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APA opposes a proposed rule by the Health Care Financing Administration (HCFA) that permits nonphysicians to be reimbursed for teleconsultations under Medicare physician CPT codes. The rule is expected to be finalized by the end of the year.
Jay Cutler, director of APA's Division of Government Relations, commented in a letter to HCFA Administrator Nancy-Ann Min DeParle in August, "This should be prohibited because these evaluation and management codes were developed specifically for physician use." Moreover, "Current Medicare policy doesn't permit nonphysician practitioners, in particular clinical psychologists and clinical social workers, to bill for these services."
Ronald Shellow, M.D., chair of APA's Joint Commission on Government Relations, commented to Psychiatric News, "We believe it is inappropriate for HCFA to expand the scope of practice for nonphysician practitioners without examining their competency, state licensure to practice, and authorization to conduct these services under state law."
Cutler contends in the letter that HCFA is misinterpreting the intent of Congress in implementing the 1997 provisions of the Balanced Budget Act that refer to Medicare Part B payment for professional consultations via telecommunications systems.
"The purpose is to provide access to health care for beneficiaries who may now face barriers to care because they reside in rural areas with a shortage of medical professionals," writes Cutler.
"Given the availability of highly trained and qualified physicians at academic medical centers in urban and metropolitan areas, we can think of no situation in which a consultation by a nonphysician practitioner would be appropriate."
He recommended that HCFA at a minimum require that health professionals be licensed to practice in the state in which they conduct teleconsultations.
Medicare payment should also be contingent on meeting HCFA's "reasonable and necessary" criterion including appropriateness. Cutler noted that HCFA "considers a service to be appropriate if it is furnished in a setting commensurate with the patient's medical needs and condition, and by qualified personnel."
He also expressed disappointment that HCFA has not provided coverage for psychiatric services beyond consultations including diagnostic interviews (CPT 90801 and 90802) and treatment "that lends itself to interactive audiovisual telecommunications, such as the 24 psychotherapy codes (90804-90829), and pharmacologic management (90862). Inclusion of these codes would allow for the appropriate diagnosis and follow-up treatment of patients in rural underserved settings," states Cutler in the letter.
Ellen Rothchild, M.D., chair of APA's Committee on Telemedical Services, which also reviewed the letter, told Psychiatric News, "To provide only a consultation and then say to the patient you have to drive 100 miles to see us for follow-up treatment makes no sense. We would like HCFA to provide coverage for continued care."
Cutler also raised legal and ethical concerns in the letter regarding HCFA's proposed fee-splitting arrangement that requires the consultant practitioner to pay the referring physician 25 percent of any payment he or she receives, including applicable deductible or coinsurance amounts.
He questioned HCFA's conclusion that fee splitting would not violate the Social Security Act provisions that prohibit self-referrals under Medicare because "the consulting physician is merely a 'conduit' for the administrative convenience of HCFA."
Cutler suggested that HCFA review its interpretation with the HHS Office of Inspector General and the Department of Justice, which investigate such violations. HCFA should also investigate whether any state laws would prohibit these fee arrangements.
"Absent such analysis and review, HCFA is premature in adopting this proposal," states Cutler in the letter.
Moreover, the proposed fee splitting may pose an ethical problem for APA members, who must adhere to the AMA Principles of Medical Ethics and Current Opinions. The AMA's Code of Medical Ethics Current Opinions With Annotations states in part that "payment by or to a physician solely for the referral of a patient is fee splitting and unethical."
Asecond AMA ethics opinion states that "no physician shall bill or be paid for a service which is not performed; mere referral does not constitute a professional service for which a professional charge should be made or for which a fee may be ethically paid or received," according to Cutler's letter.
Shellow commented, "Clearly, fee splitting is unethical and puts the physician in an impossible situation. We appreciate that HCFA is willing to pay for telemedicine consultations, but the fees need to be handled in an appropriate way."