Impact on Medicare Compliance as CMS Begins Covering Acupuncture


On January 21, 2020, the Centers for Medicare & Medicaid Services (CMS) announced via a Decision Memo that, for the first time beyond clinical trials, it will begin covering acupuncture under certain circumstances. CMS’s coverage for acupuncture will be limited to the treatment of chronic lower back pain (cLBP). For purposes of coverage, cLBP is defined in the memo as: lasting 12 weeks or longer, having no identifiable systemic cause, and not associated with surgery or pregnancy. All forms of acupuncture for any other conditions will not be covered by Medicare.  

Medicare coverage for acupuncture will be effective for services rendered on or after January 21, 2020. Up to 12 visits in 90 days will be covered and an additional 8 sessions are permitted for patients showing an improvement. However, no more than 20 treatments will be allowed annually, and acupuncture must cease if improvement doesn’t occur. Moreover, in ordered to be covered, practitioners providing acupuncture treatment must hold pertinent licensure and qualifications as outlined in the memo.   

Impact on Medicare Compliance

Medicare Set Asides

A Medicare Set Aside (MSA), most prevalent in workers’ compensation claims, allocates a portion of a settlement towards “future” or post-settlement injury-related medical expenses otherwise covered by Medicare. Acupuncture, prior to these new guidelines, wasn’t allocated in an MSA as a Medicare-covered service. Given the prevalence of occupational low back pain and due to alternative modalities utilized to treat the condition, it is only a matter of time before acupuncture is seen in MSAs.

Administration / Professional Administration

For those individuals with an MSA, either administering it themselves or if its professionally administered, acupuncture will now be a service which can be paid for from the MSA account. Coverage for acupuncture may also benefit individuals with a pre-existing MSA that didn’t originally include acupuncture. If Medicare coverage guidelines are followed, and so long as the acupuncture is medically necessary and cLBP is related to the underlying claim for which the MSA is associated, acupuncture will likely be reimbursable from the account.

Conditional Payments

Conditional payments are those payments made by Medicare related to treatment for which a primary payer (insurance carrier or self-insured) is responsible. These payments are made on the condition Medicare will be reimbursed if there is responsibility demonstrated under Medicare Secondary Payer (MSP) provisions. This responsibility is typically established by a primary payer’s assumption of ongoing responsibility for medicals (ORM) or if there is a settlement, judgment, award or other payment made. See 42 CFR 411.24(b); and 42 USC 1395y(b)(2)(B)(ii). If Medicare provides reimbursement for acupuncture treatment related to a claim for which a primary payer is responsible, then Medicare can seek recovery. For example, if a Medicare beneficiary has a workers’ compensation claim for cLBP and they receive acupuncture services paid for by Medicare, for which the carrier should have been responsible, then Medicare may demand repayment.

With different treatment options being increasingly considered for chronic pain, in light of the opioid crisis, it will be of interest to see if Medicare covers other services such as chiropractic care (beyond subluxation) or massage therapy.

By Shawn Deane 

Shawn Deane is General Counsel and leads the legal team at Ametros. He has over a decade of experience practicing law and in Medicare Secondary Payer (MSP) compliance as an industry thought leader. He was previously Vice President of Medicare Compliance & Policy at ISO Claims Partners. Prior to that he practiced insurance defense litigation and healthcare law.   

He has been heavily involved with the National Alliance of Medicare Set Aside Professionals (NAMSAP), having served as chair of the webinar and education committees, on the Board of Directors, and was past President in 2017. He was also former executive committee member with the Medicare Advocacy Recovery Coalition (MARC). Shawn is faculty for the Certified Medicare Secondary Payer Professional Program (CMSP).

Shawn is a member of the Massachusetts Bar and is licensed in both state and federal courts in Massachusetts. His law degree is from the Massachusetts School of Law. He also holds a master’s in education from Cambridge College and undergraduate degree from Berklee College of Music. He resides north of Boston with his family and strives to live by the following: “Be Kind. Do Right. Serve Others. Work Hard. Have Fun.”

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