On February 11, 2014, the Chair of the Workers’ Compensation Board (Board) adopted amendments to the regulations governing the conduct and reporting of Independent Medical Examinations (IMEs) (12 NYCRR §300.2). The amended regulation became effective on February 26, 2014.

This Subject Number highlights the significant changes contained in the amended regulation. The complete text of the amended regulation is located on the Board’s website under Laws, Regulations and Decisions.

Notices, Provision of Information, and Requests for Information

Service of Notices by Overnight Mail: Notice of the scheduled IME may be made using overnight mail as long as the notice is received by the claimant at least seven days prior to the scheduled examination.

Provision of Information: A new requirement has been added to the regulation that requires that every record, document, or test result supplied to an IME examiner for review in connection with an IME or records review must be a part of the Board file. Any information that is not already part of the Board file must be submitted before or at the time the IME or records review is arranged. Information submitted to the Board before or at the time the IME is arranged should not be submitted to the Board as a Request for Information using an IME-3.

Note: The submitting IME examiner must list all documents, reports, and other items reviewed in the IME or records review report.

Requests for Information: An IME-3 must be submitted to the Board when the provider receives any substantive communication regarding the claimant. An IME-3 shall not include documents, records, and items that are part of the Board file.

Reports of Examinations without Physical Examination or Records Reviews

A records review conducted by a medical provider without physically examining the claimant must be completed by a medical provider authorized to treat workers’ compensation claimants or authorized to conduct IMEs, or “qualified” within the meaning of 12 NYCRR §300.2 (b)(9). A medical provider that completes a records review must adhere to the rules governing IME reports at 12 NYCRR §300.2 (d)(4) including certifying the contents of the report and listing every document, record, or item reviewed in connection with the records review. A report of a records review must be submitted to all parties and the Board at least three business days before the hearing where it will be referenced.

Videotaping of IMEs

The amended regulation clarifies that an IME examiner may not refuse to conduct an IME when a claimant appears at the IME prepared to record or videotape the IME. A party (or agent of a party) may not alter a recording or videotape, nor may a videotape be distributed beyond its use in a hearing of the Board.

Reports

The amended regulation sets forth specific criteria for the content, certification, and signing of an IME report and a records review report. The reports must list all documents, records, and items reviewed by the examiner. Any questionnaires or intake sheets completed by the claimant must be attached to the report. In addition to the parties and the Board, copies of all reports must be submitted to attending providers that have treated the claimant within the last six months. The regulation states that a treating provider who examined the claimant solely for consultation or to perform a diagnostic test does not need to receive a copy of the report. The regulation specifies that a report may not be based on a checklist or questionnaire.

Exemptions

The amended regulation clarifies that a carrier's medical professional, as that term is defined in 12 NYCRR §324.1 (c), is not an IME examiner within the meaning of WCL §137 and 12 NYCRR §300.2. In addition, an examination conducted at a clinic that is a member of an occupational health network established pursuant to WCL §151 (3) is not an IME within the meaning of WCL §137 and 12 NYCRR §300.2.

IME entities

The term IME entity is defined. Services that may be supplied by an IME entity are described. The amended regulation sets forth clear and specific rules for IME reports submitted by IME entities. The amended regulation also clarifies that the IME examiner is responsible for certifying the contents of a report and that an IME report may not be derived from an IME examiner completing a checklist or form. The process for registering an IME entity is updated.

Suspension and revocation of the authorization of IME examiners and IME entities

The amended regulation updates the process and basis for suspending and revoking the authorization of a provider to perform IMEs and records reviews. The process and basis corresponds to the process and basis for suspending and revoking the authorization of treating providers as set forth in WCL §13-d.

The amended regulation also sets forth a process for revoking the registration of an IME entity.

Robert E. Beloten
Chair

CMS is extending the deadline for eligible professionals to attest to meaningful use for the Medicare EHR Incentive Program 2013 reporting year from 11:59 pm ET on February 28, 2014 to 11:59 pm ET March 31, 2014.

This extension will allow more time for providers to submit their meaningful use data and receive an incentive payment for the 2013 program year, as well as avoid the 2015 payment adjustment.

This extension does not impact the deadlines for the Medicaid EHR Incentive Program or any other CMS program, including the electronic submission for the Physician Quality Reporting System EHR Incentive Program Pilot.

How to attest?

If you are an eligible professional, you may use the registration and attestation system to submit your attestation for meaningful use for the 2013 reporting year. You must attest prior by 11:59 pm ET on March 31, 2014 to meet the new 2013 program deadline.

Resources

If you are an eligible professional working on your attestation for the 2013 reporting period, there are resources available to help you with the registration and attestation process.

• Stage 1 Meaningful Use Calculator
• Registration and Attestation User Guides
• EHR Incentive Program Website

The EHR Information Center is open to assist you with all of your registration and attestation system inquiries. Please call, 1-888-734-6433 (primary number) or 888-734-6563 (TTY number). The EHR Information Center is open Monday through Friday from 7:30 a.m. – 6:30 p.m. (Central Time), except federal holidays.

Tips

In addition, there are some simple steps you can take which will help to make the process easier for you:

• Ensure that your payment assignment and other relevant information is up to date in the Medicare payment system PECOS
• Make sure to include a valid email address in your EHR program registration
• Consider logging on to use the attestation system during non-peak hours such as evenings and weekends
• Log on to the registration and attestation system now and ensure that your information is up to date and begin entering your 2013 data
• If you experience attestation problems, call the EHR Incentive Program Help Desk and report the problem
• If your organization has more than 1,000 providers assigned to a proxy user, use the PECOS system to designate additional proxies to facilitate attestation.

"For possibly the first time since this "great compromise" between workers and employers was reached in 1914, the whole system is under review, not only by the Board but be representatives of all system participants. Never before has the Board taken the opportunity to work in conjunction with stakeholders and other major participants to examine the entire scheme and to seek to address the issues within it and to build into the system methods and mechanisms for making it self-correcting in the future."

BPR As-Is Assessment Report

NYSCA recognizes the currently challenges of NY's Workers Compensation system. As such we have been and will continue to be part of this review process. We will be meeting with the WCB again next week to continue to advocate for the needs of the injured workers of New York and our members.

Following our release of the fee schedule increase for Medicare codes 98940,-41 and -42 there seemed to be some disappointment in the overall results. While we all acknowledge that the most commonly used code, 98940 (thanks to Medicare audits), had the lowest percentage increase, the implicates can have far reaching impact as other carriers look to the RVU that Medicare sets. In addition, the ACA Medicare Carrier Advisory Committee and executives of the ACA have been diligently meeting the CMS and HHS to get us full scope coverage to include E & M codes as well as active and passive modalities. Unfortunately, as we know just from our dealings in NY that major changes take time. In the interim, a 2% increase in 98940 is better than another decrease, and as we draw closer to paying off the 2% reduction due to the overage of the demonstration project (thanks to some of our colleagues in part of Chicago), that decrease is anticipated to be lowered in the coming year.

For further information on the efforts of the ACA, please check out the following links:

• ACA Responds to Joint Congressional Discussion Draft on Medicare Physician Payment Reform (Nov 2013) 
• ACA RUC Advisors Comment to CMS on DCs Billing for Evaluation & Management (E/M) Services 
• ACAtoday.org Medicare Advocacy 

Respectfully submitted,
Mariangela Penna, DC
NY CAC Representative

A New Jersey federal judge has ruled that a doctor of chiropractic (DC) may pursue his overpayment allegations against UnitedHealthcare (United) even though his patients are no longer insured by the company. The ruling says patients are still subject to the health insurer's overpayment recoupment procedures.

United stands accused of retroactively reducing the amount of money owed to doctors of chiropractic as reimbursement for their incurred expenses. The litigation, filed on Jan. 24, 2011, represents a nationwide class of health care providers who were subjected to United's improper recoupment of payments for services provided to United subscribers. ACA joined the lawsuit in April 2011 when it added a host of injurious practices perpetrated upon practitioners by Optum, United's subsidiary.

Learn more about ACA's insurance advocacy work in the Chiropractic Network Action Center, www.acatoday.org/CNAC, which provides helpful resources and the latest information regarding network concerns for providers and their patients.

As per the recent ACA press release, thanks to the longstanding and ongoing efforts of the ACA effective 1/1/2014 there will be an increase in the RVU for CMT codes in the Medicare fee for service system. The increase amounts to slightly over 2% for code 98940, 9% for 98941 and 10% for 98942. As we know many other systems look to Medicare as their fee schedule base, theses increases may have far reaching impact. In addition there will be upcoming decreases in the fee reduction penalties due to the expenditures from the demonstration project. However please be advised that there is still a 20% reduction pending if the SGR remains in place. Although every year Congress acts at the last minute to repeal the SGR one never knows and a last minute grass roots effort may be necessary to hold off this reduction. Watch your emails for how you can help!

PQRS

It still isn’t too late to start for 2013, start now and you can avoid penalties in 2015! There will be some changes for 2014 and we will get those out to you as soon as they are available. Don’t wait start reporting appropriate G codes today. Visit www.acatoday.org and search PQRS2-13 toolkit for details.

Railroad Medicare Update

The ACA continues to dialogue with administrators from Palmetto GBA regarding their blanket denials and excessive documentation requirements. CMS prefers that this gets handled between Palmetto and the ACA but will step in if necessary. If you receive a denial on Railroad Medicare please appeal, it will be important if CMS has to intervene.

2014 Medicare Deductible

The Medicare deductible for 2014 is $147, unchanged from 2013. Medicare Part C (Advantage Plans) copayment for chiropractic services cannot exceed $20 or 50% in the case of co-insurance. If you have evidence of non-compliance with this please send it to the ACA. If patient is in a Part C plan that does not have a chiropractic panel and there is no out of network benefit you may charge the patient the appropriate Medicare limiting charge and are exempt from sending a claim.

Proper Use of an ABN Form

There is NO OPTING OUT of Medicare, you may be participating (accept assignment) or not. If you choose to not obtain a Medicare provider number you CANNOT see Medicare patients, the choice is yours. Having them sign an ABN on the first visit, declaring them maintenance with instruction to select Option 2 is not appropriate. As this is becoming a trend in some states with some groups many state boards are looking into this to sanction doctors.

For a properly delivered ABN, whether the patient selects Option 1 or 2 you may collect your full fee without Medicare fee restrictions. If the patient selects Option 1 submit the bill to Medicare, if Option 2 is selected a bill is not submitted.

CERT Reviews

Changes being made to CERT reviews, the time frame to respond was 75 days with 4 reminders by letter. Effective 1/1/2014 CERT review timeframe response has been shortened to 60 days with the initial letter Day 1 and reminders Days 30 and 45. As with all audits, read the letter carefully and send documentation as required by the letter, for assistance and guidance visit the ACA website at www.acatoday.org/Medicare.

Respectfully submitted,

Mariangela Penna, DC
NY CAC Representative

An article in the Medicare MLN Matters from National Government Services on April 9, 2013 indicated that the restriction of chiropractors referring to radiologists as the ordering physician on Medicare beneficiary x-rays was changed. An inquiry was sent to the ACA regarding this policy change.

According to the ACA Medicare committee, research into the MLN Provider Bulletin on April 9, 2013 indicates that the article is incorrect. The reference cited in the article related to the ordering of diagnostic tests did state there was a change. HOWEVER, the ACA checked the Code of Federal Regulations, which are current as of October 28, 2013, and the citation related to the Chiropractic Exception (42 CFR 410.32(a)(1)) has been REMOVED. We recommend that you do not use the radiologist as the ordering physician until the ACA confirms the changes. The ACA is following up with CMS for further clarification and will keep us posted.

CMS announces major savings for Medicare beneficiaries

Part B premiums will see zero growth; billions of dollars saved in donut hole

The Centers for Medicare & Medicaid Services (CMS) today said that health care reform efforts are eliciting significant out-of-pocket savings for Medicare beneficiaries, pointing to zero growth in 2014 Medicare Part B premiums and deductibles, and more than $8 billion in cumulative savings in the prescription drug coverage gap known as the “donut hole.”

According to CMS, since the Affordable Care Act provision to close the prescription drug donut hole took effect, more than 7.1 million seniors and people with disabilities who reached the donut hole have saved $8.3 billion on their prescription drugs. In the first nine months of 2013 nearly 2.8 million people nationwide who reached the donut hole this year have saved $2.3 billion, an average of $834 per beneficiary. These figures are higher than at this point last year (2.3 million beneficiaries had saved $1.5 billion for an average of $657 per beneficiary).

The health care law gave those who reached the donut hole in 2010 a one-time $250 check, then began phasing in discounts and coverage for brand-name and generic prescription drugs beginning in 2011. The Affordable Care Act will provide additional savings each year until the coverage gap is closed in 2020.

CMS said the standard Medicare Part B monthly premium will be $104.90 in 2014, the same as it was in 2013. The premium has either been less than projected or remained the same, for the past three years. The Medicare Part B deductible will also remain unchanged at $147. The last five years have been among the slowest periods of average Part B premium growth in the program’s history.

“We continue to work hard to keep Medicare beneficiaries’ costs low by rewarding providers for producing better value for their patients and fighting fraud and abuse. As a result, the Medicare Part B premium will not increase for 2014, which is good news for Medicare beneficiaries and for American taxpayers,” said CMS Administrator Marilyn Tavenner.

People with Medicare don’t need to sign up for the new Health Insurance Marketplace, as they are already covered by Medicare. The Marketplace won’t affect Medicare choices, and no matter how an individual gets Medicare, whether through Original Medicare or a Medicare Advantage Plan, they still have the same benefits and security they have now.

Background

A service-specific prepayment audit was conducted by the National Government Services Medical Review Department for Jurisdiction K (JK) Part B claims in Connecticut and New York. The audit focused on claims billed with CPT code 98941, (chiropractic manipulative treatment [CMT], spinal, 3-4 regions) for the following states/locations:

• Connecticut (implemented in January 2012),
• Downstate region of New York (implemented in April 2012),
• NY Queens County (implemented in August 2011), and
• Upstate region of New York (implemented in December 2011).

Medical records will be requested to verify medical necessity of the services provided, and that services were billed according to Medicare Program guidelines. If the submitted documentation does not support CPT 98941, the services will either be correctly coded to an appropriate/lower level (98940) or denied for reasons listed below.

Findings

• Lack of patient’s specific subjective complaint – A relevant medical history in a patient’s record must indicate a beneficiary subjective complaint(s) and the area(s) of complaint(s) should correlate to the area(s) of subluxation(s) cited and/or treated.
• Lack of functional status- Documentation does not describe a patient’s current level of functioning and activities of daily living, nor treatment goals related to functional levels.
• Lack of objective documentation of specific level(s) of subluxation in the exam – The precise level(s) of subluxation must be specified by the chiropractor to substantiate a claim for manipulation of the spine. The level(s) of spinal subluxation must bear a direct causal relationship to the patient's symptom(s), and the symptom(s) must be directly related to the level(s) of the subluxation that has been diagnosed. Documentation needs to be clearly legible without the use of abbreviations, checks or circles that provide minimal and unclear information. If using P.A.R.T (P=pain, A=asymmetry, R=range of motion, T=temp, tone, tonicity) exam, the documentation requirement must be fully met per policy. Policy requires documentation of two of the our criteria, one of which must be asymmetry/misalignment or range of motion abnormality.
• Lack of area(s) of CMT that corresponds to subjective complaint(s) – The specific spinal area(s) that was treated on the day of the visit must be clearly documented and the area(s) treated must correspond to patient’s subjective compliant(s). Documentation needs to be clearly legible without the use of abbreviations, checks or circles that provide minimal and unclear information.
• Treatment plan and goals not documented/not addressed – Documentation of a treatment plan must include the recommended level of care (duration and frequency of visits); specific treatment goals and objective measures to evaluate the treatment effectiveness. The patient’s progress or lack thereof related to the established treatment plan and goals should be addressed on subsequent visits. If treatment continues on without evidence of improvement or the clinical status has remained stable for a given condition, further manipulative treatment is considered maintenance therapy and is a non-covered benefit.
• Documentation supporting maintenance – Maintenance therapy is a noncovered benefit. Examples of maintenance therapy would include long-term treatment per history without the documentation supporting exacerbation, subjective complaint of “minimal pain” on multiple visits without showing improvements or no positive response – documentation remains the same or template for multiple visits. Also, documentation of “chronic” condition with no documentation to support an exacerbation and/or improvement.

Other issues that resulted in claim denials include:

• Nonresponse to development letters – When an ADR letter is received, submitting information and appropriate documentation suggested in the ADR letter is required to consider payment of the claim in question. If the requested medical record is not submitted in a timely manner, the services will be systematically denied.
• Illegible Documentation – Medical record must be legible. If the reviewer cannot decipher the documentation, it may result in the denial of a claim.
• Missing or illegible provider signature – Documentation must be legible and include a provider’s signature. The method used can either be electronic or handwritten, stamp signatures are not acceptable. A signature key or signature log can be included with the documentation to identify the author associated to the illegible signature.
• Incomplete or missing beneficiary information – A patient’s medical record must include a legible beneficiary name for identification. Also, the medical record should be clearly dated and correspond to the date of service billed. If this information is missing or incomplete, it may result in denial of a claim.

We recommend that you perform random sample claim audits within your practice to ensure that these errors do not exist. You may also use the errors identified in the prepay audit as a checklist before submitting future claims. Please also take time to review the LCD and SIA for Chiropractic Services (L27350). The LCD and SIA can be accessed from the Medical Policy Center on the National Government Services Web site. Enter L27350 in the CMS Identifier Number search field and select Go to initiate an LCD search in the CMS Medicare Coverage Database.

Provider Types Affected

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This MLN Matters® Article is intended for physicians, providers, and suppliers submitting claims to Medicare contractors (Fiscal Intermediaries (FIs), carriers, Regional Home Health Intermediaries (RHHIs), Durable Medical Equipment Medicare Administrative Contractors (DME/MACs) and A/B Medicare Administrative Contractors (A/B MACs)) for services to Medicare beneficiaries.


Provider Action Needed

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This article is based on Change Request (CR) 8378 which informs Medicare contractors about a new Claim Adjustment Reason Code (CARC) reported when payments are reduced due to Sequestration. Make sure that your billing staffs are aware of these changes.


Background

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As required by law, President Obama issued a sequestration order on March 1, 2013. As a result, Medicare Fee-For-Service claims, with dates of service or dates of discharge on or after April 1, 2013, incur a two percent reduction in Medicare payment. The Centers for Medicare & Medicaid services (CMS) previously assigned CARC 223 (Adjustment code for mandated Federal, State or Local law/regulation that is not already covered by another code and is mandated before a new code can be created) to explain the adjustment in payment. Effective June 3, 2013, a new CARC was created and will replace CARC 223 on all applicable claims. The new CARC is as follows:

• 253 - Sequestration - Reduction in Federal Spending

Also, Medicare contractors will not take any action on claims processed prior to implementation of CR8378.


Additional Information

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The official instruction, CR 8378 issued to your Medicare contractor regarding this change may be viewed on the CMS website.

If you have any questions, please contact your Medicare contractor at their toll-free number, which may be found on the CMS website.