The 2009 Physician Fee Schedule: Final Rule with Comment Period from the Centers for Medicare and Medicaid Services (CMS) is currently on display in advance of its publication in the November 19, 2008, edition of the Federal Register. The rule includes regulatory language relating to billing for the provision of CPAP equipment and the valuing for actigraphy.

Polysomnography and CPAP Billing

CMS makes the following statements in the preamble to the proposal:

We believe that Medicare beneficiaries and the Medicare program are vulnerable if the provider of a diagnostic test has a financial interest in the outcome of the test itself. This creates incentive to test more frequently or less frequently than is medically necessary and to interpret a test result with a bias that favors self-interest. In the specific context of this rule, we believe that the provider of a sleep test has self-interest in the result of that test if that provider is affiliated with the supplier of the CPAP device that would be covered by the Medicare program.

We are concerned that the provider of a sleep test will have a bias to interpret an inconclusive sleep test as positive if that provider has a financial interest in the payment for the CPAP device that would be used to treat the beneficiary. We believe that this represents a vulnerability to the Medicare program. We believe that we have sufficient reason to believe that OSA and CPAP are more amenable to fraud and abuse than some other items and services.

Our administrative contractors informed us that they have not historically found these integrated sleep management programs furnishing attended facility-based PSG to be a significant vulnerability. We cannot at this time confidently exclude the possibility that disrupting this model of care might be harmful to some patients.

We agree that an entity that has been accredited by a recognized sleep therapy accrediting body would likely have protections in place that would minimize the potential fraud and abuse concerns we addressed above. We believe that the scope of such accreditation programs should be broad enough to include OSA diagnosis and the supply of CPAP treatment under a unified certificate.

The Regulatory language on polysomnography and CPAP billing reads as follows:

42 CFR Ch. IV 424.57(f) Payment prohibition. No Medicare payment will be made to the supplier of a CPAP device if that supplier, or its affiliate, is directly or indirectly the provider of the sleep test used to diagnose the beneficiary with obstructive sleep apnea. This prohibition does not apply if the sleep test is an attended facility-based polysomnogram.

42 CFR Ch. IV 424.57(a) Attended facility-based polysomnogram means a comprehensive diagnostic sleep test including at least electroencephalography, electro-oculography, electromyography, heart rate or electrocardiography, airflow, breathing effort, and arterial oxygen saturation furnished in a sleep laboratory facility in which a technologist supervises the recording during sleep time and has the ability to intervene if needed.


CPT code 95803, Actigraphy, testing, recording, analysis, interpretation and report (minimum of 72 hours to 14 consecutive days of recording), requires the patient to wear a home monitor for 24 hours a day for 3 to 14 days. The RUC PE recommendations did not include the typical number of days the home monitor would be in use. They also did not include the necessary equipment used to analyze the data. Therefore, we seek comment on the typical number of days for this service. We will continue to contractor price this service for 2009.