Corporate Compliance

Note from Hugh

Medicare Insider, December 28, 2007

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CMS published several interesting frequently asked questions (FAQs) recently, including a controversial FAQ on billing for services provided at the time of critical dare. The FAQ was the subject of a great deal of discussion on the December 20 Hospital Open Door Forum. 

The new FAQ states that hospitals should follow CPT instructions regarding included services when billing critical care, and therefore should not separately bill those services identified by the CPT Manual as included in critical care when provided during the critical care period.

This appears to be contrary to prior guidance provided on this issue by CMS in the Federal Register and in FAQs published during the implementation of OPPS.

For example, in the April 7, 2000, Federal Register, CMS (then HCFA) explained, "If other services, such as surgery, x-rays, or cardiopulmonary resuscitation, were furnished on the same day as the critical care services, we would allow the hospital to bill for them separately."  This seems to clearly state that services (e.g., a chest x-ray), which CPT states are included in critical care, would be billed separately. 

CMS also placed the following FAQ on its Web site at the implementation of the OPPS, and it appears to provide further explanation regarding separate billing of services provided with critical care. The FAQ stated the following:

    Q. 71. Critical care codes have excluded procedures that are not covered under the listed codes; can those codes, when appropriate documentation is present, be listed in addition to the critical care codes? 

    A. 71. The edits for services excluded when critical care is billed relate to physician services. For example, Medicare does not pay a physician for reading an EKG while providing critical care. The hospital, however, incurs costs for the technical component of such tests and procedures. Therefore, we have removed the critical care edits from the CCI edits used within the OCE. (09/12/00)

Based on the above guidance, many hospitals and commentators reasonably concluded that it was appropriate for hospitals to bill separately for the services that CPT indicated were included in critical care. However, based on the discussion on the recent Hospital Open Door Forum, CMS appears to be taking the position that the new FAQ represents their current understanding of critical care billing. The CMS representative did not acknowledge that this was a change in CMS policy, leaving the impression that this has been its long-standing understanding of critical care billing.

While this issue will undoubtedly receive further clarification and guidance from CMS, hospitals should immediately take steps to ensure they are in compliance with the new FAQ. Because the CMS representative did not acknowledge that this was a change in policy, hospitals following the prior guidance may wish to seek expert legal counsel on the possibility of a repayment obligation based on the new FAQ. 

~ Kimberly Anderwood Hoy, Esq.

Editor's Note: Kimberly Anderwood Hoy, director of Medicare and compliance for HCPro, is the author of this week's "Note from Hugh" in Mr. Aaron's absence.

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