Medicare pays surgeons and other specialists a single fee, also known as a global payment, when they perform major or minor operations. This single fee covers the costs of the operation plus related care before and after an operation within a 10- or 90-day timeframe. The Centers for Medicare & Medicaid Services (CMS) establishes these global payments, including reimbursement for both the procedure and payment for postoperative follow-up visits, which are considered evaluation and management (E/M) visits. Postoperative services include follow-up visits in the hospital related to recovery from the operation; postoperative pain management; local incision care; removal of sutures, staples, lines, wires, tubes, drains, casts, and splints; and other services.
In the calendar year (CY) 2020 Medicare Physician Fee Schedule (PFS) proposed rule published August 14, CMS proposes to adopt new E/M codes and to increase the values of most of the new standalone office/outpatient E/M codes. However, CMS has not proposed to apply the payment adjustment to the E/M portion of the global codes. Arbitrarily adjusting some E/Ms but not others disrupts the relativity within the fee schedule and creates specialty payment differentials, which conflicts with current law.
The American College of Surgeons (ACS) opposes this CMS proposal and maintains that if CMS applies the E/M adjustments to standalone office visit E/M codes, then such adjustments should also be made to the E/M component of the global codes. It is imperative that CMS take this crucial step because to avoid disrupting the relativity between codes across the Medicare physician fee schedule. Changing the values for some E/M services but not for others runs counter to the relativity mandated in the Omnibus Budget Reconciliation Act (OBRA) of 1989 (P.L. 101-239), which was implemented in 1992 and has been refined over the last 27 years. Since the inception of the fee schedule, E/M codes have been revalued three times—in 1997, in 2007, and in 2011. Each time the payments for new and established office visits were increased, CMS also adjusted the bundled payments to account for the increased values for the E/M portion of the global codes.
Not only would the CMS proposal disrupt the relativity in the fee schedule, but the failure to apply the adjustment to the E/M component of the global surgical code would create specialty payment differentials. The Medicare statute specifically prohibits CMS from paying physicians differently for the same work and states that the “Secretary may not vary the… number of relative value units for a physicians’ service based on whether the physician furnishing the service is a specialist or based on the type of specialty of the physician.” Failing to adjust the global codes is equivalent to paying some physicians less for providing the same E/M services.
CMS has indicated that the proposed rule does not apply the increased E/M values to global codes because section 523(a) of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act (MACRA) requires CMS to collect data on global codes and improve the accuracy of global codes, as appropriate, based on these or other available data. Notwithstanding this ongoing data collection project, nothing in Section 523(a) of MACRA prevents CMS from adjusting the global codes. In fact, the rule of construction specifically outlines that the Secretary is not precluded from revaluing misvalued codes for specific surgical services or assigning values to new or revised codes for surgical services.
ACS advocacy efforts
Since the CMS proposed rule was released, the ACS has been engaged in strong advocacy efforts with the goal of changing the final rule. In addition to submitting comments to CMS, the ACS led a specialty coalition letter to CMS, signed by 53 organizations, opposing the misguided proposal. The strength in numbers on the opposition letter helped to raise awareness and gain the attention of key congressional champions.
Recognizing the significant impact this proposal would have on surgical care, longstanding physician congressional champions Reps. Ami Bera, MD (D-CA), and Larry Bucshon, MD, FACS (R-IN), agreed to lead a congressional sign-on letter to CMS stating their opposition to the arbitrary way in which CMS intends to apply the E/M adjustments. Before the comment period ended, 25 members of Congress sent the letter to CMS, stating that if the agency finalizes its proposal to adjust the office/outpatient E/M code values, then the agency must also apply these updated values to the global codes.
Building on the momentum of the coalition and congressional letters to CMS, the ACS led an October meeting of CMS staff and surgical coalition colleagues to further discuss why the proposal is in violation of the law. As CMS works to finalize the rule, the ACS remains engaged in dialogue with CMS and congressional leaders on this issue. For more information on the congressional sign-on letter, contact Carrie Zlatos, ACS Senior Congressional Lobbyist, at czlatos@facs.org.
For more information on the CMS proposed rule, contact regulatory@facs.org.
