On September 20, 2018, CMS released a new proposed rule in an effort to reduce the regulatory burden on health care providers. Now we have all heard CMS’ attempts to increase transparency and decrease burden on and for providers. But, usually, it ends up being all talk and no walk. So, I decided to investigate exactly how CMS new proposal purports to make a difference.
The proposals fall under three categories: (1) Proposals that simplify and streamline processes; (2) proposals that reduce the frequency of activities and revise timelines; and (3) proposals that are obsolete, duplicative, or that contain unnecessary requirements.
CMS projects savings of nearly $5.2 billion and a reduction of 53 million hours through 2021. That results in saving 6,000 years of burden hours over the next three years.
- Proposals that simplify and streamline processes
Ambulatory surgery centers (ASCs)
ASCs and hospitals have long competed for business. This competition has, at times, led to hospitals providing outpatient surgical services refusing to sign written transfer agreements or to grant admitting privileges to physicians performing surgery in an ACS. CMS’ proposed rule is aimed at making is easier for ACSs to receive and admit patients. Currently, as a condition for coverage an ASC must – (i) Have a written transfer agreement with a hospital that meets the requirements of paragraph (b)(2) of this section; or (ii) Ensure that all physicians performing surgery in the ASC have admitting privileges at a hospital that meets the requirements of paragraph (b)(2) of this section. CMS proposes to remove the above-mentioned requirements.
Furthermore, now, for every patient admitted and/or pre-surgically assessed at an ACS, the ACS must ensure that each patient has a comprehensive medical history and physical assessment not more than 30-days before the date of the scheduled surgery, that, upon admission, each patient undergoes a pre-surgical assessment competed by a physician, and that each patient’s medical history and physical assessment be placed in the patient’s medical record prior to the surgical procedure. Instead, CMS proposes to defer to each individual ASC’s policy and operating physician’s clinical judgment. CMS will still require the documentation of any pre-existing condition and that the documentation including any allergies, medical history, and physical examination be placed in the patient’s file pre-surgery. But, without question, these two proposed rules will lighten the burden on ACSs and its relationships with hospitals.
Expect a heavy dose of comments to be from hospitals. I think that CMS’ thought process behind this is that it costs substantially less to perform surgeries in an ASC rather than a hospital. But I question whether CMS has studied outcome results – I have no empirical evidence; I only question.
The federal regulations presently require that hospice staff include an individual with specialty knowledge of hospice medications. The proposed rule eliminates this requirement. I believe that this proposal arose from complaints of high payroll. This proposed change could cut payrolls significantly because salaries can be reduced without specialty knowledge.
In addition, the proposed rule replaces the requirement that hospices provide a copy of medication policies and procedures to patients, families and caregivers with a requirement that hospices provide information regarding the use, storage, and disposal of controlled drugs to the patient or patient representative, and family. This information would be provided in a more user-friendly manner, as determined by each hospice.
CMS’ new proposed rule allows a hospital that is part of a hospital system consisting of multiple separately certified hospitals to elect to have a unified and integrated Quality Assessment and Performance Improvement (QAPI) program for all of its member hospital. The system governing body will be responsible and accountable for ensuring that each of its separately certified hospitals meets all of the requirements of this section.
There is fine print that you will need to review: Each separately certified hospital within the system would have to demonstrate that: the unified and integrated QAPI program was established in a manner that takes into account each member hospital’s unique circumstances and any significant differences in patient populations and services offered in each hospital; and the unified and integrated QAPI program would establish and implement policies and procedures to ensure that the needs and concerns of each of its separately certified hospitals, regardless of practice or location, were given due consideration, and that the unified and integrated QAPI program would have mechanisms in place to ensure that issues localized to particular hospitals were duly considered and addressed.
Again, I believe that this proposed change is all about saving money.
- Proposals that reduce the frequency of activities and revise timelines
We propose to remove the requirement that Home Health Agencies (HHAs) provide a copy of the clinical record to a patient, upon request, by the next home visit. We propose to retain the requirement that the copy of the clinical record must be provided, upon request, within 4 business days.
Sometimes a patient’s record is voluminous. With the new age of EHR, hard copies are not so easily accessible.
Critical Access Hospitals
CMS’ proposed rule will change the requirement at § 485.635(a)(4) to reflect the current medical practice where providers are expected to update their policies and procedures as needed in response to regulatory changes, changes in the standard of care, or nationally recognized guidelines. The current rule requires a CAH’s professional personnel to review its policies at least annually and the CAH to review as necessary. The proposal is to reduce burden and provide flexibility by requiring the CAH’s, professional personnel, at a minimum, to conduct a biennial review of its policies and procedures instead of an annual review.
Instead of reviewing emergency preparedness plans annually, CMS proposes to revise these requirements, so that applicable providers and suppliers have increased flexibility with compliance.
- Proposals that are obsolete, duplicative, or that contain unnecessary requirements
Hospitals and CAH Swing-Bed Requirements
CMS’ proposed rule removes the cross reference in the regulations for hospital swing-bed providers and for CAH swing-bed providers. The cross-reference gives a resident the right to choose to, or refuse to, perform services for the facility if they so choose. If the resident works, the facility must document it in the resident’s plan of care, noting whether the services are voluntary or paid, and, if paid, providing wages for the work being performed, at prevailing rates.
The new proposal also removes requirement that facilities with more than 120 beds to employ a social worker on full-time basis and in obtaining routine and 24-hour emergency dental care.
The comment period for this proposed rule ends on November 19, 2018. You can go to the Federal Register to make a formal comment.
Comments may be submitted electronically through the e-Regulation website https://www.cms.gov/Regulations-and-Guidance/Regulations-and-Policies/eRulemaking/index.html?redirect=/eRulemaking.
Happy New Year, readers!!! A whole new year means a whole new investigation plan for the government…
The Department of Health and Human Services (HHS) Office of Inspector General (OIG) publishes what is called a “Work Plan” every year, usually around November of each year. 2017 was no different. These Work Plans offer rare insight into the upcoming plans of Medicare investigations, which is important to all health care providers who accept Medicare and Medicaid.
For those of you who do not know, OIG is an agency of the federal government that is charged with protecting the integrity of HHS, basically, investigating Medicare and Medicaid fraud, waste, and abuse.
So let me look into my crystal ball and let you know which health care professionals may be audited by the federal government…
The 2017 Work Plan contains a multitude of new and revised topics related to durable medical equipment (DME), hospitals, nursing homes, hospice, laboratories.
For providers who accept Medicare Parts A and B, the following are areas of interest for 2017:
- Hyperbaric oxygen therapy services: provider reimbursement
- Inpatient psychiatric facilities: outlier payments
- Skilled nursing facilities: reimbursements
- Inpatient rehabilitation hospital patients not suited for intensive therapy
- Skilled nursing facilities: adverse event planning
- Skilled nursing facilities: unreported incidents of abuse and neglect
- Hospice: Medicare compliance
- DME at nursing facilities
- Hospice home care: frequency of on-site nurse visits to assess quality of care and services
- Clinical Diagnostic Laboratories: Medicare payments
- Chronic pain management: Medicare payments
- Ambulance services: Compliance with Medicare
For providers who accept Medicare Parts C and D, the following are areas of interest for 2017:
- Medicare Part C payments for individuals after the date of death
- Denied care in Medicare Advantage
- Compounded topical drugs: questionable billing
- Rebates related to drugs dispensed by 340B pharmacies
For providers who accept Medicaid, the following are areas of interest for 2017:
- States’ MCO Medicaid drug claims
- Personal Care Services: compliance with Medicaid
- Medicaid managed care organizations (MCO): compliance with hold harmless requirement
- Hospice: compliance with Medicaid
- Medicaid overpayment reporting and collections: all providers
- Medicaid-only provider types: states’ risk assignments
- Accountable care
Caveat: The above-referenced areas of interest represent the published list. Do not think that if your service type is not included on the list that you are safe from government audits. If we have learned nothing else over the past years, we do know that the government can audit anyone anytime.
If you are audited, contact an attorney as soon as you receive notice of the audit. Because regardless the outcome of an audit – you have appeal rights!!! And remember, government auditors are more wrong than right (in my experience).
Personal Care Services: Will the Fear of the “F” Word (Medicaid Fraud) Cause PCS in the Home to Be Eradicated???
In my career, I call it the “F” word:
Its existence and fear of existence drives Medicare and Medicaid policies.
It is without question that Medicare and Medicaid fraud needs to be eliminated. In fact, for true Medicare and Medicaid fraud, I propose harsher penalties. Think about what the fraudulent provider is doing…taking health care dollars from the elderly and poor without providing services. Medicare and Medicaid recipients receive less medically necessary services because of fraudulent providers.
Just recently, in Charlotte, on April 9, 2014, V.F. Brewton, of Shelby, N.C., was sentenced to 111 months in prison, three years of supervised release and ordered to pay $7,070,426 in restitution to Medicaid and $573,392 to IRS. On April 8, 2014, co-defendant, R. S. Cannon, of Charlotte, was sentenced to 102 months in prison, three years court supervised release and ordered to pay $2,541,306 in restitution. See press release. Ouch!
On November 21, 2013, in Miami, Fla., Roberto Marrero, who ran Trust Care, was sentenced 120 months in prison. From approximately March 2007 through at least October 2010, Trust Care submitted more than $20 million in claims for home health services. Medicare paid Trust Care more than $15 million for these fraudulent claims. Marrero and his co-conspirators have also acknowledged their involvement in similar fraudulent schemes at several other Miami health care agencies with estimated total losses of approximately $50 million. See article. Ouch!
However, there are never the stories in the newspapers and media about all the services actually rendered to Medicare and Medicaid recipients by upstanding providers who do not commit fraud, but, instead, work very hard every day to stay up-to-date on regulations and policies and who do not reap much profit for the services provided. I guess that doesn’t make good journalism.
I recently attended the Association for Home and Hospice Care (AHHC) conference in RTP, NC. I met wonderful and non-fraudulent providers. Each provider I met was passionate and compassionate about their job. The only time money was brought up was to discuss the low reimbursement rates and the low profit margin for these providers.
In fact, one of the speakers even opined that, because of the alleged prevalence of fraud in home health care, the federal and state governments will continue to cut reimbursement rates for home health and hospice until over 50% of the agencies operate at a loss by 2017. That is a dismal thought! What happened to our right to pursue a career without intervention?
One provider informed me that, upon his or her information and belief, there is a chance that PCS, which is an optional program under Medicaid, may be wiped out in the near future by the General Assembly (PCS for home health and assisted living facilities, not the recipients covered by the Waiver).
What are personal care services (PCS)?
In the world of Medicaid and Medicare, there are a number of different types of PCS. No, actually, I think it is more apropos to say there are a number of different PCS recipients in the world of Medicaid and Medicare.
First, the definition/eligibility requirements:
Personal Care Services (PCS) are available to individuals who have a medical condition, disability, or cognitive impairment and demonstrate unmet needs for, at a minimum three of the five qualifying activities of daily living (ADLs) with limited hands-on assistance; two ADLs, one of which requires extensive assistance; or two ADLs, one of which requires assistance at the full dependence level. The five qualifying ADLs are eating, dressing, bathing, toileting, and mobility. See DMA website.
PCS are provided to developmentally disabled people under the 1915 b/c Waivers, people who reside in nursing homes and long-term assisted living facilities, and people who qualify to receive PCS in their homes. For purposes of this blog, I am writing about the latter three types of recipients. All 50 states allow PCS for qualified individuals, but the qualifications differ among the states.
In this day and age, the “F” word drives Medicaid and Medicare policies. Without question Medicaid fraud exists. Whether Medicaid fraud is as prevalent as some may believe, I am not sure. I have certainly witnessed honest providers accused of Medicaid fraud.
And home health care providers are viewed by some, generally, as the providers who can most easily commit Medicaid fraud (with which I do not agree, but must concede that home health care is more difficult to monitor). For example, a home health care provider goes to a person’s home and provides services. Who would know whether the home health care provider was billing for services on days he or she did not go to the recipient’s house? Not the recipient, because the recipient has no idea for what dates the provider is billing. Unlike an assisted living facility or nursing home that is easier to monitor and would have the documentation to show that the recipient actually lived in the facility.
Because of the alleged prevalence of fraud in home health care, apparently, (and with no independent verification on my part) some in North Carolina are questioning whether we should continue to reimburse PCS with Medicaid dollars, particularly as to home health. But if we stopped reimbursing for PCS in the homes, what would be the alternative? How would it affect North Carolinians? Would eliminating PCS save tax dollar money? Stop fraud?
When we evaluate the effects of whether to continue to reimburse for PCS with Medicaid dollars, we aren’t only talking about those served by PCS, but also the companies and all employees providing the home health. In 2012 in NC, approximately 40,000 were employed in home health.
Why is home health care important (or is it?)? Should we allow the “F” word to erase PCS in home health?
What is the alternative to home health? Answer: (1) Assisted living facilities? (2) Nursing homes? (3) A dedicated, family caregiver? (4) Nothing?
While there are, I am sure, many reasons that PCS in home health care is vital to our community, for the purposes of this blog, I am going to concentrate on cost savings to the taxpayers. Home health costs us (taxpayers) less money than other alternatives to home health.
Also, understand please that I am not advocating that everyone should receive home health instead of entering nursing homes or assisted living facilities. Quite the contrary, as both nursing homes and assisted living facilities are essential to NC. I am merely pointing out that all the services (home health, nursing homes, and assisted living facilities) are important.
What is the difference between assisted living and nursing homes?
An assisted living community provides communal living, usually with social activities, a cafeteria, laundry service, etc. I always think of my grandma at Glenaire in Cary, NC. She plays bridge, attends a book club, and even takes a computer course! She actually joined Facebook a couple of years ago!
A nursing home, on the other hand, provides 24-hour supervision by a licensed or registered nursing staff. Generally, the folks eligible to be admitted into an assisted living facility will be eligible to receive PCS (see the above definition/eligibility requirements). So, logically, the clientele in an assisted living facility receiving PCS could, in some cases, also be eligible to receive PCS in their home. Obviously a number of factors come into play to determine whether a person goes into an assisted living facility versus staying at home and receiving home health care: eligibility, family issues, money, condition of your home, money, desire for independence, money, health issues, and money.
Because of the level of supervision and skill required in a nursing home, a nursing home will be much more expensive than an assisted living facility. Insomuch as the assisted living facility will be less expensive than a nursing home, home health care, because you are paying for your own room and board, will be cheaper than both.
The average national cost for an assisted living facility in 2012 was $3,550/month. That’s $42,600/year. The average cost for an assisted living facility in 2012 in NC was $2900/month.
The average cost for a nursing home in NC for a semi-private room is $73,913 and $82,125 for a private room. That’s $225/day for a private room. For that price, you could get a room at a Ritz Carlton! (albeit not in a touristy area).
You think nursing homes are expensive in NC? Don’t move to NY!! In NY, for a semi-private room it costs $124,100/year and $130,670/year for a private room ($358/day!). Florida is a bit more expensive that NC too. In Florida, on average, a semi-private room in a nursing home costs $83,950 and a private room is approximately $91,615.
On the flip side, the average cost for a homemaker is $38,896. A home health aide costs, on average, $40,040.
If, in fact, NC ceases to reimburse PCS in home health, many of the people residing in their homes and relying on Medicaid-covered PCS will be forced to leave their homes for, in some case, more expensive alternatives.
Though the odd contrast may not be easily seen, there is an argument that erasing PCS in the home may actually cost the tax payers more. Not to mention that erasing PCS in home health would drive agencies bankrupt and staff jobless.
Remember, I have no verification that our General Assembly would or would not eradicate PCS in the home environment. It was mere speculation in a conversation. But the conversation got me thinking about the delicate balance of Medicaid services in NC. And how one abrupt and drastic change could change our health care system and capitalist ideas so quickly.
And, arguably, all because of the speculative “F” word. What is that political phrase we heard so much in the last elections? Oh, yes, maybe we should use a scalpel, not an ax?
The unknown. No one likes the unknown. Especially people, like me, who try so desperately to maintain control over our lives.
But the future of Medicaid in North Carolina is unknown. We have all heard Governor McCrory talk about expanding managed care to all Medicaid services, not just behavioral health care, but for all medical services. Here in NC, our experience with managed care organizations (MCOs) has not been all sunshine and roses. So, when we hear…let’s expand the MCO system to all Medicaid services, I am reminded of the feeling I had this past Saturday as I stood on the side of the Wells Fargo building, 30-stories up, facing background, with a harness and a helmet on, when the rappel guy said, “Ok…now lean back and let go…”
OK….so is anyone wondering how I managed rappelling down the 30-story Wells Fargo building downtown Raleigh this past Saturday in the name of Special Olympics North Carolina?
Answer: I DID NOT MANAGE WELL!!!
I do not kid you when I say that I thought that I would enjoy rappelling. I envisioned myself bouncing off the side of the building, laughing, and doing straddle jumps. I envisioned myself getting to the bottom with an adrenaline rush and an immediate need to sign-up for next year’s Over The Edge charity event.
So, what actually happened? Picture this:
I am standing on the edge of a 30-story building. I have 20 pounds of equipment attached all around my body. I am donning a helmet and gloves. I have never seen any of the equipment that is wrapped around my body. The pro-rappellers are saying things like “rigger,” “descenders,” and “carabiners.” They are obviously all hard-core, banging rapellers, which I, most certainly, am not.
In order to get on the ledge of the building, you have to climb up onto the ledge…as in, take your 2 arms and hoist your body up onto the ledge…sit down on your bum with your back to the 30-story view…and, then, completely stand up…. on a ledge… in order to lean back and jump off the building.
If you can envision preparing yourself for a jump off a 30-story building without your heart racing, then you are way cooler than I.
Ever heard the saying, “The first step is the hardest?” Whoever said that had, obviously, rappelled off the Wells Fargo building. Just prior to actually going over the edge, not only did my body have to battle the physical issues (shaking, breathing, and sweating), but my brain kicked into high gear. I wanted to cry. I cussed at the nice rappellers trying to comfort me. My brain told me to give up and descend as we are meant to…via elevators.
The rappeller-volunteer said, “Lean back and let go!”
I cussed. I screamed, “Get me off this building!!” to the nice rappeller-volunteers. But, eventually (and, definitely, NOT gracefully) I started the descent down the building. The entire way down, which, by the way, takes at least 15 minutes, I panicked; I hyperventilated; I prayed; I cussed; I tried to not spin; I made a very weak attempt of actually using the lever attached to my rope to make myself go down (No, I do not know the term for the apparatus); my muscles failed me….for 15 minutes.
Why?? Fear of the unknown. I was in a completely new situation, and one in which I had no control.
Similarly, the unknowns of the future of Medicaid terrify providers, recipients, and advocates alike. “Just lean back and let go!”
I am currently at the Association for Home and Hospice Care of North Carolina (AHHC) Leadership Convention in Wrightsville Beach. (Which, BTW, is a great association). The morning speaker, Scott Carbonara was fantastic. He spoke about engaging fully in life, work, and family.
During lunch, I ended up sitting next to another attorney (unbeknownst to me at the time of sitting), who works for the National Council on Medicaid.
Another person who wants to talk about Medicaid sitting next to me during lunch? I felt like I drew the lucky straw.
Then she said that she helps implement managed care throughout the country. She may as well have said that she teaches medical providers to refuse Medicaid and provide horrible services to Medicaid recipients.
You have to understand, if you have read my blogs, my opinion as to MCOs and mental health.
She must’ve read my horror on my face. She said…”Oh, I know. Most people do not have positive reactions when I explain my job.”
Me? I felt like I was standing on edge of the ledge with an unknown rappeller telling me to, “Lean back and let go!” Trust me…
We proceeded to have a rather lengthy conversation. I explained the effects of the MCOs on Medicaid recipients and behavioral health care providers here in NC.
I explained to her that some MCOs are denying medically necessary assertive community treatment team services (ACTT) (a highly intense, 24-hour/day service for the most severely mentally ill) even when the recipients meet the continued stay criteria and do not meet discharge criteria. I explained that the recipients who were undergoing discharge from ACTT were becoming hospitalized, incarcerated, homeless, and sometimes all of the above.
She was horrified.
“Why would the MCOs deny ACTT services if discharge criteria is not met?” She said. “It ends up costing more money, with the hospitalizations and incarcerations, than it would cost if the MCO actually authorized the mental health care needed.” In other words, providing medically necessary services saves money, if you look at the totality of circumstances.
“Where is CMS?”
You win a prize! Ding! Ding! Ding!
I explained that our management of Medicaid services is bifurcated. The MCOs are only in charge of behavioral health, not the total patient care. The monetary incentive for the MCOs in NC is to provide the least expensive services to the least amount of Medicaid recipients through the least amount of Medicaid providers.
She said, “Well, the providers can choose to deal with the MCOs, right?”
Not in NC. As the MCOs are jurisdictional, if the MCO in one county says that you cannot see your patients, another MCO in a different MCO may say otherwise.
She explained that her MCOs work completely differently. (Here I was on the edge of the Wells Fargo building again). We are just supposed to trust that other MCOs would act differently?
Then she told me why her MCOs would not act like our current MCOs.
In her MCO world, the MCOs manage ALL Medicaid services. If a recipient suffers high blood pressure, diabetes, and schizophrenia, the MCO handles all the recipients’ medical issues. That MCO is in charge of the totality of the recipient’s care. If the MCO denies ACTT services and the recipient is hospitalized, then the MCO has the burden of paying for that more expensive ER visit. If the MCO denies ACTT services and the recipient is incarcerated without the proper care and medication, then that MCO has the burden of paying for all crisis care for the recipient that may occur from not receiving necessary services. It costs less to provide proper care rather than let the recipient decompress and pay higher emergency costs.
She wanted to get a representative of one her MCOs to listen to my horror stories. She tried to convince me that the MCOs she has worked with would approve all necessary services. It’s just cheaper in the long run.
But, to me, there is fear of the unknown.
What if the MCOs she has worked with do NOT authorize services like she is describing??
How do we know that a new system would be better? I mean, we’ve all seen how great the new billing system NCTracks is…New is not always better. Change is unknown, and the unknown is scary.
I guess we all have to ask ourselves: Is the current NC MCO system bad enough to warrant a change to the unknown?
When you are standing on top the 30-story building, and are told to “Lean back and let go…”
Or do you take the elevators?
New Federal 10th Circuit Case Decision Warns Health Care Providers: Never Miss an Appeal Deadline!…Or Else!!
Yesterday, the 10th Circuit Court of Appeals reminded everyone in the health care arena of the importance of appeal deadlines. More so than other areas of law, the Medicaid world imposes short appeal deadlines with drastic repercussions.
In a published decision, Full Life Hospice, LLC, v. Kathleen Sebelius, Secretary, United States Department of Health and Human Services, 2013 WL 674756, U.S. Ct. of App., 10th Cir. (February 26, 2013) (only Westlaw citation available), the 10th Circuit Court of Appeals stated that Full Life Hospice, LLC (Full Life) failed to request a hearing within 180 days after notice of the final determination for Full Life to repay Medicare reimbursements that the U.S. DHHS claimed were distributed above the spending cap.
Missing an appeal deadline will cause severe irreparable damage!!!
In Full Life Hospice, Full Life Hospice, a hospice care provider participating in the federal Medicare program, provided hospice care services to terminally ill Medicare beneficiaries and appropriately sought reimbursement for these services. In a later recoupment audit performed by a contracted agent of U.S. DHHS, (Sound Familiar?) the contracted agent demanded repayment of funds that it claimed were distributed in excess of a Medicare spending cap.
The Medicare Act allows for challenges to regulations such as 42 C.F.R. 418-309, but it establishes a specific procedure for bringing such claims. As is relevant here, this process can begin with a hospice provider’s challenge to the basis for a request for repayment made by an HHS fiscal intermediary.
A provider is required to file a request for such a hearing with the Board “within 180 days after notice of the intermediary’s final determination.” Id. § 1395oo(a)(3).
Because Full Life Hospice failed to request a hearing within 180 days, the 10th Circuit Court of Appeals found that it had no subject matter jurisdiction.
Now, here in NC, in Medicaid, the appeal deadlines are even faster.
Appeal a Tentative Notice of Overpayment: 15 days. The result of failing to appeal within 15 days? The Tentative Notice of Overpayment becomes a final decision. Period.
Appeal a DHHS Hearing Officer’s Decision: 60 days from the date of the decision. Failure to appeal within 60 days? Final Decision. Period.
What about a prepayment review, in which the statute does not allow an appeal? Wait until the 6 months pass and see whether you get off prepayment review? No. If you do, expect a letter of termination from the Medicaid contract. Be pro-active. Seek help. Health care providers ate currently appealing these prepayment reviews and, alternatively, seeking injunctions.
Bottom line: Do not miss a deadline.