The Affordable Care A.C.A. and Medicaid

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.