Physicians Caring for Tennesseons Tennessee Medical Association August 28, 2015 Andrew M. Slavitt Acting Administrator Centers for Medicare and Medicaid Services 7500 Security Boulevard Baltimore, MD 21244 Dear Administrator Slavitt, On behalf of the 8,000 physician members of the Tennessee Medical Association (TMA), we would like to express our deep concern about the recoupment of the increased Medicaid payments for 2013 and 2014 from primary care physicians. In Tennessee, the Bureau of TennCare has conducted an audit of all physicians who attested in 2013 that certain and vaccine administration codes, as identi?ed by CMS, constituted at least 60 percent of their total Medicaid codes paid. The manner in which the threshold was calculated is in direct contradiction to the original intent of the ACA provision that mandated the increased Medicaid payment. The recoupment of these payments will have a signi?cant negative impact on legitimate primary care providers who may not be able to survive as a result. They were not prepared for the possibility of a recoupment in 2013 when the payments initially started clue to lack of consistent information from both CMS and TennCare. The TMA urges CMS to delay this recoupment and require TennCare to conduct the audit in a more accurate and fair manner. As the federal regulatory body responsible for implementing this program, it is CMS's obligation to ensure it has the effect intended by the legislation. Intent of ACA Section 1202 In general, the intent of section 1202 of the ACA was to directly bene?t those providers who provide primary care services to Medicaid patients and to incentivize them to continue treating those patients.1 It is a well-documented fact that the United States has a shortage of primary care providers.2 Couple that with the fact that Medicaid, on average, reimburses providers at only 66 percent of Medicare ratesa, and the necessity for this provision of the ACA is without question. For 2013 and 2014, primary care providers enjoyed, for a change, adequate reimbursement for office visits and routine services they ?Qs As on the Increased Medicaid Payment for Primary Care: CMS 2370-F (Set April 14, 2014. 3 Inc., he Complexities Supply and Demand: Projection from 2013 to 2025. Prepared for the Association of American Medical Colleges. Washington, March 2015. 3 Medicaid-to-Medicare Fee Index, Kaiser Family Foundation; 2013. Physicians Caring for Tennesseans Tennessee Medical Association provided to Medicaid patients on a daily basis. With those increased payments, they were able to budget for new staff members and offer additional services to the poor and medically needy in their areas. Unfortunately, in many states like Tennessee, those increased payments were cut off on January 1, 2015. While that was a ?nancial blow in and of itself, it was one for which these primary care providers could prepare. Now, mere months later, many of them are realizing they may be in for an even bigger financial hit?one they did not see coming. The good intention of section 1202 of the ACA is now hurting the very providers it was meant to help through interpretation and state Medicaid agencies? implementation. That section states that State Medicaid agencies must include "payment for primary care services furnished in 2013 and 2014 by a physician with a primary specialty designation of family medicine, general internal medicine, or pediatric medicine at a rate not less than 100 percent of the payment rate that applies to such services and physician under? Medicare Part B. [Emphasis added]? This language does not mention required board certification or a minimum claims threshold in order for primary care providers to qualify for the enhanced payments. Instead, that was part of interpretation of the law. While board certi?cation is common practice now and a requirement for employment at many health care entities, that was not the case just two or three decades ago. Many older family practice physicians, especially those in rural areas, are not board certi?ed by the American Board of Medical Specialties (ABMS), the American Osteopathic Association (AOA), or the American Board of Physician Specialties (ABPS), or any other board for that matter. Doing so was simply not a necessity when they started practicing. Rural physicians, especially, did not have time to take off work and stop seeing patients in order to become board certi?ed. Many of them were one of only a few primary care physicians in their area. Even today, it is not a requirement for family practice physicians who provide primary care services to Medicaid patients. However, in order to qualify for the 2013 and 2014 increased Medicaid payments, these physicians had to attest that 60 percent of their total paid Medicaid codes were for certain codes and vaccine administration codes, according to CMS regulations.s As we will explain, this method is not be the best way to identify primary care providers. Consequences of Calculating 60 Percent Threshold Unfortunately, the method for calculating the 60 percent threshold inaccurately and unfairly determines who is considered a primary care physician. Because it includes all Medicaid billed codes in the numerator, it severely diminishes full-service family practices? ability to reach the 60 percent based on and vaccine codes alone. For example, if a patient comes into a physician's of?ce with a sore throat, the claim for that visit may include codes for the visit, a strep screen, 3 CBC test, and an antibiotic injection?all typical primary care services. However, the EM code would account for only 25 42 USC 1396a(a)(13)(C) 5 42 CFR ?477.400(a) Physicians Caring for Tennesseans Tennessee Medical Association percent of that claim. If the majority of a physician's of?ce visits include similar services, as almost all ef?cient primary care visits do, then it is essentially impossible for him/her to reach the 60 percent threshold required to keep the increased Medicaid payment. It also indicates that using this calculation is not reflective of what constitutes primary care. In Tennessee, our Medicaid managed care organizations (MCOs) started sending letters to physicians in early August notifying them of the audit and subsequent recoupment. One of the MCOs incorrectly sent these letters to a few hundred physicians who were actually board certi?ed, and therefore automatically qualified for the increased Medicaid payment regardless of their number of and vaccine codes. However, the reason they erroneously received the letters in the ?rst place was because they had accidentally been included in TennCare's audit and failed to reach the 60 percent threshold. This means that even board certi?ed family and primary care physicians could not meet the 60 percent threshold requirement imposed on non-board certi?ed physicians?just another illustration of why the calculation is not an accurate means of identifying Medicaid primary care providers. The only way most family practitioners would be able to reach the 60 percent threshold is if they practiced "triage" medicine. Instead of cost effectively offering multiple services, such as labs and drugs, in one visit, practices would have needed to refer all of those services out to other facilities and bill for them independently. This would complicate treatment and disrupt continuity of care because of the inconvenience to the patients and increased likelihood that they would not comply. Alternatively, practices could have billed for ancillary services differently. For example, they could have billed for lab and x-ray codes using their clinic's NPI and billed the of?ce visit code only under the physician's NPI. This would involve ?ling several claims for the same date of service for each patient, which would have been redundant and potentially resulted in audits from the TennCare MCOs. Large clinics and solo practitioners practicing in a larger city have the advantage of outsourcing labs, x-rays, etc., and therefore may qualify without much consequence. But rural physicians in medically underserved areas may not have that option. As a result, this audit and recoupment is hurting the physicians who needed the increased payments the most. All of the physicians we have heard from are solo or small group practices in rural, medically underserved areas of Tennessee. One physician we spoke to in Shelbyville, Tennessee, will have almost $300,000 recouped due to this audit. Shelbyville is a low income area, and his practice is 40 percent Medicaid patients. Another practice that received a recoupment letter contacted us from BrownesvilIe?another high Medicaid pepulation?and knew of at least three other family physicians in their town who also failed the audit. This practice may have to stop treating Medicaid patients due to the ?nancial hardship imposed by the roughly $250,000 they will have recouped. This program, designed to incentivize primary care physicians to treat more Medicaid patients, may end up causing the opposite effect because of its poor implementation. Physicians Caring for Tennesseans Tennessee Medica. Association Discre an between CMS PCP Pa ment Pro rams The TMA understands that CMS's job as a federal regulatory body is to interpret broad statutory requirements so that they are implementable by the individuals required to abide by them. In the case of section 1202 ofthe ACA, it seems that CMS looked to the regulatory requirements already in place for another primary care program?the Medicare Primary Care Incentive Payment (PCIP). As you know, the PCIP program began in 2011 and goes through the end of 2015. It offers quarterly incentive payments to Medicare primary care physicians who qualify. Similar to the Medicaid enhanced payments, primary care physicians qualify for the PCIP if certain codes constitute at least 60 percent of their total allowed charges under the Medicare physician fee schedule for a given year. However, unlike the Medicaid program, ?emergency, hospital inpatient, drug and laboratory charges are excluded when calculating the practitioner?s total allowed charges.?l5 Doing so makes it more likely for primary care physicians to meet the 60 percent threshold, since ancillary services like drugs and labs provided during an office visit do not dilute the amount of codes. Instead, for the Medicaid enhanced payment program, the 60 percent threshold was based on a provider?s entire amount of Medicaid codes submitted. At least 60 percent of the provider?s total Medicaid codes paid had to be (99201 through 99499) and vaccine administration codes (90460, 90461, 90471, 90472, 90473, 90474, or their successors).7 The total Medicaid codes paid include labs, x? rays, and any other non and vaccine codes paid. As previously mentioned, most family practices provide these services in-house during a normal office visit, as opposed to referring them out to more expensive facilities. Including them in the numerator severely hampers their ability to meet the threshold. Utilizing a different calculation for the Medicaid payment led to confusion amongst primary care providers. To determine eligibility for the PCIP payments, Medicare physicians in Tennessee can enter their NPI number into a portal on Cahaba website?, our region's Medicare Administrative Contractor (MAC). Many primary care physicians we Spoke to assumed, erroneously, that if they quali?ed for the PCIP through that portal, then they would qualify for the Medicaid increased payment as well, since they were both federally-mandated incentive payments. While incorrect, the assumption was a logical one. Why would CMS choose to calculate the 60 percent threshold differently for similar ?5 Primary Care Incentive Payment Program (PCIP): Medicare PCIP Payments for 2012 are over $664" million, 2012-Payments.pdf 7 While this is the range of codes stipulated by CMS, TennCare and its MCOs did not include all of these codes in its enhanced payment calculations as they were not reimbursable under the 2009 fee schedule used for this program. ?Increased Primary Care Services Payment 42 CFR 447.405, 447.410, 447.415,? TennCare State Plan under Title XIX of the Social Security Act: Methods and Standard for Establishing Payment Rates Other Types of Care, Attachment 4.19-B, p. 100-103; January 1, 2013. 3 Primary Care Incentive Payment (PCIP) Lookup, Cahaba GBA. Physicians Caring for Tennesseans Tennessee Medical Association primary care incentive payments? The only logical conclusion is that it wanted fewer providers to qualify for the Medicaid program. Ambiguity in Information Provided by CMS and TennCare Back in 2013 when physicians were required to attest, the criteria for calculating the 60 percent threshold was anything but clear to them. The attestation form that the TennCare MCOs sent to physicians in mid-2013 stated that "at least 60 percent of [the physician?s] total Medicaid codes paid for the most recently completed calendar year? had to be and vaccine administrative codes? Most physicians interpreted that statement to mean the total dollar amount associated with the payments for those codes had to equal 60 percent of their total payments from TennCare. Under that logic, many of them would have easily surpassed the 60 percent threshold. Additionally, while some information distributed by CMS and TennCare referred speci?cally to ?codes,? an equal amount mentioned ?claims? as the vehicle for calculating the 60 percent threshold. These two terms were used interchangeably. Many physicians interpreted this to mean the calculation would rely on the number of claims they submitted that included those speci?c and vaccine admin codes, instead of counting each individual code. For example, a practice may submit one claim with four different codes: visit, lab test, CBC test, and antibiotic injection. Many physicians assumed that because the claim included an code, it would count as one claim in TennCare?s calculation of the 60 percent threshold. Because almost all claims for primary care practice visits include an code, physicians assumed they would easily reach the threshold and qualify for the payment. Finally, the federal regulations promulgated by CMS required state Medicaid agencies to annually ?review a statistically valid sample of physicians who received higher payments to verify that they meet the requirements of" the program.? According to TennCare, it did not conduct these audits annually, but instead waited until the program ended. It also chose to audit the entire population of physicians who attested rather than auditing only a statistically valid sample as the regulation required. If they had conducted the audits annually, some of these physicians would have been noti?ed that they did not meet the 60 percent threshold then and would have stopped receiving the enhanced payments. Instead, they did not ?nd out until over two years later after they had already absorbed these funds into their business operations. TennCare audited roughly 900 physicians who attested and found that around 300 of them failed to meet the 60 percent threshold.11 That is approximately one~third of all the physicians who attested to 9 TennCare PCP Attestation Form. AttestationFonn.pdf '0 42 CFR Technically, only around 650 of the 900 should have been included in the audit. As previously mentioned, a couple hundred board certi?ed physicians were erroneously included in the audit. Physicians Caring for Tennesseans Tennessee Medical Association being primary care providers. According to TennCare's data, these physicians are not ancillary specialists who should never have attested in the ?rst place. They are family medicine practitioners, pediatricians, general practitioners, and internal medicine specialists?the types of designated specialties speci?cally listed in section 1202 of the ACA. Their status as primary care providers is without question, and yet they will be losing substantial amounts of money they earned caring for Medicaid patients based on an unfair calculation of codes. For the past several weeks, TennCare has informed the TMA that this audit and its criteria were a requirement mandated by CMS to every Medicaid agency in the country. So far, neither the American Medical Association nor any other state medical associations with whom we have communicated are aware of similar audits happening in other states. If other states had similar outcomes, CMS would have been made aware of it by now. Either Tennessee is ahead of the game, or TennCare's audit used harsher calculations than any other state Medicaid agency. Either way, the TMA strongly urges CMS to implement a fairer process, such as mirroring the Medicare PCIP program, for calculating the 60 percent threshold for physicians who received the increased Medicaid primary care payments in 2013 and 2014. Thank you for your time and consideration of this matter. Sincerely, 9C Katie Dageforde, JD Assistant General Counsel CC: Vaughn Frigon, MD, Chief Medical Of?cer, Bureau of TennCare US Senator Lamar Alexander US Senator Bob Corker US Representative Phil Roe, MD US Representative Jimmy Duncan, Jr. US Representative Chuck Fleischmann US Representative Scott Desjarlais, MD US Representative Jim Cooper US Representative Diane Black Physicians Caring for Tennesseons Tennessee Medical Association US Representative Marsha Blackburn US Representative Stephen Fincher Us Representative Steve Cohen Annalia Michelman, JD, American Medical Association