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On December 2, 2008, the Centers for Medicare & Medicaid Services ("CMS") proposed three national coverage determinations ("NCDs") which would establish uniform national policies to prevent Medicare from paying for certain serious, yet preventable, surgical errors. These three errors will be added to the existing list of preventable errors for which Medicare will no longer provide reimbursement.

The CMS policy of not covering certain preventable errors began with a list of "Serious Reportable Events" originally published by the National Quality Forum in 2002. These "Serious Preventable Errors", often referred to as "never events", are those conditions which CMS and patient advocacy groups believe are avoidable and preventable. Pursuant to the Deficit Reduction Act of 2005, CMS began not providing reimbursement for some of these "Serious Preventable Errors" through the Hospital-Acquired Conditions provisions of the 2008 and 2009 Inpatient Prospective Payment System final rules. Consequently, as of October 1, 2008, CMS no longer pays a hospital at a higher rate for an inpatient hospital stay if the sole reason for the enhanced payment was one of the Hospital-Acquired Conditions and the condition was not present upon the patient's admission. Furthermore, the hospital can not bill the patient directly for the costs associated with such events. CMS currently has twelve Hospital-Acquired Conditions for which Medicare payment is not allowed:

• Objects inadvertently left in during surgery
• Air embolism
• Blood incompatibility
• Catheter-associated urinary tract infections
• Pressure ulcers
• Vascular catheter-associated infections
• Surgical site infection-mediastinitis after coronary artery bypass graft surgery
• Hospital-acquired injuries: fractures, dislocations, intracranial injury, crushing injury, burns and other causes
• Inadequate glycemic control
• Surgical site infections
• Deep vein thrombosis and pulmonary embolism
• Drug-induced delirium

In December, CMS decided to expand its policy of not paying for certain preventable medical errors by proposing three NCDs addressing surgical errors for which CMS will no longer provide reimbursement. These three surgical errors include the following:

• Wrong surgical or other invasive procedures performed on a patient
• Surgical or other invasive procedures performed on the wrong body part
• Surgical or other invasive procedures performed on the wrong patient

"These types of surgical errors can cause serious injury or death to beneficiaries and result in increased costs to Medicare due to the need to treat the consequences of the errors. The proposed national coverage policies for certain types of surgical errors are important steps for Medicare in working to reduce or eliminate their occurrence and their associated payments," said Kerry Weems, CMS Acting Administrator.

In expanding its policy to include these three surgical errors, CMS decided not to use the Hospital-Acquired Conditions provisions, as it had done in the past, but rather to use the NCD process. Unlike the Hospital-Acquired Conditions provisions implemented through the Inpatient Prospective Payment System final rules, which affect only payments to hospitals for inpatient stays, the NCDs could affect payments to hospitals, physicians and other health care providers and suppliers.

A NCD sets forth the extent to which Medicare will cover specific services, procedures, or technologies on a national basis. Medicare contractors are bound by the coverage limitations stated in the NCDs. The NCDs regarding the three additional surgical errors are expected to be finalized on or before March 2, 2009. Once finalized, the NCDs will be published in the Medicare National Coverage Determinations Manual, available at http://www.cms.hhs.gov/Manuals/IOM/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=1&sortOrder=ascending&itemID=CMS014961.

To coordinate with the decision of CMS to no longer pay for such events, in 2008, Blue Cross and Blue Shield of Alabama ("BCBS") also adopted a policy of no longer reimbursing hospitals for "Serious Preventable Events". "Serious Preventable Events" are errors in medical care which are clearly identifiable, serious in their consequences, and could reasonably have been prevented through the application of evidence-based medical guidelines. BCBS published a list of "Serious Preventable Events" including the first eight Hospital Acquired Conditions listed above and the three preventable surgical errors included in the proposed NCDs. The BCBS policy is currently only applicable to inpatient hospital admissions. What remains unclear is whether BCBS will expand its policy to include surgical errors performed by physicians and other health care providers, as is possible under the proposed Medicare NCDs, or whether the limitation on BCBS coverage will continue to apply only to inpatient hospital admissions.

A press release and additional information on the NCDs for surgical errors can be found on the CMS website at http://www.cms.hhs.gov/.


Kelli Fleming is an associate with Burr & Forman LLP and practices exclusively within the firm's Health Care Practice Group.

Tags:

Blue Cross and Blue Shield, Centers for Medicare and Medicaid Services, national coverage determinations, never events, Serious Preventable Events

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