Rule Buried in Proposed Medicare Fee Schedule Could Have 'Chilling Effect'

Kerry Dooley Young

October 01, 2019

Medicare’s proposed 2020 fee schedule has a rule tucked into it that would revoke billing privileges when physicians are involved in state medical board actions, especially in connection with cases of harm to patients.

Medical groups are now protesting that rule, according to comments submitted by the September 27 deadline to the draft revisions of the fee schedule.  

While expressing sympathy with federal officials' stated goal of protecting the public, medical groups say the proposed Medicare policy could frighten physicians and other medical professionals from seeking help for addiction and mental health problems.

The Centers for Medicare & Medicaid Services (CMS) has not defined how its expulsion plan would work. Some medical groups say CMS' plan could derail the careers of clinicians who admitted to needing help without significantly aiding efforts to identify those posing greater risk to patients.

"We urge CMS to not finalize this ill-defined and overly broad proposal that could have a devastating impact on physicians, and to instead focus on ways to identify and discipline the truly bad actors," wrote David B. Hoyt, MD, executive director of the American College of Surgeons, in a September 26 comment to CMS.

Several groups, including the American Medical Association (AMA), also accused CMS of having buried this controversial plan within a section of the draft 2020 physician payment rule.

CMS tucked the bid for new authority to revoke Medicare billing privileges into a section of the draft rule that deals with opioid treatment, several major associations noted in their comments to the agency.

This gave the appearance that the proposed change would apply only to "high-risk" Medicare-enrolled opioid treatment programs, when in fact it could affect all clinicians, wrote James L. Madara, MD, AMA's chief executive.

"The CMS proposal is a broad overreach and the lack of deference to state medical boards and other oversight entities is troubling," he wrote in a September 24 comment to CMS.

In the draft rule, though, CMS says that the agency, "rather than state boards, is ultimately responsible for the administration of the Medicare program and the protection of its beneficiaries."

CMS said there could be situations "where a state oversight board has chosen to impose a relatively minor sanction on a physician or other eligible professional for conduct that we deem more serious.

"We accordingly believe that we should have the discretion to review such cases to determine whether, in the agency's view, the physician's or other eligible professional's conduct warrants revocation or denial," CMS said in the draft rule.

"Chilling Effect"

Physicians' groups argued that CMS does not have the legal grounds for its proposed expansion of revocation authority. They also said CMS' plan is at odds with efforts underway in many states to overcome stigma associated with the treatment of problems involving mental health and substance abuse.

"The proposal could have a chilling effect on clinician self-reporting behavior such as drug abuse or alcoholism to medical boards and create a disincentive for medical boards to discipline clinicians," owing to the serious consequences of being kicked out of the Medicare program, wrote Sunny Linnebur, PharmD, president of the American Geriatrics Society (AGS), and Nancy E. Lundebjerg, MPA, AGS' chief executive, in a comment to CMS.

The CMS proposal is at odds with the agency's own efforts to address physician burnout and suicide among medical professionals, wrote Hoyt of the American College of Surgeons.

At this time, state boards and medical groups are trying to reduce the hurdles that keep many people, including physicians, from seeking care for problems involving mental health and substance abuse. These groups want clinicians to feel confident about seeking help.

CMS' proposal could make clinicians feel they are in professional jeopardy if they do so, the groups said. Physicians might face devastating financial losses if they were to agree to abstain from drugs or alcohol and be subject to random drug testing simply to provide evidence that no addiction exists, according to Hoyt.

"CMS does not address the reality of the impact on a physician's practice of a denial or revocation to participate in Medicare," Hoyt wrote. "Such a revocation would lead to a mandated cross-termination of participation in Medicaid and most payers will also remove a physician from their provider network when CMS takes this action."

More Detail Needed

In a comment, the Federation of State Medical Boards (FSMB) pushed CMS for more clarity about its plan. FSMB asked the agency to articulate what specific conduct would be grounds for revocation of Medicare billing privileges or denial of enrollment; such grounds were not spelled out in detail in the draft rule.

Although CMS said it did not intend to act in cases in which a clinician faced a "very modest sanction," the agency did not explain what would constitute a modest sanction, FSMB said.

FSMB also questioned how CMS would decide which clinicians to expel. In making such decisions, state medical boards undertake detailed investigations, gather evidence, and then decide the outcome of each case. The draft 2020 physician payment rule leaves it unclear as to how CMS would approach this task, FSMB said.

The American Hospital Association (AHA) appeared more open than other groups to CMS' proposal. But it too raised questions about the broad outline the agency presented. CMS' draft rule suggests that minor disciplinary actions could lead to the revocation of billing privileges, the AHA said.

"Such revocations have the potential to lead to care access issues. For these reasons, we recommend that the agency further consult state licensure boards, medical professional groups and hospitals before finalizing its criteria to ensure they are applied in a fair, consistent fashion," the AHA stated.

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