Medicare: "We Know We Are Violating HIPAA Standard"

We eagerly dialed in to today's CMS NPI Roundtable call wondering how -- or whether -- they would deal with the opinion we sought out -- that Medicare's policy that providers falsify claims data by saying they had referred patients to themselves when a referrer's NPI was unavailable is, in fact, a violation of the 837 standard.

In X12's authoritative interpretation of their own guide, trading partners may not "modify the definition, meaning, or intent of the Implementation Guide." In other words, the Referring Provider stuff needs to refer to the actual referring provider -- payers (yes, even Medicare!) are not allowed to redefine what goes in there.

Because the implementation guides are incorporated into the HIPAA Transactions and Code Sets Final Rule by reference, this makes Medicare's demand a HIPAA violation. But it's again worth noting that this sort of shell game (once the province of wayward Medicaid plans who wanted providers to send nonstandard Type of Service codes in fields intended for other purposes) was so vehemently out of bounds, the language was added to the regulation itself, where it says that a Covered Entity cannot "change the definition, data condition, or use of a data element or segment in a standard." (§ 162.915(a), Federal Register / Vol. 65, No. 160, p. 50368).

In a remarkable bit of bureaucratic candor, Pat Peyton acknowledged, "We are aware that our policy is not in compliance with the implementation guides." (A previous caution to questioners had indicated that they would NOT be considering policy violations on this call, and anyone who brought up the subject would be disconnected.)

Interestingly, Medicare explained that they were doing this -- requiring that Providers develop a special, Medicare-only coding rule that would plop their own NPI into claims that would foul crossovers and, in fact, put the submitter (and clearinghouse, if any) in a state of violation -- for providers own good. I believe they used the phrase "to smooth the transition" to NPI-only transactions.

They also said, again, that sending only NPIs in such secondary provider fields is required by the NPI Final Rule.  (It isn't, by the way. I looked.  CMS has not been forthcoming with this cite, though they seem to repeat it on every call and in numerous FAQs and other guidance.)

Pat promised that there would be clarifications forthcoming as the industry moved toward NPI-only, etc.

Clarifications?

Let's make this clear: Kluging these claims is not easier than submitting them per X12 guidance, which says if no NPI exists, you should submit claims the old fashioned way -- with an alternative secondary ID. No change necessary.

Let's make something else clear: There is no reason to believe we will EVER operate in an NPI-only industry, save a congressional mandate for full enumeration. Perhaps using Medicare's enrollment requirements as a model, other health plans will start requiring NPIs on their claims (as indeed some have already done), but that will only reach the providers who file such claims. Not all do. Non-billing providers will still write prescriptions, will still refer patients, will still CARE for patients at both free and cash-only clinics around the country.

Penalizing providers who are trying to comply with the NPI Rule is not going to change this.

But in its attempt to force this to happen, Medicare is going forward with this explicit instruction: "Violate our laws if you want to get paid."

They did offer this one eleventh-hour zig: Maybe they only want the biller's NPI in that secondary provider Identifier field (not just Referring, but also the others -- Attending, Ordering, etc.) -- you can leave the real provider's name in the corresponding Name field. Oh, and if it's a Service Facility, you can leave NPI blank. But just that one.  I'm sure they'll put that in writing in plenty of time for you to change that back to the way it was before you followed their previous instructions to replace both name and number on all fields.

And if you don't like it, just complain. Lines are open. https://htct.hhs.gov/aset