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Reimbursement mavens are taking a close look at a recent court challenge that gives physicians who do not accept Medicare’s rates as full payment the right to challenge government payment polices. This does not mean you can now force the Health Care Financing Administration (HCFA) to pay you more simply because you don’t like its reimbursement rates. But the 2nd U.S. Circuit Court of Appeals in New York has said doctors have a constitutional right to dispute agency policies they feel don’t follow the Medicare law.
Physicians who do not accept Medicare’s rates as full payment are called nonparticipating physicians. Any Medicare claims they submit are labeled nonassigned claims.
"This is a new vehicle for seeking additional payments," says Craig A. Landy, a partner at Landy & Seymour law firm in New York City, and lawyer for the physicians who brought the case. "If you are a doctor who does not take assignment on every claim and you are challenging HCFA policy seeking additional benefits, you may be entitled to full administrative and judicial review."
The case — Monica Furlong et al. v. Donna E. Shalala — involved four nonparticipating anesthesiologists who felt they were entitled to more money for concurrent invasive monitoring of Medicare patients during surgery. The anesthesiologists challenged the dollar amount Medicare wanted to give them and HCFA’s use of a "one-and-one-half" rule. This rule says if a doctor performs more than one surgical procedure on the same patient on the same day, HCFA will pay:
The rule, adopted in 1991, applies to surgical, not medical, procedures.
Before 1994, carriers classified concurrent invasive monitoring as a surgical procedure. Since then, HCFA "apparently indicated through changes in the Medicare physician fee schedule database that such monitoring was medical, rather than surgical in nature," the opinion noted.
The anesthesiologists argued they should have not have been paid under the lesser "one-and-one-half" rule for procedures they participated in during 1992 and 1993. The court found that the doctors could not challenge the amount they were paid. However, it said they could challenge the methodology HCFA used when setting the "one-and-one-half" surgical rule.
Exactly what this decision means to practitioners’ ability to challenge HCFA remains to be seen. "We’ll have to wait to see just how far the courts are willing to go with giving nonparticipating physicians the right to challenge Medicare reimbursement rates," says Landy.