By: Duane C. Abbey, Ph.D., CFP

Fodder for the RACs can come from many different sources. A general source for possible overpayments involves incomplete, ambiguous, conflicting and/or sometimes incorrect guidance. Regarding claimed overpayments, for some issues significant research of different levels of guidance will be necessary, particularly if appeals are pursued.

For the Medicare program, guidance runs through a sharply defined hierarchy, ranging from the highly concise formal guidance offered at the Social Security Act level on down to the much more verbose, but less authoritative, guidance found in pronouncements from Medicare administrative contractors or various informal sources such as question & answer documents and open-forum teleconferences.

Here is a listing starting with the SSA.

• Social Security Act (SSA)
• Congressional Laws
• United States Code (USC)
• Code of Federal Regulations (CFR)
• Federal Register (FR)
• CMS Manuals
• National Coverage Decisions (NCDs)
• CMS Medicare Learning Network
• Medicare Questions & Answers
• Medicare Open Door Forums
• Medicare Administrative Contractor (MAC) Guidance
• Local Coverage Decisions

In developing arguments and positions relative to possible overpayment cases, the big question is, "what sources can I depend upon?" Not only is it a major question, but the answers can change over time.  For instance, CMS has become increasingly fond of issuing clarifying guidance that actually represents major changes in guidance.

Turn of a Phrase

You may see wording from CMS that reads like so: "It is our policy, and has always been our policy, that ...". This places you in a precarious position. You may have been following the old guidance, but now CMS appears to be implementing a policy change retroactively.  While CMS is not supposed to be able to do this,¹ CMS will claim that the guidance is simply clarifying, not changing.

As an example, consider critical care services under APCs. There are two critical care CPT codes:

• • 99291 - Critical Care - First 30-75 Minutes
  • 99292 - Critical Care - Each Additional 30 Minutes

When APCs were implemented, CMS decided to make a single payment for any critical care service, paying only for 99291 and not for 99292. Thus, for APCs, time units were not relevant. Payment would be made for less than 30 minutes as long as critical care was provided.² For 2007, however, CMS indicated that timing did apply: that is, critical care must be provided for at least the minimum 30 minutes. And not only did CMS change the interpretation, they stated:

"In fact, as stated by CMS in the 2007 final OPPS rule, the 30-minute minimum requirement has always applied and will continue to apply for CY 2007 and beyond."³

Fortunately, this particular issue is far back enough that it should not be a RAC issue as such. However, this provides a very good example as to how you may be relying on guidance from CMS to code and bill in a particular fashion, only to be told later that you misinterpreted CMS's guidance. Most likely the RACs will jump on situations like this with gusto.⁴

Blood Transfusions

Another example of ambiguous guidance exists with blood transfusions. Very welcomed guidance was provided by CMS through Transmittal 496, issued March 4, 2005, which updated Medicare Publication 100-04: the Medicare Claims Processing Manual. Guidance for blood transfusions included the following statement:

"Transfusion services codes are billed on a per service basis, and not by the number of units of blood product transfused. For payment, a blood product HCPCS code is required when billing a transfusion service code. A transfusion APC will be paid to the OPPS provider for transfusing blood products once per day, regardless of the number of units or different types of blood products transfused."

At issue is the proper interpretation of the phrase "on a per service basis." While most blood transfusion occurs during a single service or session, there are circumstances in which a patient may present two different times during the day (e.g., once in the morning and once in the afternoon) to have a unit of blood transfused each time. The question then becomes, is it appropriate to use the "-76" or "-77" modifier⁵ in this type of case?