs) used in the MPFS formula.
  
  
• Imaging Services: CMS is proposing to reduce payment for imaging services that require the use of expensive equipment (costing over $1 million), by increasing the assumed utilization rate from 50 to 90 percent for such equipment, for purposes of calculating the practice expense RVUs. In addition, CMS is proposing a new rule, at 42 C.F.R. § 414.68, to implement the statutory requirement that suppliers of the technical component of advanced imaging services (CT, MRI, PET, nuclear medicine) become accredited by an approved organization. As of July 1, 2012, accreditation would be a prerequisite to MPFS payment for all physician offices, independent diagnostic testing facilities, and mobile units generating a technical component, but would not be required for the professional component. CMS has yet to identify the approved accrediting organizations.
  
  
• E-Prescribing and Physician Quality Reporting Initiative (PQRI): CMS is proposing that professionals or group practices that meet the requirements of the E-Prescribing and PQRI programs in CY 2010 will be eligible for incentive payments under each program of up to 2.0 percent of their total estimated allowed charges for covered MPFS services provided during the reporting period, and is proposing to create more reporting options in an effort to simplify reporting. In addition, CMS proposes to add 22 new PQRI measures and 6 measure groups on which eligible entities may report, and to add an electronic health record (EHR)-based reporting mechanism. CMS also proposes to allow group practices to qualify for CY 2010 PQRI incentive payments based on the overall group practice's reporting, rather than at the individual reporter level. CMS states that it will issue separate rulemaking to address the definition of "meaningful users" of EHRs, as used in Title IV of the American Recovery and Reinvestment Act of 2009.
  
  
• Telehealth: CMS is proposing to restrict physicians and practitioners from using telehealth to furnish the periodic physician visits (reported under codes 99304-99306) required for skilled nursing facility (SNF) residents under § 483.40(c), which it interprets to require face-to-face contact. However, CMS is also proposing to revise § 42 C.F.R. 410.78 to specify that the codes for follow-up inpatient telehealth consultations (G0406-G0408) include telehealth consultations furnished to beneficiaries in hospitals and SNFs. Additionally CMS is proposing to include individual health and behavior assessment and intervention (HBAI) as a telehealth service, but not group- or family-with-patient HBAI. CMS rejected requests to add the following services to the list of Medicare telehealth services for CY 2010: critical care; initial and subsequent hospital care; group medical nutrition therapy; diabetes self management training; speech and language pathology services; and physical and occupational therapy services.
  
  
• Physician Signature on Requisitions, Orders: CMS is proposing to clarify that its requirement that requisitions need not contain a physician signature, so long as the intent to order the test is otherwise documented in the medical record, applies only to clinical diagnostic lab tests paid under the Clinical Laboratory Fee Schedule, not other diagnostic tests -- and applies only to requisition forms, not to orders. However, CMS also solicits public comment on this clarification, and its distinction between a requisition and an order, because of perceived widespread confusion in the industry.
  
  
• Stark/Self-Referral: CMS is proposing to clarify the "stand in the shoes" provisions of its Stark rules, under which a referring physician may by treated as standing in the shoes of his or her physician organization, by making clear that a physician that stands in the shoes of such an organization need not become a signatory to a written agreement between his or her physician organization and an entity furnishing designated health services, in order to fall within the exceptions requiring such a written agreement in 42 C.F.R. § 411.355 or 411.357. CMS is further proposing to clarify that the business generated "between the parties" in 42 C.F.R. § 411.354(c)(3)(i) is intended to reach any referrals and other business generated between the entity furnishing designated health services and the physician organization as a whole, which includes all of its members, employees, and independent contractor physicians.
  
  

In addition to the foregoing, CMS is proposing changes related to several coding issues; the competitive acquisition program (CAP); comprehensive outpatient rehabilitation facilities; durable medical equipment, prosthetics, orthotics and supplies; and certain provisions of the Medicare Improvements for Patients and Providers Act of 2008 (Pub. L. 110-275).

For further information, please contact Megan Grembowski (mgrembowski@bbllaw.com) or Jill Scott (jscott@bbllaw.com).