APA Urges CMS to Rethink Medicare Rule Changes

APA has filed comments on two recently proposed rules by the Centers for Medicare and Medicaid Services (CMS).

One proposed rule affects privacy of physician information; the other urges CMS to hold contractors and subcontractors in certain Medicare programs accountable for following requirements aimed at ensuring that the programs work for the maximum benefit of beneficiaries.

The first rule would allow CMS to disclose sensitive data about physicians without physician consent or knowledge about how the data were being used or by whom; it could also prevent physicians from correcting records that are erroneous, including Medicare-fraud and other investigative records, and it would impede physicians' defense in investigations, according to APA.

The four record-keeping systems that the federal government proposes to exempt from protections under the Privacy Act are the Automated Survey Processing Environment Complaints/Incidents Tracking System (ACTS), the Health Insurance Portability and Accountability Act Information Tracking System (HITS), the Organ Procurement Organizations System (OPOS), and the Fraud Investigation Database (FID).

ACTS is a Windows-based program whose primar y purpose is to track and process complaints and incidents reported against health care facilities regulated by CMS and state agencies. HITS is an electronic repository of results of investigations for determining whether HIPAA violations have occurred as charged in a complaint and referring them to law enforcement entities as necessary. OPOS is a Windows-based program whose purpose is to track and process complaints reported against organ procurement organizations. The FID system contains the name, work address, work phone number, Social Security number, provider identification number, and other identifying demographics of individuals alleged to have violated provisions of the Social Security Act related to Medicare, Medicaid, HMO/managed care, and the State Children's Health Insurance Program.

In a notice published in the May 25 Federal Register, CMS stated that the exemptions are necessary to protect the integrity of investigations. But APA believes the proposed rule is unfair to physicians.

“There are many troubling implications to this proposed rule, which substantially contravenes existing law and sound public policy, including CMS's own stringent policies against abridging Privacy Act rights, except for compelling reasons,” wrote APA Medical Director James H. Scully Jr., M.D., in comments submitted to CMS. “The proposed exemption would allow disclosure of reputation-damaging records, even if they are erroneous. Losing these Privacy Act protections, especially for accessing and correcting agency records, would prevent physicians from adequately defending themselves from unwarranted complaints and investigations.”

In response to the second proposed rule, APA is urging CMS to hold contractors and subcontractors of the Medicare Advantage and Medicare Part D prescription drug plans accountable for complying with programmatic and data-reporting requirements to ensure that the programs provide beneficiaries with the benefits to which they are entitled.

APA's comments were in response to a proposed federal rule that CMS announced on May 25 concerning revisions to Medicare Advantage and Part D drug-benefit contract determinations, appeals, and intermediate sanctions processes. The comments were contained in a letter by Scully.

“The program compliance control that CMS can exert on subcontractors through [Medicare Advantage and Part D prescription drug plans] is crucial to protecting beneficiaries and ensuring consistency across plans,” he wrote.

Since the beginning of the Part D program in January 2006, psychiatric patients have experienced ongoing problems accessing necessary medications, sometimes resulting in serious health outcomes (Psychiatric News, May 18 and July 20).

“CMS's proposed regulations should also be revised to require Medicare Advantage plans and Part D plan sponsors to affirmatively report standardized Part D information on a regular basis to CMS from their own books and those of their subcontractors,” he continued. “CMS should hold the principal contractors accountable for providing these reports. As with other program elements, appropriate sanctions should also be instituted for noncompliance with reporting requirements.”

APA's comments on “Exemption of Certain Systems of Records Under the Privacy Act” can be accessed at<www.psych.org/members/advocacy_policy/reg_comments/regulatory_comments.cfm>. TheFederal Registernotice is posted at<http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-10143.htm>.

APA's comments on “Revisions, Medicare Advantage, and Part D Prescription Drug Contract Determinations, Appeals, and Intermediate Sanctions” can be accessed at<www.psych.org/members/advocacy_policy/reg_comments/regulatory_comments.cfm>. TheFederal Registernotice is posted at<http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/07-2579.htm>.▪