Health and Human Services Commission Council. SUBJECT: Item 5.a. Payment to Advanced Practice Registered Nurses and Physician Assistants

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1 TO: Health and Human Services Commission Council DATE: August 15, 2014 FROM: Laurie Vanhoose, Medicaid/CHIP, Director of Policy Development SUBJECT: Item 5.a. Payment to Advanced Practice Registered Nurses and Physician Assistants BACKGROUND: Federal Requirement Legislative Requirement Other The proposed amendments clarify that services performed by an advanced practice registered nurse (APRN) or a physician assistant (PA) but billed by a supervising physician are to be reimbursed according to the requirements in chapter 355 of the Texas Administrative Code. Currently, APRNs, under title 1, of the Texas Administrative Code (TAC), and PAs, under TAC title 1, , are to be reimbursed at 92 percent of the physician rate for professional services billed under their own provider numbers and 100 percent of the physician rate for laboratory services, x-ray services, and injections. Due to a lack of clarity in current rule and certain technical limitations, a physician may bill for services performed by an APRN or PA under the physician's supervision at the full physician rate. Cost containment measures carried out in response to the General Appropriations Act, which directs HHSC to enforce appropriate payment practices for non-physician services, include ensuring application of the 92 percent reimbursement rate for APRNs and PAs performing under the supervision of a physician. See General Appropriations Act, 83d Leg., R.S., ch. 1411, art. II, at II-101, 2013 Tex. Gen. Laws 3743, 3952 (Health and Human Services Section, Health and Human Services Commission, rider 51(b)(24)). The term APRN, previously known as nurse practitioner, includes the following categories of nurses with advanced training: nurse practitioner (NP), clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), and certified nurse-midwife (CNM). HHSC is proposing to amend to require a physician billing for supervised services to indicate that the supervised services were performed by an APRN or PA, as appropriate, on the physician's claim form. HHSC is also proposing to amend to clarify that the payment rate for the supervised services is set in accordance with the appropriate reimbursement rule. Finally, these rule changes are coordinated with proposed clarifications to the corresponding reimbursement rules in chapter 355 for PAs, NPs, CNSs, CRNAs, and CNMs. Those proposed changes clarify that services performed by one of the above provider types while under the supervision of a physician are to be reimbursed at the 92 percent level appropriate to the supervised practitioner. ISSUES AND ALTERNATIVES: 1

2 The proposed rule changes are in response to legislative direction and intended to ensure appropriate payment for services performed under a physician's supervision and, as such, there is no alternative. STAKEHOLDER INVOLVEMENT: The proposed rule amendments were sent to external stakeholders for review. Comments received from stakeholders were reviewed by HHSC staff and taken into consideration. External stakeholders included: Consortium of Texas Certified Nurse-Midwives Texas Nurse Practitioners Texas Clinical Nurse Specialists TxCNS Texas Association of Nurse Anesthetists Texas Academy of Physician Assistants Texas Academy of Family Physicians Texas Association of Health Plans Texas Association of Home Care Hospice Texas Hospital Association Texas Medical Association Texas Osteopathic Medical Association Texas Pediatric Society Texas Society of Psychiatric Physicians FISCAL IMPACT: None (if no, delete the table below) Yes (if yes, complete the table below) SFY15 SFY16 SFY17 SFY18 SFY19 State ($2,859,391) ($4,738,542) ($5,110,796) ($5,503,272) ($5,925,887) Federal ($3,964,932) ($6,358,747) ($6,838,692) ($7,363,858) ($7,929,355) Total ($6,824,323) ($11,097,289) ($11,949,488) ($12,867,130) ($13,855,242) SERVICES IMPACT STATEMENT: Describe the proposed rule s impact on the HHSC client population. Not applicable. The proposed amendments only clarify that services performed by an advanced practice registered nurse (APRN) or a physician assistant (PA) but billed by a supervising physician are to be reimbursed according to the requirements in chapter 355 of the Texas Administrative Code. The proposed amendments clarify that services performed by an advanced practice registered nurse (APRN) or a physician assistant (PA) but billed by a supervising 2

3 physician are to be reimbursed according to the requirements in chapter 355 of the Texas Administrative Code. Clients will not be impacted. RULE DEVELOPMENT SCHEDULE: August 14, 2014 August 15, 2014 October 10, 2014 December 26, 2014 January 1, 2015 Present to the Medical Care Advisory Committee Present to HHSC Council Publish proposed rules in Texas Register Publish adopted rules in Texas Register Effective date REQUESTED ACTION: The Council recommends to the Executive Commissioner that the proposed rule be published in the Texas Register and later adopted should there be no substantive comment. 3

4 TITLE 1 PART 15 CHAPTER 354 SUBCHAPTER A DIVISION 1 RULE DIVISION 5 RULE ADMINISTRATION TEXAS HEALTH AND HUMAN SERVICES COMMISSION MEDICAID HEALTH SERVICES PURCHASED HEALTH SERVICES MEDICAID PROCEDURES FOR PROVIDERS Claim Information Requirements PHYSICIAN AND PHYSICIAN ASSISTANT SERVICES Authorized Physician Services PROPOSED PREAMBLE The Texas Health and Human Services Commission (HHSC) proposes to amend , concerning Claim Information Requirements, and , concerning Authorized Physician Services. Background and Justification The proposed amendments clarify that services performed by an advanced practice registered nurse (APRN) or a physician assistant (PA) but billed by a supervising physician are to be reimbursed according to the requirements in chapter 355 of the Texas Administrative Code. Currently, APRNs, under title 1, of the Texas Administrative Code (TAC), and PAs, under TAC title 1, , are to be reimbursed at 92 percent of the physician rate for professional services billed under their own provider numbers and 100 percent of the physician rate for laboratory services, x-ray services, and injections. Due to a lack of clarity in current rule and certain technical limitations, a physician may bill for services performed by an APRN or PA under the physician's supervision at the full physician rate. Cost containment measures carried out in response to the General Appropriations Act, which directs HHSC to enforce appropriate payment practices for non-physician services, include ensuring application of the 92 percent reimbursement rate for APRNs and PAs performing under the supervision of a physician. See General Appropriations Act, 83d Leg., R.S., ch. 1411, art. II, at II-101, 2013 Tex. Gen. Laws 3743, 3952 (Health and Human Services Section, Health and Human Services Commission, rider 51(b)(24)). The term APRN, previously known as nurse practitioner, includes the following categories of nurses with advanced training: nurse practitioner (NP), clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), and certified nurse-midwife (CNM). HHSC is proposing to amend to require a physician billing for supervised services to indicate that the supervised services were performed by an APRN or PA, as appropriate, on the physician's claim form. HHSC is also proposing to amend to clarify that the payment rate for the supervised services is set in accordance with the appropriate reimbursement rule. Finally, these rule changes are coordinated with proposed clarifications to the corresponding reimbursement rules in chapter 355 for PAs, NPs, CNSs, CRNAs, and CNMs. Those proposed changes clarify that services performed by one of the above provider types while under the 4

5 supervision of a physician are to be reimbursed at the 92 percent level appropriate to the supervised practitioner. Section-by-Section Summary Claim Information Requirements The rule is amended to add subsection (b), which states that if the billing provider is a physician supervising the performance of eligible services by a PA, an NP, a CNS, a CRNA, or a CNM, the physician must note on the claim, in accordance with standards set by HHSC, that the services were performed by the supervisee Authorized Physician Services Subsection (a) of the rule is amended to state that services performed under a physician s supervision by a PA, an NP, a CNS, a CRNA, or a CNM will be reimbursed according to the reimbursement rule applicable to the supervised practitioner. Fiscal Note Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rules are in effect, there will be a fiscal impact to state government. The fiscal impact is anticipated to be savings of $2,859,391 in General Revenue (GR) ($6,824,323 All Funds (AF)) for State (SFY) 2015, $4,738,542 GR ($11,097,289 AF) for SFY 2016, $5,110,796 GR ($11,949,488 AF) for SFY 2017, $5,503,272 GR ($12,867,130 AF) for SFY 2018, and $5,925,887 GR ($13,855,242 AF) for SFY The amended rule is not anticipated to result in any fiscal implications to local governments. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment. Small and Micro-business Impact Analysis HHSC has determined that there will be no effect on small businesses or micro businesses to comply with the amended rules as the amendment merely clarifies and brings billing practices into compliance with current state policy. Public Benefit Chris Traylor, Chief Deputy Commissioner, has determined that, for each year of the first five years the sections are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit of enforcing the proposed amended rules will be clarifying the APRN and PA provider payment process. 5

6 Regulatory Analysis HHSC has determined that this proposal is not a major environmental rule as defined by of the Texas Government Code. A major environmental rule is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Takings Impact Assessment HHSC has determined that this proposal does not restrict or limit an owner s right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under of the Government Code. Public Comment Written comments on the proposal may be submitted within 30 days of publication of this proposal in the Texas Register to Alexander Melis, Project Manager, 4900 N. Lamar Blvd., Mail Code H310, Austin, Texas; by fax to (512) ; or by to alex.melis@hhsc.state.tx.us. Statutory Authority--Medicaid These amendments are proposed under Texas Government Code , which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code and Texas Government Code (a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas. The proposed amendments affect Texas Human Resources Code Chapter 32 and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal. Statutory Authority--CHIP These amendments are proposed under the authority granted to HHSC by Government Code , which authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement HHSC s duties and Texas Health and Safety Code (d), which directs HHSC to adopt rules necessary to implement the Children s Health Insurance Program. The proposed amendments affect Texas Health and Safety Code Chapter 62, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by these proposed amendments. This agency hereby certifies that this proposal has been reviewed and approved by legal counsel and found to be within the agency s legal authority to adopt. 6

7 TITLE 1 PART 15 CHAPTER 354 SUBCHAPTER A DIVISION 1 RULE ADMINISTRATION TEXAS HEALTH AND HUMAN SERVICES COMMISSION MEDICAID HEALTH SERVICES PURCHASED HEALTH SERVICES MEDICAID PROCEDURES FOR PROVIDERS Claim Information Requirements Eligible providers are required to provide separate claim information for each eligible recipient. Claims must be complete, accurate, and as specified by the Health and Human Services Commission or its designee. (a) Required information includes the following: (1) name, address, and appropriate Texas provider identification number of the provider of services or supplies or both; (2) the date of the claim; (3) the name, address, identification number, and date of birth of the individual who received services or supplies or both; (4) the type of such services or supplies or both provided; (5) the date(s) each service or supplies or both were provided; (6) the amounts of each charge for the various types of services or supplies or both; (7) the total charge for services or supplies or both; (8) credits for any payments made at the time of submission of the claim, including payments made by private health insurance and under Medicare; (9) indication that the eligible recipient has health, accident, or other insurance policies, or is covered by private or governmental benefit systems, or other third party liability, when reported, known, or suspected; (10) the date of the eligible recipient's death, if applicable; and (11) the name and associated national provider identifier of: (A) the eligible billing provider; (B) the ordering or referring provider or other professional, if services or supplies, or both, are ordered or referred; and (C) the supervising and supervised provider, except for pharmacy claims, if: 7

8 (i) the services or supplies, or both, were provided due to a referral or ordered by a provider; (ii) the referring or ordering provider is acting at the direction or under the supervision of another provider; and (iii) the referral or order is based on the supervised provider's evaluation of the recipient or enrollee. (b) If the billing provider is a physician supervising the performance of eligible services by a Physician Assistant, Nurse Practitioner, Clinical Nurse Specialist, Certified Registered Nurse Anesthetist, or Certified Nurse-Midwife, the physician must note on the claim, in accordance with standards set by HHSC, that the services were performed by the supervisee. 8

9 TITLE 1 PART 15 CHAPTER 354 SUBCHAPTER A DIVISION 5 RULE ADMINISTRATION TEXAS HEALTH AND HUMAN SERVICES COMMISSION MEDICAID HEALTH SERVICES PURCHASED HEALTH SERVICES PHYSICIAN AND PHYSICIAN ASSISTANT SERVICES Authorized Physician Services (a)this rule specifies the conditions under which a physician may bill Texas Medicaid for covered services. Such conditions include compliance with this rule as well as compliance with all applicable federal and state laws, rules, regulations and policies relating to covered services. (b)physician services. A physician may bill for reasonable and medically necessary services that are within the scope of practice of medicine or osteopathy as defined by state law. Eligible physician services include those performed by the physician and those medical acts delegated by the physician to qualified and properly trained persons acting under the physician's supervision. Services performed under a physician s supervision by a Nurse Practitioner (NP), Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Certified Nurse Midwife (CNM), and Physician Assistant (PAs) are reimbursed according to the reimbursement rule applicable to the supervised practitioner. Delegation and supervision of medical services must be consistent with this chapter and the rules and laws of the Texas Medical Board, and supervision of the delegated medical act must be appropriately documented in the patient's chart. A physician shall not bill the Texas Medicaid program for services if that billing would result in duplicate payment for the same services. (c)physician supervising other physicians. A physician supervising other physicians may bill when the supervision and services are performed in the context of an accredited graduate medical education program. Facilities and professional practices do not qualify for reimbursement for services provided by resident physicians in an outpatient setting unless the facility or professional practice is owned by, or affiliated with, an accredited graduate medical education program. (1)For all services billed to the Medicaid program, the supervision must be medically appropriate, as described in this rule, and provided to a resident physician performing a Medicaid-covered service. The supervision must be either personal or direct. To qualify for reimbursement, the medical record must clearly establish: (A)The nature of the supervisory role of the billing physician in the delivery of the services provided by the resident physician; and (B)That the supervision complies with the definition of supervision applicable to the covered service, as defined in of this title (relating to Definitions). (2)Personal supervision is required during the key portions of all major surgeries and the key 9

10 portions of all other physician services billed to the Medicaid program if the immediate supervision, participation, or intervention of the supervising physician is medically prudent in order to assure the health and safety of the patient. Physician services that require personal supervision may include invasive procedures and evaluation and management services that require complex medical decision making. Situations that require personal supervision include those in which: (A)The clinical condition of the patient is unstable or will likely become unstable during, or as a result of, the planned medical intervention; or (B)The planned medical intervention, even under optimal conditions, will result in medically reasonable risk for significant morbidity or death following the service or procedure; or (C)Deviation from expected technique at the time the procedure or service is performed presents a medically reasonable, causally-related, foreseeable risk to the patient's life or health. (3)For surgical services, the supervising surgeon is responsible for pre-operative, operative, and post-operative care provided to the patient and billed to the Medicaid program. The supervising surgeon, however, may delegate the pre- and post-operative care to a resident if appropriate direct supervision, as defined in of this title, is provided. (4)For all services that do not require personal supervision and are billed to the Medicaid program, the supervising physician must provide direct supervision. The supervising physician may not provide direct supervision for an activity at the same time as providing personal supervision for another activity, with the following exceptions. (A)The supervising physician in the outpatient setting may provide personal and direct supervision concurrently for residents providing evaluation and management services; and (B)A supervising surgeon or supervising anesthesiologist may be involved in two concurrent anesthesia cases with residents. The supervising surgeon or supervising anesthesiologist must be present during all key portions of the procedure if the immediate supervision, participation, or intervention of the supervising physician is medically prudent in order to assure the health and safety of the patient. (5)Supervision in the outpatient setting. A face-to-face encounter between the physician providing direct supervision and the patient is not required in the outpatient setting in the context of a graduate medical education program. All other requirements for personal or direct supervision in this division must be met for the services to qualify for reimbursement. The supervising physician must document that he/she: (A)Reviewed the patient's history and physical examination; (B)Confirmed or revised the patient's diagnosis; 10

11 (C)Determined the course of treatment to be followed; (D)Assured that any needed supervision of interns or residents was provided; and (E)Confirmed that the documentation in the medical record comports with the level of service billed. (6)Supervision in the inpatient setting. A physician who supervises other physicians in an inpatient setting must comply with documentation requirements of paragraph (5)(A) - (E) of this subsection and must document that he or she has completed a: (A)Personal examination of the patient not later than 36 hours after the patient's admission and before the patient's discharge and, as necessary, based on the patient's condition; and (B)Face-to-face encounter with the patient on the same day as any billed services provided by the resident physician. (d)services provided by a physician assistant or advanced practice nurse. If the services are provided by a physician assistant or advanced practice nurse, practicing within the scope of their license and consistent with this chapter and with the rules and laws of the Texas Medical Board and Texas Nursing Board, as applicable, the physician services are covered. Services provided by a certified registered nurse anesthetist must be billed as described in of this title (relating to Certified Registered Nurse Anesthetists' Services). (e)substitute physician. A physician may bill for the services of a substitute physician who sees patients in the billing physician's practice under either a reciprocal or locum tenens arrangement. To qualify for reimbursement, the billing physician and substitute physician must comply with the following requirements: (1)The substitute physician's name and address must be documented on the claim. (2)The substitute physician must be licensed to practice in the state of Texas. (3)Consistent with the requirements of and of this title (relating to Provider Responsibility and Mandatory Exclusion respectively), the substitute physician must be enrolled in Medicaid and not be on the Medicaid or Title XX provider exclusion list. (4)The time period for which a physician may bill for the services of a substitute physician is limited to the following situations: (A)Reciprocal Arrangements. When the substitute physician sees patients in the billing physician's practice under a reciprocal arrangement, the billing physician may bill for services furnished by the substitute physician during a period that does not exceed 14 continuous days. (B)Locum Tenens Arrangements. When the substitute physician sees patients in the billing physician's practice under a locum tenens arrangement, the billing physician may bill for services 11

12 furnished by the substitute physician during a period that does not exceed 90 continuous days. Except as provided in clause (iii) of this subparagraph, services furnished by the substitute physician after the 90th day must be billed under the substitute physician's own Medicaid provider number. (i)when the billing physician is absent for more than 90 days, the billing physician may bill for services furnished by a different substitute physician for each consecutive continuous 90 day period. (ii)the billing physician may only bill for services furnished by a substitute physician on a temporary basis. Except as provided in clause (iii) of this subparagraph, the billing physician may not bill for services furnished by a substitute physician to address long-term vacancies in a physician practice. (iii) When the billing physician is absent or unavailable due to active duty as a member of a reserve component of the U.S. Armed Forces, the billing physician may bill for the services of a substitute physician for a longer continuous period during all of which the billing physician has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Medicaid may reimburse the billing physician for services provided by the substitute physician until the billing physician is no longer on active duty as a member of a reserve component of the Armed Forces. 12