Governemnt Relations

AMA Petition

To: National Medical Specialty Societies
  Washington Representatives
From: Sandy Sherman and Sharon McRath
Date: June 5, 2000
Subject: Endorsement of Citizens' Petition on Physician-Nurse Collaboration

The AMA has developed the attached Citizens' Petition on the issue of physician-nurse collaboration. Prior to filing the Petition with the Health Care Financing Administration (HCFA), we are seeking endorsements from the national medical specialty societies and state medical associations.

This memo and the Petition are also being provided to your CEOs. If your specialty society wishes to be listed among the petitioners, please complete the response form below and return it to Dawn Robinson by fax at 202/789-4581 as soon as possible, but no later than COB on Tuesday, June 20, 2000. There is no charge associated with joining the Petition.

As you know, the AMA has taken an active role in attempting to prevent the federal government from promulgating regulations that expand non-physicians' scope of practice. One of the issues we continue to be concerned about is Medicare policy on physician-nurse collaboration. Although the Balanced Budget Act of 1997 (BBA) significantly expanded the circumstances under which nurses may bill Medicare directly, the law has always and continues to require that nurses' services be furnished in collaboration with physicians in order to be separately payable by Medicare. However, HCFA has never issued any guidance or instructions to the Medicare carriers and intermediaries, or to nurses that obtain Medicare provider numbers, to ensure that collaborative agreements are in place and that nurses are not billing Medicare for services beyond those that their state licenses allow. The General Accounting Office noted this problem in its report of January 25, 2000, regarding HCFA's implementation of the BBA.

A Citizen's Petition offers an additional tool, besides comment letters and other methods that we have traditionally employed that can be used to propel the executive branch to correct the shortcomings of its regulations and guidance. Petitions have been used successfully to convince the Food and Drug Administration to develop guidance documents to address regulatory shortcomings and a Citizen's Petition to HCFA in 1997 helped to prompt the redesign of its coverage policy decision process. The attached Citizens' Petition asks HCFA to take several steps to enforce the requirements for collaborative agreements between nurses and physicians and for nurses to be furnishing only those services that are within their state scope of practice laws.

The ___________________________________________________________________

(Name of specialty society-PLEASE PRINT FULL NAME)

will__________ will not__________ sign-on to the Citizens' Petition to HCFA on physician-nurse collaboration.

__________________________________________

(Your Name-PLEASE PRINT)

DRAFT

May ( ) , 2000

Nancy-Ann Min DeParle
Administrator
Health Care Financing Administration
Room 314-G Humphrey Building
200 Independence Avenue, SW
Washington, D.C. 20201

CITIZENS' PETITION

The American Medical Association (AMA) and the undersigned organizations represent this country's physicians. The AMA, the largest medical society in the United States, itself represents approximately 300,000 physicians practicing in all states and fields of specialization. The AMA's core purpose is to promote the science and art of medicine and the betterment of public health. Joining the AMA in this petition are state medical societies, national specialty organizations, and other national associations, which collectively also represent physicians across a wide spectrum of geographic areas and medical and surgical specialties. On behalf of the AMA's and the undersigned organizations physician members and their patients, the AMA and the undersigned organizations hereby petition the Health Care Financing Administration (HCFA), under 5 U.S.C. Section 553(e) and the Petition Clause of the First Amendment, to:

    1. Implement a system to ensure that Medicare payments to nurse practitioners (NPs) and clinical nurse specialists (CNSs) are made only in connection with those services furnished in collaboration with a physician and within their state law's scope of practice requirements, as the Social Security Act requires;
    2. Limit distribution and renewal of Medicare billing numbers only to those NPs and CNSs who comply with the collaboration and state law scope of practice requirements;
    3. Issue detailed instructions to Medicare carriers on implementation of a system to ensure compliance with the collaboration and state law scope of practice requirements; and
    4. Conduct an immediate "baseline" audit, followed by future periodic audits, to ensure that Medicare payments to NPs and CNSs are limited to services furnished in collaboration with a physician and within their state law scope of practice requirements.

Failure to take these actions will perpetuate HCFA's neglect of an important requirement of the Medicare program. This nonfeasance allows unchecked possible abuse and misuse of Medicare, as well as possible substandard quality of medical services provided to the nation's elderly, disabled, and end-stage renal disease patients. HCFA unquestionably owes Medicare beneficiaries and taxpayers a duty to ensure that Medicare, through its payment policies, requires NPs and CNSs to work in collaboration with a physician and within their scope of practice. To our knowledge, HCFA has not made any serious effort to assure compliance with these collaboration and scope of practice requirements.

Medicare's Requirement for Nurse-Physician Collaboration

The Balanced Budget Act of 1997 (the BBA) expanded direct payments for Medicare Part B services provided by NPs and CNSs, by eliminating the prior restriction placed on the settings and geographic areas in which NPs and CNSs must practice in order to be reimbursed.1 However, as HCFA has acknowledged, "the BBA did not change the collaboration requirement."2

In fact, Medicare has always required NPs and CNSs to collaborate with physicians before payment can be made for their services. Under the Social Security Act, covered "medical and health services" include:

    "(ii)services which would be physicians' services if furnished by a physician (as defined in subsection (r) (1)) and which are performed by a nurse practitioner or clinical nurse specialist (as defined in subsection (aa)(5)) working in collaboration (as defined in subsection (aa)(6)) with a physician (as defined in subsection (r)(1)) which the nurse practitioner or clinical nurse specialist is legally authorized to perform in the State in which the services are performed, and such services and supplies furnished as an incident to such services as would be covered under subparagraph (A) if furnished incident to a physician's professional service, but only if no facility or other provider charges or is paid any amounts with respect to the furnishing of such services."3

"Collaboration" defined in subsection (aa)(6) of the Social Security Act is:

    "a process in which the nurse practitioner works with a physician to deliver health care services within the scope of the practitioner's professional expertise, with medical direction and appropriate supervision as provided in jointly developed guidelines or other mechanism as defined by the law of the State in which the services are performed.4

HCFA's regulations echo the collaboration requirement defined in the Social Security Act, stating that Part B covers services rendered by NPs and CNSs in all settings provided that the services are not otherwise excluded, are legally authorized by the state and are provided in collaboration with a physician.5

Clearly, as HCFA recognizes, the law requires that two conditions be satisfied before NPs and CNSs can be paid separately for their services:

    1 Balanced Budget Act of 1997, Sections 4511 and 4512; 105 P.L. 33.
    2 63 Fed.Reg. 58814 (Nov. 2, 1998).
    3 42 U.S.C. 1395x(s)(2)(K)(ii)(emphasis added).
    4 42 U.S.C. 1395x (aa)(6).
    5 42 C.F.R. Sections 410.75 and 410.76 (1999) (the regulations simply added that collaboration could be with more than one physician).

    � First, the NP or CNS must practice within his or her state law's scope of practice requirements.
    � Second, the NP or CNS must work in a collaborative arrangement with a physician. As the definition of collaboration suggests, this means that services must be provided with medical direction and appropriate supervision. In order to determine what is appropriate, the federal law defers to jointly develop guidelines or other mechanism approved in the state in which the NP or CNS practices.

State laws governing how these two conditions can be satisfied vary. But, generally the states-either through legislation or regulation-require that advance practice nurses (APNs), (a term which typically includes NPs and CNSs) work in a collaborative relationship with a physician, under a collaborative practice agreement or according to a written protocol or guideline.

In Minnesota, for example, APNs must work within a health care system that provides for consultation, referral, and collaborative management. "Collaborative management" is a mutually agreed upon plan between an APN and one or more physicians or surgeons that designates the scope of collaboration necessary to manage the care of the patients.6

Illinois requires APNs to have an annually updated, written collaborative agreement with a physician. The agreement must describe the working relationship with the physician. And, though it need not describe the exact steps that an APN must take with respect to each specific condition, disease, or symptom, it must authorize categories of care, treatment, or procedures that the APN is expected to perform as well as those procedures that require the physician's presence. The purpose of the agreement is simply to promote the APN's exercise of professional judgment "commensurate with his or her education and experience."7 The services that the APN provides must be the services that the collaborating physician provides his or her patients in the normal course of his or her clinical practice. According to the Illinois statute,

    "Physician medical direction under an agreement shall be adequate if a collaborating physician: (1) participates in the joint formulation and joint approval of orders or guidelines with the APN and he or she periodically reviews such orders and the services provided patients under such orders in accordance with accepted standards of medical practice and advanced practice nursing practice; (2) is on site at least once a month to provide medical direction and consultation; and (3) is available through telecommunications for consultation on medical problems, complications, or emergencies or patient referral."8

Nebraska statutes call for an "integrated practice agreement," a term that the American Medical Association prefers.9 Such an agreement would indicate that the APN and collaborating physician deliver health care through an integrated practice in which both professionals have joint responsibility for patient care and operate within the constraints of their scope of practice.

    6 Minn. Stat. Section 148.171 (1999)
    7 225 ILCS 65/15-5(b)(1999)
    8 225 ILCS 65/15-5(c)(1999).
    9 AMA, Guidelines for Physician/Nurse Practitioner Integrated Practice, CMS Rep.15 (I---94).

However, the physician is responsible for supervising the APN in order to ensure the quality of health care provided to patients.10

Many other states have some form of a collaboration requirement. This includes the states of Illinois, Minnesota, and Nebraska briefly discussed above. It also includes Connecticut, Delaware, Kansas, Kentucky, Ohio, Maryland, Missouri, Nevada, New York, and Vermont. Other states, California, Florida, Georgia, Idaho, Louisiana, Massachusetts, South Carolina, and Wisconsin, require physician supervision. States that do not specifically call for collaboration or supervision for all advance practice nursing may require that a collaborative process be in place as a condition for the grant of specific authority. For example, in Texas APNs' prescriptive authority is based on a collaborative model using protocols, standing orders, practice guidelines, or other physician orders for the medical aspects of patient care.11

Generally, when the state nursing practice acts do not define the scope of practice in terms of specific acts or functions, collaboration appears to require physician input to determine: (1) the NP's or CNS's scope of expertise; (2) when appropriate supervision is needed; (3) the level of medical direction when specified patient care functions are within the independent scope of nursing practice; and (4) when the collaborating physician needs to make an independent evaluation. Thus, the collaboration requirement provides an important safeguard against APNs practicing beyond their scope of practice. Few states, if any, fail to recognize the need for a collaborative arrangement.

Regardless of state requirements, as the previously discussed provisions of the Social Security Act provide, Medicare requires nurse-physician collaboration and compliance with state law's scope of practice requirements in order for NP and CNS services to be separately payable. In order to ensure compliance with Medicare's collaboration and scope of practice requirement, HCFA must develop a system for HCFA and the carriers to determine whether each APN has complied with the law of his or her state. As we will later describe, in states that do not have guidelines or other mechanisms in place, Medicare should either establish or adopt specific guidelines on collaboration as a condition of participation in the Medicare program.

HCFA is Paying Separately for Services Rendered by NPs and CNSs, but has Failed to Implement the Collaboration and Scope of Practice Requirement

It is HCFA's duty, to be exercised through its Medicare carrier, to ensure that only appropriate claims submitted by APNs are paid; in order to be appropriate, sufficient physician collaboration and compliance with state scope of practice requirements must be present. Given that APNs can bill the Medicare program using the same codes as physicians, it is imperative that HCFA develop and implement a system to assure that APNs are complying with collaboration and state scope of practice requirements, and otherwise are practicing within their scope of professional expertise. Under the status quo, HCFA simply does not know, nor has it made any serious attempt to know, whether APNs are complying with the collaboration and scope of practice requirements.

    10 R.R.S. Neb. Section 71-1716.03 (2000).
    11 23 TAC Section 222.1-222.7. See also Linda J. Pearson, Annual Legislative Update, How each State Stands on Legislative Issues Affecting Advanced Nursing Practice, The Nurse Practitioner, Vol. 25, No. 1 (Jan. 2000) </span

Not only is it the law, but compliance with collaboration or integrated practice and scope of practice requirements is crucial to ensure access to comprehensive health care services, patient safety, and confidence in a changing health care system. HCFA should not encourage NPs and CNSs to practice without this important safeguard in place. The following clinical examples of a CPT Code12 99215 visit, for which both NPs and CNSs can bill Medicare, illustrate this point:

    � Office visit for a 27 year-old female, established patient, with bipolar disorder who was stable on lithium carbonate and monthly supportive psychotherapy but now has developed symptoms of hypomania;
    � Office visit for a 42 year-old male, established patient, nine months post-op emergency vena cava shunt for variceal bleeding, now presents with complaints of one episode of "dark" bowel movement, weight gain, tightness in abdomen, whites of eyes seem "yellow" and occasional drowsiness after eating hamburgers;
    � Office visit for an established patient with disseminated lupus erythematosis, kidney disease, on chronic immunosuppressive therapy with corticosteroids and azathioprene, presents with extensive edema of extremities and weakness, as well as acute depression.13

Referring to the examples above under 99215, would the Medicare program pay these claims if submitted by an NP or CNS, instead of a psychiatrist, surgeon, and internist respectively? Would Medicare deny these claims because they are outside of the NP's or CNS's scope of practice? Would proof of a nurse-physician collaborative arrangement affect the determination? With respect to the last question, in our view and the eyes of the law, proof or lack of proof of a collaborative arrangement should affect payment determination.

It is our understanding that HCFA and the carriers currently do not have a system in place to allow for the critical assessment and review of claims submitted by NPs and CNSs under the collaboration/scope of practice mandate. We believe that carriers lack the ability to make these determinations in a sound or consistent manner, absent detailed guidance and oversight by HCFA.14

The lack of oversight and guidance becomes more troubling in view of the fact that HCFA pays for NP and CNS services that involve moderate and high complexity decision making (for example, services rendered under CPT Codes 99214 and 99215). In the tables that follow, we have summarize certain Medicare charge data for NPs and CNSs. Note that total charges increased dramatically from 1997 to 1998. As for high complexity services, also note that while payments made for services under 99214 and 99215 have accounted for a small proportion of total billing for these specialties, the billing for them also has increased substantially-from about $700,000 in 1997 to more than $2.1 million in 1998. Though the 1998 numbers remain relatively low, they represent billing just following the first year of the Balanced Budget Act's enactment. As more and more NPs and CNSs apply for billing numbers, we expect that the volume will continue to increase dramatically.

    12 Current Procedural Terminology codes are identifying codes for reporting medical services and procedures performed by physicians.
    13 AMA, Clinical Examples from Current Procedural Terminology, Standard Edition, Appendix D, P. 430 (2000)
    14 Even with state scope of practice requirements in hand, the AMA recognizes that making payment determinations may be difficult. State scope of practice laws typically do not address requirements for particular types of services or procedures such as Evaluation and Management (E/M) services involving "moderate and high complexity." Such lack of specificity makes implementing the collaboration requirement vital to ensuring that Medicare does not pay for inappropriate services.

Table 1:
Allowed Charges for Medicare Physician Payment Schedule and Other Part B Carrier-Processed Services for Nurse Specialties

Total Allowed Charges by Specialty/Year (in millions)
       
  1997 1998 pct. Chg.
      (% change)
       
Nurse Practitioner 20.4 43.5 113%
Certified Clinical Nurse Specialist 1.2 5.4 350%
       
Total 21.6 48.9 216%

Table 2:
Allowed Charges for Medicare Physician Payment Schedule and Other Part B Carrier-Processed Services for Nurse Specialties

Total Allowed Charges by Specialty/Year (in millions)
Codes 99214 and 99215
  1997 1998 pct chg
       
Nurse Practitioner .669 2.136 219%
Certified Clinical Nurse Specialist .025 .059 136%
       
Total .694 2.195 216%

Table 3:
Top 20 codes in 1998 ranked by allowed charges

Nurse Practitioner
         
RANK CPT ALLOWED CHGS FREQ DESCRIPTOR
         
1 99312 $8,956,081 216,189 Nursing facility care, subseq
2 99311 $5,387,226 193,250 Nursing facility care, subeq
3 99213 $5,206,231 166,767 Office/outpatient visit, est
4. 99313 $2,492,765 45,320 Nursing facility care, subseq
5. 99212 $2,254,987 104,448 Office/outpatient visit, est
6. 99214 $1,683,687 35,632 Office/outpatient visit, est
7. 99303 $1,412,503 16,241 Nursing Facility Care
8. 90862 $1,185,644 31,552 Medication management
9. 99302 $ 743,959 12,109 Nursing Facility Care
10. 90801 $ 565,266 5,889 Psy Dx Interview
11. 99215 $ 452,112 5,994 Office/outpatient visit, est
12. 99301 $ 44,679 9,315 Nursing Facility Care
13. 99232 $ 408,707 9,162 Subsequent hospital care
14. 90806 $ 405,176 6,031 Psy tx, office (45-50)
15. 99349 $ 362,991 4,794 Home visit, estab patient
16. 99203 $ 344,600 6,336 Office/outpatient visit, new
17. 99231 $ 305,535 10,223 Subsequent hospital care
18 99283 $ 301,946 5,989 Emergency Dept visit
19. 90805 $ 250,693 3,046 Office/outpatient visit, new
         
Certified Clinical Nurse Specialists
         
RANK CPT ALLOWED CHGS FREQ DESCRIPTOR
         
1 90806 $976,761 14,276 Psy tx, office (45-50)
2 99312 $628,837 14,933 Nursing Facility Care, subseq
3 90801 $478,000 4,925 Psy dx interview
4 90862 $297,533 7,675 Medication management
5 90816 $231,017 5,164 Psy tx, hosp (20-30)
6 90805 $224,526 4,325 Psy tx, office (20-30) w/e&m
7 99311 $215,469 7,315 Nursing facility care, subseq
8 90818 $204,773 2,863 Psy tx, hosp (45-50)
9 90817 $188,037 3,333 Psy tx, hosp (20-30) w/e&m
10 90819 $171,640 1,934 Psy tx, hosp (45-50) w/e&m
11 90807 $151,261 1,962 Psy tx, office (45-50) w/e&m
12 99263 $125,845 1,989 Follow-up inpatient consult
13 99313 $124,483 2,170 Nursing facility care, subseq
14 99213 $117,194 3,762 Office/outpatient visit, est
15 90853 $106,620 3,910 Group psychotherapy
16 90804 $104,753 3,476 Psy tx, office (20-30)
17 99243 $ 73,794 821 Office consultation
18 90808 $ 60,779 540 Psy tx, office (75-80)
19 11042 $ 58,796 1,742 Debride skin/tissue
20 99424 $ 49,246 714 Office consultation

The AMA reviewed the above charge data within each state. We found several instances in which Medicare could be paying for services rendered outside collaborative arrangements and state law scope of practice requirements. Consider for example, psychiatric service CPT code 90862: pharmacological management, including prescription, use, and review of medication with no more than minimal medical psychotherapy. In 1998, Medicare paid 206 claims submitted to APNs in Pennsylvania submitted under CPT code 90862. Interestingly, in 1998 Pennsylvania law did not allow APNs to prescribe medication. So, HCFA inadvertently may have paid for services performed outside state law scope of practice requirements. Pennsylvania is changing its law to allow APN prescriptive authority, but only if such authority is exercised in collaboration with a physician. Under the current system, HCFA has no way to keep upWith this change in state law or determine whether it is paying NPs and CNSs for services performed in violation of the collaboration and state law scope of practice requirements.

A recent report of the United States General Accounting Office (GAO) discusses Medicare's vulnerability in this area.15 According to the GAO Report, a HCFA working group recognizes that "Medicare is vulnerable to reimbursing providers who submit claims for services that are not within their allowed scope of practice."16 The AMA and the undersigned organizations urge HCFA to quickly remedy the vulnerability that the GAO has recognized.

The AMA and the undersigned organizations appreciate the quality care that APNs deliver, and respect their level of competence.17 But, regardless of the competence of NPs and CNSs, nursing care cannot be substituted for care by physicians. Nurses receive at best two years less didactic education and three to six (or more) years less graduate education than physicians. Physicians, in spite of the additional years of formal education, are not considered competent to practice independently until after completion of three to seven years of didactic and clinical graduate medical education.18

Despite the existence and importance of Medicare's collaboration and scope of practice requirements, HCFA has not upheld its duty to taxpayers and Medicare beneficiaries by taking the necessary steps to ensure that NPs and CNSs are working within collaborative arrangements and within their state's scope of practice. By failing to implement the law, HCFA may well be improperly paying NPs and CNSs for services rendered to Medicare beneficiaries.

HCFA Must Take Immediate Action to Enforce Medicare's Collaboration and Scope of Practice Requirement

In order to meet its obligations to taxpayers19 and Medicare beneficiaries, the AMA and the undersigned organizations request that HCFA take the following four actions.

    1. Implement a system to ensure that Medicare payments to NPs and CNSs are made only in connection with those services furnished in collaboration with a physician and within their state law's scope of practice requirements, as the Social Security Act requires.

HCFA should develop a comprehensive system for ensuring that Medicare payment is made for only those services rendered within a collaborative arrangement and within applicable state law's scope of practice requirements. At a minimum, we would expect that such a system would: (1) clearly educate NPs and CNSs, as well as Medicare carriers, that the law requires NP's and CNSs to work in a collaborative arrangement and within their state law's scope of practice requirements; (2) regularly track and disseminate to carriers state law scope of practice requirements for NPs and CNSs; (3) develop protocols for carrier verification and documentation of NP and CNS compliance; and (4) conduct a baseline and regular audits of carrier verification and documentation.

    15 GAO Report, Medicare, Lessons Learned from HCFA's Implementation of Changes to Benefits, GAO/HEHS-00-31 (January 2000) (the report discusses HCFA's efforts to identify vulnerabilities that might result from implementing changes required by the BBA, including changes in NP and CNS reimbursement).
    16 Id., p.12.
    17 Mary O. Mundinger, DrPh, Robert L. Kane, MD, et al., Primary Care Outcomes in Patients Treated by Nurse Practitioners or Physicians, JAMA, Vol. 283, No. 1 (Jan. 5, 2000).
    18 AMA, Report 35 of the Board of Trustees (I-93)
    19 According to the Committee on Ways and Means, Medicare and Health Care Chartbook (May 17, 1999), three fourths of the Medicare Part B program (SMI) is financed through contributions from the general revenue of the U.S. Treasury.

Collaboration Requirement
Because the collaboration and scope of practice requirements are mandated by federal law, we believe that HCFA should require that NPs and CNSs collaborate with one or more physicians as a condition of participation in the Medicare program.

Because a majority of states require collaboration, we would expect that HCFA would determine what each state requires, and ensure that carriers do not make payment inconsistent with the state law. For claims submitted in states lacking a collaboration requirement, we would expect HCFA to issue clear guidance to carriers, and/or new regulations, about the documentation required to indicate a collaborative arrangement. We are concerned about HCFA's failure to track what state law requires and its overly permissive approach to enforcing Medicare's collaboration requirement in those few states that do not require collaboration.

For these few states, HCFA has stated that it would simply require NPs and CNSs to document their scope of practice indicating the relationships that they have with physicians to deal with the issues outside of their scope of practice.20 By allowing NPs and CNSs to set their own limits, HCFA not only ignores the law's collaboration requirement but also could be encouraging these professionals to work outside of collaborative arrangements and outside state law scope of practice requirements.

In our view, appropriate documentation for claims submitted in these states should include a collaborative agreement with a physician that would, at the minimum:

    � specify qualifications of and demographic information on both the APN and the collaborating physician(s);
    � describe with detail the APN's functions, which could include performing physician assessments, establishing medical diagnosis, ordering, performing, and interpreting laboratory tests, prescribe drugs, perform therapeutic and corrective measures, provide emergency care (provided that such functions are within the state law's scope of practice requirements);
    � detail the relationship that the APN has with a physician or physicians, including the mechanism in place for developing joint drug and medical guidelines, when a patient must be referred to a physician, case review and review of medical records, schedule for consultation (time in practice and/or availability of physician for consults); and
    � provide a limited date for authorization and continuation of the agreement.

By requiring APNs to comply with state collaboration requirements, or to comply with HCFA collaboration requirements in states with no collaboration requirement, we believe an appropriate balance would be struck between state entitlement to regulate health care professionals and the federal legal requirement to impose collaboration. The net result would be that state law would stand, and be upheld, to the extent it exists.

    20 63 Fed. Reg 58814 (Nov. 2, 1998).

Scope of Practice Requirements
The GAO Report, issued earlier this year, states that HCFA currently does not even have information on the permitted scope of practice for APNs in each state. Without this essential information, HCFA obviously is vulnerable to paying NPs and CNSs for services outside their scope of practice.

HCFA should have a method to determine what services each state would allow NPs and CNSs to perform; this information should be updated periodically. We would support the recommendations of HCFA's work group, discussed in the recent GAO Report, that HCFA survey the states to establish a national database of allowable practices for possible use in forming policies.21

Though we appreciate the complexity of these tasks, attributable in part to the divergent categories/definitions of APNs and vague language in many nursing practice acts, we believe that the information could be gathered and should then be distributed to carriers for use in making payment determinations. State licensure boards may be helpful in developing and updating this information.

2. Limit distribution and renewal of Medicare billing numbers only to those NPs and CNSs who comply with the collaboration and state law scope of practice requirements.

Currently, HCFA distributes billing numbers to NPs and CNSs without determining whether the APN works in a collaborative relationship and consistent with state scope of practice requirements. We believe that HCFA should require APNs to provide evidence of compliance with these requirements in order to be eligible to receive a billing number.

Any individual who wants to be paid by Medicare must complete the Medicare/Federal Health Care Provider/Supplier Enrollment Application (HCFA-855). Once approved, the individual can receive a billing number. The form is used to gather information about the individual to secure documentation (that the carrier is responsible for verifying) to assure that the applicant is qualified and eligible to enroll in the Medicare program.22 There are supplemental forms for other purposes, e.g., suppliers who wish to provide Medicare beneficiaries with durable medical equipment must complete an additional form.

The current HCFA-855 does not provide any questions for NPs and CNSs relative to their compliance with Medicare's collaboration and scope of practice requirements, and currently NPs and CNSs are not required to complete any form in addition to HCFA-855 in order to receive a billing number. It would be reasonable to require that NPs and CNSs complete an additional form that would identify the collaborative arrangement under which they work and their compliance with state scope of practice requirements. Such a form could seek background information about the collaborating physician(s), the authorized APN functions and any limitations on these authorizations, the process in place for developing joint guidelines, the availability of the physician(s) for consult, process for case and medical record review, and compliance with state law scope of practice requirements.

    21 GAO Report, p.12.
    22 Section 1030. Health Care Provider-Supplier Enrollment, Carriers Manual Part 4, Chapter 1-Physician Identification and Registration.

We emphasize that simply requiring APNs to submit an additional form will not meet the goal of compliance. However, such a requirement would assure that all NPs and CNSs are on notice as to Medicare requirements, and would give HCFA a written representation from each APN as to compliance with these requirements.

2. Issue detailed instructions to Medicare carriers on implementation of a system to ensure compliance with the collaboration and state law scope of practice requirements.

Medicare carriers' responsibilities include determining charges allowed by Medicare and making appropriate payments to physicians and other health care practitioners, including NPs and CNSs. To date, HCFA has not instructed carriers regarding how to make appropriate payments to NPs and CNSs, which instruction should include a methodology for determining whether each NP or CNS is working in collaboration with a physician and practicing within their state law's scope of practice requirements.

HCFA Program Memorandum AB-98-15 on Medicare Billing for physician assistant, NP, and CNS services states that, effective January 1, 1998, Medicare payment is allowed for services furnished by NPs and CNSs in all areas and settings permitted under applicable state licensure laws. The Program Memorandum requires submission of claims to the Part B carrier under the NP's or CNS's billing number, except where the services are "clearly facility services," in order to prevent duplicate billings and/or payments. These billing instructions do not enable carriers or HCFA to determine whether NPs and CNSs are providing and seeking reimbursement for services within a collaborative arrangement and the scope of their state license. The only limitation noted in the memorandum is that carriers must be careful to avoid duplicate payments to both the nurse and a physician or facility for the same service. Nowhere does this or any other memorandum indicate that carriers must document that the APN is working in collaboration with a physician and within his or her scope of practice.

We request that HCFA immediately alert Part B carriers about the law's collaboration and scope of practice requirements and develop a system for identifying and updating applicable state law. We would expect that more detailed and appropriate carrier instructions regarding verification and documentation of APN compliance be issued promptly after completion of this analysis.

3. Conduct an immediate "baseline" audit, followed by future periodic audits, to ensure that Medicare payments to NPs and CNSs are limited to services furnished in collaboration with a physician and within their state law scope of practice requirements.

Lastly, we request that a baseline audit be performed to determine the extent to which NP and CNS services currently are reimbursed in accordance with the collaboration and scope of practice requirements. We believe that Medicare may be making inappropriate payments or arbitrarily denying appropriate claims.

Our recommendation is consistent with the recommendation of HCFA's working group reviewing the BBA changes for nonphysician providers, including NPs and CNSs. According to the GAO, the group recommended that a baseline study be conducted to determine the volume and type of services billed by NPs and CNSs, stating that "these types of baseline data can support analysis of claims submitted after the changes to reveal payment trends or patterns that warrant investigation."23 We understand that HCFA has not begun to work to implement this recommendation.

Following the initial audit, we believe that periodic audits should be conducted to ensure that payments are made in accordance with Medicare laws and regulations, more specifically law and regulation requiring nurse-physician collaboration and delivery of services within the scope of practice requirements.

Conclusion
Creating additional barriers to appropriate payment for services rendered by NPs and CNSs is not our goal in filing this petition. The AMA and the undersigned organizations recognize the important contribution that NPs and CNSs make to our health care system. Rather, our goal is to ensure that Medicare pays for NPs and CNSs services performed within a collaborative arrangement and within the state law scope of practice requirements. The AMA and the undersigned organizations simply ask HCFA to assure compliance with federal law. It is legally required, and in our view, readily achievable.

The AMA and the undersigned organizations stand by to work with other interested organizations and to assist HCFA address these important issues.

Respectfully submitted,

The American Medical Association
(insert list of state and specialty organizations)

Cc: June Gibbs Brown, Inspector General

Disclaimer: This is a re-typed version of the document I received by fax�I have made my best effort to be accurate in the re-typing, rechecked it for errors and believe it to be accurate, including any grammatical errors made by the AMA. Cathryn Wright.

ORGANIZATIONS SIGNING AMA'S CITIZENS PETITION
(AS OF JULY 13, 2000)

American Medical Association
American Academy of Child and Adolescent Psychiatry
American Academy of Family Physicians
American Academy of Facial Plastic & Reconstructive Surgery
American Academy of Neurology
American Academy of Ophthalmology
American Academy of Otolaryngology?Head and Neck Surgery
American Academy of Pain Medicine
American Academy of Pediatrics
American Academy of Sleep Medicine
American Association of Clinical Endocrinologists
American Association of Electrodiagnostic Medicine
American Association of Neurological Surgeons
American Association of Orthopaedic Surgeons
American College of Emergency Physicians
American College of Obstetricians and Gynecologists
American College of Osteopathic Emergency Physicians
American College of Osteopathic Family Medicine
American College of Osteopathic Surgeons
American College of Physicians?American Society of Internal Medicine
American College of Radiology
American Osteopathic Association
American Psychiatric Association
American Society for Gastrointestinal Endoscopy
American Society for Therapeutic Radiology and Oncology
American Society of Cataract and Refractive Surgery
American Society of General Surgeons
American Society of Plastic Surgeons
American Urological Association
Arkansas Medical Society
California Medical Association
Congress of Neurological Surgeons
Illinois State Medical Society
Massachusetts Medical Society
Medical Association of Georgia
Medical Association of the State of Alabama
Medical Society of New Jersey
Medical Society of the State of New York
Medical Society of Virginia
Michigan State Medical Society
Mississippi State Medical Association
National Medical Association
New Hampshire Medical Society
North American Spine Society
Pennsylvania Medical Society
Renal Physicians Association
Society of Cardiovascular and Interventional Radiology
Society of Medical Consultants to the Armed Forces
Tennessee Medical Association
Washington State Medical Association

    23 GAO Report, p.14.