Tony Mira: CMS Proposes to Pay Nurse Anesthetists for Chronic Pain Procedures

Editor's note: This article by Tony Mira, president and CEO of Anesthesia Business Consultants, an anesthesia & pain management billing and practice management services company, originally appeared in Anesthesia Business Consultants eAlerts, a free electronic newsletter. Sign-up to receive this newsletter by clicking here.
Medicare policy on paying nurse anesthetists for chronic pain medicine procedures was established in 1986. Noting that the practice of nurse anesthesia has evolved, CMS has proposed to recognize CRNAs' pain medicine services as long as these are consistent with state scope of practice laws.

CMS has proposed to begin paying certified registered nurse anesthetists for providing certain pain management procedures on a nationwide basis. The discussion in the proposed rule on the Medicare Physician Fee Schedule for calendar year 2013, issued on July 6, 2012, sets forth the history and the considerations in expanding the types of services for which CRNAs may bill Medicare.

Currently, whether pain services may be reported by CRNAs varies from state to state. There are two circumstances that must be present for Medicare to pay for CRNA pain services:

1. CRNAs must be permitted to perform pain medicine procedures under state scope of practice laws, and

2. The Medicare contractor for the state must have determined that chronic pain management is closely related to anesthesia and that CRNA-performed pain procedures are therefore covered by the Medicare program.

It is important to understand that Medicare pays for specific benefits, not for all medical, nursing and other health services. The benefit category for specific services furnished by a CRNA was added to Medicare by section 9320 of the Omnibus Budget Reconciliation Act of 1986. The CRNA benefit does not come under the rule that allows certain other nonphysician practitioners such as advanced practice nurses to furnish and bill for physicians' services, Social Security Act Section 1861(s)(2)(K), under certain conditions such as physician supervision or collaboration. The statutory section applicable to CRNAs is Section 1861(bb)(1) of the Social Security Act, which defines services of a CRNA as "anesthesia services and related care furnished by a certified registered nurse anesthetist … which the nurse anesthetist is legally authorized to perform as such by the State in which the services are furnished."

According to CMS,

At the time that the Medicare benefit for CRNA services was established, CRNA practice largely occurred in the surgical setting and services other than anesthesia (medical and surgical) were furnished in the immediate pre- and post-surgery timeframe. The scope of "anesthesia services and related care" as delineated in section 1861(bb)(1) of the Act reflected that practice standard. As CRNAs have moved into other practice settings, questions have arisen regarding what services are encompassed under the "related care" aspect of the benefit category. Specifically, some CRNAs now offer chronic pain management services that are separate and distinct from the surgical procedure. Changes in CRNA practice have prompted questions as to whether these services fall within the scope of section 1861(bb)(1) of the Act.

CMS' answer to those questions as to whether chronic pain management services fall within the scope of the CRNA services defined by the Act, as put forward in the proposed rule, is to let the states individually take the lead:

[W]e have concluded that chronic pain management is an evolving field, and we recognize that certain States have determined that the scope of practice for a CRNA should include chronic pain management in order to meet health care needs of their residents and ensure their health and safety. We propose to add the following language: "Anesthesia and related care includes medical and surgical services that are related to anesthesia and that a CRNA is legally authorized to perform by the State in which the services are furnished." This proposed definition would set a Medicare standard for the services that can be furnished and billed by CRNAs while allowing appropriate flexibility to meet the unique needs of each State. The proposal also dovetails with the language in section 1861(bb)(1) of the Act requiring the State's legal authorization to perform CRNA services as a key component of the CRNA benefit category. Finally, the proposed definition is also consistent with our policy to recognize State scope of practice as one parameter defining the services that can be furnished and billed by other NPPs.

In its discussion, CMS asserted that "several States are debating whether to include chronic pain management services within the CRNA scope of practice—" without identifying the states. It did note that a number of states had recently dealt with the scope of nurse anesthesia practice—California, Colorado, Missouri, South Carolina, Nevada, and Virginia. It is not clear, though, that the regulatory and legislative activity in those states has resolved all questions of which chronic pain procedures nonphysicians may perform. In yet other states, the legislature and/or the judiciary have excluded fluoroscopy or other procedures from the scope of nursing. In Iowa, for example, the trial court invalidated regulations adopted by the nursing board and public health department that would have allowed advanced registered nurse practitioners to supervise the use of fluoroscopy; the case is currently on appeal. In Missouri, a bill awaiting the Governor's signature would prohibit nonphysicians "from performing the following interventions in the course of diagnosing or treating pain that is chronic, persistent and intractable, or occurs outside of a surgical, obstetrical or postoperative course of care: 1) ablation of targeted nerves; 2) percutaneous precision needle placement within the spinal column with placement of drugs, such as local anesthetics, steroids and analgesics, in the spinal column under fluoroscopic guidance…; or 3) laser or endoscopic discectomy, or the surgical placement of intrathecal infusion pumps, and or spinal cord stimulators. See Percy Albany LC, Simpson C. 2012 Summary of State Activities. ASA Newsl. 2012;76(7); 50-53.

CMS' final paragraph sounds a note of caution:

Simply because the State allows a certain type of health care professional to furnish certain services does not mean that all members of that profession are adequately trained to provide the service. In the case of chronic pain management, the IOM report specifically noted that many practitioners lack the skills needed to help patients with the day-to-day self management that is required to properly serve individuals with chronic pain. As with all practitioners who furnish services to Medicare beneficiaries, CRNAs practicing in States that allow them to furnish chronic pain management services are responsible for obtaining the necessary training for any and all services furnished to Medicare beneficiaries.

One might question whether CMS has achieved its stated goal of clarifying the situation. The states remain responsible for determining whether, when and which chronic pain management procedures CRNAs may perform without physician supervision, and not every state has adopted comprehensive definitions. Whatever the states have decided or will decide, hospitals, surgery centers and professional corporations will need to ensure that individual CRNA applicants for privileges have the necessary training, consistent with the facilities' and groups' own standards. The proposed rule does not create any right to perform and bill Medicare for pain medicine services.
Recall, also, that CMS has published a proposed rule, which will appear in the July 30, 2012 Federal Register. CMS will accept comments on the proposed rule until September 4, 2012 and will respond to them in a final rule with comment period to be issued by November 1, 2012. Numerous comments pro and con can be anticipated. The outcome is far from certain.

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