Non-covered Services Contract Fee for Medicare Patients - examples on the web and other suggestions

[Guest guest]

I should add this about the previous post - I'm talking about a contract and fee for Non-covered services for Medicare patients -- but the physician remains Opted IN for Medicare.

 

So the physician needs a contract that avoids Federal Charges of fraud for charging the patient for COVERED services.

 

The discussion is primarily about Medicare and Non-covered services - not the private insurers.

 

I'm not quite sure the credit idea mentioned below works for the Medicare situation.

The preventive care net that medicare has thrown would certainly seem to cover an awful lot - not sure there is much less for an annual fee to be covering.

 

 

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This article covers exactly the situation my colleague was wondering about -- if he can no longer charge a direct pay fee-for-service for the annual exam for Medicare Patients (and has to take the presumed lower fee structure for an annual exam that Medicare will implement in 2011). What other options are there to maintain the current revenues?

The concern for those already charging a fee for an annual exam or other " non-covered " services -- how does the covered annual wellness visit impact their practice...

SUGGESTED MODIFICATIONS TO FEE FOR NON-COVERED SERVICESCONCIERGE PRACTICES AS A RESULT OF NEW HEALTHCARE ACT

https://www.aapp.org/phpages/wp-content/uploads/2010/02/Entire-Article.pdf

 

The essential problem with the language of the Act and the proposed Rules is the phrase “furnishing of personalized health advice” highlighted above. If we are searching for a recognized and defined wellness service that is not included in the new 3P Services, we would have to be searching for something that does not constitute the “furnishing of personalized health advice.” Is there such a thing? Can there be any annual wellness services rendered to a Medicare patient that does NOT include such medical advice?

Below are examples from the article -- giving ideas on past theory on why one could charge a fee for the annual exam and what is happening now that this annual exam is covered.

The conclusion that ANY annual wellness service rendered to a Medicare patient would by necessity include “personalized health advice” means that no annual wellness service could be rendered that is not clearly covered by Medicare. And if that is true, then there is no wellness service that could be paid for by the annual concierge fee.

In light of the items included in the list of 3P Services, particularly the “furnishing of personalized health advice,” it will be risky to assume that a wellness-type service offered to a Medicare patient will clearly be a non-covered medical service. It is a fair assumption to make that CMS will favor a presumption that if a service is “arguably” a covered service, then it will be for our purposes. One need look no further than the Inspector General’s March 31, 2004, Fraud Alert for evidence of this.

The Alert dealt with a doctor in Minneapolis who had accepted $600 per year from patients in exchange for certain services, three of which were mentioned in the Alert: “coordination of care with other providers”; “a comprehensive assessment and plan for optimum health”; and “extra time” spent with the patient. The Alert, without telling us which of the three was a covered service, simply said that “at least some of these contracted services were already covered and reimbursable by Medicare.”

While the Alert did not make complete sense, one concept emerged: if a service is covered in some circumstances, then for purposes of concierge physician services it will be deemed covered in all circumstances. For instance, while Medicare does not pay simply for spending extra time with patients, it does cover it in certain circumstances (CPT codes 99354-99359 cover extending “prolonged services”)  to patients. (See

http://www.cms.gov/ContractorLearningResources/downloads/JA5972.pdf  for a description of these CPT codes.)

The short lesson here is that it is difficult, and dangerous, to conclude that after December 2010, there will be a wellness service out there that would not, at least in some cases, fall within the definition of 3P Services, particularly “furnishing of personal health advice.” We are in untested waters, and a cautious approach would be the prudent one.

( The Moving Target. While it may be possible in 2011 to identify a certain wellness service that is not covered by Medicare (that is, not covered by the 3P Services) to justify an annual concierge payment, there is no assurance that that situation will endure. Here is what I said in my previous article about the possible moving target:

Section 4105 of the Act is entitled " Evidence-Based Coverage of Preventive Services in Medicare. " Section 4105(a) provides that Section 1834 of the Social Security Act is amended by adding the following paragraph (n):

(n) AUTHORITY TO MODIFY OR ELIMINATE COVERAGE OF CERTAIN PREVENTIVE SERVICES.—Notwithstanding any other provision of this title, effective beginning on January 1, 201, if the Secretary determines appropriate, the Secretary may

(1) modify

(A) the coverage of any preventive service described in subparagraph

(A) of section 1861(ddd)(3) to the extent that such modification is consistent with the recommendations of the United States Preventive Services Task Force; and

( the services included in the initial preventive physical examination described in sub paragraph ( of such section; and

(2) provide that no payment shall be made under this title for a preventive service described in subparagraph (A) of such section that has not received a grade of A, B, C, or I by such Task Force.

We now have a situation where it is impossible to tell what services the Task Force may add to those that are covered or not covered by Medicare. What is not covered one day may be covered the next, and it will be virtually impossible for FCNS practices to keep pace. A fundamental restructuring of these practices will have to occur.

And the proposed Rules carry this forward by providing that the services will include “any other element determined appropriate through the National Coverage Determination process.” See proposed 42 CFR 410.15. And see page 319 of the proposed Rules, where it is said that:

In addition, to facilitate future consideration of coverage of additional elements in the definition of…annual wellness visits in Section 410.15(a), we are proposing that the determination of other required elements for those purposes will be made through the National Coverage Determination (NCD) process. The NCD process is evidenced based, transparent and furnishes the opportunity for public comment, and is describe in sections 1862(1) of the Act.

© Form Cannot Trump Substance. When one deals with Medicare, substance needs to rule. A physician just cannot “say” he is offering a wellness service that is of little or no consequence and trip merrily along charging an annual fee for what he has been doing all along. What you say you are going to do, you must do. It may not be a complete answer to say that FNCS practices, in face of changing Medicare coverage, can simply continue with an effort to chase services that are not covered by Medicare and charge an annual fee for them. That is a bit shallow, and it is somewhat disingenuous for a physician to say that she is all about wellness and prevention when she keeps changing what she is providing to make sure it is not covered by Medicare.

III. My Suggestion – The “Credit”

My suggestion as to how to deal with this situation is, in essence, to abandon any effort to suggest that the annual fee is being charged for a service that is not covered by Medicare.

Instead, perhaps it is better to provide expressly that the annual fee paid by the Medicare patient does not duplicate the amount billable to Medicare for a particular service. Here is an example of this concept in the form of possible contract language:

The Services provided to You in exchange for the annual fee are as follows:

Wellness Evaluation. You will receive an annual “physical and wellness examinationand evaluation” (“Wellness Evaluation”) to be provided by the Physician at no additional charge. As a result of the Wellness Evaluation, the Physician will develop for You a written health, exercise, and dietary health plan for You to follow (“Your Individual Plan”). As used in this Agreement, the term “Wellness Evaluation” means a physical examination and wellness evaluation provided to You not in connection with any illness or injury.

The Wellness Evaluation will not include the one-time “Initial Preventive Physical Examination” (“IPPE”) available to Medicare patients during their first year of Medicare coverage. This is a separate examination and will be billed to Medicare (except for co-pays and deductibles, for which You will be responsible). To accommodate this Medicare coverage, for the year in which You are eligible for the IPPE, You will be given a credit against your annual fee equal to the amount billable to Medicare for such IPPE.

Your Individual Plan will likely include services included in the “personalized prevention plan services” (the “PPPS”) defined in Section 1861(s)(FF) of the Social Security Act and in 42 CFR Section 410.15 as being provided to Medicare patients. If You are a Medicare patient, the annual fee will be reduced by the amount payable from time to time by Medicare under HCPCS codes for CY 2011 GXXXA (Annual wellness visit; includes a personalized prevention plan of services (PPPS), first visit) and GXXXB (Annual wellness visit; includes a personalized prevention plan of service (PPPS), subsequent visit) in order to accommodate the Medicare coverage of these PPPS.

Assume, for instance, that our annual fee is $1,600 and that the physician can bill Medicare $300 for the Welcome to Medicare physical. In the year that this physical is given to the patient, that is, the patient’s first year of coverage under Medicare, the Medicare patient only pays $1,300, not $1,600. Although the amount a physician can bill Medicare for the 3P Services is unknown at this time, let’s assume it will be $400. As soon as the concierge patient becomes eligible for Medicare, the annual fee paid by the patient would go down to $1,200. Even if the Medicare patient did not request the 3P Services during the year, the fee would still be reduced, since, in effect, the annual fee paid by the patient would not include services (that is, the 3P Services) that were not requested by the patient and never provided by the physician.

vi

A cautionary remark about what we might call the “qualitative” aspect of this credit suggestion. Assume that a physician performs individual services 1 though 10 for ALL his patients, every year, as part of his annual wellness visit with them.

Each service costs $50, so the total charge to the patient is $500. Assume that CMS defines the 3P Services to include ALL ten of these services. And, finally, let’s assume that Medicare will pay $300 for the 3P Services.

The physician cannot charge an annual fee (say $1,600) for all ten services and charge Medicare patients only $1,300. That won’t work, since the patient is still paying $1,300 for services that are included in 3P Services.

In order for this credit idea to work, the annual fee must still include services OTHER than those that could be deemed 3P Services. For instance, it is pretty clear that a physician can charge for non-medical “amenities,” like 24/7 access, no wait appointments, etc. These are services that could be included in the $1,600.

For those practices who want to continue with the “wellness” approach only, however, the $1,600 is going to have to define a wellness service IN ADDITION to those that already are not now, and likely will not become, 3P Services.

Note that the credit suggestion brings us back to the same position we’re now in – our annual fee is paid for services that are not covered by Medicare. That was our starting point and the basic principle of FNCS practices in the first place, before the advent of the 3P Services.

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i “New Health Care Act Deals Serious Blows to Concierge Medicine,” see http://wnj.com/publications/List.aspx?Industries=4b93a886-a6d2-4b56-a97b-01f1b60a2ebf

ii These practices are based on the premise, now fairly well-established, that a physician may charge a flat fee to a patient for services that are not covered by Medicare. See “Legal Issues Involved in Concierge Medicine,” http://www.wnj.com/concierge_medical_practices_jrm_3_2005/

iii For an explanation of these provisions from another perspective, see the following URL: http://assets.aarp.org/rgcenter/ppi/health-care/fs180-preventive.pdf, where the following is said:

“In addition to the initial exam for new enrollees, starting on January 1, 2011, Medicare will cover an annual wellness visit and accompanying personalized prevention plan for all beneficiaries. The law specifies that the personalized prevention plan be free, with no cost sharing, but the law is not clear on whether the annual visit itself must be free.

Guidelines from the Centers for Medicare & Medicaid Services (CMS) will specify what, if any, cost sharing beneficiaries will have for the annual wellness visit. The free personalized prevention plan includes the following:

- A health risk assessment, for which the Department of Health and Human Services is to develop guidelines;

- An updated medical history;

- A list of current providers providing care;

- A list of prescription medications;

- Height, weight, and blood pressure measurements;

- A screening schedule for appropriate preventive services over the next five to ten years; and

- A list of risk factors the patient faces, along with treatment options for those risks.

“New enrollees may not receive both the Welcome to Medicare exam and the annual wellness visit during their first 12 months of enrollment. The Welcome to Medicare exam is available during the first 12 months of enrollment, and the annual wellness visit is available each year after that.

The two services appear to be similar, though exactly how similar may depend on the guidelines developed for the annual health risk assessment. These guidelines are not due until March 2011.”

iv This did not, of course, apply to the so-called “welcome to Medicare” physical, which Medicare covered.

v There is no magic to an annual fee. Many concierge physicians charge the fee on a biannual basis, quarterly, or even monthly. How the fee is charged is not relevant to the issues discussed in this article.

vi These comments do not include consideration of similar issues faced by physicians dealing with a privately insured patient. If the patient’s private insurance includes coverage for what amounts to the PPPS, then seemingly the same theory should apply – if the patient’s annual fee includes these equivalent services, then the patient should be given a similar credit for whatever the insurance company pays for them.

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http://www.conciergemedicinetoday.com/legal.html

Medical Reform and Private Physician Contracts

By J. Eischen, Jr., Esq. | Source: AAPP.org | September 2010

Whether you consider “Obamacare” a swear word, the arrival of end days, or the beginning of long overdue reform, national health care reform affects private fee physicians. As the scope of Medicare coverage expands to include more preventative care (including more frequent or more extensive physical exams), how can private fee physicians be certain that when they privately charge patients covered by Medicare, they are compliant with federal laws requiring Medicare fee schedule compliance?

The easy (really, the uneasy) answer is that they cannot necessarily know with absolute certainty that their private charges to Medicare-covered patients for preventive care or physical examinations are absolutely neither charging for services covered by Medicare nor charging for services that may be considered “bundled” with covered services. Of course, there is little anyone knows with absolute certainty (death and taxes come to mind), but how can private fee physicians most effectively address this risk?

- Ensure that your physician-patient private fee contract confirms your intent not to charge privately for what a Medicare-covered patient is entitled to receive under the Medicare covered services fee schedules. Your contract should reflect your intent not to violate Medicare billing laws.

- When creating or evaluating your physician-patient contract private fee schedule, or your allocation of medical services to an annual (or quarterly or monthly) “retainer” or fee that you may charge for superior access, evaluate whether you are allocating any medical services potentially covered by Medicare to a private fee or retainer. By attempting to carve out medical services currently or potentially covered by Medicare from your private fee schedule or retainer services menu, you better protect yourself from a possible claim that your private fee or retainer improperly exceeds the Medicare fee schedules. This is not as simple as it sounds (it certainly is not simple), but it is a worthwhile exercise.

- Ponder whether your private fees or retainers should be allocated to services or benefits that are unlikely to represent Medicare covered medical benefits. For example, if your private fee medical practice offers telecommunications/electronic records access or other unique administrative benefits that are not truly a “medical” service, consider whether you can or should allocate certain fees or your retainers toward non-medical services benefits.

- Traditional concierge medical practices often allocate annual retainers to a superior and in-depth annual physical coupled with other preventive care benefits. With Medicare evolving toward more preventive care and more frequent physicals, reconsider if the annual physical is truly what your patient pays for with their retainer payments.

Determining how best to structure a private fee physician-patient contract is by no means a cookie-cutter project. Private fee physicians are implementing diverse and creative methods of creating superior patient experiences in exchange for private fee payments. Some private fee medical practices focus on house calls and personal face-to-face interaction and access. Other private fee medical practices emphasize immediate technological communications access with health records platform access/interactions. Private fee physician practices have access to a growing array of EMR and communications platform, and cutting-edge diagnostic tools. So there is no one method of allocating private fees or retainers to medical or non-medical services. Review what your private fee medical practice offers, and question why you would allocate any medical services potentially covered by Medicare to private fees or retainer payments. Your practice may offer benefits unlikely to deemed covered by Medicare.

Medicare is evolving, and necessarily so. Private fee physicians should consider reforming their fee/retainer schedules. “Obamacare” represents an opportunity for private fee physicians to evolve, and to consider reframing what they sell to patients to better ensure ongoing Medicare compliance. And one more recommendation: while it might go against your grain, consult an attorney to enhance your Medicare compliance and your peace of mind.

J. Eischen, Jr. is an attorney with over 23 years experience handling a wide range of business matters, including medical business planning. His practice, Eischen Law Group, APLC, is located in Cardiff By The Sea, California.

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http://oig.hhs.gov/fraud/PhysicianEducation/02payers.asp

 

If you are a participating or non-participating physician, you may not ask Medicare patients to pay a second time for services for which Medicare has already paid. It is legal to charge patients for services that are not covered by Medicare. However, charging an “access fee” or “administrative fee” that simply allows them to obtain Medicare-covered services from your practice constitutes double billing.  of a Physician Violating an Assignment Agreement by Charging Beneficiaries Extra Fees

A physician paid $107,000 to resolve potential liability for charging patients, including Medicare beneficiaries, an annual fee. In exchange for the fee, the physician offered: (1) an annual physical; (2) same- or next-day appointments; (3) dedicated support personnel; (4) around-the-clock physician availability; (5) prescription facilitation; (6) expedited and coordinated referrals; and (7) other amenities at the physician’s discretion. The physician’s activities allegedly violated the assignment agreement because some of the services outlined in the annual fee were already covered by Medicare.

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Here is a short patient handout for patients when the physician is opted out...

Private Contracts with Doctors and Other Practitioners Who Have Decided Not to Provide Services Through the Medicare Program

     http://www.medicare.gov/Publications/Pubs/pdf/pc.pdf

 

 

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This is from 2004...so it's an ongoing concern... http://www.medscape.com/viewarticle/484540_2

 

Covered, Noncovered or Bundled?

Of course payers take a dim view of charging patients additional fees for services associated with covered benefits. The problem is that many of the services that physicians see as fair game are regarded by payers as " bundled, " or included with the payment made for other services, such as an office visit.

" You can always charge for a noncovered service, unless the health plan considers them to be bundled into a covered service - and this is sometimes moderately metaphysical, " says Alice Gosfield, JD, a health care attorney in Philadelphia and member of the FPM Panel of Consultants. For example, most health plans don't pay for telephone calls, and they do not allow physicians to charge patients for such calls, because the plans consider payment for these calls to be bundled. Refilling prescriptions outside of an office visit is also often bundled, Gosfield says.

The same principle applies for Medicare, says D. , MD, director of the Physicians Regulatory Issues Team at the Centers for Medicare and Medicaid Services (CMS). If the service is unrelated to a service that has been billed to Medicare, the physician may bill the patient. If the service relates to a service that has been billed to Medicare, payment is likely to be included in the practice expense for the primary procedure, so the physician should not bill the patient, says. " The practice expense component of the Medicare physician fee schedule reimburses physicians for administrative and overhead costs, " he says. In March, the Office of Inspector General for the Department of Health and Human Services issued an alert on concierge care that reminded doctors that physicians participating in Medicare " are subject to civil money penalties if they request payment for already covered services from Medicare patients other than the applicable deductible and coinsurance. " The alert cited a recent settlement with an internist who agreed to pay $53,400 to resolve his liability for violating his assignment agreement with Medicare by asking his patients to pay a yearly fee of $600 for services he said were not covered by Medicare. The services included " coordination of care with other providers, " " a comprehensive assessment and plan for optimum health and extra time spent on patient care. " The inspector general charged that many of the services included in the fee were in fact covered by Medicare.

The rules vary from payer to payer, however, and they can be hard to discern. Most health plan contracts don't include a list of covered services, much less information about what services are bundled. The CPT manual provides some clues, but health plans aren't bound to follow CPT to the letter, and many don't.

suggests that where Medicare is concerned, physicians consider whether the service is one physicians have traditionally charged for. " If it's not, then you probably shouldn't charge patients for it without checking with the payer. It might be a bundled service, " he says.

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Fallball is quoted in the article - among other docs on the list.

Here is Alan's Non-covered services handout...

     http://www.highridgefamilypractice.com/PDFs/Practice%20Fees%20Non-Covered%20Services%202010.pdf

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Here is Dr. ' plan...she is opted out of Medicare, I believe.

http://www.mountainviewmd.com/financial.htm

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Article on Access Fees and Risks...from a few years back.

http://medicaleconomics.modernmedicine.com/memag/article/articleDetail.jsp?id=108994

Access fees: Worth the risk? What to charge?

Jul 23, 2004

Here is a particular section on Medicare...

Does Medicare bar administrative fees?

CMS has long prohibited participating doctors from billing Medicare patients for covered services, including telephone consults and refills. In March, the Office of Inspector General in the Department of Health and Human Services took aim at concierge practices. The government said that a Minneapolis physician had violated Medicare rules by charging seniors $600 a year in exchange for comprehensive physicals, coordination of care, extra time, and other services. While this is far in excess of administrative fees, the OIG action raised the possibility that nonconcierge practices could also be targeted. According to Washington, DC, attorney Rob Falk, doctors should think twice before charging access fees to Medicare patients. Another healthcare attorney, L. Blau, agrees, pointing out that Medicare's RBRVS fee schedule includes a component for administrative costs. So even though certain services might not be spelled out in Medicare contracts, says the Boston attorney, " it's pretty clear that Medicare intends to cover practice overhead through the practice expense component. "

 

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This article is from 2006...

http://www.aafp.org/online/etc/medialib/aafp_org/documents/policy/private/healthplans/payment/retainerfee.Par.0001.File.tmp/Retainer%20Practices%20discussion%20paper.doc

Physicians can always charge for a non-covered service, unless the health plan considers them to be bundled into a covered service. For example, most health plans don't pay for telephone calls or refilling prescriptions outside of an office visit, because the plans consider payment for these services to be bundled. Some examples of successfully assessing patients for non-covered services are found below4.

 

WHAT THEY'RE CHARGING FOR  

School forms

Camp forms

Sports participation forms

Disability forms

FMLA forms

Life insurance forms

Paperwork for patient assistance programs

Referrals

Phone consults initiated by patients

E-mail consults

Refills or prescription changes handled outside of an office visit

Copies of medical records

Preauthorizations

No-shows

 

 

Leigh Ann Backer, Should You Charge Your Patients for " Free " Services?, Family Practice Management, July/Aug 2004, http://www.aafp.org/fpm/20040700/43shou.html.

 

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http://oig.hhs.gov/fraud/docs/alertsandbulletins/2004/FA033104AssignViolationI.pdf

 

For Immediate Release Washington, D. C. 20201 March 31, 2004

OIG ALERTS PHYSICIANS ABOUT ADDED CHARGES FOR COVERED SERVICES

Extra Contractual Charges Beyond Medicare’s Deductible, Coinsurance: A Potential Assignment Violation

Acting Principal Deputy IG Dara Corrigan today reminds Medicare participating physicians of the potential liabilities posed by billing Medicare patients for services that are already covered by Medicare.

Medicare participating providers can charge Medicare beneficiaries extra for items and services that are not covered by Medicare.

Participating providers may also, of course, charge beneficiaries for any Medicare deductibles and coinsurance without violating the terms of their assignment agreements. But when participating providers request any other payment for covered services from Medicare patients they are liable for substantial penalties and exclusion from Medicare and other Federal health care programs.

" We are hearing reports about physicians asking patients to pay additional fees, and we believe this is an ideal time to remind physicians and Medicare patients about this potential liability. Charging extra fees for already covered services abuses the trust of Medicare patients by making them pay again for services already paid for by Medicare, " Corrigan said.

For example, the OIG recently alleged that a physician violated his assignment agreement when he presented to his patients -- including Medicare beneficiaries – a " Personal Health Care Medical Care Contract " asking patients to pay an annual fee of $600.

While the physician characterized the services to be provided under the contract as " not covered " by Medicare, the OIG alleged that at least some of these contracted services were already covered and reimbursable by Medicare. Among other services offered under this contract were the " coordination of care with other providers, " " a comprehensive assessment and plan for optimum health, " and " extra time " spent on patient care. OIG alleged that based on the specific facts and circumstances of this case, at least some of these contracted services were already covered and reimbursable by Medicare.

Therefore, OIG alleged that each contract presented to this physician’s Medicare patients constituted a request for payment for already covered services, other than the coinsurance and deductible, and was therefore a violation of the physician’s assignment agreement.

In order to resolve these allegations, the physician agreed to pay a settlement amount to OIG, and to stop offering these contracts to his patients.

" If participating physicians decide they want to charge patients additional fees they should be mindful that they are subject to civil money penalties if they request any payment for already covered services from Medicare patients other than the applicable deductible and coinsurance, " Corrigan said.

Note: A participating provider is a provider of Medicare covered items and services who agrees to accept the Medicare-approved charge for all covered services to Medicare patients. A participating provider " accepts assignment " for all Medicare-payable services. Non-participating providers may also be subject to penalties and exclusion for overcharging beneficiaries for covered services. This is true whether the provider accepts assignment for a given service or does not, in which case the provider’s charge is limited to the " limiting charge. "

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Locke, MD