Chair’s Column: Deciphering Medicare’s Mysteries

In November 2018, I had the honor and pleasure of speaking at the AHLA Fundamentals of Health Law program in Chicago. This is a conference that is designed for attorneys (and others) who are relatively new to health law. I spoke on the exciting topic of “Medicare Parts A and B.”

As I prepared for this session, the first thought I had was that it was too hard a topic, even though I have been working with Medicare issues for more than 30 years. And then I wondered if I could possibly do credit to the topic in the time allotted. Medicare is a program that has been in place since 1965 but continually evolving, seemingly at warp speed, since the Affordable Care Act passed in 2010.

As one court noted,

There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.¹

Identifying what I thought were key concepts to cover in a very short allocation of time actually turned into a fun chal­lenge. Based on my own history, I was reminded just how hard it must seem for those new to health law to under­stand where to start to analyze Medicare questions. Even at this stage in my career, I sometimes think “it’s just too hard” as I try to decipher the position of the Centers for Medicare & Medicaid Services (CMS) on a particular issue. (There is an interesting decision involving the assertion of the “it’s too hard” defense, albeit in a Medicaid rather than Medi­care matter.²) Over time, however, I have come to respect the structure of the Medicare program and understand the fit and interdependence of its parts (with some outliers).

Here are some examples of the conundrums that come to mind when thinking about the challenges of Medicare research and analysis.

• Medicare is a defined benefit program—the services covered are broadly defined in the Act, and to be covered an item or service must fit into one of the speci­fied benefit categories, of which there are at least 55.³ However, I have been unable to locate a complete list of benefit categories despite much searching (and outreach to the CMS library).
• Operational and payment details often appear in subregulatory guidance, and a search limited to statutes and regulations may not provide the complete picture.
• Key definitions appear in multiple locations (statutes, regulations, manuals, and other subregulatory guidance) and are not always entirely consistent. For example, “provider” and “supplier” are key concepts but the terms may have different meanings depending upon context and the applicable definition(s) must always be checked to see if the provision is applicable.
• Some items or services may be paid under Part A or Part B, depending upon various circumstances. For example, some services provided in nursing homes may be paid under Part B after Part A coverage is exhausted. Again, context is always critical.
• Some drugs may be paid separately under Part B or D, depending upon the circumstances. For example, insulin delivered with a pump is covered under Part B, but if used without a pump is covered under Part D. There may be significant reimbursement differentials. The CMS website has a helpful publication entitled “Medicare Part B versus Part D Drug Coverage Determinations” (MLN SE0652), searchable as the easily remembered “Part B versus Part D.”
• Hospital laboratories may serve inpatients, outpatients, and nonpatients, with different provisions applicable to each.

I often rely upon AHLA’s resources as a research tool (including past program presentations, toolkits, publica­tions, and the online Communities when I really can’t find any guidance). Participation in the Regulation, Accredita­tion, and Payment Practice Group (RAP PG) has enhanced my knowledge base and provided colleagues with whom to discuss the thorniest of Medicare issues. Many Medicare-related resources can be found on the AHLA website at the RAP PG webpage. The RAP PG also offers many opportunities for involvement in speaking, writing, and getting to know those who are similarly seeking answers to Medicare’s mysteries.

Please join our RAP PG monthly calls for a “quick hit” discussion of a timely topic and information about volunteer opportunities. The RAP PG welcomes your involvement.

1   Rehabilitation Ass’n v Kozlowski, 42 F.3d 1444, 1450 (4^th Cir. 1994).

2   See Al-Shaikh v [California] State Department of Health Care Services, 21 Cal. App. 5th 918 (2018).

3 64 Fed. Reg. 22619, 22620 (Apr. 27, 1999).

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