Illustration by Jon Krause /

The toll of Medicare's unfunded mandates

Bureaucratic rules and other administrative burdens placed on physician practices accumulate, cutting into time to treat patients and costing practices money.

By Charles Fiegl amednews staff — Posted May 27, 2013

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When home health agencies began flooding physician practices in 2011 with forms designed to ensure compliance with a new federal law, the documents started falling on growing piles of such administrative requests from Medicare, Medicaid and private payers. Often designed to ensure program integrity, the mandates instead are seen by physicians as burdensome regulations that pay doctors nothing but cost them time and money.

The Medicare home health requirement that needed to be documented on the forms was authorized by the Affordable Care Act in 2010, along with several other provisions designed to stop rogue agencies and health professionals from ripping off the vulnerable entitlement program for seniors. The rule said a face-to-face visit with a physician was required either 90 days before or 30 days after the start of care. It would ensure that home health services were certified by trusted physicians, but it also created another hassle for practices.

“The road to hell is often paved with good intentions,” said C. Richard Schott, MD, a cardiologist who is president of the Pennsylvania Medical Society. Dr. Schott said the aphorism, attributed to a medieval Catholic monk, was fitting when considering the totality of federal rules and regulations imposed on physicians. In the push to modernize practices through health information technology and new care models, physicians feel as if burdensome rules instead are pushing their practices back to the Dark Ages.

“It's not what we want to be doing,” Dr. Schott said. “It's one thing after another.”

For years, Medicare has had requirements that indirectly and directly cost physicians money and time with patients. For instance, language translators — costing $150 or more each time they are needed — have been required to be offered by practices since 2000 for Medicare and Medicaid patients who aren't proficient in English. Medicare won't pay for the services, nor will it pay for other, more systemic practice changes required to communicate better with patients and ensure coordinated care with other doctors.

The requirement for home health services has come up during American Medical Association House of Delegates meetings amid confusion about the rule's implementation. Most recently, a reference committee during the Interim Meeting in November 2012 said the burden associated with the requirement is more “related to care transition and care coordination processes, rather than the requirements associated with the face-to-face encounter rule, per se.” The House adopted a report encouraging more education on ways to satisfy the rule and minimize the burden.

The AMA also has suggested that the Centers for Medicare & Medicaid Services allow interpreters to bill Medicare or Medicaid directly for their services to patients.

The stream of new paperwork requirements and other unfunded mandates isn't letting up. Once revenue enhancements for the Medicare physician quality reporting system end after 2014, doctors still will be required to report PQRS measures to CMS or else be penalized with lower pay. However, the costs to meet the pay-for-reporting requirements already are very high and not worth the expense, said Robert A. Berenson, MD, a fellow at the Urban Institute in Washington.

Outside of traditional Medicare, doctors often encounter prior authorization requirements for certain imaging services or drugs when dealing with private plans, including popular Medicare Advantage insurers, posing additional examples of practice burdens. Each insurer will have its own form and set of requirements needed to obtain approval. These should be streamlined, Dr. Berenson said.

“I basically share the concern that many of the initiatives are well-intended but impose a real burden in combination and haven't been thought through very well,” he said.

In the shadow of a stack of paper

Congressional Republicans have constructed a “Red Tape Tower” by printing out every federal regulation from the Affordable Care Act. The tower is a 7-foot, 300-pound stack of paper that is pushed on a dolly to offices, committee hearing rooms and other places around the U.S. Capitol. The roughly 20,000 pages of regulations represent the nearly 190 million paperwork burden hours that Republicans claim have been created through the new regulations, according to the Obamacare Burden Tracker, a report compiled by House GOP committee staff. They say the hours represent annual hours that will be spent by the entire health care industry.

Family physicians spend about 7.5 hours per week on administrative tasks.

A Dept. of Health and Human Services spokeswoman would not offer a comment on the Republican report, which critics have dismissed as political showmanship. But buried in the pile of papers is the 2010 regulation for the home health face-to-face requirement, which was finalized in the home health payment update regulation that CMS publishes annually. The GOP report concludes that the face-to-face rule would add nearly 250,000 annual hours' worth of paperwork for all of the nation's physicians and health professionals who document, sign and date such encounters for nearly 3 million patients.

These types of regulatory burdens on physician practices are felt across the nation and are measurable. Doctors feel that paperwork requirements from Medicare and other insurance payers have been increasing greatly, and are cutting into time spent caring for patients, said Jeffrey J. Cain, MD, president of the American Academy of Family Physicians.

Family physicians spend about 7.5 hours per week on administrative tasks, including about 90 minutes on prior authorization requests for imaging services and on formulary compliance, Dr. Cain said, citing a 2010 AAFP survey. To manage insurer requirements, the average practice hires an office manager and four additional coders or billers to support clinicians by organizing prior authorization requests, pre-certifications, and enrollment or credentialing applications. Despite staff involvement, the paperwork requirements still consume physicians' time.

“Oftentimes our staff does that, but then they won't do it unless they talk to the doctor,” said Michael Deren, MD, a thoracic surgeon in New London, Conn.

The trajectory of federal regulations is not completely one-way. Despite its creation of myriad new rules, the Obama administration also has rolled back other regulations considered unnecessary or outdated. President Obama directed all federal agencies to streamline their rule books, and departments such as HHS sought the input of those feeling the weight of government rules.

The AMA surveyed its members and urged CMS to make several changes to resolve unfunded mandates, reinstitute pay for physician consults, align various incentive programs and improve the Medicare enrollment process. CMS responded by changing several regulations. For example, Medicare contractors no longer would ban physicians from re-enrolling in the program after the doctors failed to respond to requests to recertify enrollment.

Medicare also is making progress on aligning requirements under PQRS, electronic health record meaningful use and the accountable care organization initiative, said Kate Goodrich, MD, acting director of the CMS Quality Measurement and Health Assessment Group, during a recent interview. By 2014, the vast majority of physicians will be able to report once and meet requirements for all of these initiatives, she said.

Tripped up in the fraud hunt

On the whole, however, medicine sees the regulatory burden as too heavy and getting heavier. Organized medicine groups and practice managers continue to seek additional relief in discussions with CMS officials.

While commenting on CMS proposals for reducing burdens on hospitals, the American Osteopathic Assn. used the opportunity to reiterate some of its concerns about regulations. “The AOA requests that CMS give greater consideration to regulations and requirements which create nonessential and often excessive administrative burdens on physicians, ultimately restrict patient access, interfere with the physician-patient relationship and impede the delivery of high quality of care,” wrote Ray E. Stowers, DO, the AOA's president, in an April 4 letter to CMS.

For instance, Medicare uses multiple investigators to review billing data or records for improper payments. Recovery audit contractors have used outdated local coverage determination information to compile the results of some audits, leading to wasted practice time, Dr. Stowers stated.

“The RAC program continues to be extremely burdensome, prompting physicians and their staff to spend an inordinate amount of time responding to RAC requests, and even more time if an appeal is necessary,” he said.

Medical group administrators also find extra costs associated with responding to auditors. At times, contractors will find pay discrepancies amounting to just pennies per claim, according to an April 8 letter from the MGMA-ACMPE, the national organization for medical group practice managers. Adjustments not recovered during normal claims processing require staff to return funds manually. The MGMA-ACMPE suggested that an exception be created and used when overpayments fall below $5 a claim and $100 in aggregate.

“The administrative costs associated with reporting and returning these overpayments, both to a practice and to Medicare, would far outweigh any financial benefit of returning funds to the government,” stated MGMA-ACMPE President and CEO Susan Turney, MD, in the letter. “By creating a minimum threshold, the government would help prevent wasted resources.”

Many physicians question why they are the focus of audits and program integrity measures, or why they are required to perform administrative tasks that should fall to someone else. Mississippi State Medical Assn. President Steve Demetropoulos, MD, practices emergency medicine with 28 doctors whom he said are simply too occupied with treating patients ever to dream of fraud and abuse schemes that are the subject of high-profile reports.

“I never heard them say, 'I saw a patient and tried to upcode it,' ” Dr. Demetropoulos said. “Most of us are focused on presenting the information as they get it and let the coding fall where it will. It's the right thing to do.”

He hears stories of individuals registering shell companies or using stolen patient IDs to defraud Medicare of millions of dollars, and he finds it hard to understand how doctors could be involved. The parts of Medicare susceptible to fraud need to be protected, but honest physicians don't need extra hurdles in the way of ordering tests or services patients need urgently, he said.

Other burdens might be driven by necessity but still pose an unnecessary cost to practices. Physicians want to communicate clearly with patients and understand the need for interpreters for certain patients, but doctors should not have to pay for the translators, said Michael M. Krinsky, MD, immediate past president of the Connecticut State Medical Society. “It's costly,” he said. “You never know who is coming through the door in advance.”

Because the federal government requires the service, it should be supported with public funds, Dr. Krinsky said. Otherwise it is just added to a list of unfunded mandates physicians insist is too large already.

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Some red tape cut

Regulatory changes from federal agencies do not always add a burden. The Dept. of Health and Human Services and the Centers for Medicare & Medicaid Services have responded to concerns from the American Medical Association and other organized medicine groups to provide some administrative relief — or to back off earlier plans to increase regulation. Some examples from 2012 and 2013:

  • A final rule increasing Medicare enrollment requirements excluded referrals to physician specialists, which could have created significant billing disruptions at practices.
  • CMS rescinded a “one best medical record” policy, under which Medicare Advantage auditors imposed cumbersome demands on physician practices, and it revised its methodology to reduce the regulatory burden.
  • Practices subject to the Medicare value-based modifier starting in 2015 have been designated as those with 100 physicians or more, instead of those with at least 25 physicians as under an initial proposal.
  • HHS adopted uniform operating rules for eligibility and claims status electronic transactions as well as standards for funds transfers and remittance advice, as required by the Affordable Care Act.
  • CMS extended a grace period by delaying enforcement of its new 5010 standard for electronic transactions an additional six months.

Source: American Medical Association

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How much time will this take?

While the Affordable Care Act included some administrative simplification requirements, it also created several new regulatory burdens for the health care industry. House Republicans have tracked the amount of annual burden hours that will be spent by the entire health care industry that they project will come from the health system reform law. The time toll of four such regulations:

Issue Rule date Annual burden hours
Transparency reports and reporting physician ownership or investment interests December 2011 3,533,227
Reporting and returning overpayments February 2012 1,562,500
Home health physician face-to-face encounter December 2010 248,584
Medicare enrollment for ordering/referring health professionals May 2011 46,000

Source: “Obamacare Burden Tracker,” House Ways and Means, Education and the Workforce, and Energy and Commerce Committees (link)

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