[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Proposed Rules]
[Pages 62681-62683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26737]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 410

[HCFA-1088-P]
RIN 0938-AJ71


Medicare Program; Clinical Social Worker Services

AGENCY: Health Care Financing Administration (HCFA), HHS.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would permit separate Medicare Part B 
payment for certain psychotherapy services of clinical social workers 
furnished to a skilled nursing facility resident whose stay is not 
covered by Medicare. This rule would benefit residents of skilled 
nursing facilities who receive psychological services from clinical 
social workers.

DATES: We will consider comments if we receive them at the appropriate 
address, as provided below, no later than 5 p.m. on December 18, 2000.

ADDRESSES: Mail written comments (one original and three copies) to the 
following address ONLY: Health Care Financing Administration, 
Department of Health and Human Services,

[[Page 62682]]

Attention: HCFA-1088-P, P.O. Box 8013, Baltimore, MD 21244-8013.
    If you prefer, you may deliver by courier, your written comments 
(one original and three copies) to one of the following addresses:

Room 443-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., 
Washington, DC 20201 or
Room C5-14-03, Central Building, 7500 Security Boulevard, Baltimore, MD 
21244-1850.

    Comments mailed to those addresses may be delayed and could be 
considered late.
    Because of staffing and resource limitations, we cannot accept 
comments by facsimile (FAX) transmission. In commenting, please refer 
to file code HCFA-1088-P.
    Comments received timely will be available for public inspection as 
they are received, generally beginning approximately 3 weeks after 
publication of a document, in Room 443-G of the Department's offices at 
200 Independence Avenue, SW, Washington, DC, 20201 on Monday through 
Friday of each week from 8:30 a.m. to 5:00 p.m. (Phone (202) 690-7890).

FOR FURTHER INFORMATION CONTACT: Paul W. Kim, (410) 786-7410.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 6113 of the Omnibus Budget Reconciliation Act of 1989 (OBRA 
1989) (Public Law 101-239) amended section 1861(s)(2) of the Social 
Security Act (the Act) to provide coverage of clinical social worker 
(CSW) services under Medicare Part B. OBRA 1989 also amended section 
1861(hh) of the Act and defined CSW services. This definition included 
services performed by a CSW for the diagnosis and treatment of mental 
illness but excluded those services furnished to an inpatient of a 
skilled nursing facility (SNF) that the SNF is required to provide for 
participation in Medicare.
    On December 29, 1993, we published a proposed rule (58 FR 68829) on 
a number of issues regarding services of CSWs and clinical 
psychologists (CPs). That proposed rule also solicited public comment 
to identify any CSW service that a SNF is not already required to 
provide under section 1819(b)(4)(A) of the Act. Based on the comments 
we received at that time, we were unable to identify any specific 
service performed by CSWs for SNF residents that a SNF was not required 
to provide. Consequently, under the final rule (63 FR 20110) on CSW and 
CP services published on April 23, 1998, separate Medicare Part B 
payment would not be made for CSW services furnished to SNF residents 
beginning June 22, 1998. We decided to delay implementation of the new 
rule.

II. Provisions of the Proposed Regulations

    The SNF certification standards at section 1819(b)(4)(A)(i) through 
(b)(4)(A)(vii) of the Act contain requirements relating specifically to 
social services, along with a broader mandate for SNFs to furnish a 
variety of services to the extent necessary ``* * * to attain or 
maintain the highest practicable physical, mental, and psychosocial 
well-being of each resident * * *.'' As we observed in the preamble to 
the April 23, 1998 final rule, defining the scope of coverage under the 
Part B CSW benefit as excluding the services required under this more 
sweeping mandate would effectively preclude any CSW coverage whatsoever 
in the SNF setting, since this broad mandate could be interpreted to 
encompass virtually any service that a social worker conceivably could 
perform in this setting.
    Upon further consideration, however, we believe that the manner in 
which section 1861(hh) was drafted in the original CSW legislation 
indicates that the statute does not require the exclusion of CSW 
coverage in this setting to be so absolute. Instead, we believe that it 
is appropriate to draw a distinction between a set of services that the 
SNF certification standards require social workers to furnish (and 
which, thus, fall outside the scope of the CSW benefit) and other 
services (which remain coverable under the CSW benefit).
    We believe one possible approach would be to distinguish between 
those certification standards that, on the one hand, pertain 
specifically and exclusively to social workers--that is, the 
``medically-related social services'' described in section 
1819(b)(4)(A)(ii) of the Act, and the ``social services'' for which 
section 1819(b)(7) of the Act requires SNFs with more than 120 beds to 
hire a full-time social worker--and, on the other, those ``specialized 
rehabilitative services'' described in section 1819(b)(4)(A)(i) of the 
Act, which can be furnished by a variety of different practitioner 
types that in some cases may include social workers. We believe that 
the psychotherapeutic services addressed in this proposed rule belong 
to the latter category and, as such, should not be subject to the 
coverage exclusion for CSW services furnished in SNFs.
    Under this proposal, we would pay CSWs for the (Physicians') 
Current Procedural Terminology (CPT) codes (4th Edition, 1999; 
copyrighted by the American Medical Association) which represent 
psychotherapy services that are furnished to SNF residents and billed 
by CPs and that the CSWs are legally authorized to perform under State 
law. Specifically, we would pay for CPT codes 90801, 90802, 90816, 
90818, 90821, 90823, 90826, 90828, 90846, 90847, 90853, and 90857. 
However, we would not pay under Part B for any other services that CSWs 
furnish to SNF residents, since we regard these services (for example, 
care planning and discharge planning) as already required to be 
furnished by social workers under the SNF participation requirements.
    Further, this proposal would not affect payment for CSW services 
furnished to an SNF resident during the course of an inpatient stay 
that is covered under Medicare Part A. In accordance with section 
1888(e) of the Act, as established by section 4432(a) of the Balanced 
Budget Act of 1997 (BBA 1997, Public Law 105-33), an SNF receives 
payment under the prospective payment system (PPS) for virtually all of 
the services that its residents receive during a covered Part A stay, 
except for a short list of excluded services specified in section 
1888(e)(2)(A)(ii) of the Act. Because CSW services do not appear on 
this statutory exclusion list, they are included within the global per 
diem payment that Part A makes to the SNF for the Medicare-covered 
stay, and the CSW must look to the SNF, rather than to Part B, for 
payment. Accordingly, we would not make any additional payment under 
the Part B CSW benefit for services that are furnished to SNF residents 
during a covered Part A stay, because section 1833(d) of the Act 
expressly prohibits payment under Part B for any service that is 
covered under Part A.
    Similarly, this proposal would not affect the SNF consolidated 
billing requirements established by section 4432(b) of the BBA 1997. 
Under sections 1842(b)(6)(E) and 1862(a)(18) of the Act, a SNF must 
bill Medicare for both Part A and Part B services that are furnished to 
its residents, except for those services that the Act specifically 
excludes, as discussed above. Due to systems constraints in connection 
with achieving Year 2000 (Y2K) compliance, we have delayed the 
implementation of SNF consolidated billing with respect to those SNF 
residents who are not in a covered Part A stay. However, once this 
aspect of SNF consolidated billing is implemented, Part B bills for 
Medicare

[[Page 62683]]

CSW services furnished to SNF residents during a noncovered stay would 
have to be submitted by the SNF rather than by the CSW. Exempting CSW 
services from the SNF consolidated billing provision would require 
legislation to amend the Act by adding these services to the list of 
statutory exclusions discussed above.

III. Collection of Information Requirements

    This document does not impose any information collection and record 
keeping requirements subject to the Paperwork Reduction Act of 1995 
(PRA). Consequently, it does not need to be reviewed by the Office of 
Management and Budget (OMB) under the authority of PRA.

IV. Response to Comments

    Because of the large number of items of correspondence we normally 
receive on Federal Register documents published for comment, we are not 
able to acknowledge or respond to them individually. We will consider 
all comments we receive by the date and time specified in the DATES 
section of this preamble, and, if we proceed with a subsequent 
document, we will respond to the comments in the preamble to that 
document.

V. Regulatory Impact Statement

    We have examined the impacts of this proposed rule as required by 
Executive Order (E.O.) 12866 and the Regulatory Flexibility Act (RFA) 
(Public Law 96-354). E.O. 12866 directs agencies to assess all costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). A regulatory impact 
analysis (RIA) must be prepared for major rules with economically 
significant effects ($100 million or more annually). We have determined 
that this proposed rule is not a major rule with economically 
significant effects. However, we have prepared a voluntary RFA to 
furnish additional information.
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and governmental agencies. 
Most hospitals and most other providers and suppliers are small 
entities, either by nonprofit status or by having revenues of $5 
million or less annually. For purposes of the RFA, intermediaries and 
carriers are not considered to be small entities. Individuals and 
States are not included in the definition of a small entity. According 
to estimates provided by the National Association of Social Workers, 
there were approximately 18,000 clinically trained social workers 
serving the 1.6 million residents of the nation's 17,000 nursing homes 
in 1999. Because this proposed rule permits approximately $12 million 
in annual payments for CSW services that the final rule of April 23, 
1998 would have eliminated, this proposed rule would have a significant 
positive impact on a substantial number of small entitites. This rule 
would also benefit residents of SNFs who receive mental health services 
from clinical social workers.
    In addition, section 1102(b) of the Act requires us to prepare an 
RIA if a rule may have a significant impact on the operations of a 
substantial number of small rural hospitals. This analysis must conform 
to the provisions of section 603 of the RFA. For purposes of section 
1102(b) of the Act, we define a small rural hospital as a hospital that 
is located outside of a Metropolitan Statistical Area and has fewer 
than 50 beds. This proposed rule would not have a significant impact on 
the operations of a substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that may result in an expenditure in any 1 year by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more. This proposed rule would have 
no consequential effect on State, local, or tribal governments, and the 
private sector cost of this rule falls below these thresholds as well.
    For these reasons, we are not preparing analyses for either the RFA 
or section 1102(b) of the Act because we have determined, and we 
certify, that this rule would not have a significant economic impact on 
a substantial number of small entities or a significant impact on the 
operations of a substantial number of small rural hospitals.
    In accordance with the provisions of E.O. 12866, this regulation 
was reviewed by OMB.
    We have reviewed this proposed rule under the threshold criteria of 
E.O. 13132, Federalism. We have determined that the proposed rule would 
not significantly affect the rights, roles, and responsibilities of 
States.

List of Subjects in 42 CFR Part 410

    Health facilities, Health professions, Kidney diseases, 
Laboratories, Medicare, Rural areas, X-rays.
    For the reasons set forth in the preamble, 42 CFR part 410 is 
proposed to be amended as set forth below:

PART 410--SUPPLEMENTARY MEDICAL INSURANCE (SMI) BENEFITS

    1. The authority citation for part 410 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

    2. In Sec. 410.73, paragraph (b) introductory text and (b)(2) 
introductory text are republished, and paragraph (b)(2)(ii) is revised 
to read as follows:


Sec. 410.73  Clinical social worker services.

* * * * *
    (b) Covered clinical social worker services. Medicare Part B covers 
clinical social worker services.
* * * * *
    (2) Exception. The following services are not clinical social 
worker services for purposes of billing Medicare Part B:
* * * * *
    (ii) Services furnished by a clinical social worker to an inpatient 
of a Medicare-participating SNF if the services are required by the 
requirements for participation for SNFs at Secs. 483.15 and 483.45 of 
this chapter.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: February 7, 2000.
Nancy-Ann Min DeParle,
Administrator, Health Care Financing Administration.
    Approved: March 27, 2000.
Donna E. Shalala,
Secretary.

    Editorial Note: This document was received at the Office of the 
Federal Register October 13, 2000.
[FR Doc. 00-26737 Filed 10-18-00; 8:45 am]
BILLING CODE 4120-01-P