Testimony in Opposition to Proposed Changes to Masshealth Regulations, 130 CMR 433.000

The Massachusetts Medical Society appreciates the opportunity to provide comment regarding the proposed changes to the MassHealth Provider Manual Series (130 CMR 433.000). Specifically, the Medical Society wishes to share concern with the proposed changes to the Certified Nurse Practitioner Services and the Physician Assistant billing regulations, each contained in Section 433.433.

The Medical Society has long supported team-based care that utilizes many allied health professionals, including certified nurse practitioners (CNPs) and physician assistants (PAs). The Medical Society supports the intent of these regulations as they relate to nurse practitioners, which require compliance with all existing scope of practice laws and regulations, but which allow the CNP to choose to bill MassHealth via the “independent provider” route, as outlined in 433.433(C), or via the “nonidependent certified nurse practitioner” route, as outlined in Section 433.433(E). However, the Medical Society has concern about some of the details of these regulations, as proposed.

First, there appears to be an inconsistency between 433.433(C) and 433.433(E). In 433.433(C), the regulations indicate that certified nurse practitioners may choose to enroll as an independent certified nurse practitioner, if they meet the requirements as laid out in the subsections 1 and 2 of the section. Section (E) of 433.433 then indicates, however, that nonindependent certified nurse practitioners are those who do not meet the requirements of 433.433(C), which does not acknowledge CNPs who meet the requirements of Section (C) but choose not to enroll as independent nurse practitioner, as is their right per the language of Section (C). The Medical Society thus urges the striking of the language “who does not meet the requirements of 130 CMR 433.433(C)” to clarify that all qualified CNPs have the choice to bill as independent or nonindependent CNPs. The Medical Society is unclear about the final sentence of Section (E) which references the application of this paragraph to physicians who are not practicing as professional corporation or not as a member of a group practice. The Medical Society does not understand the relevance of each of these factors to the billing policy and regulation.

In sum, the Medical Society urges flexibility on the part of the care team to determine if it is in their best interest to have certified nurse practitioners bill independently or through the physician, so that they can then use the various billing options, including incident-to billing using the SA modifier. 

Lastly, while updating the regulations to no longer reference outdated collaboration agreements makes sense, the Medical Society wishes to remind the agency that CNPs are still required to have prescribing guidelines mutually developed with a physician. These guideline requirements should be referenced in these regulations.

The Medical Society also wishes to comment on the reimbursement of physician assistant services. While we do not have issue with the changes proposed in these regulations, we do have concern about these regulations as they relate to the proposed changes to EOHHS regulations, 101 CMR 317.00. The EOHHS regulations (101 CMR 317.04(3)) eliminate the “HN Modifier” used for service codes billed by a physician which were performed by a physician assistant employed by the physician or group practice.

Incident-to billing, that is, the practice of billing select services by health care teams members such as physician assistants under the physicians NPI, appropriately reflects the complexity of team-based care. While physician assistants may provide the bulk of the care after initial service by the physician, the physician retains a supervisory and consultative function to the clinician and to the patient. These are tangible, important functions to ensure optimal quality of care for patients. These tasks carried out by the physicians include in-person consultation with the clinician and/or the patient, retrospective chart review or case discussion, and other quality assurance activities. These practices by physicians are particularly important to ensuring quality of care of pediatric patients or patients with complex medical issues- two key patient populations for the MassHealth program. Physicians also spend time assisting in the medication management of physician assistants in MA, especially since PAs are statutorily required to prescribe pursuant to guidelines mutually developed with a physician. It is essential that incident-to billing, which is designed to capture the entire team-based care episode, be retained to promote these best practices. Additionally, incident-to billing is not reserved solely for the office setting: physicians often utilize the bill code for shared office visits or for instances in which a physician provides care in an emergency room. 

The proposed changes are further troubling as they would part from Medicare’s longstanding and widely recognized recognition of incident-to billing. With the ever-complicating nature of billing and coding, this only further perpetuates the problem of inconsistent policies between payers. 

MassHealth funding levels already create strain on many physician practices. Eliminating incident-to billing would further exacerbate the reimbursement issue: not only would physicians be under-reimbursed for the level of care that they directly provide and bill for, but they would also no longer be compensated for all of the supervisory and consultative tasks that they undertake when care is provided by physicians assistants. This 15% reduction that would occur if indecent-to billing is prohibited could reduce the supervisory or consultative safeguards that many physicians implement in their offices, or could further discourage participation as MassHealth providers. Furthermore, this could undermine the fiscal soundness of physician practices which could lead to access to care issues.

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