The Honorable ______________
United States Representative
Washington, DC 20510 

Dear Representative __________: 

            I have worked as an Emergency Physician in the _________________ Hospital System in __City__, __State__ for over ___ years. This year our affiliated physicians will care for close to __x__,000 emergency department patients, of which over __x__,000 are Medicare patients. The scheduled reduction in the Medicare fee schedule will reduce payments to emergency department physicians by approximately 12% in 2008. This proposed reduction in reimbursement will make it more difficult to recruit and retain high-quality emergency physicians who provide the exceptional care that our patients- your constituents- deserve. 
            In June 2006, the Institute of Medicine (IOM) released three groundbreaking reports that point to the need for major changes in our emergency medical care system- changes that require help and support from Congress. In its report Hospital-Based Emergency Care: At the Breaking Point, the IOM points out that our nation's emergency care system is woefully unprepared to handle a pandemic flu outbreak, terrorist attack, or natural disaster. The United States has spent billions of dollars on disaster planning and preparedness, but virtually none has gone toward front-line emergency medical care. Congress must recognize the emergency department’s critical role in responding to national disasters.  
            The report also describes the increasing responsibilities of hospital emergency departments that care for the nation’s 53 million- and growing- uninsured patients as well as insured patients without ready access to a physician. Between 1993 and 2004, the number of visits to emergency departments increased from 93.4 million to nearly 110 million. At the same time, the number of hospital emergency departments in the United States decreased by 425. 
            Emergency department physicians and nurses serve as this nation’s healthcare safety net, treating everyone who walks through the door regardless of their ability to pay. However, a lack of adequate funding jeopardizes their ability to provide safe and effective care in a system that is overcrowded, understaffed, and stretched to the breaking point. To address these challenges, I ask you to support H.R. 882/S.1003.
            H.R. 882/S.1003, the “Access to Emergency Medical Services Act of 2007,” addresses three major issues highlighted in the IOM reports: (1) gridlock in the emergency department due to the practice of "boarding" admitted patients in emergency departments until inpatient beds become available, (2) physician shortages due to the liability risk of caring for emergency patients, many of whom are under- or uninsured, and (3) the continuing decline in payments for emergency medical care that reduces patient care resources. 
            I urge you to co-sponsor and promote the passage of H.R. 882/S.10 to provide additional funding for emergency department physician services and support congressional hearings to address the problems in our nation's emergency departments. 
            As the reconciliation bill with the Senate eliminated the Medicare fix solution addressed in H.R. 3162, “The Children’s Health and Medicare Protection Act of 2007,” I would ask you to support a bill that provides redress to the proposed 12% payment reduction for Emergency Medicine physicians and for a small increase in Medicare payments. I also urge you to urge you to continue to support this bill when it is reconciled with the Senate’s initiatives after the August recess. I would also ask you to support an overturning of any Presidential veto of the reconciliation bill for H.P.3162. 
            The members of our E.D. physician staff have worked for many years with the American College of Emergency Physicians (ACEP) and the Emergency Department Practice Management Association (EDPMA) in support of better care for this nation’s emergency department patients. Our combined efforts, in conjunction with your support of a Medicare fix and H.R. 882/S.1003, will strengthen the system to enable us to continue to provide the high quality and efficient care these patients deserve.  

Thank you for your consideration. 

Sincerely, 

            Many hospitals around the country are encountering problems with specialist on-call coverage for their emergency departments. The reasons are varied and largely involve problems with obtaining specialty care for un-funded patients. Many hospitals are attempting to address this problem by paying physicians to take emergency department call. Due to the Stark prohibition on self-referral, some hospital-physician “on call” arrangements may be problematic. One hospital asked the Office of Inspector General ("OIG") for an opinion on their program and while that advisory opinion was favorable to that hospital’s program, it may call into question the legality of other less rigorous plans.
            Sonnenshein Nath and Rosenthal, LLP, who helped design the hospital’s “on call” program and drafted an opinion request from the OIG, report the following information concerning OIG Advisory Opinion 07-10. This was the first advisory opinion addressing a hospital's payment to physicians for providing on-call and indigent care services.  In the opinion, the OIG declined to impose sanctions on the applying hospital for paying most physician specialists on the hospital's medical staff in return for their on-call and indigent care services.  

Program Description
             The hospital that made the request for the opinion had in recent years experienced significant difficulty in obtaining physicians' agreement to provide on-call coverage to the hospital's emergency department ("ED"). They had difficulty getting physicians to agree to provide follow-up care to uninsured/under-insured ED patients. The hospital established a program that involved the hospital paying physicians on the medical staff in exchange for their agreeing to:

1. Participating in “on call” ED schedule rotation.
2. Responding to time frames for ED calls.
3. Providing follow-up inpatient care to admitted ED patients that they treated regardless of the patient’s ability to pay
4. Providing consulting services, while “on-call” to patients of other physicians
5. Completing medical records in a timely manner.

            The hospital's program covers nearly all surgical and medical specialties. The specific specialties covered under the program are General Surgery, Obstetrics/Gynecology, Neurosurgery, Orthopedics, Urology, Pulmonary, Infectious Disease, Cardiology, Anesthesiology, Hospitalists, Gastroenterology, Renal/Nephrology, Otolaryngology, Neurology, Oral/Maxillofacial Surgery, Endocrinology, Ophthalmology, and Hematology/Oncology.
            Each physician participating in the program receives a per diem payment for each day he/she is on-call.  Payment for the various specialties varies depending on the typical severity of illness, likelihood of having to respond to the ED, likelihood of having to respond to uninsured patient consults, and the degree of follow-up care normally required for inpatients from the ED. Weekends/holidays are paid at a higher rate for all specialties.
            The call schedule developed for all physicians in each specialty is distributed as equally as possible with each physician being required to provide 1.5 days of uncompensated call coverage. This 1.5 days is subtracted from the total dates and only the difference is paid at the per diem amount.The hospital sought an opinion from a nationally recognized consulting firm regarding the reasonableness of the per diem plan. It was the consulting firm’s opinion that both the method and the amounts of the payments were consistent with fair market value.
            The hospital also designed some safeguards into the system that included monitoring response times and collaboration with the hospital’s care management staff and Medical Staff Performance Improvement Committee. Physicians not in compliance with these requirements will have payments suspended until they comply or are terminated from the program. 

OIG Opinion
            The OIG wants to "scrutinize closely”, on a case-by-case basis, each on-call pay program. They are concerned that there is the potential for a program to pay for no services (since most medical staff bylaws require that physicians participate in call coverage) and "double pay" physicians.  They are concerned that some physicians will respond to call and receive payment from a third party payor as well as the on-call subsidy. Therefore, they believe it is important for the probability of physicians being called in be factored into any program design. All programs must be designed to address an actual need and obligate the physicians to provide actual, needed services and be compensated in relation to the likelihood of compensation from third parties.
             The OIG specifically noted the fact that the lack of call coverage prior to the implementation of the current program had resulted in the hospital having to transfer patients to other facilities with appropriate on-call specialists.  This problem lowered the probability that the hospital had implemented this program to garner referrals. The OIG also noted that the most likely reason physicians did not want to take call was the high number of uninsured and under-insured patients.
            It was also important to the OIG that the hospital required, in addition to taking call, the obligation to assume inpatient follow-up care. They stated that the plan covered "substantial, quantifiable services, a large portion of which are furnished to uninsured patients in the ED and afterwards."
              The OIG noted that the payment methodology put "the burden on a physician and the likelihood that a physician in a particular specialty will actually be required to respond while on-call, as well as the likelihood that he or she will have to provide uncompensated treatment, and the likely extent of that treatment."  The OIG also noted that some other hospitals’ on-call plans were "less plainly tied to tangible physician responsibilities, and which may represent little more than illicit payments for referrals."
             The OIG recognized that other safeguards had been implemented to reduce fraud such as: being open to all physicians, equal distribution of the call schedule, requirements to provide follow-up care, and documentation requirements. They also noted that the program was implemented with no cost to the government.
            Since the hospital had already implemented the plan they were able to provide data that patient satisfaction had improved significantly. This was due to increased efficiency and physician responsiveness as well as increased consultations and follow-up care.
            It would appear from this advisory opinion that only a well-designed plan for payment of on-call specialists will be acceptable to the OIG. It would be important for any facility to consult with an attorney prior to implementing such a program. 

OIG Advisory Opinion 07-10 can be found at:
http://oig.hhs.gov/fraud/docs/advisoryopinions/2007/AdvOpn07-10A.pdf

            For the past 3 years, Trailblazer has been developing a new “E&M Documentation Guide” to be used by coders when assigning evaluation and management codes for physician services. The new TrailBlazer E&M Documentation Guide (Audit Tool) should appear on the TrailBlazer website by Oct. 15, 2007 and will replace the audit tool which currently appears on the site.   
            An audit tool developed and tested by the Marshfield Clinic has been commonly used by coders, auditors, and many carriers since it’s development a number of years ago. A recent comparison of E&M coding of 60+ charts utilizing the “Marshfield Clinic” audit tool vs. the new Trailblazer audit tool found that there was a 95% agreement between the two different coding methodologies.
            The new Trailblazer Documentation Guide for E&M services functions in a manner similar to that of the Marshfield Clinic.  The two “Key Elements” of History and Physical Examination” are identical to those established in the 1995 CMS Documentation Guidelines for E&M services.  The third “key element” of “Medical Decision-Making” is greatly expanded and is now clearly delineated in the new Trailblazer “MDM” guidelines.  “Medical Decision Making” is still based on the three “Elements” of :            

• “Number of diagnoses and/or Management Options”           
• “Amount and/or Complexity of Data Reviewed or Ordered”           
• “Risk of Complications and/or Morbidity/Mortality” 

            The “Element” of “Risk” is unchanged from that found in the 1995 CMS Documentation Guidelines and the 1995 “Table of Risk” is unchanged from 1995.   
            The “Element” of “Number of Diagnoses and/or Management Options” is comprised of 3 components, listed under “Table A”:

Table A. 

Table A, Column A                 
Each “problem” identified in the medical record (for which E&M services were performed) is listed in this column.  If no diagnostic testing or treatment was provided in regard to any of the “problems” identified, then that “problem” should NOT be listed in Column A. 

Table A, Column B                  
In this column, the appropriate “number of points” is listed. The appropriate “number of points” for each problem is obtained by applying Table A.1. 

Table A, Column C                 
In this column are listed the appropriate “number of points” applicable to each problem- as determined by application of Table A.2. 

Table A, Column D                 
In this column, the “point totals” for each “problem” listed in Table A, column A are listed.  These “points” for each “problem” are determined by adding the points obtained in Columns B and C. 

Table A.1.

1 point is assigned for each new or established problem for which the diagnosis and treatment plan is evident with or without diagnostic evaluation. 

2 points are assigned for each new or established problem which requires diagnostic evaluation and for which there is a limited “differential diagnosis” (2 or a maximum of 3 diagnoses)-and in which the “problem” requiring diagnostic evaluation is clearly identified in the medical record (and for which diagnostic testing is utilized) 

3 points are assigned for each new or established problem which requires diagnostic evaluation and in which there is a minimum of 4 “differential diagnoses” clearly identified in the medical record. 

The list of “differential diagnoses” may be written or typed or otherwise recorded in the medical record by the physician, OR- in the case of templated medical records in which there is an already existing, preprinted list of “differential diagnoses”, the specific diagnoses which have been specifically considered in a given patient must be identified by placing a “check mark” beside each diagnosis which has been “pre-printed” in the template.  In the case of templated medical records, the “clinical assessment” which is ultimately determined to be the most likely cause of that given “problem” is then identified by “circling” the diagnosis, which is the final “clinical assessment” of the patient’s “problem”. 

Table A.2.

This table lists assigned numbers of “points” applicable to each of the “Treatments and Therapeutic Options” which obtain in the evaluation and care of a given patient. The table is self-explanatory.   

It is to be noted that the preamble to this table includes the statement that, “this table is not “all-inclusive” but are merely illustrative of commonly prescribed treatments. . . . Many other treatments exist and should be counted when utilized”. 

Of note is the last “treatment” element of “Other- specify”.  In this area, treatments that are not listed may be assigned variable numbers of “points” – based on the coder’s judgment (in consultation with the providing physician). 

An example might be “Activation of Trauma Team” - with “2 points” assigned. Coders are free to use their judgment in this area and should be prepared to justify their “point assignment” during a possible future audit. 

Table B.

Amount and/or Complexity of Data Reviewed or Ordered

This table assigns “points” for differing numbers of clinical laboratory tests, diagnostic imaging studies, and diagnostic procedures listed in the “Medical Section” of CPT, i.e. EKGs, pulmonary function tests, etc.  This table is self-explanatory. 

It is to be noted that, if the physician performs an “independent visualization and interpretation” of an imaging study, EKG or laboratory test (Gram stain, etc.), then 1 additional point may be given for each independent interpretation - provided that these interpretive services are NOT being separately billed for. 

Final Assignment of Type of Medical Decision-Making

This Table is used after the total numbers of “points” for each of the three key elements of “Medical Decision Making” has been determined.   It is self-explanatory. 

            One of the significant differences between the “Marshfield Clinic” audit tool and the new “Trailblazer Audit Tool” is the increased importance of the physician documentation of the “Differential Diagnoses” that he or she considered in selection of diagnostic testing and in therapeutic options.  One of the criticisms of the “Marshfield Clinic” audit tool is that there is seemingly no consideration of the “appropriateness” and “medical necessity” of the diagnostic testing employed- the more diagnostic testing done, the increasing number of “points” achieved using the Marshfield tool.   
            By increasing the focus on “Differential Diagnoses”, the medical necessity and reasonableness of the testing done should be more readily apparent to an auditor and testing deemed “unnecessary” by the auditor (and consulting physicians to the auditor) will be curtailed. Trailblazer hopes that their new E&M Audit Tool will also hopefully be more “concrete” in its guidance to coders, with less room for ambiguity in code assignment. 
            It will require education, training, and possibly a change in some documentation formats for providers to be able to document properly to meet the requirements of the new Trailblazer auditing tool. It will be interesting to see if additional carriers decide to adopt the new Trailblazer Guidelines.