By: Gary Eastman, HRS Erase, Inc. General Counsel
A lot of ink has been used to
write about the Supreme Court’s decision to uphold the constitutionality of the
Affordable Care Act (the “A.C.A.”). Instead
of rehashing that decision, let us instead take a look at one of the more
overlooked pieces of the A.C.A. – that of provider enrollment.
Certain states have started
requiring enrollment information for both the relevant facility as well as the
ordering physician. Specifically, any
out-of-state Medicaid billing has needed both of these two pieces of
information for the claims to be paid.
Why the change?
Why does the form now require the ordering
physician’s National Provider Identified (“NPI”)?
The updated billing form requires
both the facility’s NPI as well as the enrolling physician’s information. This was taken from 42 CFR 455.410, which
provides:
§ 455.410 Enrollment and
screening of providers.
(a) The State Medicaid agency must require all enrolled providers to be
screened under to this subpart.
(b) The State Medicaid agency must require all ordering or referring
physicians or other professionals providing services under the State plan or
under a waiver of the plan to be enrolled as participating providers.
(c) The State Medicaid agency may rely on the results of the provider
screening performed by any of the following:
(1) Medicare contractors.
(2) Medicaid agencies or Children's Health Insurance Programs of other
States.
This seems plain enough. Still, it seems odd why the ordering
physician needs to be included. Also,
are parts (a) and (b) both required or is only one part required?
This is where the analysis gets a
little bit technical, as the analysis leads to Section 1902(kk)(7) of the A.C.A.,
which in turn references Section 6401(b)(1) of the A.C.A.
The A.C.A. modified the
enrollment guidelines within 1866(j)(2) of the Medicare Act (note: the
references refer to 1886(j)(2), but those are considered scrivener’s
errors). As you may recall, Section
1866(j)(2) of the Medicare Act has detailed requirements regarding enrollment,
including those for a facility and separate rules for ordering physicians. Unfortunately, the terms “ordering” or
“referring” physicians have specific Medicare definitions and do not directly
translate to Medicaid.
Next, we need to go to the
legislative history, located in the Federal Register, Volume 76, No. 22, dated
February 2, 2011.
After reading the history,
including the comments and responses, it’s clear that the rules and regulations
apply to both facilities and physicians despite the additional burden. So this leads us to some interesting
questions.
What was the reasoning behind these new
rules?
One of the
large considerations in passing the A.C.A. was to consider how to eliminate
fraud, waste and abuse in the system and the rules were designed with that in
mind. Unfortunately, the side effect is
that those that properly abide by the rules will have increased reporting
requirements.
Isn’t this a burden? Did the government consider how much
additional work it will create?
Unfortunately, yes, the government
did consider how much additional work it would create. In one response to the comments for the A.C.A.,
the government stated that they “are sensitive to the additional
burden that obtaining an NPI will pose, however, inclusion of
the NPI on all Medicaid claims is a statutory requirement.” The
commenter suggested that providers enroll with
Medicare and use the NPI as evidence of successful screening
and enrollment. Providers should be aware that the NPI is
not evidence of successful Medicare screening
and enrollment, but providers who are actually enrolled in
Medicare will not have to be screened again by the
States to be enrolled in the Medicaid programs. The government
further stated that the States may implement a streamlined enrollment process for those providers who only order or refer, that is, who do not bill for services, similar to the CMS–855–O process
in the Medicare program.
What about salaried hospital physicians that are not enrolled by the State Medicaid agency even if the
hospital that employed the
physician is enrolled?
The government has commented
that
salaried hospital physicians must enroll with
the State Medicaid agency to order or
refer Medicaid beneficiaries.
What about rendering physicians?
The
government addressed this exact question.
It stated that the rendering physician’s NPI is not required on the
form. In one response to the comments,
it stated that under
§ 455.410(b) and section 1902(kk) of the A.C.A., the phrase “ordering and referring physicians and other professionals” does not include rendering providers
Do the new rules apply to Medicare crossover claims?
Yes, the beneficiary’s claims
are Medicaid claims. Thus, the
provider who ordered or referred the Medicaid
beneficiary’s services would be required to be enrolled
as a Medicaid participating provider.
Do the terms “ordering and referring physicians
or other professionals”
include prescribing
providers?
Yes, one of the responses stated they interpret
the statutory terms “ordering” and “referring” to include
prescribing (either drugs or other covered items) or sending a beneficiary’s
specimens to a laboratory for testing or referring a
beneficiary to another provider or facility for
covered services.
Finally, does the provider’s NPI have to be on each and every
claim? Is it sufficient for the
provider’s NPI to be on file
with the state Medicaid
agency? Is a prescribing provider’s NPI required
on pharmacy claims?
Under § 455.440, “all claims for payment for items and services that were ordered or referred” must contain the NPI. This is based upon the statutory requirement in section 1902(kk)(7)(B) of the A.C.A. that States require the NPI ‘‘of any ordering and referring physician or other
professional to be specified on any claim for payment that is based upon an order or referral of the physician or other professional.’’ Therefore, the provider’s NPI must be on every claim, including pharmacy claims; it is not sufficient for the provider’s NPI to be on file.
Conclusion
The A.C.A. has substantially changed the reporting
requirements with regard to Medicaid.
The reporting requirements were designed to reduce fraud, waste and
abuse from the system. Although it makes
things more difficult, please remember that the NPI of both the facility and
the referring physician (but not the rendering physician) must be on all
out-of-state Medicaid claims.
