Proposed Federal Legislation Will Provide Relief to Hospitals and Medicare Patients in Need of Post-Acute Care
The Center for Medicare and Medicaid (CMS) announced that the new RAC contracts in North Carolina should be ready by the end of the year. This means that, next year, RAC audits on hospitals and other providers will significantly increase in number. Get prepared, providers!!
However, there is proposed federal legislation that could protect hospitals and Medicare patients if passed.
Hypothetical: You present yourself to a hospital. The hospital keeps you in observation for 1 day. You are then formally admitted to the hospital as an inpatient for 2 more days. Under Medicare rules, will Medicare now cover your post-acute care in a skilled nursing facility (SNF)?
Answer: No. Observation days in hospitals do not count toward the Medicare 3-day requirement.
On November 19, 2014, Congressman Kevin Brady introduced draft legislation that would allow hospital observation stays to count toward establishing Medicare eligibility for post-acute services, as well as improve and supervise the RAC program.
You are probably wondering…Why would a hospital keep me in observation for a full day without admitting me as an inpatient when hospitals are reimbursed at a significantly higher rate for inpatient versus outpatient?
Answer: To avoid RAC recoupments.
In recent years, recovery audit contractors (RACs) have been exceedingly aggressive in post payment review audits in challenging hospital claims for short, inpatient stays. The RACs are motivated by money, and all of the RACs are compensated on a contingency basis, which leads to overzealous, sometimes, inaccurate audits. Here in North Carolina, Public Consulting Group (PCG) retains 11.5% of collected audits, and Health Management Systems (HMS) retains 9.75%. See my blog: “NC Medicaid Extrapolation Audits: How Does $100 Become $100,000? Check for Clusters!”
Why have RACs targeted short-stay admissions in hospitals? As mentioned, one-day inpatient stays are paid significantly more than similar outpatient stays. Because of the financial incentives, RACs often focus audits on whether the short-stay is appropriate because this focus will yield a larger overpayment. As a result, hospitals become hesitant to admit patients as an “inpatient” status and, instead, keep the patient in outpatient observation for longer periods of time.
Keeping a person in observation status rather than admitting the person could impact the person’s health and well-being, but it will also impact whether a Medicare patient can receive post-acute care in a SNF (or, rather, whether Medicare will pay for it).
In order for a Medicare patient to receive covered, skilled nursing care after a hospital stay, Medicare requires a 3-day inpatient stay. With the onslaught of RAC audits, hospitals become leery to admit a person as an inpatient. When hospitals are tentative about admitting people, it can adversely affect a person’s post-acute care services.
To give you an idea of how overzealous these RACs are when it comes to auditing Medicare providers, there are over 800,000 pending Medicare appeals. That means that, across the country, RACs and other auditing companies have determined that over 800,000 providers and hospitals that accept Medicare were improperly overpaid for services rendered due to billing errors, etc. Over 800,000 providers and hospitals disagree with the audit results and are appealing. Now, obviously, all 800,000 appeals are hospitals appealing audits findings short-stay admissions not meeting criteria, but enough of them exist to warrant Congressman Brady’s proposed bill.
The proposed bill will significantly impact RAC audits of short-stay admissions in hospitals. But the proposed bill will also extend the current short moratorium on RAC audits on short-stay admissions in hospitals. Basically, the RACs became so overzealous and the Medicare appeals backlog became so large that Congress placed a short moratorium on RACs auditing short-stay admissions under the two-midnight rule through the end of March 2015. The proposed bill will lengthen the moratorium just in time for NC’s new RACs to begin additional hospital audits.
The moral of the story is…you get too greedy, you get nothing…
Remember “The Goose That Laid the Golden Eggs?”
A man and his wife owned a very special goose. Every day the goose would lay a golden egg, which made the couple very rich. “Just think,” said the man’s wife, “If we could have all the golden eggs that are inside the goose, we could be richer much faster.” “You’re right,” said her husband, “We wouldn’t have to wait for the goose to lay her egg every day.” So, the couple killed the goose and cut her open, only to find that she was just like every other goose. She had no golden eggs inside of her at all, and they had no more golden eggs.
Too much greed results in nothing.
Similar to the husband and wife who killed the goose who laid the golden eggs, overzealous and inaccurate audits cause Congress to propose a temporary moratorium on RACs conducting audits on short-term hospital stays until the reimbursement rates are implemented within the same proposed bill (which, in essence will lengthen the moratorium until the rates within the bill are implemented, which also includes additional methods to settle RAC disputes).
The proposed bill, entitled, “The Hospitals Improvements for Payment Act of 2014,” (HIP) would revamp the way in which short hospital stays are reimbursed and how observation days are counted toward Medicare’s 3-day rule for post-acute care; thereby alleviating these painful hospital audits for short inpatient stays. Remember my blog: “Medicare Appeals to OMHA Reaches 15,000 Per Week, Yet Decisions Take Years; Hospital Association Sues Over Medicare Backlog.”
HIP would create a new payment model called the Hospital Prospective Payment System (HPPS) that would apply to short-term hospital stays.
What is a “short stay?” According to the proposed bill, a short stay is a: (1) stay that is less than 3 days; (2) stay that has a national average length of stay less than 3 days; or (3) stay that is “among the most highly ranked discharges that have been denied for reasons of medical necessity.”
Proposed HIP would also require the Department of Health and Human Services (HHS) to establish a new base rate of payment, which will be calculated by blending the base operating rate for short stays and an equivalent base operating rate for overnight hospital outpatient services.
The draft bill would also repeal the 0.2 percent ($200 million per year) reduction that CMS implemented with the two-midnight rule, which is the standard that presumes hospital stays are reasonable if the stay covers two midnights.
The proposed bill also mandates more government supervision as to the RACs.
This proposed bill comes on the cusp of an increased amount of RAC audits in NC on hospitals. As previously discussed, our new RAC contracts will be awarded before the end of this year. So our new RACs will come in with the new year…
The moral of the story?
Expect hospital RAC audits to increase dramatically in the next year, unless this bill is passed.
Extrapolated audits are no fun, unless you work for a recovery audit contractor (RAC). You get a Tentative Notice of Overpayment (TNO) that says the auditor reviewed 100 dates of service (DOS), found an overpayment of $1,000, so you owe $1 million dollars. Oh, and please pay within 30 days or interest will accrue…
North Carolina’s 2nd recovery audit contractor (RAC) is ramping up. HMS had a slower start than Public Consulting Group (PCG); the Division of Medical Assistance originally announced that HMS would be conducting post-payment reviews last October 2012 in its Medicaid Bulletin. NC’s 1st RAC, PCG came charging out the gate. HMS has been a bit slower, but HMS is active now.
HMS is performing post-pay audits on inpatient and outpatient hospital claims, laboratory, specialized outpatient therapy, x-ray and long-term care claims reviews.
According to the December 2013 Medicaid Bulletin, the findings for the first group of automated lab reviews were released in early November 2013. Additional lab reviews are expected to be completed and findings released by late December 2013. The post-payment reviews are targeting excessive drug screening.
And specialized therapy service providers, you are next on the list!
How will the providers know the results of an HMS post-payment review? Same way as with PCG. You will receive a Tentative Notice of Overpayment (TNO) in the mail with some crazy, huge extrapolated amount that you supposedly owe back to the state.
If you receive a TNO, do not panic (too much), take a deep breath and read my blog: “You Received a Tentative Notice of Overpayment, Now What?”
Remember, most of the post-payment reviews that I have seen have numerous auditing mistakes on the part of the auditor, such as the auditor applying the more recent clinical coverage policies rather than the clinical coverage policy that was applicable to dates of services audited.
DMA Clinical Policy 1S-4 “Cytogenetic Studies“, for example, was recently revised February 1, 2013. Obviously, an auditor should not apply the February 1, 2013, policy to a service provided in 2012…but you would not believe how often that happens!
So what can you do to be prepared? Well, realistically, you cannot be prepared for audit ineptness.
But you can be proactive. Contact your insurance policy to determine whether your liability insurance covers attorneys’ fees for regulatory audits. It is important to be proactive and determine whether your insurance company will cover attorneys’ fees prior to undergoing an audit. Because if you find out that your liability insurance does not cover attorneys’ fees, then you can upgrade your insurance to cover attorneys’ fees. I promise, it is way better to pay additional premiums than get hit with $25,000+ bill of attorneys’ fees. Plus, if you wait until you are audited to determine whether your liability insurance covers attorneys’ fees and you realize it does not, then the insurance company may not allow you to upgrade your insurance. The audit may be considered a pre-existing condition.
So…proactiveness is imperative. But you can always move to West Virginia…
In a survey of 18 states conducted by the National Conference of State Legislatures (NCSL) and published August 29, 2013, NCSL determined that 10 states use extrapolations with the RAC audits, 7 do not and 1 intends to use extrapolations in the future. (No idea why NCSL did not survey all 50 states).
Delaware, Maryland, New Hampshire, Pennsylvania, Vermont, West Virginia, and Wisconsin do not use extrapolations in Medicaid RAC audits.
So moving to West Virginia is an option too…
Normally I am “silver lining” type of person. You know…the whole, “The sun will come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun,” mentality…
But when it comes to North Carolina Medicaid audits conducted by Public Consulting Group (PCG) or HMS, I have failed to find the silver linings. You, as a health care provider, receive a Tentative Notice of Overpayment (TNO) for $1 million and go through various stages of acceptance: surprise, horror, anger, befuddlement, and fear. In order to defend yourself, you have to shell out tens of thousands of dollars for an attorney (hopefully one that understands Medicaid audits). Then spend countless hours compiling all the documents for the attorney to review and use at the reconsideration review. Then take off a day to attend the reconsideration review, losing even more clinical hours, only to disagree with the Department of Health and Human Services (DHHS) Hearing Officer’s decision. Spend more money in legal fees to appeal the DHHS decision to the Office of Administrative Hearings (OAH). Possibly hire an extrapolation expert at even more expense. Only to prove, finally, that the PCG and/or HMS audit was erroneous and you owe nothing. Or $100. Or $1000.
Where is the silver lining in that process?
That you owe nothing in the end? But you paid exhorbent amounts to the attorney.
Well, there could be a silver lining… (maybe even two)…
Recently, the IRS released a couple private letter rulings as to whether paid overpayments could be tax-deductible.
OK, what the heck is a private letter ruling?
According to Wikipedia, private letter rulings “(PLRs), in the United States, are written decisions by the Internal Revenue Service (IRS) in response to taxpayer requests for guidance. A private letter ruling binds only the IRS and the requesting taxpayer. Thus, a private ruling may not be cited or relied upon as precedent.”
The most important part of the above-referenced definition of a PLR is that the PLR is binding only on the IRS and the requesting taxpayer. Obviously, this means that if the IRS wrote 2500 PLRs saying that paid overpayments in Medicaid audits are tax-deductible, those 2500 PLRs are not binding as to you (unless you were one of the 2500 taxpayers asking for a PLR).
Regardless, PLRs are demonstrative as to how the IRS determines [whatever is determines in the PLR]. Because, despite the fact that PLRs are not binding on all taxpayers, I would find it odd if the IRS issued 2500 PLRs stating that the paid overpayments are tax-deductible, then the IRS turn around and refuse to allow you to treat the overpayment as a tax deduction. Although, I am sure stranger things have happened.
In the first PLR, which, BTW, is not fun to read. Who uses all this legalese??? Taxpayer B asks whether (1) the money he paid to the insurance company could be deducted as a loss incurred in a trade or business; and (2) the money paid to a Government Entity E and Government Entity F in the tax years in which the installment payments are made under the settlement agreement can be deducted. (I made Taxpayer B a male because the PLR makes him a male. I have no idea as to the gender of Taxpayer B).
In Year 1, the Insurance Company sued … Taxpayer B for insurance fraud, demanding both compensatory and punitive damages. In the second year, the state of New Jersey indicted Taxpayer B… for insurance fraud. Taxpayer B agreed to pay $X in restitution to Government Entity E and Government Entity F.
Taxpayer B has represented (a) that he previously included in his gross income in prior tax years the amounts he now seeks to deduct and (b) that he and all other defendants in [both] lawsuits are jointly and severally liable for the amounts due under the settlement agreement because the language of the settlement agreement imposes joint liability upon the defendants and New Jersey law imposes joint and several liability upon members of a limited liability company.
So…can Taxpayer B deduct the money paid to the insurance company and the government as a business loss????
Or, in other words, could you (a health care provider who accepts Medicaid) deduct any money paid to PCG or HMS arising our of a regulatory audit as a business loss?
According to the PLR:
We conclude that Taxpayer B may deduct the payments he made to the Insurance Company and to Government Entity E and Government Entity F in the years the payments were made or will be made, provided that he received or will receive no contribution from any other party and included the amounts he paid or will pay in his gross income in prior tax years.
The second PLR is basically identical to the first, except that Taxpayer A is at issue. For the PLR, click here.
So what does this mean? Why should North Carolina Medicaid providers care that 2 taxpayers were able to deduct the monies paid to the government/insurance companies as a business loss?
Because, these PLRs are demonstrative that, perhaps, the IRS would view regulatory audit paybacks to PCG or HMS as an allowable tax deduction as a business loss.
So, you receive a TNO in the amount of $1 million. You spend $20,000 litigating the $1 million to $1000. I know, it sucks, right?? (Not that the amount was decreased by $999,000, but that it cost $20,000 to reduce the amount $999,000).
The silver lining? Maybe you can deduct the $1000 paid as a business loss.
But what about the $20,000 attorneys’ fees???
Let me preface this with:
I am no tax expert. I know Medicaid, not tax. If you want real tax advice, go to a real tax attorney. But, I did find…Publication 529, which states the following:
You can usually deduct legal expenses that you incur in attempting to produce or collect taxable income or that you pay in connection with the determination, collection, or refund of any tax.
You can also deduct legal expenses that are:
- Related to either doing or keeping your job, such as those you paid to defend yourself against criminal charges arising out of your trade or business,
- For tax advice related to a divorce if the bill specifies how much is for tax advice and it is determined in a reasonable way, or
- To collect taxable alimony.
A definitive answer?
But…a possible two silver linings! The sun will come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun!!!!
This blog pertains to all Medicaid providers regardless the state and regardless the Medicaid service provided.
Heard of the “Way Back Machine?” Perhaps, you should have!!!
You are a Medicaid provider, and you get a Tentative Notice of Overpayment (TNO) based on a Medicaid post-payment review by Public Consulting Group (PCG) or HMS in the extrapolated amount of $800,000 based on a sample size of 100 dates of service (DOS) and multiplied out to some extrapolation universe. You look at the extrapolation data and determine tha you were not even paid $800,000 during the time frame PCG determined was the universe. Or you say…What???…My documents complied with policy!
What do you do?
Sound like a horrible SAT question? Or sound like reality?
Hopefully you answered the former, but if you answered the latter, read on…
You’ve read my blogs before and understand the importance of appealing PCG or HMS’ extrapolated audit. But you do not have the financial means to hire an attorney. Or you honestly believe that if the Department of Health and Human Services (DHHS) reviewed your documents that its employees would also agree that PCG or HMS was wrong. Or you, personally, want to self-audit to determine the veracity of the audit. Or for whatever reason, you want to know whether PCG or HMS was correct for your own well-being.
How do you self-audit….the audit?
This may be one of the best “tips” I have given… (sorry for tooting my own horn, but, seriously, this blog can be helpful! I had a client that pointed out he/she had no idea about this “tip.”)
PCG and HMS conduct post-payment reviews. This means that PCG and HMS are looking at 1-2-3-year-old medical records.
Think about how quickly Medicaid changes. Now think about the number of times in which the DMA Clinical Policy applicable to your practice has been revised in the last few years.
When I say DMA Clinical Policy, I mean, if you provide Outpatient Behavioral Therapy, Policy 8C is applicable. If you provide dental services to Medicaid recipients, then Policy 4A is applicable. If you provide durable medical equipment (DME) to Medicaid providers, then Policy 5A is applicable. For a full list of the NC Medicaid policies, please click here.
The DMA Clinical Policies change significantly throughout the years. For example, DMA Clinical Policy 8A, revised January 1, 2009, allowed Community Support for adults and children. Yet Policy 8A, revised August 1, 2013, does not even allow Community Support (obviously Community Support was disallowed prior to August 2, 2013, but I am making a point). Also, now we have 16 unmanaged outpatient behavioral therapy visits for children, whereas a couple of years ago we had 26 unmanaged visits.
The point is that when PCG or HMS audits your particular service, the auditors are not always experts in your particular service, nor experts in your particular service’s Clinical Coverage Policy. See my blog on Dental Audits Gone Awry. In this blog I show the required (or lack thereof) education/experience to become a PCG auditor.
Therefore, it is imperative that you have access to the applicable Clinical Coverage Policy applicable for the DOS audited.
But, if you google 2009 clinical policy for NC Medicaid dental services, you can’t find it.
So how are you supposed to get access to these old policies that are being used (or mistakenly NOT being used) in Medicaid audits for the older DOS?
It is called: The Way Back Machine.
I know, cheesy! But I did not name it.
The “Way Back Machine” website looks like this:
The beauty of the “Way Back Machine” is that you can go to any current website. Copy the internet address. Paste that internet address into the “Way Back Machine” where you see “Way Back Machine” and a white box appears in which to type the website address. Type in the address, and hit the button “Take Me Back.” VOILA…time travel!!!!
Small Tip: I have found that if I use the internet address for the specific policy for which I am researching, I am less successful than if I use the general DMA Policy address found here. Once you get to the appropriate year on DMA’s general policy website, you can click on the specific policy in which you are interested.
Using the “Way Back Machine,” you can go to the DMA Clinical Policy (for whatever Medicaid service) applicable years ago.
You should never need to go more than 3 years back, as Recovery Audit Contractors (RACs) without permission by DHHS, cannot audit DOS more than three years ago.
But, you need to review the Clinical Policy for [fill-in-the-blank] Medicaid service 2 years ago? No problem! Use the “Way Back Machine” and travel back in time.
Wouldn’t it be great if we could travel back in time “for real?” Prior to RACS…prior to PCG…prior to HMS….? We need a “Way Back Machine” for Medicaid providers (and me) “for real!”
It is wise to worry about tomorrow today. -Aesop’s Fables, “The Ant and the Grasshopper”
CMS has announced that it will add a 5th Medicare RAC to focus on home health and durable medical equipment (DME). Obviously, with the aid of a 5th RAC, the other RACs will have more free time to focus on other health care providers.
So what does a 5th RAC for Medicare mean for Medicaid in North Carolina. First, many providers that accept Medicare also accept Medicaid. The two programs do have some commonality. Also, NC started out with one RAC. As the federal government increased the number of RACs, NC has slowly increased the number of RACs. We started with Public Consulting Group (PCG) in January 2012 and added HMS October 2012. Then, of course, we have The Carolina Centers for Medical Excellence (CCME), approved through an RFP, performing “Quality Improvement Strategy functions” on the behalf of DMA.
Expected Future for NC Medicaid Providers? More and more and more and more audits.
Remember the ant in the “Ant and the Grasshopper?” If not, here is the fable.
Quick Synopsis: All summer long the grasshopper played while the ant dutifully collected food for the winter, while the grasshopper made fun of him. Once winter came, the grasshopper had no food, and the ants says, “You should have thought of winter then!”
So, providers, be the ant!