NASW Government Relations Update

NASW Government Relations Update Medicare Part B Coverage for Clinical Social Work Services in Skilled Nursing Facilities

FEBRUARY 6, 2002

Issue

On December 20, 2002, the Centers for Medicare and Medicaid Services (CMS) released to the public the Fiscal Year 2003 Physician Fee Schedule Final Rule (Rule).  The Rule was published, as required, in the Federal Register on December 31, 2002.  The final version of the Rule did not address the current payment issues for clinical social worker (CSW) services provided in the skilled nursing facility (SNF) setting, even though the June 28, 2002 Proposed Physician Fee Schedule Rule (67 FR 43846) indicated otherwise.  Furthermore, CMS had repeatedly informed NASW and others that the aforementioned Rule would include such language, even as late as December 16, 2002.  Please note that the present political climate made the issuance of the Final Rule difficult for CMS, and in fact, the release of the Rule had been delayed for almost sixty days.

Click here to view the Rule:
http://www.cms.hhs.gov/REGULATIONS/PFS/

While NASW is dismayed that CMS did not resolve this longstanding issue in the Rule, NASW is continuing to fight for future publication of this rule as well as pursuing Congressional action to rectify this matter permanently.

Background

Passage of the Omnibus Budget Reconciliation Act of 1989, P.L. 101-239, provided for Medicare Part B coverage for clinical social worker (CSW) services. Before the passage of the Balanced Budget Act of 1997 (BBA 97), P.L. 105-33, CSWs billed Medicare Part B directly for the diagnosis and treatment of mental health conditions in most settings, including SNFs.

However, Section 4432 of the BBA 97 established the Prospective Payment System (PPS) for Medicare Parts A and B, which provides for a global per diem payment for almost all services received by SNF residents.  The per diem payment is intended to cover those services the SNF is required to provide to all patients in order to participate in the Medicare program, such as nursing, dietary, and medical-social services.  However, some services are clearly excluded from the SNF PPS by the statute, such as physician services, psychologist services, certified nurse-midwifery services, and certified nurse anesthetist services.  In the case of CSW services, BBA 97 failed to make a distinction between mandated medical social services and the optional psychotheraputic CSW services since CSW services were not explicitly excluded from the SNF PPS. Therefore, it is often the case in many areas of the country that CSWs may no longer bill Medicare directly for psychotherapy services in SNFs, even though they may bill Medicare independently in other settings.

The situation is further complicated by the fact that BBA 97 also implemented consolidated billing (CB) for all services rendered to SNF patients, in that the SNF, and not the individual provider, bills Medicare for all patient services as of July 1, 1998 under both Parts A and B.  Year 2K issues then caused CMS to delay CB requirements for patients in a non-covered SNF stay, i.e. not covered by Part A, until April 1, 2001.  Nevertheless, Congress intervened in the meantime, Repealing most of the CB portion of BBA 97 through passage of Section 313 of the Benefits Improvement and Protection Act of 2000, P.L. 106-554.  CB now applies only to SNF patients during a Part A stay, and has no impact on Part B services, except for physical, occupational, and speech-language therapy which is subject to CB requirements.

Adding to the complexity, the Centers for Medicare and Medicaid Services (CMS) delegates most decision-making on mental health services to each regional Medicare fiscal intermediary (FI).  Although some FIs continue to reimburse CSWs for SNF patients, others do not.  It is the right of the FIs not to pay, given the fact there is no national policy mandating coverage for such services.

NASW has been working with U.S. Representatives Pete Stark (D-CA) and Jim Leach (R-IA) and Senator Barbara Mikulski (D-MD) to reintroduce federal legislation that would rectify this inequity, since the legislation died in the past two Congresses.  The Clinical Social Work Medicare Equity Act of 2003, S. 343, H.R. 707, would restore the ability of CSWs to bill Medicare Part B directly for services furnished to SNF patients nationwide, by CSWs to the list of health care providers exempted from the SNF PPS, thereby providing a permanent solution to this problem.

While pursuing the legislative remedy, NASW also has sought regulatory relief in this situation.  CMS shares NASW's belief that Congress did not intend to bundle psychotheraputic CSW services with other medical-social services for SNF patients, and published a Proposed Rule (65 FR 62681) on October 19, 2000 to clarify this situation.  The Proposed Rule would have permitted specific Part B clinical social work services, as identified by Current Procedural Terminology (CPT) codes 90801, 90802, 90816, 90818, 90821, 90823, 90826, 90828, 90846, 90847, 90853 and 90857, to be billed directly to CMS by CSWs for SNF clients.

Unfortunately, a Final Rule has yet to be published by CMS on this topic, despite constant pressure from NASW and Capitol Hill.  CMS did republish the October 19, 2000 Proposed Rule as part of another Proposed Rule, the 2003 Physician Fee Schedule (67 FR 43846) in the June 28, 2002 Federal Register.  There CMS stated that a final resolution of the matter would be contained in the Final Fee Schedule Rule, scheduled to be issued on November 1, 2002 November in the Federal Register.

However, publication of the 2003 Physician Fee Schedule Rule was delayed by CMS until December 31, 2002 due to a variety of political issues stemming from the average 4.4% cut in physician payments under the new fee schedule.  Unfortunately, when the aforementioned Rule was published in the Federal Register, 67 FR 79966, without warning CMS changed its position and deferred discussion of CSW services in SNFs to a future, undetermined rulemaking.  Please be assured that NASW is continuing to fight CMS on this matter.  Future developments will be posted to the NASW website, www.socialworkers.org, as they happen.