In a stunning display of self-awareness, the federales are engaged once more in simplifying, and soliciting input on clarifying, some of the more ambitious Medicare chronic care provisions in the 2017 Medicare Physician Fee Schedule.
The thicket of Medicare regulations is viewed as the culprit, and this brings to mind one of my favorite judicial quotes (Rehab. Associates of VA v. Koslowski):
There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.
A more succinct assessment, penned by another federal judge: “Picture a law written by James Joyce and edited by E.E. Cummings.” (Let’s not forget the elucidating footnote: “The Court clarifies, however, that by making this analogy, it is referring not to Joyce’s early work, such as Dubliners or A Portrait of the Artist as a Young Man, but his later period, specifically Finnegan’s Wake.”)
So, yeah, Medicare. It brings to mind a line from another of Joyce’s works, Ulysses: “Ineluctable modality of the visible.” What we see and what is are two different things. Medicare is like that. The rules often have difficulty translating themselves into the real world. (Ask Aristotle.)
Speaking of the real world, let’s get back to the 2017 Medicare Physician Fee Schedule, released last week as a proposed rule, and let’s focus on two exemplars of the reality-based rulemaking newly in vogue at CMS. (See if you think these are models of clarity or not.)
1. Diabetes Prevention Program
A number of mainstream Medicare programs began life as demonstration projects (think PACE or ACOs). This year’s model — DPP — is the first to come out of CMMI. The program has been live in eight states and is now ready to go national. Physicians and others would receive supplemental payments for counseling and other support services designed to prevent diabetes among beneficiaries in pre-diabetic populations. (Payments are tied to number of sessions attended and minimum weight lost, and kept off, by each patient.) CMS is seeking input on a wide range of issues, ranging from payment structure to IT infrastructure to quality metrics, and plans to make DPP part of mainstream Medicare in January 2018 (comments are also being solicited on the question of whether to phase in the benefit or roll it out nationwide).
2. Chronic Care Management
The reason behind the changes in the Chronic Care Management (CCM) benefit is stunning: a realization that only a tiny fraction of eligible beneficiaries are receiving the services previously authorized — though of course the realization that only 275,000 beneficiaries out of a potential population of about 35 million have received CCM services was likely leavened by suggestions from interested parties. The fixes: elimination of “burdensome” EHR-related requirements included in the original CCM rule as part of the conditions of payment, including (a) 24/7 access to patient records by providers and (b) sharing clinical case summaries via EHRs when handing off patients from one provider to another. On the one hand, this represents the squandering of an opportunity to require electronic record-keeping (and lack of access to records 24/7 will surely limit the efficacy of the services provided during off hours, or effectively make them entirely unavailable); on the other hand, the changes may help in bringing this benefit to the masses — and since the goal of this benefit is to promote better care management, yielding lower costs, that could prove to be a worthwhile investment. Other changes include proposed establishment of additional codes to account for additional time spent caring for patients in need of more complex care management. Another key change that would truly bring this service to the masses of Medicare beneficiaries: elimination of coinsurance. (OK, that one may require an act of Congress, but still ….)
The elimination of EHR-related impediments in the CCM arena would likely be welcomed by physicians if extended more broadly — though that could require an act of Congress as well. (See under Meaningful Use, MACRA.)
There are other examples in the proposed rule: rationalization and integration of behavioral health benefits, and adding several codes to the list of services that may be provided via telehealth — ESRD-related services, advance care planning services and critical care consultations.
All in all, it is encouraging to see, buried in the regulatory mumbo-jumbo, a few efforts made to rationalize health care delivery and health care payment, and to improve alignment among payors, providers and patients.
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
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