Medicare Moves Closer to Stop Paying for Surgical
Mistakes Over Physician Objections
CMS issues national coverage determinations on
wrong procedure, wrong body part and wrong patient
Jan. 19, 2009 – The Centers for Medicare & Medicaid
Services moved forward last week on its plan to refuse payment for
certain serious, preventable medical errors – like a doctor cutting off
the wrong leg of a patient - but there is little support from physician
groups. The American Medical Association is basing its opposition on a
technical question.
CMS announced Thursday three national coverage
determinations (NCDs) to establish uniform national policies that will
prevent Medicare from paying for what has become known as “never
events.”
The following “never events,” covered in these NCDs
are identified in the National Quality Forum’s (NQF) list of Serious
Reportable Events:
● Wrong surgical or other invasive procedures
performed on a patient;
● Surgical or other invasive procedures performed
on the wrong body part; and
● Surgical or other invasive procedures performed
on the wrong patient.
In addition, consistent with current policy for
non-covered services, Medicare does not cover any services related to
these non-covered services.
“The national coverage policies for certain types
of surgical errors are important steps for Medicare in working to reduce
or eliminate their occurrence and their associated payments.” said CMS
Acting Administrator Kerry Weems.
“These policies have the potential to reduce causes
of serious illness or deaths to beneficiaries and reduce unnecessary
costs to Medicare.”
American Medical Association (AMA) Concerns
The AMA states, according to CMS, that it “is
extremely disappointed that CMS is moving forward with the NCDs in this
procedural manner.”
CMS published the following analysis of the AMA’s
position.
“The AMA contends that these issues require greater
public discussion than the NCD process affords and thus many critical
questions (e.g. definitions for surgical errors covered by the proposed
NCDs, accountability and scope of non-payment) will go unanswered.
“The AMA asserts that ‘physicians and providers
must have clear guidance on Medicare coverage and payment policy, but
the NCD process in these instances is a complete obstacle to this goal.’
“The AMA contends that since ‘NCDs set national
policy on whether Medicare will cover an item or service and under what
conditions’ it is inappropriate for CMS to use the NCD process to
address surgical errors.
“Instead, a clear payment policy should be
developed that outlines the circumstances under which surgery claims
would not be reimbursable by Medicare. The AMA states that ‘the issue at
question is not whether surgical procedures will be covered by the
Medicare program, but rather under what circumstances the payment for
covered surgical procedures will be denied or reduced.’
“The AMA also stresses the importance of
establishing an appeals process for any inappropriately denied claims.
“The AMA urges ‘CMS to withdraw these NCDs, and
explore options for revising Medicare payment policies associated with
these three surgical conditions.’ The AMA supports this request by
asserting that none of the three surgical conditions would usually be
qualified for the development of an NCD, Medicare claims processing
personnel lack the expertise to determine whether certain surgical
procedures are performed correctly and beneficiaries will have coverage
wrongly denied due to errors in judgment by Medicare contractors."
Background on Program
In 2002, prompted in part by the release of the
1999 Institute of Medicine report titled, “To Err is Human: Building a
Safer Health System,” the NQF created a list of 27 never events, which
was expanded to 28 events in 2006.
As part of the ongoing implementation of Section
5001(c) of the Deficit Reduction Act (DRA) of 2005, CMS has addressed
some of the NQF never events through the Hospital-Acquired Conditions
(HACs) provisions in the Inpatient Prospective Payment System (IPPS)
final rule for fiscal years (FY) 2008 and 2009.
For discharges occurring on or after Oct. 1, 2008,
Medicare will no longer pay a hospital at a higher rate for an inpatient
hospital stay if the sole reason for the enhanced payment is one of the
selected HACs, and the condition was acquired during the hospital stay.
CMS is exploring the feasibility of adapting this policy to its other
payment systems.
In the IPPS FY 2008 final rule, CMS selected eight
categories of conditions for the HAC list, a number of which were among
the 28 never events listed by the NQF and include retained foreign
object after surgery, air embolism, blood incompatibility, stage III &
IV pressure ulcers, and injuries related to falls and traumatic events
such as electric shock and burns.
In the IPPS FY 2009 final rule, CMS added
manifestations of poor glycemic control, including hypoglycemic coma, to
the list. Hypoglycemic coma is closely related to NQF’s listing of
death or serious disability associated with hypoglycemia.
CMS determined that not all conditions included on
the NQF list of Never Events should be addressed by the HAC payment
provision and therefore determined that the NCD process was appropriate
to address coverage for the three types of surgical errors cited above.
Unlike the HAC provisions, which affect only
payments to hospitals for inpatient stays, these NCDs may affect payment
to hospitals, physicians, and any other health care providers and
suppliers involved in the erroneous surgeries.
These NCDs are effective immediately, however;
implementation instructions for processing such claims will occur at a
later date.
Jan. 19, 2009 – The Centers for Medicare & Medicaid
Services moved forward last week on its plan to refuse payment for
certain serious, preventable medical errors – like a doctor cutting off
the wrong leg of a patient - but there is little support from physician
groups. The American Medical Association is basing its opposition on a
technical question.
Physicians in both the
e-prescribing and PQRI initiatives would receive a 5.1% bonus in
Medicare payments next year