Anxieties mount as we approach July 1, 2021 and the onset of fee caps. This edition will address our most current thoughts on the emerging law and practice:
NON-MEDICARE FEE CAP: 55%
It is well known by now that the cap for non-Medicare services is 55% of the charge master (or average charge) in existence as of January 1, 2019.
Stakeholders continue to discuss a solution to this devastating cap, but as of this writing, key legislators have remained intransigent. PLEASE continue to contact your legislators. We must do all we can to fix this ill-advised reform.
One important piece of news is that this fee cap of 55% has already been raised to 59.11%. Per DIFS Bulleting 2021-16-INS dated March 23, 2021:
“This bulletin informs interested parties that any amount payable under MCL 500.3157(7) or MCL 500.3157(8), that was in effect on January 1, 2019, shall be increased by 4.11% for dates of service July 2, 2021 through July 1, 2022.”
This small change does little to alter the devastation that will be due to this fee cap. Nevertheless, all should be aware of the development.
MEDICARE FEE CAPS: 200%
ARE CASE MANAGEMENT SERVICES COVERED UNDER THIS CAP?
Most hospitals and physician services are Medicare compensable, and therefore will be capped at the base rate of 200% under the new law.1 The difference between the 55% fee cap and the 200% fee cap is stark. It’s the difference between survival and devastation.
Case managers have expressed concern as to whether their services are covered as a Medicare service. If so it will be payable at 200% of the Medicare rate. There are a number of CPT codes that appear to cover case management services. For example, code #99490 defines “Chronic care management services as those with the following elements:
“...multiple (2 or more) chronic conditions expected to last at least 12 months, or until the death of the patient; chronic conditions place the patient at significant risk of death, acute exacerbation/decomposition, or functional decline; comprehensive care plan established, implemented, revised, or monitored; first 20 minutes of clinical staff time directed by a physician or other qualified health care professional, per calendar month.”
Also, code #99491 applies to:
“Chronic care management services, provided personally by a physician or other qualified health care professional, at least 30 minutes of physician or other qualified health care professional time, per calendar month, with required elements: multiple (2 or more) chronic conditions expected to last at least 12 months, or until the death of the patient; chronic conditions place the patient at significant risk of death, acute exacerbation/decompensation, or functional decline; comprehensive care plan established, implemented, revised, or monitored “
Also, code #99487 applies to:
“Complex chronic care management services with required elements: multiple (2 or more) chronic conditions expected to last at least 12 months, or until the death of the patient; chronic conditions place the patient at significant risk of death, acute exacerbation/decompensation, or functional decline; comprehensive care plan established, implemented, revised, or monitored; moderate or high complexity medical decision-making; first 60 minutes of clinical staff time directed by a physician or other qualified health care professional, per calendar month
ATTENDANT CARE
We’ve all been watching as residential facilities and home care agencies face shut down. People are panicking and with good reason: who will care for the injured when fee caps prevent care providers from covering costs? At this point, the future does look grim, but we offer the following thoughts:
First, it does appear that unskilled caregiver services are generally not compensable under Medicare. We continue to review for potential Medicare coverage of these services, but at this point it does appear that unskilled caregiver services will be covered by the 55% fee cap. That cap is based on the charge master or average charge of the provider as of January 1, 2019. This fee cap does not appear to apply to entities that were not in business as of January 1, 2019. Some service providers are trying to adapt accordingly.
Second, it does not appear that the 55% fee cap will apply to individual caregivers. That is, those caregivers must be paid at the market rate appropriate for the skill and level of care provided. Although family members will be limited to 56 hours/week of attendant care, there is no limit on the total number of hours of attendant care that can be provided. See section 3157(10). Also, insurers are free to disregard the 56 hour limit. See section 3157(11). At this point, it appears that insurers have been willing to make deals with family members to provide 24/7 attendant care. The idea of course is that insurers may pay family members only what agencies would have paid their caregivers, but not the full agency charge. Case managers will need to manage the provision of home attendant care in a way that previously was not required. But now, if residential facilities and home care agencies are not available to care for our injured as in the past, then some kind of new combo of home care with out of home respite may emerge from this new law.
“GRANDFATHERING” PRE REFORM CASES
Another question that we are frequently getting is whether the new fee caps and attendant care limitations apply to injuries that occurred before the new law went into effect in June 2019. I.e., are old cases “grandfathered.” The answer is yes and no. People who were injured before June 2019 will continue to receive life time no-fault benefits. However, it appears that the fee caps and attendant care limitations will apply to old cases as well as the new. A lawsuit challenging the application of the new law to old cases is currently pending in the courts. But that lawsuit will not be decided before the new limitations go into effect. So simply put: NO, older cases are not grandfathered so as to avoid the new fee caps and attendant care limitations.
__________________________________________________________
1 It should be understood that the 200% base rate will vary for some hospitals, going from 200% to 250%. The rate for each hospital will decline over the first three years. For example, the base 200% rate will decline to 195% in the second year and 190% in the third year.
M&T ABOUT TOWN
Wayne Miller and Kevin McNeely spoke at the ICLE No-Fault Summit in April 2021.
Wayne Miller will moderate the MAJ No-Fault Webinar on June 17, 2021.
IMPORTANT ANNOUNCEMENTS
Miller & Tischler welcomes attorney David Levin to our family. David is a 2006 graduate of Wayne State University Law School. He previously practiced law in Arizona and most recently worked in health insurance subrogation before joining M&T. David enjoys spending time with his wife and is an avid reader.
Miller & Tischler welcomes attorney David Zogheib to our family. David is a 2014 graduate of Syracuse University College of Law. Prior to joining Miller & Tischler, David defended insurance claims by individuals and medical providers. He is experienced in personal injury and related areas of law. David is a veteran of the U.S Marine Corps, where he served in various leadership roles and was deployed to the Middle East for more than 2 years. Having immigrated to the United States at the age of 10, he takes pride in having served, and feels blessed to be here. David enjoys spending time with his family, staying active and reading.
