Psychiatry Beats Back Scope-of-Practice Poaching

February 1, 2006
Stephen Barlas

Volume 25, Issue 2

Congress agreed in December to drop from its consideration of a budget reconciliation bill a provision that would have allowed family therapists and counselors to bill Medicare for mental health diagnoses. Many psychiatrists viewed the proposed legislation as a scope-of-practice attack by non-MDs.

Psychiatry apparently fought off the latest scope-of-practice attack by non-MDs when Congress agreed to drop a Senate-passed provision allowing marriage and family therapists and mental health counselors to bill Medicare for the diagnosis of mental illness. That provision was included in the Senate version of the 2006 budget reconciliation bill; its (as well as the House's version's) goal was to save about $40 billion in federal spending over five years. However, when the two houses met to discuss their different reconciliation bills just before leaving at the end of December 2005, the House, which had not included the mental health diagnosis provision, prevailed upon the Senate to drop it in the final bill.

However, the Senate failed to pass the conference version because of a couple of provisions unrelated to mental health. The presumption was that the Senate would fall into line and finally pass the reconciliation bill when it returned to Washington in January. However, there was a slight chance the bill could be reopened for grabs again.

The provision allowing marriage and family therapists and mental health counselors, for the first time, to bill Medicare for mental health diagnoses was inserted in the Senate reconciliation bill on the floor of the Senate at the behest of Sen. Craig Thomas (R-Wyo.), who was acting on behalf of the American Association for Marriage and Family Therapy (AAMFT). The AAMFT had convinced the Senate to pass that provision once before, when the Senate created the Medicare drug benefit in 2003; the provision fell out in a House-Senate conference committee.

David M. Bergman, director of legal and government affairs for the AAMFT, told Psychiatric Times that he did not know why the House-Senate conference committee rejected the Thomas provision this time. He hypothesized that the conferees had to jettison some provisions in order to compensate for adding a provision allowing Medicare reimbursement for a particular type of oxygen equipment. He said the AAMFT was heartened that Medicare reimbursement for marriage and family therapists for diagnosis of mental illness made it through one round of House-Senate negotiations, which wasn't the case in 2003. Bergman explained that 48 states already let marriage and family therapists and mental health counselors diagnose and treat mental health problems, although not all the state laws explicitly use the word "diagnose," which was the key word in the Thomas provision.

Both the National Association of Social Workers and the American Psychiatric Association opposed the Thomas provision. Social workers are currently eligible to bill Medicare for mental health diagnosis and treatment where state licensure and scope-of-practice laws allow.

R. Thomas Leibfried, deputy director, congressional affairs, for the APA, explained to PT that the group concurred with the Medicare Payment Advisory Commission (MedPAC) which, in a 2003 report, argued that it made more sense to drop Medicare's 50% copayment requirement for outpatient mental health services if Congress was interested in increasing access to psychiatric diagnosis and treatment. "MedPAC found that there was no evidence that allowing additional practitioners to offer Medicare mental health services would improve access," Leibfried added.

While psychiatrists beat back the latest attempt by marriage and family therapists to invade their Medicare turf, they and other physicians lost perhaps a bigger battle: canceling the 4.4% reduction in the Medicare update in calendar 2006. The update is multiplied against a conversion factor, a dollar figure of about $37, which in turn is multiplied against the relative value for each CPT code, yielding the payment for each service, including the psychiatric services in the 90000 range.

Instead, the conference version of the reconciliation bill sets 2006 Medicare fees at the same level as in 2005: no increase, no decrease, which was a victory for medicine of sorts. Moreover, the conference version excludes any provisions on "value-based" payment incentives, where physicians who voluntarily provide Medicare with quality data become eligible for bonus pay. In a Dec. 12, 2005, letter to members of Congress, AMA Executive Vice President and Chief Executive Officer Michael D. Maves, MD, MBA, wrote:

At this time, the AMA believes that Congress needs the benefit of analysis and experience gained from recently initiated [Centers for Medicare and Medicaid Services] pay-for-performance demonstration projects and a voluntary physician reporting program before legislation is adopted to implement a physician pay-for-performance program in Medicare.

Provisions dealing with Medicaid were equally controversial during the debate on the reconciliation bill. While the press focused on changes in the Medicaid outpatient drug program, Congress authorized some new programs--which will cost money up front in the hopes of saving money later on--including one in the area of mental health. Sen. Charles E. Grassley (R-Iowa), chairman of the finance committee, had long championed a proposal to allow states to develop home- and community-based mental health programs for children as an alternative to the 24-hour, overnight programs that Medicaid currently funds. He was able to include in the final bill a pilot program allowing 10 states to develop non-overnight programs, which Medicaid currently does fund for adults.

A number of groups believe mental health day care for children will be more cost effective, and thereby allow states to spread badly stretched Medicaid funds over more children. The question is whether children cared for in these community settings will be able to obtain the same level of mental health care they receive in 24-hour settings.

"The point of these demonstration projects will be to see whether they can meet an appropriate level of care," Mark Covall, executive director for the National Association of Psychiatric Health Systems, told PT. "This has worked well for the elderly."