The Final 2019 MPFS: What Radiology Providers Need to Know

By Adrienne Dresevic, Esq. and Isaac Sternheim, Esq. of The Health Law Partners, P.C.

By Adrienne Dresevic, Esq. and Isaac Sternheim, Esq. of The Health Law Partners, P.C.

On November 1, 2018, the Centers for Medicare and Medicaid Services (CMS) released the 2019 Final Medicare Physician Fee Schedule (the Final Rule) which addresses changes to the Medicare physician fee schedule and other Medicare Part B policies. This article will highlight some of the important provisions for radiology providers.

Background: payment for medical services, including diagnostic tests, are paid under the Physician Fee Schedule (PFS). Relative Value Units (RVUs) are applied to each service for physician work, practice expense and malpractice, and become the payment rates through the application of a conversion factor.

Estimated Impact to Radiology          

As a starting point, CMS estimates a conversion factor of $36.0391, an overall slight increase from the 2018 conversion factor of $35.9996.

CMS estimates that the Final Rule will have an impact as follows:

1. Radiology is expected to be neutral (0% change);
2. Interventional radiology is expected to have a 2% increase;
3. Nuclear medicine is expected to have a 1% decrease;
4. Radiation oncology/therapy may see an overall impact of a 1% decrease; and
5. Diagnostic testing facilities are expected to have a 5% decrease.

Physician Supervision Requirements for Radiologist Assistants

Background: there are various levels of physician supervision under which a radiologist assistant may furnish diagnostic X-ray and other diagnostic tests payable under the PFS. These include general, direct or personal physician supervision.

CMS will be revising the supervision requirements so that diagnostic tests performed by a radiologist assistant or a radiology practitioner assistant may be furnished under the direct supervision of a physician (rather than personal supervision) to the extent permitted by applicable state law and scope of practice regulations. CMS determined that the personal supervision requirement applicable to some tests is overly restrictive and did not allow for the full use of radiology assistants and radiology practitioner assistants and that their use will increase the efficiency of care. It should be noted that the revised regulation would not change the level of physician supervision required for tests that currently only require a general level of physician supervision.

Update of Market-Based Supply and Equipment Pricing

Background: practice expense (PE) is the portion of the resources used in furnishing a service that reflects the general categories of expenses, such as office rent and personnel wages, but excluding malpractice expenses. CMS develops PE RVUs for each service by considering the direct and indirect resources expended.

As the PFS direct PE inputs for supply and equipment pricing were last systematically developed back in 2004-2005, CMS (together with a contractor) conducted a market research study. Resources and methodologies used in the study included field surveys, aggregate databases, vendor resources, market scans, market analysis, physician substantiation and statistical analysis to estimate and validate current prices for equipment and supplies. Click here to access the report with updated pricing recommendations for over 2,000 supplies and equipment currently used as direct PE inputs.

CMS has proposed the adoption of the updated direct PE input prices for supplies and equipment as recommended in the report to be implemented and phased-in over a four-year period commencing in 2019 so that the values transition smoothly from the current prices to the final updated prices in 2022.

Appropriate Use Criteria for Advanced Diagnostic Imaging

Background: CMS is tasked with establishing a program to promote the use of appropriate use criteria (AUC) for advanced diagnostic imaging services. AUC is an advanced form of clinical guidelines to assist clinicians in order to determine what imaging should be performed based upon certain criteria such as the individual patient, scientific evidence, the risk and benefit of such testing and available healthcare resources.

The 2016 PFS final rule addressed the initial component of the new AUC program, specifying applicable AUC. The 2017 PFS final rule addressed the second component of this program, the specification of qualified clinical decision support mechanisms (CDSM). The 2018 PFS final rule addressed the third component of this program, the consultation and reporting requirements. The 2018 PFS final rule also established January 1, 2020 as the start date of the AUC program.

CMS is in the process of finalizing the AUC significant hardship exception process that is independent from other Medicare programs. In connection with this process and in order to minimize any burdens involved in seeking an exception, CMS proposed to allow ordering professionals to self-attest when experiencing a significant hardship at the time of placing an applicable order together with supporting documentation. Extreme hardships proposed include insufficient internet access, electronic health record or CDSM vendor issues and extreme and uncontrollable circumstances.

In addition, CMS is finalizing a policy that would allow the ordering professional to delegate the performance of an AUC consultation with a CDSM to clinical staff under the direction of the ordering professional as long as the clinical staff has sufficient clinical knowledge to interact with the CDSM and communicate with the ordering professional.

CMS is also adding independent diagnostic testing facilities to the definition of “applicable setting” under the AUC program so that it be more consistently applied to outpatient settings.

Conclusion

The Final Rule was officially published on November 23, 2018 and can be accessed by clicking here.

For more information on issues relating to this article, please contact Adrienne Dresevic, Esq. at (248) 996-8510 or by email at adresevic@thehlp.com.

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Adrienne Dresevic, Esq. is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic also serves as the ABA Health Law Section’s Co-Chair of the Physicians Legal Issues Conference Committee, Vice Chair of the Programs Committee (Executive Leadership), and Vice Chair of the Sponsorship Committee. She is licensed to practice law in Michigan and New York, and can be contacted at adresevic@thehlp.com. 

Isaac S. Sternheim is an associate attorney at The Health Law Partners, P.C. Mr. Sternheim concentrates his practice on regulatory and transactional matters including federal (Stark) and state self-referral laws, federal and state anti-kickback laws, reimbursement regulations, entity formation and healthcare-related transactional agreements. Mr. Sternheim’s experience includes representing healthcare entities and individuals in contract and shareholder disputes.

The authors are members of The Health Law Partners, P.C. and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.