20110 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

rulemaking was not published in this

proceeding. Therefore, sections 202 and

205 do not apply to EPA’s action here.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements. EPA has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments. As explained above,

today’s rule withdrawals provisions and

therefore, does not contain any

regulatory requirements. Thus this rule

is not subject to the requirements of

section 203 of UMRA.

VII. Executive Order 12875

For the same reasons as stated above

in section VI., EPA has determined this

final rule does not impose federal

mandates on State, local or Tribal

governments. Therefore this rule is not

subject to the provisions E.O. 12875.

Nonetheless, in compliance with

Executive Order 12875, Enhancing the

Intergovernmental Partnership, EPA has

extensively involved Great Lakes State,

Tribal and local governments in the

development of the 1995 Guidance. The

rulemaking which promulgated the

Guidance in 1995 was subject to

Executive Order 12875. The process

used to develop the Guidance marked

the first time that EPA had developed a

major rulemaking effort in the water

program through a regional public

forum. The public process which lasted

over a seven year period and involved

Great Lakes States, EPA, and other

Federal agencies in open dialogue with

citizens, Tribal and local governments,

and industry in the Great Lakes Basin is

described further in the preamble to the

final Guidance. See 56 FR 15383–15384

(March 23, 1995).

As described above, this action by

EPA merely conforms the regulations to

the Court order in AISI and therefore,

does not create any federal mandates.

VIII. Paperwork Reduction Act

This action includes no information

collection activities subject to the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.) Therefore, no Information

Collection Request is required to be

prepared or submitted to OMB for

approval.

IX. National Technology Transfer and

Advancement Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act (NTTAA), the Agency is required to

use voluntary consensus standards in its

regulatory activities unless to do so

would be inconsistent with applicable

law or otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures,

business practices, etc.) that are

developed or adopted by voluntary

consensus standard bodies. Where

available and potentially applicable

voluntary consensus standards are not

used by EPA, the Act requires the

Agency to provide Congress, through

the Office and Management and Budget,

an explanation of the reasons for not

using such standards.

This final rule does not prescribe any

technical standards, so we have

determined that the NTTAA

requirements are not applicable.

List of Subjects in 40 CFR Part 132

Environmental protection,

Administrative practice and procedure,

Great Lakes, Indians-lands,

Intergovernmental relations, Reporting

and recordkeeping requirements, Water

pollution control.

Dated: April 14, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble Title 40, Chapter I of the Code

of Federal Regulations is to be amended

as follows:

PART 132—WATER QUALITY

GUIDANCE FOR THE GREAT LAKES

SYSTEM

1. The authority citation for part 132

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

2. Procedure 3 of Appendix F to part

132 is amended by removing Procedure

3.C.

3. Procedure 8 of Appendix F to part

132 is amended by revising in the

introductory text of 8.D. the second

sentence and the third sentence; by

revising paragraph 8.D.3; by revising

paragraph 8.D.4; and by revising

paragraph 8.D.5.c. to read as follows:

Procedure 8: Water Quality-based Effluent

Limitations Below the Quantification Level

* * * * *

D. Pollutant Minimization Program. * * *

The goal of the pollutant minimization

program shall be to maintain the effluent at

or below the WQBEL. In addition, States and

Tribes may consider cost-effectiveness when

evaluating the requirements of a PMP. * * *

1. * * *

2. * * *

3. Submittal of a control strategy designed

to proceed toward the goal of maintaining the

effluent below the WQBEL;

4. Implementation of appropriate, costeffective control measures consistent with

the control strategy; and

5. * * *

a. * * *

b. * * *

c. A summary of all action undertaken

pursuant to the control strategy.

6. * * *

* * * * *

[FR Doc. 98–10717 Filed 4–22–98; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 410, 417, 424, and 482

[HCFA–3706–F]

RIN 0938–AE99

Medicare Program; Scope of Medicare

Benefits and Application of the

Outpatient Mental Health Treatment

Limitation to Clinical Psychologist and

Clinical Social Worker Services

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule.

SUMMARY: This rule addresses

requirements for Medicare coverage of

services furnished by a clinical

psychologist or as an incident to the

services of a clinical psychologist and

for services furnished by a clinical

social worker. The requirements are

based on section 6113 of the Omnibus

Budget Reconciliation Act of 1989,

section 4157 of the Omnibus Budget

Reconciliation Act of 1990, and section

147(b) of the Social Security Act

Amendments of 1994 (SSA ’94). This

rule also addresses the outpatient

mental health treatment limitation as it

applies to clinical psychologist and

clinical social worker services.

This final rule also conforms our

regulations to section 104 of the Social

Security Act Amendments of 1994.

Section 104 provides that a Medicare

patient in a Medicare-participating

hospital who is receiving qualified

psychologist services may be under the

care of a clinical psychologist with

respect to those services, to the extent

permitted under State law.

In addition, this final rule requires

that clinical psychologists and clinical
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20111

social workers use appropriate

diagnostic coding when submitting

Medicare Part B claims.

EFFECTIVE DATE: This final rule has been

classified as a major rule subject to

congressional review. The effective date

is June 22, 1998. If, however, at the

conclusion of the congressional review

process the effective date has been

changed, the Health Care Financing

Administration will publish a document

in the Federal Register to establish the

actual effective date or to issue a notice

of termination of the final rule action.

FOR FURTHER INFORMATION CONTACT:

Regina Walker-Wren, (410) 786–9160.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clinical Psychologist Services

Before section 6113 of the Omnibus

Budget Reconciliation Act of 1989

(OBRA ’89), Pub. L. 101–239, became

effective, Medicare Part B paid for the

services of clinical psychologists (CPs) if

they were furnished as an incident to

the services of a physician or if the

services were furnished in certain

settings. Section 6113(a) of OBRA ’89

revised section 1861(ii) of the Social

Security Act (the Act), which defined

‘‘qualified psychologist services,’’ to

expand Part B coverage of CP services

to services performed in all settings. The

services, however, must be those that

the psychologist is legally authorized to

perform under State law and that would

otherwise be covered if furnished by a

physician or as an incident to a

physician’s services. This, in effect,

allows payment to be made directly to

a CP for qualified psychologist services

furnished by the CP or incidental to the

CP’s services (except for services

furnished to hospital patients). The

provision was effective for services

furnished on or after July 1, 1990.

Section 1833(p) of the Act (now

designated as section 1842(b)(18)(A) of

the Act), which requires that payment

for qualified psychologist services be

made only on an assignment-related

basis, was unchanged by the OBRA ’89

amendments.

Section 6113(d) of OBRA ’89

amended section 1833(d)(1) of the Act

to eliminate a then-existing dollar

limitation on payment for outpatient

mental health treatment. It, however,

retained a 621⁄2 percent limitation that

had been established by earlier

legislation. (Note that section 1833(d)(1)

has been redesignated as section 1833(c)

by the Medicare Catastrophic Coverage

Repeal Act of 1989, Pub. L. 101–234.)

Section 1833(c) applies to expenses for

mental health treatment services

incurred on or after January 1, 1990.

Section 6113(c) of OBRA ’89 requires

the Secretary, while taking into

consideration concerns for patient

confidentiality, to develop criteria

regarding direct payment to CPs under

which the CPs must agree to consult

with a patient’s attending physician.

As a further development, section

4157(a) of the Omnibus Budget

Reconciliation Act of 1990 (OBRA ’90),

Pub. L. 101–508, amended section

1861(b) of the Act, which defines

‘‘inpatient hospital services,’’ by

revising paragraphs (3) and (4) to

exclude, effective January 1, 1991, CP

services furnished to a hospital

inpatient from the definition. In

addition, section 4157(c) of OBRA ’90

amended section 1862(a) of the Act,

which concerns exclusions from

coverage, by revising paragraph (14) to

permit direct billing by CPs for qualified

psychologist services if furnished to

hospital patients.

On December 29, 1993, we published

a proposed rule, at 58 FR 68829,

concerning Medicare coverage and

payment of CP, other psychologist, and

clinical social worker services. That

proposed rule contains additional

information on the legislative

background of CP services.

Subsequent to the publication of the

December 1993 proposed rule, Congress

enacted the Social Security Act

Amendments of 1994 (SSA ’94), Pub. L.

103–432. Section 104 of SSA ’94

amended section 1861(e)(4) of the Act.

Prior to SSA ’94, section 1861(e)(4)

provided that each Medicare patient in

a participating hospital be under the

care of a physician. This provision was

incorporated into our regulations at

§ 482.12(c). Section 482.12(c) allows a

practitioner to assume responsibility for

a patient’s care only if the practitioner

is included in the definition of

‘‘physicians’’ at section 1861(r) of the

Act. That definition includes doctors of

medicine and osteopathy (including

psychiatrists) and other practitioners,

but does not include CPs.

As amended by section 104 of SSA

’94, section 1861(e)(4) of the Act now

provides that a hospital patient

receiving qualified psychologist services

may be under the care of a CP with

respect to services furnished by the CP,

to the extent permitted under State law.

B. Diagnostic Psychological Tests

Before enactment of the qualified

psychologist services benefit (that is, the

CP benefit authorized under section

1861(ii) of the Act), we authorized,

under section 1861(s)(3) of the Act,

Medicare coverage for diagnostic

psychological testing services performed

by a qualified psychologist practicing

independently of an institution, agency,

or physician’s office. In order to have

his or her diagnostic services covered

under this provision, the psychologist

had to meet certain qualifications and

the diagnostic services had to have been

ordered by a physician. These services

were covered as ‘‘other diagnostic

tests,’’ and Medicare paid for them on

a reasonable charge basis.

C. Clinical Social Worker Services

Before the enactment of OBRA ’89,

services of a clinical social worker

(CSW) were payable by Medicare Part B

when furnished in various settings, such

as a risk-based health maintenance

organization (HMO); as part of hospital

outpatient services under sections

1861(s)(2)(B), 1861(s)(2)(C), and

1861(ff)(2)(C) of the Act; and as an

incident to the services of a physician

under section 1861(s)(2)(A) of the Act.

(The applicable HMO statutory

provision is contained at section

1861(s)(2)(H)(ii) of the Act, which

includes these services in the list of

‘‘medical and other health services.’’)

Section 6113(b) of OBRA ’89 amended

section 1861(s)(2) of the Act to include

CSW services in the definition of

‘‘medical and other health services’’

generally covered under Part B of

Medicare at section 1861(s)(2)(N) of the

Act. It also amended section 1861(hh),

which defines a CSW, to define

‘‘clinical social worker services’’ as

services performed by a legally

authorized CSW for the diagnosis and

treatment of mental illnesses (other than

services furnished to an inpatient of a

hospital and other than services

furnished to an inpatient of a skilled

nursing facility (SNF) that the facility is

required to provide as a requirement for

participation) and that would be

covered if furnished by a physician or

as an incident to a physician’s

professional service. This provision is

effective for services furnished on or

after July 1, 1990.

Section 6113(b)(3) of OBRA ’89

amended section 1833(p) (now section

1842(b)(18)(A)) of the Act to specify that

Part B payment for CSW services (as

defined in section 1861(hh)(2) of the

Act) is made only on an assignmentrelated basis.

Readers who desire additional

information regarding the legislative

background for CSW services are

referred to the above-cited December 29,

1993, proposed rule. Note, however,

that, subsequent to the publication of

the December 1993 proposed rule,

section 147(b) of SSA ’94 amended the

consultation requirement at section

6113(c) of OBRA ’89 (discussed above

with regard to CPs) to include CSWs.
20112 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

Therefore, effective January 1, 1995,

CSWs have been required by law, as a

condition of payment for their

professional services, to consult with

their patients’ primary care or attending

physician.

D. Payment in Certain Facilities

In accordance with section 1876(a)(6)

of the Act, payment for services

furnished to an enrollee of a risk-based

HMO or competitive medical plan

(CMP) can only be made to the HMO or

CMP. Thus, a CP or CSW who furnishes

services in these settings may not bill

Medicare directly for these services.

Payment will continue to be made

through the risk-based HMO or CMP

under the appropriate payment

methodology.

It should be noted, however, that the

scope of services requirement for both

cost and risk-based HMOs or CMPs is

changed with the addition of CP and

CSW services to the list of ‘‘medical and

other health services’’ defined under

section 1861(s) of the Act. The scope of

services requirement for both cost and

risk-based HMOs and CMPs is set forth

in existing § 417.440(b) and includes all

Part A and Part B services that are

available to Medicare beneficiaries in

the HMO’s or CMP’s geographic area.

Therefore, both cost and risk contracting

HMOs and CMPs must now furnish CP

and CSW services as Medicare-covered

services. Note, however, that under

section 1861(hh) of the Act, there is no

coverage under Part B for services and

supplies incident to a CSW’s services.

Coverage, however, is provided, under

section 1861(s)(2)(H)(ii) of the Act, for

services and supplies furnished as an

incident to a CSW’s services if furnished

in a risk-based HMO or CMP. Thus,

services and supplies incident to a

CSW’s services are covered by Medicare

only when furnished by risk-based

HMOs and CMPs.

Comprehensive outpatient

rehabilitation facilities (CORFs) could

bill for CP services furnished through

December 31, 1990. However, effective

January 1, 1991, a separate claim must

be submitted under Part B for services

of a CP in a CORF furnished to patients

of the facility. This is because, as of

January 1, 1991, services of CPs are not

included in the scope of CORF services

described under section 1861(cc)(1)(D)

of the Act. In that section, the law states

that CORF services do not include any

item or service that is not included

under section 1861(b) of the Act if

furnished to an inpatient of a hospital.

As noted above, section 1861(b), which

contains the statutory definition of

‘‘inpatient hospital services,’’ as

amended by section 4157(a) of OBRA

’90, provides that inpatient hospital

services do not include qualified

psychologist services. As a result, a

separate claim must be submitted under

Part B for CP services to hospital

inpatients. The same policy applies to

CORFs under section 1861(cc)(1) of the

Act, as noted, to SNFs under section

1861(h)(7) of the Act, and to home

health agencies under the language

following paragraph (m)(7) of section

1861 of the Act.

Note also that, in accordance with

section 1881(b) of the Act, § 405.2163(c),

which governs services required for

outpatient maintenance dialysis patients

furnished in end stage renal disease

facilities, includes the services of social

workers. Payment for social worker

services is included in the composite

rate payment made to the dialysis

facility. Therefore, when a CSW

furnishes social services as required

under § 405.2163(c), these services are

billed by the end stage renal disease

facility, and these services are paid for

by Medicare as part of the composite

rate. The composite rate, a payment rate

provided for under section 1881(b) of

the Act, is a comprehensive, all

inclusive, prospective payment for all of

the items and services required for

outpatient maintenance dialysis.

Section 1861(aa)(3) and (4) of the Act

includes the services of CPs and CSWs

in the services of a Federally qualified

health center. Section 1861(aa)(1)(B) of

the Act includes the services of CPs and

CSWs, and services and supplies

furnished as an incident to those

services, as rural health clinic services.

Coverage for these services is addressed

in §§ 405.2446, 405.2450, and 405.2452.

We plan to address provisions related to

these services in a separate rulemaking

document.

II. Provisions of the Proposed Rule

As stated earlier, on December 29,

1993, we published a proposed rule that

addressed the provisions of section 6113

of OBRA ’89 and section 4157 of OBRA

’90. Our proposal is summarized below.

A. Clinical Psychologist Services

1. Inclusion as ‘‘Medical and Other

Health Services’’

We proposed to revise § 410.10,

‘‘Medical and other health services:

Included services,’’ to include, in the

list of medical and other health services

covered under Part B, the diagnostic and

therapeutic services furnished by a CP

and services and supplies furnished as

an incident to a CP’s services.

2. Covered Services

We proposed, in a new § 410.71, that

Medicare Part B cover (subject to the

621⁄2 percent limitation for certain

outpatient mental health treatment

services) services that are furnished by

a CP who meets certain requirements

(discussed in section III, ‘‘Analysis of

and Response to Comments,’’ of this

preamble). The services must be those

that are within the scope of the CP’s

State license and must be services that

would be covered if furnished by a

physician or as an incident to a

physician’s services. With regard to this

provision, we proposed the following:

• The outpatient mental health

treatment services of CPs and services

and supplies furnished as an incident to

those services are subject to the 621⁄2

percent payment limitation set forth in

proposed § 410.155.

• Payment for the services of CPs and

incident-to services furnished to

hospital inpatients and outpatients

through December 31, 1990, is made to

the hospital.

• Effective January 1, 1991, CPs may

bill Medicare Part B directly for their

services to hospital patients.

• When applying for a provider

number and annually thereafter, CPs

who bill Medicare Part B directly

(including CPs who furnish services to

hospital patients and bill Medicare Part

B directly for the services) must submit

an attestation statement agreeing to

consult with the beneficiary’s attending

or primary care physician in accordance

with accepted professional ethical

norms, taking into consideration patient

confidentiality.

• The CP must agree to inform the

beneficiary, prior to a consultation, that

it is desirable to consult with the

beneficiary’s primary care or attending

physician to consider any medical

conditions that may be contributing to

the beneficiary’s condition. We also

proposed, in § 410.71(e)(2)(iii), that if

the beneficiary assents, the CP must

agree to consult with the physician

within 1 week of obtaining the

beneficiary’s consent. We specifically

requested public comment on this latter

proposal.

• The annual attestation contains an

agreement to include a notation in the

beneficiary’s medical records to the

effect that he or she was notified of the

desirability of a consultation between

the CP and the beneficiary’s primary

care or attending physician, and the

patient’s response to the notification.

We specifically requested public

comment on this matter.

• In the attestation statement the CP

agrees that, if he or she is unable to

reach the physician after at least four

attempts, he or she will notify the

physician in writing about the provision

of care to the beneficiary. We
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20113

specifically invited comments

concerning this matter as well.

We also proposed that the definition

of CP that appears in the HMO rules at

§ 417.416(d)(2) be revised to cross-refer

to the qualifications we would set forth

at § 410.71.

3. Incidental Services

We proposed, in § 410.71(a)(2), that

Medicare Part B would cover services

and supplies furnished as an incident to

a CP’s services if the incidental services

and supplies would be covered if

furnished by a physician or as an

incident to a physician’s services.

We also proposed that, in order for

services and supplies furnished as an

incident to the services of the CP to be

covered by Medicare, they must meet

the longstanding Medicare requirements

that are applicable to services furnished

as an incident to the professional

services of a physician. That is, services

must be—

• The type that are commonly

furnished in a physician’s or CP’s office

and are either furnished without charge

or are included in the CP’s bill;

• An integral, although incidental,

part of professional services performed

by the CP;

• Performed under the direct

supervision of the CP (that is, the CP

must be physically present and

immediately available); and

• Performed by an employee of either

the CP or the legal entity that employs

the supervising CP under the common

law control test of section 210(j) of the

Act (42 U.S.C. 410(j)), as more fully set

forth in 20 CFR 404.1007.

4. Consultation

We proposed, in § 410.71(c), that

consultation between the CP and the

beneficiary’s primary care or attending

physician would not be a separatelybillable service for Medicare payment

purposes. We also proposed that the

primary care or attending physician also

would not be permitted to bill Medicare

for this consultation.

5. Payment on an Assignment-Related

Basis

We proposed to revise § 410.150, ‘‘To

whom payment is made,’’ to specify that

payment is made directly to the CP on

an assignment-related basis for CP

services furnished by him or her and for

services and supplies furnished as an

incident to his or her services. We

pointed out that the assignment

requirement would not preclude a CP

from furnishing his or her services as an

incident to the services of another

health care practitioner if these services

meet all of the incident-to requirements.

In such a case, the practitioner may bill

Medicare for the incident-to services. In

this case, payment would be made by

Medicare to the practitioner.

6. Limitation on Mental Health

Treatment Services

We proposed to revise

§ 410.152(a)(1)(iv), which concerns

amounts of payment, to remove the

annual dollar limitation on covered

mental health treatment services as a

factor in determining incurred expenses.

(Incurred expenses are Part B covered

expenses incurred by an individual

during his or her coverage period.)

7. Payment Amount

We proposed to revise § 410.152,

‘‘Amounts of payment,’’ to specify that

Medicare Part B pays, subject to the

mental health treatment limitation of

§ 410.155(c), 80 percent of the lesser of

the actual charge or the fee schedule

amount for CP services.

8. Definition of ‘‘Mental Health

Treatment’’

We proposed to add a definition of

‘‘mental health treatment’’ to paragraph

(a) of § 410.155, ‘‘Mental health

treatment limitation.’’ We proposed to

define ‘‘mental health treatment’’ as

‘‘therapy for the treatment of a mental,

psychoneurotic, or personality

disorder.’’ We also proposed to specify

a distinction between ‘‘treatment’’ and

‘‘diagnosis,’’ as discussed below.

We proposed to revise § 410.155(b) to

include examples of services that are

subject to, or excluded from, the

application of the limitation.

• We proposed that the limitation

does not apply to mental health

treatment furnished to hospital

inpatients, brief office visits to a

physician for the purpose of monitoring

or changing drug prescriptions used in

the mental health treatment, partial

hospitalization services that are not

directly provided by a physician, and

diagnostic services that are performed to

establish a diagnosis.

• We proposed that the limitation

will apply not only to mental health

treatment furnished by physicians and

CORFs but also to mental health

treatment furnished as an incident to

the services of a physician and to the

mental health services of other health

care practitioners whether the services

are furnished directly by the

practitioners or as an incident to their

services. Thus, for example, the

limitation would apply to the services of

CPs, services furnished as an incident to

the services of CPs, and to the services

of CSWs.

With respect to diagnostic

psychological testing and other

diagnostic services, we proposed that

services performed in order to establish

a patient’s diagnosis are not subject to

the limitation, because those services do

not represent treatment of a mental

disorder. We stated that the limitation

would apply to testing that is part of

treatment (for example, when it is used

to evaluate a patient’s progress during

treatment). Only diagnostic services

used to establish a diagnosis for a

patient’s mental illness would be

excluded from the limitation.

We proposed to revise § 410.155(c) of

the regulations to remove the dollar

limitation.

We also proposed to revise the

heading of § 410.155, from ‘‘Psychiatric

services limitations: Expenses incurred

for physician services and CORF

services’’ to ‘‘Mental health treatment

limitation.’’ Further, we proposed to

update the example, in existing

§ 410.155(d), of how the limitation is

applied.

As a technical revision, we proposed

to remove the reference to ‘‘medical

services for the diagnosis and treatment

of tuberculosis’’ from the definition of

‘‘hospital’’ in § 410.155(a). Section 2335

of the Deficit Reduction Act of 1984

(Pub. L. 98–369) repealed the special

conditions and requirements associated

with coverage of treatment of

tuberculosis patients and eliminated the

special provider category of tuberculosis

hospitals.

9. Basis for Payment

We proposed to revise § 424.55(b)(1),

which concerns accepting assignment,

to reflect that, in accepting assignment,

a supplier (which includes a CP) agrees

to accept, as the full charge for the

service, the charge approved by the

carrier as the basis for determining the

Medicare Part B payment. We proposed

to revise paragraph (b)(2)(i) of this

section, which currently reads: ‘‘To

collect nothing for those services for

which Medicare pays 100 percent of the

reasonable charge.’’ We proposed to

change ‘‘reasonable charge’’ to

‘‘approved amount’’ to reflect that,

based on recent statutory changes, there

are also fee schedules and other basis

for payment, in addition to reasonable

charge.

We proposed to revise paragraph

(b)(2)(ii) of § 424.55. This paragraph

currently limits the amount that the

supplier may collect from the

beneficiary or other source to only the

amount of any unmet deductible, plus

20 percent of the difference between the

reasonable charge and the unmet

deductible for those services for which
20114 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

Medicare pays 80 percent of that

difference. We proposed to revise this to

state that, for those services for which

Medicare pays less than 100 percent of

the approved amount, the supplier may

collect only the difference between the

Medicare-approved amount and the

Medicare Part B payment (that is, the

amount of any reduction in incurred

expenses under § 410.155(c) and any

applicable deductible and coinsurance

amount). This change would recognize

that a supplier may collect, from the

beneficiary or other source, the 371⁄2

percent differential that results from the

mental health treatment limitation.

B. Diagnostic Psychological Tests

Diagnostic psychological testing

services performed by an independent

psychologist, other than a CP, practicing

independently of an institution, agency,

or physician’s office are currently

covered as other diagnostic tests under

section 1861(s)(3) of the Act. We stated

our intent to continue to cover this type

of testing. We, however, invited public

comment on methods to employ that

would control the potential for

excessive use of psychological testing.

In addition, we stated that we intend

to address the coverage requirements for

the psychological tests benefit in a

separate rulemaking in the near future

and that, at that time, we will invite

public comment about the professional

qualifications that should be required

for the persons who perform these tests.

We stated our intent, until the rule

establishing these qualifications is

effective, to continue to cover this type

of testing if furnished by any

psychologist who is licensed or certified

to practice psychology in the State or

jurisdiction where he or she is

furnishing services or, if the jurisdiction

does not issue licenses, if provided by

any practicing psychologist.

C. Clinical Social Worker Services

1. We proposed to revise § 410.10,

‘‘Medical and other health services:

Included services,’’ to include the

services of CSWs in the list of medical

and other health services covered under

Part B.

2. We proposed, in a new § 410.73(a),

to define a CSW as an individual who—

• Possesses a master’s or doctor’s

degree in social work;

• After obtaining the degree, has

performed at least 2 years of supervised

clinical social work; and

• Either is licensed or certified as a

CSW by the State in which the services

are performed or, in the case of an

individual in a State that does not

provide for licensure or certification,

has completed at least 2 years or 3,000

hours of post master’s degree supervised

clinical social work practice under the

supervision of a master’s degree level

social worker in an appropriate setting

such as a hospital, SNF, or clinic.

3. We proposed, in a new § 410.73(b),

to specify that Medicare Part B pays for

services performed by a CSW for the

diagnosis and treatment of mental

illness that the CSW is legally

authorized to perform if the services

would be covered if furnished by a

physician or as an incident to a

physician’s professional services.

4. We proposed to specify, in a new

§ 410.73(c)(1), that payment for CSW

services furnished to hospital inpatients

and outpatients is made to the hospital

(not to the CSW).

We proposed to specify, in a new

§ 410.73(c)(2), that payment for CSW

services furnished to inpatients of an

SNF, if the SNF is required to provide

such services as a requirement for

participation, is made to the SNF. Under

the statute, however, any coverable

CSW services furnished in an SNF that

the SNF is not required to furnish as a

requirement for participation could be

billed by the CSWs directly under Part

B. Thus, we specifically invited public

comment and suggestions on how we

can clearly identify or differentiate the

level of services that would clearly

qualify under the statute as CSW

services performed in SNFs from those

services that are required by the SNF

requirements for participation.

As noted above, the conditions of

coverage for end stage renal disease

facilities require that social worker

services be made available to dialysis

patients. Therefore, we proposed to

specify, in a new § 410.73(c)(3), that

payment for social services furnished to

dialysis patients that are required by the

conditions for coverage for end stage

renal disease facilities is made to the

facility. We specifically invited public

comment, however, regarding whether

any CSW services to dialysis patients

can be distinguished from the required

facility services.

5. We proposed, in a new § 410.73(d),

to hold those CSWs who bill Medicare

Part B directly to the same consultation

requirements as we would CPs.

Accordingly, the CSW, when applying

for a Medicare provider number and

annually thereafter, would be required

to submit to the carrier an attestation

statement agreeing to consult with the

beneficiary’s attending or primary care

physician in accordance with

professional ethical norms, taking into

consideration patient confidentiality.

We would require that the attestation

statement contain the same information

we proposed to require for the

attestation statement of CPs.

We also proposed to specify, in a new

§ 410.73(c)(5), that a CSW or attending

or primary care physician may not bill

Medicare or the beneficiary for the

consultation that would be required by

this rule.

6. We proposed to revise § 410.150,

which explains to whom payment is

made, to specify that payment may be

made directly to the CSW, on an

assignment-related basis, for services he

or she furnished.

7. We proposed to revise §§ 410.152,

‘‘Amounts of payment,’’ and 410.155(b),

‘‘Services subject to limitation,’’

regarding application of the mental

health treatment limitation. The

provisions of proposed §§ 410.152 and

410.155(b), discussed in sections II.A.7.

and II.A.8. of this preamble,

respectively, would also apply to

services of CSWs.

8. We proposed to further revise

§ 410.152 by adding a new paragraph

(m), which would specify that Medicare

Part B pays, subject to the mental health

treatment limitation of § 410.155(c), 80

percent of the lesser of the actual charge

for the therapeutic services of a CSW or

75 percent of the fee schedule amount

for CP services.

9. We proposed to amend § 417.416,

‘‘Qualifying condition: Furnishing of

services,’’ to specify that an HMO or

CMP may permit the covered services of

a CSW to be furnished without

physician supervision. We also

proposed that services incident to the

professional services of a CSW are not

covered by Medicare if furnished in a

cost-based HMO or CMP.

10. The proposed revision to § 424.55,

‘‘Payment to the supplier,’’ discussed in

section II.A.9. of this preamble, would

also apply to CSWs.

D. CPs and CSWs Diagnostic Coding

We proposed that, beginning with the

effective date of the final rule, CPs and

CSWs would be required to use only

ICD–9–CM diagnostic coding when

submitting claims to our carriers.

III. Analysis of and Response to

Comments

In response to the December 1993

proposed rule, we received

approximately 740 public comments.

Commenters included national, State,

and local professional associations;

State and local governmental agencies;

psychologists, psychiatrists, CSWs, and

other individuals.

The concerns expressed by the

commenters focused predominately on

the proposed definition of ‘‘clinical

psychologist,’’ the attestation statement,
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20115

and the consultation requirements.

There were also other issues addressed

in the public comments, such as, which

medical coding system CPs or

physicians should use to report services,

how to distinguish the professional

services of CSWs from the social

services that social workers are required

to furnish to patients in SNFs that house

120 or more beds, psychological testing,

and the grandfathering of master’s level

psychologists who were licensed by

their respective States at the time

licensure laws first became effective.

A summary of the comments and our

responses are presented below.

A. The ‘‘Clinical Psychologist’’

Definition (§ 410.71)

The proposed CP definition is

basically comprised of three

requirements: the educational degree,

State licensure, and clinical experience.

For purposes of addressing public

comments on the proposed definition of

‘‘clinical psychologist,’’ however, we

believe it is helpful to analyze the

various components of the definition.

These are as follows:

• The individual must hold a doctoral

degree in psychology.

• The doctoral degree in psychology

must be from an accredited program.

• The psychology program must

prepare the candidate to practice

clinical psychology by providing

appropriate clinical psychology

training.

• The individual must be licensed or

certified at the independent practice

level of clinical psychology by the State

in which he or she practices.

• The individual must possess 2 years

of supervised clinical experience, at

least one of which is postdoctoral

degree experience.

• The 2 years of supervised clinical

experience must have been supervised

by a psychologist qualified at the

doctorate level.

1. The Individual Must Hold a Doctoral

Degree in Psychology

Comment: The majority of the

comments we received on the CP

definition supported maintaining the

standard that requires a doctoral degree

in psychology. On the other hand, many

commenters objected to maintaining

that standard. These latter commenters

believed that the standard should be

replaced with a standard that would

enable psychologists with master’s

degrees to qualify as CPs. It was

suggested by a few of these commenters,

however, that these master’s level

psychologists be paid at the same rate as

social workers with master’s degrees

who are also authorized to bill the

Medicare program directly for

professional diagnostic and treatment

services.

Also, these commenters contend that

in some States there is a shortage of

psychologists with doctoral degrees,

particularly in the rural areas. They

further assert that, while psychologists

with doctoral degrees are not very

accessible to the elderly population in

rural areas, there are psychologists in

these areas who have a master’s degree

in psychology and are licensed by the

State at the independent practice level

to furnish diagnostic and treatment

services. These commenters have urged

us to defer to State Psychology Boards

to determine who is eligible to furnish

psychological services under the

Medicare program, since professional

licensure has always been controlled by

the State.

Response: The statute, at section

1861(ii) of the Act gives the Secretary

the authority to define the term ‘‘clinical

psychologist’’ for the purpose of

covering, under the Medicare Part B

program, the professional diagnostic

and treatment services of CPs and

services and supplies furnished as an

incident to their professional services.

Previously, we had established a

definition of CP in regulations at

§ 417.416(d)(2). This definition was

issued in final regulations in 1985 and

has been used for purposes of coverage

of CP services in HMOs and CMPs.

Application of this definition in the

community mental health center setting

was addressed through instructions

issued in September 1986; for purposes

of the expanded CP benefit, instructions

were issued in August 1990.

As we stated in the proposed rule,

while this CP definition in its entirety

may have been appropriate for

psychologists furnishing services in

limited settings such as HMOs, CMPs,

and community mental health centers,

its use for purposes of the expanded

benefit caused extensive concern among

CPs. While we believe that there are

provisions of the definition that remain

appropriate even under the expanded

benefit, we believe other provisions of

the definition require some

modification.

Under the expanded CP benefit, CPs

are authorized to perform services that

would otherwise be furnished by a

physician, as well as accept

responsibility for services furnished by

others incident to their professional

services. We believe that it is prudent

for these practitioners to have a level of

education that is close to that which

physicians receive if they are going to

perform in this capacity. Even though a

few States may license psychologists

with master’s degrees at the

independent practice level to furnish

both diagnostic and treatment services,

we want to ensure that only those

practitioners with the highest level of

education, knowledge, and experience

furnish services to Medicare

beneficiaries.

Additionally, we believe that the

requirement for a doctoral degree is the

standard for psychologists who are

qualified to furnish services and

supervise the services of others, as

evidenced by the industry and by other

Federal programs. Information from the

Association of State and Provincial

Psychology Boards indicates that 32

States and the District of Columbia do

not license or certify psychologists

below the doctorate level, and most of

the 18 States that do license or certify

individuals at the masters level require

supervision of the individual’s services

by a doctorate level psychologist. Over

90 percent of psychologists licensed or

certified for independent clinical

practice do have doctoral degrees.

We have concerns about the

suggestion that the Medicare program

allow psychologists with master’s

degrees who are licensed by the State at

the independent practice level of

psychology to qualify as CPs, but pay

these psychologists at the same rate that

the program pays CSWs for their

professional diagnostic and treatment

services. Although the Medicare

program makes direct payment to

independently practicing CSWs for their

professional diagnostic and treatment

services, the CSW benefit is a more

restricted benefit than the CP benefit.

For example, CSWs may not bill directly

for services they furnish hospital

inpatients and outpatients or for

services in SNFs that participate in

Medicare. Additionally, the program

does not authorize direct payment to

CSWs for services furnished incident to

their professional services, except in

certain limited situations.

Furthermore, the law provides

direction on how the program must pay

for the services of CPs as well as CSWs

based on criteria that are specific to

each of these categories of practitioners.

Accordingly, we do not have the

discretion to pay doctoral level

psychologists at one rate and master’s

level psychologists at another—just as

we do not have the discretion to pay

master’s level social workers at one rate

and doctoral level social workers at

another. Practitioners who meet the

criteria for CPs and CSWs, respectively,

will be paid at the established rate for

that benefit.

The following may help to relieve the

concerns expressed about the shortage
20116 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

of psychologists with doctoral degrees

in rural areas. Section 1861(aa)(1)(B) of

the Act states that the term ‘‘rural health

clinic services’’ includes services

furnished by a CP (as defined by the

Secretary). Therefore, in developing a

notice of proposed rulemaking that will

address Medicare coverage of services

provided by rural health clinics, we

must develop a definition of CP that is

appropriate for practitioners who are

employed by those entities. Under the

rural health clinic benefit, the CP

definition will take into account the

shortage of psychologists with doctoral

degrees in rural areas, particularly those

designated as health professional

shortage areas. We will not, however,

discuss the requirements for CPs who

are employed by rural health clinics in

this final rule. Instead, the provisions of

the definition for purposes of the rural

health clinic benefit will be proposed in

a separate notice of proposed

rulemaking.

Comment: Many professional

organizations and psychologists

commended us for proposing a more

comprehensive definition of a CP by

removing the previous requirement that

an individual must hold a doctoral

degree from a program in clinical

psychology. They stated that our efforts

to develop an improved definition will

help to provide Medicare beneficiaries

with access to basic mental health care.

These commenters, in most cases,

indicated whether their local carriers

have been interpreting the CP definition

on a case-by-case basis (while awaiting

a final rule) to include practitioners who

have clinical experience, even though

their doctoral degrees are from another

program in psychology.

On the other hand, many commenters

from professional associations and

organizations stated that the existing

requirement that an individual must

hold a doctoral degree from a program

in clinical psychology should be

restored and that the proposed

definition, which does not specify that

the doctoral degree must be from a

program in clinical psychology, is

inappropriate. These commenters

questioned how we could ensure that

other doctoral level psychologists who

have graduated from programs such as

neuropsychology or school,

developmental, educational,

comparative, experimental, and

industrial psychology have the

appropriate education and clinical

training and experience to treat

Medicare patients. These commenters

believed that removal of the existing

requirement for a doctoral degree from

a program in clinical psychology could

present a danger to the medically

vulnerable Medicare population.

Some commenters stated that, for

purposes of determining who qualifies

as a CP under the Medicare program, we

should recognize those psychologists

who are listed as health service

providers in the National Register of

Health Service Providers in Psychology,

and they pointed out the following. The

National Register is a way of identifying

many clinicians who graduate with

degrees from programs that do not

specify the word ‘‘psychology’’ in their

title, but are clearly programs in

psychology. The Civilian Health and

Medical Program of the Uniformed

Services, which is another Federally

funded and managed program,

references the National Register as a

mechanism for identifying CPs. Also,

some States have added a certification

to the psychology license that

designates psychologists trained and

experienced in the provision of clinical

services as health service providers.

Response: We realize that there are

many psychologists who, although their

doctoral degree is labeled other than

‘‘clinical psychology,’’ graduated from

psychology programs that provided

them with the appropriate knowledge,

training, and experience in clinical

psychology. We are very concerned that

we not indirectly deny beneficiaries

access to the care of qualified

psychologist services solely because the

degree that a practitioner has earned is

labeled something other than ‘‘clinical

psychology.’’ Based on our carriers’

experience in interpreting the CP

definition on a case-by-case basis, we do

not agree with those commenters who

believe that removal of the existing

requirement for a doctoral degree from

a program in ‘‘clinical psychology’’

presents a danger to the Medicare

population.

We believe that the National Register

is a mechanism that can be instrumental

in identifying psychologists who are

qualified to furnish qualified

psychologist services. We do not

believe, however, that it should be used

by carriers as the sole criterion to

determine who is qualified to furnish

psychologist services under the

Medicare program because listing is

optional and requires payment of a fee

by the practitioner. Also, the register

lists nonphysician practitioners who

have received some clinical training and

experience from programs that are not

designated as psychology programs.

While we have made allowances for

the types of psychology programs that

can qualify a practitioner under

Medicare’s CP benefit, we require that

the individual’s doctoral degree at least

be from a program that is designated as

a psychology program. The CP benefit

was created as a discrete benefit for

psychologists, and not nonphysician

practitioners who may receive some

clinical training as part of their doctoral

degree programs. We believe that

Congress would have to create a

separate benefit to recognize

practitioners whose degrees are in a

field other than psychology.

Therefore, in this final rule, we

specify that an individual who seeks

qualification as a CP must hold a

doctoral degree in psychology.

2. The Doctoral Degree in Psychology

Must Be From an Accredited Program

Comment: Many commenters stated

that the requirement, under our CP

definition, for institutional accreditation

should be restored. In fact, many

physicians opposed the proposed

revisions to the CP definition because

they believed the revisions are

inappropriate in that they would

remove the requirement that the

doctoral degree program be from an

educational institution that is accredited

by an agency recognized by the

Commission on Recognition of

Postsecondary Accreditation (previously

known as the Council on Postsecondary

Accreditation). They believed that to

ensure the quality of the psychology

doctoral program these programs must

be housed in accredited institutions of

higher learning and be university-based.

Additionally, they stated that merely

requiring that a doctoral degree in

psychology be from an accredited

program is too open-ended because it

does not specify who must perform the

accreditation function. They maintain

that our proposed requirement

potentially dilutes the quality of

psychologists who are eligible to treat

Medicare patients.

Many psychologists and professional

associations in California commented

that the accreditation requirement in the

original and the proposed CP definition

would pose a serious problem for about

one-fourth of the psychologists in

California. The affected psychologists

would be those whose doctoral degrees

in psychology are either from schools

that are not regionally accredited by the

Commission on Recognition of

Postsecondary Accreditation or are from

psychology programs that are not

accredited. These commenters stated

that approximately one-fourth of the

licenses granted by the Board of

Psychology in California, for the period

beginning January 1990 through 1991,

were to psychologists who are graduates

of State approved doctoral programs in

psychology. The commenters further
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20117

stated that many of the institutions that

house State approved psychology

programs were specifically developed to

train psychologists in clinical

applications of health care. (The State of

California regulates these institutions

and their programs through the Council

for Private Postsecondary and

Vocational Education.) These

commenters suggested that, in order to

avoid inadvertently eliminating

otherwise qualified professionals from

participating in the Medicare program

because of a semantic problem, we

amend our proposed definition to

require that a CP hold a doctoral degree

in psychology from an accredited or

State approved program.

Response: We have thoroughly

examined the academic accreditation or

approval requirements imposed by the

various States for licensure or

certification of psychologists. The wide

degree of variation in the specifics of

State requirements makes creation of a

uniform Federal standard infeasible. We

have concluded that reliance on State

licensure or certification requirements

provides adequate assurance that an

individual’s doctoral degree was

obtained from a program that met

appropriate academic standards.

3. The Individual Must be Licensed or

Certified at the Independent Practice

Level of Clinical Psychology by the

State in Which He or She Practices

Comment: We received very many

comments pertaining to the above

requirement, which is included in the

proposed CP definition. We were

informed that 48 States generically

license psychologists at the independent

practice level of psychology, not clinical

psychology and that the States, in the

vast majority of cases, do not employ

concepts of what constitutes ‘‘clinical

psychology.’’ On the other hand, we

received many comments that the

addition of the word ‘‘clinical’’ to this

requirement regarding State licensure

and certification at the independent

practice level actually strengthened the

requirement overall.

Response: We have learned from the

commenters, and as a result of our own

investigation, that State licensure or

certification laws are broadly based and,

in combination with regulatory

requirements for licensing or certifying

psychologists, limit the scope of

psychologists’ activities to those for

which they have received appropriate

education, training, and experience.

Additionally, the licensing law of every

State either incorporates an ethics code

or a State board’s disciplinary code that

makes it illegal for a psychologist to

practice in an area for which he or she

has not received training. Accordingly,

to the extent that a psychologist,

regardless of the type of doctorate

possessed, were to provide services for

which he or she had not received

appropriate education and training, that

psychologist would be practicing

outside the scope or his or her

competence and would be subject to

both legal and ethical sanctions.

By inserting the word, ‘‘clinical’’ into

this requirement under the proposed CP

definition, we would exclude all of the

otherwise-qualified psychologists in 48

states from participating under the

Medicare program. Therefore, in this

final rule we amend this requirement to

specify that an individual who seeks

qualification as a CP under Medicare

must be licensed or certified at the

independent practice level of

psychology by the State in which he or

she practices.

4. The Psychology Program Must

Prepare the Candidate to Practice

Clinical Psychology by Providing

Appropriate Clinical Psychology

Training

Comment: Several commenters

believed that, to guard against erroneous

interpretations, we need to further

clarify the term ‘‘clinical psychology

training.’’ They stated that, as written,

this section uses the terms ‘‘clinical

psychology’’ and ‘‘clinical psychology

training’’ to describe a ‘‘clinical

psychologist.’’ The commenters believe

that the fact that no further explanation

of these terms is provided could create

considerable, but unnecessary,

ambiguity in the definition. Therefore,

these commenters have suggested a

provision that they believe clarifies that

the term ‘‘clinical psychology training’’

means education and practical

experience that prepares the

psychologist to provide diagnostic,

assessment, preventive, and therapeutic

services directly to individuals. It was

suggested that this sentence be added to

the end of this particular requirement

under the CP definition.

Response: We believe that this

suggestion clarifies the intent about the

emphasis on the term ‘‘clinical

psychology.’’ We wanted to stress that

psychologists who furnish services

under this benefit must have the

education and experience to furnish

diagnostic testing and assessment

services and preventive or therapeutic

intervention services directly to

individuals whose mental growth,

adjustment, or functioning is impaired

or at risk of impairment. Accordingly,

we believe that the focus should be on

the actual observation and treatment of

patients by the psychologist much more

so than on services or work that is

theoretical or experimental. In addition,

we believe that the key element is the

scope of practice authorized by State

licensure or certification. Therefore, we

are clarifying in this final rule that the

individual must be licensed to furnish

diagnostic, assessment, preventive, and

therapeutic services directly to

individuals.

5. The Individual Must Possess 2 Years

of Supervised Clinical Experience, at

Least 1 Year of Which is Postdoctoral

Degree Experience

Comment: Many commenters stated

that the above requirement should

specify a minimum total number of

hours for the required supervised

clinical experience. These commenters

stated that some States, for example,

Florida, Kentucky, and Washington,

require a specific number of hours, with

Florida requiring 2 years or 4,000 hours

of supervised experience. These

commenters believed that establishment

of a requirement for 2 years/4,000 hours

of supervised experience for CPs would

put in place a mechanism that would

serve to protect the Medicare

population.

A few commenters, however, stated

that it is possible that the requirement

under the proposed CP definition would

eliminate doctoral level psychologists

who lack a postdoctoral year of

supervised clinical experience because

they were licensed as a psychologist at

the master’s level and received their

doctoral degree later in their career.

Response: All States have licensure/

certification requirements for

supervised experience, but they vary in

terms of specific details. Therefore,

adoption of a uniform Federal standard

is not feasible. We have concluded that

reliance on State licensure or

certification requirements provides

adequate assurance that an individual

has completed appropriate supervised

clinical experience.

6. The 2 Years of Supervised Clinical

Experience Must Have Been Supervised

by a Psychologist Qualified at the

Doctoral Level

Comment: Many commenters

expressed concern that the above

requirement could inadvertently

exclude a number of qualified

psychologists from participating under

the Medicare program. They explained

that some highly qualified, doctorally

trained psychologists who have been in

practice for a long time received their

clinical supervision from licensed

master’s level psychologists in States

where licensed master’s level

supervision was, and continues to be,
20118 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

acceptable to State licensing boards.

Therefore, these commenters suggested

language that reads, ‘‘a CP must possess

2 years of supervised clinical

experience, at least one of which is

postdoctoral degree experience, and the

supervision as provided by a licensed

psychologist.’’ We also received a

suggestion that we recognize

supervision that was provided by a

physician.

Many commenters also stated that our

proposed requirement would place an

onerous task on Medicare carriers

because it requires them to determine

who provided the supervision of the

psychologist’s clinical experience.

On the other hand, many other

commenters stated that the requirement

pertaining to who supervises the

clinical experience should be

strengthened. These commenters stated

that we should require that the clinical

experience be supervised by a CP who

has a doctorate degree in clinical

psychology. Their rationale for

strengthening this requirement is that if

someone is going to learn about clinical

practice from a supervisor, that

supervisor is a superior teacher if he or

she is licensed in what he or she is

teaching/supervising.

Response: By relying on State

licensure or certification (see previous

response) this level of detail need not be

addressed by a Federal standard.

7. Grandfathering Master’s Level

Psychologists

Comment: Many commenters

expressed concern about whether this

final rule will grandfather those

psychologists who were grandfathered

under their State’s original licensing

laws. They were concerned that the

proposed CP definition would restrain

the practice of some psychologists who

have been practicing for at least 20 years

prior to the implementation of the CP

benefit. According to some comments

we received on the grandfathering issue,

the criteria that some States used to

determine who was qualified for

grandfathering was based on whether

the individuals could demonstrate that

they had an established practice in

psychology for a number of years

followed by a successful performance

on the national licensing examination.

The commenters stated that, while few

independently practicing master’s level

psychologists remain in practice today,

those who are still practicing would be

excluded under the proposed CP

definition from participating in the

Medicare program. These commenters

requested us to accept, for the purpose

of qualifying psychologists under

Medicare, certification as a health

service provider for master’s level

psychologists who were grandfathered

and have been practicing since State

licensure laws went into effect and who

are listed in the National Register of

Health Service Providers in Psychology.

Response: The State licensing boards

that adopted grandfathering clauses

used criteria that varied from State to

State to determine who qualified. Also,

there was no one time period for

purposes of grandfathering because all

State licensing boards did not

implement licensing laws for the

psychology profession concurrently.

Thus, there has been no uniformly

recognized standard for grandfathering.

Moreover, as discussed at length in our

earlier response regarding the

requirement for a doctoral degree, we do

not believe it is appropriate to recognize

as a CP any practitioner who lacks a

doctorate. The few remaining masters

level psychologists who have been

grandfathered to practice in their

individual States have not been

recognized as CPs under our current

instructions in the Medicare Carriers

Manual. Therefore, continuing their

exclusion from Medicare should not

disrupt their practices and will have

negligible impact on the overall

availability of services to beneficiaries.

Comment: We also received several

comments appealing to us to

grandfather into the final rule those

psychologists that, before publication of

the final rule, carriers had determined

were qualified as CPs. (On an interim

basis, carriers were granted the

discretion to interpret, on a case-by-case

basis, the CP definition to include

psychologists with doctoral degrees in

psychology programs that were labeled

other than ‘‘clinical psychology’’

provided they met all the other

definitional requirements. Conversely,

carriers had the discretion to adhere

strictly to the requirement which

stipulates that a CP must have a doctoral

degree from a program in clinical

psychology. During this interim

measure, many psychologists who

would have otherwise been excluded

from coverage were granted provider

numbers by carriers to participate in the

Medicare program as CPs.) These

commenters would like to ensure that

coverage of these psychologists’ services

is not discontinued as a result of the

provisions of the final rule.

Response: We do not believe that it is

necessary to specify in this final rule

that those psychologists who carriers

qualified as CPs prior to the

promulgation of this final rule must be

grandfathered under the final CP

definition. We believe that the decisions

carriers have made about qualifying

individuals as CPs, using the discretion

that we granted them in the interim

(which was to choose to issue provider

numbers to psychologists with doctoral

degrees from psychology programs

labeled other than ‘‘clinical psychology’’

provided the individual had the

appropriate knowledge, training, and

experience in clinical psychology) will

not conflict with the CP definition

under this rule and will not require a

reversal of their decisions.

8. Retraining of Psychologists

Comment: Many commenters strongly

asserted that we should not establish

standards for retraining psychologists to

qualify for coverage under Medicare, as

this could intrude or undermine State

licensure and scope of practice

authorities as well as accredited

educational institutional training

programs. They believed that we should

limit Medicare coverage to CPs who

qualify based on the current

requirements. These commenters stated

that there is no congressional mandate

for us to establish new education and

training criteria in order to cover

nonqualified psychologists under

Medicare. In fact, these commenters

challenged us about our mission by

questioning whether we plan to become

a psychology training and payment

agency. Lastly, they characterized our

proposal to cover the services of

psychologists who retrain as

‘‘ridiculous’’ and a wasteful expenditure

of taxpayer’s funds.

Conversely, we received as many or

even more comments stating that the

opportunity for professional retraining

by psychologists is of great value to

society, because it encourages and

facilitates the unique contributions that

can be made by psychologists with

broadly diversified backgrounds. These

commenters stated that they very much

appreciate our acknowledgment that

appropriate retraining should enable a

psychologist to qualify for Medicare

coverage purposes.

The latter commenters informed us,

however, that the psychology profession

refers to retraining as ‘‘respecialization.’’

They clarified that, under the

respecialization process, psychologists

receive a certificate, not a second

doctoral degree as we stated in the

preamble to the proposed rule. Also, in

response to our request (under this

particular proposal) for standards for

retraining programs that prepare

candidates to practice clinical

psychology, these commenters have

referred us to the professional, official

standards in place that were established

by the American Psychological
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20119

Association’s Committee on

Accreditation.

Response: We have concluded that

there is no need to create a special

provision to address this situation. This

issue is generally rendered moot by our

decisions not to specify a degree in

‘‘clinical’’ psychology but to rely on

State licensure or certification.

Individuals who have respecialized can

qualify if they meet our criteria.

9. Summary

In summary, as a result of our

consideration of public comments,

proposed § 410.71(e)(1) is designated as

§ 410.71(d) and is revised to specify that

a CP is an individual who—

(1) Holds a doctoral degree in

psychology; and

(2) Is licensed or certified, on the

basis of the doctoral degree in

psychology, by the State in which he or

she practices, at the independent

practice level of psychology to furnish

diagnostic, assessment, preventive, and

therapeutic services directly to

individuals.

B. Diagnostic Psychological Tests

We stated in the proposed rule that

we will continue to cover diagnostic

psychological tests under section

1861(s)(3) of the Act as a discrete benefit

under the Medicare program. We intend

to continue to cover these tests when

furnished by any psychologist who is

licensed or certified to practice

psychology in the State or jurisdiction

where he or she is furnishing services

or, if the jurisdiction does not issue

licenses, if provided by any practicing

psychologist.

We explained in the proposed rule

that we plan to do a separate rulemaking

that will address the qualifications for

persons who perform diagnostic

psychological tests and that, at that

time, we will invite public comments on

this issue. In the meantime, however,

we invited public comment on methods

to employ that will control the potential

for excessive use of psychological

testing. We received a number of

suggestions. We thank the respondents,

and we will consider their comments as

we develop the separate rulemaking.

C. Services Furnished as an Incident to

CP Services (§ 410.71(a)(2))

Comment: We received comments

from a professional association stating

that the requirement under the

‘‘incident to’’ benefit that calls for the

provision of services under the direct

supervision of the CP (that is, the CP

must be physically present in the office

suite and immediately available)

hampers the ability of the CP to provide

necessary mental health services in an

effective and efficient manner. This

association believed that all ‘‘incident

to’’ services should be performed under

the direct supervision of the CP; it did

not believe, however, that direct

supervision requires the physical

presence of the CP. The association

claimed that mental health services are

different from many health services that

pertain exclusively to physical health.

Therefore, according to the association,

the CP’s presence is not appropriate in

this arena because mental health

services are unlikely to create a risk that

would necessitate the CP’s immediate

physical presence. This association

believed that a more reasonable

standard would require that the CP be

readily available by telephone for

consultation, if necessary, as is the

customary practice in the profession. It

believed that this would provide

complete protection to the patient

without impeding the ability of the

psychologist to perform other services.

On the other hand, we received

comments from a State psychological

association that maintained the

requirement that the CP be immediately

present and available is appropriate. It

stated, however, that the reference to the

‘‘office suite’’ is dated and no longer

justified. The association recommended

that the reference be removed because it

seems to preclude services to patients in

skilled nursing facilities or in settings

other than an office.

Lastly, regarding the direct

supervision requirement under the

‘‘incident to’’ benefit, one psychologist

commented that the requirement is not

clear about whether the CP should be in

the building during the time of services.

Response: The statute limits coverage

to services that would be covered if

furnished as an incident to a physician’s

services. Therefore, we are using the

same standard for ‘‘incident to’’ that

applies to physicians, including mental

health services that are furnished as an

incident to a physician’s service. That

standard, as currently reflected in

section 2050.1.B of the Medicare

Carriers Manual (HCFA Pub. 14–3),

states that ‘‘supervision in the office

setting does not mean that the physician

must be present in the same room with

his or her aide. However, the physician

must be present in the office suite and

immediately available to provide

assistance and direction throughout the

time the aide is performing services.’’

We did not mean to imply, however,

that ‘‘incident to’’ services must always

be furnished in the office suite, and this

final rule revises proposed

§ 410.71(a)(2)(iv) to clarify this point. As

an example, a CP could directly

supervise a service performed outside

the office suite (such as in an SNF) if the

CP is in the room with the aide while

the aide performs the service. This also

parallels the physician standard as

expressed in section 2050.IB, which

indicates that the requirement for direct

supervision of a service performed in an

institution is not satisfied merely by the

physician being available by phone or

being present somewhere in the

institution.

Comment: One psychologist asked

which services furnished by CPs in the

hospital setting remain bundled and

which services are unbundled.

(‘‘Bundled’’ is a term used to indicate

that payment for the service is included

in the payment made to the hospital.)

He was particularly interested in

whether services furnished as an

incident to the professional services of

a CP are bundled into the payment that

hospitals receive for their services.

Response: Coverage and payment for

the direct professional services of a CP

are unbundled by law from hospital

services. Therefore, a CP (or the hospital

on behalf of the CP) must bill the carrier

for the direct professional services

furnished to hospital patients. The

payment that is made to hospitals for

‘‘hospital services’’ no longer includes

payment for the professional services of

CPs. However, coverage of services

furnished in the hospital setting as an

incident to the professional services of

CPs remains bundled.

D. The Outpatient Mental Health

Treatment Limitation (§ 410.155)

Comment: We received numerous

comments on various issues pertaining

to the limitation from a major

professional association stating that we

should use different terminology

regarding the limitation when

discussing how it applies to the services

of physicians. First, the association

suggested that when referring to the

services of physicians, we use the term

‘‘psychiatric medical services,’’ instead

of the term ‘‘mental health treatment

services.’’ It believed that the term

‘‘mental health treatment’’ is

appropriate only for psychologists. In

addition, this association recommended

that we consider revising the phrase,

‘‘mental, psychoneurotic, and

personality disorders’’, and that,

instead, we use the current language

contained in the American Psychiatric

Association’s Diagnostic and Statistical

Manual.

Second, this association pointed out

that the listing of services that are

exempt from the limitation is inaccurate

and incomplete because it does not

contain the diagnosis and medical
20120 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

management of patients with

Alzheimer’s Disease or other related

disorders. It stated that, for years,

section 2472.4 of the Medicare Carriers

Manual has listed these services among

those excluded from the application of

the limitation. Also, it believed that the

appropriate interpretation of the

statutory exclusion for monitoring or

changing drug prescriptions used in the

treatment of a mental illness or mental

disorder should include the decision as

to whether to prescribe such a drug.

Thus, the association stated that the

exclusion should read, ‘‘brief office

visits for the purpose of prescribing,

monitoring, or changing drug

prescriptions used in the treatment of a

mental illness or mental disorder.’’

Third, this association stated its belief

that the limitation should apply to

partial hospitalization services

furnished by CPs, as it pertains to

partial hospitalization services

furnished by physicians.

Fourth, this association commented

that the example under paragraph (d) of

this section is incorrect. It believed that

the $100 deductible should apply

against the approved amount—$750

first; then the remaining $650 should be

subject to the 62.5 percent limitation.

Additionally, it suggested that we

provide examples under this paragraph

to illustrate single assigned and

unassigned claims for both inpatient

and outpatient services.

We received several other comments

from psychologists on the limitation

expressing that the limitation should be

eliminated, that it should never apply to

psychological testing, and that the

limitation on treatment services requires

patients to make higher copayments

than many of them can afford, therefore

forcing these patients to seek inpatient

mental health care as a more affordable

alternative.

Response: With regard to the

association’s first comment, we believe

that no purpose would be served under

the Medicare program by accepting, as

suggested, the artificial distinction in

terminology when discussing the

services of physicians versus the

services of CPs and CSWs. However, we

are not defining the phrase ‘‘mental

health treatment,’’ but rather adhering to

the statutory language regarding

expenses in connection with the

treatment of a mental, psychoneurotic,

or personality disorder. Clearly

physicians, psychologists, and other

practitioners all may furnish that

treatment.

We agree that medical management

for patients diagnosed with Alzheimer’s

disease or related conditions is not

subject to the limitation and have added

this exception to the list. Psychotherapy

for these conditions, however, is subject

to the limitation. This reflects current

policy as stated in section 2472.4 of the

Medicare Carriers Manual.

With regard to revising the wording

that pertains to brief office visits for

monitoring or changing drug

prescriptions, the initial decision as to

whether to prescribe a drug is beyond

the scope of this exception as

authorized by the statute. Consequently

we have not made the suggested change.

Regarding the concern about whether

the limitation applies to ‘‘partial

hospitalization services furnished by

CPs,’’ the situation does not exist so the

concern is moot. As specified in

§ 410.43(b), CP services are separately

covered and are not paid as partial

hospitalization services. Thus, CP

services are subject to the limitation

when they are furnished to patients of

a partial hospitalization program.

We cannot accept the suggestion to

eliminate the outpatient mental health

treatment limitation. It is not within our

administrative authority to eliminate the

statutory limitation; elimination of this

limitation would require a change in the

law. Neither are we in a position to

specify that the limitation should never

apply to psychological testing. In fact,

we understand that testing frequently is

performed in order to evaluate a

patient’s progress. Clearly in those cases

the testing is part of treatment and, thus,

is subject to the limitation.

We disagree with the comment that

the example under paragraph (d) is

incorrect. The example is correct. The

Act specifies, at section 1833(c), that the

limitation must be applied first in order

to determine the amount of expenses to

which the deductible is applied. We

have, however, expanded the examples

to illustrate how the limitation applies

to single assigned and unassigned

claims for both inpatient and outpatient

services. We have also made revisions to

the examples to make them easier to

understand.

E. The Consultation Requirement, CPs

and CSWs (§§ 410.71(e)(2) and

410.73(d))

Comment: We received a great many

comments from psychologists, social

workers, and professional organizations

representing these nonphysician

practitioners that supported the general

attestation/consultation requirement.

However, these commenters

overwhelmingly opposed the specific

proposed requirements under the

general requirement for an attestation/

consultation.

One of their concerns addressed the

proposed requirement that would

require either the CP or CSW to make

at least four attempts to consult directly

with the primary care or attending

physician prior to resorting to written

notification. The commenters believed

that this proposal exceeds what

Congress envisioned in terms of a

consultation requirement, and that it

imposes an unreasonable, unnecessary,

and unjustifiable burden on

practitioners who participate in the

Medicare program. They stated that

their review of the OBRA 89 legislative

history reveals that Congress envisioned

either written or direct consultation,

with no expressed preference for one

over the other, and with no requirement

that more than one attempt at direct

consultation take place. Also, they made

a position for enabling CPs or CSWs to

use their professional judgement about

whether and when to consult a patient’s

physician based on the needs of the

patient, not the needs of the

reimbursement system. They suggested

that the system’s needs must never be

elevated above the patient’s needs.

Moreover, they suggested that either one

successful direct attempt to consult by

telephone or written notification is

appropriate, sufficient, and consistent

with congressional intent. However, we

received many comments that were

contrary to the position taken above, in

that they supported the proposed

requirement for written notification to

the patient’s primary care or attending

physician if the CP or CSW failed after

four attempts to telephone the

physician.

Response: We agree with the

suggestion that there needs to be

changes or exceptions made to the

proposed provisions of the consultation

requirement. In view of this, we have

reconsidered our approach about the

method used by a CP or CSW to

establish a consultation with a patient’s

primary care or attending physician. If

the goal is that, if a patient consents, a

consultation occur in a timely manner,

it really does not matter whether the

CP’s or CSW’s approach is by telephone

or in writing. Our initial preference for

telephone calls was that a telephone call

solicits a more immediate response

(provided that the physician is

available) than sending a letter by mail

to the physician and awaiting a

response.

We realize that requiring four phone

calls by the CP or CSW to the patient’s

primary care or attending physician

could be burdensome. Accordingly, in

this final rule we require that if the

beneficiary assents to a CP or CSW

consultation with his or her primary

care or attending physician, the CP or

CSW must attempt to consult the
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20121

physician within a reasonable time after

receiving the beneficiary’s consent to

the consultation. If attempts to consult

directly with the physician are not

successful, the CP or CSW must notify

the physician, within a reasonable time,

that he or she is furnishing services to

the beneficiary. We believe that this

effort represents a sincere attempt on

behalf of the practitioner to comply with

the consultation requirement regardless

of whether the physician responds to

the request. Unless the primary care or

attending physician referred the

beneficiary to the CP or CSW, the

practitioner must document in the

patient’s medical record the date the

patient consented or declined consent to

consultation, the date of consultation, or

if attempts to consult did not succeed,

the date and manner of notification to

the physician.

Comment: Many commenters stated

that the requirement that consultation

occur within 1 week after obtaining the

beneficiary’s consent is unnecessarily

burdensome and does not give

consideration to patients who visit their

practitioners less often than weekly.

These commenters suggested that,

instead, we require a consultation

within the first month of treatment, with

documented notification in writing.

Other commenters suggested that we

maintain our proposed requirement for

a consultation within 1 week of the

patient’s consent and add that it must

take place by the time treatment is

initiated.

Response: As we revisited this issue,

we concluded that it is not necessary to

specify that the attempt at consultation

occur within 1 week of the patient’s

consent. Our focus for the consultation

requirement is on whether CPs or CSWs

are aware of their patient’s medical

condition and any medications that they

may be taking that could interfere with

treatment of their patient. Therefore,

this final rule requires that the

attempt(s) at consultation be made

within a reasonable time after receiving

the patient’s’s consent.

Comment: The above group of

commenters also stated that CPs and

CSWs should be required to sign the

attestation statement only once—when

requesting a provider number under the

Medicare program. The commenters

believed that CPs and CSWs should not

be required to make the same attestation

statement annually thereafter and that

having the original consultation

attestation statement on file should be

sufficient to document adherence to the

consultation requirement. They believed

that a requirement such as the one that

was proposed, results in unnecessary

paperwork, delays in services, and an

undue burden on both the practitioner

and the carrier. Therefore, they urged us

to abolish the stipulation that requires a

CP or CSW to resubmit an attestation

statement on an annual basis.

Response: Initially, we viewed the

proposed annual resubmission of the

attestation statement as a way to remind

CPs and CSWs both of the significance

of the consultation requirement and that

the requirement is a condition of

payment for their services. We agree,

however, that an annual attestation may

be an onerous task for carriers and for

CPs and CSWs who participate under

Medicare. Thus, in reexamining this

issue with a goal to reduce paperwork

and information collection burden, we

have concluded that a less burdensome

approach is for us to accept the CP’s or

CSW’s signature on the certification

statement that is part of the provider/

supplier enrollment application as an

indication of his or her agreement to the

consultation requirement. In signing

that statement, the applicant certifies to,

among other things, the following: ‘‘I am

familiar with and agree to abide by the

Medicare laws and regulations that

apply to my provider type, including

the Conditions of Participation.’’

Therefore, in this final rule, we require

that the attestation occur only at the

time the CP or CSW requests a provider

number. Thus, there is no burden on

CPs and CSWs who already have a

provider number.

Comment: Several commenters

believed that some exceptions to a

mandatory consultation would be

appropriate. First, they stated that the

proposed rules do not take into account

the situation in which a patient is a

hospital inpatient or in a skilled nursing

facility and is ordered or referred to the

CP or CSW by his or her primary care

or attending physician. The commenters

pointed out that, in these cases, the

patient’s physician is aware of the

mental health intervention and

treatment and that communication in

these settings takes place via orders,

consultation notes, and progress notes

that the physician reads. The

commenters suggested that, under these

circumstances, a consultation is

unwarranted and, therefore, exceptions

be made to the consultation requirement

and the rules simply require a notation

in the patient’s chart regarding the

consultation. Conversely, others

commented that the consultation

requirement should apply to patients in

all settings and that the contact should

be with the patient’s primary and

specialist physicians who are treating

the patient.

Response: We disagree with the

suggestion that we establish an

exception to the consultation

requirement for services that CPs or

CSWs furnish to patients in the hospital

and skilled nursing facility settings or

that an exception to this requirement be

made based on the site of services.

However, we see no reason to require

CPs or CSWs to initiate consultation in

cases in which it is the patient’s primary

care or attending physician who

actually refers the patient to the CP or

CSW. For CPs or CSWs who receive a

patient based on a physician’s referral,

we believe it is sufficient to require the

practitioners to make a note to that

effect on the patient’s chart, including

the referring physician’s name. This

final rule revises our proposed

requirement accordingly. (Note also that

this final rule designates proposed

§ 410.71(e)(2) as § 410.71(e).)

Comment: Many commenters

expressed a concern about patients who

do not wish the CP or CSW to consult

with their primary care or attending

physician. These commenters contend

that patients who do not desire such a

consultation should have the right to

withhold consent. In addition, these

commenters believed that a request for

a consultation with a beneficiary’s

physician could violate that person’s

rights because it makes public to the

physician that the person is seeking

mental health services. Accordingly,

these commenters have urged us to

include a specific provision under the

attestation statement to address

situations wherein a patient refuses

consent to a consultation between his or

her CP or CSW and their primary care

or attending physician.

Response: We believe emphatically

that Medicare beneficiaries must have

the right to refuse consent to a

consultation between their practitioner

and their primary care or attending

physician. No beneficiary should ever

be coerced to consent to such a

consultation. In this final rule, at

§ 410.71(e)(3). We require that, if a

beneficiary does not consent to the

consultation, the date the beneficiary

declined consent to the consultation be

documented in the beneficiary’s

medical record.

Comment: Some commenters

expressed concern about situations in

which physicians do not respond to the

request for a consultation because it is

not a billable service. The commenters

maintain that often physicians are not

available for a consultation and are not

eager to return a phone call or respond

to a letter if they cannot bill the

Medicare program for their efforts to

participate in a consultation with their

patient’s CP or CSW. Therefore, the
20122 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

commenters suggest that we allow for

monetary compensation to the

participants of the consultation, or make

some allowance in the final rule for a

notation in patient’s records, of a good

faith attempt by the CP or CSW to

consult with the patient’s primary care

or attending physician. Other

commenters maintain that CPs and

CSWs should not be permitted to bill for

the required consultation.

Response: We maintain that the

consultation between the CP or CSW

and the patient’s primary care or

attending physician is not a billable

service for any of the professionals

involved. In addition, as stated in the

proposed rule, the House Ways and

Means Committee report that

accompanied OBRA ’89 (H.R. Report

No. 247, 101st Cong., 1st Sess. 1015)

indicated that the Committee intended

that the consultation not be a billable

service. Accordingly, neither a CP,

CSW, or physician can bill the Medicare

program or the beneficiary for the

consultation. Also, we have made

allowances to provisions of the

consultation requirement that will

accommodate CPs and CSWs in

situations in which they make a good

faith attempt to consult with their

patient’s primary care or attending

physician even though that effort is not

reciprocated.

Comment: Finally, numerous

commenters urged us to direct our

carriers to conduct regular reviews to

determine compliance with the

consultation requirement and to ensure

appropriate treatment is being provided

by CPs and CSWs.

Response: We do not believe it is

necessary to hold CPs and CSWs to a

higher standard of review than is

required for other health care

professionals. For example, we do not

believe it is necessary to require CPs to

routinely submit documentation

supporting their communication, or

attempts to communicate, with the

attending physician nor would we

expect our carriers to conduct regular

reviews of CPs and CSWs absent an

indication that inappropriate treatment

is being furnished. Carriers may request

documentation and conduct reviews of

CPs and CSWs, as they may for any

other health professional, to determine

that the services furnished are medically

necessary.

F. Diagnostic Coding Used by CPs and

CSWs (§ 410.155(a))

Comment: Many commenters

suggested that diagnosis codes from the

fourth edition of the American

Psychiatric Association’s, Diagnostic

and Statistical Manual—Mental

Disorders (DSM–IV) should be

recognized in addition to, or instead of,

diagnosis codes from ICD–9–CM. They

pointed out that the DSM–IV code

numbers are fully compatible with ICD–

9–CM codes. On the other hand, several

other commenters asserted that only

ICD–9–CM diagnosis codes should be

used when submitting claims.

Response: After reviewing the DSM–

IV codes as published in May 1994 and

comparing them to the 1997 version of

ICD–9–CM codes, we have concluded

that this is a distinction without a

difference. With only two minor

exceptions, which appear to be

inadvertent errors, the numerical codes

under both systems now are identical.

Therefore, the Medicare claims

processing system will accept diagnosis

code numbers derived from DSM–IV

(except for the two discrepancies noted

below) because they are

indistinguishable from ICD–9–CM code

numbers. One discrepancy is that ICD–

9–CM code 305.1 has an additional zero

shown in the fifth position in DSM–IV.

The other discrepancy is that DSM–IV

lists code 312.8 but the 1997 version of

ICD–9–CM requires an additional digit

(1, 2, or 9) in the fifth position.

We had proposed, in § 410.155(a), to

continue defining a ‘‘mental,

psychoneurotic, or personality

disorder’’ which is subject to the

outpatient mental health treatment

limitation as the specific psychiatric

conditions described in the American

Psychiatric Association’s Diagnostic and

Statistical Manual—Mental Disorders.

Those conditions are represented in the

code range 290 through 319. Since

DSM–IV and ICD–9–CM code numbers

are now compatible, we agree that it is

appropriate to recognize a definition

that is consistent with both coding

systems.

Because the American Psychiatric

Associations’s Manual is updated

periodically and ICD–9–CM is updated

annually, it seems desirable to avoid

specifying any particular edition of

either coding system. Therefore, this

final rule removes the definition of

‘‘mental, psychoneurotic, or personality

disorder’’ from § 410.155(a), and,

instead, specifies in § 410.155(b) that

‘‘mental, psychoneurotic, or personality

disorder’’ means any condition

identified by a diagnosis code within

the range of 290 through 319. This

should contribute to the ease of

understanding and operational

simplicity, as well as avoid the need to

update the regulation merely due to

periodic code revisions within the

overall range.

In addition, we are removing

proposed § 410.71(d) because that

paragraph made distinctions, based on

date of service, as to who may bill for

CP services furnished to hospital

inpatients. That distinction is no longer

necessary.

In the preamble of the December 1993

proposed rule we stated our intent to

require CPs and CSWs to use ICD–9–CM

coding when submitting Medicare

claims. However, as an oversight, we

failed to state how we would revise our

regulations to set forth this requirement.

This final rule revises § 424.32(a)(2) to

add that claims for CP services or CSW

services must include appropriate

diagnostic coding using ICD–9–CM.

Since the numerical codes under both

ICD–9–CM and DSM–IV are identical,

this should not create a burden for the

submitters of claims.

G. The Clinical Social Worker Definition

(§ 410.73(a))

Comment: We received several

comments informing us that, while all

States provide for some form of

licensure or certification, not all States

use the term ‘‘clinical social worker’’ to

refer to master’s or doctorate level social

workers who have been licensed by the

State. For example, in Kentucky the

highest level of State licensure is called

‘‘Independent Practice (Clinical).’’

Accordingly, no person may hold

himself or herself out to the public as a

CSW in Kentucky unless he or she has

been certified for independent practice

by the Kentucky State Board of

Examiners. The commenters asked

whether a Board certified person in

Kentucky would be recognized under

Medicare as a CSW entitled to provide

services under the program if the

individual is not literally licensed as a

CSW.

We were similarly informed that, in

New York the title awarded by the State

to individuals who meet the CSW

qualifications is ‘‘Certified Social

Worker.’’ It was suggested, therefore,

that the easiest way to address the lack

of uniformity of titles for social workers

would be to amend one of the

requirements under the CSW

qualifications to read that the individual

is either licensed or certified as a CSW

(or at the highest level of practice

provided by State law).

Response: We understand this

concern, but the proposed definition

was based on explicit language in the

Federal statute. Therefore, we will

continue to provide, as one way of

meeting the definition, licensure or

certification specifically as a CSW.

However, under the authority of section

1861(hh)(1)(C)(ii)(II) of the Act, this

final rule provides an alternative route

to Medicare qualification. That is, this
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20123

final rule revises proposed § 410.73(a)(3)

to provide, in the case of an individual

in a State that does not provide for

licensure or certification as a clinical

social worker, that the individual meets

the definition of ‘‘clinical social

worker’’ if the individual—

• Is licensed or certified at the highest

level of practice provided by the laws of

the State in which the services are

performed; and

• Has completed at least 2 years or

3,000 hours of post master’s degree

supervised clinical social work practice

under the supervision of a master’s

degree level social worker in an

appropriate setting, such as a hospital,

SNF, or clinic.

Thus, individuals in States such as

Kentucky or New York can qualify as

CSWs.

H. Definition of CSW Services

(§§ 410.73(b) and (c)(2))

In the December 1993 proposed rule,

we discussed the difficulty we

encountered in addressing the statutory

definition of CSW services that excludes

services furnished to SNF inpatients

that an SNF is required to provide as a

requirement for participation. We

invited public comment and suggestions

on the question of whether it is possible

to identify any CSW services (that is,

services that would be covered if

furnished by a CSW to other than

hospital or SNF inpatients) that an SNF

is not required to provide.

Although, we asked specifically for

comments on the SNF social services

versus CSW services issue, we also

received comments about the statutory

coverage exclusion of CSW services to

hospital inpatients.

Comment: One professional

association commented, on behalf of

social workers, that the proposed rule

places an unnecessary emphasis on the

site of services, rather than the

availability of CSW services to Medicare

beneficiaries. This association contends

that section 1861(hh)(2) of the Act

provides the specificity to avoid the

confusion between social services and

CSW services by limiting direct

payment under the Part B outpatient

mental health benefit to the diagnosis

and treatment of mental illnesses as

performed by CSWs who meet the

qualifications of section 1861(hh)(1).

Additionally, this association asserted

that the diagnosis and treatment of

mental illnesses is not analogous to the

broad range of tasks expected of an

SNF’s social services staff and neither is

it analogous to the overall requirement

that the SNF provide medically related

social services to attain or to maintain

the highest practicable physical, mental,

or psychosocial well-being of each

resident. It also asserted that, if this

analogy were true, the need for

clarification would extend far beyond

the issue of reimbursement for CSW

services in SNFs; the issue would

become whether payment, under Part B,

would be allowed for the diagnosis and

treatment of mental illnesses of SNF

residents by any mental health

professional recognized by the statute,

including CPs and psychiatrists.

Therefore, this association stated that,

when submitting Medicare Part B

claims, CSW services may be easily

distinguished from the social services

requirement of SNFs by the use of the

ICD–9–CM coding system to describe

the diagnosed mental illnesses and

mental disorders, with the therapeutic

services furnished reported using the

appropriate CPT psychiatry codes. (CPT

stands for [Physicians’] Current

Procedural Terminology, 4th Edition,

1993 (copyrighted by the American

Medical Association).) The association

stated its belief that some functions of

the SNF social services staff could be

described by the E/M (evaluation/

management) CPT codes, rather than the

CPT psychiatry codes.

One commenter expressed the

opinion that the qualifications required

of a social worker who is hired by an

SNF to furnish social services are far

less than those of a CSW. A national

federation representing CSWs

commented that the social work services

that SNFs are required to provide

without additional charge to the patient

include psychosocial assessment and

treatment planning, linkage with other

professional and community services,

and supportive counseling; they do not

include the formal diagnosis and

treatment of mental or emotional

disorders. Therefore, they have

recommended that, whenever CSWs

independently diagnose or treat a

mental or emotional disorder, these

services be paid separate and apart from

the payment to the facility. This

federation also suggested that separately

paid services can be easily

distinguished from social services by

reference to the appropriate Medicare

procedure codes; namely, 90801 for

diagnosis and 90841 through 90853 for

treatment.

One medical center recommended

that social services that are required

under the SNF requirements for

participation include: psychosocial

assessment, discharge planning, general

casework services, case consultation,

community contacts, patient

correspondence, and patient referral. In

contrast, CSW services that would be

covered when furnished to SNF patients

would include: individual therapy

(treatment of adjustment disorders,

personality disorders, psychoneurosis,

and complicated grief/illness reactions),

crisis intervention, family therapy, and

group therapy.

Lastly, one professional association

commented that it recognized our

difficulty in distinguishing the SNF

required social services from CSW

services when furnished in an SNF

setting. This association suggested that

we consider using information

contained in the Pre-Admission

Screening and Annual Resident Review

instrument or the annual resident

assessment instrument to assist in

documenting variances between these

services.

Response: The emphasis on site of

service is directly due to the

distinctions that the statute makes on

that basis. We must reiterate that the

definition of CSW services in

1861(hh)(2) excludes services furnished

to an inpatient of an SNF which the

facility is required to provide as a

requirement for participation.

We agree with the general consensus

that medically related social services for

SNF residents, identified in section

1819(b)(4)(A)(ii) of the Act and at 42

CFR 483.15(g), should not be covered as

CSW services. These services involve

assisting residents in maintaining or

improving their ability to manage their

everyday physical, mental, and

psychosocial needs. They include

discharge planning, counseling,

assessment, and care planning. These

services generally do not require

performance by a CSW.

However, the commenters did not

acknowledge that section

1819(b)(4)(A)(i) requires an SNF also to

provide specialized rehabilitative

services in order to fulfill the resident’s

plan of care. These services include

mental health rehabilitative services for

mental illness, as detailed in § 483.45.

Our guidance to surveyors describes the

intent of this requirement in the

following terms: ‘‘Specialized

rehabilitative services are considered a

facility service and are, thus, included

within the scope of facility services.’’

These services are described in the

guidelines as including (among other

services) individual, group, and family

psychotherapy.

Individual and group psychotherapy

comprise nearly all the services for

which Medicare pays CSWs, in covered

settings. As noted, these services are

among the specialized mental health

rehabilitative services that SNFs are

required to provide. While data

indicates that very few CSWs furnish

services to SNF inpatients, that does not
20124 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

diminish the fact that the few services

they do furnish in SNFs are services that

SNFs are required to provide.

The procedure codes used on Part B

Medicare claims include CPT codes as

a subset of the HCFA Common

Procedure Coding System (HCPCS). No

meaningful distinction regarding

services furnished by CSWs to SNF

inpatients can be made based on the use

of HCPCS psychiatry procedure codes,

because the same codes are used to

report CSW services in various settings.

We cannot accept the suggestion that

CSWs should be paid separate and apart

from payment to the SNF for

independently diagnosing or treating

mental disorders of SNF patients, nor

can we accept the suggestion that

psychotherapy services furnished by

CSWs to patients who have diagnosis

codes indicating mental illness should

be covered as CSW services rather than

viewed as services that SNFs are

required to provide. SNFs are explicitly

required to provide not only medically

related social services, but also mental

health rehabilitative services for mental

illness, as detailed in § 483.45.

We could not determine how

information in the Pre-Admission

Screening and Annual Resident Review

instrument, or in the annual resident

assessment instrument, could be used to

distinguish any services that SNFs are

not required to provide.

With respect to the concern regarding

the distinction between services

furnished to SNF inpatients by CSWs

and similar services furnished by CPs

and physicians, we must point out that

this distinction is based on the statutory

parallels between hospital and SNF

services. Section 1861(b) of the Act

excludes the services of physicians and

CPs from coverage as inpatient hospital

services, yet 1862(a)(14) of the Act

compels a hospital to include CSW

services in its billing. Section 1861(h) of

the Act defines extended care services

(the inpatient services for which SNFs

are paid under Part A) as excluding any

service that would not be included

under 1861(b) if furnished to an

inpatient of a hospital. Thus, the

services of physicians and CPs are

likewise excluded from coverage as SNF

services, while the services of CSWs can

be included.

The statute uses the identical term,

‘‘medical social services,’’ in defining

both inpatient hospital services and

extended care services. For hospitals,

this term implicitly includes the full

range of services furnished by CSWs.

There is no basis for concluding that the

term has a different meaning for SNFs.

Although physicians and CPs can be

paid directly for services they furnish to

SNF inpatients, CSWs are subject to a

statutory restriction. The fact that a

physician or CP can be paid directly for

certain services does not lead to a

conclusion that a CSW should be paid

directly for similar services despite the

CSW benefit restriction. An SNF cannot

include physician or CP services as

facility services, but it can include

services performed by a CSW in its

facility services.

After thoroughly examining this issue

and the suggestions received, we are

unable to identify any specific service

performed by CSWs for SNF inpatients

that SNFs are not required to provide.

Consequently, we conclude that CSW

services exclude all services furnished

to SNF inpatients.

Comment: A major professional

association commented that it is aware

that medical social services are required

services in hospitals and that medical

social services are bundled into the

hospital’s payment rate. However,

neither the Medicare statute nor

regulations define the medical social

services requirement nor the

qualifications of professionals who may

provide these services in the hospital.

Accordingly, this association is

concerned about the bundling issue as

it relates to the Medicare Part B

outpatient benefit for CSW services,

particularly in psychiatric hospital

outpatient departments. Therefore, the

association asked that, if the diagnosis

and treatment of mental illnesses and

mental disorders provided by CSWs are

indeed factored into the hospital’s

overall payment rate, how are CSW

services currently mandated in

outpatient hospital settings and what

are the quality assurance mechanisms

that ensure CSW services are made

available to Medicare beneficiaries in

hospital outpatient departments.

Response: In regard to the question

about whether CSW services are

currently mandated in the hospital

outpatient setting, there is no mandate

specifically for CSW services in this

setting. However, the quality assurance

conditions of participation for hospitals

(which apply to both the inpatient and

outpatient setting) under § 482.21(b)

require the hospital to have an ongoing

plan, consistent with available

community and hospital resources, to

provide, or make available, social work,

psychological, and educational services

to meet the medically related needs of

its patients. The hospital must also have

an effective, ongoing discharge planning

program that facilitates the provision of

followup care. Furthermore, the hospital

must take and document appropriate

remedial action to address deficiencies

found through the quality assurance

program, as well as document the

outcome of the remedial action taken.

In addition to meeting the same

quality assurance conditions of

participation as general hospitals,

psychiatric hospitals must meet the

conditions at § 482.62 that pertain to the

special staff requirements for

psychiatric hospitals. Section 482.62(f)

requires psychiatric hospitals to have on

staff a director of social services who

monitors and evaluates the quality and

appropriateness of the social services

furnished. The services must be

furnished in accordance with accepted

standards of practice and established

policies and procedures.

The director of the social work

department or services must have a

master’s degree from an accredited

school of social work or must be

qualified by education and experience

in the social services needs of the

mentally ill. If the director does not

hold a master’s degree in social work, at

least one staff member must have this

qualification. Additionally, the social

service staff responsibilities must

include, but are not limited to,

participation in discharge planning,

arranging for follow-up care, and

developing mechanisms for exchange of

appropriate information with sources

outside the hospital. Conceivably, a

CSW could serve as a social services

staff director or staff member of a

psychiatric hospital.

Comment: Another commenter

suggested that the coverage exclusion of

CSW services furnished to hospital

inpatients under the Part B CSW benefit

not pertain to nonparticipating

hospitals. As rationale, the commenter

stated that, since nonparticipating

hospitals receive no Part A payment,

there would be no risk of duplicate

payment by both the intermediary and

the carrier. Therefore, the commenter

concluded that Medicare should make

payment under Medicare Part B to

nonparticipating hospitals for CSW

services.

Response: We agree that, because

‘‘bundling’’ is not an issue for

nonparticipating hospitals, there is no

risk of duplicate payment in the case of

services furnished in nonparticipating

hospitals. However, we disagree with

the conclusion the commenter reached

concerning to whom payment should be

made. Because the services of a CSW

furnished to a patient in a

nonparticipating hospital are covered,

under section 1861(s)(2)(N) of the Act,

as ‘‘medical and other health services’’

payment for these services is made

directly to the CSW. This final rule

clarifies that CSW services do not
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20125

include services furnished to inpatients

of a Medicare participating hospital.

I. CSW Services Furnished in End Stage

Renal Disease facilities (§ 410.73(c)(3))

As stated earlier, payment for social

worker services is included in the

composite rate payment made to the

dialysis facility. Therefore, CSWs

cannot bill directly for those services.

We invited public comment, however,

on whether any CSW services to dialysis

patients can be distinguished from the

required facility services.

Comment: A national federation

representing CSWs commented that

CSW services furnished in ESRD

facilities should be treated the same way

they are treated when furnished in

SNFs. That is, whenever CSWs

independently diagnose or treat a

mental or emotional disorder, these

services should be paid separately and

apart from the composite rate paid to

the ESRD facility. The federation

recommended that CSW services be

distinguished from ESRD required

social worker services by reference to

the appropriate Medicare procedure

codes; namely, 90801 for diagnosis and

90841 through 90853 for treatment.

Similarly, another commenter

recommended that the same guidelines

and payment be established for CSW

services under Part B to dialysis patients

as those established for CSW services to

SNF patients. Many dialysis patients,

especially newly diagnosed or unstable

patients, require and benefit from

individualized CSW services. This

commenter believed that the composite

rate currently paid to dialysis facilities

does not come close to covering these

specialized services and therapy for

treatment of a mental, psychoneurotic,

or personality disorder.

Response: After examining the issue

of CSW services to SNF inpatients, it is

apparent that the issue of CSW services

for patients of dialysis facilities differs

significantly. The statutory site-based

restrictions on CSW services apply only

to inpatient settings—inpatient hospital

and inpatient SNF. Inpatient facilities

are expected to meet all of their

patient’s needs (including both social

services and specialized rehabilitative

services). In contrast, the statutory

definition of CSW services does not

restrict CSW professional services in

other settings, such as dialysis facilities.

Dialysis facilities are expected to meet

solely dialysis-related needs. Dialysis

facilities are required, at § 405.2163(c),

merely to provide ‘‘social services’’ that

are directed at supporting and

maximizing the social functioning and

adjustment of the patient. Under these

dialysis facility required social services,

a qualified social worker (who need not

be a CSW) is responsible for conducting

psychosocial evaluations, participating

in team review of patient progress and

recommending changes in treatment

based on the patient’s current

psychosocial needs, providing casework

and groupwork services to patients and

their families in dealing with the special

problems associated with ESRD, and

identifying community social agencies

and other resources and assisting

patients and families to use them. A

dialysis facility, however, is not

required to provide the full scope of

services comparable to the specialized

rehabilitative services for mental illness

that section 1819(b)(4)(A)(i) of the Act

requires an SNF to provide.

Accordingly, it would not be

appropriate to require that all services

that a CSW might furnish to a dialysis

patient be bundled into the composite

rate. Therefore, it is appropriate for a

CSW to bill the Part B carrier separately

for only those individualized

professional mental health diagnostic

and treatment services furnished to

dialysis facility patients that are not

included in the composite rate. This

retains the current policy; CSWs have

been permitted to bill the carrier

directly for their individual professional

mental health diagnostic and treatment

services that do not reflect services that

are included in the ESRD composite

rate. However, carriers will deny any

claims for services that reflect the

dialysis-related social services that

dialysis facilities are required to provide

under § 405.2163(c). Thus, there will be

no change in coverage for CSW services

furnished to patients in dialysis

facilities.

J. Regulatory Impact Analysis

We received comments concerning

the regulatory impact analysis. We

present and respond to those comments

in section VI. of this document.

IV. Provisions of the Final Rule

The proposed rule is adopted, with

the changes listed below. Many of these

changes are discussed in section III of

this preamble. If the change is not

discussed in section III, the reason for

the change is given below.

Changes to Proposed § 410.71

We revise the example in paragraph

(a)(2)(iv).

We delete proposed paragraph (d)

since the provision is dated.

In paragraph (e)(1), now designated as

paragraph (d), we revise the

requirements for qualification as a CP.

We designate proposed paragraph

(e)(2) as paragraph (e) and revise the

consultation requirements.

Changes to Proposed § 410.73

We revise paragraph (a)(3) to provide

that, in the case of an individual in a

State that does not provide for licensure

or certification as a clinical social

worker, an individual may meet the

licensure/certification requirement if he

or she is licensed or certified ‘‘at the

highest level of practice provided by the

laws of the State in which the services

are performed’’.

We restructure proposed paragraphs

(b) and (c)(1) through (c)(3) to combine

their contents into a new paragraph (b)

and the contents of paragraph (c)(4) and

(c)(5) into a new paragraph (d). We

believe the new paragraphs set forth the

provisions in a clearer manner.

We designate proposed paragraph (d)

as paragraph (c) and, rather than set

forth the consultation requirements in

detail, we cross refer to the

requirements set forth in § 410.71(f).

Changes to Proposed § 410.152

The changes we proposed to make to

paragraphs (a)(2) and (b) are not made.

Further, paragraphs (k) through (m) are

not added. These proposed provisions,

which concern payment, are addressed

for clinical psychologists in the final CP

fee schedule rule published on October

31, 1997 (62 FR 59260). That rule also

addresses, indirectly, payment

provisions for clinical social workers

since they are paid at 75 percent of the

CP fee schedule.

Changes to Proposed § 410.155

We are not making the proposed

changes to paragraph (a), ‘‘Definitions.’’

That is, we are not adding a definition

of ‘‘mental health treatment.’’ In

addition, we are removing the definition

of ‘‘hospital.’’ We do not believe it is

necessary to define these terms since

they do not have a meaning that is

different from the meaning either given

in the Medicare statute or as used

elsewhere in our regulations. Also, as

discussed earlier, we now define

‘‘mental, psychoneurotic, or personality

disorder’’ in paragraph (b). Therefore,

existing § 410.155(a) is removed in its

entirety.

Proposed paragraph (b) is revised to

improve its readability. In addition, we

add that medical management, as

opposed to psychotherapy, furnished to

a patient diagnosed with Alzheimer’s

disease or a related disorder, is not

subject to the mental health treatment

limitation.
20126 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

Proposed paragraph (c) is revised to

improve its readability, and it is

designated as new paragraph (a).

The examples in proposed paragraph

(d) are revised to add greater clarity, and

the paragraph is designated as

paragraph (c).

Revision of Existing § 424.32(a)

We revise existing § 424.32(a) to

specify that claims for CP services or

CSW services must contain appropriate

diagnostic coding using ICD–9–CM.

Conforming Change

This final rule revises paragraph (c),

‘‘Standard: Care of patients,’’ of

§ 482.12, ‘‘Conditions of participation:

Governing Body’’ to specify that a

Medicare patient in a Medicareparticipating hospital who is receiving

qualified psychologist services may be

under the care of a CP with respect to

those services, to the extent permitted

under State law. This revision is made

to conform our regulations to section

104 of the Social Security Act

Amendments of 1994, described in

section I.A.1 of this preamble.

Other Changes

We have also made several editorial

changes to improve the readability of

the regulations. These changes do not

affect the substance of the provisions.

V. Collection of Information

Requirements

Under the Paperwork Reduction Act

of 1995, agencies are required to provide

60-day notice in the Federal Register

and solicit public comment before a

collection of information requirement is

submitted to the Office of Management

and Budget (OMB) for review and

approval. In order to fairly evaluate

whether an information collection

should be approved by OMB, section

3506(c)(2)(A) of the Paperwork

Reduction Act of 1995 requires that we

solicit comment on the following issues:

• Whether the information collection

is necessary and useful to carry out the

proper functions of the agency;

• The accuracy of the agency’s

estimate of the information collection

burden;

• The quality, utility, and clarity of

the information to be collected; and

• Recommendations to minimize the

information collection burden on the

affected public, including automated

collection techniques.

Therefore, we are soliciting public

comment on each of these issues for the

proposed information collection

requirements discussed below.

The title and description of the

individual information collection

requirements are shown below with an

estimate of the annual reporting and

recordkeeping burden. Included in the

estimate is the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

As indicated earlier in this preamble,

§ 410.71(e) references the education,

training, and experience requirements

necessary to participate in the Medicare

program as a clinical psychologist. The

specific information necessary to

determine compliance with the

requirements referenced in § 410.71(e)

are captured on the Provider/Supplier

Enrollment Application (HCFA–855),

which is currently approved under

OMB approval number 0938–0685 with

an expiration date of May 31, 1998.

We estimate that the completion of

form HCFA–855 will impose a one-time

burden of approximately 90 minutes.

Again, we welcome comments on all

aspects of the above material.

Organizations and individuals that wish

to submit comments on the information

and recordkeeping requirements

captured on the HCFA–855 as they

relate to § 410.71(e) should direct them

to the following address: Health Care

Financing Administration, Office of

Information Systems, Division of HCFA

Enterprise Standards, Room C2–26–17,

7500 Security Boulevard, Baltimore, MD

21244–1850.

VI. Regulatory Impact Analysis

We have examined the impacts of this

rule as required by Executive Order

12866 and the Regulatory Flexibility Act

(RFA) (Public Law 96–354). Executive

Order 12866 directs agencies to assess

all costs and benefits of available

regulatory alternatives and, when

regulation is necessary, to select

regulatory approaches that maximize

net benefits (including potential

economic, environmental, public health

and safety effects, distributive impacts;

and equity). The RFA requires agencies

to analyze options for regulatory relief

of small businesses. For purposes of the

RFA, we consider all psychologists,

social workers, and hospitals to be small

entities.

In addition, section 1102(b) of the Act

requires the Secretary to prepare a

regulatory impact analysis for any rule

that may have a significant impact on

the operation of a substantial number of

small rural hospitals. This analysis must

conform to the provisions of section 604

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. We are not preparing a rural

impact statement since we have

determined, and the Secretary certifies,

that this rule will not have a significant

impact on the operations of a substantial

number of small rural hospitals.

In accordance with sections

1861(s)(2)(M) and 1861(ii) of the Act,

this rule allows payment to be made

directly to a CP for qualified

psychologist services furnished by the

CP or (except for services furnished to

hospital patients) as an incident to the

CP’s services. Further, under the

authority of section 1861(ii), which

looks to the Secretary to define ‘‘clinical

psychologist,’’ this rule specifies that a

CP is an individual who—

(1) Holds a doctoral degree in

psychology, and

(2) Is licensed or certified, on the

basis of the doctoral degree in

psychology, by the State in which he or

she practices, at the independent

practice level of psychology to furnish

diagnostic, assessment, preventive, and

therapeutic services directly to

individuals.

In accordance with sections

1861(s)(2)(N) and 1861(hh) of the Act,

this rule allows payment to be made

directly to a CSW for the services he or

she furnishes, except for services

furnished to an inpatient of a Medicareparticipating hospital and certain

services furnished to an inpatient of a

Medicare-participating SNF or ESRD

facility. Also, based on the definition of

‘‘clinical social worker’’ at section

1861(hh) of the Act, this rule establishes

in regulations the qualifications a CSW

must meet under Medicare.

In accordance with section 6113 of

OBRA ’89, as amended by SSA ’94, this

rule requires that CPs and CSWs agree

to consult with the beneficiary’s

attending or primary care physician, if

the beneficiary consents to the

consultation, and establishes criteria

regarding the consultation.

In accordance with section 1833(c) of

the Act, this rule revises our regulations

to eliminate the dollar limitation on

payment for outpatient mental health

treatment but retains the 621⁄2 percent

limitation.

This rule also requires that CPs and

CSWs use ICD–9-CM coding when

submitting Medicare Part B claims.

Lastly, this rule conforms our

regulations to section 1861(e)(4) of the

Act by providing that a Medicare patient

in a Medicare-participating hospital

who is receiving qualified psychologist

services may be under the care of a CP

with respect to those services, to the

extent permitted under State law.

As stated in the December 1993

proposed rule, it has been a long-
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20127

standing requirement that, in order for

his or her services to be covered under

Medicare, the CP possess a doctoral

degree from a program in clinical

psychology. The literal wording of this

requirement would exclude many

qualified practitioners of psychology

whose doctoral degrees are not labeled

‘‘clinical psychology’’ but who have

analogous training and practical

experience that qualifies them to

practice clinical psychology.

However, as we discussed in the

regulatory impact analysis section of the

December 1993 proposed rule, in the

absence of final regulations defining the

criteria a CP must meet for Medicare

purposes, the Medicare carriers have

had the authority to determine whether

a particular doctorate-level psychologist

qualified to have services covered by

Medicare. In using this authority, the

carriers decided if the educational

background and experience of a

particular psychologist qualified him or

her as a CP. In the proposed rule, we

estimated that two-thirds of the carriers

had recognized psychologists based on

the education and experience factors

that we proposed and we took that

factor, along with others, into

consideration in our estimate of

Medicare expenditures for CP and CSW

services during fiscal years 1994

through 1997.

We received two comments on the

regulatory impact analysis contained in

the proposed rule. The comments came

from major associations; one represents

psychiatrists and the other represents

psychologists.

Comment: Although the impact

analysis did not state how many

psychologists we estimated might be

added to the Medicare program because

of our proposed definition, one

commenter suggested that we may have

underestimated the increase. (The

commenter did not provide any data in

this regard.) The commenter maintained

that two different estimates should have

been included, one with the proposed

definition and one based upon the

previously existing definition.

This same commenter disagreed with

HCFA’s statement that the anticipated

increase in expenditures would be due

primarily to an increase in the number

of users rather than an increase in the

average charge per service or the average

number of services per beneficiary. The

commenter cited a 1993 article that

concluded that therapist supply creates

demand rather than vice versa.

(Behavioral HealthCare Tomorrow,

November/December 1993, prepaid

plan. 26–32). The commenter believed

that we need to reevaluate the potential

for significant cost increases because of

increasing the number of CPs.

Additionally, this commenter was

concerned that, in the impact analysis,

we maintained that, because of the

availability of the services of CPS and

CSWs, these professionals would

substitute for the services of

psychiatrists and, thus, there would be

an offsetting effect in terms of program

outlays. The commenter stated that we

offered no support for this assertion.

Moreover, the commenter contended

that while these nonphysician

practitioners may furnish services

within their limited training and ability,

they do not substitute for the services of

psychiatrists.

Response: In the proposed rule, we

advised the public of our estimate of the

budgetary effect of the legislative

changes that removed the site of service

restrictions, added coverage for

additional providers, and eliminated the

annual dollar limitation. Recent data

indicate that, rather than

underestimating, we greatly

overestimated the effect of the changes.

For example, we estimated that, as a

result of these legislative changes

concerning Medicare expenditures for

CP and CSW services would increase by

$260 million in fiscal year (FY) 1994, by

$320 million in FY 1995, and by $390

million in FY 1996. Available data now

indicate that the actual increases were

far less, only $50 million in FY 1994,

$60 million in FY 1995, and $30 million

in FY 1996.

In the proposed rule, we stated that

we believed that the increase in

expenditures would be due primarily to

an increase in the number of users

rather than an increase in the average

charge per service or the average

number of services per beneficiary.

More recent data indicates that, after

factoring out the increase in population,

there also has been a small increase in

the total number of allowed services.

We also stated, in the proposed rule,

that we expected that, because of the

increased availability of CPs and CSWs,

the services of these professionals

would substitute for some of the

services previously furnished by

psychiatrists, thus, having an offsetting

effect in terms of total program outlays.

However, we also noted our expectation

that the services of CSWs would be in

addition to those of psychiatrists and

CPs, rather than a substitute for them.

While it does appear that the volume of

some psychotherapy services performed

by psychiatrists has decreased relative

to the historic trend line, the volume of

many other services performed by

psychiatrists (services that require

physician performance) has been

gradually increasing relative to the

overall increases in total physician

services. Recent data show that,

between 1992 and 1995, allowed

services for CSWs, CPs, and

psychiatrists continued to increase, and

that, while the rate of growth in CP and

CSW services showed a slight

downward trend, there was a slight

increase in the rate of growth in

psychiatrist services.

Comment: Another commenter

recommended that, in analyzing the

budgetary effect of these changes, we

keep in mind that mental health

treatment intervention reduces overall

health care costs and conserves valuable

health care resources. The commenter

stated that an accurate and complete

analysis of the budgetary effect of the

changes should include an analysis of

the anticipated offset to overall health

care costs that is likely to occur.

Response: With regard to the effect of

early mental health treatment

intervention on overall health care

costs, we believe that because no data

exist to separately identify the effect of

this factor in comparison to the

concurrent effects of the many other

variables that affect overall health care

costs, the budgetary analysis suggested

by the commenter is not possible.

In addition to the above comments,

we received comments related to

payment issues (for example, the effect

of the lack of a CP fee schedule on

Medicare expenditures). Because

payment for CP and CSW services was

addressed in a proposed rule on the CP

fee schedule on June 18, 1997 (62 FR

33158), and we addressed comments on

this issue in the final fee schedule on

October 31, 1997 (62 FR 59260), we are

not addressing these comments in this

document.

In general, this final rule merely

conforms our regulations to statutory

provisions and, in addition, relies on

State licensure requirements when

determining CP qualifications.

Therefore, we believe it will have a

negligible economic impact on CP,

CSW, and other practitioners. Therefore,

we are not preparing analyses for the

RFA, and the Secretary certifies that this

rule will not result in a significant

economic impact on a substantial

number of small entities.

In accordance with the provisions of

Executive Order 12866, this final rule

was reviewed by the Office of

Management and Budget.

VII. Waiver of Proposed Rulemaking

As required by the Administrative

Procedure Act, we generally provide

notice and opportunity for comments on

regulations unless we can find good
20128 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

cause for waiving the notice-andcomment procedure as impracticable,

unnecessary, or contrary to the public

interest. This final rule revises

paragraph (c), ‘‘Standard: Care of

patients,’’ of § 482.12, ‘‘Conditions of

participation: Governing Body’’ to

specify that a Medicare patient in a

Medicare-participating hospital who is

receiving qualified psychologist services

may be under the care of a CP with

respect to those services, to the extent

permitted under State law. This revision

is made to conform our regulations to

section 1861(e)(4) of the Act. The

language of section 1861(e)(4) is so

specific that it leaves no room for

alternative interpretations. Accordingly,

we find good cause to waive the noticeand-comment procedure with regard to

this change to our regulations as

unnecessary.

List of Subjects

42 CFR Part 410

Health facilities, Health professions,

Kidney diseases, Laboratories,

Medicare, Rural areas, X-rays.

42 CFR Part 417

Administrative practice and

procedure, Grant programs—health,

Health care, Health facilities, Health

insurance, Health maintenance

organizations (HMO), Loan programs—

health, Medicare, Reporting and

recordkeeping requirements.

42 CFR Part 424

Emergency medical services, Health

facilities, Health professions, Medicare.

42 CFR Part 482

Grant programs—health, Hospitals,

Medicaid, Medicare, Reporting and

recordkeeping requirements.

For the reasons set forth in the

preamble, 42 CFR chapter IV is

amended as follows:

PART 410—SUPPLEMENTARY

MEDICAL INSURANCE (SMI)

BENEFITS

1. The authority citation for part 410

is revised to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh).

Subpart B—Medical and Other Health

Services

2. In § 410.10, the introductory text is

republished, and new paragraphs (v)

and (w) are added to read as follows:

§ 410.10 Medical and other health

services: Included services.

Subject to the conditions and

limitations specified in this subpart,

‘‘medical and other health services’’

includes the following services:

* * * * *

(v) Clinical psychologist services and

services and supplies furnished as an

incident to the services of a clinical

psychologist, as provided in § 410.71.

(w) Clinical social worker services, as

provided in § 410.73.

3. New §§ 410.71 and 410.73 are

added to read as follows:

§ 410.71 Clinical psychologist services

and services and supplies incident to

clinical psychologist services.

(a) Included services. (1) Medicare

Part B covers services furnished by a

clinical psychologist, who meets the

requirements specified in paragraph (d)

of this section, that are within the scope

of his or her State license, if the services

would be covered if furnished by a

physician or as an incident to a

physician’s services.

(2) Medicare Part B covers services

and supplies furnished as an incident to

the services of a clinical psychologist if

the following requirements are met:

(i) The services and supplies would

be covered if furnished by a physician

or as an incident to a physician’s

services.

(ii) The services or supplies are of the

type that are commonly furnished in a

physician’s or clinical psychologist’s

office and are either furnished without

charge or are included in the

physician’s or clinical psychologist’s

bill.

(iii) The services are an integral,

although incidental, part of the

professional services performed by the

clinical psychologist.

(iv) The services are performed under

the direct supervision of the clinical

psychologist. For example, when

services are performed in the clinical

psychologist’s office, the clinical

psychologist must be present in the

office suite and immediately available to

provide assistance and direction

throughout the time the service is being

performed.

(v) The individual performing the

service must be an employee of either

the clinical psychologist or the legal

entity that employs the supervising

clinical psychologist, under the

common law control test of the Act as

more fully set forth in 20 CFR 404.1007.

(b) Application of mental health

treatment limitation. The treatment

services of a clinical psychologist and

services and supplies furnished as an

incident to those services are subject to

the limitation on payment for outpatient

mental health treatment services set

forth in § 410.155.

(c) Payment for consultations. A

clinical psychologist or an attending or

primary care physician may not bill

Medicare or the beneficiary for the

consultation that is required under

paragraph (e) of this section.

(d) Qualifications. For purposes of

this subpart, a clinical psychologist is

an individual who—

(1) Holds a doctoral degree in

psychology; and

(2) Is licensed or certified, on the

basis of the doctoral degree in

psychology, by the State in which he or

she practices, at the independent

practice level of psychology to furnish

diagnostic, assessment, preventive, and

therapeutic services directly to

individuals.

(e) Agreement to consult. A clinical

psychologist who bills Medicare Part B

must agree to meet the requirements of

paragraphs (e)(1) through (e)(3) of this

section. The clinical psychologist’s

signature on a Medicare provider/

supplier enrollment form indicates his

or her agreement.

(1) Unless the beneficiary’s primary

care or attending physician has referred

the beneficiary to the clinical

psychologist, to inform the beneficiary

that it is desirable for the clinical

psychologist to consult with the

beneficiary’s attending or primary care

physician (if the beneficiary has such a

physician) to consider any conditions

contributing to the beneficiary’s

symptoms.

(2) If the beneficiary assents to the

consultation, in accordance with

accepted professional ethical norms and

taking into consideration patient

confidentiality—

(i) To attempt, within a reasonable

time after receiving the consent, to

consult with the physician; and

(ii) If attempts to consult directly with

the physician are not successful, to

notify the physician, within a

reasonable time, that he or she is

furnishing services to the beneficiary.

(3) Unless the primary care or

attending physician referred the

beneficiary to the clinical psychologist,

to document, in the beneficiary’s

medical record, the date the patient

consented or declined consent to

consultation, the date of consultation,

or, if attempts to consult did not

succeed, the date and manner of

notification to the physician.

§ 410.73 Clinical social worker services.

(a) Definition: clinical social worker.

For purposes of this part, a clinical
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20129

social worker is defined as an

individual who—

(1) Possesses a master’s or doctor’s

degree in social work;

(2) After obtaining the degree, has

performed at least 2 years of supervised

clinical social work; and

(3) Either is licensed or certified as a

clinical social worker by the State in

which the services are performed or, in

the case of an individual in a State that

does not provide for licensure or

certification as a clinical social

worker—

(i) Is licensed or certified at the

highest level of practice provided by the

laws of the State in which the services

are performed; and

(ii) Has completed at least 2 years or

3,000 hours of post master’s degree

supervised clinical social work practice

under the supervision of a master’s

degree level social worker in an

appropriate setting such as a hospital,

SNF, or clinic.

(b) Covered clinical social worker

services. Medicare Part B covers clinical

social worker services.

(1) Definition. ‘‘Clinical social worker

services’’ means, except as specified in

paragraph (b)(2) of this section, the

services of a clinical social worker

furnished for the diagnosis and

treatment of mental illness that the

clinical social worker is legally

authorized to perform under State law

(or the State regulatory mechanism

provided by State law) of the State in

which the services are performed. The

services must be of a type that would be

covered if they were furnished by a

physician or as an incident to a

physician’s professional service and

must meet the requirements of this

section.

(2) Exception. The following services

are not clinical social worker services

for purposes of billing Medicare Part B:

(i) Services furnished by a clinical

social worker to an inpatient of a

Medicare-participating hospital.

(ii) Services furnished by a clinical

social worker to an inpatient of a

Medicare-participating SNF.

(iii) Services furnished by a clinical

social worker to a patient in a Medicareparticipating dialysis facility if the

services are those required by the

conditions for coverage for ESRD

facilities under § 405.2163 of this

chapter.

(c) Agreement to consult. A clinical

social worker must comply with the

consultation requirements set forth at

§ 410.71(f) (reading ‘‘clinical

psychologist’’ as ‘‘clinical social

worker’’).

(d) Prohibited billing. (1) A clinical

social worker may not bill Medicare for

the services specified in paragraph (b)(2)

of this section.

(2) A clinical social worker or an

attending or primary care physician may

not bill Medicare or the beneficiary for

the consultation that is required under

paragraph (c) of this section.

Subpart E—Payment of SMI Benefits

4. In § 410.150, the introductory text

of paragraph (b) is republished, new

paragraphs (b)(14) through (b)(16) are

added and reserved, and new

paragraphs (b)(17) and (b)(18) are added

to read as follows:

§ 410.150 To whom payment is made.

* * * * *

(b) Specific rules. Subject to the

conditions set forth in paragraph (a) of

this section, Medicare Part B pays as

follows:

* * * * *

(14) [Reserved.]

(15) [Reserved.]

(16) [Reserved.]

(17) To a clinical psychologist on the

individual’s behalf for clinical

psychologist services and for services

and supplies furnished as an incident to

his or her services.

(18) To a clinical social worker on the

individual’s behalf for clinical social

worker services.

5. In § 410.152, paragraph (a)(1)

introductory text is republished, and

paragraph (a)(1)(iv) is revised to read as

follows:

§ 410.152 Amount of payment.

(a) General provisions—(1) Exclusion

from incurred expenses. As used in this

section, ‘‘incurred expenses’’ are

expenses incurred by an individual,

during his or her coverage period, for

covered Part B services, excluding the

following:

* * * * *

(iv) Expenses in excess of the

outpatient mental health treatment

limitation described in § 410.155.

* * * * *

6. Section 410.155 is revised to read

as follows:

§ 410.155 Outpatient mental health

treatment limitation.

(a) Limitation. Only 621⁄2 percent of

the expenses incurred for services

subject to the limit as specified in

paragraph (b) of this section are

considered incurred expenses under

Medicare Part B when determining the

amount of payment and deductible

under §§ 410.152 and 410.160,

respectively.

(b) Application of the limitation—(1)

Services subject to the limitation. Except

as specified in paragraph (b)(2) of this

section, the following services are

subject to the limitation if they are

furnished in connection with the

treatment of a mental, psychoneurotic,

or personality disorder (that is, any

condition identified by a diagnosis code

within the range of 290 through 319)

and are furnished to an individual who

is not an inpatient of a hospital:

(i) Services furnished by physicians

and other practitioners, whether

furnished directly or as an incident to

those practitioners’ services.

(ii) Services provided by a CORF.

(2) Services not subject to the

limitation. Services not subject to the

limitation include the following:

(i) Services furnished to a hospital

inpatient.

(ii) Brief office visits for the sole

purpose of monitoring or changing drug

prescriptions used in the treatment of

mental, psychoneurotic, or personality

disorders.

(iii) Partial hospitalization services

not directly provided by a physician.

(iv) Diagnostic services, such as

psychological testing, that are

performed to establish a diagnosis.

(v) Medical management, as opposed

to psychotherapy, furnished to a patient

diagnosed with Alzheimer’s disease or a

related disorder.

(c) Examples. (1) A clinical

psychologist submitted a claim for $200

for outpatient treatment of a

beneficiary’s mental disorder. The

Medicare approved amount was $180.

Since clinical psychologists must accept

assignment, the beneficiary is not liable

for the $20 in excess charges. The

beneficiary previously satisfied the $100

annual Part B deductible. The limitation

reduces the amount of incurred

expenses to 621⁄2 percent of the

approved amount. After subtracting any

unmet deductible, Medicare pays 80

percent of the remaining incurred

expenses. Medicare payment and

beneficiary liability are computed as

follows:

1. Actual charges ............................ $200.00

2. Medicare approved amount ........ 180.00

3. Medicare incurred expenses

(0.625 × line 2) ............................ 112.50

4. Unmet deductible ........................ 0.00

5. Remainder after subtracting deductible (line 3 minus line 4) ....... 112.50

6. Medicare payment (0.80 × line

5) ................................................. 90.00

7. Beneficiary liability (line 2 minus

line 6) .......................................... 90.00

(2) A clinical social worker submitted

a claim for $135 for outpatient treatment

of a beneficiary’s mental disorder. The

Medicare approved amount was $120.

Since clinical social workers must
20130 Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations

accept assignment, the beneficiary is not

liable for the $15 in excess charges. The

beneficiary previously satisfied $70 of

the $100 annual Part B deductible,

leaving $30 unmet.

1. Actual charges ............................ $135.00

2. Medicare approved amount ........ 120.00

3. Medicare incurred expenses

(0.625 × line 2) ............................ 75.00

4. Unmet deductible ........................ 30.00

5. Remainder after subtracting deductible (line 3 minus line 4) ....... 45.00

6. Medicare payment (0.80 × line

5) ................................................. 36.00

7. Beneficiary liability (line 2 minus

line 6) .......................................... 84.00

(3) A physician who did not accept

assignment submitted a claim for $780

for services in connection with the

treatment of a mental disorder that did

not require inpatient hospitalization.

The Medicare approved amount was

$750. Because the physician did not

accept assignment, the beneficiary is

liable for the $30 in excess charges. The

beneficiary had not satisfied any of the

$100 Part B annual deductible.

1. Actual charges ............................ $780.00

2. Medicare approved amount ........ 750.00

3. Medicare incurred expenses

(0.625 × line 2) ............................ 468.75

4. Unmet deductible ........................ 100.00

5. Remainder after subtracting deductible (line 3 minus line 4) ....... 368.75

6. Medicare payment (0.80 × line

5) ................................................. 295.00

7. Beneficiary liability (line 1 minus

line 6) .......................................... 485.00

(4) A beneficiary’s only Part B

expenses during 1995 were for a

physician’s services in connection with

the treatment of a mental disorder that

initially required inpatient

hospitalization. The remaining services

were furnished on an outpatient basis.

The beneficiary had not satisfied any of

the $100 annual Part B deductible in

1995. The physician, who accepted

assignment, submitted a claim for $780.

The Medicare-approved amount was

$750. The beneficiary incurred $350 of

the approved amount while a hospital

inpatient and incurred the remaining

$400 of the approved amount for

outpatient services. Only $400 of the

approved amount is subject to the 621⁄2

percent limitation because the statutory

limitation does not apply to services

furnished to hospital inpatients.

1. Actual charges ............................ $780.00

2. Medicare approved amount ........ $750.00

2A. Inpatient portion .................... $350

2B. Outpatient portion ................. $400

3. Medicare incurred expenses ...... $600.00

3A. Inpatient portion .................... $350

3B. Outpatient portion (0.625 ×

line 2B) .................................... $250

4. Unmet deductible ........................ $100.00

5. Remainder after subtracting deductible (line 3 minus line 4) ....... $500.00

6. Medicare payment (0.80 × line

5) ................................................. $400.00

7. Beneficiary liability (line 2 minus

line 6) .......................................... $350.00

PART 417—HEALTH MAINTENANCE

ORGANIZATIONS, COMPETITIVE

MEDICAL PLANS, AND HEALTH CARE

PREPAYMENT PLANS

1. The authority citation for part 417

is revised to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh), secs. 1301, 1306, and 1310 of the

Public Health Service Act (42 U.S.C. 300e,

300e–5, and 300e–9), and 31 U.S.C. 9701.

2. In § 417.416, the introductory text

of paragraph (d) is republished;

paragraph (d)(2) is revised; and a new

paragraph (d)(3) is added to read as

follows:

§ 417.416 Qualifying condition: Furnishing

of services.

* * * * *

(d) Exceptions to physician

supervision requirement. The following

services may be furnished without the

direct personal supervision of a

physician:

* * * * *

(2) When furnished by an HMO or

CMP, services of clinical psychologists

who meet the qualifications specified in

§ 410.71(d) of this chapter, and the

services and supplies incident to their

professional services.

(3) When an HMO or CMP contracts

on—

(i) A risk basis, the services of a

clinical social worker (as defined at

§ 410.73 of this chapter) and the services

and supplies incident to their

professional services; or

(ii) A cost basis, the services of a

clinical social worker (as defined in

§ 410.73 of this chapter). Services

incident to the professional services of

a clinical social worker furnished by an

HMO or CMP contracting on a cost basis

are not covered by Medicare and

payment will not be made for these

services.

PART 424—CONDITIONS FOR

MEDICARE PAYMENT

1. The authority citation for part 424

continues to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh).

2. In § 424.32, paragraph (a)

introductory text is republished, and

paragraph (a)(2) is revised to read as

follows:

§ 424.32 Basic requirements for all claims.

(a) A claim must meet the following

requirements:

(1) * * *

(2) A claim for physician services,

clinical psychologist services, or clinical

social worker services must include

appropriate diagnostic coding for those

services using ICD–9–CM.

* * * * *

3. In § 424.55, paragraph (b)

introductory text is republished, and

paragraphs (b)(1) and (b)(2) are revised

to read as follows:

§ 424.55 Payment to the supplier.

* * * * *

(b) In accepting assignment, the

supplier agrees to the following:

(1) To accept, as full charge for the

service, the amount approved by the

carrier as the basis for determining the

Medicare Part B payment (the

reasonable charge or the lesser of the fee

schedule amount and the actual charge).

(2) To limit charges to the beneficiary

or any other source as follows:

(i) To collect nothing for those

services for which Medicare pays 100

percent of the Medicare approved

amount.

(ii) To collect only the difference

between the Medicare approved amount

and the Medicare Part B payment (for

example, the amount of any reduction

in incurred expenses under § 410.155(c),

any applicable deductible amount, and

any applicable coinsurance amount) for

services for which Medicare pays less

than 100 percent of the approved

amount.

* * * * *

PART 482—CONDITIONS OF

PARTICIPATION FOR HOSPITALS

1. The authority citation for part 482

continues to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh).

2. In § 482.12, paragraph (c)

introductory text and (c)(1) introductory

text are republished; the period at the

end of paragraph (c)(1)(v) is removed

and ‘‘; and’’ is added in its place;

paragraph (c)(1)(vi) is added; paragraph

(c)(4) introductory text is republished;

and paragraph (c)(4)(ii) is revised to

read as follows:

§ 482.12 Conditions of participation:

Governing body.

* * * * *

(c) Standard: Care of patients. In

accordance with hospital policy, the
Federal Register / Vol. 63, No. 78 /Thursday, April 23, 1998 /Rules and Regulations 20131

1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et

seq., has been amended by the Contract with

America Advancement Act of 1996, Pub. L. 104–

121, 110 Stat 847 (1996) (CWAAA). Title II of the

CWAAA is the Small Business Regulatory

Enforcement Fairness Act of 1966 (SBREFA).

governing body must ensure that the

following requirements are met:

(1) Every Medicare patient is under

the care of:

* * * * *

(vi) A clinical psychologist as defined

in § 410.71 of this chapter, but only with

respect to clinical psychologist services

as defined in § 410.71 of this chapter

and only to the extent permitted by

State law.

* * * * *

(4) A doctor of medicine or

osteopathy is responsible for the care of

each Medicare patient with respect to

any medical or psychiatric problem

that—

(i) * * *

(ii) Is not specifically within the scope

of practice of a doctor of dental surgery,

dental medicine, podiatric medicine, or

optometry; a chiropractor; or clinical

psychologist, as that scope is—

(A) Defined by the medical staff;

(B) Permitted by State law; and

(C) Limited, under paragraph (c)(1)(v)

of this section, with respect to

chiropractors.

* * * * *

(Catalog of Federal Domestic Assistance

Program No. 93.774 Medicare—

Supplementary Medical Insurance)

Dated: December 2, 1997.

Nancy-Ann Min DeParle,

Administrator, Health Care Financing

Administration.

Dated: December 11, 1997.

Donna E. Shalala,

Secretary.

[FR Doc. 98–10591 Filed 4–22–98; 8:45 am]

BILLING CODE 4120–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 15 and 73

[ET Docket 97–206; FCC 98–36]

Technical Requirements To Enable

Blocking of Video Programming Based

on Program Ratings

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: By this Report and Order

(‘‘R&O’’), the Commission is amending

the rules to require that television

receivers with picture screens 33 cm (13

inches) or greater be equipped with

technological features to allow parents

to block the display of violent, sexual,

or other programming they believe is

harmful to their children. These features

are commonly referred to as ‘‘v-chip’’

technology. This action is in response to

the Parental Choice in Television

Programming requirements. These rules

are intended to give parents the ability

to block video programming that they

do not want their children to watch.

DATES: This regulation is effective May

26, 1998. The incorporation by reference

of certain publications listed in the rule

is approved by the Director of the Office

of the Federal Register as of May 26,

1998.

FOR FURTHER INFORMATION CONTACT: Neal

McNeil, Office of Engineering and

Technology, (202) 418–2408, TTY (202)

418–2989.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, ET Docket 97–206, FCC 98–

36, adopted March 12, 1998 and

released March 13, 1998. The full text

of this decision is available for

inspection and copying during regular

business hours in the FCC Reference

Center, Room 239, 1919 M Street, NW,

Washington, DC. The complete text of

this decision also may be purchased

from the Commission’s duplication

contractor, International Transcription

Service, Inc., (202) 857–3800, 1231 20th

Street, NW, Washington, DC 20036.

Summary of the Report and Order

1. In section 551(a)(9) of the

Telecommunications Act of 1996 (‘‘1996

Act’’), Congress determined that parents

should be provided ‘‘with timely

information about the nature of

upcoming video programming and with

the technological tools that allow them

easily to block violent, sexual, or other

programming that they believe harmful

to their children * * *.’’ Section 551(c)

directs the Commission to adopt rules

requiring that any ‘‘apparatus designed

to receive television signals that are

shipped in interstate commerce or

manufactured in the United States and

that have a picture screen 13 inches or

greater in size (measured diagonally)

* * * be equipped with a feature

designed to enable viewers to block

display of all programs with a common

rating * * *.’’ Section 551(d) states that

the Commission must ‘‘require that all

such apparatus be able to receive the

rating signals which have been

transmitted by way of line 21 of the

vertical blanking interval * * *.’’ That

provision also instructs the Commission

to oversee ‘‘the adoption of standards by

industry for blocking technology,’’ and

to ensure that blocking capability

continues to be available to consumers

as technology advances.

2. The Notice of Proposed Rule

Making (‘‘Notice’’) in this proceeding,

62 FR 52677, October 9, 1997, began the

process of fulfilling the requirements of

section 551. In the Notice the

Commission proposed to rely on

industry standard EIA–608 to provide

the methodology for television receivers

to decode rating information transmitted

on line 21 of the vertical blanking

interval (‘‘VBI’’). A total of 26 parties

filed comments, and 13 parties filed

replies to comments in response to the

Notice.

3. Comments received in response to

the Notice were uniform in support of

the Commission’s proposal to adopt

EIA–608 and EIA–744 as the

transmission standards for program

rating information. No commenters

suggested other transmission standards

that the Commission should consider.

The Commission continues to believe

that EIA–608 provides an appropriate

means of transmitting program rating

information on line 21. Therefore, the

Commission is amending its rules to

require that all television receivers with

picture screens 33 cm (13 inches) or

larger, measured diagonally, shipped in

interstate commerce or manufactured in

the United States, receive program

ratings transmitted pursuant to industry

standards EIA–608 and EIA–744 and

block both the video and the associated

audio on the main and second audio

program (SAP) channels, based on a

rating level specified by the user of the

television receiver. By adopting EIA–

608 and EIA–744 we are fulfilling our

mandate under section 551(d) to oversee

the adoption of standards by industry

for blocking technology. The

Commission is incorporating EIA–608

and EIA–744 into its rules by reference.

To incorporate EIA–608–B by reference

we will publish notice of the change in

the Federal Register and amend the

CFR.

4. The Commission is requiring that

television manufacturers include

blocking technology on at least half of

their new product models with a picture

screen 33 cm (13 inches) or greater in

size by July 1, 1999. The remainder of

the models would be required to contain

blocking technology by January 1, 2000.

Final Regulatory Flexibility Analysis

5. As required by the Regulatory

Flexibility Act (‘‘RFA’’),1 an Initial

Regulatory Flexibility Analysis

(‘‘IRFA’’) was incorporated in the

‘‘Notice of Proposed Rule Making