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CMS Proposes One Rule & Withdraws Another

The Centers for Medicare and Medicaid Services proposed a rule in the July 12 Federal Register that would require ambulance staff to sign a statement during transport if a Medicare beneficiary is mentally or physically unable to sign a claim form and has no representative available to do so. The proposal appears as part of the proposed Physician Fee Schedule Rule, which also includes a proposal that CMS announce the annual Ambulance Inflation Factor on the CMS Web site by mid-July each year, instead of waiting until each November to publish the AIF in the Federal Register.

EMS Insider legal columnist Mike Scarano noted that although CMS proposed the signature change to„"fix" a problem experienced by emergency transporters, "it does not appear this 'fix' does anything to help and may even add to the [EMS] provider's paperwork" and "decrease flexibility." He notes that it would require ambulance personnel to do extra paperwork while in transit, including documenting the date and time the beneficiary was transported and the name and location of the receiving facility. It would also require them to obtain "a signed contemporaneous statement from the facility that received that beneficiary, which documents the name of the facility, and the time and date the beneficiary was received."„

Comments must be submitted to CMS by Aug. 31, and Scarano said, "Providers will no doubt want to comment loud and clear on this one."

Federal law prevents health-care entities from billing Medicare "substantially in excess of usual charges," and on Sept. 15, 2003, the CMS Office of Inspector General published a notice in the Federal Register proposing a definition of "usual charges" and establishing benchmarks for determining what is considered "substantially in excess" of usual charges.„

However, on June 18 of this year, the OIG published another notice in the Federal Register withdrawing that proposed rule. The OIG said it would continue to evaluate discounts on a case-by-case basis.„

"I do not expect the OIG will agree to produce any hard line in the near future that you can rely on when giving discounts," said attorney David Werfel, the American Ambulance Association's Medicare consultant. "That leaves you with no clear line, and understandably, a major concern when trying to give a discount to a facility."

EMS Insider legal columnist Doug Wolfberg noted that, "Discounting remains a significant concern under the federal anti-kickback statute, and withdrawal of the proposed rule does not mean open season on discounting. The OIG has clearly said that no level of discount is permissible where the intent is to steer Medicare patients."

Also on June 18, the OIG released a statement saying it would not release a final rule on a Feb. 2, 2004, proposal on discounts to indigent patients. "It remains OIG's enforcement policy that, when calculating their 'usual charges'Ú individuals and entities do not need to consider free or substantially reduced charges to uninsured patients or underinsured patients who are self-paying patients." Although the proposed rule was aimed at hospitals, Wolfberg said it -- and the OIG's position -- applies to ambulance services as well.„

"The upshot is that there is no hard and fast way to calculate 'usual and customary' and what is 'substantially in excess' of that, but you are still allowed to discount to the indigent," he said.„

Find the July 12 Federal Register notice at„http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/07-3274.htm.

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