[Federal Register Volume 63, Number 78 (Thursday, April 23, 1998)]
[Rules and Regulations]
[Pages 20110-20131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10591]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Parts 410, 417, 424, and 482
[HCFA-3706-F]
RIN 0938-AE99
Medicare Program; Scope of Medicare Benefits and Application of
the Outpatient Mental Health Treatment Limitation to Clinical
Psychologist and Clinical Social Worker Services
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
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SUMMARY: This rule addresses requirements for Medicare coverage of
services furnished by a clinical psychologist or as an incident to the
services of a clinical psychologist and for services furnished by a
clinical social worker. The requirements are based on section 6113 of
the Omnibus Budget Reconciliation Act of 1989, section 4157 of the
Omnibus Budget Reconciliation Act of 1990, and section 147(b) of the
Social Security Act Amendments of 1994 (SSA '94). This rule also
addresses the outpatient mental health treatment limitation as it
applies to clinical psychologist and clinical social worker services.
This final rule also conforms our regulations to section 104 of the
Social Security Act Amendments of 1994. Section 104 provides that a
Medicare patient in a Medicare-participating hospital who is receiving
qualified psychologist services may be under the care of a clinical
psychologist with respect to those services, to the extent permitted
under State law.
In addition, this final rule requires that clinical psychologists
and clinical
[[Page 20111]]
social workers use appropriate diagnostic coding when submitting
Medicare Part B claims.
EFFECTIVE DATE: This final rule has been classified as a major rule
subject to congressional review. The effective date is June 22, 1998.
If, however, at the conclusion of the congressional review process the
effective date has been changed, the Health Care Financing
Administration will publish a document in the Federal Register to
establish the actual effective date or to issue a notice of termination
of the final rule action.
FOR FURTHER INFORMATION CONTACT: Regina Walker-Wren, (410) 786-9160.
SUPPLEMENTARY INFORMATION:
I. Background
A. Clinical Psychologist Services
Before section 6113 of the Omnibus Budget Reconciliation Act of
1989 (OBRA '89), Pub. L. 101-239, became effective, Medicare Part B
paid for the services of clinical psychologists (CPs) if they were
furnished as an incident to the services of a physician or if the
services were furnished in certain settings. Section 6113(a) of OBRA
'89 revised section 1861(ii) of the Social Security Act (the Act),
which defined ``qualified psychologist services,'' to expand Part B
coverage of CP services to services performed in all settings. The
services, however, must be those that the psychologist is legally
authorized to perform under State law and that would otherwise be
covered if furnished by a physician or as an incident to a physician's
services. This, in effect, allows payment to be made directly to a CP
for qualified psychologist services furnished by the CP or incidental
to the CP's services (except for services furnished to hospital
patients). The provision was effective for services furnished on or
after July 1, 1990. Section 1833(p) of the Act (now designated as
section 1842(b)(18)(A) of the Act), which requires that payment for
qualified psychologist services be made only on an assignment-related
basis, was unchanged by the OBRA '89 amendments.
Section 6113(d) of OBRA '89 amended section 1833(d)(1) of the Act
to eliminate a then-existing dollar limitation on payment for
outpatient mental health treatment. It, however, retained a 62\1/2\
percent limitation that had been established by earlier legislation.
(Note that section 1833(d)(1) has been redesignated as section 1833(c)
by the Medicare Catastrophic Coverage Repeal Act of 1989, Pub. L. 101-
234.) Section 1833(c) applies to expenses for mental health treatment
services incurred on or after January 1, 1990.
Section 6113(c) of OBRA '89 requires the Secretary, while taking
into consideration concerns for patient confidentiality, to develop
criteria regarding direct payment to CPs under which the CPs must agree
to consult with a patient's attending physician.
As a further development, section 4157(a) of the Omnibus Budget
Reconciliation Act of 1990 (OBRA '90), Pub. L. 101-508, amended section
1861(b) of the Act, which defines ``inpatient hospital services,'' by
revising paragraphs (3) and (4) to exclude, effective January 1, 1991,
CP services furnished to a hospital inpatient from the definition. In
addition, section 4157(c) of OBRA '90 amended section 1862(a) of the
Act, which concerns exclusions from coverage, by revising paragraph
(14) to permit direct billing by CPs for qualified psychologist
services if furnished to hospital patients.
On December 29, 1993, we published a proposed rule, at 58 FR 68829,
concerning Medicare coverage and payment of CP, other psychologist, and
clinical social worker services. That proposed rule contains additional
information on the legislative background of CP services.
Subsequent to the publication of the December 1993 proposed rule,
Congress enacted the Social Security Act Amendments of 1994 (SSA '94),
Pub. L. 103-432. Section 104 of SSA '94 amended section 1861(e)(4) of
the Act. Prior to SSA '94, section 1861(e)(4) provided that each
Medicare patient in a participating hospital be under the care of a
physician. This provision was incorporated into our regulations at
Sec. 482.12(c). Section 482.12(c) allows a practitioner to assume
responsibility for a patient's care only if the practitioner is
included in the definition of ``physicians'' at section 1861(r) of the
Act. That definition includes doctors of medicine and osteopathy
(including psychiatrists) and other practitioners, but does not include
CPs.
As amended by section 104 of SSA '94, section 1861(e)(4) of the Act
now provides that a hospital patient receiving qualified psychologist
services may be under the care of a CP with respect to services
furnished by the CP, to the extent permitted under State law.
B. Diagnostic Psychological Tests
Before enactment of the qualified psychologist services benefit
(that is, the CP benefit authorized under section 1861(ii) of the Act),
we authorized, under section 1861(s)(3) of the Act, Medicare coverage
for diagnostic psychological testing services performed by a qualified
psychologist practicing independently of an institution, agency, or
physician's office. In order to have his or her diagnostic services
covered under this provision, the psychologist had to meet certain
qualifications and the diagnostic services had to have been ordered by
a physician. These services were covered as ``other diagnostic tests,''
and Medicare paid for them on a reasonable charge basis.
C. Clinical Social Worker Services
Before the enactment of OBRA '89, services of a clinical social
worker (CSW) were payable by Medicare Part B when furnished in various
settings, such as a risk-based health maintenance organization (HMO);
as part of hospital outpatient services under sections 1861(s)(2)(B),
1861(s)(2)(C), and 1861(ff)(2)(C) of the Act; and as an incident to the
services of a physician under section 1861(s)(2)(A) of the Act. (The
applicable HMO statutory provision is contained at section
1861(s)(2)(H)(ii) of the Act, which includes these services in the list
of ``medical and other health services.'')
Section 6113(b) of OBRA '89 amended section 1861(s)(2) of the Act
to include CSW services in the definition of ``medical and other health
services'' generally covered under Part B of Medicare at section
1861(s)(2)(N) of the Act. It also amended section 1861(hh), which
defines a CSW, to define ``clinical social worker services'' as
services performed by a legally authorized CSW for the diagnosis and
treatment of mental illnesses (other than services furnished to an
inpatient of a hospital and other than services furnished to an
inpatient of a skilled nursing facility (SNF) that the facility is
required to provide as a requirement for participation) and that would
be covered if furnished by a physician or as an incident to a
physician's professional service. This provision is effective for
services furnished on or after July 1, 1990.
Section 6113(b)(3) of OBRA '89 amended section 1833(p) (now section
1842(b)(18)(A)) of the Act to specify that Part B payment for CSW
services (as defined in section 1861(hh)(2) of the Act) is made only on
an assignment-related basis.
Readers who desire additional information regarding the legislative
background for CSW services are referred to the above-cited December
29, 1993, proposed rule. Note, however, that, subsequent to the
publication of the December 1993 proposed rule, section 147(b) of SSA
'94 amended the consultation requirement at section 6113(c) of OBRA '89
(discussed above with regard to CPs) to include CSWs.
[[Page 20112]]
Therefore, effective January 1, 1995, CSWs have been required by law,
as a condition of payment for their professional services, to consult
with their patients' primary care or attending physician.
D. Payment in Certain Facilities
In accordance with section 1876(a)(6) of the Act, payment for
services furnished to an enrollee of a risk-based HMO or competitive
medical plan (CMP) can only be made to the HMO or CMP. Thus, a CP or
CSW who furnishes services in these settings may not bill Medicare
directly for these services. Payment will continue to be made through
the risk-based HMO or CMP under the appropriate payment methodology.
It should be noted, however, that the scope of services requirement
for both cost and risk-based HMOs or CMPs is changed with the addition
of CP and CSW services to the list of ``medical and other health
services'' defined under section 1861(s) of the Act. The scope of
services requirement for both cost and risk-based HMOs and CMPs is set
forth in existing Sec. 417.440(b) and includes all Part A and Part B
services that are available to Medicare beneficiaries in the HMO's or
CMP's geographic area. Therefore, both cost and risk contracting HMOs
and CMPs must now furnish CP and CSW services as Medicare-covered
services. Note, however, that under section 1861(hh) of the Act, there
is no coverage under Part B for services and supplies incident to a
CSW's services. Coverage, however, is provided, under section
1861(s)(2)(H)(ii) of the Act, for services and supplies furnished as an
incident to a CSW's services if furnished in a risk-based HMO or CMP.
Thus, services and supplies incident to a CSW's services are covered by
Medicare only when furnished by risk-based HMOs and CMPs.
Comprehensive outpatient rehabilitation facilities (CORFs) could
bill for CP services furnished through December 31, 1990. However,
effective January 1, 1991, a separate claim must be submitted under
Part B for services of a CP in a CORF furnished to patients of the
facility. This is because, as of January 1, 1991, services of CPs are
not included in the scope of CORF services described under section
1861(cc)(1)(D) of the Act. In that section, the law states that CORF
services do not include any item or service that is not included under
section 1861(b) of the Act if furnished to an inpatient of a hospital.
As noted above, section 1861(b), which contains the statutory
definition of ``inpatient hospital services,'' as amended by section
4157(a) of OBRA '90, provides that inpatient hospital services do not
include qualified psychologist services. As a result, a separate claim
must be submitted under Part B for CP services to hospital inpatients.
The same policy applies to CORFs under section 1861(cc)(1) of the Act,
as noted, to SNFs under section 1861(h)(7) of the Act, and to home
health agencies under the language following paragraph (m)(7) of
section 1861 of the Act.
Note also that, in accordance with section 1881(b) of the Act,
Sec. 405.2163(c), which governs services required for outpatient
maintenance dialysis patients furnished in end stage renal disease
facilities, includes the services of social workers. Payment for social
worker services is included in the composite rate payment made to the
dialysis facility. Therefore, when a CSW furnishes social services as
required under Sec. 405.2163(c), these services are billed by the end
stage renal disease facility, and these services are paid for by
Medicare as part of the composite rate. The composite rate, a payment
rate provided for under section 1881(b) of the Act, is a comprehensive,
all inclusive, prospective payment for all of the items and services
required for outpatient maintenance dialysis.
Section 1861(aa)(3) and (4) of the Act includes the services of CPs
and CSWs in the services of a Federally qualified health center.
Section 1861(aa)(1)(B) of the Act includes the services of CPs and
CSWs, and services and supplies furnished as an incident to those
services, as rural health clinic services. Coverage for these services
is addressed in Secs. 405.2446, 405.2450, and 405.2452. We plan to
address provisions related to these services in a separate rulemaking
document.
II. Provisions of the Proposed Rule
As stated earlier, on December 29, 1993, we published a proposed
rule that addressed the provisions of section 6113 of OBRA '89 and
section 4157 of OBRA '90. Our proposal is summarized below.
A. Clinical Psychologist Services
1. Inclusion as ``Medical and Other Health Services''
We proposed to revise Sec. 410.10, ``Medical and other health
services: Included services,'' to include, in the list of medical and
other health services covered under Part B, the diagnostic and
therapeutic services furnished by a CP and services and supplies
furnished as an incident to a CP's services.
2. Covered Services
We proposed, in a new Sec. 410.71, that Medicare Part B cover
(subject to the 62\1/2\ percent limitation for certain outpatient
mental health treatment services) services that are furnished by a CP
who meets certain requirements (discussed in section III, ``Analysis of
and Response to Comments,'' of this preamble). The services must be
those that are within the scope of the CP's State license and must be
services that would be covered if furnished by a physician or as an
incident to a physician's services. With regard to this provision, we
proposed the following:
The outpatient mental health treatment services of CPs and
services and supplies furnished as an incident to those services are
subject to the 62\1/2\ percent payment limitation set forth in proposed
Sec. 410.155.
Payment for the services of CPs and incident-to services
furnished to hospital inpatients and outpatients through December 31,
1990, is made to the hospital.
Effective January 1, 1991, CPs may bill Medicare Part B
directly for their services to hospital patients.
When applying for a provider number and annually
thereafter, CPs who bill Medicare Part B directly (including CPs who
furnish services to hospital patients and bill Medicare Part B directly
for the services) must submit an attestation statement agreeing to
consult with the beneficiary's attending or primary care physician in
accordance with accepted professional ethical norms, taking into
consideration patient confidentiality.
The CP must agree to inform the beneficiary, prior to a
consultation, that it is desirable to consult with the beneficiary's
primary care or attending physician to consider any medical conditions
that may be contributing to the beneficiary's condition. We also
proposed, in Sec. 410.71(e)(2)(iii), that if the beneficiary assents,
the CP must agree to consult with the physician within 1 week of
obtaining the beneficiary's consent. We specifically requested public
comment on this latter proposal.
The annual attestation contains an agreement to include a
notation in the beneficiary's medical records to the effect that he or
she was notified of the desirability of a consultation between the CP
and the beneficiary's primary care or attending physician, and the
patient's response to the notification. We specifically requested
public comment on this matter.
In the attestation statement the CP agrees that, if he or
she is unable to reach the physician after at least four attempts, he
or she will notify the physician in writing about the provision of care
to the beneficiary. We
[[Page 20113]]
specifically invited comments concerning this matter as well.
We also proposed that the definition of CP that appears in the HMO
rules at Sec. 417.416(d)(2) be revised to cross-refer to the
qualifications we would set forth at Sec. 410.71.
3. Incidental Services
We proposed, in Sec. 410.71(a)(2), that Medicare Part B would cover
services and supplies furnished as an incident to a CP's services if
the incidental services and supplies would be covered if furnished by a
physician or as an incident to a physician's services.
We also proposed that, in order for services and supplies furnished
as an incident to the services of the CP to be covered by Medicare,
they must meet the longstanding Medicare requirements that are
applicable to services furnished as an incident to the professional
services of a physician. That is, services must be--
The type that are commonly furnished in a physician's or
CP's office and are either furnished without charge or are included in
the CP's bill;
An integral, although incidental, part of professional
services performed by the CP;
Performed under the direct supervision of the CP (that is,
the CP must be physically present and immediately available); and
Performed by an employee of either the CP or the legal
entity that employs the supervising CP under the common law control
test of section 210(j) of the Act (42 U.S.C. 410(j)), as more fully set
forth in 20 CFR 404.1007.
4. Consultation
We proposed, in Sec. 410.71(c), that consultation between the CP
and the beneficiary's primary care or attending physician would not be
a separately-billable service for Medicare payment purposes. We also
proposed that the primary care or attending physician also would not be
permitted to bill Medicare for this consultation.
5. Payment on an Assignment-Related Basis
We proposed to revise Sec. 410.150, ``To whom payment is made,'' to
specify that payment is made directly to the CP on an assignment-
related basis for CP services furnished by him or her and for services
and supplies furnished as an incident to his or her services. We
pointed out that the assignment requirement would not preclude a CP
from furnishing his or her services as an incident to the services of
another health care practitioner if these services meet all of the
incident-to requirements. In such a case, the practitioner may bill
Medicare for the incident-to services. In this case, payment would be
made by Medicare to the practitioner.
6. Limitation on Mental Health Treatment Services
We proposed to revise Sec. 410.152(a)(1)(iv), which concerns
amounts of payment, to remove the annual dollar limitation on covered
mental health treatment services as a factor in determining incurred
expenses. (Incurred expenses are Part B covered expenses incurred by an
individual during his or her coverage period.)
7. Payment Amount
We proposed to revise Sec. 410.152, ``Amounts of payment,'' to
specify that Medicare Part B pays, subject to the mental health
treatment limitation of Sec. 410.155(c), 80 percent of the lesser of
the actual charge or the fee schedule amount for CP services.
8. Definition of ``Mental Health Treatment''
We proposed to add a definition of ``mental health treatment'' to
paragraph (a) of Sec. 410.155, ``Mental health treatment limitation.''
We proposed to define ``mental health treatment'' as ``therapy for the
treatment of a mental, psychoneurotic, or personality disorder.'' We
also proposed to specify a distinction between ``treatment'' and
``diagnosis,'' as discussed below.
We proposed to revise Sec. 410.155(b) to include examples of
services that are subject to, or excluded from, the application of the
limitation.
We proposed that the limitation does not apply to mental
health treatment furnished to hospital inpatients, brief office visits
to a physician for the purpose of monitoring or changing drug
prescriptions used in the mental health treatment, partial
hospitalization services that are not directly provided by a physician,
and diagnostic services that are performed to establish a diagnosis.
We proposed that the limitation will apply not only to
mental health treatment furnished by physicians and CORFs but also to
mental health treatment furnished as an incident to the services of a
physician and to the mental health services of other health care
practitioners whether the services are furnished directly by the
practitioners or as an incident to their services. Thus, for example,
the limitation would apply to the services of CPs, services furnished
as an incident to the services of CPs, and to the services of CSWs.
With respect to diagnostic psychological testing and other
diagnostic services, we proposed that services performed in order to
establish a patient's diagnosis are not subject to the limitation,
because those services do not represent treatment of a mental disorder.
We stated that the limitation would apply to testing that is part of
treatment (for example, when it is used to evaluate a patient's
progress during treatment). Only diagnostic services used to establish
a diagnosis for a patient's mental illness would be excluded from the
limitation.
We proposed to revise Sec. 410.155(c) of the regulations to remove
the dollar limitation.
We also proposed to revise the heading of Sec. 410.155, from
``Psychiatric services limitations: Expenses incurred for physician
services and CORF services'' to ``Mental health treatment limitation.''
Further, we proposed to update the example, in existing
Sec. 410.155(d), of how the limitation is applied.
As a technical revision, we proposed to remove the reference to
``medical services for the diagnosis and treatment of tuberculosis''
from the definition of ``hospital'' in Sec. 410.155(a). Section 2335 of
the Deficit Reduction Act of 1984 (Pub. L. 98-369) repealed the special
conditions and requirements associated with coverage of treatment of
tuberculosis patients and eliminated the special provider category of
tuberculosis hospitals.
9. Basis for Payment
We proposed to revise Sec. 424.55(b)(1), which concerns accepting
assignment, to reflect that, in accepting assignment, a supplier (which
includes a CP) agrees to accept, as the full charge for the service,
the charge approved by the carrier as the basis for determining the
Medicare Part B payment. We proposed to revise paragraph (b)(2)(i) of
this section, which currently reads: ``To collect nothing for those
services for which Medicare pays 100 percent of the reasonable
charge.'' We proposed to change ``reasonable charge'' to ``approved
amount'' to reflect that, based on recent statutory changes, there are
also fee schedules and other basis for payment, in addition to
reasonable charge.
We proposed to revise paragraph (b)(2)(ii) of Sec. 424.55. This
paragraph currently limits the amount that the supplier may collect
from the beneficiary or other source to only the amount of any unmet
deductible, plus 20 percent of the difference between the reasonable
charge and the unmet deductible for those services for which
[[Page 20114]]
Medicare pays 80 percent of that difference. We proposed to revise this
to state that, for those services for which Medicare pays less than 100
percent of the approved amount, the supplier may collect only the
difference between the Medicare-approved amount and the Medicare Part B
payment (that is, the amount of any reduction in incurred expenses
under Sec. 410.155(c) and any applicable deductible and coinsurance
amount). This change would recognize that a supplier may collect, from
the beneficiary or other source, the 37\1/2\ percent differential that
results from the mental health treatment limitation.
B. Diagnostic Psychological Tests
Diagnostic psychological testing services performed by an
independent psychologist, other than a CP, practicing independently of
an institution, agency, or physician's office are currently covered as
other diagnostic tests under section 1861(s)(3) of the Act. We stated
our intent to continue to cover this type of testing. We, however,
invited public comment on methods to employ that would control the
potential for excessive use of psychological testing.
In addition, we stated that we intend to address the coverage
requirements for the psychological tests benefit in a separate
rulemaking in the near future and that, at that time, we will invite
public comment about the professional qualifications that should be
required for the persons who perform these tests. We stated our intent,
until the rule establishing these qualifications is effective, to
continue to cover this type of testing if furnished by any psychologist
who is licensed or certified to practice psychology in the State or
jurisdiction where he or she is furnishing services or, if the
jurisdiction does not issue licenses, if provided by any practicing
psychologist.
C. Clinical Social Worker Services
1. We proposed to revise Sec. 410.10, ``Medical and other health
services: Included services,'' to include the services of CSWs in the
list of medical and other health services covered under Part B.
2. We proposed, in a new Sec. 410.73(a), to define a CSW as an
individual who--
Possesses a master's or doctor's degree in social work;
After obtaining the degree, has performed at least 2 years
of supervised clinical social work; and
Either is licensed or certified as a CSW by the State in
which the services are performed or, in the case of an individual in a
State that does not provide for licensure or certification, has
completed at least 2 years or 3,000 hours of post master's degree
supervised clinical social work practice under the supervision of a
master's degree level social worker in an appropriate setting such as a
hospital, SNF, or clinic.
3. We proposed, in a new Sec. 410.73(b), to specify that Medicare
Part B pays for services performed by a CSW for the diagnosis and
treatment of mental illness that the CSW is legally authorized to
perform if the services would be covered if furnished by a physician or
as an incident to a physician's professional services.
4. We proposed to specify, in a new Sec. 410.73(c)(1), that payment
for CSW services furnished to hospital inpatients and outpatients is
made to the hospital (not to the CSW).
We proposed to specify, in a new Sec. 410.73(c)(2), that payment
for CSW services furnished to inpatients of an SNF, if the SNF is
required to provide such services as a requirement for participation,
is made to the SNF. Under the statute, however, any coverable CSW
services furnished in an SNF that the SNF is not required to furnish as
a requirement for participation could be billed by the CSWs directly
under Part B. Thus, we specifically invited public comment and
suggestions on how we can clearly identify or differentiate the level
of services that would clearly qualify under the statute as CSW
services performed in SNFs from those services that are required by the
SNF requirements for participation.
As noted above, the conditions of coverage for end stage renal
disease facilities require that social worker services be made
available to dialysis patients. Therefore, we proposed to specify, in a
new Sec. 410.73(c)(3), that payment for social services furnished to
dialysis patients that are required by the conditions for coverage for
end stage renal disease facilities is made to the facility. We
specifically invited public comment, however, regarding whether any CSW
services to dialysis patients can be distinguished from the required
facility services.
5. We proposed, in a new Sec. 410.73(d), to hold those CSWs who
bill Medicare Part B directly to the same consultation requirements as
we would CPs. Accordingly, the CSW, when applying for a Medicare
provider number and annually thereafter, would be required to submit to
the carrier an attestation statement agreeing to consult with the
beneficiary's attending or primary care physician in accordance with
professional ethical norms, taking into consideration patient
confidentiality. We would require that the attestation statement
contain the same information we proposed to require for the attestation
statement of CPs.
We also proposed to specify, in a new Sec. 410.73(c)(5), that a CSW
or attending or primary care physician may not bill Medicare or the
beneficiary for the consultation that would be required by this rule.
6. We proposed to revise Sec. 410.150, which explains to whom
payment is made, to specify that payment may be made directly to the
CSW, on an assignment-related basis, for services he or she furnished.
7. We proposed to revise Secs. 410.152, ``Amounts of payment,'' and
410.155(b), ``Services subject to limitation,'' regarding application
of the mental health treatment limitation. The provisions of proposed
Secs. 410.152 and 410.155(b), discussed in sections II.A.7. and II.A.8.
of this preamble, respectively, would also apply to services of CSWs.
8. We proposed to further revise Sec. 410.152 by adding a new
paragraph (m), which would specify that Medicare Part B pays, subject
to the mental health treatment limitation of Sec. 410.155(c), 80
percent of the lesser of the actual charge for the therapeutic services
of a CSW or 75 percent of the fee schedule amount for CP services.
9. We proposed to amend Sec. 417.416, ``Qualifying condition:
Furnishing of services,'' to specify that an HMO or CMP may permit the
covered services of a CSW to be furnished without physician
supervision. We also proposed that services incident to the
professional services of a CSW are not covered by Medicare if furnished
in a cost-based HMO or CMP.
10. The proposed revision to Sec. 424.55, ``Payment to the
supplier,'' discussed in section II.A.9. of this preamble, would also
apply to CSWs.
D. CPs and CSWs Diagnostic Coding
We proposed that, beginning with the effective date of the final
rule, CPs and CSWs would be required to use only ICD-9-CM diagnostic
coding when submitting claims to our carriers.
III. Analysis of and Response to Comments
In response to the December 1993 proposed rule, we received
approximately 740 public comments. Commenters included national, State,
and local professional associations; State and local governmental
agencies; psychologists, psychiatrists, CSWs, and other individuals.
The concerns expressed by the commenters focused predominately on
the proposed definition of ``clinical psychologist,'' the attestation
statement,
[[Page 20115]]
and the consultation requirements. There were also other issues
addressed in the public comments, such as, which medical coding system
CPs or physicians should use to report services, how to distinguish the
professional services of CSWs from the social services that social
workers are required to furnish to patients in SNFs that house 120 or
more beds, psychological testing, and the grandfathering of master's
level psychologists who were licensed by their respective States at the
time licensure laws first became effective.
A summary of the comments and our responses are presented below.
A. The ``Clinical Psychologist'' Definition (Sec. 410.71)
The proposed CP definition is basically comprised of three
requirements: the educational degree, State licensure, and clinical
experience. For purposes of addressing public comments on the proposed
definition of ``clinical psychologist,'' however, we believe it is
helpful to analyze the various components of the definition. These are
as follows:
The individual must hold a doctoral degree in psychology.
The doctoral degree in psychology must be from an
accredited program.
The psychology program must prepare the candidate to
practice clinical psychology by providing appropriate clinical
psychology training.
The individual must be licensed or certified at the
independent practice level of clinical psychology by the State in which
he or she practices.
The individual must possess 2 years of supervised clinical
experience, at least one of which is postdoctoral degree experience.
The 2 years of supervised clinical experience must have
been supervised by a psychologist qualified at the doctorate level.
1. The Individual Must Hold a Doctoral Degree in Psychology
Comment: The majority of the comments we received on the CP
definition supported maintaining the standard that requires a doctoral
degree in psychology. On the other hand, many commenters objected to
maintaining that standard. These latter commenters believed that the
standard should be replaced with a standard that would enable
psychologists with master's degrees to qualify as CPs. It was suggested
by a few of these commenters, however, that these master's level
psychologists be paid at the same rate as social workers with master's
degrees who are also authorized to bill the Medicare program directly
for professional diagnostic and treatment services.
Also, these commenters contend that in some States there is a
shortage of psychologists with doctoral degrees, particularly in the
rural areas. They further assert that, while psychologists with
doctoral degrees are not very accessible to the elderly population in
rural areas, there are psychologists in these areas who have a master's
degree in psychology and are licensed by the State at the independent
practice level to furnish diagnostic and treatment services. These
commenters have urged us to defer to State Psychology Boards to
determine who is eligible to furnish psychological services under the
Medicare program, since professional licensure has always been
controlled by the State.
Response: The statute, at section 1861(ii) of the Act gives the
Secretary the authority to define the term ``clinical psychologist''
for the purpose of covering, under the Medicare Part B program, the
professional diagnostic and treatment services of CPs and services and
supplies furnished as an incident to their professional services.
Previously, we had established a definition of CP in regulations at
Sec. 417.416(d)(2). This definition was issued in final regulations in
1985 and has been used for purposes of coverage of CP services in HMOs
and CMPs. Application of this definition in the community mental health
center setting was addressed through instructions issued in September
1986; for purposes of the expanded CP benefit, instructions were issued
in August 1990.
As we stated in the proposed rule, while this CP definition in its
entirety may have been appropriate for psychologists furnishing
services in limited settings such as HMOs, CMPs, and community mental
health centers, its use for purposes of the expanded benefit caused
extensive concern among CPs. While we believe that there are provisions
of the definition that remain appropriate even under the expanded
benefit, we believe other provisions of the definition require some
modification.
Under the expanded CP benefit, CPs are authorized to perform
services that would otherwise be furnished by a physician, as well as
accept responsibility for services furnished by others incident to
their professional services. We believe that it is prudent for these
practitioners to have a level of education that is close to that which
physicians receive if they are going to perform in this capacity. Even
though a few States may license psychologists with master's degrees at
the independent practice level to furnish both diagnostic and treatment
services, we want to ensure that only those practitioners with the
highest level of education, knowledge, and experience furnish services
to Medicare beneficiaries.
Additionally, we believe that the requirement for a doctoral degree
is the standard for psychologists who are qualified to furnish services
and supervise the services of others, as evidenced by the industry and
by other Federal programs. Information from the Association of State
and Provincial Psychology Boards indicates that 32 States and the
District of Columbia do not license or certify psychologists below the
doctorate level, and most of the 18 States that do license or certify
individuals at the masters level require supervision of the
individual's services by a doctorate level psychologist. Over 90
percent of psychologists licensed or certified for independent clinical
practice do have doctoral degrees.
We have concerns about the suggestion that the Medicare program
allow psychologists with master's degrees who are licensed by the State
at the independent practice level of psychology to qualify as CPs, but
pay these psychologists at the same rate that the program pays CSWs for
their professional diagnostic and treatment services. Although the
Medicare program makes direct payment to independently practicing CSWs
for their professional diagnostic and treatment services, the CSW
benefit is a more restricted benefit than the CP benefit. For example,
CSWs may not bill directly for services they furnish hospital
inpatients and outpatients or for services in SNFs that participate in
Medicare. Additionally, the program does not authorize direct payment
to CSWs for services furnished incident to their professional services,
except in certain limited situations.
Furthermore, the law provides direction on how the program must pay
for the services of CPs as well as CSWs based on criteria that are
specific to each of these categories of practitioners. Accordingly, we
do not have the discretion to pay doctoral level psychologists at one
rate and master's level psychologists at another--just as we do not
have the discretion to pay master's level social workers at one rate
and doctoral level social workers at another. Practitioners who meet
the criteria for CPs and CSWs, respectively, will be paid at the
established rate for that benefit.
The following may help to relieve the concerns expressed about the
shortage
[[Page 20116]]
of psychologists with doctoral degrees in rural areas. Section
1861(aa)(1)(B) of the Act states that the term ``rural health clinic
services'' includes services furnished by a CP (as defined by the
Secretary). Therefore, in developing a notice of proposed rulemaking
that will address Medicare coverage of services provided by rural
health clinics, we must develop a definition of CP that is appropriate
for practitioners who are employed by those entities. Under the rural
health clinic benefit, the CP definition will take into account the
shortage of psychologists with doctoral degrees in rural areas,
particularly those designated as health professional shortage areas. We
will not, however, discuss the requirements for CPs who are employed by
rural health clinics in this final rule. Instead, the provisions of the
definition for purposes of the rural health clinic benefit will be
proposed in a separate notice of proposed rulemaking.
Comment: Many professional organizations and psychologists
commended us for proposing a more comprehensive definition of a CP by
removing the previous requirement that an individual must hold a
doctoral degree from a program in clinical psychology. They stated that
our efforts to develop an improved definition will help to provide
Medicare beneficiaries with access to basic mental health care. These
commenters, in most cases, indicated whether their local carriers have
been interpreting the CP definition on a case-by-case basis (while
awaiting a final rule) to include practitioners who have clinical
experience, even though their doctoral degrees are from another program
in psychology.
On the other hand, many commenters from professional associations
and organizations stated that the existing requirement that an
individual must hold a doctoral degree from a program in clinical
psychology should be restored and that the proposed definition, which
does not specify that the doctoral degree must be from a program in
clinical psychology, is inappropriate. These commenters questioned how
we could ensure that other doctoral level psychologists who have
graduated from programs such as neuropsychology or school,
developmental, educational, comparative, experimental, and industrial
psychology have the appropriate education and clinical training and
experience to treat Medicare patients. These commenters believed that
removal of the existing requirement for a doctoral degree from a
program in clinical psychology could present a danger to the medically
vulnerable Medicare population.
Some commenters stated that, for purposes of determining who
qualifies as a CP under the Medicare program, we should recognize those
psychologists who are listed as health service providers in the
National Register of Health Service Providers in Psychology, and they
pointed out the following. The National Register is a way of
identifying many clinicians who graduate with degrees from programs
that do not specify the word ``psychology'' in their title, but are
clearly programs in psychology. The Civilian Health and Medical Program
of the Uniformed Services, which is another Federally funded and
managed program, references the National Register as a mechanism for
identifying CPs. Also, some States have added a certification to the
psychology license that designates psychologists trained and
experienced in the provision of clinical services as health service
providers.
Response: We realize that there are many psychologists who,
although their doctoral degree is labeled other than ``clinical
psychology,'' graduated from psychology programs that provided them
with the appropriate knowledge, training, and experience in clinical
psychology. We are very concerned that we not indirectly deny
beneficiaries access to the care of qualified psychologist services
solely because the degree that a practitioner has earned is labeled
something other than ``clinical psychology.'' Based on our carriers'
experience in interpreting the CP definition on a case-by-case basis,
we do not agree with those commenters who believe that removal of the
existing requirement for a doctoral degree from a program in ``clinical
psychology'' presents a danger to the Medicare population.
We believe that the National Register is a mechanism that can be
instrumental in identifying psychologists who are qualified to furnish
qualified psychologist services. We do not believe, however, that it
should be used by carriers as the sole criterion to determine who is
qualified to furnish psychologist services under the Medicare program
because listing is optional and requires payment of a fee by the
practitioner. Also, the register lists nonphysician practitioners who
have received some clinical training and experience from programs that
are not designated as psychology programs.
While we have made allowances for the types of psychology programs
that can qualify a practitioner under Medicare's CP benefit, we require
that the individual's doctoral degree at least be from a program that
is designated as a psychology program. The CP benefit was created as a
discrete benefit for psychologists, and not nonphysician practitioners
who may receive some clinical training as part of their doctoral degree
programs. We believe that Congress would have to create a separate
benefit to recognize practitioners whose degrees are in a field other
than psychology.
Therefore, in this final rule, we specify that an individual who
seeks qualification as a CP must hold a doctoral degree in psychology.
2. The Doctoral Degree in Psychology Must Be From an Accredited Program
Comment: Many commenters stated that the requirement, under our CP
definition, for institutional accreditation should be restored. In
fact, many physicians opposed the proposed revisions to the CP
definition because they believed the revisions are inappropriate in
that they would remove the requirement that the doctoral degree program
be from an educational institution that is accredited by an agency
recognized by the Commission on Recognition of Postsecondary
Accreditation (previously known as the Council on Postsecondary
Accreditation). They believed that to ensure the quality of the
psychology doctoral program these programs must be housed in accredited
institutions of higher learning and be university-based. Additionally,
they stated that merely requiring that a doctoral degree in psychology
be from an accredited program is too open-ended because it does not
specify who must perform the accreditation function. They maintain that
our proposed requirement potentially dilutes the quality of
psychologists who are eligible to treat Medicare patients.
Many psychologists and professional associations in California
commented that the accreditation requirement in the original and the
proposed CP definition would pose a serious problem for about one-
fourth of the psychologists in California. The affected psychologists
would be those whose doctoral degrees in psychology are either from
schools that are not regionally accredited by the Commission on
Recognition of Postsecondary Accreditation or are from psychology
programs that are not accredited. These commenters stated that
approximately one-fourth of the licenses granted by the Board of
Psychology in California, for the period beginning January 1990 through
1991, were to psychologists who are graduates of State approved
doctoral programs in psychology. The commenters further
[[Page 20117]]
stated that many of the institutions that house State approved
psychology programs were specifically developed to train psychologists
in clinical applications of health care. (The State of California
regulates these institutions and their programs through the Council for
Private Postsecondary and Vocational Education.) These commenters
suggested that, in order to avoid inadvertently eliminating otherwise
qualified professionals from participating in the Medicare program
because of a semantic problem, we amend our proposed definition to
require that a CP hold a doctoral degree in psychology from an
accredited or State approved program.
Response: We have thoroughly examined the academic accreditation or
approval requirements imposed by the various States for licensure or
certification of psychologists. The wide degree of variation in the
specifics of State requirements makes creation of a uniform Federal
standard infeasible. We have concluded that reliance on State licensure
or certification requirements provides adequate assurance that an
individual's doctoral degree was obtained from a program that met
appropriate academic standards.
3. The Individual Must be Licensed or Certified at the Independent
Practice Level of Clinical Psychology by the State in Which He or She
Practices
Comment: We received very many comments pertaining to the above
requirement, which is included in the proposed CP definition. We were
informed that 48 States generically license psychologists at the
independent practice level of psychology, not clinical psychology and
that the States, in the vast majority of cases, do not employ concepts
of what constitutes ``clinical psychology.'' On the other hand, we
received many comments that the addition of the word ``clinical'' to
this requirement regarding State licensure and certification at the
independent practice level actually strengthened the requirement
overall.
Response: We have learned from the commenters, and as a result of
our own investigation, that State licensure or certification laws are
broadly based and, in combination with regulatory requirements for
licensing or certifying psychologists, limit the scope of
psychologists' activities to those for which they have received
appropriate education, training, and experience. Additionally, the
licensing law of every State either incorporates an ethics code or a
State board's disciplinary code that makes it illegal for a
psychologist to practice in an area for which he or she has not
received training. Accordingly, to the extent that a psychologist,
regardless of the type of doctorate possessed, were to provide services
for which he or she had not received appropriate education and
training, that psychologist would be practicing outside the scope or
his or her competence and would be subject to both legal and ethical
sanctions.
By inserting the word, ``clinical'' into this requirement under the
proposed CP definition, we would exclude all of the otherwise-qualified
psychologists in 48 states from participating under the Medicare
program. Therefore, in this final rule we amend this requirement to
specify that an individual who seeks qualification as a CP under
Medicare must be licensed or certified at the independent practice
level of psychology by the State in which he or she practices.
4. The Psychology Program Must Prepare the Candidate to Practice
Clinical Psychology by Providing Appropriate Clinical Psychology
Training
Comment: Several commenters believed that, to guard against
erroneous interpretations, we need to further clarify the term
``clinical psychology training.'' They stated that, as written, this
section uses the terms ``clinical psychology'' and ``clinical
psychology training'' to describe a ``clinical psychologist.'' The
commenters believe that the fact that no further explanation of these
terms is provided could create considerable, but unnecessary, ambiguity
in the definition. Therefore, these commenters have suggested a
provision that they believe clarifies that the term ``clinical
psychology training'' means education and practical experience that
prepares the psychologist to provide diagnostic, assessment,
preventive, and therapeutic services directly to individuals. It was
suggested that this sentence be added to the end of this particular
requirement under the CP definition.
Response: We believe that this suggestion clarifies the intent
about the emphasis on the term ``clinical psychology.'' We wanted to
stress that psychologists who furnish services under this benefit must
have the education and experience to furnish diagnostic testing and
assessment services and preventive or therapeutic intervention services
directly to individuals whose mental growth, adjustment, or functioning
is impaired or at risk of impairment. Accordingly, we believe that the
focus should be on the actual observation and treatment of patients by
the psychologist much more so than on services or work that is
theoretical or experimental. In addition, we believe that the key
element is the scope of practice authorized by State licensure or
certification. Therefore, we are clarifying in this final rule that the
individual must be licensed to furnish diagnostic, assessment,
preventive, and therapeutic services directly to individuals.
5. The Individual Must Possess 2 Years of Supervised Clinical
Experience, at Least 1 Year of Which is Postdoctoral Degree Experience
Comment: Many commenters stated that the above requirement should
specify a minimum total number of hours for the required supervised
clinical experience. These commenters stated that some States, for
example, Florida, Kentucky, and Washington, require a specific number
of hours, with Florida requiring 2 years or 4,000 hours of supervised
experience. These commenters believed that establishment of a
requirement for 2 years/4,000 hours of supervised experience for CPs
would put in place a mechanism that would serve to protect the Medicare
population.
A few commenters, however, stated that it is possible that the
requirement under the proposed CP definition would eliminate doctoral
level psychologists who lack a postdoctoral year of supervised clinical
experience because they were licensed as a psychologist at the master's
level and received their doctoral degree later in their career.
Response: All States have licensure/certification requirements for
supervised experience, but they vary in terms of specific details.
Therefore, adoption of a uniform Federal standard is not feasible. We
have concluded that reliance on State licensure or certification
requirements provides adequate assurance that an individual has
completed appropriate supervised clinical experience.
6. The 2 Years of Supervised Clinical Experience Must Have Been
Supervised by a Psychologist Qualified at the Doctoral Level
Comment: Many commenters expressed concern that the above
requirement could inadvertently exclude a number of qualified
psychologists from participating under the Medicare program. They
explained that some highly qualified, doctorally trained psychologists
who have been in practice for a long time received their clinical
supervision from licensed master's level psychologists in States where
licensed master's level supervision was, and continues to be,
[[Page 20118]]
acceptable to State licensing boards. Therefore, these commenters
suggested language that reads, ``a CP must possess 2 years of
supervised clinical experience, at least one of which is postdoctoral
degree experience, and the supervision as provided by a licensed
psychologist.'' We also received a suggestion that we recognize
supervision that was provided by a physician.
Many commenters also stated that our proposed requirement would
place an onerous task on Medicare carriers because it requires them to
determine who provided the supervision of the psychologist's clinical
experience.
On the other hand, many other commenters stated that the
requirement pertaining to who supervises the clinical experience should
be strengthened. These commenters stated that we should require that
the clinical experience be supervised by a CP who has a doctorate
degree in clinical psychology. Their rationale for strengthening this
requirement is that if someone is going to learn about clinical
practice from a supervisor, that supervisor is a superior teacher if he
or she is licensed in what he or she is teaching/supervising.
Response: By relying on State licensure or certification (see
previous response) this level of detail need not be addressed by a
Federal standard.
7. Grandfathering Master's Level Psychologists
Comment: Many commenters expressed concern about whether this final
rule will grandfather those psychologists who were grandfathered under
their State's original licensing laws. They were concerned that the
proposed CP definition would restrain the practice of some
psychologists who have been practicing for at least 20 years prior to
the implementation of the CP benefit. According to some comments we
received on the grandfathering issue, the criteria that some States
used to determine who was qualified for grandfathering was based on
whether the individuals could demonstrate that they had an established
practice in psychology for a number of years followed by a successful
performance on the national licensing examination. The commenters
stated that, while few independently practicing master's level
psychologists remain in practice today, those who are still practicing
would be excluded under the proposed CP definition from participating
in the Medicare program. These commenters requested us to accept, for
the purpose of qualifying psychologists under Medicare, certification
as a health service provider for master's level psychologists who were
grandfathered and have been practicing since State licensure laws went
into effect and who are listed in the National Register of Health
Service Providers in Psychology.
Response: The State licensing boards that adopted grandfathering
clauses used criteria that varied from State to State to determine who
qualified. Also, there was no one time period for purposes of
grandfathering because all State licensing boards did not implement
licensing laws for the psychology profession concurrently. Thus, there
has been no uniformly recognized standard for grandfathering. Moreover,
as discussed at length in our earlier response regarding the
requirement for a doctoral degree, we do not believe it is appropriate
to recognize as a CP any practitioner who lacks a doctorate. The few
remaining masters level psychologists who have been grandfathered to
practice in their individual States have not been recognized as CPs
under our current instructions in the Medicare Carriers Manual.
Therefore, continuing their exclusion from Medicare should not disrupt
their practices and will have negligible impact on the overall
availability of services to beneficiaries.
Comment: We also received several comments appealing to us to
grandfather into the final rule those psychologists that, before
publication of the final rule, carriers had determined were qualified
as CPs. (On an interim basis, carriers were granted the discretion to
interpret, on a case-by-case basis, the CP definition to include
psychologists with doctoral degrees in psychology programs that were
labeled other than ``clinical psychology'' provided they met all the
other definitional requirements. Conversely, carriers had the
discretion to adhere strictly to the requirement which stipulates that
a CP must have a doctoral degree from a program in clinical psychology.
During this interim measure, many psychologists who would have
otherwise been excluded from coverage were granted provider numbers by
carriers to participate in the Medicare program as CPs.) These
commenters would like to ensure that coverage of these psychologists'
services is not discontinued as a result of the provisions of the final
rule.
Response: We do not believe that it is necessary to specify in this
final rule that those psychologists who carriers qualified as CPs prior
to the promulgation of this final rule must be grandfathered under the
final CP definition. We believe that the decisions carriers have made
about qualifying individuals as CPs, using the discretion that we
granted them in the interim (which was to choose to issue provider
numbers to psychologists with doctoral degrees from psychology programs
labeled other than ``clinical psychology'' provided the individual had
the appropriate knowledge, training, and experience in clinical
psychology) will not conflict with the CP definition under this rule
and will not require a reversal of their decisions.
8. Retraining of Psychologists
Comment: Many commenters strongly asserted that we should not
establish standards for retraining psychologists to qualify for
coverage under Medicare, as this could intrude or undermine State
licensure and scope of practice authorities as well as accredited
educational institutional training programs. They believed that we
should limit Medicare coverage to CPs who qualify based on the current
requirements. These commenters stated that there is no congressional
mandate for us to establish new education and training criteria in
order to cover nonqualified psychologists under Medicare. In fact,
these commenters challenged us about our mission by questioning whether
we plan to become a psychology training and payment agency. Lastly,
they characterized our proposal to cover the services of psychologists
who retrain as ``ridiculous'' and a wasteful expenditure of taxpayer's
funds.
Conversely, we received as many or even more comments stating that
the opportunity for professional retraining by psychologists is of
great value to society, because it encourages and facilitates the
unique contributions that can be made by psychologists with broadly
diversified backgrounds. These commenters stated that they very much
appreciate our acknowledgment that appropriate retraining should enable
a psychologist to qualify for Medicare coverage purposes.
The latter commenters informed us, however, that the psychology
profession refers to retraining as ``respecialization.'' They clarified
that, under the respecialization process, psychologists receive a
certificate, not a second doctoral degree as we stated in the preamble
to the proposed rule. Also, in response to our request (under this
particular proposal) for standards for retraining programs that prepare
candidates to practice clinical psychology, these commenters have
referred us to the professional, official standards in place that were
established by the American Psychological
[[Page 20119]]
Association's Committee on Accreditation.
Response: We have concluded that there is no need to create a
special provision to address this situation. This issue is generally
rendered moot by our decisions not to specify a degree in ``clinical''
psychology but to rely on State licensure or certification. Individuals
who have respecialized can qualify if they meet our criteria.
9. Summary
In summary, as a result of our consideration of public comments,
proposed Sec. 410.71(e)(1) is designated as Sec. 410.71(d) and is
revised to specify that a CP is an individual who--
(1) Holds a doctoral degree in psychology; and
(2) Is licensed or certified, on the basis of the doctoral degree
in psychology, by the State in which he or she practices, at the
independent practice level of psychology to furnish diagnostic,
assessment, preventive, and therapeutic services directly to
individuals.
B. Diagnostic Psychological Tests
We stated in the proposed rule that we will continue to cover
diagnostic psychological tests under section 1861(s)(3) of the Act as a
discrete benefit under the Medicare program. We intend to continue to
cover these tests when furnished by any psychologist who is licensed or
certified to practice psychology in the State or jurisdiction where he
or she is furnishing services or, if the jurisdiction does not issue
licenses, if provided by any practicing psychologist.
We explained in the proposed rule that we plan to do a separate
rulemaking that will address the qualifications for persons who perform
diagnostic psychological tests and that, at that time, we will invite
public comments on this issue. In the meantime, however, we invited
public comment on methods to employ that will control the potential for
excessive use of psychological testing. We received a number of
suggestions. We thank the respondents, and we will consider their
comments as we develop the separate rulemaking.
C. Services Furnished as an Incident to CP Services (Sec. 410.71(a)(2))
Comment: We received comments from a professional association
stating that the requirement under the ``incident to'' benefit that
calls for the provision of services under the direct supervision of the
CP (that is, the CP must be physically present in the office suite and
immediately available) hampers the ability of the CP to provide
necessary mental health services in an effective and efficient manner.
This association believed that all ``incident to'' services should be
performed under the direct supervision of the CP; it did not believe,
however, that direct supervision requires the physical presence of the
CP. The association claimed that mental health services are different
from many health services that pertain exclusively to physical health.
Therefore, according to the association, the CP's presence is not
appropriate in this arena because mental health services are unlikely
to create a risk that would necessitate the CP's immediate physical
presence. This association believed that a more reasonable standard
would require that the CP be readily available by telephone for
consultation, if necessary, as is the customary practice in the
profession. It believed that this would provide complete protection to
the patient without impeding the ability of the psychologist to perform
other services.
On the other hand, we received comments from a State psychological
association that maintained the requirement that the CP be immediately
present and available is appropriate. It stated, however, that the
reference to the ``office suite'' is dated and no longer justified. The
association recommended that the reference be removed because it seems
to preclude services to patients in skilled nursing facilities or in
settings other than an office.
Lastly, regarding the direct supervision requirement under the
``incident to'' benefit, one psychologist commented that the
requirement is not clear about whether the CP should be in the building
during the time of services.
Response: The statute limits coverage to services that would be
covered if furnished as an incident to a physician's services.
Therefore, we are using the same standard for ``incident to'' that
applies to physicians, including mental health services that are
furnished as an incident to a physician's service. That standard, as
currently reflected in section 2050.1.B of the Medicare Carriers Manual
(HCFA Pub. 14-3), states that ``supervision in the office setting does
not mean that the physician must be present in the same room with his
or her aide. However, the physician must be present in the office suite
and immediately available to provide assistance and direction
throughout the time the aide is performing services.'' We did not mean
to imply, however, that ``incident to'' services must always be
furnished in the office suite, and this final rule revises proposed
Sec. 410.71(a)(2)(iv) to clarify this point. As an example, a CP could
directly supervise a service performed outside the office suite (such
as in an SNF) if the CP is in the room with the aide while the aide
performs the service. This also parallels the physician standard as
expressed in section 2050.IB, which indicates that the requirement for
direct supervision of a service performed in an institution is not
satisfied merely by the physician being available by phone or being
present somewhere in the institution.
Comment: One psychologist asked which services furnished by CPs in
the hospital setting remain bundled and which services are unbundled.
(``Bundled'' is a term used to indicate that payment for the service is
included in the payment made to the hospital.) He was particularly
interested in whether services furnished as an incident to the
professional services of a CP are bundled into the payment that
hospitals receive for their services.
Response: Coverage and payment for the direct professional services
of a CP are unbundled by law from hospital services. Therefore, a CP
(or the hospital on behalf of the CP) must bill the carrier for the
direct professional services furnished to hospital patients. The
payment that is made to hospitals for ``hospital services'' no longer
includes payment for the professional services of CPs. However,
coverage of services furnished in the hospital setting as an incident
to the professional services of CPs remains bundled.
D. The Outpatient Mental Health Treatment Limitation (Sec. 410.155)
Comment: We received numerous comments on various issues pertaining
to the limitation from a major professional association stating that we
should use different terminology regarding the limitation when
discussing how it applies to the services of physicians. First, the
association suggested that when referring to the services of
physicians, we use the term ``psychiatric medical services,'' instead
of the term ``mental health treatment services.'' It believed that the
term ``mental health treatment'' is appropriate only for psychologists.
In addition, this association recommended that we consider revising the
phrase, ``mental, psychoneurotic, and personality disorders'', and
that, instead, we use the current language contained in the American
Psychiatric Association's Diagnostic and Statistical Manual.
Second, this association pointed out that the listing of services
that are exempt from the limitation is inaccurate and incomplete
because it does not contain the diagnosis and medical
[[Page 20120]]
management of patients with Alzheimer's Disease or other related
disorders. It stated that, for years, section 2472.4 of the Medicare
Carriers Manual has listed these services among those excluded from the
application of the limitation. Also, it believed that the appropriate
interpretation of the statutory exclusion for monitoring or changing
drug prescriptions used in the treatment of a mental illness or mental
disorder should include the decision as to whether to prescribe such a
drug. Thus, the association stated that the exclusion should read,
``brief office visits for the purpose of prescribing, monitoring, or
changing drug prescriptions used in the treatment of a mental illness
or mental disorder.''
Third, this association stated its belief that the limitation
should apply to partial hospitalization services furnished by CPs, as
it pertains to partial hospitalization services furnished by
physicians.
Fourth, this association commented that the example under paragraph
(d) of this section is incorrect. It believed that the $100 deductible
should apply against the approved amount--$750 first; then the
remaining $650 should be subject to the 62.5 percent limitation.
Additionally, it suggested that we provide examples under this
paragraph to illustrate single assigned and unassigned claims for both
inpatient and outpatient services.
We received several other comments from psychologists on the
limitation expressing that the limitation should be eliminated, that it
should never apply to psychological testing, and that the limitation on
treatment services requires patients to make higher copayments than
many of them can afford, therefore forcing these patients to seek
inpatient mental health care as a more affordable alternative.
Response: With regard to the association's first comment, we
believe that no purpose would be served under the Medicare program by
accepting, as suggested, the artificial distinction in terminology when
discussing the services of physicians versus the services of CPs and
CSWs. However, we are not defining the phrase ``mental health
treatment,'' but rather adhering to the statutory language regarding
expenses in connection with the treatment of a mental, psychoneurotic,
or personality disorder. Clearly physicians, psychologists, and other
practitioners all may furnish that treatment.
We agree that medical management for patients diagnosed with
Alzheimer's disease or related conditions is not subject to the
limitation and have added this exception to the list. Psychotherapy for
these conditions, however, is subject to the limitation. This reflects
current policy as stated in section 2472.4 of the Medicare Carriers
Manual.
With regard to revising the wording that pertains to brief office
visits for monitoring or changing drug prescriptions, the initial
decision as to whether to prescribe a drug is beyond the scope of this
exception as authorized by the statute. Consequently we have not made
the suggested change.
Regarding the concern about whether the limitation applies to
``partial hospitalization services furnished by CPs,'' the situation
does not exist so the concern is moot. As specified in Sec. 410.43(b),
CP services are separately covered and are not paid as partial
hospitalization services. Thus, CP services are subject to the
limitation when they are furnished to patients of a partial
hospitalization program.
We cannot accept the suggestion to eliminate the outpatient mental
health treatment limitation. It is not within our administrative
authority to eliminate the statutory limitation; elimination of this
limitation would require a change in the law. Neither are we in a
position to specify that the limitation should never apply to
psychological testing. In fact, we understand that testing frequently
is performed in order to evaluate a patient's progress. Clearly in
those cases the testing is part of treatment and, thus, is subject to
the limitation.
We disagree with the comment that the example under paragraph (d)
is incorrect. The example is correct. The Act specifies, at section
1833(c), that the limitation must be applied first in order to
determine the amount of expenses to which the deductible is applied. We
have, however, expanded the examples to illustrate how the limitation
applies to single assigned and unassigned claims for both inpatient and
outpatient services. We have also made revisions to the examples to
make them easier to understand.
E. The Consultation Requirement, CPs and CSWs (Secs. 410.71(e)(2) and
410.73(d))
Comment: We received a great many comments from psychologists,
social workers, and professional organizations representing these
nonphysician practitioners that supported the general attestation/
consultation requirement. However, these commenters overwhelmingly
opposed the specific proposed requirements under the general
requirement for an attestation/consultation.
One of their concerns addressed the proposed requirement that would
require either the CP or CSW to make at least four attempts to consult
directly with the primary care or attending physician prior to
resorting to written notification. The commenters believed that this
proposal exceeds what Congress envisioned in terms of a consultation
requirement, and that it imposes an unreasonable, unnecessary, and
unjustifiable burden on practitioners who participate in the Medicare
program. They stated that their review of the OBRA 89 legislative
history reveals that Congress envisioned either written or direct
consultation, with no expressed preference for one over the other, and
with no requirement that more than one attempt at direct consultation
take place. Also, they made a position for enabling CPs or CSWs to use
their professional judgement about whether and when to consult a
patient's physician based on the needs of the patient, not the needs of
the reimbursement system. They suggested that the system's needs must
never be elevated above the patient's needs. Moreover, they suggested
that either one successful direct attempt to consult by telephone or
written notification is appropriate, sufficient, and consistent with
congressional intent. However, we received many comments that were
contrary to the position taken above, in that they supported the
proposed requirement for written notification to the patient's primary
care or attending physician if the CP or CSW failed after four attempts
to telephone the physician.
Response: We agree with the suggestion that there needs to be
changes or exceptions made to the proposed provisions of the
consultation requirement. In view of this, we have reconsidered our
approach about the method used by a CP or CSW to establish a
consultation with a patient's primary care or attending physician. If
the goal is that, if a patient consents, a consultation occur in a
timely manner, it really does not matter whether the CP's or CSW's
approach is by telephone or in writing. Our initial preference for
telephone calls was that a telephone call solicits a more immediate
response (provided that the physician is available) than sending a
letter by mail to the physician and awaiting a response.
We realize that requiring four phone calls by the CP or CSW to the
patient's primary care or attending physician could be burdensome.
Accordingly, in this final rule we require that if the beneficiary
assents to a CP or CSW consultation with his or her primary care or
attending physician, the CP or CSW must attempt to consult the
[[Page 20121]]
physician within a reasonable time after receiving the beneficiary's
consent to the consultation. If attempts to consult directly with the
physician are not successful, the CP or CSW must notify the physician,
within a reasonable time, that he or she is furnishing services to the
beneficiary. We believe that this effort represents a sincere attempt
on behalf of the practitioner to comply with the consultation
requirement regardless of whether the physician responds to the
request. Unless the primary care or attending physician referred the
beneficiary to the CP or CSW, the practitioner must document in the
patient's medical record the date the patient consented or declined
consent to consultation, the date of consultation, or if attempts to
consult did not succeed, the date and manner of notification to the
physician.
Comment: Many commenters stated that the requirement that
consultation occur within 1 week after obtaining the beneficiary's
consent is unnecessarily burdensome and does not give consideration to
patients who visit their practitioners less often than weekly. These
commenters suggested that, instead, we require a consultation within
the first month of treatment, with documented notification in writing.
Other commenters suggested that we maintain our proposed requirement
for a consultation within 1 week of the patient's consent and add that
it must take place by the time treatment is initiated.
Response: As we revisited this issue, we concluded that it is not
necessary to specify that the attempt at consultation occur within 1
week of the patient's consent. Our focus for the consultation
requirement is on whether CPs or CSWs are aware of their patient's
medical condition and any medications that they may be taking that
could interfere with treatment of their patient. Therefore, this final
rule requires that the attempt(s) at consultation be made within a
reasonable time after receiving the patient's's consent.
Comment: The above group of commenters also stated that CPs and
CSWs should be required to sign the attestation statement only once--
when requesting a provider number under the Medicare program. The
commenters believed that CPs and CSWs should not be required to make
the same attestation statement annually thereafter and that having the
original consultation attestation statement on file should be
sufficient to document adherence to the consultation requirement. They
believed that a requirement such as the one that was proposed, results
in unnecessary paperwork, delays in services, and an undue burden on
both the practitioner and the carrier. Therefore, they urged us to
abolish the stipulation that requires a CP or CSW to resubmit an
attestation statement on an annual basis.
Response: Initially, we viewed the proposed annual resubmission of
the attestation statement as a way to remind CPs and CSWs both of the
significance of the consultation requirement and that the requirement
is a condition of payment for their services. We agree, however, that
an annual attestation may be an onerous task for carriers and for CPs
and CSWs who participate under Medicare. Thus, in reexamining this
issue with a goal to reduce paperwork and information collection
burden, we have concluded that a less burdensome approach is for us to
accept the CP's or CSW's signature on the certification statement that
is part of the provider/supplier enrollment application as an
indication of his or her agreement to the consultation requirement. In
signing that statement, the applicant certifies to, among other things,
the following: ``I am familiar with and agree to abide by the Medicare
laws and regulations that apply to my provider type, including the
Conditions of Participation.'' Therefore, in this final rule, we
require that the attestation occur only at the time the CP or CSW
requests a provider number. Thus, there is no burden on CPs and CSWs
who already have a provider number.
Comment: Several commenters believed that some exceptions to a
mandatory consultation would be appropriate. First, they stated that
the proposed rules do not take into account the situation in which a
patient is a hospital inpatient or in a skilled nursing facility and is
ordered or referred to the CP or CSW by his or her primary care or
attending physician. The commenters pointed out that, in these cases,
the patient's physician is aware of the mental health intervention and
treatment and that communication in these settings takes place via
orders, consultation notes, and progress notes that the physician
reads. The commenters suggested that, under these circumstances, a
consultation is unwarranted and, therefore, exceptions be made to the
consultation requirement and the rules simply require a notation in the
patient's chart regarding the consultation. Conversely, others
commented that the consultation requirement should apply to patients in
all settings and that the contact should be with the patient's primary
and specialist physicians who are treating the patient.
Response: We disagree with the suggestion that we establish an
exception to the consultation requirement for services that CPs or CSWs
furnish to patients in the hospital and skilled nursing facility
settings or that an exception to this requirement be made based on the
site of services. However, we see no reason to require CPs or CSWs to
initiate consultation in cases in which it is the patient's primary
care or attending physician who actually refers the patient to the CP
or CSW. For CPs or CSWs who receive a patient based on a physician's
referral, we believe it is sufficient to require the practitioners to
make a note to that effect on the patient's chart, including the
referring physician's name. This final rule revises our proposed
requirement accordingly. (Note also that this final rule designates
proposed Sec. 410.71(e)(2) as Sec. 410.71(e).)
Comment: Many commenters expressed a concern about patients who do
not wish the CP or CSW to consult with their primary care or attending
physician. These commenters contend that patients who do not desire
such a consultation should have the right to withhold consent. In
addition, these commenters believed that a request for a consultation
with a beneficiary's physician could violate that person's rights
because it makes public to the physician that the person is seeking
mental health services. Accordingly, these commenters have urged us to
include a specific provision under the attestation statement to address
situations wherein a patient refuses consent to a consultation between
his or her CP or CSW and their primary care or attending physician.
Response: We believe emphatically that Medicare beneficiaries must
have the right to refuse consent to a consultation between their
practitioner and their primary care or attending physician. No
beneficiary should ever be coerced to consent to such a consultation.
In this final rule, at Sec. 410.71(e)(3). We require that, if a
beneficiary does not consent to the consultation, the date the
beneficiary declined consent to the consultation be documented in the
beneficiary's medical record.
Comment: Some commenters expressed concern about situations in
which physicians do not respond to the request for a consultation
because it is not a billable service. The commenters maintain that
often physicians are not available for a consultation and are not eager
to return a phone call or respond to a letter if they cannot bill the
Medicare program for their efforts to participate in a consultation
with their patient's CP or CSW. Therefore, the
[[Page 20122]]
commenters suggest that we allow for monetary compensation to the
participants of the consultation, or make some allowance in the final
rule for a notation in patient's records, of a good faith attempt by
the CP or CSW to consult with the patient's primary care or attending
physician. Other commenters maintain that CPs and CSWs should not be
permitted to bill for the required consultation.
Response: We maintain that the consultation between the CP or CSW
and the patient's primary care or attending physician is not a billable
service for any of the professionals involved. In addition, as stated
in the proposed rule, the House Ways and Means Committee report that
accompanied OBRA '89 (H.R. Report No. 247, 101st Cong., 1st Sess. 1015)
indicated that the Committee intended that the consultation not be a
billable service. Accordingly, neither a CP, CSW, or physician can bill
the Medicare program or the beneficiary for the consultation. Also, we
have made allowances to provisions of the consultation requirement that
will accommodate CPs and CSWs in situations in which they make a good
faith attempt to consult with their patient's primary care or attending
physician even though that effort is not reciprocated.
Comment: Finally, numerous commenters urged us to direct our
carriers to conduct regular reviews to determine compliance with the
consultation requirement and to ensure appropriate treatment is being
provided by CPs and CSWs.
Response: We do not believe it is necessary to hold CPs and CSWs to
a higher standard of review than is required for other health care
professionals. For example, we do not believe it is necessary to
require CPs to routinely submit documentation supporting their
communication, or attempts to communicate, with the attending physician
nor would we expect our carriers to conduct regular reviews of CPs and
CSWs absent an indication that inappropriate treatment is being
furnished. Carriers may request documentation and conduct reviews of
CPs and CSWs, as they may for any other health professional, to
determine that the services furnished are medically necessary.
F. Diagnostic Coding Used by CPs and CSWs (Sec. 410.155(a))
Comment: Many commenters suggested that diagnosis codes from the
fourth edition of the American Psychiatric Association's, Diagnostic
and Statistical Manual--Mental Disorders (DSM-IV) should be recognized
in addition to, or instead of, diagnosis codes from ICD-9-CM. They
pointed out that the DSM-IV code numbers are fully compatible with ICD-
9-CM codes. On the other hand, several other commenters asserted that
only ICD-9-CM diagnosis codes should be used when submitting claims.
Response: After reviewing the DSM-IV codes as published in May 1994
and comparing them to the 1997 version of ICD-9-CM codes, we have
concluded that this is a distinction without a difference. With only
two minor exceptions, which appear to be inadvertent errors, the
numerical codes under both systems now are identical. Therefore, the
Medicare claims processing system will accept diagnosis code numbers
derived from DSM-IV (except for the two discrepancies noted below)
because they are indistinguishable from ICD-9-CM code numbers. One
discrepancy is that ICD-9-CM code 305.1 has an additional zero shown in
the fifth position in DSM-IV. The other discrepancy is that DSM-IV
lists code 312.8 but the 1997 version of ICD-9-CM requires an
additional digit (1, 2, or 9) in the fifth position.
We had proposed, in Sec. 410.155(a), to continue defining a
``mental, psychoneurotic, or personality disorder'' which is subject to
the outpatient mental health treatment limitation as the specific
psychiatric conditions described in the American Psychiatric
Association's Diagnostic and Statistical Manual--Mental Disorders.
Those conditions are represented in the code range 290 through 319.
Since DSM-IV and ICD-9-CM code numbers are now compatible, we agree
that it is appropriate to recognize a definition that is consistent
with both coding systems.
Because the American Psychiatric Associations's Manual is updated
periodically and ICD-9-CM is updated annually, it seems desirable to
avoid specifying any particular edition of either coding system.
Therefore, this final rule removes the definition of ``mental,
psychoneurotic, or personality disorder'' from Sec. 410.155(a), and,
instead, specifies in Sec. 410.155(b) that ``mental, psychoneurotic, or
personality disorder'' means any condition identified by a diagnosis
code within the range of 290 through 319. This should contribute to the
ease of understanding and operational simplicity, as well as avoid the
need to update the regulation merely due to periodic code revisions
within the overall range.
In addition, we are removing proposed Sec. 410.71(d) because that
paragraph made distinctions, based on date of service, as to who may
bill for CP services furnished to hospital inpatients. That distinction
is no longer necessary.
In the preamble of the December 1993 proposed rule we stated our
intent to require CPs and CSWs to use ICD-9-CM coding when submitting
Medicare claims. However, as an oversight, we failed to state how we
would revise our regulations to set forth this requirement. This final
rule revises Sec. 424.32(a)(2) to add that claims for CP services or
CSW services must include appropriate diagnostic coding using ICD-9-CM.
Since the numerical codes under both ICD-9-CM and DSM-IV are identical,
this should not create a burden for the submitters of claims.
G. The Clinical Social Worker Definition (Sec. 410.73(a))
Comment: We received several comments informing us that, while all
States provide for some form of licensure or certification, not all
States use the term ``clinical social worker'' to refer to master's or
doctorate level social workers who have been licensed by the State. For
example, in Kentucky the highest level of State licensure is called
``Independent Practice (Clinical).'' Accordingly, no person may hold
himself or herself out to the public as a CSW in Kentucky unless he or
she has been certified for independent practice by the Kentucky State
Board of Examiners. The commenters asked whether a Board certified
person in Kentucky would be recognized under Medicare as a CSW entitled
to provide services under the program if the individual is not
literally licensed as a CSW.
We were similarly informed that, in New York the title awarded by
the State to individuals who meet the CSW qualifications is ``Certified
Social Worker.'' It was suggested, therefore, that the easiest way to
address the lack of uniformity of titles for social workers would be to
amend one of the requirements under the CSW qualifications to read that
the individual is either licensed or certified as a CSW (or at the
highest level of practice provided by State law).
Response: We understand this concern, but the proposed definition
was based on explicit language in the Federal statute. Therefore, we
will continue to provide, as one way of meeting the definition,
licensure or certification specifically as a CSW. However, under the
authority of section 1861(hh)(1)(C)(ii)(II) of the Act, this final rule
provides an alternative route to Medicare qualification. That is, this
[[Page 20123]]
final rule revises proposed Sec. 410.73(a)(3) to provide, in the case
of an individual in a State that does not provide for licensure or
certification as a clinical social worker, that the individual meets
the definition of ``clinical social worker'' if the individual--
Is licensed or certified at the highest level of practice
provided by the laws of the State in which the services are performed;
and
Has completed at least 2 years or 3,000 hours of post
master's degree supervised clinical social work practice under the
supervision of a master's degree level social worker in an appropriate
setting, such as a hospital, SNF, or clinic.
Thus, individuals in States such as Kentucky or New York can qualify as
CSWs.
H. Definition of CSW Services (Secs. 410.73(b) and (c)(2))
In the December 1993 proposed rule, we discussed the difficulty we
encountered in addressing the statutory definition of CSW services that
excludes services furnished to SNF inpatients that an SNF is required
to provide as a requirement for participation. We invited public
comment and suggestions on the question of whether it is possible to
identify any CSW services (that is, services that would be covered if
furnished by a CSW to other than hospital or SNF inpatients) that an
SNF is not required to provide.
Although, we asked specifically for comments on the SNF social
services versus CSW services issue, we also received comments about the
statutory coverage exclusion of CSW services to hospital inpatients.
Comment: One professional association commented, on behalf of
social workers, that the proposed rule places an unnecessary emphasis
on the site of services, rather than the availability of CSW services
to Medicare beneficiaries. This association contends that section
1861(hh)(2) of the Act provides the specificity to avoid the confusion
between social services and CSW services by limiting direct payment
under the Part B outpatient mental health benefit to the diagnosis and
treatment of mental illnesses as performed by CSWs who meet the
qualifications of section 1861(hh)(1).
Additionally, this association asserted that the diagnosis and
treatment of mental illnesses is not analogous to the broad range of
tasks expected of an SNF's social services staff and neither is it
analogous to the overall requirement that the SNF provide medically
related social services to attain or to maintain the highest
practicable physical, mental, or psychosocial well-being of each
resident. It also asserted that, if this analogy were true, the need
for clarification would extend far beyond the issue of reimbursement
for CSW services in SNFs; the issue would become whether payment, under
Part B, would be allowed for the diagnosis and treatment of mental
illnesses of SNF residents by any mental health professional recognized
by the statute, including CPs and psychiatrists.
Therefore, this association stated that, when submitting Medicare
Part B claims, CSW services may be easily distinguished from the social
services requirement of SNFs by the use of the ICD-9-CM coding system
to describe the diagnosed mental illnesses and mental disorders, with
the therapeutic services furnished reported using the appropriate CPT
psychiatry codes. (CPT stands for [Physicians'] Current Procedural
Terminology, 4th Edition, 1993 (copyrighted by the American Medical
Association).) The association stated its belief that some functions of
the SNF social services staff could be described by the E/M
(evaluation/management) CPT codes, rather than the CPT psychiatry
codes.
One commenter expressed the opinion that the qualifications
required of a social worker who is hired by an SNF to furnish social
services are far less than those of a CSW. A national federation
representing CSWs commented that the social work services that SNFs are
required to provide without additional charge to the patient include
psychosocial assessment and treatment planning, linkage with other
professional and community services, and supportive counseling; they do
not include the formal diagnosis and treatment of mental or emotional
disorders. Therefore, they have recommended that, whenever CSWs
independently diagnose or treat a mental or emotional disorder, these
services be paid separate and apart from the payment to the facility.
This federation also suggested that separately paid services can be
easily distinguished from social services by reference to the
appropriate Medicare procedure codes; namely, 90801 for diagnosis and
90841 through 90853 for treatment.
One medical center recommended that social services that are
required under the SNF requirements for participation include:
psychosocial assessment, discharge planning, general casework services,
case consultation, community contacts, patient correspondence, and
patient referral. In contrast, CSW services that would be covered when
furnished to SNF patients would include: individual therapy (treatment
of adjustment disorders, personality disorders, psychoneurosis, and
complicated grief/illness reactions), crisis intervention, family
therapy, and group therapy.
Lastly, one professional association commented that it recognized
our difficulty in distinguishing the SNF required social services from
CSW services when furnished in an SNF setting. This association
suggested that we consider using information contained in the Pre-
Admission Screening and Annual Resident Review instrument or the annual
resident assessment instrument to assist in documenting variances
between these services.
Response: The emphasis on site of service is directly due to the
distinctions that the statute makes on that basis. We must reiterate
that the definition of CSW services in 1861(hh)(2) excludes services
furnished to an inpatient of an SNF which the facility is required to
provide as a requirement for participation.
We agree with the general consensus that medically related social
services for SNF residents, identified in section 1819(b)(4)(A)(ii) of
the Act and at 42 CFR 483.15(g), should not be covered as CSW services.
These services involve assisting residents in maintaining or improving
their ability to manage their everyday physical, mental, and
psychosocial needs. They include discharge planning, counseling,
assessment, and care planning. These services generally do not require
performance by a CSW.
However, the commenters did not acknowledge that section
1819(b)(4)(A)(i) requires an SNF also to provide specialized
rehabilitative services in order to fulfill the resident's plan of
care. These services include mental health rehabilitative services for
mental illness, as detailed in Sec. 483.45. Our guidance to surveyors
describes the intent of this requirement in the following terms:
``Specialized rehabilitative services are considered a facility service
and are, thus, included within the scope of facility services.'' These
services are described in the guidelines as including (among other
services) individual, group, and family psychotherapy.
Individual and group psychotherapy comprise nearly all the services
for which Medicare pays CSWs, in covered settings. As noted, these
services are among the specialized mental health rehabilitative
services that SNFs are required to provide. While data indicates that
very few CSWs furnish services to SNF inpatients, that does not
[[Page 20124]]
diminish the fact that the few services they do furnish in SNFs are
services that SNFs are required to provide.
The procedure codes used on Part B Medicare claims include CPT
codes as a subset of the HCFA Common Procedure Coding System (HCPCS).
No meaningful distinction regarding services furnished by CSWs to SNF
inpatients can be made based on the use of HCPCS psychiatry procedure
codes, because the same codes are used to report CSW services in
various settings.
We cannot accept the suggestion that CSWs should be paid separate
and apart from payment to the SNF for independently diagnosing or
treating mental disorders of SNF patients, nor can we accept the
suggestion that psychotherapy services furnished by CSWs to patients
who have diagnosis codes indicating mental illness should be covered as
CSW services rather than viewed as services that SNFs are required to
provide. SNFs are explicitly required to provide not only medically
related social services, but also mental health rehabilitative services
for mental illness, as detailed in Sec. 483.45.
We could not determine how information in the Pre-Admission
Screening and Annual Resident Review instrument, or in the annual
resident assessment instrument, could be used to distinguish any
services that SNFs are not required to provide.
With respect to the concern regarding the distinction between
services furnished to SNF inpatients by CSWs and similar services
furnished by CPs and physicians, we must point out that this
distinction is based on the statutory parallels between hospital and
SNF services. Section 1861(b) of the Act excludes the services of
physicians and CPs from coverage as inpatient hospital services, yet
1862(a)(14) of the Act compels a hospital to include CSW services in
its billing. Section 1861(h) of the Act defines extended care services
(the inpatient services for which SNFs are paid under Part A) as
excluding any service that would not be included under 1861(b) if
furnished to an inpatient of a hospital. Thus, the services of
physicians and CPs are likewise excluded from coverage as SNF services,
while the services of CSWs can be included.
The statute uses the identical term, ``medical social services,''
in defining both inpatient hospital services and extended care
services. For hospitals, this term implicitly includes the full range
of services furnished by CSWs. There is no basis for concluding that
the term has a different meaning for SNFs.
Although physicians and CPs can be paid directly for services they
furnish to SNF inpatients, CSWs are subject to a statutory restriction.
The fact that a physician or CP can be paid directly for certain
services does not lead to a conclusion that a CSW should be paid
directly for similar services despite the CSW benefit restriction. An
SNF cannot include physician or CP services as facility services, but
it can include services performed by a CSW in its facility services.
After thoroughly examining this issue and the suggestions received,
we are unable to identify any specific service performed by CSWs for
SNF inpatients that SNFs are not required to provide. Consequently, we
conclude that CSW services exclude all services furnished to SNF
inpatients.
Comment: A major professional association commented that it is
aware that medical social services are required services in hospitals
and that medical social services are bundled into the hospital's
payment rate. However, neither the Medicare statute nor regulations
define the medical social services requirement nor the qualifications
of professionals who may provide these services in the hospital.
Accordingly, this association is concerned about the bundling issue as
it relates to the Medicare Part B outpatient benefit for CSW services,
particularly in psychiatric hospital outpatient departments. Therefore,
the association asked that, if the diagnosis and treatment of mental
illnesses and mental disorders provided by CSWs are indeed factored
into the hospital's overall payment rate, how are CSW services
currently mandated in outpatient hospital settings and what are the
quality assurance mechanisms that ensure CSW services are made
available to Medicare beneficiaries in hospital outpatient departments.
Response: In regard to the question about whether CSW services are
currently mandated in the hospital outpatient setting, there is no
mandate specifically for CSW services in this setting. However, the
quality assurance conditions of participation for hospitals (which
apply to both the inpatient and outpatient setting) under
Sec. 482.21(b) require the hospital to have an ongoing plan, consistent
with available community and hospital resources, to provide, or make
available, social work, psychological, and educational services to meet
the medically related needs of its patients. The hospital must also
have an effective, ongoing discharge planning program that facilitates
the provision of followup care. Furthermore, the hospital must take and
document appropriate remedial action to address deficiencies found
through the quality assurance program, as well as document the outcome
of the remedial action taken.
In addition to meeting the same quality assurance conditions of
participation as general hospitals, psychiatric hospitals must meet the
conditions at Sec. 482.62 that pertain to the special staff
requirements for psychiatric hospitals. Section 482.62(f) requires
psychiatric hospitals to have on staff a director of social services
who monitors and evaluates the quality and appropriateness of the
social services furnished. The services must be furnished in accordance
with accepted standards of practice and established policies and
procedures.
The director of the social work department or services must have a
master's degree from an accredited school of social work or must be
qualified by education and experience in the social services needs of
the mentally ill. If the director does not hold a master's degree in
social work, at least one staff member must have this qualification.
Additionally, the social service staff responsibilities must include,
but are not limited to, participation in discharge planning, arranging
for follow-up care, and developing mechanisms for exchange of
appropriate information with sources outside the hospital. Conceivably,
a CSW could serve as a social services staff director or staff member
of a psychiatric hospital.
Comment: Another commenter suggested that the coverage exclusion of
CSW services furnished to hospital inpatients under the Part B CSW
benefit not pertain to nonparticipating hospitals. As rationale, the
commenter stated that, since nonparticipating hospitals receive no Part
A payment, there would be no risk of duplicate payment by both the
intermediary and the carrier. Therefore, the commenter concluded that
Medicare should make payment under Medicare Part B to nonparticipating
hospitals for CSW services.
Response: We agree that, because ``bundling'' is not an issue for
nonparticipating hospitals, there is no risk of duplicate payment in
the case of services furnished in nonparticipating hospitals. However,
we disagree with the conclusion the commenter reached concerning to
whom payment should be made. Because the services of a CSW furnished to
a patient in a nonparticipating hospital are covered, under section
1861(s)(2)(N) of the Act, as ``medical and other health services''
payment for these services is made directly to the CSW. This final rule
clarifies that CSW services do not
[[Page 20125]]
include services furnished to inpatients of a Medicare participating
hospital.
I. CSW Services Furnished in End Stage Renal Disease facilities
(Sec. 410.73(c)(3))
As stated earlier, payment for social worker services is included
in the composite rate payment made to the dialysis facility. Therefore,
CSWs cannot bill directly for those services. We invited public
comment, however, on whether any CSW services to dialysis patients can
be distinguished from the required facility services.
Comment: A national federation representing CSWs commented that CSW
services furnished in ESRD facilities should be treated the same way
they are treated when furnished in SNFs. That is, whenever CSWs
independently diagnose or treat a mental or emotional disorder, these
services should be paid separately and apart from the composite rate
paid to the ESRD facility. The federation recommended that CSW services
be distinguished from ESRD required social worker services by reference
to the appropriate Medicare procedure codes; namely, 90801 for
diagnosis and 90841 through 90853 for treatment.
Similarly, another commenter recommended that the same guidelines
and payment be established for CSW services under Part B to dialysis
patients as those established for CSW services to SNF patients. Many
dialysis patients, especially newly diagnosed or unstable patients,
require and benefit from individualized CSW services. This commenter
believed that the composite rate currently paid to dialysis facilities
does not come close to covering these specialized services and therapy
for treatment of a mental, psychoneurotic, or personality disorder.
Response: After examining the issue of CSW services to SNF
inpatients, it is apparent that the issue of CSW services for patients
of dialysis facilities differs significantly. The statutory site-based
restrictions on CSW services apply only to inpatient settings--
inpatient hospital and inpatient SNF. Inpatient facilities are expected
to meet all of their patient's needs (including both social services
and specialized rehabilitative services). In contrast, the statutory
definition of CSW services does not restrict CSW professional services
in other settings, such as dialysis facilities.
Dialysis facilities are expected to meet solely dialysis-related
needs. Dialysis facilities are required, at Sec. 405.2163(c), merely to
provide ``social services'' that are directed at supporting and
maximizing the social functioning and adjustment of the patient. Under
these dialysis facility required social services, a qualified social
worker (who need not be a CSW) is responsible for conducting
psychosocial evaluations, participating in team review of patient
progress and recommending changes in treatment based on the patient's
current psychosocial needs, providing casework and groupwork services
to patients and their families in dealing with the special problems
associated with ESRD, and identifying community social agencies and
other resources and assisting patients and families to use them. A
dialysis facility, however, is not required to provide the full scope
of services comparable to the specialized rehabilitative services for
mental illness that section 1819(b)(4)(A)(i) of the Act requires an SNF
to provide.
Accordingly, it would not be appropriate to require that all
services that a CSW might furnish to a dialysis patient be bundled into
the composite rate. Therefore, it is appropriate for a CSW to bill the
Part B carrier separately for only those individualized professional
mental health diagnostic and treatment services furnished to dialysis
facility patients that are not included in the composite rate. This
retains the current policy; CSWs have been permitted to bill the
carrier directly for their individual professional mental health
diagnostic and treatment services that do not reflect services that are
included in the ESRD composite rate. However, carriers will deny any
claims for services that reflect the dialysis-related social services
that dialysis facilities are required to provide under
Sec. 405.2163(c). Thus, there will be no change in coverage for CSW
services furnished to patients in dialysis facilities.
J. Regulatory Impact Analysis
We received comments concerning the regulatory impact analysis. We
present and respond to those comments in section VI. of this document.
IV. Provisions of the Final Rule
The proposed rule is adopted, with the changes listed below. Many
of these changes are discussed in section III of this preamble. If the
change is not discussed in section III, the reason for the change is
given below.
Changes to Proposed Sec. 410.71
We revise the example in paragraph (a)(2)(iv).
We delete proposed paragraph (d) since the provision is dated.
In paragraph (e)(1), now designated as paragraph (d), we revise the
requirements for qualification as a CP.
We designate proposed paragraph (e)(2) as paragraph (e) and revise
the consultation requirements.
Changes to Proposed Sec. 410.73
We revise paragraph (a)(3) to provide that, in the case of an
individual in a State that does not provide for licensure or
certification as a clinical social worker, an individual may meet the
licensure/certification requirement if he or she is licensed or
certified ``at the highest level of practice provided by the laws of
the State in which the services are performed''.
We restructure proposed paragraphs (b) and (c)(1) through (c)(3) to
combine their contents into a new paragraph (b) and the contents of
paragraph (c)(4) and (c)(5) into a new paragraph (d). We believe the
new paragraphs set forth the provisions in a clearer manner.
We designate proposed paragraph (d) as paragraph (c) and, rather
than set forth the consultation requirements in detail, we cross refer
to the requirements set forth in Sec. 410.71(f).
Changes to Proposed Sec. 410.152
The changes we proposed to make to paragraphs (a)(2) and (b) are
not made. Further, paragraphs (k) through (m) are not added. These
proposed provisions, which concern payment, are addressed for clinical
psychologists in the final CP fee schedule rule published on October
31, 1997 (62 FR 59260). That rule also addresses, indirectly, payment
provisions for clinical social workers since they are paid at 75
percent of the CP fee schedule.
Changes to Proposed Sec. 410.155
We are not making the proposed changes to paragraph (a),
``Definitions.'' That is, we are not adding a definition of ``mental
health treatment.'' In addition, we are removing the definition of
``hospital.'' We do not believe it is necessary to define these terms
since they do not have a meaning that is different from the meaning
either given in the Medicare statute or as used elsewhere in our
regulations. Also, as discussed earlier, we now define ``mental,
psychoneurotic, or personality disorder'' in paragraph (b). Therefore,
existing Sec. 410.155(a) is removed in its entirety.
Proposed paragraph (b) is revised to improve its readability. In
addition, we add that medical management, as opposed to psychotherapy,
furnished to a patient diagnosed with Alzheimer's disease or a related
disorder, is not subject to the mental health treatment limitation.
[[Page 20126]]
Proposed paragraph (c) is revised to improve its readability, and
it is designated as new paragraph (a).
The examples in proposed paragraph (d) are revised to add greater
clarity, and the paragraph is designated as paragraph (c).
Revision of Existing Sec. 424.32(a)
We revise existing Sec. 424.32(a) to specify that claims for CP
services or CSW services must contain appropriate diagnostic coding
using ICD-9-CM.
Conforming Change
This final rule revises paragraph (c), ``Standard: Care of
patients,'' of Sec. 482.12, ``Conditions of participation: Governing
Body'' to specify that a Medicare patient in a Medicare-participating
hospital who is receiving qualified psychologist services may be under
the care of a CP with respect to those services, to the extent
permitted under State law. This revision is made to conform our
regulations to section 104 of the Social Security Act Amendments of
1994, described in section I.A.1 of this preamble.
Other Changes
We have also made several editorial changes to improve the
readability of the regulations. These changes do not affect the
substance of the provisions.
V. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, agencies are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
Whether the information collection is necessary and useful
to carry out the proper functions of the agency;
The accuracy of the agency's estimate of the information
collection burden;
The quality, utility, and clarity of the information to be
collected; and
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
Therefore, we are soliciting public comment on each of these issues
for the proposed information collection requirements discussed below.
The title and description of the individual information collection
requirements are shown below with an estimate of the annual reporting
and recordkeeping burden. Included in the estimate is the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
As indicated earlier in this preamble, Sec. 410.71(e) references
the education, training, and experience requirements necessary to
participate in the Medicare program as a clinical psychologist. The
specific information necessary to determine compliance with the
requirements referenced in Sec. 410.71(e) are captured on the Provider/
Supplier Enrollment Application (HCFA-855), which is currently approved
under OMB approval number 0938-0685 with an expiration date of May 31,
1998.
We estimate that the completion of form HCFA-855 will impose a one-
time burden of approximately 90 minutes.
Again, we welcome comments on all aspects of the above material.
Organizations and individuals that wish to submit comments on the
information and recordkeeping requirements captured on the HCFA-855 as
they relate to Sec. 410.71(e) should direct them to the following
address: Health Care Financing Administration, Office of Information
Systems, Division of HCFA Enterprise Standards, Room C2-26-17, 7500
Security Boulevard, Baltimore, MD 21244-1850.
VI. Regulatory Impact Analysis
We have examined the impacts of this rule as required by Executive
Order 12866 and the Regulatory Flexibility Act (RFA) (Public Law 96-
354). Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts; and equity). The RFA requires agencies
to analyze options for regulatory relief of small businesses. For
purposes of the RFA, we consider all psychologists, social workers, and
hospitals to be small entities.
In addition, section 1102(b) of the Act requires the Secretary to
prepare a regulatory impact analysis for any rule that may have a
significant impact on the operation of a substantial number of small
rural hospitals. This analysis must conform to the provisions of
section 604 of the RFA. For purposes of section 1102(b) of the Act, we
define a small rural hospital as a hospital that is located outside of
a Metropolitan Statistical Area and has fewer than 50 beds. We are not
preparing a rural impact statement since we have determined, and the
Secretary certifies, that this rule will not have a significant impact
on the operations of a substantial number of small rural hospitals.
In accordance with sections 1861(s)(2)(M) and 1861(ii) of the Act,
this rule allows payment to be made directly to a CP for qualified
psychologist services furnished by the CP or (except for services
furnished to hospital patients) as an incident to the CP's services.
Further, under the authority of section 1861(ii), which looks to the
Secretary to define ``clinical psychologist,'' this rule specifies that
a CP is an individual who--
(1) Holds a doctoral degree in psychology, and
(2) Is licensed or certified, on the basis of the doctoral degree
in psychology, by the State in which he or she practices, at the
independent practice level of psychology to furnish diagnostic,
assessment, preventive, and therapeutic services directly to
individuals.
In accordance with sections 1861(s)(2)(N) and 1861(hh) of the Act,
this rule allows payment to be made directly to a CSW for the services
he or she furnishes, except for services furnished to an inpatient of a
Medicare-participating hospital and certain services furnished to an
inpatient of a Medicare-participating SNF or ESRD facility. Also, based
on the definition of ``clinical social worker'' at section 1861(hh) of
the Act, this rule establishes in regulations the qualifications a CSW
must meet under Medicare.
In accordance with section 6113 of OBRA '89, as amended by SSA '94,
this rule requires that CPs and CSWs agree to consult with the
beneficiary's attending or primary care physician, if the beneficiary
consents to the consultation, and establishes criteria regarding the
consultation.
In accordance with section 1833(c) of the Act, this rule revises
our regulations to eliminate the dollar limitation on payment for
outpatient mental health treatment but retains the 62\1/2\ percent
limitation.
This rule also requires that CPs and CSWs use ICD-9-CM coding when
submitting Medicare Part B claims.
Lastly, this rule conforms our regulations to section 1861(e)(4) of
the Act by providing that a Medicare patient in a Medicare-
participating hospital who is receiving qualified psychologist services
may be under the care of a CP with respect to those services, to the
extent permitted under State law.
As stated in the December 1993 proposed rule, it has been a long-
[[Page 20127]]
standing requirement that, in order for his or her services to be
covered under Medicare, the CP possess a doctoral degree from a program
in clinical psychology. The literal wording of this requirement would
exclude many qualified practitioners of psychology whose doctoral
degrees are not labeled ``clinical psychology'' but who have analogous
training and practical experience that qualifies them to practice
clinical psychology.
However, as we discussed in the regulatory impact analysis section
of the December 1993 proposed rule, in the absence of final regulations
defining the criteria a CP must meet for Medicare purposes, the
Medicare carriers have had the authority to determine whether a
particular doctorate-level psychologist qualified to have services
covered by Medicare. In using this authority, the carriers decided if
the educational background and experience of a particular psychologist
qualified him or her as a CP. In the proposed rule, we estimated that
two-thirds of the carriers had recognized psychologists based on the
education and experience factors that we proposed and we took that
factor, along with others, into consideration in our estimate of
Medicare expenditures for CP and CSW services during fiscal years 1994
through 1997.
We received two comments on the regulatory impact analysis
contained in the proposed rule. The comments came from major
associations; one represents psychiatrists and the other represents
psychologists.
Comment: Although the impact analysis did not state how many
psychologists we estimated might be added to the Medicare program
because of our proposed definition, one commenter suggested that we may
have underestimated the increase. (The commenter did not provide any
data in this regard.) The commenter maintained that two different
estimates should have been included, one with the proposed definition
and one based upon the previously existing definition.
This same commenter disagreed with HCFA's statement that the
anticipated increase in expenditures would be due primarily to an
increase in the number of users rather than an increase in the average
charge per service or the average number of services per beneficiary.
The commenter cited a 1993 article that concluded that therapist supply
creates demand rather than vice versa. (Behavioral HealthCare Tomorrow,
November/December 1993, prepaid plan. 26-32). The commenter believed
that we need to reevaluate the potential for significant cost increases
because of increasing the number of CPs.
Additionally, this commenter was concerned that, in the impact
analysis, we maintained that, because of the availability of the
services of CPS and CSWs, these professionals would substitute for the
services of psychiatrists and, thus, there would be an offsetting
effect in terms of program outlays. The commenter stated that we
offered no support for this assertion. Moreover, the commenter
contended that while these nonphysician practitioners may furnish
services within their limited training and ability, they do not
substitute for the services of psychiatrists.
Response: In the proposed rule, we advised the public of our
estimate of the budgetary effect of the legislative changes that
removed the site of service restrictions, added coverage for additional
providers, and eliminated the annual dollar limitation. Recent data
indicate that, rather than underestimating, we greatly overestimated
the effect of the changes. For example, we estimated that, as a result
of these legislative changes concerning Medicare expenditures for CP
and CSW services would increase by $260 million in fiscal year (FY)
1994, by $320 million in FY 1995, and by $390 million in FY 1996.
Available data now indicate that the actual increases were far less,
only $50 million in FY 1994, $60 million in FY 1995, and $30 million in
FY 1996.
In the proposed rule, we stated that we believed that the increase
in expenditures would be due primarily to an increase in the number of
users rather than an increase in the average charge per service or the
average number of services per beneficiary. More recent data indicates
that, after factoring out the increase in population, there also has
been a small increase in the total number of allowed services.
We also stated, in the proposed rule, that we expected that,
because of the increased availability of CPs and CSWs, the services of
these professionals would substitute for some of the services
previously furnished by psychiatrists, thus, having an offsetting
effect in terms of total program outlays. However, we also noted our
expectation that the services of CSWs would be in addition to those of
psychiatrists and CPs, rather than a substitute for them. While it does
appear that the volume of some psychotherapy services performed by
psychiatrists has decreased relative to the historic trend line, the
volume of many other services performed by psychiatrists (services that
require physician performance) has been gradually increasing relative
to the overall increases in total physician services. Recent data show
that, between 1992 and 1995, allowed services for CSWs, CPs, and
psychiatrists continued to increase, and that, while the rate of growth
in CP and CSW services showed a slight downward trend, there was a
slight increase in the rate of growth in psychiatrist services.
Comment: Another commenter recommended that, in analyzing the
budgetary effect of these changes, we keep in mind that mental health
treatment intervention reduces overall health care costs and conserves
valuable health care resources. The commenter stated that an accurate
and complete analysis of the budgetary effect of the changes should
include an analysis of the anticipated offset to overall health care
costs that is likely to occur.
Response: With regard to the effect of early mental health
treatment intervention on overall health care costs, we believe that
because no data exist to separately identify the effect of this factor
in comparison to the concurrent effects of the many other variables
that affect overall health care costs, the budgetary analysis suggested
by the commenter is not possible.
In addition to the above comments, we received comments related to
payment issues (for example, the effect of the lack of a CP fee
schedule on Medicare expenditures). Because payment for CP and CSW
services was addressed in a proposed rule on the CP fee schedule on
June 18, 1997 (62 FR 33158), and we addressed comments on this issue in
the final fee schedule on October 31, 1997 (62 FR 59260), we are not
addressing these comments in this document.
In general, this final rule merely conforms our regulations to
statutory provisions and, in addition, relies on State licensure
requirements when determining CP qualifications. Therefore, we believe
it will have a negligible economic impact on CP, CSW, and other
practitioners. Therefore, we are not preparing analyses for the RFA,
and the Secretary certifies that this rule will not result in a
significant economic impact on a substantial number of small entities.
In accordance with the provisions of Executive Order 12866, this
final rule was reviewed by the Office of Management and Budget.
VII. Waiver of Proposed Rulemaking
As required by the Administrative Procedure Act, we generally
provide notice and opportunity for comments on regulations unless we
can find good
[[Page 20128]]
cause for waiving the notice-and-comment procedure as impracticable,
unnecessary, or contrary to the public interest. This final rule
revises paragraph (c), ``Standard: Care of patients,'' of Sec. 482.12,
``Conditions of participation: Governing Body'' to specify that a
Medicare patient in a Medicare-participating hospital who is receiving
qualified psychologist services may be under the care of a CP with
respect to those services, to the extent permitted under State law.
This revision is made to conform our regulations to section 1861(e)(4)
of the Act. The language of section 1861(e)(4) is so specific that it
leaves no room for alternative interpretations. Accordingly, we find
good cause to waive the notice-and-comment procedure with regard to
this change to our regulations as unnecessary.
List of Subjects
42 CFR Part 410
Health facilities, Health professions, Kidney diseases,
Laboratories, Medicare, Rural areas, X-rays.
42 CFR Part 417
Administrative practice and procedure, Grant programs--health,
Health care, Health facilities, Health insurance, Health maintenance
organizations (HMO), Loan programs--health, Medicare, Reporting and
recordkeeping requirements.
42 CFR Part 424
Emergency medical services, Health facilities, Health professions,
Medicare.
42 CFR Part 482
Grant programs--health, Hospitals, Medicaid, Medicare, Reporting
and recordkeeping requirements.
For the reasons set forth in the preamble, 42 CFR chapter IV is
amended as follows:
PART 410--SUPPLEMENTARY MEDICAL INSURANCE (SMI) BENEFITS
1. The authority citation for part 410 is revised to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
Subpart B--Medical and Other Health Services
2. In Sec. 410.10, the introductory text is republished, and new
paragraphs (v) and (w) are added to read as follows:
Sec. 410.10 Medical and other health services: Included services.
Subject to the conditions and limitations specified in this
subpart, ``medical and other health services'' includes the following
services:
* * * * *
(v) Clinical psychologist services and services and supplies
furnished as an incident to the services of a clinical psychologist, as
provided in Sec. 410.71.
(w) Clinical social worker services, as provided in Sec. 410.73.
3. New Secs. 410.71 and 410.73 are added to read as follows:
Sec. 410.71 Clinical psychologist services and services and supplies
incident to clinical psychologist services.
(a) Included services. (1) Medicare Part B covers services
furnished by a clinical psychologist, who meets the requirements
specified in paragraph (d) of this section, that are within the scope
of his or her State license, if the services would be covered if
furnished by a physician or as an incident to a physician's services.
(2) Medicare Part B covers services and supplies furnished as an
incident to the services of a clinical psychologist if the following
requirements are met:
(i) The services and supplies would be covered if furnished by a
physician or as an incident to a physician's services.
(ii) The services or supplies are of the type that are commonly
furnished in a physician's or clinical psychologist's office and are
either furnished without charge or are included in the physician's or
clinical psychologist's bill.
(iii) The services are an integral, although incidental, part of
the professional services performed by the clinical psychologist.
(iv) The services are performed under the direct supervision of the
clinical psychologist. For example, when services are performed in the
clinical psychologist's office, the clinical psychologist must be
present in the office suite and immediately available to provide
assistance and direction throughout the time the service is being
performed.
(v) The individual performing the service must be an employee of
either the clinical psychologist or the legal entity that employs the
supervising clinical psychologist, under the common law control test of
the Act as more fully set forth in 20 CFR 404.1007.
(b) Application of mental health treatment limitation. The
treatment services of a clinical psychologist and services and supplies
furnished as an incident to those services are subject to the
limitation on payment for outpatient mental health treatment services
set forth in Sec. 410.155.
(c) Payment for consultations. A clinical psychologist or an
attending or primary care physician may not bill Medicare or the
beneficiary for the consultation that is required under paragraph (e)
of this section.
(d) Qualifications. For purposes of this subpart, a clinical
psychologist is an individual who--
(1) Holds a doctoral degree in psychology; and
(2) Is licensed or certified, on the basis of the doctoral degree
in psychology, by the State in which he or she practices, at the
independent practice level of psychology to furnish diagnostic,
assessment, preventive, and therapeutic services directly to
individuals.
(e) Agreement to consult. A clinical psychologist who bills
Medicare Part B must agree to meet the requirements of paragraphs
(e)(1) through (e)(3) of this section. The clinical psychologist's
signature on a Medicare provider/supplier enrollment form indicates his
or her agreement.
(1) Unless the beneficiary's primary care or attending physician
has referred the beneficiary to the clinical psychologist, to inform
the beneficiary that it is desirable for the clinical psychologist to
consult with the beneficiary's attending or primary care physician (if
the beneficiary has such a physician) to consider any conditions
contributing to the beneficiary's symptoms.
(2) If the beneficiary assents to the consultation, in accordance
with accepted professional ethical norms and taking into consideration
patient confidentiality--
(i) To attempt, within a reasonable time after receiving the
consent, to consult with the physician; and
(ii) If attempts to consult directly with the physician are not
successful, to notify the physician, within a reasonable time, that he
or she is furnishing services to the beneficiary.
(3) Unless the primary care or attending physician referred the
beneficiary to the clinical psychologist, to document, in the
beneficiary's medical record, the date the patient consented or
declined consent to consultation, the date of consultation, or, if
attempts to consult did not succeed, the date and manner of
notification to the physician.
Sec. 410.73 Clinical social worker services.
(a) Definition: clinical social worker. For purposes of this part,
a clinical
[[Page 20129]]
social worker is defined as an individual who--
(1) Possesses a master's or doctor's degree in social work;
(2) After obtaining the degree, has performed at least 2 years of
supervised clinical social work; and
(3) Either is licensed or certified as a clinical social worker by
the State in which the services are performed or, in the case of an
individual in a State that does not provide for licensure or
certification as a clinical social worker--
(i) Is licensed or certified at the highest level of practice
provided by the laws of the State in which the services are performed;
and
(ii) Has completed at least 2 years or 3,000 hours of post master's
degree supervised clinical social work practice under the supervision
of a master's degree level social worker in an appropriate setting such
as a hospital, SNF, or clinic.
(b) Covered clinical social worker services. Medicare Part B covers
clinical social worker services.
(1) Definition. ``Clinical social worker services'' means, except
as specified in paragraph (b)(2) of this section, the services of a
clinical social worker furnished for the diagnosis and treatment of
mental illness that the clinical social worker is legally authorized to
perform under State law (or the State regulatory mechanism provided by
State law) of the State in which the services are performed. The
services must be of a type that would be covered if they were furnished
by a physician or as an incident to a physician's professional service
and must meet the requirements of this section.
(2) Exception. The following services are not clinical social
worker services for purposes of billing Medicare Part B:
(i) Services furnished by a clinical social worker to an inpatient
of a Medicare-participating hospital.
(ii) Services furnished by a clinical social worker to an inpatient
of a Medicare-participating SNF.
(iii) Services furnished by a clinical social worker to a patient
in a Medicare-participating dialysis facility if the services are those
required by the conditions for coverage for ESRD facilities under
Sec. 405.2163 of this chapter.
(c) Agreement to consult. A clinical social worker must comply with
the consultation requirements set forth at Sec. 410.71(f) (reading
``clinical psychologist'' as ``clinical social worker'').
(d) Prohibited billing. (1) A clinical social worker may not bill
Medicare for the services specified in paragraph (b)(2) of this
section.
(2) A clinical social worker or an attending or primary care
physician may not bill Medicare or the beneficiary for the consultation
that is required under paragraph (c) of this section.
Subpart E--Payment of SMI Benefits
4. In Sec. 410.150, the introductory text of paragraph (b) is
republished, new paragraphs (b)(14) through (b)(16) are added and
reserved, and new paragraphs (b)(17) and (b)(18) are added to read as
follows:
Sec. 410.150 To whom payment is made.
* * * * *
(b) Specific rules. Subject to the conditions set forth in
paragraph (a) of this section, Medicare Part B pays as follows:
* * * * *
(14) [Reserved.]
(15) [Reserved.]
(16) [Reserved.]
(17) To a clinical psychologist on the individual's behalf for
clinical psychologist services and for services and supplies furnished
as an incident to his or her services.
(18) To a clinical social worker on the individual's behalf for
clinical social worker services.
5. In Sec. 410.152, paragraph (a)(1) introductory text is
republished, and paragraph (a)(1)(iv) is revised to read as follows:
Sec. 410.152 Amount of payment.
(a) General provisions--(1) Exclusion from incurred expenses. As
used in this section, ``incurred expenses'' are expenses incurred by an
individual, during his or her coverage period, for covered Part B
services, excluding the following:
* * * * *
(iv) Expenses in excess of the outpatient mental health treatment
limitation described in Sec. 410.155.
* * * * *
6. Section 410.155 is revised to read as follows:
Sec. 410.155 Outpatient mental health treatment limitation.
(a) Limitation. Only 62\1/2\ percent of the expenses incurred for
services subject to the limit as specified in paragraph (b) of this
section are considered incurred expenses under Medicare Part B when
determining the amount of payment and deductible under Secs. 410.152
and 410.160, respectively.
(b) Application of the limitation--(1) Services subject to the
limitation. Except as specified in paragraph (b)(2) of this section,
the following services are subject to the limitation if they are
furnished in connection with the treatment of a mental, psychoneurotic,
or personality disorder (that is, any condition identified by a
diagnosis code within the range of 290 through 319) and are furnished
to an individual who is not an inpatient of a hospital:
(i) Services furnished by physicians and other practitioners,
whether furnished directly or as an incident to those practitioners'
services.
(ii) Services provided by a CORF.
(2) Services not subject to the limitation. Services not subject to
the limitation include the following:
(i) Services furnished to a hospital inpatient.
(ii) Brief office visits for the sole purpose of monitoring or
changing drug prescriptions used in the treatment of mental,
psychoneurotic, or personality disorders.
(iii) Partial hospitalization services not directly provided by a
physician.
(iv) Diagnostic services, such as psychological testing, that are
performed to establish a diagnosis.
(v) Medical management, as opposed to psychotherapy, furnished to a
patient diagnosed with Alzheimer's disease or a related disorder.
(c) Examples. (1) A clinical psychologist submitted a claim for
$200 for outpatient treatment of a beneficiary's mental disorder. The
Medicare approved amount was $180. Since clinical psychologists must
accept assignment, the beneficiary is not liable for the $20 in excess
charges. The beneficiary previously satisfied the $100 annual Part B
deductible. The limitation reduces the amount of incurred expenses to
62\1/2\ percent of the approved amount. After subtracting any unmet
deductible, Medicare pays 80 percent of the remaining incurred
expenses. Medicare payment and beneficiary liability are computed as
follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
1. Actual charges............................................. $200.00
2. Medicare approved amount................................... 180.00
3. Medicare incurred expenses (0.625 x line 2).............. 112.50
4. Unmet deductible........................................... 0.00
5. Remainder after subtracting deductible (line 3 minus line
4)........................................................... 112.50
6. Medicare payment (0.80 x line 5)......................... 90.00
7. Beneficiary liability (line 2 minus line 6)................ 90.00
------------------------------------------------------------------------
(2) A clinical social worker submitted a claim for $135 for
outpatient treatment of a beneficiary's mental disorder. The Medicare
approved amount was $120. Since clinical social workers must
[[Page 20130]]
accept assignment, the beneficiary is not liable for the $15 in excess
charges. The beneficiary previously satisfied $70 of the $100 annual
Part B deductible, leaving $30 unmet.
------------------------------------------------------------------------
------------------------------------------------------------------------
1. Actual charges............................................. $135.00
2. Medicare approved amount................................... 120.00
3. Medicare incurred expenses (0.625 x line 2).............. 75.00
4. Unmet deductible........................................... 30.00
5. Remainder after subtracting deductible (line 3 minus line
4)........................................................... 45.00
6. Medicare payment (0.80 x line 5)......................... 36.00
7. Beneficiary liability (line 2 minus line 6)................ 84.00
------------------------------------------------------------------------
(3) A physician who did not accept assignment submitted a claim for
$780 for services in connection with the treatment of a mental disorder
that did not require inpatient hospitalization. The Medicare approved
amount was $750. Because the physician did not accept assignment, the
beneficiary is liable for the $30 in excess charges. The beneficiary
had not satisfied any of the $100 Part B annual deductible.
------------------------------------------------------------------------
------------------------------------------------------------------------
1. Actual charges............................................. $780.00
2. Medicare approved amount................................... 750.00
3. Medicare incurred expenses (0.625 x line 2).............. 468.75
4. Unmet deductible........................................... 100.00
5. Remainder after subtracting deductible (line 3 minus line
4)........................................................... 368.75
6. Medicare payment (0.80 x line 5)......................... 295.00
7. Beneficiary liability (line 1 minus line 6)................ 485.00
------------------------------------------------------------------------
(4) A beneficiary's only Part B expenses during 1995 were for a
physician's services in connection with the treatment of a mental
disorder that initially required inpatient hospitalization. The
remaining services were furnished on an outpatient basis. The
beneficiary had not satisfied any of the $100 annual Part B deductible
in 1995. The physician, who accepted assignment, submitted a claim for
$780. The Medicare-approved amount was $750. The beneficiary incurred
$350 of the approved amount while a hospital inpatient and incurred the
remaining $400 of the approved amount for outpatient services. Only
$400 of the approved amount is subject to the 62\1/2\ percent
limitation because the statutory limitation does not apply to services
furnished to hospital inpatients.
------------------------------------------------------------------------
------------------------------------------------------------------------
1. Actual charges............................................. $780.00
2. Medicare approved amount................................... $750.00
2A. Inpatient portion....................................... $350
2B. Outpatient portion...................................... $400
3. Medicare incurred expenses................................. $600.00
3A. Inpatient portion....................................... $350
3B. Outpatient portion (0.625 x line 2B).................. $250
4. Unmet deductible........................................... $100.00
5. Remainder after subtracting deductible (line 3 minus line
4)........................................................... $500.00
6. Medicare payment (0.80 x line 5)......................... $400.00
7. Beneficiary liability (line 2 minus line 6)................ $350.00
------------------------------------------------------------------------
PART 417--HEALTH MAINTENANCE ORGANIZATIONS, COMPETITIVE MEDICAL
PLANS, AND HEALTH CARE PREPAYMENT PLANS
1. The authority citation for part 417 is revised to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh), secs. 1301, 1306, and 1310 of the Public
Health Service Act (42 U.S.C. 300e, 300e-5, and 300e-9), and 31
U.S.C. 9701.
2. In Sec. 417.416, the introductory text of paragraph (d) is
republished; paragraph (d)(2) is revised; and a new paragraph (d)(3) is
added to read as follows:
Sec. 417.416 Qualifying condition: Furnishing of services.
* * * * *
(d) Exceptions to physician supervision requirement. The following
services may be furnished without the direct personal supervision of a
physician:
* * * * *
(2) When furnished by an HMO or CMP, services of clinical
psychologists who meet the qualifications specified in Sec. 410.71(d)
of this chapter, and the services and supplies incident to their
professional services.
(3) When an HMO or CMP contracts on--
(i) A risk basis, the services of a clinical social worker (as
defined at Sec. 410.73 of this chapter) and the services and supplies
incident to their professional services; or
(ii) A cost basis, the services of a clinical social worker (as
defined in Sec. 410.73 of this chapter). Services incident to the
professional services of a clinical social worker furnished by an HMO
or CMP contracting on a cost basis are not covered by Medicare and
payment will not be made for these services.
PART 424--CONDITIONS FOR MEDICARE PAYMENT
1. The authority citation for part 424 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
2. In Sec. 424.32, paragraph (a) introductory text is republished,
and paragraph (a)(2) is revised to read as follows:
Sec. 424.32 Basic requirements for all claims.
(a) A claim must meet the following requirements:
(1) * * *
(2) A claim for physician services, clinical psychologist services,
or clinical social worker services must include appropriate diagnostic
coding for those services using ICD-9-CM.
* * * * *
3. In Sec. 424.55, paragraph (b) introductory text is republished,
and paragraphs (b)(1) and (b)(2) are revised to read as follows:
Sec. 424.55 Payment to the supplier.
* * * * *
(b) In accepting assignment, the supplier agrees to the following:
(1) To accept, as full charge for the service, the amount approved
by the carrier as the basis for determining the Medicare Part B payment
(the reasonable charge or the lesser of the fee schedule amount and the
actual charge).
(2) To limit charges to the beneficiary or any other source as
follows:
(i) To collect nothing for those services for which Medicare pays
100 percent of the Medicare approved amount.
(ii) To collect only the difference between the Medicare approved
amount and the Medicare Part B payment (for example, the amount of any
reduction in incurred expenses under Sec. 410.155(c), any applicable
deductible amount, and any applicable coinsurance amount) for services
for which Medicare pays less than 100 percent of the approved amount.
* * * * *
PART 482--CONDITIONS OF PARTICIPATION FOR HOSPITALS
1. The authority citation for part 482 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
2. In Sec. 482.12, paragraph (c) introductory text and (c)(1)
introductory text are republished; the period at the end of paragraph
(c)(1)(v) is removed and ``; and'' is added in its place; paragraph
(c)(1)(vi) is added; paragraph (c)(4) introductory text is republished;
and paragraph (c)(4)(ii) is revised to read as follows:
Sec. 482.12 Conditions of participation: Governing body.
* * * * *
(c) Standard: Care of patients. In accordance with hospital policy,
the
[[Page 20131]]
governing body must ensure that the following requirements are met:
(1) Every Medicare patient is under the care of:
* * * * *
(vi) A clinical psychologist as defined in Sec. 410.71 of this
chapter, but only with respect to clinical psychologist services as
defined in Sec. 410.71 of this chapter and only to the extent permitted
by State law.
* * * * *
(4) A doctor of medicine or osteopathy is responsible for the care
of each Medicare patient with respect to any medical or psychiatric
problem that--
(i) * * *
(ii) Is not specifically within the scope of practice of a doctor
of dental surgery, dental medicine, podiatric medicine, or optometry; a
chiropractor; or clinical psychologist, as that scope is--
(A) Defined by the medical staff;
(B) Permitted by State law; and
(C) Limited, under paragraph (c)(1)(v) of this section, with
respect to chiropractors.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.774
Medicare--Supplementary Medical Insurance)
Dated: December 2, 1997.
Nancy-Ann Min DeParle,
Administrator, Health Care Financing Administration.
Dated: December 11, 1997.
Donna E. Shalala,
Secretary.
[FR Doc. 98-10591 Filed 4-22-98; 8:45 am]
BILLING CODE 4120-01-P
