 |
 |
|
|
The federal agency that administers the Medicare program is threatening to change the rules governing private contracting, which it announced early this year. These changes call into question the status of private Medicare contracts that physicians have already signed with Medicare beneficiaries. They also appear to countermand Congress's intent in enacting a private contracting option.
APA applauded the government's 1997 decision to grant physicians and their Medicare patients the choice of entering into private payment agreements, although it objected strongly to the all-or-nothing provision that prevents physicians who enter into even one private contract from billing Medicare for two years for any other beneficiaries they treat.
APA maintains that the changes the Health Care Financing Administration (HCFA) is now proposing, however, would seriously weaken many of the law's positive aspects.
In early August, APA Medical Director Steven Mirin, M.D., sent a letter to HCFA Administrator Nancy-Ann Min DeParle protesting the proposed rules in which he emphasized that they would undermine Congress's wishes and reintroduce burdensome government interference to a law designed to avoid just that situation.
Especially troubling, Mirin said, is that these changes in the standard contract wording and requirements may end up voiding all of the contracts that have been signed since the option became available in January. Psychiatrists and their patients have signed the greatest percentage of these private payment contracts.
If HCFA's regulation changes do void the contracts, beneficiaries who have signed them will be forced into complying with traditional billing and reporting rules.
Mirin is urging HCFA to at minimum honor the contracts and affidavits that have already been signed by "grandfathering" physicians whose Medicare patients have taken advantage of the private contracting option. These physicians, he stated, "relied in good faith on the statute and HCFA's January 1998 instructions" to Medicare insurance carriers for the terms the law required them to include in the contracts.
Based on HCFA's published requirements, Psychiatric News printed in the June 5 issue templates for the Medicare contract and affidavit, both of which had been developed by APA and approved by its legal counsel. (APA now urges members to cosult legal counsel before using the templates.)
"The only alternative to grandfathering" private contracts that have already been signed "is for HCFA to inform Medicare beneficiaries who have entered into private contracts of any changes in requirements" that appear in the final regulations the agency issues, Mirin said. However, choosing this course, he warned, "would violate the very confidentiality sought by those beneficiaries who have already entered into private contracts."
Mirin also objected vehemently to HCFA's proposal to mandate that a phrase be included in the standard contract adding "or his or her legal representative" after references to the Medicare beneficiary. Since Congress did not think this requirement should be included in the private contracting bill, APA maintains that HCFA is overstepping the line between enacting laws and writing regulations.
"Our primary concern continues to be with the protection of absolute confidentiality of patient medical records," Mirin stressed to the HCFA administrator. Among the questions this phraseology raises are, Who determines who acts as the legal representative? What process must a beneficiary go through to designate one before the contract's requirements are met? Does this process provide an avenue for Medicare carriers to have access to patient data they would not have had under the original wording?
APA is also concerned about HCFA's plan to require physicians and other clinicians who enter into private pay agreements to include identifier information in the affidavit in addition to the statute requirements of their name, address, and phone number. HCFA's instructions to Medicare insurance carriers only call for inclusion of one such provider identifier.
Mirin also alerted DeParle to APA's misgivings about the consequences for community psychiatry that arise from the law's mandate for the two-year reimbursement waiver. This provision forces psychiatrists who have signed a private payment contract with a Medicare-eligible patient in their private practice to forgo any reimbursement for discounted care they provide in a community mental health center.
"This has potentially serious ramifications for the provision of medically necessary care to low-income, elderly, or disabled patients," Mirin said, "and may also deprive psychiatric or other specialty residents from needed residency supervision." Because of the potential for "dire effects on the already strained community mental health center and health clinic system," he called on HCFA to "rethink" this provision and to give "explicit authorization for continued involvement in community-based health care operation by opt-out physicians."
All of these HCFA proposals to alter the terms of the Medicare private contracting law extend the agency's reach far beyond its official mission, emphasized Jay Cutler, J.D., director of APA's Division of Government Relations. "HCFA is confused in thinking that it's the same as Congress," Cutler told Psychiatric News. "It's busy writing laws instead of doing its job, which is to write the regulations to implement the laws that Congress passes."
APA solicited comments on the proposed changes through its Web site on June 19. Members were encouraged to submit their comments to either APA or to HCFA directly. The period for comments expired on August 4.
HCFA intends to publish final regulations for Medicare private pay agreements sometime this fall. Until it does so, psychiatrists and patients who have signed such contracts will have to cope with the uncertainty that comes from not knowing if the contracts will be valid as written.