Guides to the Evaluation of Permanent Impairment
(the AMA Guides), 4th edition, has been used. This further aligns reimbursement
for impairment ratings with the AMA
Guides.
In keeping with the simplification goal, the reimbursement structure for
designated doctors and required medical examination (RME) doctors performing
MMI examinations has been changed from a tiered reimbursement structure, which
provided different reimbursement amounts depending on the amount of time elapsed
since the date of injury and the role of the doctor, to a structure which
provides one reimbursement amount for all MMI evaluations performed by these
doctors. The adopted rule also eliminates the distinction between reimbursement
amounts for MMI evaluations performed by designated doctors and RME doctors.
In part, this change recognizes the recently adopted commission requirements
that all doctors performing MMI/IR evaluations (not just designated doctors)
be trained in the performance of this service. All MMI determinations (except
those performed by treating doctors or referral doctors who have previously
been treating the injured employee) will be reimbursed $350. For purposes
of reimbursement, there is also little distinction between the examinations
resulting in finding an employee not at MMI and the examinations finding that
an employee has reached MMI. Equivalent reimbursement for these examinations
is warranted because the work effort for both MMI and non-MMI certification
examinations is similar. This will eliminate any appearance of economic incentive
for a particular outcome.
Based on the number of MMI examinations billed in 2000, the adopted single
reimbursement rate of $350 for these examinations is projected to result in
an overall increase in the reimbursement to both designated doctors and RME
doctors for these services. This increase should address any concerns that
doctors would be discouraged or prevented from participating in the system
as designated doctors or RME doctors; or, that the quality of the MMI/IR determinations
would be adversely affected because of reimbursement. Also, the increase in
overall reimbursement should compensate for the instances where a doctor is
required to provide further clarification on a certification.
The commission received numerous comments on proposed subsection (e)(8),
regarding Evaluation of Medical Care (EMC) examinations. After consultation
with the commission's Medical Advisor and evaluation of the tasks necessary
to perform EMC and Return to Work (RTW) examinations, the commission determined
a parallel reimbursement for both of these types of examinations was appropriate.
As a result, proposed subsection (e)(8), regarding EMCs, has been deleted
and EMC examinations have been added to proposed subsection (e)(7), regarding
RTW examinations. The reimbursement for both RTW and EMC examinations has
been established at $350, with necessary testing to be billed and reimbursed
separately. The title for subsection (e)(7) has changed from "Return to Work
(RTW) Examinations" to "Return to Work (RTW) and/or Evaluation of Medical
Care (EMC) Examinations."
Due to the extensive reorganization of subsection (e) and the various deletions
in this subsection, additions and deletions of various commission specific
modifiers was necessary in subsection (e)(10), regarding Commission Modifiers.
No changes were made to subsection (f) as proposed. Subsection (f) provides
that the invalidation of a section of this subchapter or its application or
applications to any person or circumstance by a court of competent jurisdiction
does not affect other provisions or applications of the subchapter that can
be given effect without the invalidated provision or application.
CONCLUSION
This new rule is adopted to comply with numerous and complex statutory
mandates in the Texas Labor Code, §413.011. House Bill 2600 (HB-2600),
adopted during the 2001 Texas Legislative Session, amended §413.011 to
add new requirements for commission reimbursement policies and guidelines.
A revision of the MFG that meets the rigorous statutory criteria was the goal
of this new rule, and was achieved after the commission carefully and fully
analyzed all of the statutory and policy mandates and objectives and all the
facts and evidence gathered and submitted during the comment period, as well
as all comments received. The commission utilized all of this, and its expertise
and experience including recommendations from the commission's Medical Advisor,
to develop this MFG which balances all the statutory mandates discussed in
this preamble. Full and objective analysis and consideration were also given
to all relevant factors and to all comments received, as evidenced by the
revisions made from the rule as proposed and the commission's responses to
comments in this preamble.
These include the requirements to ensure that injured workers receive the
quality health care reasonably required by the nature of their injury as and
when needed, those to ensure that fee guidelines are fair and reasonable,
the statutory mandate to achieve effective medical cost control, and the requirements
regarding standardization and use of current HCFA reimbursement methodologies,
models, and values or weights.
Economic indicators in health care were also taken into account, as was
the statutory requirement to use health care reimbursement policies and guidelines
that reflect the standardized reimbursement structures found in other health
care delivery systems with minimal modifications to those reimbursement methodologies
as necessary to meet occupational injury requirements, and to provide for
reasonable fees for the evaluation and management of care as required by §408.025(c)
and commission rules. Also considered was the statutory condition that the
fee guideline may not provide for payment of a fee in excess of the fee charged
for similar treatment of an injured individual of an equivalent standard of
living and paid by that individual or by someone acting on that individual's
behalf.
The commission also considered increased security of payment, injured employee
access to quality health care, workers' compensation system administrative
complexity, and other aspects of workers' compensation that impose additional
burdens or considerations upon workers' compensation system participants.
The commission did not adopt the Medicare fee schedule, nor did it adopt
the conversion factor based solely upon the amount of HCFA's conversion factor.
The adopted fee guideline does not restrict the ability of chiropractors to
serve as treating doctors, and does not discriminate in the amount or method
of payment or reimbursement for services in a manner prohibited by Section
3(d), Article 21.52, Insurance Code.
It is well-documented and acknowledged that Texas workers' compensation
medical costs significantly exceed those in other states and in other health
care delivery systems. Elsewhere in this preamble various relevant reports
are noted and summarized. These reports showed Texas medical costs per claim
to exceed comparable costs by percentages that range from 35% to 261%. Reports
also showed that average workers' compensation medical costs for State of
Texas injured employees were approximately six times higher per worker when
compared with group health and that the cost of individual medical treatments
is lower under the state group health system.
Effective control of medical costs should be achieved through a combination
of management of the approved doctor list (ADL), utilization management, and
establishment of fee schedules consistent with §413.011(d), as well as
use of other statutory authority such as preauthorization revisions. These
new features from HB-2600 will work together with the fee structure in the
MFG to address cost containment including utilization of services in the system,
as will use of Medicare payment policies and correct coding initiatives. It
would be inappropriate for the commission to choose to address medical cost
containment only by utilization control, and not by the fees that are reimbursed
for workers' compensation services.
The use of a different relative value unit system, the RBRVS, by itself
results in a significant realignment of reimbursements among CPT groupings.
RBRVS has also been successful in reducing the number of surgeries provided
under Medicare in spite of the price cuts for these services. Physician response
to less important payers such as workers' compensation should be even more
restrained. The realignment of reimbursements consistent with the RBRVS and
the fees established in this MFG should not result in greater utilization
of services in workers' compensation.
It is appropriate to benchmark to the Medicare reimbursement system for
several reasons. HB-2600 requires the commission to adopt the most current
reimbursement methodologies, models, and values or weights used by the federal
HCFA to achieve standardization, including applicable payment policies relating
to coding, billing, and reporting. Also, the Medicare system is a main component
of the national health care system and has become a standard and benchmark
for development and operation for many commercial and governmental health
care programs, as well as workers' compensation programs in 17 states. Use
of RBRVS aligns the basis for workers' compensation reimbursement with nationally
recognized standards of relative values used in other health care delivery
systems, and takes into account economic indicators in health care. For a
given medical service, there is no good reason why Medicare and workers' compensation
payment policies should differ. Adoption of Medicare payment policies should
lead to reduced administrative costs, a reduced number of medical disputes
and a reduction in unproductive costs for medical services.
The standard of living of the population covered by the Medicare program
exceeds that of the population covered by the Act, allowing for the comparison
required by the statute. The standard of living of the population covered
by managed care plans is at least as high as the population covered by the
Act. Use of Medicare as a benchmark, or point of reference, does not violate
the statutory prohibition regarding basing conversion factors solely on the
fact that they are the same as Medicare's.
WCRI has identified three reasons for using the Medicare physician's payment
system as a guide to help design workers' compensation fee schedules. First,
the Medicare fee schedule is the lowest in common use; because effective medical
cost containment is a statutory goal, it is appropriate for Texas to consider
this. Second, the Medicare fee schedule corrects a typical bias (which is
reflected in the 1996 MFG) of traditional reimbursement systems that overcompensate
providers for expensive invasive high-technology procedures and under compensate
providers for less expensive noninvasive low-technology procedures. Third,
Medicare fee schedules differ across states according to carefully researched
measures of differences in the three elements of the costs of producing medical
services: physicians' time and effort, practice expenses, and malpractice
insurance premiums.
The RBRVS system used by Medicare values services according to the relative
resources required to provide them, recognizing skill, practice cost, and
risk. The relative value units reflect the relationship between the resources
necessary to provide a professional medical service relative to resources
necessary to provide other professional medical services. Use of a single
conversion factor is necessary to maintain consistency in the utilization
controls and incentives designed into the RBRVS system. If the numbers of
relative value units assigned to each procedure by Medicare are retained,
but markedly different conversion factors are used for the various medical
sectors, this results in the loss of the some of the benefits of the Medicare
RBRVS, because relative prices do not fully reflect relative costs and so
the service mix does not fully adjust. This would not follow statutory intent.
Although Medicare is an appropriate benchmark, the commission has also
used other benchmarks in setting the fees in this adopted fee schedule. As
required by the statute, the commission has developed conversion factors or
other payment adjustment factors in determining appropriate fees, taking into
account economic indicators in health care. This includes the commercial private
payer market and the median of that market. As stated by WCRI, it would be
difficult to justify a fee schedule as a major cost containment tool if it
exceeded what providers elect to receive, on average, in the free market.
The methodologies of an RBRVS system should be used with the conversion
factor drawn from statewide data for commercial medical charges and actual
payments for health care services in Texas. This also ties back well into §413.011(d)
which provides that the guidelines may not provide for payment of a fee in
excess of the fee charged for similar treatment of an injured individual of
an equivalent standard of living and paid by that individual or by someone
acting on that individual's behalf.
A market analysis of reimbursements from the 1996 MFG compared to commercial
payers in Texas, workers' compensation systems from other states, and 2001
Medicare allowed fees in Texas, showed that the estimated commercial median
in Texas was 38.7% greater than the 2001 Medicare conversion factor. Additionally,
it is well known that although most commercial reimbursements are greater
than Medicare some commercial reimbursements are below Medicare rates. The
composite conversion factor for the 1996 MFG was higher than the median value
for the commercial payers for surgery. Although surgical CPT codes (including
the non-invasive surgical procedures such as injections) under the 1996 MFG
are reimbursed in aggregate at 174% of Medicare fees, the relationship to
Medicare fees varies significantly from one surgical code to the next, e.g.:
approximately one third were reimbursed at or below Medicare fees; approximately
5% were reimbursed at less than half of Medicare fees; approximately 16% were
reimbursed between 200 and 300% of Medicare fees; and approximately 5% were
reimbursed at more than 3 times the Medicare fees.
In setting the 2002 MFG fees, the commission has used Medicare fees as
a benchmark and has considered commercial market payments as indicative of
economic indicators in health care, as required by the statute. The commission
determines "fair and reasonable" is not based solely on the market value of
services provided to injured employees. Fair and reasonable compensation in
the Texas workers' compensation system is a balance of all the required components
of the Act. These are rigorous statutory requirements, which are not easily
balanced. In balancing the statutory mandates and objectives, the commission
considered numerous issues, with the goal of establishing fair and reasonable
fees that will assist in achieving effective medical cost control.
Treating physicians within the workers' compensation system are responsible
for maintaining administratively time consuming functions such as, researching
compensability, establishing relationships with carriers, and evaluating return
to work. Because of these added responsibilities in workers' compensation,
it is appropriate that the evaluation and management codes be upgraded to
a higher level of reimbursement.
The following additional burdens and considerations specifically related
to the workers' compensation system are different than in the Medicare system
and are important in the development of the MFG: impact on access to quality
care; administrative complexity in the workers' compensation system; commission
return-to-work objectives; and requirements for training.
Review of comments in general comparison to the Medicare and managed care
reimbursement systems, indicates similar security of payment standards exist
between systems.
The adopted fees will not negatively impact injured employees' access to
quality care. The current level of Medicare payment to physicians and surgeons
is sufficient to provide reasonable access to quality medical care to injured
workers. A 1999 MedPAC survey showed that physicians do not appear to be experiencing
much difficulty when seeking specialty referrals for their FFS Medicare patients.
The percentage of physicians participating in Medicare has increased every
year since 1996. The inability of a patient to access a specific doctor is
different from a problem of access to medical care. Specialist income growth
has nearly doubled primary care physician income growth. Texas fees are higher
than Medicare; there will be no impact on access to health care for injured
employees.
In the newly adopted MFG, not all reimbursements are reduced from the 1996
MFG reimbursement amounts. The realignment of values for E/M codes, resulting
from adoption of the RBRVS system significantly increases reimbursement to
treating doctors as the gatekeeper in the workers' compensation system. This
realignment indicates that since the adoption of the 1996 MFG evaluation and
management services have been reimbursed at a level below the reimbursements
in the Medicare system. Despite this below Medicare reimbursement for these
services, the commission has not seen a corresponding reduction in availability
of treating doctors. In addition to evaluation and management services, overall
reimbursement for designated doctor examinations and required medical examinations
are increased, as is reimbursement for anesthesia services.
If the Medicare experience is indicative of physician reaction to changes
and reimbursement, the Texas workers' compensation system should not experience
any significant access or quality problems as a result of the adopted fees.
However, Medicare continually evaluates access to care issues, and the commission
will have knowledge of any concerns that may be identified in the future.
Testimony on behalf of the Center for Studying Health System Changes showed
that the extent to which payment cuts to Medicare physicians compromise Medicare
patients' access to care, depends on the community where patients live. Because
the median commercial reimbursement in Texas is slightly less than reimbursement
under the 1996 MFG, the change in reimbursement should not put injured employees
at risk in Texas.
Controlling the high costs per claim experienced in Texas is important;
high costs per claim impact premium costs and the availability of coverage
to Texas employers. In fact, almost half (48%) of current subscribers indicated
that they would consider dropping coverage if premiums increased by some increment
up to 20%.
Expensive care does not necessarily mean quality care. Texas, the second-highest
state in Medicare per-capita spending, ranks in the bottom 20% with regard
to quality care for Medicare beneficiaries.
The recommended reimbursement system will not result in a reduction in
the quality of care provided to injured workers in Texas. Quality indicators
have shown the implementation of strict utilization control, assessment, review
mechanisms and quality control initiatives is efficacious, even while medical
services in general have undergone monetary devaluation. The adopted workers'
compensation reimbursement rates are reflective of market driven health care
economics and will not suppress access to care.
There are additional burdens and considerations specifically related to
the workers compensation system that are different from other health care
systems, such as return to work objectives, training requirements and administrative
requirements. These differences are acknowledged through the adopted multiplier,
which increases reimbursement from that in the Medicare system.
With the comments and evidence gathered, the commission believes that,
although greater than Medicare, the administrative burden of the workers'
compensation system is probably not significantly different than managed care
or commercial insurance. Most providers are already familiar with the Medicare
policies; the use of standardized coding, billing, and methodology should
facilitate office operations, eliminating the need to maintain a significantly
different workers' compensation billing system. Except for a few commission
specific services unique to the workers' compensation system, the MFG adopts
Medicare payment policies. This standardization should allow physician office
practices to achieve consistency in their workers' compensation and all other
health care billing practices, thereby reducing time and administrative costs,
and resulting in a net reduction in the administrative costs of compliance
for Texas physicians. Medicare payment policies lead to a consistency of payment
and will ultimately lead to reduced administrative costs. There should therefore
be an increase in access for injured workers.
Physicians in the Texas workers' compensation system are currently paid
and will continue to be paid an additional fee for some commission-required
reports. The cost of initially determining coverage for an injured employee
should not differ significantly from the cost for a new Medicare or group
health patient. However, the commission agrees that the workers' compensation
system has unique differences from other health care systems, and these differences
are acknowledged through the multiplier, which increases reimbursement from
that in the Medicare system.
To improve return to work statistics, health care providers, and especially
treating doctors who are the gatekeepers of an injured employees medical care,
must: provide appropriate treatment, provide prompt and continuing evaluation
of whether the employee can return to work; establish target return to work
date (modified/full duty); and communicate with the employee, employer, and
insurance carrier. These are added responsibilities, which do not appear in
other health care systems.
The HB-2600 amendments included changes related to regulating medical benefit
delivery by: changing the commission's ADL and application process, including
mandated doctor training and expanded financial disclosure. These new training
requirements are another feature of the workers' compensation system that
is not a part of other systems.
New §134.202 establishes reimbursement for professional medical services
(healthcare other than prescription drugs or medicine, and the facility services
of a hospital or other healthcare facility) provided on or after the effective
date of the new rule. The new rule provides standardization of reimbursement
methods and billing procedures by aligning the workers' compensation reimbursement
structure with the structure used by the CMS. With minimal modifications,
the rule adopts the most current reimbursement methodologies, models, and
values or weights used by CMS relating to coding, billing, and reporting,
and provides that the workers' compensation system change with the CMS system
as it is revised. Necessary modifications to the Medicare system have been
made to adapt it to features unique to the Texas workers' compensation system
(such as the ability of chiropractors to serve as treating doctors and the
use of designated doctors in the dispute resolution process). Taking into
account economic indicators in health care and the differences between health
care reimbursement systems, the commission has adopted a conversion factor
that differs from the CMS conversion factor and increases the reimbursement
amounts provided by the Medicare system. The adoption of the Medicare structure
includes adoption of the RBRVS, which values evaluation and management services
higher than the previously used relative value unit system.
Subsection (c) establishes a conversion factor by setting a multiplier
to apply to the Medicare conversion factor. In establishing this multiplier
the commission considered the statutory requirements and objectives and utilized
Medicare data, 1996 MFG commission reimbursement levels, other states' workers'
compensation data, and available commercial payer information. The data reviewed
consistently reflected 1996 MFG reimbursement equal to approximately 140%
of the 2002 Medicare reimbursement and in the mid-range of commercial payer
reimbursement as indicated in the Milliman reports.
There are some services that are specific to and necessary in the Texas
workers' compensation system that are not commonly used or not used at all
in the Medicare system. Subsection (e) sets out the payment policies relating
to coding, billing, and reporting for those services and provides a list of
modifiers, which will allow the commission to monitor patterns of usual, customary
and reasonable medical charges, payments and treatment protocols for commission-specific
services. The additions set out in subsection (e) are designed to reflect
the standardized reimbursement structures found in other health care delivery
systems with minimal modifications to those reimbursement methodologies as
necessary to meet occupational injury requirements.
As suggested by the Legislative Stakeholder group, the Texas workers' compensation
system as a whole will benefit by bringing its payment policies and unit costs
in line with mainstream medicine. Adoption of Medicare policies should lead
to a reduction in administrative costs, a reduced number of medical disputes,
and a reduction in unproductive costs for medical services, as discussed throughout
this preamble.
Realignment of relative values may discourage over-utilization of services
that have been assigned a relative value higher than that in other systems.
This benefits injured employees by preventing unnecessary treatment and delayed
return to work. The same impact may occur if the new rule limits or disallows
payment for medical care that is not proven medically efficacious. A decrease
in medical costs may increase the number of employers who elect workers' compensation
coverage, and injured workers will benefit from that coverage.
The commission estimates the difference in reimbursement under the previous
MFG when compared to reimbursement under the new MFG by category as follows:
Evaluation & Management: + 31%
Medicine: - 35%
Physical Medicine and Rehabilitation: - 13%
Surgery: - 35%
Radiology: - 29%
Pathology: - 43%
Anesthesiology: + 13%
Healthcare practitioners will benefit from the use of standardized and
current methodologies, models, and value units, and use of standardized reporting,
billing, and coding requirements. Some healthcare practitioners will receive
more reimbursement than under the previous MFG, while others will receive
less, depending on the mix of professional medical services they typically
provide to patients.
Insurance carriers will likewise benefit from use of standardized and current
methodologies, models, and value units, and use of standardized reporting,
billing, and coding requirements, which will allow for administrative consistency
and simplification. Pursuant to §408.021 of the Texas Labor Code, injured
employees are entitled to all health care reasonably required by the nature
of the injury as and when needed to cure or relieve the effect naturally resulting
from the compensable injury, promotes recovery or enhances the ability of
the employer to return to or retain employment. To the extent that this entitlement
may differ from the entitlement of the Medicare recipients, the decision of
the commission through its dispute resolution process must take precedence
over the provisions adopted or utilized by CMS in administering the Medicare
program. Subsection (a)(4) states that: "Specific provisions contained in
the Texas Workers' Compensation Act (Act), or Texas Workers' Compensation
Commission (commission) rules, including this rule, shall take precedence
over any conflicting provision adopted by utilized by CMS in administering
the Medicare program. Exceptions to Medicare payment policies for medical
necessity may be provided by commission rule. Independent Review Organization
(IRO) decisions regarding medical necessity are made on a case-by-case basis.
The commission will monitor IRO decisions to determine whether commission
rulemaking action would be appropriate."
The Medicare program is not a static system, and the commission agrees
that to achieve standardization with CMS it is necessary to include the CMS
coding and terminology changes at the time they are modified by CMS. Therefore,
the rule requires the use of the Medicare policies in effect on the day that
a service is provided. This allows the commission to maintain standardization
as required by HB-2600.
Comments generally supporting new §134.202 as proposed were received
from the following groups:
Alliance of American Insurers, American Insurance Association, Concentra
Health Services, Concentra Medical Centers, EMPI, Inc., E.R. Carpenter, L.P.,
Harris Methodist, HEB Physical Medicine & Rehab, Insurance Council of
Texas, Physician Management Services, Inc., PMSI, Research and Oversight Council
on Workers' Compensation, South Texas Sports Medicine, St. Paul Insurance,
Texas Association of Business and Chambers of Commerce, Texas Academy of Physician
Assistants, Texas Health Resources Texas Orthopedics, Work Ready Rehabilitation
Centers, and WorkScripts, L.P.
Comments generally opposing new §134.202 as proposed were received
from the following groups:
Addison Concentra Medical Center, Advanced Neuromodulation Systems, Inc.,
Advanced Orthopedic Institute, Amarillo Bone & Joint Clinic, L.L.P., American
Pain & Wellness, American Society for Surgery of the Hand, AmeriMed International,
Inc., Anesthesia Consultants of Dallas, L.L.P., Arlington Memorial Hospital,
Arlington Orthopedic Associates, P.A., Athens Orthopedic Center, Austin Bone
and Joint Clinic, Austin Sports Medicine, Ballpark Chiropractic and Rehab,
Barron Risk Management Services, Bay Oaks Orthopaedics & Sports Medicine,
Baylor College of Medicine, Baylor University Medical Center in Dallas, Beaumont
Bone & Joint Institute, Bedford Chiropractic Center, Bexar County Medical
Society, Body Knowledge, Inc., Center for Musculoskeletal Medicine, Center
for Orthopaedic Specialists, Center for Orthopaedic Surgery & Sports Medicine,
Central Texas Rehabilitation Medicine, College Station Medical Center, Concentra
Health Services, Concentra Medical Centers, Crossroads Neurosurgical Associates,
Crutchfield Evaluation Centers, East Houston Orthopedics & Sports Medicine,
PA, East Texas Medical Center Rehabilitation Hospital, East Texas Neurology,
East Texas Neurosurgical Associates, P.L.L.C., East Texas Treatment Center,
EMG Technologies Inc., EMPI, Inc., First Pain Associates of Texas, Fort Worth
Injury Rehabilitation Clinic, Fort Worth Orthopedic Surgery & Sports Medicine,
Galaxy Health Care Centers, Golden Triangle Neurocare, Greater North Texas
Pain Society, Hampton Road Chiropractic Clinic, Hansen Associates, Healthsouth
Corporation, Healthsouth Sports Medicine & Rehabilitation, HNCRC, Houston
Back Institute, Houston Hand & Upper Extremity Center, Houston Spine Surgery,
Impairment Evaluation Center, Insurance Council of Texas, JI Specialty Services,
Inc., King Chiropractic, P.C., KSF Orthopaedic Center, Lone Star Orthopaedics,
McAllen Orthopedic Association, McKinzie Chiropractic, Medical Center Orthopaedics,
P.A., Medical Evaluation Specialists, Medtronic Midas Rex, MedWay Health Systems,
Mesquite Orthopaedic Clinic, Midland Orthopedic Clinic, Millennium Rehabilitation
Center, Neuro Care Network, Neurological Services of Texas, Neurology Clinic
of San Antonio, North Houston Medical, North Texas Orthopaedic Association,
North Texas Physical Therapy, North Texas SpineCare, L.L.P., Northview Chiropractic
Center-Nacogdoches, Oak Cliff Orthopaedic Associates, OccMD Group, P.A., Occupational
Orthopaedics Specialists, Orthopaedic Associates of Corpus Christi, Orthopaedic
Surgery and Sports Medicine, Park Plaza Hospital, Patient Advocates of Texas,
Physician Management Services, Inc., Physician's Pain Management, Pinnacle
Anesthesia Consultants, P.A., Plano Orthopedic, PMSI, PRS, Inc., Regional
Plastic Surgery Association, Research and Oversight Council for Workers' Compensation,
Retina Specialists, P.A., Scott & White, Severance & Association,
Shannon Clinic, SME, South San Physical Therapy & the Industrial Work
Recovery Center, South Texas Sports Medicine, Southwest Neurological Surgery
Associates, P.A, Spine and Joint Center, St Joseph Radiology Association,
STAR Anesthesia, P.A., Stephenville Medical and Surgical Clinic, Stephenville
Sports Rehab & Physical Therapy, Inc., Supplemental Texas Provider Resource,
Tejas Anesthesia, P.A., Tejas Work Comp & Auto Injury Clinic, Texas AFL-CIO,
Texas Back Institute, Texas Chiropractic Association, Texas College of Occupational
and Environmental Medicine, Texas Dental Association, Texas Hand Center, Texas
Medical Association, Texas Neurosciences Institute, Texas Occupational Therapy
Association, Inc., Texas Orthopedic Association, Texas Orthopedics Sports
and Rehabilitation Association, Texas Pain Society, Texas Physical Therapy
Association, Texas Provider Resource, Texas Society of Anesthesiologists,
Texas Society of Pathologists, Texas Society of Psychiatric Physicians, Texas
Sports Medicine & Orthopaedic Group, The Hand Center of San Antonio, The
Medical Equation, Inc., The San Antonio Orthopaedic Group, L.L.P., Thompson
Orthopedic Clinic, P.A., Trinity West Urgent Care Center, University of Texas
Southwestern Medical Center at Dallas, UTMB, Victoria Orthopedic & Surgery
Association, Victoria Radiology Associates, W.R. Beavers, M.D., and Assoc.,
Warm Springs Rehabilitation System, Wholeperson Institute, Wol-Med, Work Ready
Rehabilitation Centers, WorkScripts, L.P.
Comment neither generally supporting or opposing new §134.202 as proposed,
but suggesting changes or asking questions were received from the following
groups:
Addison Concentra Medical Center, Advanced Orthopedic Institute, American
Insurance Association, American Pain & Wellness, American Society for
Surgery of the Hand, AmeriMed International, Inc., Anesthesia Consultants
of Dallas, L.L.P., Austin Sports Medicine, Baylor College of Medicine, Baylor
University Medical Center, Beaumont Bone & Joint Institute, Bexar County
Medical Society, Body Knowledge, Inc., Center for Musculoskeletal Medicine,
Center for Orthopaedic Surgery & Sports Medicine, Central Texas Rehabilitation
Medicine, Coalition for Nurses in Advanced Practice, Concentra Health Services,
Concentra Medical Center, Concentra Medical Center of Garland, Crossroads
Neurosurgical Associates, Crutchfield Evaluation Centers, East Texas Medical
Center Rehabilitation Hospital, East Texas Neurosurgical Associates, P.L.L.C.,
EMG Technologies Inc., EMPI, Inc., Family Chiropactic Clinic, First Pain Associates
of Texas, Fondren Orthopedic Group, Golden Triangle Neurocare, Greater North
Texas Pain Society, Hampton Road Chiropractic Clinic, Harris Methodist HEB
Physical Medicine & Rehabilitation, Healthsouth Corporation, Healthsouth
Sports Medicine & Rehabilitation, HNCRC, Houston Back Institute, Houston
Spine Surgery, Impairment Evaluation Center, Insurance Council of Texas, JI
Specialty Services, Inc., Kaspar Wire Works, McAllen Orthopedic Association,
McKinzie Chiropractic, Medical Center Orthopaedics, P.A., Medical Evaluation
Specialists, Medtronic Midas Rex, MedWay Health Systems, Mesquite Orthopedic
Clinic, NeuroCare Network, Neurological Services of Texas, Neurology Clinic
of San Antonio, North Houston Medical, North Texas Orthopaedic Association,
North Texas Physical Therapy, North Texas SpineCare, L.L.P., OccMD Group,
P.A., Orthopaedic Surgery and Sports Medicine, Patient Advocates of Texas,
Physician Management Services, Inc., Pinnacle Anesthesia Consultants, P.A.,
PMSI, Podiatrist Reimbursement Specialists, Professional Therapy Services
of Texas, PRS, Inc., Research and Oversight Council on Workers' Compensation,
Severance & Association, Shannon Clinic, SME, South San Physical Therapy &
Industrial Work Recovery Center, South Texas Sports Medicine, Southwest Neurological
Surgery Associates, P.A., Spine and Joint Center, St. Joseph Radiology Association,
Stephenville Medical and Surgical Clinic, Stephenville Sports Rehab &
Physical Therapy, Inc., Tejas Anesthesia, P.A., Texas AFL-CIO, Texas Association
of Business and Chambers of Commerce, Texas Chiropractic Association, Texas
College of Occupational and Environmental Medicine, Texas Hand Center, Texas
Health Resources, Texas Medical Association, Texas Neuroscience Institute,
Texas Occupational Therapy Association, Inc., Texas Orthopedic Association,
Texas Orthopedics Sports and Rehabilitation Association, Texas Pain Society,
Texas Physical Therapy Association, Texas Provider Resource, Texas Society
of Anesthesiologists, Texas Society of Pathologists, Texas Society of Psychiatric
Physicians, Texas Sports Medicine & Orthopaedic Group, The San Antonio
Orthopaedic Group, L.L.P., The University of Texas Southwestern Medical Center
at Dallas, Thompson Orthopedic Clinic, UTMB, Victoria Radiology Associates,
Warm Springs Rehabilitation System, Wholeperson Institute, Wol Med, Work Ready
Rehabilitation Centers, WorkScripts, L.P.
Summaries of the comments and commission responses are as follows:
Subsection (a)
COMMENT:
Commenter recommended ongoing
education between the commission and the appropriate associations in order
to alleviate over-utilization of services not allowed under respective licensing
acts.
RESPONSE:
The Texas Workers' Compensation
Commission (commission) agrees that educational sessions among professional
associations and the commission would be beneficial to association members
regarding the implementation of current rules, effective dates, etc. which
is a service provided by the commission. However, the commission disagrees
that it has an educational responsibility related to scope of practice issues.
The commission neither establishes practice acts nor licenses healthcare providers.
Individual practitioners have the responsibility to provide services within
the parameters of their license and the scope of their practice act. Communication
with the licensing boards and associations would, however, be helpful to the
commission. Over-utilization is related to medical necessity and quality of
care issues rather than a function of licensure. The office of the Medical
Advisor and the Medical Quality Review Panel (MQRP) are actively involved
in studying and addressing over-utilization and quality of care issues.
COMMENT:
Commenters expressed concerns
that Centers for Medicare and Medicaid Services (CMS) payment policies do
not provide for the reimbursement of certain modalities and procedures, such
as hot and cold packs, which are known to be common, necessary and appropriate
treatment for injured employees, and used for proper and complete rehabilitation.
Commenters recommend these modalities be made exceptions to the CMS payment
policies for the reimbursement under the Texas workers' compensation system,
as well as allowing an exception for therapy evaluation and treatment to occur
on the same day.
RESPONSE:
The commission disagrees with
commenters' recommendations. Allowing an exception for these particular modalities
or procedures would be contrary to the standardization efforts required by
House Bill 2600 (HB-2600). CMS devotes significant resources to develop its
coding, billing, and reimbursement policies, including input from physician
and provider panels. These evaluations include medical efficacy and reimbursement
considerations. Currently CMS policy identifies hot packs and cold packs as
part of bundled services; consequently they are not reimbursed separately.
Pursuant to HB-2600, the commission is to adopt HCFA payment policies relating
to coding, billing, and reporting. Stakeholders have noted that passage of
HB-2600 was driven by the universal understanding that over-utilization of
medical services is a major problem in the Texas workers' compensation system.
Carriers believe that use of the HCFA ground rules and guidelines will help
curtail some of the abuses in the current system. (Alliance of American Insurers,
correspondence dated October 4, 2001) Correct Coding Initiative (CCI) edits,
global billing rules, multiple procedure rules and other Medicare payment
policies have been carefully integrated with the Medicare relative values.
The relative value for a particular procedure is calculated by specifically
including the costs and resources that are bundled with that procedure by
Medicare's standard rules. Adopting RBRVS values without the bundling rules
could lead to inequities among healthcare providers. Medicare's medical edits
and payment guidelines recognize nationally accepted standards of care (e.g.,
CCI) and reporting requirements (e.g., American Medical Association (AMA)
Current Procedural Terminology (CPT)) that have been carefully scrutinized
for appropriateness by the AMA and the specialty societies. (Texas Medical
Association correspondence received October 4, 2001) Diverging from those
should be limited and should be based upon sound data and statutory or policy
conflicts between Medicare and the workers' compensation system.
COMMENT:
Commenter recommended the development
of a commission fast-track method for gaining reimbursement approval for new
modalities and procedural advancements.
RESPONSE:
The commission disagrees. The
commission is required by HB-2600, to adopt Medicare program reimbursement
methodologies, models and values or weights including coding, billing, and
reporting payment policies. These include Health Care Procedural Coding System
(HCPCS) level I and II codes and the related coding instructions and coding
edits. The AMA has a detailed process to adopt new CPT codes, including codes
for new and/or emerging technologies. Additionally, CMS has a systematic approach
to evaluate the efficacy of new technologies or procedures and if appropriate
develop relative values to allow reimbursement in the RBRVS system. CMS has
significant resources available to review and develop these policies. Since
one of the stated goals of HB-2600 is standardization, adhering to this system
and approach keeps the workers' compensation system consistent with the Medicare
system in the absence of any statutory or policy conflicts between Medicare
and the workers' compensation system.
COMMENT:
Commenter recommended that the
commission's Medical Fee Guideline (MFG) define services that are allowable
and medically necessary and disallow reimbursement of services deemed ineffective,
unreasonable, or inefficient as per CMS payment policies.
RESPONSE:
The commission disagrees that
medically necessary services should be further defined through the MFG. CMS
policies establish a method of dealing with these services. Adoption of CMS
coding, billing, and reporting payment policies incorporates these same policies
into the Texas workers' compensation system.
COMMENT:
Commenters expressed concerns
with the proposed concept of allowing medical dispute resolution to make an
exception to the CMS payment policies, stating that making or granting an
exception to an adopted rule would constitute illegal rule-making, and would
prevent the goal of achieving standardization. Commenter's opinion was that
the commission could amend the MFG and create an exception to CMS policy with
justification as to the minimal modification; or, that a system participant
could submit a formal request asking that CMS revisit a payment policy when
the issue is a medical disagreement on appropriate treatment, and not because
of a unique workers' compensation feature. Commenters stated that the wording
in this subsection requires clarification, and recommendations were made for
elimination or substitution of the second sentence in the subsection. The
language recommendation was, "Exceptions to the Medicare payment policies
for medical necessity may be provided by commission rule."
RESPONSE:
The commission agrees to clarify
that exceptions to Medicare payment policies for medical necessity may exist.
Because of the differences between the Texas workers' compensation system
and the Medicare system, the Act specifically acknowledges the necessity to
make "minimal modifications" to the reimbursement methodologies as necessary
to meet occupational injury requirements. Pursuant to §408.021 of the
Texas Labor Code, injured employees are entitled to all health care reasonably
required by the nature of the injury as and when needed to cure or relieve
the effect naturally resulting from the compensable injury, promotes recovery
or enhances the ability of the employer to return to or retain employment.
To the extent that this entitlement may differ from the entitlement of the
Medicare recipients, the decision of the commission through the IRO process
will be made on a case-by-cases basis and will take precedence over the provisions
adopted or utilized by CMS in administering the Medicare program. Subsection
(a)(4) states that: "Specific provisions contained in the Texas Workers' Compensation
Act (Act), or commission rules, including this rule, shall take precedence
over any conflicting provision adopted by utilized by CMS in administering
the Medicare program. Exceptions to Medicare payment policies for medical
necessity may be provided by commission rule. Language is amended in adopted
subsection (a)(4) to clarify that IRO decisions are made on a case-by-case
basis and that the commission will monitor IRO decisions to determine the
necessity of further rulemaking action.
COMMENT:
Commenter expressed support for
the proposed language in subsection (a)(5), stating that it complies with
the provisions of HB-2600.
RESPONSE:
The commission agrees that the
adopted rule is compliant with HB-2600 requirements.
COMMENT:
Commenter recommended that in
addition to the regular CMS updates, the commission should institute an annual
medical consumer price index (CPI) update factor to be applied to the conversion
factor, and offered that this approach is used by other states, is designed
to ensure adequate adjustment of reimbursement levels based on measurable
cost increases, and can be understood as a common, general practice of the
costs of doing business.
RESPONSE:
The commission disagrees that
this subsection of the rule requires the addition of a CPI factor. Conversion
factor recommendations are addressed later in this preamble relating to subsection
(c) of this rule.
COMMENT:
Commenter recommended clarification
of subsection (a)(5) as it is not clear if the proposed language in this subsection
is meant to apply to all aspects of revisions made by CMS, including the updated
changes in the pricing, the reimbursement rates, the payment policies, and
the listed fees for HCPCS codes. Commenter suggested that such linking of
the Texas workers' compensation system to the CMS system be more clearly defined,
enforced, and utilized for compliance.
RESPONSE:
The commission disagrees with
the need for clarification to subsection (a)(5). The rule requires that whenever
a component of the Medicare program (including payment policies, coding, billing
and reporting) is revised and effective it shall be required for compliance
with commission rules, decisions and advisories. This allows the commission
to maintain standardization as required by HB-2600. This is intended to include
Medicare revisions to the conversion factor.
Subsection (b)
COMMENT:
Commenters agreed with the adoption
of a standardized reimbursement system based on Medicare parameters, protocols
and use of the RBRVS structure, stating that it complies with the provisions
of HB-2600, and that it will provide many opportunities for improvements in
the Texas workers' compensation system. Commenter recommended that the commission
emphasize that along with adoption of the Medicare reimbursement system, the
commission is also adopting changes and/or revisions made by CMS. Commenter
recommends that changes and/or revisions made by CMS should be clearly defined,
enforced and utilized for compliance.
RESPONSE:
The commission agrees that the
adoption MFG complies with the provisions of HB-2600 and will provide opportunities
for standardization in the Texas workers' compensation system. Section (a)(5)
states, "Whenever a component of the Medicare program is revised and effective,
use of the revised component shall be required for compliance with commission
rules, decisions and orders for services rendered on or after the effective
date of the revised component." As CMS revises the Medicare program the notices
and explanatory information provided by CMS will also be applicable to the
Texas workers' compensation system. This alleviates the necessity for the
commission to provide explanation except where necessary for special features
of the workers' compensation system.
COMMENT:
Commenters opposed the linking
of workers' compensation to Medicare, stating that this comparison is improperly
skewed and not in the best interests of either the injured employee or the
employer. Commenters further expressed concerns regarding the adoption of
Medicare's procedures associated with the application of RBRVS methodology
to the commission's MFG. Commenters also expressed that it was not worth the
extra training to learn the Medicare guidelines or to risk penalties up to
$10,000 for accidental filing errors. Additionally, under Medicare, most patients
carry supplemental Medigap insurance to cover the difference in the billing
and allowable; no such "TWCC-Gap," second carrier, was proposed to cover the
unpaid difference.
RESPONSE:
The commission disagrees with
commenters' assertion that workers' compensation should not be linked to Medicare.
The link is mandated by Texas Labor Code §413.011(a). In addition, the
commission's proposed use of the RBRVS relative value units and the current
Medicare payment policies are mandated by §413.011. Healthcare providers
who are not already familiar with Medicare may need extra training to learn
the Medicare guidelines. Whether to obtain such training is a business decision
each health care provider must make. Regarding the issue of administrative
penalties, the commission agrees that the statute provides that a health care
provider who commits repeated administrative violations can be subject to
such penalties. However, except when the commission finds that the practice
was willful or part of an uncorrected pattern of practice, the commission
usually does not assess penalties of $10,000 per violation. The commission's
chief goal in taking any enforcement action is to ensure future compliance.
Therefore, a provider who had bill submission problems would likely have one
or more opportunities to correct the problems before facing significant penalties.
The commission disagrees that Medigap covers the difference between the billed
amount and the allowable. Medigap Insurance is a health insurance policy or
other health benefit plan offered by a private entity to those persons entitled
to Medicare benefits and is specifically designed to supplement Medicare benefits.
It fills in some of the "gaps" in Medicare coverage by providing payment for
some of the charges for which Medicare does not have responsibility due to
the applicability of deductibles, coinsurance amounts, or other limitations
imposed by Medicare. It does not include limited benefit coverage available
to Medicare beneficiaries such as "specified disease" or "hospital indemnity"
coverage. Also, it explicitly excludes a policy or plan offered by an employer
to employees or former employees, as well as that offered by a labor organization
to members or former members. Secondary insurance in the workers' compensation
system is irrelevant because coverage in workers' compensation is different
than in Medicare. Claims are paid at the MAR, which is the total allowable
in the workers' compensation system, for which the insurance carrier is liable.
There are no deductibles that injured employees are responsible for in the
workers' compensation system. Consequently, there would be no need for "TWCC-Gap"
coverage or secondary insurance.
COMMENT:
Commenter opposed the proposed
rule stating that it is not consistent with Medicare methodology by including
the requirement for non-standard coding that will prevent compliance with
federal law Health Insurance Portability and Accountability Act (HIPAA) requirements.
Commenter opposed the proposed rule stating that it will force Texas workers'
compensation claims to be indefinitely tied to a paper based filing system
by not requiring the electronic transmission of claims.
RESPONSE:
The commission disagrees that
the MFG is not consistent with Medicare methodology; the adopted rule implements
the standardization required by HB-2600 "with minimal modifications to those
reimbursement methodologies as necessary to meet occupational injury requirements."
The commission has adopted the coding, billing and reimbursement policies
developed and implemented by CMS. These cover the vast majority of services
in the workers' compensation system. The MFG requires the use of specific
non-standard coding for only the few workers' compensation treatments and
services in Texas not adequately addressed through the standard coding requirements
of CMS. These minimal modifications have been adopted to maintain the maximum
standardization between Medicare and commission coding. The current billing
rules, Chapter 133, Subchapter "D" regarding Dispute and Audit, do not require
electronic billing; however, future commission efforts are likely to address
and move toward electronic billing to comply with all applicable HIPAA regulations
within the required timeframes.
COMMENT:
Commenter expressed concern that
although Medicare appears to be a more organized approach, there may be many
unresolved problems in the Medicare system. Commenter opposes adoption of
the Medicare coding, billing and payment policies stating that most workers'
compensation healthcare providers do very little Medicare billing because
of the constantly changing policies.
RESPONSE:
As with the implementation of
any system, there may be some unanticipated problems, which will need to be
worked out. The Medicare reimbursement system is well established and commonly
utilized throughout the health care system. The commission is mandated by §413.011(a)
of Texas Labor Code to "...adopt the most current reimbursement methodologies,
models, and values or weights used by the federal Health Care Financing Administration,
including applicable payment policies relating to coding, billing, and reporting..."
The commission disagrees that most workers' compensation healthcare providers
do very little Medicare billing because of the constantly changing policies.
Healthcare providers consider many factors regarding business decisions for
their practice. Stakeholders have repeatedly told the commission that most
healthcare providers are familiar with the Medicare program and the standardization
that comes with the Medicare system would be a positive adjustment for the
Texas workers' compensation system. Although healthcare providers may make
individual practice decisions concerning the acceptance of Medicare or workers'
compensation reimbursement, the changing policies may be only one component
of that decision. Throughout the development of HB-2600 and during various
stakeholder meetings stakeholders expressed support for the standardization
achieved through the adoption of the CMS billing, coding, billing and reporting
because it is already a component of most healthcare providers' practices.
COMMENT:
Some commenters opposed the proposed
rule stating that the rule does not state what the Medicare policies are,
including billing and reimbursement policies. Commenter requested that when
Medicare adds a code that the commission adopts the same code to remain current
with the latest medical terminology. Commenter asked if the fee guidelines
would permit reimbursement for the application of a cold pack for acute inflammation
or acute exacerbation. Commenter asked what will be required of healthcare
providers regarding the timing of services provided; for instance, will a
healthcare provider who provides services in less than 23 minutes, be allowed
to only bill one unit of service, and, are resting and restroom times to be
deducted from timed services? Commenter asked for an explanation as to why
nurse practitioners are not covered as first assistants under Modifier 85
of the guidelines. Commenter asked for clarification as to how to interpret
reimbursement for services provided by Advance Practice Nurse (APN) and whether
they would be able to bill under their own name. Commenter asked if Certified
Registered Nurse Anesthetists (CRNAs) would be reimbursed at 100% as in the
previous rule.
RESPONSE:
The commission disagrees that
the MFG should specifically state the Medicare billing and reimbursement policies.
The rule clearly identifies that the commission adopts for coding, billing,
reporting and reimbursement of professional medical services the Medicare
program reimbursement methodologies, models, and values or weights including
its coding, billing, and reporting payment policies in effect on the date
the service is provided. Any additions or exceptions are specified in the
text of the rule. Specific provisions of the Act or commission rules, such
as preauthorization and payment time frames, take precedence over any conflicting
Medicare policies. The Medicare program is not a static system, and the commission
agrees that to achieve standardization with CMS it is necessary to include
the CMS coding and terminology changes at the time they are modified by CMS.
Therefore, the rule requires the use of the Medicare policies in effect on
the day that a service is provided. The commission clarifies that for resolving
issues regarding cold packs, the timing of services, nurse practitioners,
and CRNA reimbursement, healthcare providers and insurance carriers should
use the most current CMS policies that are in effect on the date of service.
COMMENT:
Commenters opposed the CCI edits
for a variety of reasons, stating that the edits are frequently arbitrary
and capricious; commenters also recommended either omitting the edits or creating
a separate set of CCI edits for the Texas workers' compensation system. Commenter
recommends dropping the CCI edits and creating a separate set for the Texas
workers' compensation system.
RESPONSE:
The commission disagrees that
the CCI edits should be deleted or that the commission should create a separate
set of edits for Texas workers' compensation. The commission is mandated to
adopt the federal HCFA, now called CMS, policies, as related to coding. The
HCFA coding policies include CCI edits, which are important components of
the Medicare system. Adhering to this component of the system helps assure
that the commission achieves and maintains the goal of standardization as
outlined in HB-2600. The commission disagrees that the edits are arbitrary
and capricious regarding any health care specialty. The composition of the
AMA's Correct Coding Policy Committee (CCPC) provides a balanced evaluation
of the proposed edits prior to CMS adoption. At AMA's insistence, "the HCFA
process of implementing CCI edits includes a review of the proposed coding
edits by the CCPC prior to implementation. The CCPC is comprised of 14 physicians
from various specialties, as well as 1 non-MD/DO health professional who represent
the interests of those non-MD/DO's that use CPT to report their services.
The CCPC has coordinated a process for each of 4 phases of the CCI to allow
for comment on any edit proposed. . . prior to implementation by all Medicare
carriers." Since the adoption of the CCI edits, CMS has added, deleted and/or
modified specific code edits based on public comment. CCI edits, global billing
rules, multiple procedure rules and other Medicare payment policies have been
carefully integrated with the Medicare relative values. The relative value
for a particular procedure is calculated by specifically including the costs
and resources that are bundled with that procedure by Medicare's standard
rules. Adopting RBRVS values without the bundling rules could lead to inequities
among healthcare providers.
COMMENT:
Commenters opposed the physical
therapy code edits stating that an organization contracted to CMS writes the
edits, and that the edits are written for the purpose of bundling. Commenter
opposed the use of the CCI edits stating the edits prevent the use of many
effective modalities and procedures for the treatment of certain diagnoses
as well as preventing the therapist from using sound judgment in selecting
the most effective method of patient treatment. Commenter recommends that
the commission consider the 20 code edits that are a hindrance to successful
recoveries and timely worker rehabilitation as noted by physical therapists.
RESPONSE:
The commission disagrees that
the CCI edits are written specifically for the purpose of bundling. According
to CMS, the purpose of the edits is to "identify and eliminate the incorrect
coding of medical services" and to "promote national correct coding methodologies
and to control improper coding leading to inappropriate payment. The code
edits were developed based on review of CPT code descriptors, CPT coding instructions
and guidelines, local Medicare carrier and national edits, and Medicare billing
history." CMS further says, "The CCI edits are pairs of CPT or HCPCS Level
II codes that are not separately payable except under certain circumstances.
The edits are applied to services billed by the same provider for the same
beneficiary on the same date of service." The commission further disagrees
that the CCI edits prevent or restrict the use of effective modalities, procedures
and treatments or are a hindrance to successful recoveries and timely worker
rehabilitation. It is the healthcare providers' responsibility to render medically
necessary and reasonable treatments or services. The commission disagrees
with the commenters' recommendation to consider modification to the CCI edits.
The CCI edits are carefully integrated with Medicare policies and RBRVS, Medicare's
medical edits and payment guidelines, recognized nationally accepted standards
of care and reporting requirements that have been carefully scrutinized for
appropriateness by the AMA and specialty societies. Since the adoption of
the CCI edits CMS has added, deleted and/or modified specific code edits based
on public comment, specifically codes that affect physical medicine and rehabilitation.
Healthcare provider issues or concerns regarding specific CCI edits, may be
submitted to: National Correct Coding Initiative, AdminaStar Federal, Inc.,
P.O. Box 50469, Indianapolis, IN 46250-0469.
COMMENT:
Commenter opposes the CCI edits
stating that the commission as well as healthcare providers will be required
to edit the codes every 4 months to stay in sync with Medicare edits. Commenter
questioned who will keep track of which policy is in place on a given day.
RESPONSE:
The commission disagrees. It
is the function of CMS to edit the codes every four months; the commission
and healthcare providers will be required to implement the edits as CMS makes
the changes. Software programs for CCI edits are easily obtainable and can
be purchased with updates applied by the manufacturer as they are published.
Most of the health care claims industry use CCI edits and are very familiar
with the process of updating. It is necessary that the workers' compensation
system maintain consistency with the Medicare system to provider standardization
with other reimbursement structures. System participants may obtain copies
of the CCI Policy and Edits Manual from the National Technical Information
Service (NTIS) website at
www.nti.gov/product/correct-coding.htm
, or by contacting NTIS at 1-800-363-2068 or 703-605-6060.
COMMENT:
Commenter is concerned that adopting
a Medicare reimbursement system will adopt many of the rules that only apply
to a HCFA program, that Medicare excludes diagnoses used in the workers' compensation
system, that many of the rules as well as the CCI edits have no relevance
to workers' compensation and that the commission assumes that the younger
working population should be treated like senior citizens. Commenters stated
that the CCI edits will greatly restrict the types of treatment injured workers
receive in order to return to work. Commenters expressed concern that carriers
will adopt the CCI edits not relevant to the workers' compensation system,
resulting in a huge administrative expense to the system as well as to the
medical dispute resolution process. Commenters further oppose the CCI edits
stating that Medicare does not address return to work goals, which are not
an issue in the Medicare system.
RESPONSE:
The commission disagrees. The
use of CCI edits is currently a common business practice for processing medical
claims by non-Medicare health care systems. In fact, some carriers used the
CCI edits to process both group health and workers' compensation claims prior
to the adoption of this rule. This use would indicate the CCI edits are applicable
to both the Medicare and non-Medicare populations. The commission disagrees
that certain diagnoses are excluded from the Medicare system; Medicare policies
do, however, exclude coverage for specific treatments that are considered
experimental or have not yet been proven efficacious or are contradictory
or not indicated for the diagnosis. These coverage issues are included in
the CCI edits and are appropriate for workers' compensation claims as well
as other types of claims. HB-2600 specifically directed the commission to
"adopt the most current reimbursement methodologies, models, and values or
weights used by the federal Health Care Financing Administration (HCFA) to
achieve standardization, including applicable payment policies relating to
coding, billing and reporting..." Additionally, it is the healthcare providers'
responsibility to render medically necessary and reasonable treatments or
services. Exceptions to Medicare payment policies for medical necessity may
be provided by commission rule. Subsection (a)(4) clarifies that Independent
Review Organization (IRO) decisions are made on a case-by-case basis and that
the commission will monitor IRO decisions to determine the necessity of further
rulemaking action. The commission disagrees that the use of the CCI edits
will result in a huge administrative expense to the system since the CCI edits
are an important component of standardization, a goal of HB-2600 and according
to stakeholders are already a consideration in a majority of provider practices.
From previous TMA correspondence, "...there is an increase in disputes when
carriers deviate from standard bundling or only partially implement Medicare's
rules. The legislative intent of HB-2600 is to reduce the number of appeals
and disputes in the system by standardizing the edits and related rules."
The commission agrees with the TMA statement and believes the benefits of
standardization including CCI edits are applicable to both carriers and healthcare
providers. The commission agrees that CCI edits do not address return to work
goals since the purpose of CCI edits, as previously stated, deal with correct
coding issues and not with return to work goals; commission rules address
return to work issues.
COMMENT:
Commenter is opposed to the rule
as it stands stating it is not consistent with legislation and does not ensure
that injured workers have access to effective therapies. Commenter recommends
modifying the proposed rule to utilize the recently adopted CMS pass-through
system for implantable products in order for the rule to be consistent with
legislation and to ensure that injured workers have access to effective therapies.
RESPONSE:
The commission disagrees that
the rule is not consistent with legislation as the commission adopts all Medicare
payment policies related to coding, billing and reporting. The MFG addresses
reimbursement, which is one part of ensuring injured employees have access
to quality medical care. Other components that impact access throughout the
general healthcare system such as the number of physicians per capita are
outside the purview and control of the workers' compensation system. In recent
correspondence with the commission, the TABCC Technical Work Group stated,
"There is no evidence to suggest Medicare beneficiaries have any difficulty
gaining access to needed services or that the quality of those services is
diminished by Medicare reimbursement rates or payment policies. For durable
medical equipment (DME) and dental services, there is no evidence that beneficiaries
of that program have difficulty gaining access to services or that the quality
of services has been decreased by the payment schedule." Although some healthcare
providers may choose not to treat injured employees, there is no evidence
to indicate that the reduction of the number of healthcare providers will
negatively impact injured employees in limiting access to care. The commission
declines to respond to the commenters' allegation that physicians are opting
out of the Medicare system since the commenter provided no supporting documentation.
In contrast, in recent testimony before Congress, Glenn M. Hackbarth, J.D.,
Chairman of Medicare Payment Advisory Commission (MedPAC) stated that according
to data from the Medicare Current Beneficiary Survey access to care was not
a problem in 1999. This survey also showed that the number of healthcare providers
accepting Medicare payment had increased from previous surveys. This would
indicate that Medicare reimbursement alone is not a deterrent for healthcare
providers to provide access to care. Further, Chairman Hackbarth added, "One
of the most important findings of the survey was that among physicians accepting
all or some new patients, more than 95% said they were accepting new Medicare
fee-for-service patients, a finding consistent with the results of another
recent survey." CMS pass-through-system payments relate to facility reimbursements,
which are addressed in other commission fee guidelines.
COMMENT:
Commenter recommends that the
commission make a list available with fees so healthcare providers will know
if they are being reimbursed properly.
RESPONSE:
The commission disagrees with
the suggestion to make a fee list available for healthcare providers because
the most current reimbursement methodologies, including relative value units,
Geographical Practice Cost Indices (GPCIs) and other factors are readily available
through CMS. Additional publication of this info would be duplicative and
potentially confusing. In addition, it is relatively easy for a healthcare
provider to calculate reimbursement rates by using the most current Medicare
rate in effect on the date of service and adjusting by the adopted multiplier.
Detailed Medicare reimbursement information for Texas is available online,
free of charge at the website for fiscal intermediary for Texas, TrailBlazer
Health Enterprises.
COMMENT:
Commenter supports the application
of the Medicare payment policies and coding edits, and states this will result
in greater standardization of workers' compensation medical care billing and
payment, and will ultimately reduce administrative burdens for healthcare
providers, insurance carriers and the commission. Commenter recommends that
the commission address any inconsistencies between the Medicare payment policies
and the commission's preauthorization requirements, especially since the payment
policies are constantly being updated and the preauthorization rule is static.
Commenter recommends that the commission include a monitoring process to ensure
that both the healthcare providers and insurance carriers are compliant with
all the coding requirements and payment policies as well as with the requirements
for timeliness of payment. Commenter recommends that the commission address
how disputes over the Medicare payment policies should be categorized (as
either medical necessity or as fee disputes). Commenter recommends that the
commission address medical services not covered under the Medicare payment
system, whether these can be paid by exception (and if so, under what circumstances)
and whether denial of these services based on the payment policies constitutes
a medical dispute.
RESPONSE:
The commission agrees that application
of the Medicare payment policies and coding edits will result in greater standardization
and ultimately reduction of administrative burdens. Rule §134.600 regarding
Preauthorization, Concurrent Review, and Voluntary Certification of Health
Care, can be amended or revised as needed. The commission disagrees that any
conflicts or inconsistencies between §134.600 and the adopted Medicare
policies require additional clarification since §134.202 clearly states,
"Specific provisions contained in the Texas Workers' Compensation Act (Act)
or commission rules, including this rule, shall take precedence over any conflicting
provision adopted by or utilized by CMS in administering the Medicare program."
The commission agrees with the commenters' recommendation that healthcare
providers and insurance carriers be monitored for compliance, however, that
is a function of the Division of Compliance and Practices and is not within
the scope of the MFG. The commission also disagrees that medical necessity
and fee disputes be addressed in the MFG. Disputes are specifically addressed
in other commission rules, primarily §§133.300 - 133.308. Medical
services not covered under Medicare are addressed in (a)(4) as it relates
to medical necessity and (c)(6) of this rule, where directions are given to
a carrier to "assign a relative value which is based on nationally recognized
published relative value studies, published medical dispute decisions, and
values assigned for services involving similar work and resource commitments."
Additionally the commission disagrees that the MFG should define types of
disputes as these items are specifically addressed in other commission rules.
COMMENT:
Commenter supports reforms but
opposes the Medicare system stating that it is not currently an acceptable
standard, it is very confusing, and the methodologies and coding are ever
changing. Commenter expressed opposition to the adoption of the Medicare policies
stating that the policies prevent the physical therapist from using sound
judgment in rendering patient care and amounts to the practicing of physical
therapy by a governmental body.
RESPONSE:
The commission disagrees. The
Medicare system is a well known and commonly used system nationwide, and although
the Medicare rules are revised regularly, there will be a period of transition
for healthcare providers not familiar with Medicare. The commission has been
mandated by HB-2600 to adopt the "...most current reimbursement methodologies,
models, and values or weights used by the federal Health Care Financing Administration..."
to assist in achieving the stated goal of standardization for all health care
services including physical medicine. The commission disagrees that Medicare
policies will prevent the use of good judgment by physical therapists since
doctors retain the responsibility to prescribe medically necessary treatments
and therapies to injured employees.
COMMENT:
Commenter questioned whether healthcare
providers would be permitted to omit documentation.
RESPONSE:
The commission clarifies that
the healthcare providers must submit documentation as required in Medicare's
billing, coding and reimbursement policies, as well as in this and other commission
rules.
COMMENT:
Commenters questioned why the
Medicare payment policies were omitted from the proposal, stating that it
is unfair to incorporate all other parts of Medicare policy and exclude their
timely payment policy. A commenter further stated that the proposal is not
at all in line with Medicare payment policies, which include: up to 2 years
for submission of billing (with a 10% reduction if billed during 2nd year)
electronic submission with a 14-day payment period and 30-day payment period
if paper billing is used. Additionally, the Medicare system encourages electronic
claims submission with no requirement to submit documentation. Commenters
inquired if the commission would incorporate these payment policies? Additionally,
commenter inquired how the commission's implementation of Medicare, as intended
by HB-2600, would affect the submission of documentation and process of preauthorization,
neither of which are part of the Medicare model.
RESPONSE:
The commission disagrees that
the Medicare payment policies were omitted from the proposal. For coding,
billing, reporting and reimbursement of professional medical services, the
Texas workers' compensation system participants shall apply the Medicare program
reimbursement methodologies, models, and values or weights including its coding,
billing, and reporting payment policies in effect on the date the service
is provided, per subsection (b) of the adopted rule. Section 413.011 of the
Texas Labor Code provides that minimal modifications to Medicare reimbursement
methodologies should be made as necessary to meet occupational injury requirements.
Although the current billing rules addressed in Subchapter "D" regarding Dispute
and Audit of Bills by Insurance Carriers, Chapter 133, do not require electronic
billing, future commission efforts through the agency Business Process Improvement
(BPI) initiatives are likely to address and move toward electronic billing,
since this is a component of the agency BPI initiatives. Necessary modifications
to the Medicare system have been made to adapt it to features unique to the
Texas workers' compensation system (such as the ability of chiropractors to
serve as treatment doctors and the use of designated doctors in the dispute
resolution process). Any additions or exceptions are specified in the text
of the rule. Specific provisions of the Act or commission rules, such as preauthorization
and payment time frames, take precedence over any conflicting Medicare policies.
These features are required and are governed by the workers' compensation
statute.
Subsection (c)
COMMENT:
Commenters expressed support for
this subsection of the rule as proposed, stating the establishment of a fee
schedule benchmark is a good idea, as is the use of the Medicare conversion
factors and the increase in the rates for the Evaluation and Management functions.
Commenters supported the 120% of Medicare as a proposed reimbursement rate,
stating it is the needed realignment of professional medical fees, places
less focus on highly over-utilized and over-compensated areas of surgery and
physical medicine. Commenters offered support as it is a fair, reasonable
and equitable reimbursement that will lead to competent treatment for injured
employees and to cost containment in Texas. A commenter further stated that
there would be no access problem to quality medical care for injured employees
if the provider is paid at 120% of Medicare. Commenters supported the proposed
reimbursement level at 120% of the CMS rate as a just rate for injured employees
in Texas to receive quality medical care. Commenters specifically supported
the reimbursement alignment of workers' compensation with CMS as an improvement
over an earlier proposal, particularly regarding proposed fees for Evaluation
and Management services and equal reimbursement rates for physician medical
services performed by physician assistants. Commenters affirmed the commission's
proposed rule as a significant endeavor to bring the rising cost of medical
benefits in the TWCC system in line with fees for similar services in other
payment systems, stating that the overcompensation of physicians by the previous
Medical Fee Guideline, relative to compensation provided by other payment
systems, encouraged over-utilization within the workers' compensation arena.
Commenters additionally thanked commission staff for their efforts to control
the cost of medical benefits, thus keeping carriers from leaving the system
and protecting employers from having to "go bare" because of high premiums.
RESPONSE:
The commission agrees with commenters'
support of §134.202(c) regarding the use of a fee schedule benchmark
of the Medicare conversion factors, as well as the increase in rates for the
Evaluation and Management functions. After review of public comment and reevaluation,
the conversion factor has been changed to 125%. For the reasons discussed
elsewhere in this preamble the commission believes this conversion factor
results in fair and reasonable reimbursement for workers' compensation services
in Texas in accordance with all of the requirements of §413.011.
COMMENT:
Commenters expressed support for
proposed §134.202 as it brings the Medical Fee Guideline in compliance
with the mandated requirements of HB-2600. Commenters reported that the legislature
identified medical costs in general as the major issue, not just over-utilization.
Commenters expressed support stating that the benefits of adopting the rule,
as outlined, include standardization, maintenance of a current fee structure,
reduced fees for administration of the system, with potentially fewer disputes
filed and reduction in over-utilization. Support also included commenter's
position that CMS is not just designed for the elderly, but also for the disabled,
including all injured persons, work related or otherwise.
RESPONSE:
The commission agrees with commenters'
support of proposed §134.202 and believes it complies with the HB-2600
mandates as well as contributing to cost containment.
COMMENT:
There were many comments opposing
the proposed fees. Commenters stated that an arbitrary reduction in the proposed
reimbursement rates is unacceptable, because they are not fair and reasonable.
A commenter suggested that the proposed rule shows disrespect and contempt
for healthcare providers and injured employees in Texas and felt there was
undue influence by business and carriers. Commenter stated the reimbursement
should be market-driven, thus fair and comparable to the fee structure of
all commercial carriers in Texas instead of following artificially low, federally
mandated fees as seen in the Medicare system. Commenter stated healthcare
providers should be reimbursed adequately and this does not mean following
the Medicare reimbursement schedule. Commenters provided numerous reasons
for why they felt the proposed rates were not fair and reasonable, such as:
it reduces reimbursements by 20% across the board from the current MFG; it
reduces total payments to healthcare providers by 16%; fees paid under the
current MFG are already low in comparison to other states workers' compensation
systems; fees should be compared to similar commercial or private fees established
in the market place where the proposed rates would be shown to be substantially
less than average fees paid by discounted commercial payers; incorrectly assumes
that physician reimbursements are the source of higher than average workers'
compensation costs in Texas as compared to other states; and, a proposed fee
schedule that is a minimum of 40% less than current contracts negotiated in
the workers' compensation system shows that there was little effort expended
in determining what is fair and reasonable. Commenters opposed the fee guideline
as proposed for reasons that it does not meet the statutory requirements.
Commenters suggested that since it is not fair and reasonable, it should be
withdrawn and re-proposed based on a range of other commercial insurance fee
schedules, or at least from a total market which includes commercial payers,
and a percentage of statewide usual, customary and reasonable. Commenters
suggested that fair and reasonable must include the population being served,
and the associated administrative requirements of serving this population.
Another commenter asked if it is fair and reasonable to penalize healthcare
providers offering services in good faith when the parameters for treatment
in the Medicare system are more restrictive and unjust to the care of an injured
employee. Commenters additionally opposed the fair and reasonableness of the
proposed rates by noting that there has been no increase in workers' compensation
rates since 1996; Medicare has decreased their reimbursements by 5.4% effective
January 13, 2002 thereby demonstrating that a benchmark to Medicare is an
unreasonable approach for the commission to take; and that fair and reasonable
rates are meant to be parallel with the economics of inflation as well as
necessary to keep quality healthcare providers in the system. Commenters recommended
the commission significantly increase the proposed reimbursement rate, to
include yearly updates. Commenters recommended reimbursements should be compared
to the commercial fees established in the market place, that fees must be
established based on the current market data, and not dropped to below the
commercial insurance level as are the current fees. Commenters offered recommendations
including the withdrawal of these proposed rates and the revision of a reimbursement
system that is more fair and reasonable; and one that will ensure an adequate
pool of highly qualified and competent physicians and healthcare providers
in all specialties.
Some commenters opposed the 120% of Medicare reimbursement rates. Other
commenters believed 120% of Medicare to be a violation of HB-2600, which,
in essence states the commission should not adopt Medicare conversion factors,
and should ensure the provision of, and access to, quality medical care. Commenter
contended the commission was negligent in adopting the Medicare payment policies.
Commenter acknowledged that while the insurance carriers support the proposed
120% of Medicare, this rate is untenable and insulting to the medical community.
Commenter stated that the proposal of an across the board 120% of Medicare
based fee represents a breach in trust between the commission, orthopedic
surgeons and all healthcare providers. Commenter stated that not only is 120%
of Medicare below commercial payment rates; but also, rolled into commercial
payment rates are the HMO and PPO discounts, which are based on the promise
of additional patient referrals. Commenter stated such considerations are
not permissible in the Texas workers' compensation system.
Many commenters recommended an increase in the conversion factor. Recommendations
ranged from 130%-400% of Medicare, due to the costs of workers' compensation,
to ensure access to care, and to assure that the highest quality healthcare
providers remain in the system. One commenter recommended 151% of Medicare
because the 1996 MFG reimburses 140% of Medicare and per the United States
Bureau of Labor Statistics (BLS) the CPI has risen 11% from 1997-2001. Some
commenters recommended that fees remain unchanged to maintain the current
level of reimbursement and still hold the commission in the mid-range of commercial
reimbursement. Commenters recommended a fee increase, of at least 10%, above
the 1996 MFG for those healthcare providers trying to improve care for injured
employees while trying to save costs. Commenter recommended to use fees established
September 1, 1988 and increase fees based on inflation. Commenter stated an
increase for specific and ancillary services would allow for greater participation
in the system, greater care for the injured employee, and eventually greater
savings. Commenter recommended conversion factors be increased to the commercial
median as outlined by Milliman while keeping the E/M conversion factor $44.
Commenters stated the last MFG proposal resulted in a recommended conversion
factor of 170% and the commission was encouraged to consider a conversion
factor of 190%-200%, as this range is budget neutral. Commenter felt betrayed
and blindsided when the renewed proposal came back at 120% of Medicare. Commenter
stated a reimbursement rate of 200% of Medicare surgical procedures and 120%
of Medicare for evaluation and management services would be a fairer way to
compensate physicians. Commenter recommended 114% of Medicare for E/M, 170%
for radiology, and 195%-200% for surgery. Commenters recommended that reimbursement
be increased at a minimum by 7% in order to maintain consistency with BLS
data that shows, between 1996 and 2000, the CPI for physician services increased
by 13% and the producer price index for office of physicians increased by
7%. Commenter stated proposed rates represent a purported 16% decrease in
payment, but the 2002 Medicare payment schedule has a built-in 5.4% decrease
in the GNP. Commenter supported RBRVS and recommended the commission develop
its own conversion factors based on realistic cost information developed by
the commission.
Other commenters recommended that workers' compensation reimbursement should
not be higher than 100%-110% of Medicare because Texas has the highest expense
in workers' compensation injuries. Commenter stated it is reasonable for the
commission to use the Medicare conversion factor as a starting point and consider
additional factors to determine if fees should be raised or lowered. Commenter
stated the workers' compensation system is more expensive than just the routine
Medicare; therefore, 115% of Medicare is fair.
Some commenters advocated using multiple conversion factors. Commenter
stated commercial payers and other workers' compensation plans are using different
conversion factors for different services. Commenter supported the use of
multiple conversion factors due to the fact that there will be huge disruptive
changes in physician payment. Commenters stated there was neither statutorily
compliant justification nor reasoning as to why the commission unilaterally
based the MARs at Medicare factors multiplied by one across-the-board conversion
factor for all categories of medical services. Commenters stated the commission's
administrative requirements, as well as the differences between the commercial
market medians and the current MFG guideline reimbursement levels, vary between
these medical service categories and one arbitrary reimbursement rate does
not take into account the specialized nature of treatments, and their impact
on the injured employee, when calculating reimbursement rates, may lead the
system to experience major problems and cost increases due to reimbursements
that are set too low. Commenter stated the commission has now determined conversion
factors by service category are not indicated, when allegedly the purpose
of the varied conversion factors in a previous proposal was "...to maintain
a relationship with reimbursement levels in commercial and workers' compensation
systems (i.e., non-Medicare market).
Commenter stated Medicare has streamlined their system, via electronic
billing and payment, and straight forward verification of coverage, to allow
for healthcare providers to accept less reimbursement for these patients due
to the significantly reduced administrative costs, healthcare providers accessing
the workers' compensation system have none of these benefits. Commenter recommended
the fair market value for workers' compensation would allow for patient steerage
plus an allowance for increased administrative costs, since the data reported
to the commission by its consulting actuary represents discounted fee schedules
given in return for patient steerage.
There were a number of comments specifically addressing the conversion
factor for anesthesia. Commenter states $43.40 is an appropriate conversion
factor for anesthesia services in the workers' compensation system, but should
not be tied exclusively to Medicare's conversion factor, the letter of intent
in HB-2600 was to comply with the statute by not adopting Medicare's fee schedule,
conversion factor's, or payment adjustment factors. Commenters oppose the
proposed decrease in the anesthesia fee schedule, the rules for pre-approval
and payment for workers' compensation are very strict and often result in
non-payment. Commenter stated the conversion factor for anesthesiologists
in San Antonio would be a 52% reduction in current compensation for rendered
services, which is twice the reduction even proposed in the Milliman Report
of June 2001. Commenter stated the current anesthesia conversion factor is
already 10%-20% below discounted commercial managed care fees in our market.
Commenter opposed anesthesia conversion factor, stating anesthesiologists
are subject to significant penalties for medically directed CRNAs, which further
reduce payments and are frequently subjected to arbitrary non-payment for
factors beyond their control.
Commenters expressed various oppositional sentiments to the proposed surgical
conversion factor, stating it would only serve to add to the surgeons' problems
in recruitment of competent coverage, and represents a similar cut in the
surgeon's ability to provide care on behalf of the injured employee, is unfair
to the surgeon as well as the injured employee, and only serves to benefit
the carriers it is not enough for the amount of administrative costs of caring
for the workers' compensation patient. Commenters indicated that although
fees were raised for "add on" procedures, the commission re-proposed to reduce
them to a 25% allowable, which would be even lower than current reimbursements,
and that the proposed conversion factor is just another way of limiting surgeon's
practice and the ability to practice at the standards of the specialty. Commenters
expected an appropriate surgical conversion factor to be properly implemented
to reflect astronomical expense not experienced by other disciplines. A commenter
quoted the Texas Workers' Compensation Advisor, where the median RBRVS conversion
factor for surgery was $74.48, while the proposed conversion factor for surgery,
based on 120% of Medicare, is more than 40% less than the median of other
states. Commenters sited the Milliman U.S.A. data that showed no listed commercial
payer or state that pays fees for surgical services as low as 120% of Medicare.
Commenter also noted the Milliman data recognized the appropriateness of a
surgical conversion factor, which would account for increased costs of providing
similar services to injured employees of Texas as opposed to Medicare or commercial
carriers. Commenter additionally noted that Milliman data brought into account
historical payment rates, which should have a bearing on future determination
of fair and reasonable rates. Commenters recommended several alternative reimbursement
rates for surgery, including: 190% of Medicare; 195%-200% of Medicare, as
this is what the current state median is; a fair and reasonable fee for any
good or service is generally the price that could be secured in a free market
transaction between unrelated parties; more than 203% of Medicare, which needs
to be more than the believed current conversion factor for surgical fees;
and 150% of Medicare. Other commenters recommended a carve-out plan rather
than a percentage of Medicare allowables, as certain procedures are performed
more often than others on the average working person. Commenter stated fees
for surgical procedures are substantially less than average fees paid by discounted
commercial payers and the fees paid in other states. Commenter stated the
proposed rule could result in a reduction of 38%-41% for surgical patients
who require more effort to treat. More compensation is required or surgeons
will opt out of the system. Commenter was concerned that the specialists in
his facility will receive a $400 reduction. Commenter stated the proposed
reimbursement would be devastating to orthopedic practices. Commenter stated
there would be an increase in unemployment among people working for medical
practices. Commenters recommended that the commission use St. Anthony's Relative
Value scale and adopt a factor of 100%-110% for surgical procedures. Commenter
further stated that 160% of Medicare would be more appropriate if the commission
used the HCFA methodology.
Commenters opposed the reduction in reimbursement for medicine services
as not fair and reasonable for proper treatment or evaluative purposes. Commenter
recommended a reasonable reimbursement for evaluation and management codes.
Commenters stated 120% of Medicare is not "fair and reasonable" reimbursement
for mental health services (which are already undervalued by Medicare methodology)
due to overhead costs of preauthorization, rebilling of "clean claims" due
to errors, incompetence, and violations by insurance carriers, and the written
documentation that must be submitted. Commenters stated physical therapy services
need an increase not a decrease, if the proposed MFG is implemented, therapy
staffs in clinics and hospitals will experience reduced hours and lay-offs.
Commenter opposed decrease in reimbursement for electromygrams (EMGs) and
nerve conduction velocities (NCVs), decreasing payment to neurologists down
to the Medicare level will reduce the reimbursement so that neurologists will
not be able to afford to do these services, maintain their offices and the
equipment necessary to perform these studies. Commenter was unable to determine
the basis for a 120% conversion factor for rehabilitation services and DME
related items. Commenter recommended the conversion factor for medicine services
be increased to 135% of Medicare. Commenters included the following remarks
about the proposed conversion factor for physical medicine: does not meet
the statute's reasonable and customary guideline, and is not in line with
the stated median commercial rates as presented by Milliman; if the conversion
factor adopted by the CMS multiplied by 120%, physical medicine and rehabilitation
services would see an approximate 17% decrease in revenues, when there should
be an increase to compensate healthcare providers for the ever-increasing
costs of delivering these services; opposes the current Medicare fee schedule
which greatly undervalues the physical medicine modalities and procedures,
as the 2002 Medicare schedule further reduces the reimbursement; and using
RBRVS, the baseline reimbursement and conversion factors applied to physical
medicine are undervalued. Commenter disagreed with the estimated 20% reduction
in fees for physical medicine, and stated it is a 38% reduction. Another commenter
requested clarification as to the rationale for the indication that the proposed
fee schedule for physical medicine is 11% below the commercial median in Texas,
and asked for explanation as to how these fees were derived, including the
economic criteria used, and comparisons to commercial regional fee schedules,
as well as other states. Commenter disagreed with the assumption that the
proposed fees will represent a 38% decrease for orthopedists who say it will
be closer to a 100% decrease. Commenters oppose radiology reimbursement. Commenter
recommended the commission consider increasing diagnostic reimbursements,
workers' compensation encompasses certain demands that don't exist with the
Medicare population, for example an injured employee is more likely to have
an magnetic resonance imaging (MRI) on an injured extremity than the Medicare
population generally would.
Commenter recommended that the 120% conversion factor be recalculated using
an objective methodology for each separate category of medical service. This
objective methodology should consider variations in the commission's administrative
requirements as well as the differences between the current fee levels and
commercial market medians for each category of service, weighted accordingly.
Commenter suggested the proposed rates are not fair and reasonable as no
medical practice could remain solvent with a 2/3 reduction of revenue, while
the very best office overhead is 35%, and average office overhead is 65% for
general and family practitioners.
Commenters opposed the proposed reimbursement rates because the administrative
burdens and complexities in the workers' compensation system are greater than
those in other health care systems. Commenters opposed the proposed workers'
compensation reimbursement rates stating that the injured patient population
is more time-consuming, difficult and costly to treat than average patients,
and there is no guarantee of payment. Commenters felt the proposed reimbursement
rates are a penalty. One commenter opined that this proposal is similar to
the New York workers' compensation system with only poor quality health care
being provided to injured employees as a result of the added paperwork and
other deadline requirements. Examples were sited of added burdens for which
there is no reimbursement, such as: paperwork and forms needed to obtain reimbursement
for treatment, return to work issues; case manager inquiries; letters of medical
necessity; attorney's fees and other associated legal costs; disincentives
the carriers choose for not paying healthcare providers and for not abiding
by a legal evidentiary standard; costs of mailing a claim; carriers being
allowed to take up to 60 days to issue an explanation of benefits (EOB); the
potential of paying upfront costs of $460 to file a dispute; risking the potential
need for paying more if the carrier appeals the dispute decision; and the
commission's required two-day courses for designated doctor training. Commenters
recommended fees be raised, not lowered; or, increasing the administrative
component into the reimbursement rates to compensate healthcare providers
for the extra medical care required of an injured, acute care patient, and
for the extra clerical help that is required to meet the ever-increasing bureaucratic
demands of the workers' compensation system. Other commenters recommended
the elimination of workers' compensation rules that require such time-consuming
efforts to perform the paperwork and other required burdens.
Commenters opposed the 120% of Medicare reimbursement rates as proposed,
explaining that fees and associated practice expenses, such as rent; staffing;
equipment; malpractice; advancing technology costs with attendant meetings
and laboratory costs; processing paper claims; etc. have increased in the
medical community, and reimbursement for the same level of health care to
cover patient needs should also increase proportionately. Commenters additionally
observed that the workers' compensation health care community has not experienced
an increase in rates since the 1996 MFG, although requirements to comply with
commission rules have increased steadily, and other health care systems have
increased rates as much as 40%. Another commenter contended that because the
1996 MFG was established to be budget neutral healthcare providers have not
had an increase in reimbursement since 1991.
Commenter stated the commission has proposed a conversion factor that is
estimated to produce a 31% aggregate fee decrease; however, it demonstrates
no rationale to suggest that this reduction is appropriate or reasonable as
required by law. Commenter stated the commission does not appear to have considered
economic information, much of it from its own consultant, regarding the cost
of operating physician practices, prices paid in the Texas marketplace, medical
cost inflation, and fees paid by other workers' compensation programs. Commenters
stated costs have dramatically increased since 1996, and expressed concern
that over the four-year period of 1996-1999 those physician payments only
increased 1%. Commenters contended that implementing the proposed MFG would
translate into an effective reduction of 20%-31% from current reimbursement
for these services. Commenter stated he would be required to see 20% of his
patients at a 50% discount. Commenter stated the Medicare rate is 34% of the
average commercial rate. Commenters stated the proposed conversion factor
will produce a 31% aggregate decrease in physician fees, while the most recent
commission's Systems Data Report (SDR) indicates from 1996-1999 the total
reported medical payments to physicians increased by only 1% compared to a
16% increase for hospitals and 40% for other healthcare providers.
Commenter stated that not only is 120% of Medicare below commercial payment
rates; but also, rolled into commercial payment rates are the HMO and PPO
discounts, which are based on the promise of additional patient referrals.
Commenter stated such considerations are not permissible in the Texas workers'
compensation system.
Commenter acknowledged that even Medicare doesn't have the rules and regulations
that tie up the health care provider's time, as is the case with the workers'
compensation patient. Commenter suggested the Brinker study conducted in Houston
supports this assertion. Commenters also indicated that the energy and commitment
it takes to care for a workers' compensation patient is approximately 250%
of the overhead as compared to Medicare. Commenter suggested that most PPOs
in Texas are reimbursing at 140% to 170% of 2001 Medicare, their claims are
filed electronically with little to no preauthorization and documentation
requirements, and the law requires payment within 45 days or interest in paid.
Commenters recommended withdrawal and re-proposal of a new rule, with appropriate
conversion factors that relate to high cost of practice expenses, and with
ground rules that contain stakeholder input. Commenter suggests that the goals
in such a re-proposal should include: defining how best to set program safeguards;
how to focus the issue on appropriate and effective utilization; achieving
standardization with other health insurance programs; cutting administrative
costs; and setting fair and reasonable reimbursement rates.
RESPONSE:
The commission disagrees. In
determining "fair and reasonable" reimbursement levels the commission must
look at several factors, as "fair and reasonable" is not based solely on the
market value of services provided to injured employees but is a balance of
all the required components of the Act. First, the commission is mandated
to set reimbursement levels and meets this responsibility through it's adopted
fee guidelines. In setting reimbursement levels the commission is tasked with
several rigorous statutory requirements that must be balanced. Section 413.011(d)
of the Act requires that a fair and reasonable standard must be met and fees
must be "designed to ensure the quality of medical care and to achieve effective
medical cost control." In addition, the statute provides that, "The guidelines
may not provide for payment of a fee in excess of the fee charged for similar
treatment of an injured individual of an equivalent standard of living and
paid by that individual or by someone acting on that individual's behalf.
The commission shall consider the increased security of payment afforded by
this subtitle in establishing the fee guidelines."
Further, HB-2600, adopted during the 2001 Texas Legislative Session, amended §413.011.
In addition to the previous requirements, the revised statute also requires
that the commission: use health care reimbursement policies and guidelines
that reflect the standardized reimbursement structures found in other health
care delivery systems with minimal modifications to those reimbursement methodologies
as necessary to meet occupational injury requirements; adopt the most current
reimbursement methodologies, models, and values or weights used by the federal
HCFA to achieve standardization, including applicable payment policies relating
to coding, billing, and reporting, and may modify documentation requirements
as necessary to meet the requirements of §413.053 of the Act (relating
to Standards of Reporting and Billing); develop conversion factors or other
payment adjustment factors in determining appropriate fees, taking into account
economic indicators in health care and the requirements quoted above; provide
for reasonable fees for the evaluation and management of care as required
by §408.025(c) and commission rules. The statute also states that this
law does not adopt the Medicare fee schedule, and the commission shall not
adopt conversion factors or other payment adjustment factors based solely
on those factors as developed by the HCFA. Finally, the statute states that
it is not to be interpreted in a manner that would discriminate in the amount
or method of payment or reimbursement for services in a manner prohibited
by Section 3(d), Article 21.52, Insurance Code, or as restricting the ability
of chiropractors to serve as treating doctors as authorized by this subtitle.
HB-2600 mandates that the commission use the Medicare reimbursement structure
as a reference point for the proposed MAR calculations. However, the commission
does not adopt the Medicare fee schedule nor are MARs based solely on the
Medicare reimbursements. As discussed in detail previously in this preamble,
the commission has determined that 100% of Medicare is an appropriate benchmark
for Texas workers' compensation reimbursements. A "benchmark" is a "point
of reference." The commission has identified additional burdens and considerations
related to the workers' compensation system that are not required in the Medicare
system. These burdens and concerns include: commission return to work objectives,
required training, administrative requirements, and availability of quality
medical care. In addition, commercial market and economic indicators impact
the amounts to be added to or subtracted from the benchmark reimbursements.
While commenters recommended a wide range of multipliers, which could be applied
to the benchmark in recognition of these additional burdens and considerations
in the workers' compensation system, the commission considered fair and reasonable
reimbursements to be in the range of 100% to 140% of the 2002 Medicare reimbursements
when establishing the adopted conversion factor. This range recognizes that
Texas workers' compensation reimbursement should be some percentage above
the Medicare benchmark (100%) because of the additional burdens and considerations
in the workers' compensation system. Reimbursement under the 1996 MFG is estimated
to be 140% of 2002 Medicare, the top of the range. This range was established
because any multiplier above 140% of Medicare would add costs to the already
high cost per claim in Texas.
Studies have revealed that per claim costs in Texas are high when compared
to other states' workers' compensation costs. The adopted rule is mindful
of the high costs per claim in the Texas workers' compensation system. A market
analysis was conducted by Milliman, a professional firm specializing in actuarial
and health care services. Milliman reviewed commercial reimbursements, other
state workers' compensation systems, and Medicare allowed fees. Milliman analyzed
and compared this information to the Texas workers' compensation system and
drew the following conclusions: (1) commercial reimbursement rates in Texas
show variations that are wider than can be explained by geographic differences,
and current MFG reimbursement levels fall within this broad range; (2) current
MFG reimbursement levels tend to be high relative to other state workers'
compensation systems, with the exception of E/M services; and (3) current
MFG MARs average approximately 130% of calendar year 2001 Medicare allowed
fees. This market analysis supports the position that the reimbursement rates
in effect since adoption of the 1996 MFG have been on the high end of "fair
and reasonable."
Taking into account economic indicators in health care and the differences
between health care reimbursement systems, the commission has adopted a conversion
factor that differs from the CMS conversion factor and increases the reimbursement
amounts provided by the Medicare system. The new rule complies with statutory
requirements and provides that the Texas workers' compensation system change
as the Medicare system is revised.
The fee schedule is a cost driver in the system. Although the fee guideline
may not be the largest cost driver, analysis of TWCC fees, commercial reimbursement
and other states indicates Texas 1996 MFG to reimburse at or above the median
reimbursement levels. The amount and duration of medical treatment is a primary
component in the high per claim cost in the Texas workers' compensation system.
Utilization in the MFG is addressed by the inclusion of current Medicare payment
policies and CCI edits, which consistently and appropriately bundle/unbundle
codes. The commission further recognizes through adoption of the MFG, its
obligation to address, wherever possible, Texas' high costs per claim as compared
to other states workers' compensation. Utilization is also addressed in other
commission rules.
The RBRVS system used by Medicare reflects the relationship between the
resources necessary to provide a professional medical service relative to
resources necessary to provide other professional medical services. The RBRVS
adopted in the rule values services according to the relative costs required
to provide them, recognizing skill, practice costs, and risk, and uses three
components to establish the total relative value units for a particular code:
(1) work; (2) practice expense; and (3) malpractice insurance. All of these
speak to the valuation of physician effort.
The commission disagrees with commenter's implied suggestion that the MFG
must correlate with an arbitrary percentage of what an average office overhead
for general and family practitioners might be. As noted previously, practice
expense is one of the components used to establish the total relative value
units for a particular code. Practice expenses are addressed yearly through
the CMS adjustment to the Medicare conversion factors. Additionally, the multiplier
adopted by the commission recognizes the additional administrative burdens
that are a factor in providing care in the workers' compensation system. The
rule implements the standardization required by HB-2600. As most healthcare
providers are already familiar with the Medicare policies, the use of standardized
coding, billing, and methodology should facilitate office operations, eliminating
the need to maintain separate systems. This standardization should allow physician
office practices to achieve consistency in their workers' compensation and
all other health care billing practices, thereby reducing time and administrative
costs.
The commission agrees with commenter's expressed support for the use of
RBRVS. The commission also agrees with commenter's suggestion that conversion
factors were not based on cost information, as realistic cost information
is not available in the commercial market. In a recent testimony before Congress,
Glenn M. Hackbarth, J.D., MedPAC stated, "We lack information on the cost
of physician services, so we cannot compare Medicare's payments and costs
the way we can for other services, such as hospital care" and "the regulatory
burden of the Medicare program is an important concern of physicians. Nevertheless,
estimates of the cost of this burden are not available." However, as previously
stated in this comment response, the commission worked with information provided
by Milliman and historical system claim costs as developed by the commission.
The commission disagrees with the commenter's recommendation to adopt the
St. Anthony's relative value unit scale because the legislative mandate requires
the use of the RBRVS as the basis for reimbursement. The adopted rule, identifying
when these can be used, does support the application of nationally published
relative value studies when appropriate
The commission agrees that for some surgery practitioners, orthopedic practices
and physical therapy services, reimbursement rates for some procedures may
be less than the MAR established in the 1996 MFG. The MARs established in
the 1996 MFG do not correlate with RBRVS unit values, and the change to the
RBRVS in the adopted rule results in some significant increases and decreases
for certain procedures. The use of a different relative value unit system,
as mandated by statute, results in a significant realignment of reimbursements
among the CPT groupings. The commission, however, disagrees that more compensation
is required for surgeons because of the belief that their efforts are more
involved for a workers' compensation case.
The commission disagrees that 160% of Medicare should be the standard for
reimbursement because a rate of 160% of Medicare would likely increase costs
per claim in Texas which according to WCRI's
The
Anatomy of Workers' Compensation Medical Costs and Utilization; A Reference
Book
, December 2000 are approximately 50% higher than the states average
or the states median.
The commission disagrees that rates should be indexed to the CPI since
this index is not specific to healthcare. Healthcare specific items are a
part of the Medicare economic index, which is included in CMS' annual adjustment
to the Medicare conversion factor. The Medicare economic index computes the
change in the practice expense component. The commission clarifies that the
reference to the approximate 16% decrease in payment is the resulting aggregate
reduction of 16% in total payments, if applied to historical worker's compensation
system utilization with an added multiplier of Medicare plus 20%.
The commission disagrees with recommendation of multiple conversion factors.
HB-2600, mandates the commission to "adopt the most current reimbursement
methodologies, models, and values or weights used by the federal Health Care
Financing Administration (HCFA) to achieve standardization..." The direction
is for the commission to more closely parallel its fee guidelines with those
of the well-established Medicare system. In recent correspondence with the
commission, the TCA stated: "HCFA uses only one conversion factor, along with
the RBRVS, to set reimbursement structure. RBRVS is a system that provides
consistent assignment of values for different procedures across the range
of CPT codes, and therefore does not require but one conversion factor. Fragmentation
of the reimbursement system occurs when more than one conversion factor is
used to calculate reimbursement rates. The use of more than one conversion
factor, therefore, makes any proposed fee guidelines a non-standard system
of reimbursement. The use of more than one conversion factor therefore violates
the clear directive of the Texas Labor Code §413.011(a)." The commission
agrees with this reasoning and has determined the use of a single conversion
factor, as is done in the Medicare system, is the appropriate interpretation
of the requirements of HB-2600. If a price-neutral conversion to RBRVS is
put into place, fees for physical medicine do not change much but general
medicine rises considerably and radiology and surgery decline considerably.
This is the same impact that is seen when conversion to RBRVS is combined
with a reduction in fees. Thus foregoing the cost-savings opportunity stemming
from a cut in overall fees is not sufficient to avoid important negative impacts
on some groups of healthcare providers. The source of this problem goes back
to the reason why Medicare developed the RBRVS in the first place. The traditional
charge-based fee schedule diverges so much from real relative costs that getting
fees and costs back in the proper proportion requires major changes. This
results in the loss of some of the benefits of Medicare RBRVS because relative
values do not fully reflect relative costs and so the service mix does not
fully adjust. (WCRI,
The RBRVS As a Model for Workers'
Compensation Medical Fee Schedule: Pros and Cons.
, Dr. Phillip L. Burstein,
July 1996) This is a primary reason that supports the use of a single conversion
factor, and not multiple conversion factors, in the revision of this MFG.
The commission disagrees that the proposed rule fails to cut administrative
burdens and complexities to those more equal to other health care systems.
The proposed rule implements the standardization required by HB-2600. Most
healthcare providers are already familiar with the Medicare policies; the
use of standardized coding, billing, and methodology should facilitate office
operations, eliminating the need to maintain separate systems. This standardization
should allow physician office practices to achieve consistency in their workers'
compensation and all other health care billing practices, thereby reducing
time and administrative costs. Although the current billing rules addressed
in Subchapter "D" regarding Dispute and Audit, Chapter 133, do not require
electronic billing, future commission efforts through the agency BPI initiatives
are likely to address and move toward electronic billing, since this is a
component of the agency BPI initiatives. The commission has recognized the
additional workers' compensation burdens and considerations by applying the
125% multiplier. While the commission does agree that some appreciate Medicare
for its streamlined system, the commission disagrees that such streamlining
in the Medicare system was designed to allow healthcare providers to accept
less reimbursements for these patients due to the significantly reduced administrative
costs. Additionally, the commission disagrees that patient steerage is a component
or requirement of the Act.
Individual provider impact is based on the individual cost structure and
business practices unique to the individual provider and are consequently
not predictable by the commission. Finally, standardization and streamlining
of the billing process through the use of Medicare payment policies is a required
component of HB-2600. The potential impact on individual healthcare providers
will be unique to the provider's cost structure, business organization and
familiarity with the Medicare payment policies. On the whole the net economic
impact for individual healthcare providers should be positive as it aligns
the workers' compensation system with existing systems thereby minimizing
unnecessary duplication.
The commission disagrees with commenter's statement that commission rules
and regulations tie up the healthcare providers' time, and that the energy
and commitment to care for a workers' compensation patient is approximately
250% of the overhead as compared to Medicare. The adopted rule implements
the standardization required by HB-2600. As most healthcare providers are
already familiar with the Medicare policies, the use of standardized coding,
billing, and methodology should facilitate office operations, eliminating
the need to maintain separate systems. This standardization should allow physician
office practices to achieve consistency in their workers' compensation and
all other health care billing practices, thereby reducing time and administrative
costs. The unpublished Brinker study,
The Effect
of Payor Type on Orthopaedic Practice Expenses
, was a study of a single
physician and not necessarily indicative of Medicare or workers compensation
costs. In a recent testimony before Congress, Glenn M. Hackbarth, J.D., MedPAC
stated, "We lack information on the cost of physician services, so we cannot
compare Medicare's payments and costs the way we can for other services, such
as hospital care" and "the regulatory burden of the Medicare program is an
important concern of physicians. Nevertheless, estimates of the cost of this
burden are not available." Without a regulatory burden assessment in the Medicare
system, it is difficult to directly compare the administrative burden between
the systems. As stated in the June 25, 2001 edition of
The American Medical News
, published by the AMA, "Some experts argue
that Medicare's procedures aren't any worse than any other payers. The programs
pay faster than most, and the administrative and clinical challenges are like
other managed care demands these days, they say." In the same article Dr.
Darren Carter is quoted as saying, "There is really not much difference about
the way Medicare has created these rules from other carriers."
The commission disagrees that the MARs for the workers' compensation system
should parallel commenter's assertion that most Texas PPOs are reimbursing
at 140% to 170% of 2001 Medicare, with electronically filed bills, little
to no preauthorization requirements, and 45-day payments' requirements. Although
the current billing rules addressed in Subchapter "D" regarding Dispute and
Audit, Chapter 133, do not require electronic billing, future commission efforts
through the agency BPI initiatives are likely to address and move toward electronic
billing, since this is a component of the agency BPI initiatives. As previously
stated, the commission is not adopting the Medicare fee schedule but is complying
with the requirement of HB-2600 as related to adopting the most current reimbursement
methodologies used by HCFA, and acknowledges all healthcare providers make
business decisions concerning acceptable reimbursement levels and those decisions
are sometimes more than Medicare, sometimes less.
The commission disagrees with commenter's suggestion that reimbursement
under Medicare does not cover the expense of performing thorough E/M services
in the workers' compensation system since Medicare reimbursements for E/M
services was higher than E/M reimbursement in the 1996 MFG. HB-2600, adopted
during the 2001 Texas Legislative Session, amended §413.011 and requires
that the commission provide for reasonable fees for the evaluation and management
of care as required by §408.025(c) and commission rules. The proposal
preamble, published in the December 28, 2001
Texas
Register
, estimated reimbursements at 120% of Medicare for the category
of E/M to be a 26% increase in the difference in reimbursement from the previous
MFG. Additionally, the commission disagrees that Medicare does not cover the
expense of performing E/M, surgical or other categories of services. As previously
stated, the RBRVS system used by Medicare, and adopted in this new MFG, values
services according to the relative resources required to provide them, recognizing
skill, practice cost, and risk. These relative value units represent national
standards assigned to medical treatments and services. The relative value
units reflect the relationship between the resources necessary to provide
a professional medical service relative to resources necessary to provide
other professional medical services. Resource-based relative value units have
the advantage that they represent the work and skill required to perform the
service, rather than the historical billing practices of healthcare providers.
Further, the commission also recognizes that workers' compensation is a
voluntary system and that healthcare providers will make the decision to accept
reimbursement based on the unique costs structure of his/her practice. The
new MFG follows the mandates of the law, and does not require healthcare providers
to perform charity work, nor does it require the provider to accept insurance
carrier offered discounts, nor does it require healthcare providers to participate
in the voluntary system.
Milliman's market analysis included the study of surgery codes, and indicated
that over 38% of surgical codes studied under the 1996 MFG were reimbursed
at more than 150% of 2001 Medicare, and 5% of the codes were reimbursed at
over 300% of 2001 Medicare levels. Consequently, it is apparent that some
fees in the 1996 MFG were well above average and the revision of the MFG is
timely.
The Milliman report estimated the aggregate reimbursement for the Texas
workers' compensation system to be approximately 130% of 2001 Medicare. This
estimate reflected the use of multiple conversion factors rather than a single
conversion factor. Consequently, the Milliman estimates for multiple conversion
factors are not directly comparable to the single conversion factor adopted
in this rule. Milliman reviewed and analyzed reimbursements under the 1996
MFG in order to draw relationships to other health care systems and other
state workers' compensation systems. Therefore, the Milliman report reflects
that the composite conversion factor for the MFG was higher than the median
value for the commercial payers for surgery and that since the 1996 MFG has
been in effect, surgeons in Texas have been paid in the aggregate at 174%
of Medicare allowed fees, despite the variations in procedures. Additionally,
Milliman drew the following conclusion for the surgical services CPT section:
Texas MFG MARs are higher than all or nearly all corresponding fee schedule
maximums for the cohort states. Therefore, the commission's adoption of Medicare
plus a multiplier for allowable reimbursements is a fair and reasonable approach
toward normalizing the reimbursement rates. The combination of the adjusted
multiplier and the realignment attributable to implementing the RBRVS system
normalizes reimbursement for the surgical services that previously had been
paid higher than most healthcare systems.
The commission disagrees with commenter sentiments that the proposed fees
didn't represent 38% decrease for orthopedists, but instead, represent a 100%
decrease. The Milliman market analysis previously discussed in detail in this
preamble is a benchmark utilized by the commission in adopting conversion
factors for the workers' compensation system. The 38% reduction in reimbursement
for surgical procedures relates directly to commission analyses of historical
workers' compensation utilization in Texas. Specific impacts on individual
practices are unique to the practice based on service mix including the distribution
of services in each of the CPT grouping categories.
The commission disagrees that the established conversion factor does not
follow the intent of HB-2600 for anesthesia services. As discussed previously
in this preamble, commercial reimbursement and other state workers' compensation
systems were reviewed, analyzed and compared to the Texas workers' compensation
system by Milliman. Taking into account economic indicators in healthcare
and the differences between healthcare reimbursement systems the commission
has adopted a conversion factor that differs from the CMS conversion factor
and increases the reimbursement amounts provided by the Medicare system. The
commission disagrees with commenter's assertion that the reimbursement for
anesthesia does not include consideration of anesthesiologists who are responsible
for medically directing the work of CRNAs. The business decision of whether
to use, and consequently supervise and accept reduced payments when supervising
a CRNA is left up to the individual anesthesiologist.
The commission disagrees that the increase in hospital and ancillary reimbursement
has a bearing on the per unit reimbursement of professional services set in
the MFG. Facility reimbursement is addressed in the §134.401 relating
to Acute Care Inpatient Hospital Fee Guideline (ACIHFG).
The commission disagrees with opposition to the radiology reimbursement.
The market analysis provided to the commission by Milliman suggested that
the estimated RBRVS conversion factor for radiology in 1996 MFG was at 184%
of Medicare allowed fees. The commission's multiplier of Medicare allowed
fees has previously been discussed in detail and is well within the boundaries
of a fair and reasonable reimbursement.
COMMENT:
Commenters stated due to the great
financial impact, doctors will leave the workers' compensation system and
decline to treat injured employees, or reduce the number of injured employees
they treat. Commenters stated it would not be prudent to treat injured employees
because the cost of practicing medicine continues to rise every year and the
proposed reimbursement is financially burdensome and it does not cover the
high overhead costs of providing basic care for workers' compensation patients.
Commenters provided numerous reasons why healthcare providers will not
continue to participate in the Texas workers' compensation system. Commenter
stated reimbursement should not limit access to care or eliminate the participation
of well-trained, experienced and excellent physicians. Commenter stated that
doctors are no longer seeing Medicare patients due to the decline in reimbursement
rates and that the commission is making it economically unfeasible and undesirable
for healthcare providers to care for workers' compensation patients. Commenter
stated excellent doctors were already leaving the workers' compensation system
prior to the proposal, and these rate changes will only lead to a greater
mass exodus by the summer of 2002, and will deter new future healthcare providers
from participating, resulting in a greater work load for the healthcare providers
who remain in the system. Commenter stated based on other state and federal
programs, such as Tricare, Medicaid Star, and CHIP, that are having problems
in maintaining adequate provider panels, there will be fewer specialty healthcare
providers in small towns and rural areas resulting in a large burden for injured
workers who will have to travel great distances to major cities in order to
see these healthcare providers and receive medical care. Commenter stated
healthcare providers would leave the system as they have in other states because
of inadequate reimbursement. Commenters stated a crisis will be created and
the commission will end up with a backlog of examinations. Commenter stated
insurance carriers will experience increased medical expenses and long-term
claim costs, because fewer doctors will be available. Commenters provided
many sentiments that suggested the injured employee's access to surgical care
would be forever limited, or will receive treatment from the most marginal
and indifferent of physicians. Other commenters similarly expressed there
will not be orthopedic surgeons seeing injured employees in the state of Texas
as the commission is not correctly informed on the issues orthopedic surgeons
face. Commenters recommended the commission reconsider the negative impact
the proposed MFG will have on injured employees and the medical community.
Commenter was concerned that there will be unintended consequences such
as the effort and enthusiasm of physicians serving under the Medical Advisor
will wane and it will be difficult to implement the MQRP and to gain momentum
for things like provider networks. Commenter stated the success of HB-2600
is contingent upon the participation of a broad panel of highly qualified
physicians and access to these specialty healthcare providers would be compromised.
Additionally, commenters stated that due to low reimbursements and administrative
burdens, there is considerable difficulty in finding specialists, such as
podiatrists, plastic surgeons, ophthalmologists, and ENTs who will treat injured
workers. Commenter stated Medicare has streamlined their system, via electronic
billing and payment, and straight forward verification of coverage, to allow
for healthcare providers to accept less reimbursement for these patients due
to the significantly reduced administrative costs, healthcare providers accessing
the workers' compensation system have none of these benefits. Commenter recommended
the fair market value for workers' compensation would allow for patient steerage
plus an allowance for increased administrative costs, since the data reported
to the commission by its consulting actuary represents discounted fee schedules
given in return for patient steerage.
Commenters further stated that the proposed fee schedule would drive all
but the largest healthcare providers out of the system if workers' compensation
becomes too costly, reducing access to care for injured employees of Texas.
The effect will be detrimental to the citizens of Texas because the abusers
and exploiters will be the ones left in the system to treat the injured employees.
Commenters also stated that there is no incentive for healthcare providers
to operate under the workers' compensation system correctly, only disincentives
and punitive actions for failure to comply.
Commenters expressed opposition stating that adoption of the proposed rule
will increase commission and carrier expenses with fewer full time occupational
medicine specialists as gatekeepers, allowing more doctors from other specialties
with less knowledge of occupational medicine to be treating. Commenters further
noted that many non-occupational medical specialists prolong treatment, exceeding
reasonable treatment guidelines with unnecessary tests, manipulations, surgeries,
and keeping the injured employee off work.
Commenters stated the proposed reduction in reimbursement will greatly
affect the residents of Texas and impact injured employee by inhibiting care;
it will be cost prohibitive to provide quality care, resulting in a lower
standard of care. Commenters stated reducing reimbursement to curb costs would
directly affect and jeopardize patient access to quality medical care by decreasing
medical treatment options and driving ethical quality healthcare providers
out of the workers' compensation system. Commenters stated healthcare providers
would begin seeing more patients per hour, reducing quality of care. Commenter
stated it is already difficult for injured employee's to access health care.
Commenters stated it would be an injustice for injured employees who will
suffer emotional distress due to harassment and delays. Commenter stated the
percentage of injured employees who transition from the acute to the chronic
stage may increase. Commenters stated injured employees would resort to expensive
care in emergency rooms or to poor health care in workers' compensation clinics
or end up in the Medicaid system. Commenter stated a loss of access to quality
medical care for injured employees will have a negative impact on the Texas
labor pool, Texas businesses, and our economy in general.
RESPONSE:
The commission disagrees that
the adopted MFG will limit the injured employee's access to quality medical
care. Studies have shown that Texas per claim medical costs are currently
among the highest in the nation. The reimbursement established in the MFG
is a necessary component of cost containment.
While there may be some healthcare providers who choose not to treat injured
employees, there is no evidence to indicate that the reduction of the number
of healthcare providers will negatively impact injured employees by limiting
access to care. Each healthcare provider must make business decisions concerning
acceptable reimbursement based on the unique cost structure of the individual
practice. These decisions will involve the efficiency of that health care
provider's practice operations, acceptable profits, etc. and are outside the
control of the commission. The commission disagrees that the percentage of
injured employees who transition from the acute to the chronic stage may increase,
or that their care would resort to the more costly care of emergency rooms,
or end up in the Medicaid system. There is no evidence to support such assertions,
and no evidence that the fee structure contained in the MFG will lead to this
outcome. The HIAA in addressing issues regarding rising health insurance premiums
cited findings from the BLS that indicate that the number of active physicians
in the country grew more rapidly during the 1990s than the general population
grew. These findings can be found in Issue Brief:
Why Do Health Insurance Premiums Rise?
, March 2000, Health Insurance
Association of America.
In recent correspondence with the commission, the TABCC Technical Work
Group stated, "There is no evidence to suggest Medicare beneficiaries have
any difficulty gaining access to needed services or that the quality of those
services is diminished by Medicare reimbursement rates or payment policies.
For DME and dental services, there is no evidence that beneficiaries of that
program have difficulty gaining access to services or that the quality of
services has been decreased by the payment schedule." "While there were expressions
of concern about potential access problems, no actual access problems have
been documented in any specialty. The current level of Medicare payment to
physicians is sufficient to provide reasonable access to quality medical care
to injured workers." The TABCC Technical Work Group also stated that while
there may be some physicians who have closed their practices to new Medicare
patients, the inability of a patient to access a specific doctor is different
from a problem of access to medical care. "There is no shortage of surgeons
willing to treat Medicare or other insured patients. The documented problem
in the Texas workers' compensation system is over-utilization of surgery services
relative to patients with the same characteristics covered by group health
plans." (Contained in correspondence from TABCC to the Executive Director
of the commission on March 1, 2002.)
A study was conducted by the Project HOPE Center for Health Affairs for
the MedPAC in 1999 to monitor the impact, if any, of the 1998 changes in Medicare
fee-for-service (FFS) payments. The possible impacts monitored included, among
others, changes in physicians' practices and changes in access to physician
services. Results of the study indicated that many physicians had made practice
changes in the past year to reduce practice costs and/or increase revenue.
These efforts included a reduction in the number of office staff or the hours
they work, curtailing salary increases, or reducing fringe benefits. Other
practice changes included increasing the number of patients seen by the practice
in an attempt to boost revenue and the expansion of the range of services
offered. (MedPAC,
Results of the Medicare Payment
Advisory Commission's 1999 Survey of Physicians about the Medicare Program
, September 1999)
In regard to any impact on access to care the 1999 MedPAC survey monitored
three areas. The survey supported that physicians do not appear to be experiencing
much difficulty when seeking referrals for their FFS Medicare patients. Only
4% of the respondents stated that it was "very difficult" to find suitable
referrals for their FFS Medicare patients, and this figure was statistically
comparable to the 3.7% of physicians reporting referral difficulties for their
privately-insured FFS patients, while 20% of the physicians said it was very
difficult to refer their HMO patients and more than 25% said they had a very
difficult time referring their FFS Medicaid patients.
In regard to physician acceptance of new patients, the 1999 survey exhibited
that for all types of patients considered together, physician acceptance of
new patients has held steady from 1994 to 1999. Of note, acceptance of new
FFS Medicare patients has remained on par with the acceptance of new privately
insured FFS patients over this time interval, and is significantly above acceptance
of new patients with other types of insurance or of those without health insurance
coverage. The results indicate that there is no evidence to support the hypothesis
that recent Medicare payment changes have affected physicians' willingness
to accept new FFS Medicare patients. The conclusion that FFS Medicare payment
changes have not had a significant impact on physician acceptance of FFS Medicare
patients is further strengthened by a closer look at the variations in FFS
Medicare acceptance rates by type of physician. Acceptance rates among surgeons
- who typically experienced relatively large declines in Medicare revenue
as a result of the payment changes - fell by an insignificant 0.1 percentage
points and remain higher than FFS Medicare acceptance rates among non-surgeons.
Conversely, acceptance rates for non-proceduralists (or medical specialists)
- who typically enjoyed higher payments as a result of the payment changes
- fell by 2.5 percentage points, and are significantly below acceptance rates
for other types of physicians in 1999. For two of the three over-sampled specialties
- which were selected specifically because of the large Medicare payment decreases
they received - there was no change at all in the acceptance of new Medicare
patients. Acceptance rates did fall by 3.4 percentage points among orthopedic
surgeons, but this change was not statistically significant.
The other access to care factor monitored by the 1999 survey was the possible
changes in appointment priority. The fact that physicians are continuing to
accept new FFS Medicare patients at very high rates may be a misleading indicator
of these patients' access to physician care if they are encountering increased
difficulty in obtaining an appointment within a reasonable period of time.
Results from this physician survey indicate that access to FFS Medicare patients
appears to be good when considered from this perspective. Only one in ten
physicians reported that they had made any change at all since 1997 in the
priority accorded to Medicare patients seeking an appointment with them. Only
slightly more than half of the physicians said Medicare patients are now given
a lower appointment priority, while the remaining 44% said the appointment
priority was not higher. Apparently, the physicians' awareness of FFS Medicare
payment changes since 1997 does not appear to be related to whether the priority
given to Medicare patients has changed since that time.
Government figures also do not support the widespread claims that doctors
are rejecting Medicare. Physician participation in Medicare is increasing
- it reached 86.3% in 2000 - a 4% increase over 1999. The percentage of physicians
participating in Medicare has increased every year since 1996. The MedPAC
also has no evidence of doctors leaving the program. (American Medical News, Opting out: Physicians exiting Medicare program
,
June 25, 2001) In addressing issues regarding rising health insurance premiums,
the HIAA cited findings of the BLS that the number of active physicians in
the country grew more rapidly during the 1990s than the general population.
(HIAA's Issue Brief:
Why Do Health Insurance Premiums
Rise?
, March 2000) The physician supply has increased over the last
four decades, mostly because of an increase in the number of specialists.
Specialist income growth has nearly doubled primary care physician income
growth. (Blue Cross Blue Shield Association,
Medical
Cost Reference Guide, Health Costs Campaign)
However, the decline in accepting all new Medicare patients was the sharpest
for physicians with the weakest connections to Medicare and physicians with
the lowest revenue for Medicare were the most likely to report accepting no
new Medicare patients. And the extent to which payment cuts to Medicare physicians
compromise Medicare patients' access to care will depend on the community
where patients live. This is because the relationship between Medicare payment
rates and the rates paid by private insurers vary widely across communities.
(Ginsburg, February 2002)
Similar views were expressed in recent testimony before Congress by Glenn
M. Hackbarth, J.D., MedPAC. Mr. Hackbarth stated that according to data from
the Medicare Current Beneficiary Survey, access to care was not a problem
in 1999. This survey also showed that the number of healthcare providers accepting
Medicare payment had increased from previous surveys. This would indicate
that Medicare reimbursement alone is not a deterrent for healthcare providers
to provide access to care. Counts of physicians billing Medicare show that
the number of physicians furnishing services to beneficiaries has kept pace
with growth in the number of beneficiaries. From 1995 to 1999, the number
of physicians per 1,000 beneficiaries grew slightly, from 12.9 to 13.1. The
percentage of beneficiaries reporting trouble getting care (4%) was low in
1999 and essentially unchanged from previous years. (Testimony Before the
Subcommittee on Health of the House Committee on Ways and Means, Hearing on
Physician Payments, February 28, 2002)
Further, Chairman Hackbarth added, "One of the most important findings
of the survey was that among physicians accepting all or some new patients,
more than 95% said they were accepting new Medicare fee-for-service patients--a
finding consistent with the results of another recent survey." The same assumption
can be made concerning access to care in the Texas workers' compensation system
relative to reimbursement. The commission disagrees with commenter's suggestion
that maintaining adequate provider panels and specialty healthcare providers
in small, rural areas will become a problem, as commenter noted is the case
with Tricare, Medicaid Star, and CHIP. In some rural or specialty referral
situations, access and availability is a concern regardless of payer types.
These situations are not created by reimbursement levels. MedPAC in its Report to the Congress: Medicare in Rural America
,
June 2001, states, "Many conditions in rural areas present challenges to healthcare
providers, including low service volume, longer travel times, difficulty in
attracting healthcare providers, and greater dependency on Medicare patients
and payments." These situations will have to be dealt with in the workers'
compensation system just as they are dealt with in other systems.
The commission is developing the MQRP through the office of the Medical
Advisor to monitor and help ensure that quality care is provided in the system.
The commission disagrees that the adoption of §134.202 will cause unintended
consequences on the efforts and enthusiasm of physicians serving under the
Medical Advisor, or that it will be difficult to implement the MQRP and to
gain momentum for issues like provider networks. In developing fee guidelines,
the commission must reach a balance of costs, quality and access to care as
well as other statutory factors and requirements. The aim of the panel is
quality improvement and is not designed toward fee analysis. In addition to
the development of the MQRP, the commission is implementing other medical
quality initiatives set out in HB-2600. The revision of the requirements for
inclusion on the approved doctor list will help assure that qualified doctors
are treating injured employees. Increased training for treating doctors and
doctors serving as designated doctors and required medical examination doctors
also addresses quality of care concerns.
If reimbursement levels do not significantly impact access to care, there
is no reason to believe that return to work timeframes would be affected.
Not all reimbursements are reduced from the 1996 MFG reimbursement amounts.
The realignment of values for evaluation and management codes resulting from
adoption of the RBRVS system significantly increases reimbursement to treating
doctors as the gatekeeper in the workers' compensation system. This realignment
indicates that since the adoption of the 1996 MFG evaluation and management
services have been reimbursed at a level below the reimbursements in the Medicare
system. Despite this below Medicare reimbursement for these services, the
commission has not seen a corresponding reduction in availability of treating
doctors. In addition to evaluation and management services, overall reimbursement
for designated doctor examinations and required medical examinations are increased
as is reimbursement for anesthesia services.
Because there are many changes being implemented as a result of HB-2600
(increased training for doctors, changes to requirements for inclusion on
the approved doctors list, preauthorization process changes, new medical dispute
resolution processes, etc.), the collective effect of these changes cannot
be fully predicted.
COMMENT:
Commenters stated that the real
problem areas continue to be disjointed care at the primary care level, delay
in seeking specialized care, barriers to timely treatment and diagnosis, inappropriate
delay caused by so-called "expert peer-review physicians," and the continued
ability of non-physicians (chiropractors) to manage complex medical problems.
RESPONSE:
Quality of care issues are a
primary concern and as discussed previously in this preamble, the commission
is developing the MQRP through the office of the Medical Advisor to monitor
and ensure that quality of care which included utilization is addressed in
the system. The Texas Labor Code provides that chiropractors can be treating
doctors and have the same rights and responsibilities as any other treating
doctor in the workers' compensation system working within the scope of their
practice act. The other concerns expressed by commenters are outside the scope
of adopted §134.202.
COMMENT:
Some commenters opposed the use
of the Medicare system in determination of workers' compensation fees. Commenters
opposed the low reimbursement rates and the Medicare benchmark, because of
the vast differences in health care programs. Commenters described Medicare
as a system of health care dealing with non-injury/non-traumatic diseases
that have long term management horizons; whereas a workers' compensation system
of health care is primarily for acute injuries with short term medical treatment
goals and a key objective of return to work. Commenters are not satisfied
with the Medicare reimbursement rates, in spite of fewer administrative burdens.
Proportionately, the commission proposes more work with less pay than Medicare.
Commenters stated the workers' compensation system is friendly to neither
the health care provider nor the injured employee.
Commenter stated in TMA analysis chart the prices paid in the medical marketplace
for physician services are much higher than the fees currently proposed as
workers' compensation maximums. Workers' compensation insurers are commercial
plans, not government-subsidized programs, in the marketplace for physician
services, they compete with other commercial plans, not with government payers.
Commenters recommended that instead of the application of arbitrarily set
federal rates, that other considerations be applied. Commenters offered the
following: the median commercial rates for therapy conversion factors as presented
by Milliman; established local commercial fees; and reimbursements comparable
to that found on the open market. Commenters raised concerns about tying workers'
compensation reimbursement directly to the Medicare system. A commenter advised
that Medicare requires an unduly complicated reimbursement methodology and
is subject to too many variables, and further advised that two complicated
systems, Medicare and Texas workers' compensation, should not be merged to
cause even more complex processes and lower reimbursements. Other commenters
stated they are opting out of the Medicare system as they can only break even
if they stay in. Commenter raised concerns about losing physicians in the
workers' compensation arena for the same reasons, stating the rates may not
be as harmful for primary care physicians who perform surgeries, as they would
be for specialty physicians performing complicated and expensive surgeries.
Commenter advised that adopting the Medicare model is equivalent to lowering
the base physician pay factor to an expected number of claims, and claims
will rise without proportional raises in funds. Commenter objected to use
of Medicare as a model for workers' compensation reimbursement, and stated
Medicare has not kept up with technology, which will further reduce current
rates that have not been adjusted for six years. Commenter opined that Medicare
reimbursements are set differently, and are based on yearly federal budgetary
issues, which is vastly different from that of workers' compensation system.
Other commenters stated using the Medicare relative value units scale in any
way is not a reasonable or rational thing to do. Commenter stated basing reimbursement
on the Medicare dollar allowable is not fair because the federal government
is not allowing any increased cost for federal mandated requirements, such
as HIPAA, postage increase, or compliance programs, etc. Healthcare providers
continue to serve the aged Medicare population as a service to society, a
federally mandated charity. Commenters additionally stated that there is no
justification for relating the MFG to the federal Medicare program designed
for the aged and disabled.
RESPONSE:
The commission disagrees that
the use of Medicare as a benchmark is inappropriate in setting reimbursement
rates because of the vast differences in health care programs. The commission
has been mandated by HB-2600 to "use health care reimbursement policies and
guidelines that reflect the standardized reimbursement structures found in
other health care delivery systems. To achieve standardization, the commission
shall adopt the most current methodologies, models and values or weights used
by the federal Health Care Financing Administration," (has since been renamed
the Center for Medicare and Medicaid Services (CMS)). Although the Medicare
system was established primarily to serve the need of the elderly population,
the program is a main component of the national health care system and has
become a standard and benchmark for the development and operation for many
commercial and governmental health care programs. Furthermore, as noted by
WCRI, policymakers have been showing increased interest in Medicare as a benchmark.
(WCRI:
Benchmarks for Designing Workers' Compensation
Medical Fee Schedules
, 1995-96.)
At this date, 17 states have Medicare-based fee schedules of some sort
for workers' compensation programs in place. WCRI has identified three reasons
for using the Medicare physician's payment system as a guide to help design
workers' compensation fee schedules. First, the Medicare fee schedule is the
lowest in common use. Because effective medical cost containment is a statutory
goal, it is appropriate for Texas to consider this. Second, the Medicare fee
schedule corrects a typical bias of traditional reimbursement systems that
overcompensate healthcare providers for expensive invasive high-technology
procedures and under compensate healthcare providers for less expensive noninvasive
low-technology procedures. The Texas 1996 MFG reflects that very bias. Third,
Medicare fee schedules differ across states according to carefully researched
measures of differences in the three elements of the costs of producing medical
services: physicians' time and effort, practice expenses, and malpractice
insurance premiums.
The commission has recognized that Medicare recipients have a similar standard
of living as the general working population. In a study prepared by Research
and Planning Consultants (
A Standard of Living Comparison
Between the Working Population, the Medicare Population, and the Managed Care
Population
, March 1997; addendum to report, April 2001) the standard
of living of the population covered by the Medicare program was found to exceed
that of the population covered by the Act. The study further found that the
standard of living of the population covered by managed care plans was at
least as high as the population covered by the Act. Consequently, Medicare
reimbursement is an appropriate standard for comparison to workers' compensation
reimbursement.
In setting the 2002 MFG fees, the commission thus has used Medicare fees
as a benchmark and has considered commercial market payments as indicative
of economic indicators in health care, as required by the statute. The commission
determines "fair and reasonable" is not based solely on the market value of
services provided to injured employees. Fair and reasonable compensation in
the Texas workers' compensation system is a balance of all the required components
of the Act. These are rigorous statutory requirements, which are not easily
balanced. In balancing the statutory mandates and objectives, the commission
considered numerous issues, with the goal of establishing fair and reasonable
fees that will assist in achieving effective medical cost control.
The commission also disagrees that the Medicare system, or CMS, has not
kept up with technology. The adoption of current Medicare payment policies
provide consistency and the CCI edits provide additional consistency in the
appropriate bundling/unbundling of codes to identify and eliminate the incorrect
coding of medical services and promote national correct coding methodologies,
thus leading to appropriate payment. These features of the Medicare system
address utilization of medical treatments and services by disallowing reimbursement
for inappropriately coded services.
The commission disagrees the workers' compensation system will lack participating
physicians. In recent correspondence with the commission, the TABCC Technical
Work Group stated, "There is no evidence to suggest Medicare beneficiaries
have any difficulty gaining access to needed services or that the quality
of those services is diminished by Medicare reimbursement rates or payment
policies. For DME and dental services, there is no evidence that beneficiaries
of that program have difficulty gaining access to services or that the quality
of services has been decreased by the payment schedule." However, the commission
agrees that the workers' compensation system has unique differences from other
health care systems, and these differences are acknowledged through the multiplier,
which increases reimbursement from that in the Medicare system. The commission
agrees that Medicare reimbursements are based on yearly federal budgetary
issues, but the commission disagrees that such considerations are vastly different
from workers' compensation concerns because of previously discussed statements
regarding high medical costs per claim. The commission is mandated to set
reimbursement levels and meets this responsibility through adopted fee guidelines.
The use of the Medicare reimbursement structure is the reference point for
the proposed MAR calculations, and the commission does not adopt the Medicare
fee schedule nor are MARs based solely on the Medicare reimbursements. Additionally,
the Medicare system, including RBRVS, is a consistent standard used in most
medical practices and assures that healthcare providers are already aware
of the majority of the standard coding, billing, and reimbursement policies.
The application of subsequent updates will allow healthcare providers to maintain
a consistency between their Medicare and workers' compensation practices.
COMMENT:
Commenter recommended the commission
identify the high quality/low cost areas to receive treatment directed by
the physicians. Commenter stated more money and education to the practitioner
would reduce overall cost of care. Commenters recommended the development
of firmer guidelines or treatment algorithms as reference for adjustors. Commenter
stated that the Medical Fee Guideline should be structured to ensure cost
effective treatment at highest level of quality delivery and in an appropriate
setting.
RESPONSE:
The commission disagrees that
the MFG is the format for addressing appropriate treatments for the care of
injured employees. While cost effective treatment is an important component
of the total health care delivery system, the MFG sets appropriate reimbursement
levels for services but does not address doctor decisions regarding medically
necessary treatment. Medicare payment policies and health care provider practice
acts address the quality of care issues and where care is provided. Quality
of care issues are a primary concern and as discussed previously in this preamble,
the commission is developing the MQRP through the office of the Medical Advisor
to better monitor and ensure that quality of care is addressed in the system.
Individual practitioners have the responsibility to provide services within
the parameters of their license and the scope of their practice act, and are
reimbursed according to commission rules and fee guidelines. The commission
disagrees that more money reimbursed to healthcare providers will reduce overall
costs. There is no basis provided for commenter's assertion that receiving
more money for the provision of health care to an injured employee would equate
to the reduction in overall cost of care. It is unclear how increasing the
fee schedule over 1996 MFG rates would/could decrease costs per claim in Texas,
which are already some of the highest in the nation. The commission agrees
that provider education is an important element in reaching the goal of balancing
costs of care. The commission provides many education opportunities for healthcare
providers and will continue to do so.
COMMENT:
Commenters expressed general opposition
to adoption of proposed §134.202, subsection (c), stating that the problem
generating the high costs in the system is over-utilization of services and
duration of medical treatment, not of individual fees; the fee schedule is
not the issue and lowering the reimbursement in the MFG will not counter the
true cause of the excessive expense in Texas, it is utilization of the fees.
Commenters recommended that the proposed guideline be withdrawn and revised,
as it imposes a "perceived fix," a "one size fits all" approach for the legislative
mandate, which was to curb over-utilization; and that the purpose of HB-2600
was to curb costs by controlling over-utilization and identifying outliers
in the system. Commenters voiced opposition to the adoption of the proposed
guideline as a violation of the law, of HB-2600.
Commenters suggested that lowering fees could exacerbate the situation
in that healthcare providers would need to perform more services in order
to maintain their reimbursement levels, that chiropractors will be encouraged
to treat more frequently, and that surgical care will be concentrated in workers'
compensation mills where frequency will increase, again elevating costs in
spite of lower basic reimbursement levels. The proposal to reduce fees will
only make the problem worse as it severely punishes the practitioner who can
fix the problem and the rule as proposed does nothing to curb over-utilization.
Commenters stated that the current Texas reimbursement is already in line
with that of other states. Commenters referenced various sources of data to
support their opposition, including the WCRI's Benchmark Data Study, results
of the ROC study, the commission's System Data Report. Commenters opposed
the adoption of the proposed rule, stating that the goal of physicians is
to get injured employees well and back to work, that physicians do not over-utilize
the system. Commenters further suggested that system abuse has been proven
to be over-utilization by non-physician healthcare providers in conjunction
with excessive and frequent office visits, use of passive modalities, and
primarily of chiropractic care being allowed to go unchecked. Commenters recommended
that the commission take steps to curb over-utilization, to focus on over-utilization
and reign-in gross over-utilization of passive treatment versus skilled interventions,
to limit the known over-utilization by chiropractors, ancillary healthcare
providers and other chronic offenders, and to individually eliminate abusers
from the system.
RESPONSE:
The commission disagrees that
the proposed MFG should be withdrawn and revised. The commission agrees that
utilization plays a part in cost containment; however, the reimbursement levels
established in the MFG are not the primary means for addressing over-utilization.
Healthcare utilization, as a consideration in the MFG, is addressed by the
inclusion of current Medicare payment policies and CCI edits, which consistently
and appropriately bundle/unbundle codes. The CCI edits appropriately identify
and eliminate the incorrect coding of medical services, and promote national
correct coding methodologies, and control improper coding leading to inappropriate
payment. The code edits were developed based on review of CPT code descriptors,
CPT coding instructions and guidelines, local Medicare carrier and national
edits, and Medicare billing history. HCFA says, "The CCI edits are pairs of
CPT or HCPCS Level II codes that are not separately payable except under certain
circumstances. The edits are applied to services billed by the same provider
for the same beneficiary on the same date of service." These features of the
Medicare system address utilization of medical treatments and services by
disallowing reimbursement for inappropriately unbundled services. Healthcare
utilization is also being addressed elsewhere by the commission: by the inclusion
of current Medicare payment policies and CCI edits, which consistently and
appropriately bundle/unbundle codes.
In addition, the commission is developing the MQRP through the office of
the Medical Advisor, which will address over-utilization by monitoring to
ensure quality care is provided in the system. The Medical Advisor and the
Division of Compliance & Practices are developing methodologies to identify
and monitor utilization levels, tracking services billed by provider types
and by individual healthcare providers and when appropriate take disciplinary
action or administer penalties to participants that violate commission rules.
Other features in the HB-2600 legislation such as preauthorization revisions,
and revision of the requirements for inclusion on the approved doctor list,
were designed to target over-utilization of health care treatments and services.
These new features will work together with the fee structure in the MFG to
address cost containment including utilization of services in the system.
Doctors in the workers' compensation system should facilitate getting injured
employees well and back to work. It is the responsibility of healthcare providers
in the system to provide health care that is medically reasonable and necessary.
Therefore, the realignment of reimbursements consistent with the RBRVS should
not result in greater utilization of services. There is a possibility that
healthcare providers whose incomes are injured by the fee changes will increase
the volume and intensity of medical services furnished. This reaction would
undermine the efforts of the RBRVS system to shift the service mix away from
surgery and imaging procedures and would increase system costs. There has
been an intensive debate in the literature on the extent to which this kind
of physician demand creation occurs, but we do know that RBRVS has been successful
in reducing the number of surgeries provided under Medicare in spite of the
price cuts for these services. Physician response to less important payers
such as workers' compensation should be even more restrained, since theory
asserts that demand creation is due to efforts to protect total physician
income rather than a typical market response to relative price changes. ((WCRI: The RBRVS as a Model,
1996) citing (Physician Payment
Review Commission, 1994.)) The commission disagrees that over-utilization
of health care in the system is limited to any particular health care provider
type. One of the commission's fundamental purposes is to assure a proper balance
of costs, quality and access to care, and to facilitate the injured employee's
timely return to work. The ROC and WCRI studies indicate over-utilization
as a significant component in the excessive costs per claim exhibited by the
Texas workers' compensation system. Features in the HB-2600 legislation such
as preauthorization revisions, the creation of the MQRP, and revision of the
requirements for inclusion on the approved doctor list were designed to target
over-utilization of health care treatments and services. These new features
will work together with the MFG fee structure to address cost containment
including utilization of services.
COMMENT:
Commenters recommended that the
commission focus cost containment efforts on a targeted review and provider
credentialing processes to selectively identify and control over-utilization
without placing punitive burdens on health care professionals for something
they did not create and who are providing appropriate care; the proposed rule
does not distinguish between abusive healthcare providers and rational healthcare
providers. Commenters requested that the commission find a better method to
curb the over-utilization rather than penalizing physicians and other healthcare
providers, such as Physical Therapists, who are providing high quality, cost
effective care by lowering reimbursements across the board, and recommended
"punishing the crooks and not the masses with such fee reductions." Commenters
expressed opposition to the rule as proposed, stating that HB-2600 established
the ability to reduce reimbursements to system abusers, requiring the commission
to police the caregivers for over-utilization, not simply reduce fees across
the board for all healthcare providers, which commenters stated is irrational.
Commenters recommended that the commission control the problem instead of
slashing the MAR to meet the mandate of cost control, to handle the abusers
and pay a fair wage to those who operate within the protocols of acceptable
medical care. Commenters further recommended that the commission raise the
standard for all physicians who desire to participate in the system, require
better certification to provide care, instead of "looting the system." Recommendations
were also made for the commission to crack down on fee abuse, go after the
abusers and limit system-abusers in their ability to see workers' compensation
clients, to establish a fraud unit and reform the currently corrupt system,
to focus on case management and leave the fee reimbursement where it is, to
study injury outcomes and to eliminate substandard care, directing injured
employees to high quality physicians. Commenters recommended the commission
locate above average physicians who have demonstrated good judgment, rewarding
doctors who do things right with a higher multiplier compared to other doctors.
Commenters further recommend that proper utilization review is more effective
in cost containment and less expensive to the system, that bill review has
been proven to be a very effective deterrent to over-utilization or the provision
of unnecessary services for which the provider is taking the risk of not getting
paid. Commenters recommended that since the commission has a problem with
the number of visits per claim, not the fee schedule, it would be more appropriate
to put controls on utilization, such as preauthorization of therapy visits
that exceed 15. In addition, commenters suggested that the commission require
a provider-specific modifier on the billing with the CPT code to identify
provider type and over time evaluate utilization of codes, treatment visits,
total case cost and medical outcomes in order to get a definite idea of who
the abusers are. Commenters stated that the commission is abdicating its responsibility
to monitor costs by proposing fee-based rules rather than identifying and
monitoring outliers and excessive users. Recommendations were made for the
commission to focus on the specific classes of healthcare providers to monitor
for necessity of care rendered and legitimacy of related billing rather than
global reductions intended to limit over-utilization.
RESPONSE:
The commission agrees that cost
containment efforts of the commission should include raising the standard
for all healthcare providers who desire to participate in the system. HB-2600
addressed this concern with requirement changes for inclusion on the commission's
approved doctor list and with increased training requirements for doctors
who wish to treat injured employees. Additionally, the commission is developing
the MQRP through the office of the Medical Advisor to monitor and help ensure
quality care is provided in the system. In developing fee guidelines, the
commission must reach a balance of costs, quality and access to care, as well
as other statutory requirements and factors. Studies have shown that Texas
per claim medical costs are currently among the highest in the nation. The
MFG and related multiplier is one component of addressing cost containment.
The reimbursement levels established in the MFG are not the primary means
for addressing utilization of health care.
The provisions of the MFG are not punitive in purpose. Reimbursement amounts
were carefully developed to comply with the requirements of the Texas Labor
Code as set out in detail elsewhere in this preamble. The MFG addresses the
fees for medical services while Medicare payment policies and other commission
rules are more directly aimed at utilization and quality. These rules work
together to address cost control. The MFG adopts a standardized consistent
method for determining reimbursements. It is not meant to target particular
services or healthcare providers. Monitoring and enforcement initiatives are
addressed through the commission's Medical Advisor, the MQRP, and the Division
of Compliance and Practices. These entities will develop methodologies to
identify and monitor utilization, track services billed, and take appropriate
disciplinary action or administer penalties to participants who violate commission
rules. Through these efforts, the commission may authorize increased or reduced
preauthorization controls for a doctor pursuant to §413.023(b).
The commission disagrees with commenters' statements that the commission
is abdicating its responsibility to monitor costs, and the commenters' specific
examples of placing controls, not through the MFG, but through preauthorization
of therapy visits that exceed 15. Preauthorization concerns are outside the
realm of the MFG and are addressed in other commission rules. Additionally,
the commission disagrees with commenters' recommendation to require within
the MFG a provider-specific modifier on the billing in order to facilitate
the identity of provider types and profiles for purposes of monitoring outliers
and excessive users. This is not necessary as the commission already utilizes
a method for tracking provider services. Again, such statements and specific
examples are outside the realm of the MFG and are addressed in other commission
efforts and rules.
COMMENT:
Commenter questioned the commission's
reliance on questionable data provided by Milliman if the State of Texas withdrew
the Milliman report as a result of a lawsuit brought against the commission
due to the State's not following proper protocol for obtaining the services
of Milliman. Commenter stated this proposed rule is based on an evaluation
by Milliman, which is a largely discredited set of research studies. Commenter
questioned Milliman's commercial data which indicates the median commercial
fees is 67% higher than Medicare, as most experts in the reimbursement industry
realize Medicare rates are the low end of the spectrum of fees and not representative
of the current market.
RESPONSE:
The commission disagrees. The
Milliman report has not been withdrawn and it stands on its own merit. The
commission withdrew the previously proposed §§134.202-134.208 so
that it could be redrafted to include more of the features of the Medicare
system. The findings of the Milliman report have been useful in the development
of this MFG and are believed to be an accurate and competent analysis. Milliman
reported in table A2 of its market analysis that the estimated commercial
median was $53.08 or 38.7% greater than the 2001 Medicare conversion factor.
Medicare reimbursements are a significant portion of the healthcare market
and many commercial payers are indexed to Medicare reimbursements. Additionally,
it is well known that although most commercial reimbursements are greater
than Medicare some commercial reimbursements are below Medicare rates. Analysis
by commission staff estimates 1996 MFG reimbursement as approximately 140%
of 2002 Medicare reimbursement. These ratios allow the commission to establish
the high end of the range of fair and reasonable reimbursements at 140% of
2002 Medicare reimbursements. According to Milliman, 1996 MFG reimbursement
is at the high end of fair and reasonable when compared to other states and
the Texas commercial market. Reimbursement at this level has resulted in a
cost per claim in Texas that is estimated to be approximately 50% higher than
the states average or the states median. (WCRI's
The Anatomy of Workers' Compensation Medical Costs and Utilization: A Reference
Book
, December 2000).
COMMENT:
Commenter was perplexed by the
commission's contradictory assertions in the preamble that the previous fee
schedule was approximately equal to 130% or 140% of Medicare, and that it
was approximately equal to commercial rates. The commission's consultant reported
that the old fee schedule was equivalent to an aggregate conversion factor
of $62.58, which is 173% of the current Medicare conversion factor, and that
the commission's median was $63.90 or 177% of current Medicare rates. If the
current fee schedule is, in aggregate, equal to 140% of Medicare, then it
certainly is not equivalent to the commercial rates reported to the commission.
RESPONSE:
The commission disagrees. The
commenter's comparison is invalid. The $62.58 and the $63.90 relates to an
average MAR amount for CPT codes included in the sample and has no direct
relation to the Medicare conversion factor. The relationships outlined in
the Milliman study of 130%-140% of Medicare have been consistently validated.
As previously stated in this preamble, Milliman looked at commercial reimbursements,
and other state workers' compensation systems, in addition to Medicare allowed
fees. Milliman drew the following conclusions: (1) commercial reimbursement
rates in Texas show variations that are wider than can be explained by geographic
differences, and current MFG reimbursement levels fall within this broad range;
(2) current MFG reimbursement levels tend to be high relative to other state
workers' compensation systems, with the exception of E/M services; and (3)
current MFG MARs average approximately 130% of calendar year 2001 Medicare
allowed fees. Consequently, this market analysis supports the conclusion that
the reimbursement rates in effect since the 1996 MFG have been on the high
end of "fair and reasonable." With these factors in mind, the commission considered
the range of fair and reasonable reimbursements from 100%-140% of 2002 Medicare,
in establishing the adopted conversion factors.
COMMENT:
Commenter stated the commission
spent in excess of $300,000 obtaining data and then ignored this data; this
is a clear waste of the taxpayers' dollars.
RESPONSE:
The commission disagrees that
data provided by Milliman was ignored. As previously discussed in detail in
this preamble, Milliman, a professional firm specializing in actuarial and
health care services, assisted the commission in developing a new MFG. Milliman
provided the commission with written reports of their findings and recommendations
and the commission has made numerous references to the information provided
by Milliman. The Milliman reports were valuable in the commission analysis
of the reimbursements set in the 1996 MFG and those in other payer systems.
These were essential factors in the development of the adopted multiplier.
COMMENT:
Commenters stated the proposed
MFG is detrimental to employers as it will ultimately increase time away from
work and increase costs for injured employees' to return to work, because
healthcare providers will no longer have sufficient staff to assist in return
to work. Commenters stated the low reimbursement rates would drive up the
costs of facilitating return to work initiatives. Commenters stated the proposed
MFG may ultimately backfire and result in more medical cost in the long run
due to poor care given by providers who remain in the system because they
do not have an interest in providing appropriate medical care or in early
return to work. Commenter recommended the commission seek a solution that
will benefit injured employees and result in an increased return to work rate
and decreased permanent disability.
RESPONSE:
The commission disagrees that
the MFG is detrimental to employers or that the MFG will increase injured
employee's time away from work. Reimbursement is based on medical services
and treatments provided and billed. Return to work programs referenced in
(e)(5) of this rule are reimbursed in accordance with the MFG. Rehabilitation
return to work initiatives that do not provide direct patient care fall outside
the purview of the MFG. In correspondence with the commission, the TABCC Technical
Work Group stated, "The new MFG should reduce the unit cost of medical services
and should reduce over-utilization of medical services. Today medical services
are the majority of benefit costs employers pay through workers' compensation
insurance premiums or directly through self-insurance programs. Reducing the
cost of the medical treatment under the workers' compensation system should
reduce the rate of costs increases. Over-utilization of medical services also
delays the return to work of employees." The commission further disagrees
that the MFG, will result in more medical costs because of healthcare providers
remaining in the system who have no interest in providing appropriate medical
care or in early return to work. Commenters do not provide any factual basis
for such behavioral predictions of healthcare providers as a direct result
of establishing the MAR in the MFG. Monitoring billing patterns of all healthcare
providers, is one of the functions of the Compliance and Practices Division
and not a direct function of the MFG. Further, through the office of the Medical
Advisor, the MQRP will also be involved with associated quality of care issues.
The commission is continually seeking solutions that will benefit injured
employees in an increased return to work rate and decreased permanent disability,
and those suggestions are being administered by other divisions of the commission
through the implementation of other rules.
COMMENT:
Commenters opposed the decrease
in therapeutic services and the proposed increase in modalities, noting the
modalities are passive in nature, and suggesting it is counterproductive to
decrease benefits on treatments that can ultimately return individuals to
prior functional levels. Commenter recommended reconsideration by increasing
the reimbursements for therapeutic services that can return an injured employee
back to work.
RESPONSE:
The commission disagrees that
an increase in reimbursements for therapeutic services is necessary to return
an injured employee to work. The methodology used to determine fair and reasonable
MARs in the adopted MFG is explained in detail elsewhere in this preamble.
Reimbursement for therapeutic services was determined in accordance with the
same methodology used for reimbursement of other services.
COMMENT:
Commenters recommended that the
input from TMA and physicians involved in treating injured employees be considered
and negotiate a fee which would be acceptable to all involved. Another commenter
recommended that any new fees be objectively negotiated with the input of
all parties, including orthopedic surgeons.
RESPONSE:
The commission disagrees that
further input is needed. The commission agrees that stakeholder input is an
important element of the rule making process. Stakeholders have had numerous
opportunities to present recommendations and data to the commission and the
commission has reviewed and considered the large volume of comment received.
The time constraints for final adoption as required by HB-2600, dictate the
adoption of §134.202 during the April 2002 public meeting, as does the
need to address cost control and standardize reimbursement structures and
methodologies. The commission also disagrees that a rate should be negotiated.
The extensive and complex mandates required by the Legislature for the MFG
have been carefully weighed and balanced together with all input from system
participants.
COMMENT:
Commenter expressed concern about
the lack of information provided to system participants regarding the methodology
and data sources used by the commission to develop the proposed 120% across-the-board
conversion factor and recommended the commission provide this information
to system participants and hold a HB-2600 stakeholder meeting to discuss the
statutory compliance of the proposed conversion factor, prior to the Commissioners'
scheduled vote on this rule. Commenters are opposed to the reimbursement rates
as proposed stating the physicians and certain medical associations were not
involved in the process, or ignored, and that such arbitrary reduction without
discussions of the impact to those providing the care is absurd. Commenters
additionally stated opposition to the rates as proposed, as they are not a
reflection of previous comments and input, and are substantially below the
previously proposed and withdrawn fees, which were criticized as inadequate.
Commenter objected to the statement in the preamble that, "Texas physicians
and healthcare providers helped craft this rule through their support and
input." Commenter stated that even though they are major stakeholders in the
workers' compensation system, their many attempts to furnish meaningful input
are not reflected in the current proposal, which is much further away from
their organization's position as well as from an earlier withdrawn proposal.
Commenters stated that there is no evidence of consultation with or input
from any physicians' groups prior to proposal and that the commission has
essentially ignored physician input. Commenter felt all offers to assist the
commission in developing a fee guideline have been ignored.
RESPONSE:
The commission disagrees that
system participants have lacked or not been provided information regarding
the methodology and data sources used by the commission in the development
of the MFG. The methodology and resources used in developing the MFG was contained
in the proposal preamble to this rule and is discussed in detail in this preamble.
In the development of the MFG, the commission has repeatedly solicited input
and data, and received input and comment from system stakeholders into both
the draft and proposed rules. This input included comments from the Medical
Advisory Committee (MAC) concerning earlier drafts of MFG ground rule revisions
and public comment concerning the withdrawn June 2001 MFG proposal. In addition,
comments received regarding the June 2001 proposal of the MFG included over
2000 issues received from more than 400 commenters. Additionally, in developing §134.202,
commission staff met and discussed issues with the primary HB-2600 Legislative
Stakeholders. This Legislative Stakeholders group included: a delegation of
employers, insurance carriers, utilization review organizations, and other
interested parties working under the umbrella name, TABCC Technical Work Group;
TMA; and TCA to consider the implications of HB-2600 as related to the withdrawn
proposal and subsequent proposals. The commission provided draft rules to
stakeholders in October and November of 2001. The commission requested and
received additional written comment concerning the proposed draft rule language
and subsequently held a stakeholder meeting on November 13, 2001. The written
comments received as well as the discussion at the stakeholder meeting were
an important consideration in the development of the proposal presented to
the Commissioners in December 2001. The commission disagrees that a HB-2600
stakeholder meeting should take place to discuss the statutory compliance
of the conversion factors prior to the Commissioner's scheduled vote on this
rule. Stakeholders have had numerous opportunities to present recommendations
to the commission and the commission has reviewed and considered the large
volume of comment. There are time constraints for final adoption as required
by HB-2600 and the need to control high medical costs. The MFG was redrafted
taking into consideration all statutory mandates and comments received. Comments
were only one part of the many considerations, which were weighed in drafting
the rule.
COMMENT:
Commenters stated that neither
the MAC as a whole nor any subgroup of the MAC were asked to review, advise
or comment on the proposed Medical Fee Guideline, prior to or subsequent to
the proposal. Commenter stated that the proposal did not follow the Texas
Labor Code, §413.005(a) which states that the MAC advises the Medical
Review division in developing and administering the medical policies, fee
guidelines and utilization guidelines. Commenter felt that review by the MAC
is required and that if the MAC had had an opportunity to review the guideline
prior to proposal, there could have been some understanding by the commission
of the impact of this proposed rule, not only on the healthcare providers,
but on the injured employees, as well.
RESPONSE:
The commission disagrees with
commenters' assertion that input from the MAC was not sought and incorporated
into the rule proposal. In the ongoing development and revision of the MFG,
the commission has repeatedly solicited and received input from the MAC concerning
ground rules and other system concerns. Because the time requirements of HB-2600
necessitated a prompt re-proposal of the MFG, the opportunity for MAC input
was limited. Many members of the MAC took advantage of the public comment
opportunity and their comments are addressed throughout this preamble. The
commission disagrees that review by the MAC is required. The commission is
aware of the impact of this rule on all system participants and has considered
this impact in the development of a balanced rule. Much of what was adopted
in the MFG is mandated by the provisions of the Texas Labor Code.
COMMENT:
Commenter expressed opposition
that the commission had previously hinted at procedure specific reimbursement
rates, higher than that which was proposed. Commenters stated that they were
unaware of any data or information that would have led the commission in applying
a reimbursement rate across the board that was lower than previously discussed.
RESPONSE:
The commission disagrees that
any procedure specific reimbursement rates were implied. The adopted rule
is designed to closely follow all the directives of HB-2600 and the commission
is mindful of the high costs per claim in the Texas workers' compensation
system. As stated in the proposal preamble, a market analysis was conducted
by Milliman, a professional firm specializing in actuarial and health care
services, reviewing commercial reimbursements, and other state workers' compensation
systems, in addition to Medicare allowed fees. Milliman drew the following
conclusions: (1) commercial reimbursement rates in Texas show variations that
are wider than can be explained by geographic differences, and current MFG
reimbursement levels fall within this broad range; (2) current MFG reimbursement
levels tend to be high relative to other state workers' compensation systems,
with the exception of E/M services; and (3) current MFG MARs average approximately
130% of calendar year 2001 Medicare allowed fees. Consequently, the commission
determines that this market analysis supports that the 1996 MFG reimbursement
are on the high end of "fair and reasonable."
COMMENT:
Commenters expressed concerns
that numerous key system participants, including the medical advisor, were
left out of contract negotiations and the subsequent far-reaching change in
reimbursements. Commenter suggested that the goodwill necessary to maintain
physician involvement in dealing with utilization issues would be compromised.
RESPONSE:
As stated in a detailed response
to a previous comment, the commission disagrees that numerous key participants
were left out of the development of this MFG. The Medical Advisor plays a
role in development of commission rules and was consulted concerning this
rule. Additionally, the commission clarifies that there were no "contract
negotiations" involved in the MFG. A primary factor in the change of reimbursement
levels is the move to the RBRVS system mandated by the Legislature. Stakeholders
were involved in the development of HB-2600 as well as in the development
of this adopted rule. The commission disagrees that the goodwill necessary
to maintain physician involvement in dealing with utilization issues will
be compromised by the adoption of this rule. As discussed previously, studies
of medical costs in the Texas workers' compensation system have revealed that
Texas had the highest average medical cost per claim of the states studied
and higher individual treatment costs than the group health system. The MARs
set in the MFG for medical treatments and services are an important piece
of achieving effective medical cost control. Utilization of particular medical
treatments and services is another piece. The MFG addresses the fees while
other rules are more directly aimed at utilization and quality. These rules
work together to address cost control. In addition, adoption of current Medicare
payment policies and CCI edits, which consistently bundle/unbundle codes and
appropriately identify and eliminate incorrect coding of medical services,
will assist in controlling utilization. CCI edits also promote national correct
coding methodologies and assist in controlling improper coding which leads
to inappropriate payment. The code edits were developed based on review of
CPT code descriptors, CPT coding instructions and guidelines, local Medicare
carrier and national edits, and Medicare billing history. This feature of
the Medicare system addresses utilization of medical treatments and services
by disallowing reimbursement for inappropriately unbundled services.
COMMENT:
Commenters advised the commission
to consider more thorough medical doctor representation in decision-making
processes as a long-term need, thereby allowing the physician community to
truly negotiate fees. Commenter indicated that such negotiation should be
done through a more neutral state administrative office, or arbitration. Commenter
further supported this recommendation as a more prudent approach in light
of HB-2600 and the fact that Texas has a Physician Negotiation Act.
RESPONSE:
The commission agrees that input
from system participants, including medical doctor representation, is beneficial
in the development of fee guidelines. As previously stated, such input was
obtained prior to proposal of the rule in December 2001, and prior to adoption
in April 2002. Medical doctors provided some of the input and the TMA and
the TCA were major participants in the process. However, the commission disagrees
that decision-making requires the medical community to negotiate fees with
the commission, or that a neutral state administrative office or arbitrator
is required for this purpose. It appears that commenter is referring to Texas
Insurance Code Art. 29.01 entitled Joint Negotiations by Physicians with Health
Benefit Plans. Workers' compensation insurance coverage is specifically exempted
from this statute. The responsibility for establishing fees and complying
with the Act is the commission's, which must utilize its expertise to best
accomplish this.
COMMENT:
Commenter stated this rule would
only save money for the workers' compensation carriers.
RESPONSE:
The commission disagrees that
the MFG is intended to only save money for the workers' compensation carriers.
As discussed in this preamble, the adopted MFG was designed to comply with
all the statutory mandates provided by the Legislature, which benefit all
system participants.
COMMENT:
Commenter recommended incorporation
of the payment policies. Commenter recommended an adjustment factor be used.
RESPONSE:
The commission agrees that payment
policies be incorporated into the MFG rule, and clarifies that the Medicare
payment policies are incorporated in subsection (b) of this rule. Regarding
the use of a payment adjustment factor, the commission clarifies that yearly
payment adjustment factors will occur as the Medicare system changes conversion
factors annually and the MFG MARs will be indexed to the Medicare system.
COMMENT:
Commenter stated the proposed
rule completely disregards legislative authority and if promulgated, litigation
is sure to follow and the commission will be unable to justify its position.
RESPONSE:
The commission disagrees that
the adopted rule disregards legislative authority or that the commission's
position is not justifiable. This new rule is adopted to comply with statutory
mandates in the Texas Labor Code, Section 413.011. The new rule has been adopted
in accordance with the Texas Administrative Procedures Act (APA) and complies
with the legislative mandates in both structure and function. All statutory
directives have been carefully considered and met. However, it is not unusual
for litigation to follow the adoption of controversial rules such as this.
COMMENT:
Commenter opposed standardization
per diagnosis of reimbursement, stating it does not make sense. Commenter
stated this suggests that every individual heals the same, which is inaccurate.
RESPONSE:
The commission disagrees. The
commission is not implementing case rates or a capitated system. The workers'
compensation system maintains its traditional fee for service structure for
professional services. These standardized reimbursements, with the inclusion
of CPT codes and descriptors, RBRVS valuing scales, and other tools of the
industry, are well established, mainstream medicine, and widely used by all
health care systems. Also, the commission recognizes that individuals heal
differently, yet clarifies that such factors are built into the system of
reimbursements, provided the health care provider utilizes appropriate coding
structures.
COMMENT:
Commenter suggested there is no
evidence that the proposed rule will help employers control costs, and that
the proposed rule contains other provisions that are incompatible with Texas
law.
RESPONSE:
The commission disagrees that
the MFG will not help employers to control costs, and that the rule contains
other provisions that are not compatible with Texas law. In correspondence
with the commission prior to proposal, the TABCC Technical Work Group provided
that the new MFG should reduce the unit cost of medical services and should
reduce over-utilization of medical services. Employers should ultimately experience
the positive economic impact of medical benefit costs being lower and possibly
a reduction in indemnity costs, which should be passed on to the employer
in lower premiums.
COMMENT:
Commenter suggested that in order
to be consistent with the provisions of HB-2600 and to ensure the injured
employees have access to effective therapies, the commission needs to modify
the proposed rule by using a payment methodology that does not utilize a fee
schedule.
RESPONSE:
The commission disagrees that
a payment methodology that does not utilize a fee schedule should be adopted.
The use of the CMS RBRVS relative value unit system is mandated by statute.
The use of this value unit system results in a significant realignment of
reimbursements among the CPT groupings. Therapies are valued in a consistent
manner in the RBRVS with other services. This methodology provides standardization
as required by HB-2600.
COMMENT:
Commenter recommended modifications
to subsection (c) to read, "To determine the maximum allowable reimbursement
(MAR) for professional services, system participants shall apply the Medicare
payment policies; however, the MAR shall remain unchanged from the rate dictated
by §134.201 and §134.302, regardless of the date professional services
were provided." Commenter stated that the terms of this subsection are inconsistent
with the Texas Labor Code because it calls for "appropriate fees." The adopted
reimbursement levels and the commercial and Medicare markets are benchmarks
for establishing reimbursement levels of this rule.
RESPONSE:
The commission disagrees with
recommended language substitution for subsection (c), and disagrees that the
fees are inconsistent with the Texas Labor Code. HB-2600 mandated the use
of the CMS RBRVS system, which spends a considerable amount of time and research
to incorporate economic factors in establishing and updating relative values
and conversion factors. The use of MARs in the 1996 MFG with the current Medicare
payment policies would not comply with the mandates in HB-2600 and would not
be compatible. The numbers of relative value units assigned to each procedure
by Medicare are retained, but markedly different conversion factors are used
for the various medical sectors. This results in the loss of the some of the
benefits of the Medicare RBRVS, because relative prices do not fully reflect
relative cots and so the service mix does not fully adjust. (WCRI,
The RBRVS As a Model for Workers' Compensation Medical Fee Schedule: Pros
and Cons.
, Dr. Phillip L. Burstein, July 1996) The commission agrees
that commercial and Medicare markets are benchmarks in revising and establishing
the rates and both have been reviewed in the development of the adopted MFG.
COMMENT:
Commenter stated commission proposed
rules prevent compliance with federal law of Medicare methodology using paper
based filing system. Commenter recommended that the commission evaluate a
way to expedite claim processing electronically and reduce the amount of paper
reporting.
RESPONSE:
The commission disagrees with
commenters' suggestion that this rule prevents compliance with federal law
of Medicare methodology by using a paper-based filing system. The commission
is not able to implement an electronic filing system at this time; however,
the commission's consideration of electronic billing is a component of the
agency BPI initiative, which is currently reviewing the possibility of using
an electronic system in the future. In addition, paper billing is allowed
in the Medicare system.
COMMENT:
Commenter expressed opposition
to the commission's noted 40% decrease in surgical reimbursements for workers'
compensation patients, while also implementing dispute rules, where if lost
by the health care provider, causes an added $640 per hour to their cost of
providing care to an injured employee. Commenter further expressed opposition
to a bureaucrat's being paid $640 to resolve a dispute if it is more than
a surgeon's reimbursement for performing surgery on a patient.
RESPONSE:
Commission disagrees that reimbursement
rates in the MFG are related to fees charged for an independent review organization
(IRO) dispute resolved by an appropriate healthcare provider. The two processes
vary considerably and are not comparable. Rates adopted for IRO reviews are
addressed in other commission rules and were established to be consistent
with IRO fees established by the Texas Department of Insurance.
COMMENT:
Commenters suggested that by using
a multiplier of Medicare, it increases the value of procedures like an appendectomy
at the expense of useful procedures to the workers' compensation patient,
like a fracture repair. Commenter suggested that the pie in the Medicare system
is limited by the federal budget, and the assigned relative value units are
not necessarily at levels that reflect any value at all, only the value to
the typical Medicare patient. Commenter suggested the proposed fee schedule
devalues these very important procedures and diminishes their reimbursement
by 40% to 50%.
RESPONSE:
The commission disagrees that
a multiplier of the Medicare allowable fees has a different value in the Medicare
system than in the workers' compensation system, or that the RBRVS system
only values services typically provided to a Medicare patient. The RBRVS system
used by Medicare reflects the relationship between the resources necessary
to provide a professional medical service relative to resources necessary
to provide other professional medical services. The RBRVS uses three components
to establish the total relative value units for a particular code: (1) work;
(2) practice expense; and (3) malpractice insurance. All of these speak to
the valuation of physicians' effort. The commission also disagrees with the
implication that because the Medicare reimbursement is limited by the federal
budget, the RBRVS values are affected. As previously stated in this preamble,
the commission determines fair and reasonable compensation in the Texas workers'
compensation system to be a balance of all the required components of the
Act. The fact that the Medicare system has unique budget limitations is recognized
and accounted for by the multiplier in the adopted MFG. RBRVS was developed
independently of Medicare and then applied to Medicare. The relative value
for a procedure is established based on the resources used to conduct the
procedures without regard to payer type or patient type. That is why the system
is transferable to the general healthcare system and is an appropriate model
for the commission.
COMMENT:
Commenter recommended clarification
on how pricing and billing will be handled for limited, standard, and extended
radiology services.
RESPONSE:
The modifiers for these services
are no longer applicable. Coding for these services should be consistent with
the most recent AMA CPT coding and the billing and reimbursement policies
established by CMS.
COMMENT:
Commenters recommended an allowance
be made for same day therapy evaluation and therapy, which evidence-based
studies have shown will prevent down coding or denials of payment. Commenter
stated the studies have shown that cases will be closed sooner and at a lower
case cost when an early intervention, sports medicine approach is utilized.
RESPONSE:
The commission disagrees that
an exception to the Medicare payment policies are in order for same day therapy
evaluation and therapy. CCI edits, a component of the Medicare system, address
issues such as this in a standardized fashion as required by HB-2600.
COMMENT:
Commenter proposed leaving the
reimbursement as is and pulling physical therapy codes out to be independent
of any other care giver, thereby allowing physical therapy standards of billing
and care to be established and discovering where the abuse cases are occurring.
RESPONSE:
The commission disagrees that
physical therapy should be treated differently than other services. To treat
a specific type of healthcare provider differently would negate the benefits
and values of the RBRVS system and would not use the most current methodologies,
models, and values or weights used by CMS, as required by HB-2600. The cost
analysis produced by commission staff did not differentiate, nor was it intended
to differentiate among healthcare providers in order to identify system abusers.
The MFG is not designed to specifically address utilization by specific healthcare
providers in the workers' compensation system. However, the commission is
developing the MQRP through the office of the Medical Advisor to address over-utilization
by monitoring to ensure quality care is provided in the system. In addition,
the Medical Advisor and the Division of Compliance & Practices are developing
methodologies to identify and monitor utilization levels, tracking services
billed by provider types and by individual healthcare providers.
COMMENT:
Commenter recommended a bigger
saving in the area of physical medicine.
RESPONSE:
The commission disagrees. The
conversion factors set in the MFG establish appropriate reimbursement levels
when utilized in conjunction with RBRVS and the other components of the reimbursement
systems. The values are established relative to all other services.
COMMENT:
Commenters stated the use of GPCIs
violates HB-2600 Art. 6 Sec. 413.011 subsection (d), as the GPCIs are clearly
payment adjustment factors. Commenter stated very few other states use GPCIs
for workers' compensation. Commenter stated employers who wish to be billed
directly will not have the sophisticated systems to properly adjudicate these
bills and could subsequently pay more than mandated. Commenter stated Alaska
eliminated GPCIs after experiencing a rise in overall costs. Commenters stated
the use of GPCIs would further depress payment rates to all physicians who
are not located in a handful of urban counties and exacerbate existing access
problems in underserved areas of Texas. Commenters recommended eliminating
the use of GPCIs as these will have a significant impact on the time and cost
of implementing the revised guideline, GPCIs create unnecessary billing and
coding issues for both the healthcare provider and insurance carrier. Commenter
recommended a middle-ground index across the state, this would simplify the
billing process for all parties.
RESPONSE:
The commission disagrees that
the use of GPCIs is a violation of HB-2600. GPCIs are an integral component
of the Medicare reimbursement system that takes into account cost variables
due to locality, or regional price variations. The commission disagrees with
various commenter recommendations regarding use, and non-use, of GPCIs, because
they are part of the Medicare system, and will be used, as in Medicare, for
regional price variations.
COMMENT:
Commenter inquired, given the
inflation of health care prices since the 1996 MFG, and that the commission
used the commercial median reimbursement levels as an economic indicator when
calculating the proposed 120% conversion factor, if it is reasonable to ascertain
that any proposal that lowers reimbursement to below the commercial market
median will be challenged by affected stakeholders.
RESPONSE:
As discussed in detail elsewhere
in this preamble, the new rule complies with the legislative mandate in both
structure and function. All statutory directives have been carefully considered
and met. It is not unusual for litigation to follow the adoption of controversial
rules such as this.
COMMENT:
Commenter recommended replacing
the phrase "same conversion factor" with "the conversion factor adopted by
CMS multiplied by 120%".
RESPONSE:
The commission disagrees with
recommended language. In the context of using the appropriate conversion factor
terminology for anesthesiology services, the commission has determined that
the "same conversion factor" language is clearer and emphasizes that the conversion
factor to be used for anesthesiology is the same as that used for all other
categories of services.
COMMENT:
Commenter asked why anesthesia
is dealt with in a separate sentence, and also requested wording clarification
in subsection (c)(1) regarding the use of the adjective "effective," and inquired
how it was intended to modify the phrase that follows.
RESPONSE:
Medicare has a different conversion
factor for anesthesia. However, although the 1996 MFG and the Medicare system
utilize the American Society of Anesthesiologists (ASA) RVU system for anesthesia
services, the Medicare anesthesia conversion factor is more than 50% below
the 1996 MFG anesthesia conversion factor. Transitioning to the RBRVS system
will result in significant fluctuations for some CPT codes in the different
categories, but a 50% reduction in the anesthesia conversion factor will create
a significant negative impact in the entire anesthesia category.
COMMENT:
Commenter recommended the 1996
fee schedule be used as the base line, apply a factor to each CPT code based
on the difference in the CPT code and 2002 Medicare fee schedule, and allow
the reimbursement to decrease or increase with the Medicare fee schedule,
but with the individually assigned baseline factor and not a one size fits
all. Commenter stated this approach will be budget neutral for the first year
and reimbursement would either increase or decrease dependent on the Medicare
fee schedule.
RESPONSE:
The commission disagrees that
the 1996 MFG is an appropriate baseline. The 1996 MFG was designed to produce
the same level of total expenditures as the charge-based 1991 MFG. Indexing
to the 1996 MFG in effect maintains the inconsistencies and inadequacies of
the un-benchmarked 1991 charge-based guideline. Additionally, establishing
a window change modifies the relationships established in the RBRVS system
and defeats attempts to standardize.
COMMENT:
Commenter recommended all significant
fee schedule changes be phased-in with a transition methodology, to stay consistent
with Medicare methodology. Commenter stated a phase-in would be necessary
to reduce the disruptive effect of the large changes in the payments for individual
services caused by the change in relative values.
RESPONSE:
The commission disagrees with
the recommendation to phase-in fee schedule changes. A phase-in of the adopted
MFG reimbursement was considered, but rejected upon consideration of the length
of time since adoption of the 1996 MFG, the May 1, 2002 date for adoption
of changes contained in HB-2600, and the need to control workers' compensation
medical costs in Texas.
COMMENT:
Commenter expressed support for
allowing a yearly payment adjustment factor, as well as the proposed annual
updates of RBRVS.
RESPONSE:
The commission agrees with commenter's
support of maintaining current annual RBRVS updates, and clarifies that yearly
payment adjustment factors will also occur as the Medicare system changes
conversion factors annually. So too, will the MFG MARs be indexed to the Medicare
system, causing an annual reimbursement change in the Texas workers' compensation
system.
COMMENT:
Commenters recommended a yearly
adjustment factor to give healthcare providers a timely increase in their
fees or cost of living adjustments to the MAR, in part to assist them with
keeping up with the increasing costs of supplies and personnel, and also for
eliminating the "highs and lows" often attributed to the Medicare fee schedule
and that assures workers' compensation fees remain fair and reasonable.
RESPONSE:
Yearly payment adjustment factors
will occur as the Medicare system changes conversion factors annually. The
MFG MARs will correspondingly also change and be indexed to the Medicare system
and thus remain fair and reasonable.
COMMENT:
Commenter strongly supported adopting
subsection (c) of the proposed MFG as it complies with the provisions of HB-2600.
RESPONSE:
The commission agrees that the
MFG complies with the provision of HB-2600.
COMMENT:
Commenter recommended increasing
the reimbursement amount allowed for DME due to the fact that restricting
payment does not affect utilization because DME providers are not prescribing
the equipment, just filling prescriptions. Commenter opposed the proposed
reimbursement for the HCPCS level II codes stating that there is no way to
obtain a profit providing DME to workers' compensation claimants. Commenter
opposed the DME decrease as proposed because it is detrimental to independent
DME providers. Commenter opposed the 120% rate for DME stating it is arbitrary
and not supported by evidence of fair market value because the commission
has not conducted a study of the costs or market prices for DME, supplies,
or other specific services. Commenter opposed the 120% of Medicare fees for
DME as too low for quality care, and stated that the quality of the equipment
drops when the reimbursement drops; quality of care and equipment must continue
to be the highest priority. Commenter opposed the proposed 120% reimbursement
for DME, as the rate is less than the MARs set over 10 years ago and dealers
have not received a favorable review in 10 years. Commenter opposed the proposed
reimbursement for DME stating that independent DMEs are without proper representation
and reimbursement, and are being hung out to dry. Commenter opposed restricting
payment and the proposed reimbursement amounts, which are below the actual
cost of the equipment, and stated it will eliminate many small, micro-business
and rural DME providers in some areas thus limiting the injured employee choice
in acquiring DME. Commenter opposed the DME reimbursement proposed stating
it is neither fair nor reasonable. Commenter opposed the amount of reimbursement
for DME, because the DME provider is required to seek out referral, pay commissions,
pay overhead, pay inventory costs, pay taxes, and pay for workers compensation
collection and dispute efforts. Commenter recommended increasing the reimbursement
amounts allowable for HCPCS Level II codes to a higher percentage of Medicare,
anywhere from 145% to 150%, which is comparable to the present proportions
of the MFG. Commenters recommended allowing supplies to be reimbursed at cost
plus 20-30% to cover the cost of doing business as in many instances the cost
of supplies is more than what is being paid; healthcare providers then should
be required to submit invoices upon request to substantiate pricing. Commenter
recommended cost plus 25% for DME to offset the physician's costs of documentation
on the initial billing. Commenter recommended increasing the reimbursement
amount for supplies as there are costs involved above and beyond the "per
item" fee, and healthcare providers must be able to justify stocking supplies
such as braces and splints instead of sending patients to a pharmacy. Commenter
supported the proposed 120% of Medicare as it applies to DME, orthotics, and
prosthetics, as it is a commonly recognized and utilized methodology.
RESPONSE:
The commission disagrees. The
adopted methodology is consistent with adoption of the Medicare coding, billing,
and reimbursement policies, and the adopted Medicare plus multiplier sets
a fair and reasonable reimbursement based on the requirements of the Act.
This is consistent with reimbursement levels for other services and treatments
addressed in this rule. Additionally, by adopting the multiplier of 125%,
the commission has recognized the additional administrative and regulatory
burdens and other considerations that are factors in providing care in the
workers' compensation system. Utilization controls are primarily a function
of §134.600, relating to Preauthorization, Concurrent Review, and Voluntary
Certification, which requires the preauthorization of DME in excess of $500.
Although the commission has not conducted a study of the costs or market prices
for DME and/or supplies, the Medicare system includes ongoing rate analysis
and necessary adjustments to the Durable Medical Equipment, Prosthetics, and
Orthotics Fee Schedule (DMEPOS). Further, Milliman, as a component of the
reports generated during their market analysis prior to the June 2001 proposal,
recommended DMEPOS reimbursement at Medicare plus 25%.
COMMENT:
Commenter recommended that the
commission continue use of a non-fee schedule reimbursement for implantable
medical devices at a rate of invoice plus 10%. Commenters recommended that
the commission modify the proposed rule to utilize the recently adopted CMS
pass-through system for implantable products to fulfill the requirement of
HB-2600 and to ensure that patients have timely access to new technology and
effective therapies so the injured worker is not jeopardized by last resort
therapies. Commenter opposed the use of the "gap-filling process" for implantables,
to establish payment amounts for products on the DMEPOS fee schedule, and
stated that CMS rejected it for inpatient, that it is not appropriate, and
it results in unreasonable payments that are less than what the supplier pays
to purchase the technological products from the manufacturers.
RESPONSE:
The commission disagrees with
the commenters' recommendations to utilize other reimbursement methodologies
for implantable DME items in the MFG. The commission is mandated to adopt
the Medicare policies, including reimbursement of DME, and it is therefore
appropriate to use a multiplier of Medicare DMEPOS to determine the MAR for
DME. If no Medicare rate is established, then the Texas Medicaid Fee Schedule
can be used as stated in the rule. If no Medicare or Medicaid rule is applicable,
then subsection (c)(6) will apply. The MFG applies only to professional medical
services as stated in subsection (a); therefore commenter references to the
CMS pass-through system, which applies to DME provided in facilities, are
not applicable to this fee guideline. This is a facility issue addressed in
other commission fee guidelines.
COMMENT:
Commenter opposed the proposed
payment to cover Spinal Cord Stimulator (SCS) equipment, as it will ultimately
deny workers' compensation patients access to these high tech medical devices.
Commenter expressed concern that the MFG reimbursements to cover SCS equipment
will be substantially lower than reimbursements made in hospital outpatient
settings, hospital in-patient settings, and ambulatory surgery centers. Commenter
opposed the level of reimbursement for SCS products under the current Medicare
system stating it is not only far short of the equipment costs for hospital
in-patients and ambulatory surgical center settings, but also for the hospital
out-patient setting where Medicare covers 100% of the costs today.
RESPONSE:
The commenters' concern regarding
SCSs is not pertinent to the adopted rule. The MFG addresses only DME related
to professional medical services. Facility issues are addressed in other commission
fee guidelines.
COMMENT:
Commenter suggested that the commission
adopt a separate DME reimbursement methodology with a reasonable profit margin
that addresses the real cost of providing the services, such as in private-pay
health insurance. Commenter recommended the use of the Manufacturer's Suggested
Retail Price (MSRP) for an item that is not listed in Medicare or Medicaid's
fee schedules, such that if the health care provider's usual and customary
billing is lower than the MSRP then the usual and customary should be reimbursed.
Commenter recommended that the commission establish a set guideline or default
for HCPCS codes rather than leave it up to the interpretation of carriers
to reimburse, or eliminate this section all together.
RESPONSE:
The commission disagrees with
the commenter suggestions that reimbursement methodologies other than Medicare
be adopted for DME. Section 413.011 of the Texas Labor Code instructs the
commission to use the Medicare program reimbursement methodologies with minimal
modifications. The commission has established a default fair and reasonable
reimbursement methodology in subsection (c). This system allows use of a wide
variety of recourses to establish a reimbursement. If healthcare providers
are displeased with reimbursements under this methodology, they may access
the commission's medical fee dispute resolution process.
COMMENT:
Commenter opposed the Medicare
reimbursement system, as Medicare does not cover equipment used in the treatment
of work-related injuries, therefore DME providers are at the mercy of the
insurance carriers concerning a fair and reasonable reimbursement rate.
RESPONSE:
The commission disagrees. The
DMEPOS and Medicaid fee schedules are anticipated to cover the majority of
items used in the treatment of work-related injuries. For those products and
services without an established relative value unit or payment amount, the
MFG incorporates a methodology that carriers are to use to assign a relative
value which may be based on objective criteria, such as nationally recognized
published relative value studies, published medical dispute decisions, and
values assigned for services involving similar work and resource commitments.
If for some reason this reimbursement methodology results in a disputed payment,
both provider and carrier continue to have access to the commission's medical
dispute resolution process.
COMMENT:
Commenter recommended, based on
the norm in the business community, that an annual medical consumer price
index be instituted to update the conversion factor.
RESPONSE:
The commission disagrees that
rates should be indexed to the consumer price index. The commission must set
rates to meet the requirements of the Act as set out in Texas Labor Code §413.011(d).
In doing so, the commission reviews a wide variety of information and has
access to Bureau of Labor Statistics information including CPI and other economic
indicators. Ultimately the commission must set a reimbursement rate that meets
the specific requirement of the Act, considering current commercial and Medicare
reimbursement, quality and cost control. The commission, by adopting the most
current Medicare program reimbursement, methodologies, models, and values
or weights, including its coding, billing, and reporting payment policies,
incorporates the Medicare analysis of price changes into its reimbursement
methodology on a continuous basis.
COMMENT:
Commenter understood that the
proposed fee schedule excludes reimbursement for clinical pathology professional
services by failing to include clinical pathology CPT codes. The Ingenix 2001
relative value scale fails to provide reimbursement for clinical pathology
professional services and modifier 26 should not be reported with procedure
codes that represent a 100% technical service since there is no associated
professional component. Commenter indicated that the Ingenix statement regarding
their position, as a "common payer policy" was incorrect as the majority of
private payers in Texas provide compensation for clinical pathology professional
services. Commenter opposed the proposed rule and stated that it is in conflict
with federal court decisions because it does not allow pathologists to bill
and be paid for professional component services incurred in the treatment
of an injured employee. Commenter is opposed to the proposed fee schedule,
which is fundamentally unfair as it asks pathologists to go without compensation
for 25-40% of their time, and a pathologist participating in the workers compensation
program is not allowed to bill patients for services that are not reimbursed
by the commission. Commenter recommended that fair and reasonable reimbursement
for all needed clinical and professional pathology services, including the
technical component of clinical lab services, be mandated as part of the fee
schedule. Commenter stated that Medicare recognizes these services as medically
necessary and provides a mechanism for reimbursement, therefore if the commission
wishes to stay consistent with Medicare methodology it would need to increase
the payments to hospitals and require the hospitals to reimburse the pathologists
as Medicare provides reimbursement for clinical pathology and professional
services in the diagnosis related group (DRG) payments made to hospitals.
RESPONSE:
The commission agrees. The commission
is mandated by HB-2600 to adopt the Medicare reimbursement methodologies with
minimal modifications for professional medical services. As such, the commission
recognizes the need to include a reimbursement methodology for pathology and
laboratory services not addressed by subsection (c)(1) or other commission
rules. Therefore, the adopted rule has been amended to include a reimbursement
methodology for both the professional and technical components of pathology
and laboratory services.
COMMENT:
Commenter opposed the 120% reimbursement
rate proposed for dental treatments and services and stated that it will keep
reimbursement rates for dental services unrealistically low. Commenter opposed
the dental reimbursement rate and stated it will continue to discourage most
dentists and oral surgeons in Texas from participating in the workers' compensation
system producing an insurmountable obstacle in finding a dentist to fix a
broken tooth.
RESPONSE:
The commission disagrees. Since
the Medicare program does not establish payment or reimbursement methodologies
for dental services, the commission has adopted the Medicaid reimbursement
methodology plus the multiplier. These rates are established by the Texas
Department of Health to reflect fair and reasonable reimbursement in the Medicaid
system. By adopting the Medicaid reimbursement plus the multiplier, the commission
has identified and addressed the additional administrative burdens and other
considerations that are a factor in providing care in the workers' compensation
system.
COMMENT:
Commenter opposed the insurance
carriers setting relative values, and stated that by refusing to permit the
use of Ingenix codes the commission is not meeting the legislative requirements
of establishing a fee schedule consistent with nationally-recognized fee structures
while avoiding a strict adoption of Medicare guidelines; in addition, carriers
would be led to vary reimbursement of services, the rates would be low thus
discouraging their use and thereby denying necessary treatment, and the healthcare
providers' recourse would be unknown if a low reimbursement is assigned. Commenters
recommended several alternative methods for computing fees for services that
have no relative value unit or payment amount assigned by either CMS or the
commission rather than being arbitrarily set by carriers in order to remain
in the reasonable range and to decrease the number of fee disputes. These
recommendations included: following the CMS rules for reimbursement when there
is no established fee; including a process by which a stakeholder may petition
the commission to assign a relative value unit to individual medical procedures
that do not have a relative value unit assigned by the CMS; establishing a
set guideline or default for HCPCS codes; reimbursing at a minimum of 75%
of the standard charges; using the provider's customary fee as the basis for
the fee rate, since this is the person who has the best understanding of the
service, the complexity of the service, the time commitment and the resources
needed to deliver the service as well as the broadest understanding of the
psychological services provided; determining by nationally-recognized code
listings published by Ingenix; and, deleting this section and establishing
a requirement in which the health care provider must provide evidence of a
fair and reasonable charge, such as a Manufacturer's Suggested Retail Price.
Commenter recommended addressing the criteria for resolving "fair and reasonable"
in medical fee dispute cases where no MAR exists. Commenter found this section
of the rule objectionable and stated that fair and reasonable would be questioned
resulting in numerous disputes, creating unnecessary appeals because there
is no one nationally recognized published relative values or no values assigned
for services involving similar work and resource commitments.
RESPONSE:
The commission disagrees for
reasons previously stated in this adoption preamble that the rule fails to
meet the legislative intent. Additionally, the commission disagrees that language
or methodology revisions are required. The language adequately describes the
framework to be followed by carriers when determining reimbursement in a case
where a relative value or MAR amount has not been established for products
or services. By adopting the most current Medicare program reimbursement,
methodologies, models, and values or weights, including its coding, billing,
and reporting payment policies, the commission is addressing system standardization
and enhancing consistency in the billing and reimbursement processes. Additionally,
the commission has provided a framework to use in developing fair and reasonable
reimbursement for items not addressed in the Medicare or Medicaid systems.
Carriers must follow this framework and are not allowed to arbitrarily set
reimbursement. These methodologies provide for a consistency in reimbursement
not addressed in the 1996 MFG.
COMMENT:
Commenter objected to the language
in this section and stated that it needs clarification. Commenters recommended
the following language changes to this section: add a sentence under (c)(6)
that allows for carriers to utilize a percentage of billed charges as final
default or adopt Medicare's unique methodology; change language to read, "To
determine the maximum allowable reimbursement (MARs) for professional services,
system participants shall compute the allowable charges by identifying the
appropriate CPT code in the CMS RBRVS list for the relative value unit, or
in the current Ingenix list if a CMS relative value unit is not established.
Participants shall then apply Medicare payment policies with the following
minimal modifications..."; delete the language, "the carrier shall assign
a relative value" because the carrier cannot be allowed to dictate the relative
value of any items that are not assigned a Medicare or Medicaid MARs; replace
the phrase "the carrier shall assign a relative value" with "the carrier shall
assign a payment amount."
RESPONSE:
The commission disagrees with
recommendations to change the language of this subsection. The language adequately
describes the framework to be followed by carriers when determining reimbursement
in a case where a relative value or MAR amount has not been established for
products or services. Medicare includes a methodology for determining charges
for rare or unusual procedures; however, the method provided in subsection
(c) is very similar but more easily used and more appropriate for the commission
workers' compensation system. Requiring the carrier to reimburse a percentage
of billed charges places a determination of the reimbursement amount solely
in the discretion of the health care provider defeating the goals of standardization,
relative values, and cost control.
COMMENT:
Commenter opposed this section
of the rule regarding HCPCS codes, and stated that carriers have established
incapability in setting values as demonstrated by the current reimbursement
problems with items that presently do not have MARs.
RESPONSE:
The commission disagrees. The
commission has adopted the Medicare DMEPOS fee schedule and the Texas Medicaid
Fee Schedule Durable Medical Equipment/Medical Supplies Report J for reimbursement
of HCPCS codes. Additionally, the commission has provided a framework to use
in developing fair and reasonable reimbursement for items not addressed in
the Medicare or Medicaid systems. These methodologies provide for a consistency
in reimbursement not addressed in the 1996 MFG.
COMMENT:
Commenter stated that it is not
appropriate to take a relative value unit from a private publication and apply
the CMS conversion factor multiplied by 120%.
RESPONSE:
The commission disagrees. The
methodology outlined in this section gives guidance to system participants
regarding payment for which CMS has not established a relative value. The
use of proprietary relative values for gap codes, which are generally indexed
to similar services, is a common practice and an appropriate framework to
establish reimbursement that meets the requirements of the Act.
Subsection (d)
COMMENT:
Commenter offered support of proposed
language in this subsection, stating it complies with the provisions of HB-2600.
RESPONSE:
The commission agrees that the
reimbursement established in subsection (d) are in compliance with HB-2600.
COMMENT:
Commenters opposed proposed subsection
(d) because it provides no incentive to the insurance carrier to negotiate
or contract rates with a health care provider since the insurance carrier
is allowed to assign their own relative values and prices.
RESPONSE:
The commission disagrees. Subsection
(d) of the adopted rule provides neither incentives nor disincentives for
healthcare providers and carriers to negotiate payment agreements. Subsection
(d) does, however, establish parameters regarding the MAR and potential payment
agreements. Only in certain limited instances outlined in subsection (c)(6),
may a carrier establish a fair and reasonable reimbursement using nationally
recognized published relative value studies, published medical dispute decisions,
and values assigned for services involving similar work and resource commitments.
These reimbursements, as any others, are subject to the dispute resolution
process.
COMMENT:
Commenter recommended deletion
of this subsection, stating that it allows the insurance carrier to reimburse
the health care provider at rates that are less than Medicare fees. Commenter
further stated this would result in a large exodus of quality healthcare providers
from the workers' compensation system.
RESPONSE:
The commission disagrees with
the commenter's recommendation to delete subsection (d). Subsection (d) establishes
parameters for reimbursement in the workers' compensation system and it does
not compare workers' compensation reimbursement to Medicare reimbursement.
The commission further disagrees with the comment that this subsection allows
an insurance carrier to reimburse below Medicare fees without meeting one
of the two exceptions in (d)(2-3). Even if one of the two exceptions applies,
the amount reimbursed would not necessarily be below Medicare rates. If the
insurance carrier is reimbursing using the MAR, as calculated in subsection
(c) of this rule, they will be reimbursing at a rate higher than the actual
Medicare fees due to the conversion factor calculation in the rule. If the
healthcare provider has charged their usual and customary for a service and
it is below the Medicare fees, the healthcare provider has chosen to charge
this amount. If the insurance carrier has contracted or negotiated a rate
with the healthcare provider, both parties have entered that contract voluntarily.
The adopted rule allows the contracted rate to be lower than the MAR; it doesn't
necessarily result in a payment less than Medicare rates. The commission further
disagrees that this section will result in an exodus of quality healthcare
providers from the workers' compensation system because these reimbursement
provisions are the same as those contained in the 1996 MFG.
Subsection (e)
COMMENT:
Commenters requested fee amounts
be increased; or, if no increases were made, requested current fees remain
unchanged. Commenter stated participating in the system has become increasingly
more of a challenge and many physicians will leave the system. Commenter stated
the resulting decrease of quality evaluations would cause increased patient
complaints, greater number of disputed cases, increased paperwork for the
commission, and increase cost to the system.
RESPONSE:
The commission disagrees. The
commenters did not specify which procedures they believed were inadequately
reimbursed or which reimbursements were being decreased. Some fee amounts
have been increased, some have been decreased and others have remained the
same. The commission agrees the workers' compensation system is complex, and
the commission has set fees to address this complexity. Healthcare providers
may or may not choose to participate in this voluntary system based on the
individual healthcare providers' practice costs and related business decisions.
The commission does not believe that access to care will be a problem, as
discussed elsewhere in this preamble. The commission disagrees the quality
of Maximum Medical Improvement/Impairment Rating (MMI/IR) examinations will
decrease as a result of this rule. The commission has changed the reimbursement
structure to allow for a net increase in reimbursements for MMI/IR examinations.
Further, quality of care should not be impacted and consequently there is
no reason to believe patient complaints, disputed cases or paper work requirements
will increase. Additionally, quality of care issues are a primary concern
and the commission is developing the MQRP through the office of the Medical
Advisor to monitor and ensure the quality of care is addressed in the workers'
compensation system.
COMMENT:
Commenters stated the proposed
rates fail to meet the statutory requirements for fair and reasonable professional
fees.
RESPONSE:
The commission disagrees reimbursement
rates do not meet the fair and reasonable statutory provisions. The rates
have been established by reviewing the 1996 MFG, the requirements of the AMA
Guides 4th edition, commission required education, stakeholder input, all
other statutory factors, and consultation with the Medical Advisor to appropriately
reimburse healthcare providers for the amount of work required to perform
the service. Section 413.011(d) of the Act requires that: "Guidelines for
medical services fees must be fair and reasonable and designed to ensure the
quality of medical care and to achieve effective medical cost control. The
guidelines may not provide for payment of a fee in excess of the fee charged
for similar treatment of an injured individual of an equivalent standard of
living and paid by that individual or by someone acting on that individual's
behalf. The commission shall consider the increased security of payment afforded
by this subtitle in establishing the fee guidelines." Fair and reasonable
is not based solely on the market value of services provided to injured employees.
Fair and reasonable compensation in the Texas workers' compensation system
is a balance of all the required components of the Act, as discussed elsewhere
in this preamble.
COMMENT:
Commenters stated the proposed
rule contains non-standard coding and will prevent compliance with the federal
HIPAA of 1996, forcing Texas workers' compensation claims to be indefinitely
tied to a paper-based filing system. Commenters stated the commission should
promote the use of electronic systems, similar to those used by Medicare,
wherever possible.
RESPONSE:
The commission disagrees that §134.202
is inconsistent with Medicare and will prevent compliance with HIPAA regulations.
Some standard coding is necessary in the Texas workers' compensation system
to address services and treatments specific to workers' compensation injuries.
These services and treatments require unique coding for billing and to allow
the commission to monitor utilization and assure quality services are provided
to injured employees. The commission currently does not require electronic
billing; however, electronic billing is addressed in §134.800, relating
to Required Billing Forms and Information, as a component of the agency BPI
initiative. The commission is not required to comply with HIPAA timeframes,
as the commission is exempt from HIPAA regulations.
COMMENT:
Commenters stated the commission
should comply with the legislative intent to follow CMS methodologies and
eliminate the extensive and unnecessary documentation requirements, as it
will prevent compliance with HIPAA. Commenter stated documentation requirements
are contrary to CMS methodologies as CMS does not have documentation of procedure
and uses a sampling methodology to review medical documentation. Commenter
stated documentation requirements only increase the cost for healthcare providers
and insurance carriers for handling paper.
RESPONSE:
The commission disagrees documentation
requirements will prevent compliance with HIPAA regulations. Documentation
requirements for commission-specific codes are minimal and this documentation
is necessary for services that are specific to workers' compensation. The
commission is not required to comply with HIPAA timeframes, as the commission
is exempt from HIPAA regulations.
COMMENT:
Commenter recommended the deletion
of documentation requirements for case management, tests, and measurements.
RESPONSE:
The commission disagrees that
documentation requirements for case management, tests, and measurements should
be deleted. Services and treatments specific to the workers' compensation
system require unique coding and documentation requirements for billing and
to allow the commission to monitor utilization and assure quality services
are provided to injured employees.
COMMENT:
Commenter questioned the removal
of the 1996 MFG, General Instructions' section (IV), relating to Materials
Supplied by the Health Care Provider. Commenter stated this section was critical
and failure to include it would likely produce payment disputes. Commenter
stated disappointment in the commission's decision to omit the section relating
to "Scope of Practice" from the previous withdrawn MFG proposal. Commenter
stated the exclusion of this section would allow for abuse of the system and
the provision of substandard care by unlicensed, poorly trained individuals.
RESPONSE:
The commission disagrees. The
deleted provision addressed bundling and unbundling of supplies and office
visits. As required by HB-2600, the commission adopts Medicare's payment policies
relating to coding, billing, and reporting, which address these services when
appropriate, including CCI edits, global billing, and multiple procedure rules.
As discussed in detail previously in this preamble, the adoption of these
Medicare payment policies reflect standardized reimbursement structures found
in other health care delivery systems. These Medicare payment policies have
been carefully integrated with the Medicare relative values and recognize
nationally accepted standards of care (e.g., CCI) and reporting requirements
(e.g., AMA CPT) that have been carefully scrutinized for appropriateness by
the AMA and the specialty societies. Diverging from those should be limited
and should be based upon sound data and statutory or policy conflicts between
Medicare and the workers' compensation system.
COMMENT:
Commenters recommended the commission
allow for therapy evaluation and treatment on the same day as evidence shows
that workers' compensation cases are closed sooner and at a lower case cost
with early intervention. Commenter recommended the removal of guidelines that
restrict the number of physical therapy modalities and procedures that can
be administered in a single treatment session. Commenter recommended preauthorization
of physical therapy visits that exceed 15 visits.
RESPONSE:
The commission disagrees. The
commission adopts Medicare's payment policies relating to coding, billing,
and reporting. As directed by HB-2600, minimal modifications to these payment
policies are being incorporated. These Medicare payment policies have been
carefully integrated with the Medicare relative values and recognize nationally
accepted standards of care (e.g., CCI) and reporting requirements (e.g., AMA
CPT) that have been carefully scrutinized for appropriateness by the AMA and
the specialty societies. Diverging from those should be limited and should
be based upon sound data and statutory or policy conflicts between Medicare
and the workers' compensation system. Subsection (e) contains commission-specific
services that are a necessary component in the workers' compensation system
and not necessarily addressed by Medicare's payment policies. Physical therapy
services are not contained in this subsection, as these services are not specific
to the workers' compensation system. The preauthorization of treatments and
services is addressed in §134.600, of this title relating to Preauthorization,
Concurrent Review, and Voluntary Certification of Health Care, not in this
rule.
COMMENT:
Commenters recommended the commission
continue to allow the $15.00 reimbursement for the filing of commission required
reports. Commenters stated that physicians need to be reimbursed for the time,
effort, and requirements involved in completing the commission reports. Commenter
stated the commission's logic for having this fee, as described with the Work
Status Report release, remains valid.
RESPONSE:
The commission agrees; the adopted
MFG does not alter the reimbursement for commission-required reports, which
are contained in other commission rules.
COMMENT:
Commenter stated that by requiring
healthcare providers to bill usual and customary charges the cost of providing
care will increase due to increased administrative burden.
RESPONSE:
The commission disagrees that
the requirement for healthcare providers to bill usual and customary charges
will increase administrative burden. This requirement is not new. The requirement
to bill usual and customary charges was contained in the 1996 MFG to enable
the commission to collect information on health care provider charges for
services and treatment and consider differentials between charges and payments
when evaluating reimbursement policies. Additionally, §413.007 of the
Texas Labor Code requires the medical review division of the commission to
maintain a statewide database of medical charges, actual payments, and treatment
protocols that may be used by in adopting and administering medical policies
and fee guidelines. Additionally, the practice of billing usual, customary,
and reasonable (UCR) charges is a component of the Medicare system and allows
the commission to maintain the standardization required by the Act.
COMMENT:
Commenter stated strong support
for billing UCR as it would be difficult and complicated for healthcare providers
to bill at the MAR rate.
RESPONSE:
The commission agrees. Section
413.007 of the Texas Labor Code requires the medical review division of the
commission to maintain a statewide database of medical charges, actual payments,
and treatment protocols that may be used by in adopting and administering
medical policies and fee guidelines. Additionally, billing UCR charges is
a component of the Medicare system and allows the commission to maintain the
standardization required by the Act.
COMMENT:
Commenter stated subsection (b)
implies that healthcare providers are to bill charges based on Medicare type
rates, not based on UCR charges. Commenter recommended language clarification
to insure that UCR charges are to be billed and Medicare/Ingenix-based rates
are to be paid.
RESPONSE:
The commission disagrees subsection
(b) implies that healthcare providers are to bill charges based on Medicare
type rates. Subsection (b) specifies workers' compensation participants are
to apply Medicare payment policies relating to coding, billing, and reporting,
and those Medicare policies require the billing of UCR. The commission also
disagrees language clarification is necessary regarding UCR charges. Subsection
(e)(1) specifically states, "Health care providers shall bill their usual
and customary charges." Subsection (c) specifically outlines the MAR for services.
COMMENT:
Commenter stated proposed subsection
(e)(2), regarding Multiple Procedure Reimbursement, arbitrarily limits reimbursement
for multiple procedures performed during the same operative session.
RESPONSE:
The commission disagrees. The
June 2001 proposal of the MFG, which included the subsection (e)(2) referred
to by commenters regarding Multiple Procedures, was subsequently withdrawn.
As adopted, reimbursement for multiple procedures shall be as specified by
the Medicare payment policies.
COMMENT:
Commenter recommended clarification
of who initiates the call and that case management does not allow the insurance
carriers to use nurse case managers to acquire information that the insurance
carrier should already have. Commenter recommended the commission consider
adding specific medical services such as psychological treatment, certified
work hardening programs, and pain management.
RESPONSE:
The commission disagrees clarification
of who initiates a case management call is needed. A case management call
should take place when healthcare providers need to communicate regarding
an injured employee; who initiates the call is not a relevant issue and is
not set out in the rule. The commission also disagrees that clarification
regarding insurance carriers using nurse case managers for case management
is necessary. Subsection (e)(3) outlines the circumstances under which case
management services should occur. The commission disagrees with commenter's
recommendation to include psychological treatment as a commission-specific
service. As directed by HB-2600, minimal modifications to Medicare payment
policies are being incorporated. Subsection (e) contains commission-specific
services that are a necessary component in the workers' compensation system
and not necessarily addressed by Medicare's payment policies. Work hardening
and pain management programs are included in this subsection, but psychological
treatment is included in the Medicare policies.
COMMENT:
Commenter recommended deleting
subsection (e) and replacing with language suggested by commenter. Commenter
stated that standard medical coordination or case management is already defined
in Medicare regulations, rules, and payment policies. In order to maintain
standardization, minimal modifications are made as necessary to apply these
policies to care delivered for occupational injuries.
RESPONSE:
The commission disagrees that
the recommended language is necessary. As commenter stated, standard medical
coordination or case management is already defined in Medicare regulations,
rules, and payment policies. Commenter's suggestion would incorporate overly
restrictive payment policies and limit reimbursement to the healthcare providers
thereby negating the rationale for including case management in the system.
Further, as directed by HB-2600, minimal modifications to Medicare payment
policies are being incorporated. Subsection (e) contains commission-specific
services that are a necessary component in the workers' compensation system
and not necessarily addressed by Medicare's payment policies. The case management
language included in this rule enhances the ability of the treating doctor
to manage workers' compensation cases, this is especially necessary since
Medicare does not specifically address return to work initiatives.
COMMENT:
Commenters expressed opposition
to this subsection. Commenter stated this could result in additional costs
to the carrier as a result of treating doctors who could artificially create
case management expenses in addition to the normal treating physician fee.
Commenter stated insurance carrier case managers make providing care more
difficult, consume the healthcare providers' time, and rarely affect the injured
employee's course of treatment.
RESPONSE:
The commission disagrees that
case management will result in increased expenses due to treating doctors
artificially creating case management expenses. As the gatekeeper of the injured
employees medical care, the treating doctor must be able to communicate and
coordinate care with other healthcare providers. Case Management is specifically
addressed in this subsection as the workers' compensation usage differs from
the Medicare usage of Care Plan Oversight. Under Medicare, "Care Plan Oversight
(CPO) is physician supervision of patients receiving either home health or
hospice benefits where complex or multidisciplinary care modalities and ongoing
physician involvement are required." Further, the Medicare usage does not
cover nursing facility services or patients in skilled nursing facilities.
Under the workers' compensation system, Case Management usage is specific
regarding time parameters and is limited to the development or revision of
a treatment plan, altering or clarifying previous instructions, coordination
of care of employees with catastrophic or multiple injuries and coordination
with employer, employee and/or assigned case manager. The commission also
disagrees that insurance carrier case managers cause providing care to be
more difficult; the intent is providing an open venue of communication between
the treating doctor and the insurance company, and is an important element
in the injured employee's recovery and return to work goals. This provision
allows reimbursement for case management services by healthcare providers
when meeting with insurance carrier case managers.
COMMENT:
Commenter recommended a clarification
be added to ensure reimbursement for tests and measurements.
RESPONSE:
The commission disagrees clarification
is needed to ensure reimbursement for tests and measurements. As with any
medical service provided to an injured employee, medical necessity is the
determinant for reimbursement. Medicare payment policies and subsection (e)(4)
address tests and measurements and how they are reimbursed.
COMMENT:
Commenters recommended that the
limits and restrictions on the frequency and duration of FCEs as stated in
this section be eliminated, reimbursement of FCEs can easily be managed by
retrospective review and a restrictive payment policy does not properly anticipate
the various needs of injured workers; especially in complicated injuries with
prolonged treatment.
RESPONSE:
The commission disagrees. The
limits and restrictions on the frequency and duration of FCEs are necessary
in the provision of this service to ensure only necessary testing is provided
to injured employees. Additionally, management of FCEs by retrospective review
does not provide guidance for the healthcare provider for assurance of payment.
If necessary, the commission may order additional FCEs in accordance with §413.018(c)
of the Texas Labor Code.
COMMENT:
Commenter recommended language
be added to limit how many insurance carrier-requested FCEs can be ordered
by the commission.
RESPONSE:
The commission disagrees that
a limit on insurance carrier-requested FCEs ordered by the commission, is
necessary. This payment policy addresses the various needs of the injured
employees, including those who may require multiple FCEs in accordance with §413.018(c)
of the Texas Labor Code.
COMMENT:
Commenters recommended a maximum
of 3 hours ($300) be allowed for completion of a 2nd or 3rd FCE, it is imperative
at this stage of the rehabilitative process that sufficient time is used to
establish a clear, accurate return to work status.
RESPONSE:
The commission agrees three hours
should be allowed for completion of the 3rd FCE. However, the commission disagrees
three hours should be allowed for completion of the 2nd test. Consequently,
the commission has amended language in subsection (e)(4)(C) to, "Reimbursement
shall be for up to a maximum of four hours for the first test or for a commission
ordered test; a maximum of two hours for an interim test; and, a maximum of
three hours for the discharge test, unless it is the initial test."
COMMENT:
Commenter expressed concern over
the proposed decreases in reimbursements for FCEs.
RESPONSE:
The commission clarifies that
reimbursements for FCEs have not been decreased. However, reimbursement of
$100 per hour was changed to reimbursement of $25 per 15-minute increments.
COMMENT:
Commenters recommended FCE reimbursement
be 100% of the MAR regardless of Commission for Accreditation of Rehabilitation
Facilities (CARF) accreditation.
RESPONSE:
The commission clarifies that
CARF accreditation has no bearing on the reimbursement for an FCE. CARF accreditation
only applies to Return to Work Rehabilitation Programs.
COMMENT:
Commenter stated the commission
proposes to reimburse FCE's at $25 per 15-minute increments, yet in subsection
(c)(1) it states that reimbursement is the effective conversion factor adopted
by CMS multiplied by 120%. Commenter states the two sentences are incompatible.
In the Medicare 2002 fee schedule this CPT code (97750) is reimbursed $24.07
and by section (c)(1) should be increased by 120% to $28.89. The $25 per 15-minute
rate if performed under the auspices of an FCE is patently unfair; the commission
should not choose from the fee schedule those services that do not suit the
commission's goals of saving money.
RESPONSE:
The commission disagrees with
commenter's interpretation that there is reimbursement incompatibility within
the MFG payment policies. However, the commission agrees reimbursement for
FCEs should be in accordance to subsection (c)(1) and has amended the language
in subsection (e)(4)(C) to reflect this change by deleting $25 text from subsection
(e), so that the reimbursement will be in accordance with subsection (c).
COMMENT:
Commenter stated subsection (4)(A)
is inaccurate and misleading, some CPT codes, such as 96100, are clearly identified
as including a report. However, other CPT codes, such as 90801, do not indicate
or require reports be included with the service. Commenter recommended this
section be amended to read: "Some Tests and Measurement Current Procedural
Terminology (CPT) codes require a report of the results, to include the start
and end times. When these reports are specified as included as part of the
relevant CPT codes, no additional reimbursement shall be allowed for this
report."
RESPONSE:
The commission disagrees that
subsection (e)(4)(A) was inaccurate or misleading. Subsection (e) addresses
reimbursement for commission-specific services. Therefore, the language in
proposed subsection (e)(4)(A) pertained only to tests and measurements contained
in proposed subsection (e)(4); this requirement did not apply to other tests
and measurements, such as 96100 or 90801. However, the language in proposed
subsection (e)(4) has been modified to only include payment policies for functional
capacity evaluations and subsections (e)(4)(A)&(B) have been deleted.
COMMENT:
Commenter recommended the nine-hour
time limit for FCEs be allowed during the time between onset of an injury
and establishing MMI, the provider could then determine how to utilize the
time allowance based on the injured employees capacity and objective criteria.
Commenter stated an interim FCE is often not needed, thereby allowing more
time for the final FCE.
RESPONSE:
The commission disagrees a nine-hour
time limit should be allowed for FCEs. Without time limit restrictions, the
first FCE could exhaust the allowed time leaving no time or reimbursement
for subsequent FCEs. Lacking access to these FCEs, an injured employee's return
to work activities may be diminished.
COMMENT:
Commenter recommended a three
health care provider limit instead of the three FCE limit and to allow each
provider the hour limits of 5 hours for first test and 2 hours for second
and/or third test.
RESPONSE:
The commission disagrees with
commenter's recommendation to allow a three healthcare provider limit for
FCEs. The rational for this recommendation is unclear and the commission cannot
identify a reason to include such a provision.
COMMENT:
Commenters opposed the exclusion
of definitions or descriptions of what constitutes the various RTW programs
and recommended the addition of clear and well-defined RTW rehabilitation
program descriptions. Commenters stated that the programs should be distinguished
in detail, with descriptions and elaborations of clear language, rather than
being secondarily referenced as meeting CARF clinical standards. Commenters
stated that without well-defined RTW program descriptions, which provide clear
parameters regarding what services are global to the programs, the ultimate
result will be decreased quality of interdisciplinary programs at the expense
of the patient's treatment and recovery process. Commenters further stated
the reference in subsection (e)(5) regarding the health care provider meeting
the CARF clinical standards is inadequate for several reasons: CARF's written
guidelines are simply too broad and only outline components, but do not address
billing issues such as duration of treatment (e.g., the 1996 MFG established
a minimum of 4 hours per day for work conditioning/work hardening and CARF
does not establish a minimum or maximum number of hours which may be billed);
also, in the 1996 MFG, the mental health evaluation and treatment section
clearly explained which psychological services were considered global to the
multidisciplinary RTW programs, a carrier could consider psychological services
as global to a RTW program and reimburse at an insufficient rate.
RESPONSE:
The commission disagrees with
the recommendation to include specific definitions for the RTW rehabilitation
programs listed in the MFG. Since the definitions for these programs may change,
including specific definitions in the rules would result in confusion between
the most current standards and any definitions outlined in the rule. This
approach is consistent with subsection (a), which requires the use of the
most current Medicare program policies; therefore, the commission declines
the incorporation of the specific program definitions in §134.202. The
MFG uses the most recent CARF Medical Rehabilitation Standards Manual for
program descriptions and clinical standards. The development of examinations
standards involves a two-tiered process whereby CARF first convenes National
Advisory Committees (NAC) to systematically review sections of the Standards
Manuals and to make recommendations for changes and updates. Secondly, a field
review is conducted in which the NAC recommendations are disseminated to CARF
system participants for input, and suggestions before final adoption by the
CARF Board of Trustees. The program descriptions developed and used by CARF
serve to define the rehabilitation programs referenced in the MFG and provide
clear parameters regarding which services are global to the program. The commission
in no way anticipates that the quality of interdisciplinary programs will
decrease as a result of the adoption of this rule but the opposite is anticipated.
Since the CARF program descriptions and clinical standards are outcome-focused,
the results are anticipated to raise the bar on quality, thereby promoting
shortened recovery time and better return to work results. Further, the commission
disagrees that the CARF clinical standards are inadequate because they do
not address program-billing issues. With the exception of General Occupational
Rehabilitation programs, which by CARF standards are typically not longer
than 6 weeks in duration, standard frequencies and durations of treatment
for interdisciplinary programs are not applicable. These outcome-focused programs,
which utilize an interdisciplinary team approach that includes the payers,
establish frequency and duration on a case-by-case basis using a continuum
of care with both admission and discharge criteria. Additionally, for non-exempt
programs, the preauthorization of the program should address frequency and
duration, with concurrent review available for necessary continuation of the
program; the commission, not CARF, establishes the hourly reimbursement rates.
Further, the psychological component of RTW programs, as established by CARF
parameters, is considered global to the program, is not coded separately,
but is coded and billed using the appropriate rehabilitation program code(s)
and modifier(s), and is reimbursed at the program's hourly rate as established
in the MFG.
COMMENT:
Commenters expressed concern that
the wording in subsection (e)(5) will become the focus of confusion and conflict
between healthcare providers and insurance carriers and will lead to billing
abuses and frequent disputes. Commenter stated that definitions of RTW programs
should be added to the rule language, as these services require preauthorization
and concurrent review under Rule 134.600.
RESPONSE:
The commission disagrees that
specific program definitions should be added to §134.202; by referencing
the definitions developed by CARF, the commission is, in fact, providing definitions.
In addition, if the CARF definitions were included in the rule and then later
amended by CARF, the commission would be forced to amend definitions in §134.202.
The commission also disagrees that the specific wording in subsection (e)(5)
would become a focus of conflict between system participants for the following
reasons. Although accreditation of rehabilitation programs by CARF is not
a requirement, the commission recommends the accreditation. Until January
1, 2003, there are two occupational rehabilitation programs that are eligible
for exemption from preauthorization and concurrent review: CARF accredited
General Occupational Rehabilitation (work conditioning) and CARF accredited
Comprehensive Occupational Rehabilitation (work hardening). Currently, all
non-accredited work conditioning and work hardening programs, as well as all
other occupational rehabilitation programs, require preauthorization and concurrent
review, and as of January 1, 2003, all work conditioning and work hardening
programs, accredited or not, will require preauthorization and concurrent
review. Once preauthorization is requested and obtained, both parties are
aware of the program in progress and whatever billing and reimbursement parameters
are appropriate. The approval for preauthorization and/or concurrent review
is expected to reduce the number of disputes.
COMMENT:
Commenter stated that all RTW
programs are interdisciplinary programs consisting of some mix of physical
medicine and other services and at the CPT code level, the same services occur
in all five programs. Although a facility may be CARF accredited for a comprehensive
outpatient rehabilitation program (work hardening,) nothing precludes the
facility from providing general outpatient rehabilitation or interdisciplinary
pain rehabilitation program services; there is an economic incentive to bill
for services at the highest possible rate. Commenters stated that without
more specific guidelines, a clinic could treat a patient for an hour, provide
no psychological services and have no medical director but bill for one hour
of chronic pain management. Commenter questioned on what basis would an insurance
company, and ultimately the commission, determine a program to be entitled
to a rate higher than $36 per hour.
RESPONSE:
The commission disagrees. Although
at the CPT code level, many of the same services occur in all rehabilitation
programs, coding and billing for individual rehabilitation programs are specified
in subsection (e)(5) and designated by using specific primary and secondary
modifiers. The commission further disagrees with commenters' assessment of
the possibility of attempted fraudulent billing by facilities providing return-to-work
programs. The process of preauthorization or exemption from preauthorization
will help determine whether a program is entitled to the greater reimbursement.
The commission may exempt a facility from preauthorization for a specific
CARF-accredited program(s) and verification of the commission-exemption is
currently available on the commission's website, which the carrier is expected
to verify. All other work hardening, work conditioning and rehabilitation
programs require preauthorization from the carrier, which establishes the
hourly reimbursement rate at the onset of the program. All treatments and
services are subject to either preauthorization or retrospective review and
medical bill review/audit.
COMMENT:
Commenter stated the lack of specificity
would be disastrous for the commission because the commission has neither
the resources nor intention of reviewing individual programs or providing
instructions to individual program's staff.
RESPONSE:
The commission disagrees that
the lack of specificity regarding RTW program parameters will lead to disaster.
It is neither the intention of the commission to review individual programs
nor to provide instructions to program staff regarding outpatient rehabilitation
programs. The commission has adopted CARF program descriptions and relies
on CARF to set the standards for programs that carry CARF accreditation; however,
CARF-accredited facilities are subject to commission verification and audit
and may be audited at any time. In addition, as all healthcare providers are
subject to audit and review by the commission, the CARF clinical standards
establish parameters that the commission may monitor through bill review audit.
COMMENT:
Commenter stated that large loopholes
exist in the Outpatient Medical Rehabilitation (OMR) and Chronic Pain Management
(CPM) programs which will result in abuse by healthcare providers, as these
programs are proven to be most expensive and are usually completed after all
else fails. Most of these programs do not achieve RTW because the timing in
the rehabilitation process is so long past the initial onset that positive
results are difficult to accomplish. Commenters further recommended that complete
definitions for outpatient medical rehabilitation programs and chronic pain
management programs be revised to contain more specific requirements to warrant
the increase in reimbursements when compared to work hardening and work conditioning
programs.
RESPONSE:
The commission disagrees that
large loopholes exist in the CARF descriptions for OMR and CPM programs that
may result in abuse by healthcare providers. For commission purposes, the
program descriptions and clinical standards as outlined by CARF assist all
stakeholders by making known what is expected for each program in advance
of treatment. In addition, using the CARF standards incorporates an interdisciplinary
team approach where all stakeholders are expected to communicate and provide
input. The stakeholders generally include payer and employer, as well as the
injured employee, their support system, and the interdisciplinary team. The
interaction of stakeholders is expected to create an atmosphere of cooperation
rather than one that would contribute to abuse. The commission agrees that
providing the OMR and CPM programs are the most expensive of the rehabilitation
programs and are often considered programs of last resort for injured employee;
however, the interdisciplinary team projects the possibility of positive results
for the injured employee. The commission disagrees that more specific definition
is required for either the OMR or the CPM programs. CARF descriptions list
the differences and enumerate the more extensive criteria required for the
OMR and CPM programs, thus warranting the difference in reimbursement rates
compared to work hardening and work conditioning programs. Further, both OMR
and CPM programs require preauthorization and concurrent review; they must
be prescribed by the injured employees' treating doctors, and the need for
the program must be based upon the doctor's professional judgment on a case-by-case
basis.
COMMENT:
Commenters recommended the inclusion
of the 1996 MFG RTW language so that the distinctive elements of interdisciplinary
pain management programs can be clearly differentiated from other programs
such as work hardening and work conditioning, as neither Medicare nor CARF
define these terms. Commenter stated subsection (e)(5) references CARF, but
the referenced RTW terms are not defined on CARF's website and CARF manuals
are not public domain.
RESPONSE:
The commission disagrees with
the inclusion of the 1996 MFG language. The scopes of treatments in RTW programs
are clearly differentiated within the parameters of CARF clinical standards
and should require no definition in the MFG. CARF regularly reviews and updates
program and accreditation requirements, incorporating current industry standards.
In addition, all RTW programs require preauthorization except CARF accredited
general or comprehensive occupational rehabilitation programs, thereby removing
any confusion regarding which program is being rendered, coded, and billed,
and at what hourly percentage of the MAR it will be reimbursed. The commission
agrees that neither Medicare nor CARF define the programs of work hardening
or work conditioning per se; however, the language in subsection (e)(5) specifically
applies the CARF terms General Occupational Rehabilitation and Comprehensive
Occupational Rehabilitation, respectively to work conditioning and work hardening
programs. The commission further agrees that the CARF manuals are not public
domain; however, the manuals are available for purchase, and fully establish
the clinical standards, which must be met for delivery of one of the outpatient
rehabilitation programs.
COMMENT:
Commenter recommend the commission
specify what psychological services are part of the outpatient interdisciplinary
programs and what psychological services must be preauthorized and billed
separately.
RESPONSE:
The commission disagrees with
commenter's recommendation to include rule language to differentiate between
the psychological services that are global to the RTW programs and those that
must be preauthorized, coded, billed, and reimbursed separately. By CARF clinical
standards, RTW programs may include a psychological component, which would
not require separate preauthorization, because the components of the program
are global to the program.
COMMENT:
Commenters expressed support for
the proposed increase in the reimbursement rate to $125 per hour for interdisciplinary
pain management programs, as designated in (E)(ii).
RESPONSE:
The commission agrees with commenters'
support of the reimbursement rate for interdisciplinary pain management programs.
COMMENT:
Commenters recommended that reimbursement
levels for facilities providing specific rehabilitation programs be at 100%
of the MAR regardless of the type of accreditation held by the facility. Commenters
recommended that the reimbursement should be for actual services provided,
not based on the type of facility or whether the facility is accredited.
RESPONSE:
The commission disagrees with
the recommendation that all facilities providing specific rehabilitation programs
be reimbursed at 100% of the MAR. For the past six years, the commission has
reimbursed CARF accredited programs at 100% of the MAR, because the programs
accredited by CARF have met specific clinical standards in order to be accredited,
which may or may not have been met by non-accredited programs. CARF is a nationally
recognized accrediting body for rehabilitation programs and is the accrediting
standard for a number of other states workers' compensation programs. Some
other states reimburse only CARF accredited facilities. Although Texas rehabilitation
facilities are not required to have or be in the process of obtaining CARF
accreditation, the commission deems that there is justification for an additional
financial incentive for those facilities that have obtained this accreditation.
COMMENT:
Commenters recommended that general
programs which provide work hardening and FCEs be reimbursed at 100% of the
MAR, assuming that all criteria are met.
RESPONSE:
The commission disagrees that
a facility that provides work hardening programs and also administers FCEs
qualifies for 100% reimbursement for the work hardening program, unless that
program is CARF accredited. Whether a facility performs FCEs or not, has no
bearing on the reimbursement rate for other services rendered by that facility.
In addition, the reimbursement for FCEs is established in subsection (c) and
is not dependent on whether a facility is CARF accredited or not.
COMMENT:
Commenters expressed concern with
the commission's inference that CARF is the "magical cure all;" whereas in
the real world CARF is merely a time consuming tedious paper game, does not
ensure good patient care, only ensures good record keeping, which can be easily
altered. Commenters submitted various language modification recommendations
to allow certification of facilities by organizations other than CARF, including
deletion of word "CARF" from "CARF accredited," a phrase to change wording
to simply, "accredited" in subparagraphs (A-E). Other commenters recommended
adding language, ". . . CARF, 'or any other organization, which is approved
by a recognized professional organization or association, to accredit such
rehabilitation programs,' is recommended but not required."
RESPONSE:
The commission disagrees with
commenters' assessment of CARF. The commission further disagrees with commenters'
recommendations to modify rule language to include certification of facilities
by organizations other than CARF. Whereas the commission recommends CARF accreditation,
the accreditation is not required for a facility to provide, code, bill and
be reimbursed for RTW rehabilitation programs. For the past six years, the
commission has recognized CARF program standards, and currently, provides
eligibility for exemption from preauthorization and concurrent review for
CARF accredited work conditioning and work hardening programs. In the December
2001 MedPAC report to the Congress entitled,
Reducing
Medicare Complexity and Regulatory Burden
, "One of the ways that Medicare
has made it possible to simplify regulation in the fee-for -service program
is through deemed status authority. Deemed status allows organizations accredited
by a body with standards and a process deemed to be as stringent as the Medicare
requirements to become certified for participation in the program without
an additional evaluation from the federal program." Further, the commission
views facilities accredited by CARF as similar to "deemed status authority."
The commission anticipates being able to monitor billing and reimbursement
practices, comparing CARF accredited and non-accredited programs with respect
to duration of treatment and program outcomes. Insurance carriers are required
to provide information to the commission on preauthorization and concurrent
review for the non-accredited work hardening and work conditioning programs,
as well as all other rehabilitation programs, the data from which can be compared
to the commission's medical billing data base for a clearer understanding
of the effectiveness of these RTW rehabilitation programs. Further, a continuation
of the preauthorization exemption may be evaluated prior to the expiration
of the exemption period.
COMMENT:
Commenters expressed opposition
to relying on CARF clinical standards, as that is not adequate, that CARF
standards do not describe what constitutes different rehabilitation programs.
RESPONSE:
The commission disagrees with
commenters' opposition to the inadequacy of CARF standards for different rehabilitation
programs. CARF clinical standards are nationally recognized, outcome based,
are widely utilized, and do describe, for commission purposes, what constitutes
different and specific rehabilitation programs. By commission language, "work
hardening" services equate to "comprehensive occupational rehabilitation"
programs and "work conditioning" to "general occupational rehabilitation"
programs.
COMMENT:
Commenters expressed opposition
to reimbursement level at $125/hour for chronic pain management programs with
the high level of coordination and care needed by such patients. Recommendations
were provided for increasing hourly reimbursement rates, ranging from $135
to $175 per hour, to more fairly reflect the cost of providing such programs,
especially if the commission will require all programs to meet CARF standards
for pain management. Also, commenters stated that major insurance payers currently
reimburse at $175 per hour, a rate that is commensurate with industry standards.
Commenters stated that the commission has set all fees at 20% above the Medicare
rate, but has set the fee for pain management at almost 10% below the national
standards, quoting the federal workers' compensation rate for pain management
at $136 per hour.
RESPONSE:
The commission disagrees with
the recommendation to increase reimbursement for chronic pain management.
The 1996 MFG did not set a reimbursement amount for chronic pain management
programs; carriers and healthcare providers determined a fair and reasonable
reimbursement during the effective time period of the 1996 MFG. Reimbursement
for chronic pain management programs in the adopted rule is within this range.
Additionally, reimbursement amount above this level would place reimbursement
for an eight-hour program above the per diem reimbursement for inpatient hospitalization.
The federal workers' compensation hourly rate is only one example of a health
care system's reimbursement for a chronic pain management program. Public
comments received from the previous MFG proposal of June 2001 revealed that
a wide range exists for the quoted usual and customary hourly charges, starting
at $105. Data received also indicated average hourly payments by 21 insurance
carriers for chronic pain management programs is equal to $105, and this averaged
84% of billables being paid by the 21 carriers. Additionally, healthcare providers
indicated that much negotiated contracting occurs with carriers for chronic
pain management programs, and negotiated hourly rates have been as low as
an $88 hourly rate. Consequently, the adopted hourly rate of $125 for a CARF
accredited chronic pain management program is fair and reasonable and is well
within parameters of opinions received from public commenters.
COMMENT:
Commenters recommended that if
Medicare's approach for reimbursing all outpatient rehabilitation and return
to work services is to be adopted, then subsections (e)(5)(D-E) should be
combined and replaced with the term, "Comprehensive Outpatient Rehabilitation
Facility Services" (CORF). In addition, commenters recommended changing the
reimbursement levels for the most complex program (outpatient medical rehabilitation)
to be paid at $90 per hour. Additionally, commenters recommended that as timed
physical medicine codes are primarily 15 minute interval codes, the reimbursement
for timed programs be amended from "units of less than 31 minutes shall not
be billed or reimbursed " to "units of less than 15 minutes shall not be billed
or reimbursed."
RESPONSE:
The commission disagrees with
commenter's recommendation to collapse all outpatient rehabilitation and return
to work programs under the term CORF because CORF certifies facilities and
not specific rehabilitation programs. The commission provides clarification
that reimbursement for outpatient medical rehabilitation was proposed at $90
per hour, and this hourly rate is unchanged in the rule as adopted. The commission
agrees that the timed rehabilitation programs should be coded and billed in
increments of 15 minutes and has revised subsection (e)(5) language as follows:
"Units of less than 1 hour shall be prorated by 15 minute increments. A single
15 minute increment may be billed and reimbursed if greater than or equal
to 8 minutes and less than 23 minutes."
COMMENT:
Commenters expressed support of
the rule as proposed, and specifically the reimbursement levels designated
in paragraphs (e)(5)(A)(ii) and (e)(5)(B)(ii).
RESPONSE:
The commission agrees.
COMMENT:
Commenters stated that if CARF
accreditation is recommended but not required, then a facility with CARF accreditation
for General Occupational Rehabilitation (work conditioning), should be able
to provide Comprehensive Occupational Rehabilitation (work hardening) at work
conditioning rates, and not be limited to work conditioning if the facility
is able to meet all the work hardening criteria.
RESPONSE:
The commission disagrees with
commenter's recommendation. CARF accredits each program individually and the
commission exempts each program individually. Accreditation in one program
does not prevent a facility from providing services in another program; however,
for commission purposes, if one program is CARF accredited and the other is
not, then the reimbursement rate is 100% of the MAR for the CARF accredited
program and 80% of the MAR for the non-accredited program. In addition, the
non-accredited program requires preauthorization and unless the commission
has exempted the CARF accredited program, preauthorization is required for
that as well.
COMMENT:
Commenters expressed support for
language and reimbursement rates proposed in subsection (e)(5)(C-E) for specific
medical services and medical service healthcare providers. Commenters expressed
support for the proposed hourly reimbursement as delineated in (e)(5)(C)(ii)
at a rate of $64 per hour.
RESPONSE:
The commission agrees with commenters'
support of language and reimbursement rates for comprehensive occupational
rehabilitation, OMR and CPM programs, and the commission adopts reimbursement
as fair and reasonable reimbursement for these respective interdisciplinary
programs.
COMMENT:
Commenters submitted recommendations
that all outpatient rehabilitation programs be billed and reimbursed in 15-minute
increments, following the Medicare structure for rounding time units. Commenters
expressed opposition, stating that the billing requirements in the adopted
rule are cumbersome for rehabilitation programs in subsection (e)(5)(B-E),
billed in hourly increments, disallowing reimbursement for the first 31 minutes,
which commenters state is contrary to Medicare and all other physical medicine
and rehabilitation billing, and therefore, contrary to the legislative intent.
Commenters recommended further clarification of subsection (e)(5)(E)(ii) of
the proposed rule so that the 31 minutes be the minimum, with that time frame
being "pro-rated" so that 32 minutes is not billed as an hour. Further, commenters
opposed billing structure for work hardening and work conditioning whereby
the first two hours are billed using one CPT code and any additional hours,
are billed with a different second code, again disallowing reimbursement for
the initial 31 minutes.
RESPONSE:
The commission agrees with commenters'
position regarding the incremental reimbursement for rehabilitation programs.
The commission amends adopted subsection (e)(5) and clarifies reimbursement
for units of less than one hour may be prorated by 15 minute increments. The
commission disagrees with the opposition expressed to the required use of
two different CPT codes when billing for work conditioning and work hardening
beyond two hours. These two codes and their descriptions are established by
AMA CPT coding and are used to identify the amount of time that service is
rendered; and these codes apply to both return to work programs.
COMMENT:
Commenters questioned the non-inclusion
of home health care and nursing services and reimbursement rates for these
services, as both home health care and nursing services will continue to play
a critical role in providing care for the critically ill injured employees.
Commenters stated that to exempt home health care and nursing services and
appropriate reimbursement for these services from the proposed MFG may cause
future complications and increases in costs, further stating that other states
allow rate-contracting for home health care and nursing services, to bring
competition and cost savings to the system. Commenters provided recommendations
regarding individuals engaged in home health care and nursing services, stating
that these healthcare providers should be reimbursed for their associated
travel, and that healthcare providers who render these services should be
reimbursed for an administration or nurse-staffing fee. Commenters recommended
language modifications to the title of subsection (e)(5) and the addition
of new paragraph (F)(i through viii) regarding Nursing Services and Home Health
Care Programs.
RESPONSE:
Because Medicare covers home
health and nursing services as E/M codes; the reimbursement for these services
is not separately addressed as an exception to Medicare in subsection (e),
but rather as professional services in subsection (c)(1). The provider may
code as for CMS billing, and apply the adopted multiplier. The commission
clarifies Medicare payment policies will be applied for reimbursement of home
health care and nursing services.
COMMENT:
Commenters recommended that the
commission closely monitor and audit healthcare providers billing for outpatient
medical rehabilitation and chronic pain management programs, paragraphs (D) &
(E), to determine if the facility is qualified for the type of program being
billed. Commenter recommended that the commission adopt rules to ensure that
organizations are conforming to established program requirements and that
penalties be assessed for organizations that provide return to work services
without meeting the clinical standards established by CARF for each program.
RESPONSE:
The commission disagrees that
additional rules are needed to ensure compliance and assess penalties. The
Texas Labor Code, §§415.003, (relating to Administrative Violation
by Health Care Provider), 415.0035, (relating to Additional Violations by
Insurance Carrier or Health Care Provider), and 415.005, (relating to Overcharging
by Health Care Providers Prohibited; Administrative Violation) provide statutory
authority and parameters for the commission to issue a violation against a
health care provider and assess an appropriate penalty. In addition, the enforcement
of the commission's newly adopted Chapter 180 rules (relating to Monitoring
and Enforcement) is a function of the Division of Compliance & Practices
and is accomplished through health care provider monitoring and audit.
COMMENT:
Many commenters addressed the
provisions of subsection (e)(6) relating to evaluation of MMI and assignment
of IR. Some commenters opposed the proposed fee reductions stating they were
unjustified, will result in loss of quality MMI evaluations, loss of quality
care for the injured employee, increased patient complaints, a greater number
of disputed cases arising from inadequate and inaccurate evaluations, increased
paperwork for the commission and increased costs to the system. Commenters
felt that the fee reductions may discourage or limit doctors from participating
in the MMI/IR evaluation process and cause ethical experienced quality healthcare
providers to leave the system. Commenters contended that designated doctor
examinations and required medical examinations (RME) are being reduced by
50% and this is an unjustified reduction, which will put doctors out of business.
Some commenters supported a reduction in fees, but felt that the proposal
was drastic and unrealistic. Commenter stated the opinion that the proposed
decrease in fees would virtually eliminate the "out-of-town" doctors who travel
to perform these examinations.
Some commenters felt the proposed reduction was an effort to increase insurance
carrier profits and others felt that it created a financial incentive to find
injured employees at MMI, which is unfair to the injured employee. Commenter
stated that early determination of MMI would usually result in a much higher
perceived permanent impairment increasing impairment benefits and eventually
workers' compensation premiums.
Commenters advocated reimbursement commensurate with the task and stated
that these evaluations are complex, comprehensive, costly, and take many hours
to generate in that time is required for preparation and dictation of reports,
obtaining and reviewing records, and the physical evaluation time which is
dependent on the history, complexity and age of the injury. Commenter stated
these examinations usually take about 150% the time of a normal new patient
visit. Letters of clarification are increasing in number yet the responses
are considered part of the original report and billing. Some commenters contended
that the $350 for evaluations in which non-MMI is determined is already too
low for what is involved in the task and pointed out that social security
chart reviews reimburse at least $65 per hour whereas $100 for a MMI/IR examination
is less than $30 per hour. Other commenters contended that reimbursement when
the injured employee fails to attend the examination is $100, and an IRO paper
review is paid at $650. These commenters contend that less time and effort
are required for IRO reviews and that doctors providing similar services should
be reimbursed the same amount. Commenters stated that evaluations, which result
in non-MMI determinations, are not necessarily less complicated or less time
consuming and require more resources than the clear-cut MMI cases. Commenters
stated that determining whether an employee is at MMI is a far more difficult
decision than is the determination of impairment, the chart review is greater
than the amount of work required for assignment of an IR.
Commenters recommended various reimbursement amounts: a flat fee of $1,000
regardless of the extent of the injury, a rate based on the time actually
spent with the patient, a flat rate of $500 for non-MMI examinations, $350
for non-MMI examinations and $500 for all other MMI examinations, structure
remain the same as the 1996 MFG and increase each category by $100, graduated
scale beginning at $200 and progressing to $550, an additional $150 for each
additional body area, graduated scale of $400 for simple cases, $600 for intermediate
cases, and $800 for complex cases, maximum of $600, $125 per hour to reflect
complexity, letters of clarification reimbursed at $150 per rebuttal or $100
per report, 25% reduction, RME doctors paid $100 more than designated doctors.
Commenter indicated that increased requirements such as doctor training,
completion of additional forms, requiring reports to be sent to different
parties by verifiable means, purchasing courses, books and updates result
in an increase in the cost of doing business. Commenter stated that designated
doctors may be asked to provide multiple IRs per §130.6 and that reimbursement
should be increased due to the additional work involved.
Some commenters recommended that language in subsection (e)(6) be stated
more clearly regarding billing for MMI/IR examinations.
RESPONSE:
The commission agrees in part.
Subsection (e)(6) has been revised to reorganize and simplify the billing
and reimbursement provisions for MMI/IR examinations and assessments. The
commission agrees that doctors should be reimbursed similarly for similar
services. In keeping with this, the reimbursement structure for MMI examinations
has been changed from a tiered reimbursement structure, which provided different
reimbursement amounts depending on the time elapsed since the date of injury
and the role of the doctor, to a structure which provides one reimbursement
amount for almost all MMI evaluations. The adopted rule eliminates the distinction
between reimbursement amounts for MMI evaluations performed by designated
doctors and RME doctors. In part, this change recognizes the recently adopted
commission requirements that all doctors performing MMI/IR evaluations (not
just designated doctors) be trained in the performance of this service. All
MMI determinations (except those performed by treating doctors or referral
doctors who have previously been treating the injured employee) will be reimbursed
$350. For purposes of reimbursement, there is also little distinction between
the examinations resulting in a finding of not at MMI and the examinations
finding that an employee has reached MMI. Equivalent reimbursement for these
examinations is warranted because the work effort for both MMI and non-MMI
certification examinations is similar. This will eliminate any appearance
of economic incentive for a particular outcome.
Based on the number of MMI examinations billed in 2000, the adopted single
reimbursement rate of $350 for these examinations is projected to result in
an overall increase in the reimbursement to both designated doctors and RME
doctors for these services. This increase should address any concerns that
doctors would be discouraged or prevented from participating in the system
as designated doctors or RME doctors; or, that the quality of the MMI/IR determinations
would be adversely affected because of reimbursement. Also, the increase in
overall reimbursement should compensate for the instances where a doctor is
required to provide further clarification on a certification.
In addition, the adopted rule has been amended to incorporate reimbursement
of $50 for each additional IR calculation when multiple IRs are required as
a component of a designated doctor examination.
Commission disagrees that reimbursement rates in the MFG are related to
fees charged for an IRO dispute. The two processes vary considerably and are
not comparable. The Medical Dispute Resolution process is mandated by HB-2600
to use IROs in resolving medical necessity disputes. The commission has adopted
Texas Department of Insurance rules regarding the IRO process including the
IRO fees regulated by that state agency. IRO reviews are addressed in other
commission rules and were established to be consistent with IRO fees established
by the Texas Department of Insurance. The fee for an IRO review is $650, which
includes not only reimbursement to the reviewer, but also the administrative
costs incurred by the IRO in managing the review process.
After review of the tasks involved in performing a MMI examination, the
commission determined $350 to be fair and reasonable reimbursement for these
services based on correlative reimbursement data received from other states'
workers' compensation systems, as well as the input received from the commission's
Medical Advisor. Additionally, when performing an IR evaluation, body areas
are reimbursed as well. The commission's Medical Advisor has reviewed the
reimbursement amount and agreed it is a fair and reasonable reimbursement
for the level of examination required.
COMMENT:
Commenter stated the direction
of cost savings has been directed against those physicians who have been responsible
for the vast improvement of medical care in indemnity savings within the system.
Commenter stated this section of the rule is truly a slap in the face of every
doctor who performs these examinations honestly and ethically. Expenses continue
to increase, however, the commission is establishing a pay cut.
RESPONSE:
The commission agrees MMI/IR
services are an important component of the workers' compensation system. The
commission disagrees cost saving measures have been directed at any particular
healthcare provider group. The adopted MFG contains modified language that
directs equivalent reimbursement for both MMI and non-MMI certification examinations
due to the equivalency of work effort. Further, reimbursement levels have
been simplified into one reimbursement amount for all doctors, other than
the treating doctor, providing MMI/IR services. This simplification of the
reimbursement rates should result in an overall increase in reimbursement
for MMI/IR services.
COMMENT:
Commenter stated the workers'
compensation carriers have shoved HB-2600 down everyone's throats, passed
the use of the 4th edition of the AMA Guides which seriously reduces the care
an injured employee may receive, or lowers their IR especially where the spine
is concerned, and this is just another ploy by the insurance "cartel" to keep
more money and make more interest for themselves.
RESPONSE:
The commission disagrees. The
Texas Legislature adopted HB-2600 during the 2001 Legislative Session, thereby
amending §413.011. The commission must meet the statutory provision of
achieving effective medical cost control, but balance that objective with
the equally important statutory goals of adopting guidelines for reimbursement
of medical services that are fair and reasonable and designed to ensure the
quality of medical care.
COMMENT:
Commenter recommended that consultation
be undertaken with physician groups, including the TMA, to base any new fees
on economic reality, not an arbitrary fee cut without justification or adequate
time for discussion.
RESPONSE:
The commission disagrees. In
the development of the MFG, the commission repeatedly solicited and received
input and comment from system stakeholders, the MAC, and the Medical Advisor
regarding both the draft and proposed rules. Public comment has additionally
been received and considered and some changes have been incorporated to subsection
(e)(6)-(7) as a result.
COMMENT:
Commenter stated a recent article
published in the Journal of American College of Occupational Medicine demonstrated
a 75% decrease in indemnity costs when injured employees were referred to
medical specialists rather than primary care physicians who were paid above
the level of primary care.
RESPONSE:
The commission neither agrees
nor disagrees. It is a treating doctor's responsibility, as the gatekeeper
of healthcare provided to injured employees, to determine when the services
of a medical specialist are appropriate.
COMMENT:
Commenter stated fair and reasonable
reimbursement levels must be allowed which will further allow the insurance
companies and employers the same right to a second opinion examination.
RESPONSE:
The commission agrees fair and
reasonable reimbursement levels are a necessary component of the MFG. The
equalization of reimbursement for all MMI/IR determinations will ensure that
RMEs are available to insurance carriers and employers.
COMMENT:
Commenter stated well supported
medical judgments and expertise are required and the commission is sending
a clear message that these services are no longer valued. Commenter expressed
concern designated doctor examinations are not held in high regard, as designated
doctor opinions are key to the injured employee getting what they need, deserve,
and are legally entitled to. Commenter stated designated doctors act as agents
of the state yet the commission does not defend them.
RESPONSE:
The commission disagrees MMI/IR
services by designated doctors are no longer valued. Medical services provided
by designated doctors continue to be an integral component of the workers'
compensation system. Additionally, the commission has attempted to simplify
reimbursement for MMI/IR examinations and projects an overall reimbursement
increase for these services.
COMMENT:
Commenter stated one of the greatest
problems with the workers' compensation system in Texas is the excessive,
unreasonable and unnecessary medical attentions associated with billing and
collecting.
RESPONSE:
The commission agrees that workers'
compensation is a complex system. However, an individual provider's business
practices may determine the level of difficulty in managing claims in the
workers' compensation system. The commission attempts to simplify the billing
and payment processes where possible and has adopted standardized payment
policies in accordance with HB-2600.
COMMENT:
Commenter recommended non-MMI
examinations be reimbursed not less than $50 of the MMI examination reimbursement.
RESPONSE:
The commission disagrees. After
re-evaluating the services necessary, the adopted rule recognizes the similarity
in the amount of work involved for both MMI and non-MMI certification examinations
and establishes an equivalent reimbursement for these examinations.
COMMENT:
Commenter recommended the designated
doctor should be asked separately to comment on anything other than MMI/IR,
when this is the case a separate pay should be given according to the quantity
of questions asked and whether examination is further required, multiple fees
should be attached to multiple tasks.
RESPONSE:
The commission agrees designated
doctors may be asked to comment on issues relating to other than MMI/IR. Subsection
(e)(7), regarding Return to Work/Evaluation of Medical Care Examinations,
establishes separate reimbursement structures for return to work and evaluation
of medical care issues.
COMMENT:
Commenter stated the commission
should not permit reduction of fees by either PPO bill reviewers or insurance
carriers if the doctor is acting as an agent of the state on behalf of the
commission.
RESPONSE:
The commission disagrees. The
MFG in §134.202(d) provides that reimbursement shall be the least of
the amount calculated in accordance with the rule, the healthcare providers
usual and customary charge, or a contracted amount that applied to the billed
services. This is appropriate because the commission allows for contractual
agreements between healthcare providers and carriers as long as the reimbursement
does not exceed the MAR. Agreement exceptions are at the discretion of the
individuals negotiating the contract. Healthcare providers can enter into
contractual agreements with PPOs or insurance carriers whenever the healthcare
provider chooses to do so.
COMMENT:
Commenter opposed "presumptive
weight" being given to an examination requested by the commission. Commenters
recommended reimbursement for designated doctors and required medical examination
doctors be the same, both examinations are equally comprehensive and should
be compensated the same. Commenter stated RME doctors will now be examining
and addressing MMI/IR issues after the designated doctor has examined the
injured employee.
RESPONSE:
The commission agrees reimbursement
for designated doctors and required medical examination doctors should be
the same, as both types of doctors are required to complete the same training
standards, and consequently "presumptive weight" does not apply. The adopted
rule has been amended to reflect this change.
COMMENT:
Commenter recommended reimbursements
to the designated doctors and RME doctors be mandated to be completed within
a 14 day timeframe once the report is received.
RESPONSE:
The commission disagrees. The
MFG does not address reimbursement timeframes. Section §133.304 of this
title, relating to Medical Payments and Denials, addresses these issues.
COMMENT:
Commenter recommended rule clarification
in subsection (e)(6)(H)(iv) on how the treating doctor is to request an extension
from the insurance carrier of the four-hour maximum time limit.
RESPONSE:
The commission clarifies that
the process to be followed by a treating doctor attending an MMI/IR examination
is contained in §§126.6 and 134.5 of this title, relating to Order
for Required Medical Examination and Treating Doctor Attendance at Medical
Examination under a Medical Examination Order. Proposed subsection (e)(6)(H)(iv)
has been removed from the adopted MFG to avoid future conflicts and duplication.
COMMENT:
Commenter was concerned with allowing
the treating doctor to attend a RME with the injured employee. Commenter recommended
language addition in subsection (e)(6)(H)(iv) to allow other doctors, such
as associates, to attend RMEs, "An inured employee's treating doctor (or other
doctor authorized by the treating doctor)..."
RESPONSE:
The right of an injured employee
to have a doctor of the employees' choice attend a RME with the injured employee
is not established by the MFG, but by Texas Labor Code §408.004. The
doctor of the employee's choice is the injured employee's treating doctor.
The procedure for the treating doctor's attendance is addressed by §§126.6
and 134.5 of this title, relating to Order for Required Medical Examination
and Treating Doctor Attendance at Medical Examination under a Medical Examination
Order. Therefore, proposed subsection (e)(6)(H)(iv) has been deleted from
the adopted rule.
COMMENT:
Commenter recommended revising
guidelines on when MMI/IR evaluations are requested to help alleviate over-utilization.
RESPONSE:
The commission disagrees. Other
commission rules establish when it is appropriate to request MMI/IR evaluations.
Additionally, the office of the Medical Advisor and the Division of Compliance &
Practices are developing methodologies to identify and monitor utilization
levels in the workers' compensation system.
COMMENT:
Commenters recommended reports
continue to be reimbursed $15, due to time efforts and personnel expenses
involved in processing reports.
RESPONSE:
The commission agrees. There
has been no change to the reimbursement for required reports.
COMMENT:
Commenter expressed support for
subsection (e)(6)(D), regarding testing by specialist.
RESPONSE:
The commission agrees.
COMMENT:
Commenter recommended language
clarification regarding subsection (e)(6)(A)(v), contending that the proposed
language will lead to unnecessary denials of fees. For example, may provider
bill for EMG/NCV or Current Perception Threshold testing in addition to the
examination for MMI/IR when determining if radiculopathy, carpal tunnel syndrome,
etc., are present and require an IR.
RESPONSE:
The commission disagrees clarification
regarding required testing for IRs is necessary. Tests necessary to assign
an IR are outlined in the AMA Guides and these are the ones included in the
MAR for MMI/IR examinations.
COMMENT:
Commenter recommended reimbursement
in subsections (e)(6)(G)(iii) and (e)(6)(H)(iii), regarding broken appointments,
be the same for appointments scheduled by either the commission or the carrier.
RESPONSE:
The commission disagrees. The
reimbursement for broken appointments has been removed from the adopted MFG.
The reimbursement structure for MMI examinations has been changed; this should
result in an overall increase in reimbursement for MMI examinations. The increase
in reimbursement should compensate for possible costs a healthcare provider
may incur due to broken appointments.
COMMENT:
Commenter opposed proposed reimbursement
of $350, contending that this amount is not sufficient considering the many
aspects of RTW that must be addressed.
RESPONSE:
The commission disagrees a reimbursement
of $350 is insufficient for RTW examinations. The services involved in a RTW
examination are comparable to the services necessary in providing MMI services.
Further, the commission's Medical Advisor has reviewed the reimbursement amount
and agreed it is fair and reasonable reimbursement for the level of examination
required. Also, reimbursement for any necessary testing is provided additionally.
COMMENT:
Commenters recommended a fee of
$500, as proposed in the June 2001 MFG, which would also include testing,
this would be more reasonable and easier from a billing perspective in that
testing would not be billed separately.
RESPONSE:
The commission disagrees the
reimbursement for RTW examinations should be $500 and include testing. Not
all RTW examinations require testing, therefore, a $500 reimbursement rate
is excessive for some RTW examinations. It is more accurate to provide a base
fee of $350 and add reimbursement for those examinations that require testing.
COMMENT:
Commenter recommended reimbursements
addressing RTW issues be consistent with subsection 134.202 (e)(4)(C).
RESPONSE:
The commission agrees. Subsection
(e)(7), regarding RTW examinations, is not in conflict with subsection (e)(4)(C),
which outlines functional capacity evaluation payment policies. FCEs and RTW
are very different concepts. An FCE is full physical examination with a functional
abilities test to determine the injured employee's optimal functional level,
and assists in determining the appropriateness of further treatment. A total
of three FCEs are allowed, with the processes being relatively detailed. A
RTW examination relates only to a determination by a designated doctor to
resolve an injured employee's return to work dispute.
COMMENT:
Commenter recommended the language
regarding reimbursement for RTW examinations performed by designated doctors
be stated more clearly.
RESPONSE:
The commission provides clarification
in subsection (e)(7) has been revised to address RTW and Evaluation of Medical
Care (EMC) Examinations by any doctor.
COMMENT:
Commenters recommended a language
change to include carrier-requested examinations (e.g., RMEs) for RTW determination
and reimbursement levels for these examinations.
RESPONSE:
The commission agrees and subsection
(e)(7) was modified to clarify that carrier requested examinations are included.
COMMENT:
Commenters opposed the proposed
reimbursement of EMC examinations at a consultation level. Commenter stated
basis of proposed rate was unclear. Commenters stated these examinations are
as comprehensive as the examinations to determine MMI/IR and require the same
amount of expertise, record review, time, effort, patient interview and physical
evaluation. Commenter stated these claims are often very old, with extensive
records. Commenters stated these examinations require 3 to 6 hours of time
depending on the complexity of the case and with overhead expenses it would
be impossible to continue to provide this service. Commenter stated proposed
rate was dramatically less than the current $350. Commenter stated the opinions
rendered for these examinations are often used to determine the need for continued
treatment and payments; therefore reimbursement should be more than a consultation
fee. Commenter recommended reimbursement be $350, the same as for RTW examinations,
it will give the injured employee the opportunity to receive a fair evaluation.
Commenter stated reduced rates for EMC examinations will make it exceedingly
difficult to provide high quality patient care. Commenter recommended reimbursement
be at least between $500 and $800.
RESPONSE:
The commission agrees and language
in the adopted MFG has been modified to include a higher reimbursement amount
for EMC examinations. However, the commission disagrees with recommendation
to reimburse EMCs between $500 and $800. After evaluation of the tasks necessary
to perform an EMC examination and consultation with the commission's Medical
Advisor, subsection (e)(8) has been deleted and EMC examinations have been
added to subsection (e)(7). The reimbursement for both RTW and EMC examinations
has been established at $350, with necessary testing to be billed and reimbursed
separately.
COMMENT:
Commenters recommended reimbursement
be $500, the same as for RTW examinations and with the same provisions, it
will be very difficult for the commission or insurance carriers to find physicians
who will perform these examinations for less. Commenters recommended reimbursement
be $500, as proposed in June of 2001.
RESPONSE:
The commission disagrees. RTW
examinations are not reimbursed $500 and the reimbursement amount proposed
for EMCs in June 2001 was also not $500. However, language in the adopted
MFG has been modified to increase the amount for EMC examinations to $350,
the amount that is paid for RTW examinations.
COMMENT:
Commenter recommended deletion
of proposed subsection (e)(8), as reimbursement should not change.
RESPONSE:
The commission disagrees. Since
reimbursement for EMC examinations is not clearly established in the 1996
MFG, it cannot be determined if the reimbursement for EMC examinations is
changing. Adopted §134.202 (e)(7) establishes a CPT code and reimbursement
amount for EMC examinations, which is the same amount paid for RTW examinations.
COMMENT:
Commenters recommended that reimbursement
for an RME doctor be in accordance with subsection (e)(6)(H)(i)-(iv).
RESPONSE:
The commission disagrees. The
adopted MFG incorporates extensive structural changes and the criteria contained
in proposed subsection (e)(6)(H)(i)-(iv) have been deleted.
COMMENT:
Commenter recommended reimbursement
for evaluations to determine MMI, evidence of and extent of injury, and medical
necessity, should be equal or more than the reimbursement levels for determination
of IR.
RESPONSE:
The commission disagrees. The
process for the assignment of an IR is vastly different than the process for
the other evaluations listed. Therefore, reimbursement for IR assignment is
determined by body areas rated and the other evaluations are reimbursed at
$350.
COMMENT:
Commenter recommended $500 reimbursement
for a designated doctor performing an EMC examination, as proposed rule does
not establish this provision. Commenter recommended language be stated more
clearly regarding billing for an EMC examination.
RESPONSE:
The commission disagrees with
the recommendation to reimburse $500 to designated doctors performing EMC
examinations. The commission also disagrees that clarification for billing
an EMC examination is needed. However, subsection (e)(7) of the adopted MFG
has been restructured to clarify billing and reimbursement of EMC examinations.
The reimbursement amount is the same for an EMC examination regardless of
the type of doctor that performs the examination.
General Comments
COMMENT:
Commenters recommended that the
commission regulate carriers for compliance to decrease administrative costs,
and require that carriers switch to electronic billing to decrease costs to
everyone.
RESPONSE:
The commission agrees with commenters'
recommendation and currently regulates carriers for compliance with the Texas
Labor Code and attendant rules. The commission currently does not require
electronic billing; however, this is a component of the agency BPI initiative.
COMMENT:
Commenter expressed opposition
to the proposal, stating that it is the perception of medicine that the commission
operates as an accessory to the insurance industry, whereas the commission
was originally established to take care of the injured employees of Texas.
RESPONSE:
The commission disagrees. As
stated on the commission website, "Workers' compensation is a state-regulated
insurance program that pays medical bills and replaces some lost wages for
employees who are injured at work or who have work-related diseases or illnesses."
The commission serves as the agency that regulates these insurance benefits
for all system participants.
COMMENT:
Commenters expressed various positions
regarding the benefits of a managed care system. Some commenters expressed
support for incorporation of a managed care system, stating that if managed
care succeeded in lowering costs in private medicine, why won't it work well
in the workers' compensation system? Other commenters recommended that the
commission take steps to ensure that workers' compensation does not become
a managed care system. Commenters stated that managed care systems try to
prevent the patient from receiving proper care. Commenters stated that the
managed care proposition has been to lower the income to physicians and restrict
access to medical care for the insured, adding that to assume that medical
care in the U.S. should have a fee schedule based on Medicare remuneration
will end up in a catastrophe. Commenters expressed concern that if the rule
is adopted, medical care would be in the hands of those whose priorities are
cost containment rather than improving the quality of life, leaving injured
employees with substandard care or the loss of benefits. Commenter further
stated that many healthcare providers do not sign contracts with HMOs and
PPOs for less than 150% of Medicare.
RESPONSE:
The term "managed care system"
does not have a single definition. The MFG does not adopt an HMO or PPO system.
Injured employees in the workers' compensation system can choose a treating
doctor from the commission's ADL. The provisions of HB-2600 include a feasibility
study for the establishment of regional healthcare delivery networks. However,
these network options are not part of the MFG. The decision of which systems
a healthcare provider will participate in is a business decision the healthcare
provider will make based on his/her situation. The MFG is a result of balancing
all statutory mandates and objectives.
COMMENT:
Commenters stated that the final
adjudication will be in favor of the insurance and business industry, not
the injured employee, creating a negative impact not only on injured employees,
but also on employers and tax payers.
RESPONSE:
The commission disagrees that
final adjudication of any claims will be biased as a result of the adoption
of §134.202. Final adjudication of claims is not directly related to
the adoption of the MFG.
COMMENT:
Commenter recommended that the
reasoned justification in the Notice of Final Adoption include how the conversion
factor will affect access to care, will impact the documented inadequacies
in treatment planning, coordination of care and the role of the physician
in achieving return to work. In addition, commenter recommended that reasoned
justification include how this adoption fulfills the HB-2600 mandate. Commenter
recommended that the Notice of Final Adoption address how the conversion factor
will impact the cost of medical benefits to employers and employees, what
administrative factors in the Texas workers' compensation system increase
or decrease the practice costs of physicians in a manner best addressed through
the conversion factor, and how physician reimbursement with the selected conversion
factor compares to physician reimbursement in other payment systems.
RESPONSE:
The commission's reasoned justification
is set out in this preamble and the commenters other issues are discussed
elsewhere in this preamble.
COMMENT:
Commenters stated that considering
the gap in reimbursement and inflation that already exists in the Texas workers'
compensation system, this inequity will be greatly exacerbated if the proposed
MFG is adopted.
RESPONSE:
The commission disagrees. The
1996 MFG was not used as the benchmark for developing the adopted multiplier.
The commercial and Medicare markets and workers' compensation rates in other
states are benchmarks for establishing reimbursement levels. In establishing
the adopted reimbursement levels the commission considered these benchmarks,
therefore, there is an appropriate relationship between the adopted reimbursement
levels and the current benchmarks.
COMMENT:
Commenter opposed adoption of
MFG stating that there are several reasons for higher treatment costs in Texas
workers' compensation system other than those created by MFG rates and offered
the following recommendations: healthcare providers not making timely diagnosis,
not getting the patient into active care soon enough, adjustors not having
realistic expectations of an injured employee's treatment, carriers not paying
bills timely, insurance doctors incorrectly performing RME's, carriers slow
to pay impairment income benefits, incorrectly paid attorney's fees, and paying
fraudulent claims. Commenters recommended that reasons for higher treatment
costs in the system are the result of various other situations not related
to the proposal of this rule. In addition, commenters offered that savings
could come through generic usage and buying agreements for pharmaceuticals,
regulating the healthcare providers who justify it, not by lowering reimbursements
across the board, and subjecting the carriers to fines.
RESPONSE:
The commission has considered
numerous factors discussed elsewhere in this preamble in establishing the
MAR. The commission agrees that there are many factors that impact system
costs in addition to the per unit costs addressed in the MFG. Although many
of the commenter's specific examples are outside the realm of the MFG and
are addressed in other commission rules, it is important to note that the
commission has adopted new pharmacy rules that address use of generics, new
preauthorization rules, and other rules pursuant to HB-2600, which address
issues affecting system costs. The MARs established by the MFG are an important
part of this cost containment effort.
COMMENT:
Commenters offered varied comments
not related to the adoption of proposed §134.202, including comment that
attorneys take an unfair share of the limited money that is due to the healthcare
providers, and comment regarding injured employees' reasons for changing treating
doctors. Commenters expressed general concern that workers' compensation is
in a true crisis, in that there are no fee guidelines or treatment guidelines
in place at the moment, inquiring why the Spine Treatment and other treatment
guidelines were abandoned. Commenter expressed opposition to proposed MFG
stating that is unconstitutional and unconscionable to require a health care
provider to pay at tier one or two levels of payment, $450 - $650 for a medical
review, as this will deprive the average health care provider of access to
medical dispute and is a state sponsored scheme denying access to the court
system. Commenters stated that the commission is now imposing added responsibilities
regarding documentation of how and from whom medical records were obtained,
why appointments were canceled, and the rescheduling of appointments within
7 days, inquiring why should it be the doctors' responsibility to notify the
commission if they have not received medical records 3 days prior to the examination.
Commenter inquired if the commission is trying to banish and role of medical
case managers, as no one but an authorized representative from the commission
can contact the designated doctor to obtain medical clarification. Commenter
further inquired who would monitor the commission to ensure the timely disbursement
of information, including if the commission should not be also required to
submit information to all parties within 7 days, in a likewise timely manner,
or be fined?
RESPONSE:
Because these comments are not
related to the adoption of §134.202, they will not be responded to in
this preamble.
COMMENT:
Commenter stated that there is
no logical explanation for this "fee proposal" outside the political arena
and that the proposal is unnecessary at this time.
RESPONSE:
The commission disagrees with
commenters' position that the adoption of the MFG is unnecessary at this time.
Section 413.011 of the Texas Labor Code requires the commission to adopt rules
to establish medical policies and guidelines relating to payment of fees for
specific medical treatments or services. The statute envisions a review and
revision of fee guidelines every two years and HB-2600 provided timelines
for implementation of its mandates. The reasoned justification for the specific
provisions in the rule are contained in this preamble.
COMMENT:
Commenters stated that the proposed
rule fails to provide program safeguards, as well as achieve standardization
with other health insurance programs. Additionally, commenters stated that
the decision to cut care by cutting reimbursement may have some short-term
positive outcomes for business, will only temporarily provide a cost savings
on medical expenses to the insurance carrier, but the entire system is likely
to suffer long-term effects if the proposal is adopted.
RESPONSE:
The commission disagrees that
the proposed rule failed to provide standardization. The rule provides for
standardization by adopting the most current Medicare policies and subsequent
updates. The Medicare system, including RBRVS, is a consistent standard used
in most medical practices, therefore a significant number of healthcare providers
are already aware of the Medicare coding, billing, and reimbursement policies.
The application of subsequent updates will allow healthcare providers to maintain
a consistency between their Medicare and workers' compensation practices.
The commission disagrees that program safeguards are not included in the rule.
Although the commenter is not specific regarding what is meant by "safeguards"
new §134.202 together with other commission rules ensure quality medical
care to injured employees in a number of ways. The commission is developing
the MQRP through the office of the Medical Advisor to address over-utilization
by monitoring to ensure quality care is provided in the system. In addition,
the Medical Advisor and the Division of Compliance & Practices are developing
methodologies to identify and monitor utilization levels, tracking services
billed by provider types and by individual healthcare providers. These are
further examples of system safeguards. The commission disagrees that the decision
to reduce overall system reimbursement is equivalent to a decision to reduce
care to injured employees or that the system will suffer long-term effects
if the MFG is adopted and those issues have been addressed elsewhere in this
preamble. One of the commission's fundamental purposes is to assure a proper
balance of costs, quality and access to care. If for some reason the proper
balance is not achieved, the commission has the responsibility to respond
and re-establish that proper balance.
COMMENT:
Commenters expressed opposition
to proposed §134.202 because the commission has failed to properly regulate
the insurance industry and address abuse issues in the reimbursement system,
stating there is no effective punishment of the carriers for abuses under
the Texas workers' compensation system. Commenters stated that the insurance
industry requires healthcare providers to incur costs in order to be reimbursed
for properly rendered medical services. Commenters further stated that the
control of abuse would help drive down cost of health care, which has been
directed by HB-2600, would be better than the unreasonable action of imposing
punitive reductions in the fee guideline for all healthcare providers.
RESPONSE:
The commission disagrees that §134.202
is the means for regulating the insurance industry. Most businesses must incur
costs to make money. This regulation responsibility is that of Texas Department
of Insurance. However, for specific complaints regarding insurance abuse within
the workers' compensation system, participants are encouraged to report violations
to the Division of Compliance & Practices and to review the newly adopted
Chapter 180 rules, which are designed to ensure that the commission is able
to address abuse or non-compliant behavior by all system participants. The
commission disagrees that the changes in the fee guideline are punitive, but
rather meet the requirements set forth in the Act.
COMMENT:
Commenter recommended that the
commission should consider helping the injured employee through making positive
changes in the proposed MFG.
RESPONSE:
The commission agrees with commenter's
recommendation and responds that the MFG takes the best interests of the injured
employee into consideration by assuring a proper balance of costs, quality
and access to care, as well as the remaining statutory and policy mandates
and objectives as discussed elsewhere in this preamble.
COMMENT:
Commenters opposed the proposed
MFG stating that the rule is inconsistent with the findings presented in the
previous proposal on July 31, 2001, and is fraught with inconsistencies. Commenters
further stated that the previous proposal in 2001, which was withdrawn because
it was criticized as inadequate, was not only much more fair than the current
proposal, but was more in line with medical reimbursements for other states.
RESPONSE:
The commission disagrees that
the adopted MFG is inconsistent with the findings presented in the previously
withdrawn proposal. The legislative direction is for the commission to more
closely parallel its fee guideline with those of the well-established Medicare
system. As described in detail elsewhere in this preamble, the adopted MFG
was redrafted from the 2001 proposal to accomplish this and to meet other
statutory and policy mandates and objectives.
COMMENT:
Commenters expressed opposition
to the preamble language regarding fiscal impact. Commenter stated that the
"no impact to local government" statement was a complete falsehood and lie,
stating that taxes will have to be raised in order to cover these workers'
compensation patients who will end up on Medicaid. Commenters further stated
disagreement that there will be no economic impact, as most cost containment
companies are small businesses that have custom-written software and not off-the-shelf
auditing software. Small companies with in-house programmers will require
at least 3 months programming time to comply with the new reimbursement rates
since they will be based on Medicare fee schedule.
RESPONSE:
The commission disagrees. The
commenters have mischaracterized what the commission said regarding economic
impact in the proposal preamble. With respect to local government: Local governments
and state governmental entities as regulated entities will be impacted in
the same manner as persons required to comply with the rules as proposed.
The following are the commission's statements of "no economic impact":
Carriers that outsource medical bill review should encounter no additional
costs. Any transition costs will be borne by the medical bill review consultant.
Competition among medical bill review consultants is sufficient to prevent
these costs from being passed through to carriers.
There will be some anticipated economic costs to persons required to comply
with the rules as proposed. There will be no economic cost to injured workers,
as these proposed rules do not impose any requirements on injured workers.
There will be no adverse economic impact on small businesses or on micro-businesses
as a result of the proposed new rules. Healthcare practitioners and insurance
carriers who perform only a small amount of work in the workers' compensation
system can comply with these rules without incurring costs. Many healthcare
practitioners and insurance carriers already use the standardized items adopted
in these proposed rules, and cost savings explained previously should offset
any increased costs. As stated by the TABCC Technical Work Group, "The new
MFG will reduce the payment per unit of service for most health care services.
It will also reduce total revenue to some health care providers by restraining
over-utilization and ending unreasonable billing practices permitted by the
current rule. These are adverse economic impacts on these health care providers."
. . . Any increase in costs is expected to be offset by cost savings and time
savings through the use of a standardized and streamlined process, resulting
in no adverse economic impact.
The commission gave thorough consideration to the impact of the proposed
rule on all types of participants in the workers' compensation system; the
commission requested, received, and reviewed fiscal impact input from system
participants; and the commission thoroughly addressed fiscal impacts and public
costs/benefits in the proposal preamble.
The adopted MFG is designed to provide fair and reasonable reimbursement,
thereby assuring availability of medically necessary services to injured employees.
Small businesses, including cost containment companies, will make business
decisions regarding whether and how to expend resources to establish, maintain
and update their auditing and pricing systems as approved and/or implemented
by the commission. It is not expected that this operating cost will have an
adverse economic impact on small business. Additionally, Medicare is a benchmark
billing system already in use by many companies and was noted in HB-2600 and
subsequently by HB-2600 stakeholders as a method of achieving standardization
and consistency in billing and reimbursement policies. This standardization
ultimately makes the system easier to administer and revise, thereby increasing
efficiencies and decreasing costs to healthcare providers, carriers, the commission,
and the system as a whole. As discussed elsewhere in this preamble access
to care will not be impacted by the adopted MFG. Injured employees would not
need to seek care in the Medicaid system because the Texas workers' compensation
system provides comprehensive health care medically necessary for the injured
employee.
COMMENT:
Commenters took exception to preamble
language regarding economic costs for compliance as generic, vague and insufficient
to meet the standards under the APA for addressing potential economic impact.
Commenters stated that the language is overly broad and wholly unsupported.
The cost analysis fails to objectively and statistically support any proposed
reductions with the presumed cost savings from standardization and streamlining
of the billing process.
RESPONSE:
The commission disagrees. The
analysis provides specific detailed impact for CPT groupings based the rules
as proposed and on historic utilization in the Texas workers' compensation
system. Individual provider impact is based on the individual cost structure
and business practices unique to the individual provider and are consequently
not predictable by the commission. Standardization and streamlining of the
billing process through the use of Medicare payment policies is a required
component of HB-2600. The potential impact on individual healthcare providers
will be unique to the provider's cost structure, business organization and
familiarity with the Medicare payment policies. On the whole the net economic
impact for individual healthcare providers should be positive as it aligns
the workers' compensation system with existing systems thereby minimizing
unnecessary duplication. The commission gave thorough consideration to the
impact of the proposed rule on all types of participants in the workers' compensation
system; the commission requested, received, and reviewed fiscal impact input
from system participants; and the commission thoroughly addressed fiscal impacts
and public costs/benefits in the proposal preamble.
COMMENT:
Comments were received from the
Regulatory and Oversight Council on Workers' Compensation that included the
following recommendations:
(1) that commission staff address all issues raised in public comments
and with Commissioner approval, post responses and revised rule proposal on
the commission website at least one month prior to a vote on adoption;
(2) that commission staff determine whether portions of the proposed MFG
should be phased in, and if so, what implementation timeline should be;
(3) that commission staff address the process by which the commission would
modify and update the various segments of these rules and how system stakeholders
could request rule modifications;
(4) that commission staff utilize the agency Medical Advisor and the MQRP
in analyzing and recommending changes to payment policies or other aspects
of the proposal;
(5) that commission staff address the feasibility of moving toward an
electronic billing system for healthcare providers and whether this goal should
be incorporated into the commission's BPI plan;
(6) that commission staff address a "placeholder" provision in the rule
that gives the commission the authority to increase or decrease reimbursement
amounts for particular healthcare providers based on performance in the system
(i.e. application of the reward/sanction authority based on monitoring under
HB-2600);
(7) that commission divide Rule 134.202 into three different rules, that
dividing the rule would allow the commission maximum flexibility in modifying
these rules in the future;
(8) that commission staff carefully consider appropriate interaction of
new utilization controls and baseline pricing in the system; and
(9) that the amount and duration of medical treatment are the causes of
Texas' higher cost, not the fee schedule, the focus of the commission's efforts
to address cost issues should be on the targeted review and credentialing
processes to selectively identify and control over-utilization without placing
punitive burdens on conscientious healthcare providers who are providing appropriate
care.
RESPONSE:
(1) The commission disagrees that proposed responses should be posted for
public review prior to adoption. The large volume of comment and the time
constraints for final adoption as required by the APA and HB-2600, do not
allow the commission the additional time this would require.
(2) The commission agrees that implementation dates for the MFG should
be and are included in the rule in subsection (a)(2), September 1, 2002. A
phase-in of the adopted MFG reimbursement was considered, but rejected upon
consideration of the length of time since adoption of the 1996 MFG, the fact
that the transition anticipated in that guideline has not been completed,
the high medical costs in the system, and the statutory mandates.
(3) The commission disagrees that it is necessary for staff to develop
a process for revision of these guidelines. The adopted MFG will be regularly
updated through changes made to the Medicare system. The process to revise
rules through regular review or rule-making petition is addressed in the Act
and the APA.
(4) The commission agrees that the Medical Advisor should play a role in
development of payment policies and subsequent changes. The Medical Advisor
was consulted and provided input concerning this rule. The MQRP is not currently
fully operational and therefore that panel was not available to provide input
regarding the MFG. In the future the MQRP could be a valuable resource in
medical rule development.
(5) Although the current billing rules do not require electronic billing,
they do not prevent healthcare providers and insurance carriers from agreeing
to utilize electronic billing. Since this is a component of the agency's BPI
initiatives, future commission efforts are likely to address and move toward
electronic billing.
(6) The commission disagrees with the recommended placeholder provision
in the MFG. Although the commission has the authority to increase or decrease
reimbursement amounts for particular healthcare providers based on individual
performance, rules related to this authority have not been developed and consequently
a placeholder in the MFG is premature.
(7) The commission disagrees with the recommendation to separate §134.202
into three rules. Dividing the rule into multiple rules would require re-proposal
and cause further delay in the revision of the MFG and the commission's compliance
with the requirements in the Act. In the future the commission can proposed
and adopt revisions to some subsections of §134.202 without changing
others.
(8) The commission agrees with the recommendation that the commission carefully
consider appropriate interaction of new utilization controls and baseline
pricing in the system, and as fully described elsewhere in this preamble,
has done so in developing this component of an integrated system.
(9) The commission agrees that the amount and duration of medical treatment
is a primary component in the high per claim cost in the Texas workers' compensation
system. However, the amount of reimbursement for services is also an important
component of cost containment as discussed elsewhere in this preamble. The
role of the MFG is to address per unit reimbursement while utilization of
services is addressed concurrently in adoption of Medicare payment policies
and in other commission rules. A detailed discussion of these issues is addressed
elsewhere in this preamble.
The new rule is adopted under the Texas Labor Code §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act; the Texas Labor Code, §413.002, which requires the commission's
Medical Review Division monitor health care providers, insurance carriers
and claimants to ensure compliance with commission rules; the Texas Labor
Code, §413.007, which sets out information to be maintained by the commission's
Medical Review Division; the Texas Labor Code §413.011, which mandates
that the commission by rule establish medical policies and guidelines; the
Texas Labor Code, §413.012, which requires review and revision of the
medical policies and fee guidelines at least every two years; the Texas Labor
Code, §413.013, which requires the commission by rule to establish programs
related to health care treatments and services for dispute resolution, monitoring,
and review; the Texas Labor Code, §413.015, which requires insurance
carriers to pay charges for medical services as provided in the statute and
requires that the commission ensure compliance with the medical policies and
fee guidelines through audit and review; the Texas Labor Code, §413.016,
which provides for refund of payments made in violation of the medical policies
and fee guidelines; the Texas Labor Code, §413.017, which provides a
presumption of reasonableness for medical services fees which are consistent
with the medical policies and fee guidelines; the Texas Labor Code, §413.019,
which provides for payment of interest on delayed payments refunds or overpayments;
and the Texas Labor Code, §413.031, which provides a procedure for medical
dispute resolution; the Texas Labor Code, §413.044, which provides for
sanctions against designated doctors who are found to be out of compliance
with the medical policies and fee guidelines.
The new rule is adopted under the Texas Labor Code §402.061, §
413.002, §413.007, §§413.011-413.013, §§413.015-413.017, §413.019, §413.031, §413.044.
§134.202.Medical Fee Guideline.
(a)
Applicability of this rule is as follows:
(1)
This section applies to professional medical services (health
care other than prescription drugs or medicine, and the facility services
of a hospital or other health care facility) provided in the Texas Workers'
Compensation system.
(2)
This section shall be applicable for professional medical
services provided on or after September 1, 2002. For professional medical
services provided prior to September 1, 2002, §134.201 and §134.302
of this title (relating to Medical Fee Guidelines) shall be applicable.
(3)
Notwithstanding Centers for Medicare and Medicaid Services
(CMS) payment policies, chiropractors may be reimbursed for services provided
within the scope of their practice act.
(4)
Specific provisions contained in the Texas Workers' Compensation
Act (the Act), or Texas Workers' Compensation Commission (commission) rules,
including this rule, shall take precedence over any conflicting provision
adopted by or utilized by CMS in administering the Medicare program. Exceptions
to Medicare payment policies for medical necessity may be provided by commission
rule. Independent Review Organization (IRO) decisions regarding medical necessity
are made on a case-by-case basis. The commission will monitor IRO decisions
to determine whether commission rulemaking action would be appropriate.
(5)
Whenever a component of the Medicare program is revised
and effective, use of the revised component shall be required for compliance
with commission rules, decisions and orders for services rendered on or after
the effective date of the revised component.
(b)
For coding, billing, reporting, and reimbursement of professional
medical services, Texas Workers' Compensation system participants shall apply
the Medicare program reimbursement methodologies, models, and values or weights
including its coding, billing, and reporting payment policies in effect on
the date a service is provided with any additions or exceptions in this section.
(c)
To determine the maximum allowable reimbursements (MARs)
for professional services system participants shall apply the Medicare payment
policies with the following minimal modifications:
(1)
for service categories of Evaluation & Management,
General Medicine, Physical Medicine and Rehabilitation, Surgery, Radiology,
and Pathology the conversion factor to be used for determining reimbursement
in the Texas workers' compensation system is the effective conversion factor
adopted by CMS multiplied by 125%. For Anesthesiology services, the same conversion
factor shall be used.
(2)
for Healthcare Common Procedure Coding System (HCPCS) Level
II codes A, E, J, K, and L:
(A)
125% of the fee listed for the code in the Medicare Durable
Medical Equipment, Prosthethics, Orthotics and Supplies (DMEPOS) fee schedule;
(B)
if the code has no published Medicare rate, 125% of the
published Texas Medicaid Fee Schedule Durable medical Equipment/Medical Supplies
Report J, for HCPCS; or
(C)
if neither paragraph (2)(A) nor (2)(B) of this section
apply, then as calculated according to paragraph (6) of this subsection.
(3)
for pathology and laboratory services not addressed in
subsection (c)(1) or in other commission rules:
(A)
125% of the fee listed for the code in the Medicare Clinical
Fee Schedule for the technical component of the service; and,
(B)
45% of the commission established MAR for the code derived
in subparagraph (A) for the professional component of the service.
(4)
for dental treatments and services 125% of the fee listed
for the code in the Texas Medicaid Dental Fee Schedule in effect on the date
the service is provided.
(5)
for commission specific codes, services and programs (e.g.
Functional Capacity Evaluation, Impairment Rating Evaluations, Return to Work
Programs, etc.) as calculated in accordance with subsection (e) of this section.
(6)
for products and services for which CMS or the commission
does not establish a relative value unit and/or a payment amount the carrier
shall assign a relative value, which may be based on nationally recognized
published relative value studies, published commission medical dispute decisions,
and values assigned for services involving similar work and resource commitments.
(d)
In all cases, reimbursement shall be the least of the:
(1)
MAR amount as established by this rule;
(2)
health care provider's usual and customary charge; or,
(3)
health care provider's workers' compensation negotiated
and/or contracted amount that applies to the billed service(s).
(e)
Payment Policies Relating to Coding, Billing, and Reporting
for commission-specific codes, services, and programs are as follows:
(1)
Billing. Health care providers (HCPs) shall bill their
usual and customary charges. HCPs shall submit medical bills in accordance
with subsection (b), the Act, and commission rules.
(2)
Modifiers. Modifying circumstance shall be identified by
use of the appropriate modifier following the appropriate American Medical
Association (AMA)
Physician's Current Procedural
Terminology
(CPT) code. Additionally, commission specific modifiers
are identified in paragraph (9) of this subsection. When two modifiers are
applicable to a single CPT code, indicate each modifier on the bill.
(3)
Case Management. Case Management is the responsibility
of the treating doctor. Team conferences and phone calls shall include coordination
with an interdisciplinary team (members shall not be employees of the coordinating
HCP and the coordination must be outside of an interdisciplinary program).
Documentation shall include the name and specialty of each individual attending
the team conference or engaged in a phone call. Team conferences and phone
calls should be triggered by a documented change in the condition of the injured
employee and performed for the purpose of coordination of medical treatment
and/or return to work for the injured employee. Contact with one or more members
of the interdisciplinary team more often than once every 30 days shall be
limited to the following:
(A)
The development or revision of a treatment plan;
(B)
To alter or clarify previous instructions;
(C)
To coordinate the care of employees with catastrophic or
multiple injuries requiring multiple specialties; or,
(D)
To coordinate with the employer, employee, and/or an assigned
medical or vocational case manager to determine return to work options.
(4)
Functional Capacity Evaluations (FCEs). A maximum of three
FCEs for each compensable injury shall be billed and reimbursed. FCEs ordered
by the Commission shall not count toward the three FCEs allowed for each compensable
injury. FCEs shall be billed using the "Physical performance test or measurement..."
CPT code with modifier "FC." FCEs shall be reimbursed in accordance with subsection
(c)(1). Reimbursement shall be for up to a maximum of four hours for the initial
test or for a commission ordered test; a maximum of two hours for an interim
test; and, a maximum of three hours for the discharge test, unless it is the
initial test. Documentation is required. FCEs shall include the following
elements:
(A)
A physical examination and neurological evaluation, which
include the following:
(i)
appearance (observational and palpation);
(ii)
flexibility of the extremity joint or spinal region (usually
observational);
(iii)
posture and deformities;
(iv)
vascular integrity;
(v)
neurological tests to detect sensory deficit;
(vi)
myotomal strength to detect gross motor deficit; and
(vii)
reflexes to detect neurological reflex symmetry.
(B)
A physical capacity evaluation of the injured area, which
includes the following:
(i)
range of motion (quantitative measurements using appropriate
devices) of the injured joint or region; and
(ii)
strength/endurance (quantitative measures using accurate
devices) with comparison to contralateral side or normative data base. This
testing may include isometric, isokinetic, or isoinertial devices in one or
more planes.
(C)
Functional abilities tests, which include the following:
(i)
activities of daily living (standardized tests of generic
functional tasks such as pushing, pulling, kneeling, squatting, carrying,
and climbing);
(ii)
hand function tests which measure fine and gross motor
coordination, grip strength, pinch strength, and manipulation tests using
measuring devices;
(iii)
submaximal cardiovascular endurance tests which measure
aerobic capacity using stationary bicycle or treadmill; and
(iv)
static positional tolerance (observational determination
of tolerance for sitting or standing).
(5)
Return To Work Rehabilitation Programs. The following shall
be applied for billing and reimbursement of Work Conditioning/General Occupational
Rehabilitation Programs, Work Hardening/Comprehensive Occupational Rehabilitation
Programs, Chronic Pain Management/Interdisciplinary Pain Rehabilitation Programs,
and Outpatient Medical Rehabilitation Programs. To qualify as a commission
Return to Work Rehabilitation Program, a program should meet the "Specific
Program Standards" for the program as listed in the most recent Commission
on Accreditation of Rehabilitation Facilities (CARF) Medical Rehabilitation
Standards Manual. Section 1 standards regarding Organizational Leadership,
Management and Quality apply only to CARF accredited programs.
(A)
Accreditation by the CARF is recommended, but not required.
(i)
If the program is CARF accredited, modifier "CA" shall
follow the appropriate program modifier as designated for the specific programs
listed below. The hourly reimbursement for a CARF accredited program shall
be 100% of the MAR.
(ii)
If the program is not CARF accredited, the only modifier
required is the appropriate program modifier. The hourly reimbursement for
a non-CARF accredited program shall be 80% of the MAR.
(B)
Work Conditioning/General Occupational Rehabilitation Programs
(for commission purposes, General Occupational Rehabilitation Programs, as
defined in the CARF manual, are considered Work Conditioning.)
(i)
The first two hours of each session shall be billed and
reimbursed as one unit, using the "Work hardening/conditioning; initial 2
hours" CPT code with modifier "WC." Each additional hour shall be billed using
the "Work hardening/conditioning; each additional hour" CPT code with modifier
"WC." CARF accredited Programs shall add "CA" as a second modifier.
(ii)
Reimbursement shall be $36.00 per hour. Units of less
than 1 hour shall be prorated by 15 minute increments. A single 15 minute
increment may be billed and reimbursed if greater than or equal to 8 minutes
and less than 23 minutes.
(C)
Work Hardening/Comprehensive Occupational Rehabilitation
Programs (for commission purposes, Comprehensive Occupational Rehabilitation
Programs, as defined in the CARF manual, are considered Work Hardening.)
(i)
The first two hours of each session shall be billed and
reimbursed as one unit, using the "Work hardening/conditioning; initial 2
hours" CPT code with modifier "WH." Each additional hour shall be billed using
the "Work hardening/conditioning; each additional hour" CPT code with modifier
"WH." CARF accredited Programs shall add "CA" as a second modifier.
(ii)
Reimbursement shall be $64.00 per hour. Units of less
than 1 hour shall be prorated by 15 minute increments. A single 15 minute
increment may be billed and reimbursed if greater than or equal to 8 minutes
and less than 23 minutes.
(D)
Outpatient Medical Rehabilitation Programs
(i)
Program shall be billed and reimbursed using the "Unlisted
physical medicine/rehabilitation service or procedure" CPT code with modifier
"MR" for each hour. The number of hours shall be indicated in the units column
on the bill. CARF accredited Programs shall add "CA" as a second modifier.
(ii)
Reimbursement shall be $90.00 per hour. Units of less
than 1 hour shall be prorated by 15 minute increments. A single 15 minute
increment may be billed and reimbursed if greater than or equal to 8 minutes
and less than 23 minutes.
(E)
Chronic Pain Management/Interdisciplinary Pain Rehabilitation
Programs
(i)
Program shall be billed and reimbursed using the "Unlisted
physical medicine/rehabilitation service or procedure" CPT code with modifier
"CP" for each hour. The number of hours shall be indicated in the units column
on the bill. CARF accredited Programs shall add "CA" as a second modifier.
(ii)
Reimbursement shall be $125.00 per hour. Units of less
than 1 hour shall be prorated in 15 minute increments. A single 15 minute
increment may be billed and reimbursed if greater than or equal to 8 minutes
and less than 23 minutes.
(6)
Maximum Medical Improvement and/or Impairment Rating (MMI/IR)
examinations shall be billed and reimbursed as follows:
(A)
The total MAR for an MMI/IR examination shall be equal
to the MMI evaluation reimbursement plus the reimbursement for the body area(s)
evaluated for the assignment of an IR. The MMI/IR examination shall include:
(i)
the examination;
(ii)
consultation with the injured employee;
(iii)
review of the records and films;
(iv)
the preparation and submission of reports (including the
narrative report, and responding to the need for further clarification, explanation,
or reconsideration), calculation tables, figures, and worksheets; and,
(v)
tests used to assign the IR, as outlined in the AMA Guides to the Evaluation of Permanent Impairment
(the AMA
Guides
), as stated in the commission
Act and Rules Chapter 130 relating to Impairment and Supplemental Income Benefits.
(B)
A HCP shall only bill and be reimbursed for an MMI/IR examination
if the doctor performing the evaluation (i.e., the examining doctor) is an
authorized doctor in accordance with the Act and commission Rules, Chapter
130 relating to Certification of Maximum Medical Improvement and Evaluation
of Permanent Impairment.
(i)
If the examining doctor, other than the treating doctor,
determines MMI has not been reached, the MMI evaluation portion of the examination
shall be billed and reimbursed in accordance with subparagraph (C). Modifier
"NM" shall be added.
(ii)
If the examining doctor determines MMI has been reached
and there is no permanent impairment because the injury was sufficiently minor,
an IR evaluation is not warranted and only the MMI evaluation portion of the
examination shall be billed and reimbursed in accordance with subparagraph
(C).
(iii)
If the examining doctor determines MMI has been reached
and an IR evaluation is performed, both the MMI evaluation and the IR evaluation
portions of the examination shall be billed and reimbursed in accordance with
subparagraphs (C) and (D).
(C)
The following applies for billing and reimbursement of
an MMI evaluation.
(i)
An examining doctor who is the treating doctor shall bill
using the "Work related or medical disability examination by the treating
physician..." CPT code with the appropriate modifier.
(I)
Reimbursement shall be the applicable established patient
office visit level associated with the examination.
(II)
Modifiers "V1", "V2", "V3", "V4", or "V5" shall be added
to the CPT code to correspond with the last digit of the applicable office
visit.
(ii)
If the treating doctor refers the injured employee to
another doctor for the examination and certification of MMI (and IR); and,
the referral examining doctor has:
(I)
previously been treating the injured employee, then the
referral doctor shall bill the MMI evaluation in accordance with subparagraph
(C)(i); or,
(II)
not previously treated the injured employee, then the
referral doctor shall bill the MMI evaluation in accordance with subparagraph
(C)(iii).
(iii)
An examining doctor, other than the treating doctor,
shall bill using the "Work related or medical disability examination by other
than the treating physician..." CPT code. Reimbursement shall be $350.
(D)
The following applies for billing and reimbursement of
an IR evaluation.
(i)
The HCP shall include billing components of the IR evaluation
with the applicable MMI evaluation CPT code. The number of body areas rated
shall be indicated in the units column of the billing form.
(ii)
When multiple IRs are required as a component of a designated
doctor examination under §130.6 of this title (relating to Designated
Doctor Examinations for Maximum Medical Improvement and/or Impairment Ratings),
the designated doctor shall bill for the number of body areas rated and be
reimbursed $50 for each additional IR calculation. Modifier "MI" shall be
added to the MMI evaluation CPT code.
(iii)
For musculoskeletal body areas, the examining doctor
may bill for a maximum of three body areas.
(I)
Musculoskeletal body areas are defined as follows:
(-a-)
spine and pelvis;
(-b-)
upper extremities and hands; and,
(-c-)
lower extremities (including feet).
(II)
The MAR for musculoskeletal body areas shall be as follows.
(-a-)
$150 for each body area if the Diagnosis Related Estimates
(DRE) method found in the AMA
Guides
4th edition
is used.
(-b-)
If full physical evaluation, with range of motion, is
performed:
(-1-)
$300 for the first musculoskeletal body area; and,
(-2-)
$150 for each additional musculoskeletal body area.
(III)
If the examining doctor performs the MMI examination
and the IR testing of the musculoskeletal body area(s), the examining doctor
shall bill using the appropriate MMI CPT code with modifier "WP." Reimbursement
shall be 100% of the total MAR.
(IV)
If the examining doctor performs the MMI examination and
assigns the IR, but does not perform the testing of the musculoskeletal body
area(s), then the examining doctor shall bill using the appropriate MMI CPT
code with CPT modifier "26." Reimbursement shall be 80% of the total MAR.
(V)
If a HCP other than the examining doctor performs the testing
of the musculoskeletal body area(s), then the HCP shall bill using the appropriate
MMI CPT code with modifier "TC." Reimbursement shall be 20% of the total MAR.
(iv)
Non-musculoskeletal body areas shall be billed and reimbursed
using the appropriate CPT code(s) for the test(s) required for the assignment
of IR.
(I)
Non-musculoskeletal body areas are defined as follows:
(-a-)
body systems;
(-b-)
body structures (including skin); and,
(-c-)
mental and behavioral disorders.
(II)
For a complete list of body system and body structure
non-musculoskeletal body areas refer to the appropriate AMA
Guides
.
(III)
When the examining doctor refers testing for non-musculoskeletal
body area(s) to a specialist, then the following shall apply:
(-a-)
The examining doctor (e.g., the referring doctor) shall
bill using the appropriate MMI CPT code with modifier "SP" and indicate one
unit in the units column of the billing form. Reimbursement shall be $50.00
for incorporating one or more specialists' report(s) information into the
final assignment of IR. This reimbursement shall be allowed only once per
examination.
(-b-)
The referral specialist shall bill and be reimbursed
for the appropriate CPT code(s) for the tests required for the assignment
of IR. Documentation is required.
(E)
If the examination for the determination of MMI and/or
the assignment of IR requires testing that is not outlined in the AMA Guides
, the appropriate CPT code(s) shall be billed
and reimbursed in addition to the fees outlined in subparagraphs (C) and (D).
(F)
The treating doctor is required to review the certification
of MMI and assignment of IR performed by another doctor, as stated in the
Act and commission Rules, Chapter 130 relating to Certification of Maximum
Medical Improvement and Evaluation of Permanent Impairment by A Doctor Other
Than The Treating Doctor. The treating doctor shall bill using the "Work related
or medical disability examination by the treating physician..." CPT code with
modifier "VR" to indicate a review of the report only, and shall be reimbursed
$50.00.
(7)
Return to Work (RTW) and/or Evaluation of Medical Care
(EMC) Examinations. When conducting a commission or insurance carrier requested
RTW/EMC examination that is not for the purpose of certifying MMI and/or assigning
an IR (e.g. a medical necessity issue), the examining doctor shall bill and
be reimbursed using the "Work related or medical disability examination by
other than the treating physician..." CPT code with modifier "RE." The reimbursement
shall be $350.00 and shall include commission-required reports. Testing that
is required shall be billed using the appropriate CPT codes and reimbursed
in addition to the examination fee.
(8)
Work Status Report. When billing for a Work Status Report
refer to the commission Act and Rules Chapter 129 relating to Income Benefits
- Temporary Income Benefits.
(9)
Commission Modifiers. HCPs billing professional medical
services shall utilize the following modifiers, in addition to the modifiers
prescribed by the Medicare policies required to be used in subsection (b)
of this section, for correct coding, reporting, billing, and reimbursement
of the procedure codes.
(A)
CA, Commission on Accreditation of Rehabilitation Facilities
(CARF) Accredited programs - This modifier shall be used when a HCP bills
for a Return To Work Rehabilitation Program that is CARF accredited.
(B)
CP, Chronic Pain Management Program - This modifier shall
be added to the "Unlisted physical medicine/rehabilitation service or procedure"
CPT code to indicate Chronic Pain Management Program services were performed.
(C)
FC, Functional Capacity - This modifier shall be added
to the "Physical performance test or measurement..." CPT code when a functional
capacity evaluation is performed.
(D)
MR, Outpatient Medical Rehabilitation Program - This modifier
shall be added to the "Unlisted physical medicine/rehabilitation service or
procedure" CPT code to indicate Outpatient Medical Rehabilitation Program
services were performed.
(E)
MI, Multiple Impairment Ratings - This modifier shall be
added to the "Work related or medical disability examination by other than
the treating physician..." CPT code when the designated doctor is required
to complete multiple impairment ratings calculations.
(F)
NM, Not at Maximum Medical Improvement (MMI) - This modifier
shall be added to the appropriate MMI CPT code to indicate that the injured
employee has not reached MMI when the purpose of the examination was to determine
MMI.
(G)
RE, Return to Work (RTW) and/or Evaluation of Medical Care
(EMC) - This modifier shall be added to the "Work related or medical disability
examination by other than the treating physician..." CPT code when a RTW or
EMC examination is performed.
(H)
SP, Specialty Area - This modifier shall be added to the
appropriate MMI CPT code when a specialty area is incorporated into the MMI
report.
(I)
TC, Technical Component - This modifier shall be added
to the CPT code when the technical component of a procedure is billed separately.
(J)
VR, Review report - This modifier shall be added to the
"Work related or medical disability examination by the treating physician..."
CPT code to indicate that the service was the treating doctor's review of
report(s) only.
(K)
V1, Level of MMI for Treating Doctor - This modifier shall
be added to the "Work related or medical disability examination by the treating
physician..." CPT code when the office visit level of service is equal to
a "minimal" level.
(L)
V2, Level of MMI for Treating Doctor - This modifier shall
be added to the "Work related or medical disability examination by the treating
physician..." CPT code when the office visit level of service is equal to
"self limited or minor" level.
(M)
V3, Level of MMI for Treating Doctor - This modifier shall
be added to the "Work related or medical disability examination by the treating
physician..." CPT code when the office visit level of service is equal to
"low to moderate" level.
(N)
V4, Level of MMI for Treating Doctor - This modifier shall
be added to the "Work related or medical disability examination by the treating
physician..." CPT code when the office visit level of service is equal to
"moderate to high severity" level and of at least 25 minutes duration.
(O)
V5, Level of MMI for Treating Doctor - This modifier shall
be added to the "Work related or medical disability examination by the treating
physician..." CPT code when the office visit level of service is equal to
"moderate to high severity" level and of at least 45 minutes duration.
(P)
WC, Work Conditioning - This modifier shall be added to
the appropriate "Work hardening/conditioning" CPT code to indicate work conditioning
was performed.
(Q)
WH, Work Hardening - This modifier shall be added to the
appropriate "Work hardening/conditioning" CPT code to indicate work hardening
was performed.
(R)
WP, Whole Procedure - This modifier shall be added to the
CPT code when both the professional and technical components of a procedure
are performed by a single HCP.
(f)
Where any terms or parts of this section or its application
to any person or circumstance are determined by a court of competent jurisdiction
to be invalid, the invalidity does not affect other provisions or applications
of this section that can be given effect without the invalidated provision
or application.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 26, 2002.
TRD-200202622
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: May 16, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 804-4287