Action: Dec. 15, 2014

TMA Action Dec. 15, 2014   News and Insights from Texas Medical Association

Court Invalidates Payment Hold for Minor Medicaid Violations
AMA Wants Significant Changes to RAC Audit
Appeals Court Rules Marriage and Family Therapists Can't Diagnose
Make Your Medicare Participation Selection by Dec. 31
PQRS: You Still Have Time to Comply in 2014
EHR Contracts Seal the Deal; Consider Having Them Reviewed

Texas Retains Clout on Key House Health Panels
Get Tweeting! Hashtag #TMASMA
AMA to Study Long-Term Effects of Physician Employment
Earn CME at the Physician Health and Wellness Seminar
Physicians, Med Students: Enter Your Journalism in TMA Awards Competition
This Month in Texas Medicine    

Court Invalidates Payment Hold for Minor Medicaid Violations

The Texas Third Court of Appeals struck a major blow to the Texas Health & Human Services Commission (HHSC) Office of Inspector General's (OIG's) investigative framework. Judges invalidated rules that allowed the agency to place payment holds on Medicaid physicians for non-fraudulent program violations. The court also declared invalid a rule that allowed OIG to retain a health care professional's funds after termination of the payment hold period.

The appeals court's decision came after the Sunset Advisory Commission's scathing report on HHSC, which the court used to support its interpretation of Texas' Medicaid laws. 

The report says OIG — tasked with preventing, detecting, and investigating fraud, waste, and abuse in the Medicaid system — fails at fraud prevention, takes more than three years to resolves cases, and wins back only a fraction of the amount of allegedly abusive or wasteful spending it identifies. According to the report, the OIG collected only $5.5 million in 2012 and 2013, during which it identified $1.1 billion in possible Medicaid overpayments.

The report states OIG uses payment holds as a bargaining tool, "even for cases that do not pose significant financial risks to the state." TMA supports the Sunset Commission report’s recommendations to clarify OIG’s payment hold authority.

“TMA believes that Medicaid rules and regulations should be clear so that physicians that voluntarily enroll to provide care to Medicaid beneficiaries can dedicate their time, talent, and staff resources to patient care, as opposed to administrative hassles, burdensome audits, and fear of fraud and abuse accusations,” John Holcomb, MD, chair of TMA's Select Committee on Medicaid, CHIP and the Uninsured, wrote in formal comments to the commission.

On Dec. 10, the Sunset Advisory Commission adopted most of the report, recommending the legislature enact significant changes in the operation of OIG.

A workgroup chaired by Sen. Juan "Chuy" Hinojosa (D-McAllen) recommended — and the commission adopted — a change in the definition of Medicaid fraud "to clarify that the term does not include unintentional technical, clerical, or administrative errors. The amended definition would be read as follows: ‘Fraud’ means an intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to that person or some other person, but does not include unintentional technical, clerical, or administrative errors."

Additionally, Sen. Charles Schwertner (R-Georgetown) made modifications directing HHSC to strengthen oversight and accountability for Medicaid HMO network adequacy, one of TMA's recommendations.

TMA has long championed improvements in the Medicaid system and in OIG's investigations of physicians accused of fraud, waste, and abuse. The association continues to work closely with the Texas Legislature to assure any HHSC statutory changes are constructive. The association will monitor any new proposed regulations.

AMA Wants Significant Changes to RAC Audit

The American Medical Association cites "bounty hunter-like tactics" and a two-year backlog of Medicare and Medicaid appeals in a letter urging the Centers for Medicare & Medicaid Services (CMS) to make significant changes to the Recovery Audit Program (RAC).

AMA has been strongly advocating elimination of erroneous RAC audits while ensuring physicians’ appeals are not tied up in a prohibitively lengthy Medicare appeals system. The letter outlines RAC program problems, which have directly contributed to the appeals backlog, including: 

  • A growing volume of physician appeals that overload the system, causing at least a two-year delay for appeals to be heard at the administrative law judge (ALJ) level;
  • Inaccurate RAC determinations; and
  • The high cost of RAC appeals. 

The letter states the average cost to appeal a RAC audit is about $110 per claim, while the average value of the claim being audited is only $86. 

AMA supports these changes to the RAC program:  

  • RACs should be subject to financial penalties for inaccurate audit findings, and physicians should receive interest when they win on appeal of a RAC audit. 
  • Physicians should be permitted to rebill for recouped claims for a year following recoupment.
  • CMS should provide an optional appeals settlement to physicians similar to that provided to hospitals for short-term care.
  • CMS should retain the current medical record request limits and allow medical record reimbursement for physicians. 
  • RAC audits of physicians should be performed by a physician of the same specialty or subspecialty licensed in the same jurisdiction.   

TMA is calling for similar changes to the RAC audits. In Healthy Vision 2020, Second Edition, TMA recommends CMS: 

  • Direct RAC contractors to focus only on practices with demonstrated inappropriate billing patterns and provide due process and fair procedures for physicians who are subject to a RAC audit.
  • Create a threshold or safe harbor for physicians who are overpaid by a small amount to ensure they are not subject to fraud prosecution. 

In a separate letter to the Office of Medicare Hearings and Appeals (OMHA), AMA responds to the office's Federal Register request for ideas to mitigate the appeals backlog.

AMA offers these recommended changes to the OMHA appeals process: 

  • OMHA should continue and consider expanding the Settlement Facilitation Conference Pilot, which provides a more expedient process for Medicare Part B providers who have appealed to the ALJ level and would like to swiftly resolve a number of claims. 
  • OMHA should continue and consider expanding the Statistical Sampling Initiative, with the potential to resolve a large number of outstanding claims through the initiative.
  • OMHA should consider extending the 65-percent settlement option, which has been offered to hospitals, physicians, and other health professionals. 
  • OMHA should continue its efforts to move to an electronic system for appeals management and resolution.  

Visit AMA’s RAC website for more information on the RAC program and the appeals backlog.

Appeals Court Rules Marriage and Family Therapists Can't Diagnose

The Texas Third District Court of Appeals handed down a favorable decision in TMA's lawsuit against the Texas State Board of Examiners of Marriage and Family Therapists (TSBMFT). The court decided marriage and family therapists cannot diagnose.

"We conclude that the diagnosis of mental diseases or disorders is excluded from the statutory scope of practice for licensed marriage and family therapists," the court ruled.

Chief Justice J. Woodfin Jones, however, dissented. The Texas Supreme Court may decide to hear the case should TSBMFT appeal the decision.

The appeals court's decision comes six years after TMA filed a lawsuit against TSBMFT when the board attempted to allow therapists to diagnose medical conditions. TMA's lawsuit contended "because marriage and family therapists are neither licensed nor trained to practice medicine," giving them the ability to diagnose mental and physical conditions would diminish the quality and standards of the practice of medicine. 

TMA asked a Travis County district court judge to declare the board's rule invalid and to prohibit the board from enforcing it. TSBMFT, joined by the Texas Association for Marriage and Family Therapists, claimed the board's rules authorizing marriage and family therapists to diagnose "are reasonable and consistent with the statutory scope of practice." They contended therapists "have been exercising the authority to diagnose in this state for at least 18 years with no known complaints." 

Visit the TMA website for more information about TMA's scope-of-practice litigation.

   TMLT Action Ad 4.13  

Make Your Medicare Participation Selection by Dec. 31

Don't forget the Dec. 31 deadline to determine whether you’ll be a participating or nonparticipating physician in the Medicare program next year is just around the corner.

The American Medical Association has a newly updated Medicare participation kit that breaks down your three options: 

  • Participating,
  • Non-participating, and
  • Private contracting. 

The toolkit includes a participation guide (log in required), revenue worksheet (log in required), answers to frequently asked questions (log in required), and a variety of sample materials to help communicate with patients about any changes to your Medicare participation status.

To be a participating physician:  

  • If you currently are participating, do nothing. 
  • If you are not currently a Medicare participant, complete the blank participation agreement (form CMS-460), making sure to include all of the names and identification numbers under which you bill. 

To be a nonparticipating physician: 

  • If you currently are not participating, do nothing. 
  • If you are currently a participant, submit a written, dated notice, postmarked before Jan. 1, 2015, that includes: your name and National Provider Identifier and a statement indicating you are rescinding your participation agreement. 

Submit the participation agreement or disenrollment to: Novitas Solutions, Provider Enrollment Services, PO Box 3095, Mechanicsburg, PA 17055-1813.

Keep in mind that current Medicare fee schedule amounts are set through March 31, 2015; potential cuts won't happen until April 1, 2015

PQRS: You Still Have Time to Comply in 2014

Medicare payment cuts are in the works, but you still may be able to stop some of them.

Beginning in 2015, physicians deemed eligible professionals (EPs) who did not report or satisfactorily participate in the Physician Quality Reporting System (PQRS) in 2013 will be paid 1.5 percent less than the Medicare Physician Fee Schedule (MPFS) amount for services. Physicians in group practices with 100 or more EPs will be subject to an additional 1-percent pay cut under the Value-Based Payment Modifier (VM) program in 2015, based on their quality and cost performance in 2013. These payment adjustments will apply to all Part B covered professional services under the MPFS.  

Physicians can avoid the payment adjustments in 2016 by reporting PQRS data in 2014. Although the 2014 PQRS program year ends Dec. 31, physicians have until the end of February 2015 to report data on quality measures to Medicare. Failure to report this year will result in a 2-percent payment adjustment in 2016 under PQRS for all physicians, plus another 2-percent payment adjustment under the VM for group practices with 10 or more EPs. Refer to this graph to see how PQRS participation affects the VM. In 2017, all physicians who participate in fee-for-service Medicare will be subject to PQRS and VM payment adjustments. 

How to Report Data to Avoid Future Penalties

Physicians who use an electronic health record (EHR) should check with their vendor to see if their system is certified EHR technology and is able to report PQRS data to Medicare. The option is often free and minimizes staff time to review charts and reenter patient information. Physicians beyond their first year of participation in the EHR incentive program can report quality data one time to receive credit for PQRS, meaningful use, and other programs. Read more about this option in the Dec. 1 issue of Action.  

No EHR? Report via a registry. Registry reporting has proven more successful than claims-based reporting. Medicare vets the registries to ensure they provide the required PQRS data elements, accurately calculate measures reporting and performance, and properly transmit the required information. TMA members get a discounted rate for choosing one of TMA's endorsed, cost-effective qualified registries: PQRSwizard and Covisint PQRS (use the discount code TMAPQRS14). Read more about the benefits of registry reporting in the November issue of Texas Medicine

It’s too late in the year for the 2014 PQRS program year to start reporting via claims, as physicians most likely will not meet all of the reporting requirements. Instead, report via registry or EHR. 

For practices with 10 or more EPs that missed the Sept. 30 deadline to register to report as a group under the Group Practice Reporting Option for the VM, Medicare will calculate a group quality score if at least 50 percent of EPs within the group report PQRS measures individually. Also, EPs in the group practice will avoid the PQRS penalty by reporting as individuals. 

Submission deadlines for the 2014 PQRS program year  

  • Feb. 26, 2015: last day for registry reporting via PQRSwizard and Covisint PQRS
  • Feb. 27, 2015: last day for claims-based reporting
  • Feb. 28, 2015: last day for EHR reporting  

Need Help With Your Quality Reporting?

TMF Health Quality Institute is under contract with Medicare to serve as the state’s Quality Innovation Network Quality Improvement Organization (QIN-QIO). Medicare funds the TMF QIN-QIO to help solo physicians and group practices with their quality reporting to advance quality improvement efforts in programs such as PQRS, VM, and meaningful use at no cost to physicians. 

Read more about TMF’s contract and how the institute can help you in the October issue of Texas Medicine. Or, contact one of the TMF QIN-QIO representatives for information:

Christine Allen
Program Manager
(866) 439-8863                            
        Tracy Swoboda
Project Resource Consultant
(361) 258-1053                                     

For an overview of the 2014 PQRS reporting requirements, visit the TMA website or check out TMA's on-demand webinar. TMA members get a discounted rate and continuing medical education credits. Find more about PQRS and the VM from the Centers for Medicare & Medicaid Services.

For answers to PQRS and VM questions, contact the CMS QualityNet Help Desk, Monday through Friday, 7 am to 7 pm (CT), by phone, (866) 288-8912, or email. You can also contact the TMA Knowledge Center by phone, (800) 880-7955, or email.

EHR Contracts Seal the Deal; Consider Having Them Reviewed

TMA’s latest HIT preliminary survey results indicate 68 percent of Texas physicians now use an electronic health record (EHR). Even at critical mass, some practices are still in the market for a replacement, and a few first-time purchasers remain.

As physicians review demonstrations and hear about the latest and greatest from EHR salespeople, remember it is the contract that seals the deal and defines the future relationship. A good contract review cannot be stressed enough. Seek the guidance of your attorney or one who is savvy with EHR contracts. Paying for a contract review may be worthwhile because:  

  • There may be hidden fees not disclosed during the negotiations but spelled out in the contract,
  • You need an exit strategy in case the relationship sours beyond repair, and
  • The contract should include terms defining how you get your data should you sever the relationship. 

With these issues in mind, TMA developed a helpful tool, EHR Buyer Beware: Issues to Consider When Contracting with EHR Vendors, an eight-page document featuring eight must-haves for physicians. The Office of the National Coordinator for Health Information Technology made available another source, EHR Contracts: Key Contract Terms for Users to Understand. The 25-page document is more inclusive and covers key information, such as details about a meaningful use warranty.

You can direct questions related to EHRs and other office technologies to TMA's Health Information Technology Department by calling (800) 880-5720 or by email

 TMAIT Action Ad Sept 14  

Texas Retains Clout on Key House Health Panels

Committee appointments in the U.S. House of Representatives for next year reveal Texas will retain three good friends of medicine who will be well placed to influence issues such as Sustainable Growth Rate formula reform and the repeal of onerous federal regulations

Rep. Kevin Brady (R-The Woodlands) will remain as chair of the Subcommittee on Health of the House Ways and Means Committee. Rep. Gene Green (D-Houston) will become the “ranking member,” or lead Democrat, on the Health Subcommittee of the House Energy and Commerce Committee, and Rep. Michael Burgess, MD (R-Lewisville), will be the third-ranked Republican on the subcommittee. TMA has excellent relationships with all three congressmen and their staffs.

On the Senate side, Sen. John Cornyn of Texas is the new majority whip, the No. 2 spot in the Senate Republican leadership. No Texan has held that position since Sen. Lyndon B. Johnson did so from 1951 to 1953.

Get Tweeting! Hashtag #TMASMA

Silly as its name sounds, Twitter is a communication tool of choice for the Texas Legislature. Groups that most effectively use this social network to influence the legislative process have trained their supporters to faithfully echo the organizations’ Twitter messages. This tactic substantially increases the groups’ Twitter reach … and impact.

While TMA has been active on Twitter for years and has a large and growing following, our tweets don’t get enough reinforcement from TMA members. As part of TMA’s plan to better engage the 84th Texas Legislature at all levels, the association is asking TMA leaders and member physicians to join the TMASMA (TMA Social Media Advocacy) campaign in the Twittersphere. 

Here’s what TMA is asking you to do

  • Sign up for and start using Twitter (if you’re not already) or reactive your old account.
  • Take Lessons 1-4 (as needed) of the TMA Twitter Academy materials (see below).
  • Grow your follower list — be sure to add your own state representative and senator and statewide elected officials.
  • Pay specific attention to TMA tweets and retweet them as you can. 
  • Pay VERY specific attention to TMA tweets marked with the #TMASMA hash tag and be sure to retweet them.
  • Look for — and retweet — news stories supportive of TMA's advocacy agenda/Healthy Vision 2020

For those new to Twitter, TMA has posted four, step-by-step TMA Twitter Academy videos that walk you through the process: 

  1. Setting up Your Twitter Account
  2. Following and Being Followed
  3. How to Tweet
  4. Twitter Tools and Tips 

The materials include lists of elected officials, news organizations and reporters, medical organizations (including TMA), and Texas physicians you’ll be sure to want to follow on Twitter.

Get tweeting … and make a difference under the dome!

AMA to Study Long-Term Effects of Physician Employment

Gathering in Dallas last month for its 2014 Interim Meeting, the American Medical Association House of Delegates adopted a resolution to examine the long-term effects of physician employment.

“While there is much information about how employment affects individual physicians, very little consideration has been given to the effects — positive or negative — of physician employment on our patients and on the medical profession as a whole,” said the AMA Organized Medical Staff Section, which submitted the resolution.

AMA will complete the study and submit a report by November 2015. It will consider questions such as: 

  • What factors have contributed most to increases in the proportion of physicians who are employed?
  • How do employment and concomitant increases in rates of physician “turnover” affect continuity of care and patients’ perceptions that the physicians who treat them are dedicated to their long-term well-being?
  • In what other ways might a physician’s employment status potentially affect the patient-physician relationship, and how might these effects, if problematic, be mitigated?
  • How do increasing rates of employment affect the physician-hospital/health system relationship?
  • How does employment affect physicians’ understanding of and will to engage in advocacy on issues that have historically been of significant importance to physicians, such as medical liability reform and physician payment issues (e.g., the Medicare Sustainable Growth Rate formula)? 
  • What effect will employment ultimately have on the collective voice of the medical profession?   

Earn CME at the Physician Health and Wellness Seminar

Hope in a Changing World is the theme of the Texas Medical Association Committee on Physician Health and Wellness (PHW) Training Seminar and 22nd Annual Retreat Feb. 27-28, 2015, at the Grand Hyatt San Antonio. The conference has been accredited for a maximum of 10 AMA PRA Category 1 Credits™, 8.5 of which have an ethics and/or professional responsibility education designation.

Register for the seminar today. Physicians of all specialties and others will benefit from the seminar and will learn how to: 

  • Engage an audience in an effective presentation, 
  • Implement strategies for achieving work-life balance, 
  • Improve their ability to cope with life changes, and 
  • Maintain optimism for the future of medicine. 

Presentations during the conference include: 

  • Effective Presentation Techniques
  • How to Create and Maintain Life Balance
  • Changing Medical Milieu and Its Relationship to Professional Burnout
  • Hope in Human Attachment and Spiritual Connection
  • Coping With Life Changes
  • Benefits of Meditation: A Strategy for Life Balance?
  • Happiness and Hope
  • Coping With Medical Errors
  • Hope for the Future: The Physician Healer Track.  

To request a seminar brochure or for additional information, contact TMA Physician Health and Wellness Program Manager Linda Kuhn at (800) 880-1300, ext. 1342, or (512) 370-1342, or linda.kuhn[at]texmed[dot]org.

 PC Action Ad May 13  

Physicians, Med Students: Enter Your Journalism in TMA Awards Competition

Do you write a medical column for your local newspaper, or have you had an article published in a general news outlet? Do you host a health-focused radio show or a segment on local TV news? If so, enter your work in the TMA Anson Jones, MD, Awards contest.

TMA has honored award-winning Texas journalists with the Anson Jones, MD, Awards for excellent medical news reporting for more than 50 years. The Physician Excellence in Reporting category recognizes physician- and medical student-reporters. 

Enter today. Any story published or broadcast in 2014 is eligible. Entries will be accepted until Jan. 10, 2015. 

Visit the Anson Jones webpage for more information. If you have additional questions, email ansonjones[at]texmed[dot]org or call Tammy Wishard, TMA outreach coordinator, at (800) 880-1300, ext. 1470, or (512) 370-1470.

This Month in Texas Medicine

The December issue of Texas Medicine features a cover story on volunteer physicians who answered the call over the summer to care for Central American immigrants crossing the border from Mexico into Texas. In the latest issue, you'll also read about the new head of the Texas Workers' Compensation Program, results of the latest survey by The Physicians Foundation, improvements in patient safety efforts, a court case that upholds a statute for lawsuits involving minors, and potential renewal of the 1115 Medicaid waiver.

Click to launch the full edition in a new window.     

Texas Medicine RSS Feed

Don't want to wait for Texas Medicine to land in your mailbox? You can access it as an RSS feed, the same way you get the TMA Practice E-Tips RSS feed.

E-Tips RSS Feed

TMA Practice E-Tips, a valuable source of hands-on, use-it-now advice on coding, billing, payment, HIPAA compliance, office policies and procedures, and practice marketing, is available as an RSS feed on the TMA website. Once there, you can download an RSS reader, such as Feedreader, Sharpreader, Sage, or NetNewsWire Lite. You also can subscribe to the RSS feeds for TMA news releases and for Blogged Arteries, the feed for Action.

 This Just In ...

Want the latest and hottest news from TMA in a hurry? Then log on to  Blogged Arteries.     

Deadlines for Doctors   

TMA's Deadlines for Doctors alerts you and your staff to upcoming state and federal compliance timelines and offers information on key health policy issues that impact your practice.    

CMS Medicare Beneficiary Open Enrollment Ends

TMA Education Center  

The TMA Education Center offers convenient, one-stop access to the continuing medical education Texas physicians need. TMA's practice management, cancer, and physician health courses are now easier than ever to find online.  


Medicare 2015: Feb. 3-25
Hope in a Changing World: Feb. 27-28
ICD-10: Will You Just Survive, or Will You Thrive? March 3-26
Commit to Compliance: Meeting the Challenge: May 8 

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Last Updated On

December 20, 2016