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Frank Cohen

According to a recent survey of Americans, only 17 percent were satisfied with the way our government is working. And it’s no surprise, since, in my opinion, the number one item that the government produces is confusion.

So it should be no surprise that less than half of recently surveyed physicians would recommend the same career to their children, and one-third say that if they had to do it over again, they would choose a different career path. In that same survey, the authors reported that nearly 70 percent of physicians feel that their clinical autonomy and their decisions are sometimes or often threatened. I don’t care who you are; that’s sad.

There are many reasons that physicians list for their frustrations, so I am not going to offer up my opinion on their behalf, but I can give you some examples that, if nothing else, frustrate the heck out of pretty much everyone who has to do business with the Centers for Medicare & Medicaid Services (CMS). 

We all know about the administrative law judge (ALJ) problem. It is projected that there will soon be a backlog of 1.5 million ALJ appeals. In the 2016 fiscal year, the Office of Medicare Hearings and Appeals’ (OMHA’s) total annual adjudication capacity was approximately 85,000 appeals. That’s a backlog of nearly 20 years. Heck, that’s worse than the backlog of court cases in India, which is not a very good benchmark for the U.S. It’s especially frustrating since more than 60 percent of these cases result in either a full or partial reversal in favor of the provider.

So here’s one more issue to add to the list. Recently we were contacted by one of our clients regarding the use of a specific orthopedic procedure code and whether it violated National Correct Coding Initiative (NCCI) edit policies when used with other procedure codes for the same patient by the same provider on the same day. The issue was first raised by my colleague Sean Weiss, who heads up the Appeals and Regulatory Compliance Division at DoctorsManagement, LLC. Specifically, according to Sean, the NCCI edits have denied CPT code 29823, Arthroscopic shoulder debridement, extensive, with several other arthroscopic shoulder procedures, such as CPT code 29827, Arthroscopic rotator cuff repair, or CPT code 29824, Arthroscopic distal claviculectomy. In a recent change, CMS issued notice that, effective July 1, 2016, this situation would be remedied as an update to the NCCI database, with these restricted edit pairs being retired. This means that effective July 1, 2016, a practice could, in fact, bill for the column 1 procedure in addition to the column 2 procedures and expect to be paid.

This seems simple enough, but when Grant Huang, DoctorsManagement’s director of content, followed up on this, what he found was more confusion than clarity. Grant found that even though the NCCI edit database had been updated, the NCCI manual had not, and Chapter IV, Section E, Paragraph 6 of that manual reads that “with the exception of knee arthroscopy, (29877, 29874, G0289) debridement should not be reported with another surgical arthroscopy procedure, same joint, same encounter.” 

So the wording in the NCCI manual conflicted with the updated release and the information in the database. Which is correct? Well, Grant followed up with an email to CMS detailing the problem and looking for some guidance as to whether the client could, in fact, now bill and expect to be paid based on the elimination of these edit pairs from the database. Here was the response from CMS: 

“I apologize for the delay in our response. In general, changes to the NCCI edits may be made on a quarterly basis. However, the NCCI Manual is only updated annually. The edits noted below were effective July 1, 2016. We would consider the suggestions in our next annual update to the NCCI Manual.”

I was a bit foggy on the last line, that they would “consider the suggestions in our next annual update to the NCCI Manual.” What suggestions? That they edit the documentation to accurately reflect their actual policy? Really? Someone has to suggest that? I was flummoxed. At face value, this seemed to go a bit beyond incompetence and into the realm of arrogance. It’s like getting a speeding ticket for going over the limit when, even though the signs were changed, the documentation in the DOT regulations had not yet been updated. It is one of those completely unnecessary complexities that creates waste within the system. 

So Grant, having not received an answer to his question, wrote back the following: 

“OK, but in the meantime, would we be correct in our assumption that MACs (Medicare Administrative Contractors) will deny separate reporting of 29823 alongside 29827 (rotator cuff repair), 29824 (distal clavicle resection), and 29828 (biceps tenodesis)? In other words, will it remain improper to unbundle 29823 until there is an NCCI Manual update?”    

And CMS responded that the provider will have to go to the MAC to get the answer. So, in essence, CMS relegated its authority to a MAC on an issue that is clearly a CMS national policy guideline because … why? I know it sounds like I am beating this to death, but that is probably because I am. This is not a singular issue; this is a small part of a much larger problem of gross incompetence, poor planning, and a wasteful approach to managing Medicare. 

I know that it is an older study, but in 2004, the Government Accountability Office (GAO) published the results of a review of 34 Medicare carrier call centers to see how accurately they could answer a set of 18 questions frequently asked by providers. Of the 300 test questions asked of the call centers, how many do you think they got right? Eighty percent? Fifty percent? Certainly more than 25 percent, right? Nope. According to the GAO study, the carrier call centers answered the questions correctly only 4 percent of the time. They got 12 of the 300 questions correct. And remember that providers depend on the answer they get from these call centers to ensure that they bill correctly. These call centers handle tens of millions of calls per year, so for every million that come in, they get somewhere between 930,000 and 980,000 answers wrong. No wonder so many providers are so apoplectic over the Medicare system. Imagine calling the IRS to ask whether a certain deduction is permissible and the “expert” on the other end of the line says “yes.” So you take that deduction and then two years later are told it was not, in fact, permissible, and you have to pay it back, along with penalties and interest. The “expert” was wrong, but you are told that it was your responsibility to get this right, not that of the IRS expert. And I give this example from personal experience. Wouldn’t you be mad?

While I am critical of the work that CMS does, I don’t normally hurl insults without having some factual support, so when I use the word “incompetence,” I am doing so with a complete understanding of what it means and how it is applied. In general, incompetence means the inability to do something successfully. I say that a 4-percent success rate, which is a 96-percent failure rate, adequately defines the inability to do something successfully. Waiting almost 20 years for a hearing that, according to statute, shouldn’t take more than a few months? I say that is the inability to so something successfully. Having 60-plus percent of your findings overturned on appeal? The inability to do something successfully. Not being able to update a written policy except once a year, creating conflict, chaos and, confusion? The inability to do something successfully.

This problem has become so big that it overwhelms logic and reason. It has become like a speeding train heading down a steep grade. Apply the brakes and all you get is smoke. Try to change direction and you get derailed.

After working in this industry for some 40 years in many different capacities, at least to me, our industry is starting to look like the Island of Misfit Toys.

I have a friend who thinks that this is all being done on purpose, that it is some grand conspiracy to make such a mess out of the current system that nationalized healthcare starts to look like the only option left.

For me, I tend to follow Hanlon’s razor, one of my favorite eponymous aphorisms. In general, it states the following:  “never attribute to conspiracy that which is adequately explained by incompetence.”

And that’s the world according to Frank.

Many thanks to Grant Huang and Sean Weiss of DoctorsManagement for their contributions to this article.

About the Author:

Frank Cohen is the director of analytics and business intelligence for DoctorsManagement, a Knoxville, Tenn.-based consulting firm. Mr. Cohen specializes in data mining, applied statistics, practice analytics, decision support, and process improvement.

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Frank Cohen

Frank Cohen is the director of analytics and business Intelligence for DoctorsManagement, a Knoxville, Tenn. consulting firm. He specializes in data mining, applied statistics, practice analytics, decision support, and process improvement. He is a member of the RACmonitor editorial board and a popular contributor on Monitor Monday.

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