Happy 2021! I bring great news and good tidings. I’m fairly sure that everyone reading is educated in what a preliminary injunction is and how important it can be for a health care provider falsely accused of credible allegations of fraud to lift the mandatory suspension of reimbursements. Finally, over the holidays, a Judge found that an indication of intent is required for an accusation of credible allegations of fraud, unlike past cases in which a mere accusation results in suspensions. 42 CFR §455.23 mandates that a health care provider’s reimbursements be suspended based on “credible allegations of fraud.” Which is a low bar. My client, an oral surgeon, had a disgruntled employee complaint and a baseless PCG audit of $6k. A double threat.
For those who are not in the know: An injunction is an extraordinary legal tool that allows the judge to suspend whatever bad action the government or one of its auditors do.
You have to prove:
- Likelihood of success on the merits
- Irreparable harm
- Balance of equities
- Public Interest.
I would guestimate that only 10-20% of requests for TROs and PIs are granted. Last week, we won for the oral surgeon. Everyone can learn from his success. This is how we won. Let me set the stage. We have an oral surgeon who underwent an infamous PCG audit resulting in an alleged $6k overpayment. PCG concurrently sends his data to program integrity, and one month later and without any notice, his reimbursements are suspended based on a “credible allegation of fraud.” Concurrently, he had a disgruntled employee threatening him.
Remember that the bar to demonstrate “credible allegation of fraud” is amazingly low. It is an “indicia of reliability.” An inaccurate PCG audit and a disgruntled employee, in this case, were the catalyst for the oral surgeon’s Medicaid reimbursements. His practice comprised of 80% Medicaid, so the suspension would cause irreparable harm to the practice.
We filed a TRO, PI, and Motion to Stay. The day before Christmas, we had trial.
The Judge ruled that the Department cannot just blindly rely on an anonymous accusation. There has to be some sort of investigation. It is not OK to accept accusations at face value without any sort of independent fact-checking. The Judge created an additional burden for the Department in cases of accusations of fraud that is not present in the regulation. But it is logical and reasonable to expect the Department to explore the accusations. The Judge emphasized that fraud requires intent. He also pointed out that fraud is not defined in the regulations. He emphasized that billing errors are not intentional acts.
The Judge held that, “[i]n light of the large number of Medicaid beneficiaries treated by the Petitioner’s practice, the rarity of the physician’s skills, and the apparent demand for those services, the relatively small amount of money now or formally in controversy, the lack of evidence of actual fraud and the contrary indications, the high probability that good cause exists for not suspending Petitioner’s Medicaid payments, and the near certainty of irreparable harm to the Petitioner if the relief is not granted, a TRO should be granted.”
Even better, the Judge ordered that the surgeon did not have to put up a bond, which is normally required by law. By the stroke of the Judge’s pen, the surgeon could go back to work performing medically necessary services to Medicaid recipients, which, by the way is rare for an oral surgeon to accept Medicaid. This is a success for health care providers. Accusations of fraud should require independent corroboration and evidence of intent.
If you are accused of Medicare fraud, your Medicare reimbursements will be immediately cut off without any due process or ability to defend yourself against the allegations. If you accept Medicare and Medicaid then you are held to strict regulations, some of which are highly, Draconian in nature without much recourse, legally, for providers. Many, many a provider have gone bankrupt and been forced out of business due to “credible allegations of fraud.” You see, legally, “credible allegations of fraud” is a low standard to meet. The definition of “credible” is “an indicia of reliability.” “Indicia” is defined as “signs, indications, circumstances which tend to show or indicate that something is probable. It is used in the form of “indicia of title,” or “indicia of partnership,” particularly when the “signs” are items like letters, certificates, or other things that one would not have unless the facts were as the possessor claimed. It can be a disgruntled worker. I am sure that none of the listeners here today have ever dealt with a disgruntled employee. Yes, that is sarcasm.
42 CFR § 405.372 is the regulation outlining the requirements for suspending Medicare payments. 42 CFR § 455.23 is the regulation mandating suspension of Medicaid payments upon credible allegations of fraud.
Pursuant to Medicare regulations, CMS must suspend Medicare reimbursements to a healthcare provider “in whole or in part” if it has been “determined that a credible allegation of fraud exists against a provider or supplier.” 42 C.F.R. § 405.371(a)(2). A credible allegation of fraud is “an allegation from any source, including … civil fraud claims cases, and law enforcement investigations.” 42 C.F.R. § 405.370(a). The decision to suspend Medicare payment or continue a payment suspension is made at the discretion of CMS – not the MAC. If you receive a letter from a MAC alleging fraud, be sure to check whether the letter states that the decision was made in collaboration with CMS. The MACs do not have the authority.
The suspension, however, is not indefinite, although the length is normally a year, which is financially devastating. The regulations allow CMS to maintain the suspension until a “legal action is terminated by settlement, judgment, or dismissal, or when the case is closed or dropped because of insufficient evidence to support allegations of fraud.” 42 C.F.R. §§ 405.370(a) and .372(d)(3); see also § 405.371(b)(3)(ii) (CMS may extend the suspension of payment if the Department of Justice submits a written request that “suspension of payments be continued based on the ongoing investigation and anticipated filing of criminal or civil action or both or based on a pending criminal or civil action or both.”).
When you receive a fraud accusation of any type – it is imperative to send it to your counsel. If you opt to litigate the suspension by asking the Court to enjoin the suspension, your first legal obstacle will be to argue that you do not have to exhaust your administrative remedies before appearing for the injunction. Cases have been decided both in the favor of providers and their suspensions have been lifted and against the providers. These cases usually win or lose on the argument that the suspension of reimbursements is an ancillary subject from the actual investigation of fraud. It is a jurisdictional argument.
It is my opinion that the federal regulations that allow for suspension of payments upon credible allegations of fraud need to be revised. Any of you with lobbyists, we need to revise the regulations to require due process – notice and an opportunity to be heard – prior to the government suspending Medicare and Medicaid reimbursements based on a spurious accusation from an anonymous source.
Back in 2015, I am sure that you all recall the case in New Mexico where NM accused 15 BH care provider of credible allegations of fraud. The providers constituted 87.5% of the BH in NM. I was one of the attorneys representing the larger BH cos. Prior to my involvement, all 15 providers requested good cause. All were denied. Lawmakers think that the good cause exception written into the regulation is enough defense for providers. But when the good cause is almost always denied, it isn’t much help. Write to your congress people. Amend the regulations to require due process.
No one is free from audits. Even auditors get audited.
When the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) audits auditors, however, the auditors get recommendations for changes, not the million-dollar penalties that healthcare providers receive.
In September 2020, OIG released an audit report of the Accountable Care Organizations (ACOs). There were 472 ACOs in America as of 2017, per the report. To those ACOs that were not audited for this September 2020 OIG report, expect audits to come. The Centers for Medicare & Medicaid Services (CMS) has instructed the Medicare Administrative Contractors (MACs), Comprehensive Error Rate Testing (CERT) auditors, Unified Program Integrity Contractors (UPICs), and Recovery Audit Contractors (RACs) to audit ACOs.
These audits for monetary penalties will be dissimilar from audits by OIG, which wielded recommendations. ACOs are large entities: groups of doctors, hospitals, and other providers that come together to give coordinated high-quality care to Medicare beneficiaries.
In 2017, ACOs served approximately 9 million beneficiaries under the Medicare Shared Savings Program (MSSP). Of all the ACOs, 159 were eligible for shared savings payments, and received approximately $799 million. Of the remaining ACOs, 11 were liable for shared losses, and 302 were neither eligible to receive shared savings payments nor liable for shared losses, because they generally did not reduce healthcare costs (or they chose not to participate).
OIG found weaknesses in the oversight of ACOs, which are required to report data on 31 quality measures through three methods of submission:
- A patient experience-of-care survey (eight measures);
- Claims and administrative data (eight measures); and
- The designated CMS web portal (15 measures).
For the September 2020 OIG Report, 159 ACOs were required to select a CMS-certified vendor of their choice. You can learn more about this by listening to my recent webcast: “SNFs & COVID-19: New Audits Coming Soon.”
These CMS-certified vendors would contact the ACOs’ patients for a survey or poll, kind of like the follow-up surveys that you get after a seminar. Sometimes the students rating the teachers marks the best truth-teller of effectiveness.
The patient survey reported eight points of quality measures to CMS on the ACOs’ behalf. The vendors collected the data through mail and telephone surveys. The auditors would mail a questionnaire, and if that went unanswered, they would place a follow-up telephone call.
Twelve auditors conducted the 2017 audit of the ACOs’ patients. They surveyed approximately 400,000 beneficiaries and reported all patient survey data for those who responded.
Prior to 2019, non-medical home care agencies did not have a role in the Medicare Advantage (MA) landscape. After a variety of policy chances, they now have an opportunity to contract with MA plans through two major pathways.
The OIG report found the following weaknesses in CMS’s supervision of ACOs:
- CMS did not ensure that its contractor provided feedback reports in time to enable survey vendors to include and evaluate quality assurance plans regarding all of the changes implemented to address issues identified.
- CMS did not ensure that its contractor reviewed survey instruments translated into other languages.
OIG recommended that CMS increase supervision to confirm changes and collect client feedback. It is my opinion that ACO audits will increase.
Programming Note: Knicole Emanuel, Esq. is a permanent panelist on Monitor Mondays. Listen to her RAC Report every Monday at 10 a.m. EST.
How much power does an Executive Order signed by your State’s Governor actually wield? Governors, all of whom are elected, serve as the CEOs of the 50 states, five commonwealths, and territories of the U.S.
As CEO of their particular State, Governors are responsible for ensuring that each State is adequately prepared for emergencies and disasters of all types and sizes. Most emergencies and disasters are handled at the local level, and few require a presidential disaster declaration or attract worldwide media attention. Yet here we are. A global pandemic affecting every single person on the planet.
This is not a tornado. It’s not Sept. 11 or giant killer hornets, which are also apparently a new thing. This virus has uprooted the world in a way that no one has ever witnessed.
Not everyone is following Governors’ Executive Orders. For example, multiple adult day care centers contacted me recently from New York. Governor Cuomo has issued multiple Executive Orders regarding telehealth, basically relaxing the rules and forcing higher reimbursement rates and allowing for more telehealth, when in the past, it would not have been allowed. However, private insurance companies are refusing to obey the governor’s executive orders. The private companies argue that the providers signed a binding contract that does not include telehealth. The private payors argue that contract law trumps a governor’s executive order, even though the governor has ordered it because of the pandemic. Governor Cuomo has suspended New York State Public Health Law §2999-cc, as well as numerous others.
These adult day centers have followed the governor’s executive orders and are providing telehealth to maintain elderly socialization. The mental health aspect is their main concern right now.
There is no consistency in how the private companies are complying or not complying. Some private payors have issued amendments to the providers’ contracts, allowing telehealth, but at a serious financial decrease. Where the visit would have been reimbursed at $100-200, the new contract amendments allow for reimbursement rates of $25.
Others stick to the contracts and refuse to reimburse telehealth for these adult day care centers at all.
According to one of the companies that spoke with me, the adult day care centers in New York are losing approximately $56,000 per month. Now, I know that most health care providers are losing money in this pandemic. My friend who is an ER nurse says she has never seen the ER so empty. We cannot have our hospitals close. But in the case of the adult day care centers, we can point to a legal reason that providers should be reimbursed during this pandemic. The private payors are blatantly not following the Governor’s Executive Order.
Here, in North Carolina, the reimbursement rates for health care providers are increasing, sometimes doubling, as in the case of home health due to the shortage of health care providers willing to go onto someone’s home. From about $15 to $33 per hour. Thank you to all you home health workers! It is a scary time, and you are essential.
The providers want to sue to get the reimbursements that they are owed.
This is just one example of how discombobulated COVID-19 has made everyone.
Then add in the next variable of New Yorkers re-entering society and the “stay at home” Orders being lifted. I do not think that the problem with private payors not following a Governor’s Executive Order will just vanish when the state reopens. These providers have lost their higher reimbursable rates and cannot get that money unless they sue.
If I were a betting woman, I would bet that there are hundreds of intricate ways that insurance companies have not followed their particular states’ executive orders. Think about this: even if the companies were truly trying to abide by all executive orders, those companies in multiple states may get opposing orders from different states. So then a nationwide private payor is expected to follow 50 different executive orders. I can see why it would be difficult to comply with everything.
We have to ask ourselves – does an Executive Order, in a time of crisis, trump normal laws, including basic contract law? If the answer is yes, then how do we make private payer insurance companies comply?
Knicole Emanuel is a permanent panelist on Monitor Monday. Listen to her live reporting every Monday at 10-10:30 a.m. EST.
I posted/wrote the below blog in 2017. I re-read my February 10, 2017, blog, which was entitled “NC DHHS’ New Secretary – Yay or Nay?” with the new perspective of COVID-19 being such a hot potato topic and sparking so much controversy. Interestingly, at least to me, I still stand by what I wrote. You have to remember that viruses are not political. Viruses spread despite your bank account, age, or location. Sure, variables matter. For example, I am statistically safer from COVID because I live on a small, horse farm in North Carolina rather than an apartment in Manhattan.
The facts are the facts. Viruses and facts are not political.
I was surprised that more people did not react to my February 10, 2017, blog, which is re-posted below – exactly as it was first posted. For some reason (COVID-19), people are re-reading it.
Our newly appointed DHHS Secretary comes with a fancy and distinguished curriculum vitae. Dr. Mandy Cohen, DHHS’ newly appointed Secretary by Gov. Roy Cooper, is trained as an internal medicine physician. She is 38 (younger than I am) and has no known ties to North Carolina. She grew up in New York; her mother was a nurse practitioner. She is also a sharp contrast from our former, appointed, DHHS Secretary Aldona Wos. See blog.
Prior to the appointment as our DHHS Secretary, Dr. Cohen was the Chief Operating Officer (COO) and Chief of Staff at the Centers for Medicare and Medicaid Services (CMS). Prior to acting as the COO of CMS, she was Principal Deputy Director of the Center for Consumer Information and Insurance Oversight (CCIIO) at CMS where she oversaw the Health Insurance Marketplace and private insurance market regulation. Prior to her work at CCIIO, she served as a Senior Advisor to the Administrator coordinating Affordable Care Act implementation activities.
Did she ever practice medicine?
Prior to acting as Senior Advisor to the Administrator, Dr. Cohen was the Director of Stakeholder Engagement for the CMS Innovation Center, where she investigated new payment and care delivery models.
Dr. Cohen received her Bachelor’s degree in policy analysis and management from Cornell University, 2000. She obtained her Master’s degree in health administration from Harvard University School of Public Health, 2004, and her Medical degree from Yale University School of Medicine, 2005.
She started as a resident physician at Massachusetts General Hospital from 2005 through 2008, then was deputy director for comprehensive women’s health services at the Department of Veterans Affairs from July 2008 through July 2009. From 2009 through 2011, she was executive director of the Doctors for America, a group that promoted the idea that any federal health reform proposal ought to include a government-run “public option” health insurance program for the uninsured.
Again, I was perplexed. Did she ever practice medicine? Does she even have a current medical license?
This is what I found:
It appears that Dr. Cohen was issued a medical license in 2007, but allowed it to expire in 2012 – most likely, because she was no longer providing medical services and was climbing the regulatory and political ladder.
From what I could find, Dr. Cohen practiced medicine (with a fully-certified license) from June 20, 2007, through July 2009 (assuming that she practiced medicine while acting as the deputy director for comprehensive women’s health services at the Department of Veterans Affairs).
Let me be crystal clear: It is not my contention that Dr. Cohen is not qualified to act as our Secretary to DHHS because she seemingly only practiced medicine (fully-licensed) for two years. Her political and policy experience is impressive. I am only saying that, to the extent that Dr. Cohen is being touted as a perfect fit for our new Secretary because of her medical experience, let’s not make much ado of her practicing medicine for two years.
That said, regardless Dr. Cohen’s practical medical experience, anyone who has been the COO of CMS must have intricate knowledge of Medicare and Medicaid and the essential understanding of the relationship between NC DHHS and the federal government. In this regard, Cooper hit a homerun with this appointment.
Herein lies the conundrum with Dr. Cohen’s appointment as DHHS Secretary:
Is there a conflict of interest?
During Cooper’s first week in office, our new Governor sought permission, unilaterally, from the federal government to expand Medicaid as outlined in the Affordable Care Act. This was on January 6, 2017.
To which agency does Gov. Cooper’s request to expand Medicaid go? Answer: CMS. Who was the COO of CMS on January 6, 2017? Answer: Cohen. When did Cohen resign from CMS? January 12, 2017.
On January 14, 2017, a federal judge stayed any action to expand Medicaid pending a determination of Cooper’s legal authority to do so. But Gov. Cooper had already announced his appointment of Dr. Cohen as Secretary of DHHS, who is and has been a strong proponent of the ACA. You can read one of Dr. Cohen’s statements on the ACA here.
In fact, regardless your political stance on Medicaid expansion, Gov. Cooper’s unilateral request to expand Medicaid without the General Assembly is a violation of NC S.L. 2013-5, which states:
SECTION 3. The State will not expand the State’s Medicaid eligibility under the Medicaid expansion provided in the Affordable Care Act, P.L. 111-148, as amended, for which the enforcement was ruled unconstitutional by the U.S. Supreme Court in National Federation of Independent Business, et al. v. Sebelius, Secretary of Health and Human Services, et al., 132 S. Ct. 2566 (2012). No department, agency, or institution of this State shall attempt to expand the Medicaid eligibility standards provided in S.L. 2011-145, as amended, or elsewhere in State law, unless directed to do so by the General Assembly.
Obviously, if Gov. Cooper’s tactic were to somehow circumvent S.L. 2013-5 and reach CMS before January 20, 2017, when the Trump administration took over, the federal judge blockaded that from happening with its stay on January 14, 2017.
But is it a bit sticky that Gov. Cooper appointed the COO of CMS, while she was still COO of CMS, to act as our Secretary of DHHS, and requested CMS for Medicaid expansion (in violation of NC law) while Cohen was acting COO?
You tell me.
I did find an uplifting quotation from Dr. Cohen from a 2009 interview with a National Journal reporter:
“There’s a lot of uncompensated work going on, so there has to be a component that goes beyond just fee-for service… But you don’t want a situation where doctors have to be the one to take on all the risk of taking care of a patient. Asking someone to take on financial risk in a small practice is very concerning.” -Dr. Mandy Cohen
Published in Today’s Wound Clinic:
When I was asked to draft an article for Today’s Wound Clinic, it was approximately two weeks ago. I was asked to write about the current state of Medicare and Medicaid audits. Specifically, I was asked to provide a legal analysis about CMS suspending audits un-related to COVID-19. In the month of April, we have seen the spike of COVID-19, which has overturned our everyday world. We have been instructed by President Trump to “stay home” and “social distance” to decrease the spread of the virus. This “stay at home” instruction is unprecedented and has uprooted many of our most reliable and commonplace businesses, such as hairdressers, bowling alleys, and tattoo parlors.
Here is the answer: The current state of Medicare/Medicaid audits, at the moment, is dictated by COVID-19.
We can divide the post-COVID-19 audit rules into 3 categories:
- Those exceptions published by CMS to apply to all health care providers
- Those special, verbal exceptions given directly to an individual provider that were not published by CMS
- Effective immediately, new guidelines that CMS will follow until CMS believes it no longer needs to follow (by its own choice, of course).
An example of an “effective immediately” guideline is our current state of Medicare/Medicaid audits in the wake of COVID-19. CMS has not suspended all Medicare/Medicaid regulatory audits. But CMS has suspended most audits.
Effective immediately, survey activity is limited to the following (in Priority Order):
- All immediate jeopardy complaints (cases that represents a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death or harm) and allegations of abuse and neglect;
- Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses;
- Statutorily required recertification surveys (Nursing Home, Home Health, Hospice, and ICF/IID facilities);
- Any re-visits necessary to resolve current enforcement actions;
- Initial certifications;
- Surveys of facilities/hospitals that have a history of infection control deficiencies at the immediate jeopardy level in the last three years;
- Surveys of facilities/hospitals/dialysis centers that have a history of infection control deficiencies at lower levels than immediate jeopardy.
See CMS QSO-20-12-ALL. You can see that these “effective immediately” guidelines are usually published on CMS letterhead. The “effective immediately” guidelines explain why CMS is taking the stated action, the stated action, and that the action is temporary and due to COVID-19.
Here are a few recent “effective immediately” guidelines due to COVID-19:
- On April 27, 2020, CMS said it would no longer expedite Medicare payments to doctors and be more stringent about accelerating the payments to hospitals as Congressional relief aimed at providers reaches $175 billion.
- The agency is not accepting any new applications for the loans from Part B suppliers, including doctors, non-physician practitioners and durable medical equipment suppliers. CMS will continue to process pending and new requests from Part A providers, including hospitals, but be stricter with application approvals.
- CMS expanded the Accelerated and Advance Payment Programs in late March as the pandemic continued to gain strength in the U.S. Since then, the agency has approved over 21,000 applications making up $59.6 billion in accelerated payments to Part A providers and almost 24,000 applications making up $40.4 billion in payments for Part B suppliers.
The $2.2 trillion Coronavirus Aid, Relief, and Economic Security stimulus package passed by Congress in March benchmarked $100 billion in funds for hospitals. On Friday, President Donald Trump signed legislation with a second round of emergency funding, called the Paycheck Protection Program and Health Care Enhancement Act, that allocates another $75 billion for providers — roughly three-quarters of what major provider trade associations requested.
An initial $30 billion from the fund was distributed between April 10 and April 17 based on Medicare fee-for-service revenue, sparking criticism that put facilities with a smaller proportion of Medicare business, such as children’s and disproportionate share hospitals, at a disadvantage. HHS on Friday began releasing an additional $20 billion in CARES payments to providers based on their 2018 net patient revenue, with more funding to roll out “soon,” the agency said, including $10 billion for hard-hit areas like New York.
How RAC/MAC auditors are compensated dictates their actions and/or aggressiveness.
RAC Auditors are paid by contingency. They are usually compensated approximately 13%, depending on the State. Imagine what 13% is of 1 million. It is $130,000 – more than most people make in a year. If you do not believe that 13% contingency is enough to incentivize a company, which, in turn, incentivize the employees, then you are sorely mistaken.
RACs were established through a demonstration program under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), piloted between 2005 and 2008, and were later made permanent under the Tax Relief and Health Care Act of 2006, which required CMS to establish Recovery Auditors for all states before 2010.
MACs are not compensated by contingency, per se. CMS decided to structure the MAC contracts with 1-year base performance periods and four, optional, 1-year performance periods at the time. The MMA required that these contracts be recompeted at least once every 5 years. The recent enactment of the Medicare Access and CHIP Reauthorization Act of 2015 amended this requirement to authorize a maximum 10-year performance period before MAC contracts must be recompeted. The amendment, which applies to MAC contracts in effect at the time of enactment or entered into on or after enactment, would permit CMS to modify existing MAC contracts or enter into future MAC contracts for 1-year base performance periods and nine optional 1-year performance periods. See Pub. L. No. 114-10, § 509(a)- (b) (April 16, 2015). Therefore, while MACs are not compensated on contingency, MACs are compensated on performance. The less a MAC spends, the more services a MAC allows, the strict oversight a MCA ensues on its providers…all these “performance-based” measures may not be a contingency compensation relationship, but it’s pretty close. Saved money becomes profit for MACs.
Medicare and Medicaid auditors love rules. Even if the rules that auditors are instructed to follow really are not required by actual law. It goes without saying that auditors are not lawyers. Auditors are not trained to decipher whether statutes, regulations or policy are superseded by federal statutes and regulations. The fact is that, more times than one would hope, the auditors are wrong in their assessments that a claim should be denied, not out of malice, but because of a basic misunderstanding of what the law actually requires.
I have all kinds of stories about auditors claiming money is owed, when, really it was not owed because the RAC/MAC auditor failed to follow the actual, correct procedure or misconstrued a regulation. For example, I had a durable medical equipment provider, DME ABC, who was informed by the NSC Supplier Audit and Compliance Unit of Palmetto GBA that it owed $1,075,548.64. Palmetto is one of the MACs for Medicare – durable medical equipment. There was no demand letter. The alleged overpayment amount came to fruition in a telephone conference between the CEO of the company and an employee of Palmetto. Let’s call her Nancy. Nancy told CEO that company owed $1,075,548.64 based on an alleged violation of 42 C.F.R. § 424.58,
Even more disconcerting, was the fact that Palmetto claimed that its alleged, oral overpayment against DME ABC arose from a normal, reoccurring validation process pursuant to 42 C.F.R. §424.57, approved by CMS and in accordance with the requirements of 42 C.F.R. §424.58. No formal letter was necessary was Palmetto’s retort. Not correct; a formal demand letter is always required.
In this case, Palmetto began to backtrack once we pointed out that Palmetto nor Nancy ever sent a formal demand letter with any reconsideration review appeal rights or administrative appeal rights. We knew this was procedurally incorrect because federal law dictates that you receive a formal demand letter with appeal rights and notice of how many days you have to appeal. But out of fear of retribution, DME ABC was willing to write a check without pushing back. Obviously, we did not do so.
I tell this story as an example of how intimidating, scary, and overwhelming auditors can be. If someone off the street asked you for a million dollars, you would laugh them off your doorstep, right? After you tell them to don a mask and maintain social distancing.
But in the new-age world of COVID-19, rules have been broken. This behavior would not be acceptable pre-COVID-19. But this provider honestly was going to pay.
The Trump Administration is issuing an unprecedented array of temporary regulatory waivers and new rules to equip the American healthcare system with maximum flexibility to respond to the 2019 Novel Coronavirus (COVID-19) pandemic.
Pre-COVID-19 if you were to state “paperwork over patients,” everyone in the industry would agree. There would be snickers and eyes rolling, because no one wanted paperwork to be over patients. But it was. Now the mantra has flipped upside down – now the mantra is: Patients over Paperwork.
Post-COVID-19, if documents are lost or misplaced, or otherwise unusable, DME MACs have the flexibility to waive replacements requirements under Medicare such that the face-to-face requirement, a new physician’s order, and new medical necessity documentation are not required. Suppliers must still include a narrative description on the claim explaining the reason why the equipment must be replaced and are reminded to maintain documentation indicating that the DMEPOS was lost, destroyed, irreparably damaged or otherwise rendered unusable or unavailable as a result of the emergency.
Post-COVID-19, CMS is pausing the national Medicare Prior Authorization program for certain DMEPOS items. CMS is not requiring accreditation for newly enrolling DMEPOS and extending any expiring supplier accreditation for a 90-day time period. CMS is waiving signature and proof of delivery requirements for Part B drugs and Durable Medical Equipment when a signature cannot be obtained because of the inability to collect signatures. Suppliers should document in the medical record the appropriate date of delivery and that a signature was not able to be obtained because of COVID-19.
Post-COVID-19, in order to increase cash flow to providers impacted by COVID-19, CMS has expanded the current Accelerated and Advance Payment Program. An accelerated/advance payment is a payment intended to provide necessary funds when there is a disruption in claims submission and/or claims processing. CMS may provide accelerated or advance payments during the period of the public health emergency to any two Medicare providers/suppliers who submits a request to the appropriate MAC and meets the required qualifications. The process of obtaining the funds is a MAC-by-MAC process. Each MAC will work to review requests and issue payments within seven calendar days of receiving the request. Traditionally repayment of these advance/accelerated payments begins at 90 days, however for the purposes of the COVID-19 pandemic, CMS has extended the repayment of these accelerated/advance payments to begin 120 days after the date of issuance of the payment. Providers can get more information on this process here: www.cms.gov/files/document/Accelerated-and-Advanced-Payments-Fact-Sheet.pdf
The Future of Medicare/Medicaid Audits
The beauty of predicting the future is that no one can ever tell you that you are wrong. These are my predictions:
Auditors will deny claims for not having prior authorizations. Auditors will deny claims because the supplier accreditation expired after the 90-day time period. Auditors will deny claims because the percentage of face-to-face time was not met as described per CPT codes.
Obviously, these would be erroneous denials if the denials are within the dates that the COVID-19 pandemic occurred. The problem will be that the auditors will not be able to keep up with all the exceptions, not because the auditors are acting out of malice or dislikes providers. They will be simply trying to do their job. They will simply not be able to take into consideration all the exceptions that were given during the virus. Because, while we do have many written exceptions, if you call CMS with a personal and individualized problem, CMS will, most likely, grant you a needed exception. As long as the exception has the best interest of the consumer at heart. However, this personalized exception will not be written on CMS’s website. In five years, when you undergo a MAC or RAC audit, you better have proof that you received that exception. It will not be enough proof for you to state that you were given the exception over the phone.
So how can you protect yourself from future, erroneous audits?
Write everything down. When you speak to CMS, document concurrently the date, time, name of the person to whom you are speaking, the summary of your conversation, the COVID-19 regulatory exception, sign it and date it.
It is a hearsay exception. Writing down everything does not magically transform your note into the truth. However, writing down everything concurrently does magically allow that note that you wrote to be allowed in a court of law as an exhibit. Had you not written the note contemporaneously with the conversation that you had with CMS, then the attorney on the other side of the case would move to exclude your handwritten or typed note as hearsay.
Hearsay is defined as a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in a statement. There are too many hearsay exceptions to name in this article.
Just know, for purposes of this article, that any health care provider who is relying on an exception to a normally required regulatory mandate – regardless what it is – either be able to: (1) cite the written exception that was published by CMS to the public; or (2) produce the written or typed contemporaneously written note that you wrote to memorialize the conversation.
2 years ago – Hindsight is 20/20. #COVID19
The United States currently spends more per person on health care than any other developed country. So when my daughter and I recently vacationed the “Highlights of Europe” tour, I was interested in learning about the varied health care systems, country-by-country. We visited England, France, Switzerland, Austria, Germany, the Netherlands, and Italy. It was awesome!! She turned 13 during the trip, and she starts 8th grade next week. Where does the time go?
While I do not protest to know all the answers, during our vacation, I researched the diverse countries’ healthcare system and methods of payment, but, most importantly, I interviewed people. I interviewed people who were begging for money. I interviewed my taxi drivers. I interviewed the bus drivers. I interviewed people on the streets. I interviewed shop owners. I interviewed the hotel concierge. I interviewed bartenders and waiters.
This blog is intended to memorialize my findings. It has not been fact checked. In other words, if a person told me something about the healthcare system and their personal experiences, I did not go back and review that country’s laws to determine whether that person was telling the truth or that the person’s rendition of their experience was compliant with the law. I did this for a reason. Sometimes what the laws dictate as to healthcare is not what actually occurs in reality. I wanted personal perspectives. I wanted an opinion from citizens of other countries as to how healthcare was or was not working in their country. I did not want to meet health care policy, rules, regulations. I wanted the cold, hard, real truth.
At least one person in every country – Austria, The Netherlands, France, England, Germany, Switzerland, and Italy told me, “[Country name] has the best health care in the world.” Obviously, they cannot all be right. And I certainly heard the worst case scenarios in country’s that claimed to be the best in the world.
This is what I learned:
England has the best health care system in the world! England’s healthcare system is drastically different from the USA’s. England’s National Health Service (NHS) is a free healthcare program for all permanent residents of United Kingdom. Reading the fine print, however, the NHS is not completely free. There are charges associated with eye tests, dental care, prescriptions, and many aspects of personal care.
England relies on primary care more so than specializations. Mental health services, for example, are largely treated by the general practitioners (GPs). Provider trusts, fed by taxes, compensate most health care, the main examples in the hospital trust and the ambulance trusts which send the money allocated to them by commissioning trusts. Hospitals normally receive the lion’s share of NHS funding as hospital’s have the most expenses.
Our taxi driver (Jim) told me that paperwork is minimal with the NHS, which makes it super easy to use. Although he was quick to point out that the health care system in England does vary in quality and timeliness depending on where you live, but I believe we can say the same about the USA. Jim also told me that he and his family has had problems with wait-times to be seen by specialists. Jim’s wife suffered persistent and serious acid reflux. Her general practitioner referred her to a gastroenterologist. However, she could not get an appointment until 20 weeks later. But, in the end, she was seen, and had no waiting period on the day of her appointment. Generally, Jim is happy with the NHS. The costs are minimal, and, he believes that the quality of care is high.
The hotel concierge (let’s call him Blake) was extremely open about his experiences with the health care system in England. It appears from his enthusiasm that health care is just as big of a political issue in England than it is in the US. He told me that he has never waited more than four hours in an emergency room. Apparently, his children frequent it. However, I do place an asterisk on Blake’s comment. You will see below that Alice from France waited for 7 hours at the ER in the UK with her husband. Some of the stories that I heard contradicted each other.
Blake also told me that for traumatic experiences, such a broken arm due to a car accident, which his youngest daughter recently endured, the wait time is significantly less than when his best buddy got drunk at the pub and broke his finger. Blake also told me that, for day-to-day, general, “I have a tummy ache” appointments, English citizens do not get to choose appointment times. You leave a voice mail message for the nurse and the nurse informs you when you need to present yourself. While this may sound inconvenient, Blake stated that there are no wait times. I know that I have waited many an hour to see my general practitioner.
Dental insurance, on the other hand, is a whole new can of worms. Basically, general practitioners are free, but dentists are not. The wait times to see a dentist are extensive, and, if you do not have private dental insurance, the wait times can be even longer. My take-away? If I were a dentist, I’d move the the UK. This also explains a lot about English actors and actresses.
We cannot analyze any country’s health care system without taking into account the taxes that you must pay in order to maintain such a health care system, no matter how poor or amazing that health care system is. Income taxes in the UK are 40% if you make more than 46,351 pounds. Once you hit 150,000 pounds, then your taxes increase to 45%. Almost half of your wages are taken by the government, but you get, essentially, free health care. Does it balance out?
The Netherlands has the best health care system in the world! Every person that I asked in Amsterdam, informed me that Dutch health care is among the best in the world. It seemed that the Dutch took pride in their health care system. So, I wanted details. If Dutch health care is the best, why doesn’t everyone else mimic it?
I learned that everyone who lives or works in the Netherlands is legally obligated to take out standard health insurance. All insurers offer the same standard package. The standard insurance package includes general practitioners, some medications, dental care until the age of 18, nutritional and dietary care, medical aids, mental health services, and much more. It does not cover over-the-counter aspirin or cosmetic surgery procedures. But neither does insurance in America.
In Amsterdam, my daughter and I rented bicycles for two days. It was an absolute blast. The rental process, however, took a bit longer than expected. The gentleman behind the counter needed our passport numbers, information on our hotel, credit card information, and provided us with an instruction program on how to properly secure the bicycles. Given the length of the process, I took the opportunity to ask him about health care.
Let’s call the bicycle rental agent Stefan.
Stefan explained that the Dutch believe in misery first. According to him, regardless the affliction, general practitioners will tell you to take an aspirin and come back in two weeks if you are not dead. I am fairly sure that he was exaggerating. But I have always been of the opinion that exaggerations have some form of truth.
In the Netherlands, the general practitioners are called huisarts, which are expected to know all aspects of medicine. I liken the huisarts to attorneys who practice general law. What attorney could know all aspects of family law and criminal law? The answer is none. A generalist knows a tad about everything, but nothing much about anything.
Preventive care is rare in the Netherlands, certainly in terms of women’s health. For example, in the US, France, and Spain, it is typical to get a test for cervical cancer at least every 2 to 3 years. Here, in Amsterdam, insurance will only pay for one every 5 years. Hormone replacement therapy is also rare here, as most GPs are still following outdated guidelines, based on a flawed study from 2002.
It seems as though I am overly negative as to the health care in the Netherlands. All I can write is that I began this blog with an open mind because if any country has mastered health care then we should learn from it. I was also swayed by my interviewees.
While other countries maintained high income taxes to pay for “free health care,” the Netherlands does not use tax dollars to pay for health care. Every Dutch resident is required to buy their own health insurance on top of the taxes they pay to the government.
Taxes in the Netherlands is exorbitant. If you make over 66,421 euros, taxes are 52% of your income. These taxes, remember, do not include health insurance.
In Amsterdam, there was a pub across the river from our hotel Movenpick. A group of guys were “celebrating” an upcoming wedding and were drinking bottles upon bottles of wine at the river’s edge. Multiple times members of the group ended up swimming.
So, imagine my surprise when one of the intoxicated gentlemen sat at our table and ensued with a semi-intelligent conversation about health care. We will call him Henry. Henry had recently been married and his wife gave birth last year to a premature baby. I completely related because my daughter was born at 28 weeks and 2 pounds and 2 ounces. I asked Henry about the health care coverage for his premature baby girl’s birth and subsequent surgeries. He told me that, besides the meals that he ate during the two-month stay in the hospital, once his new daughter and wife were free to leave, his hospital bill was zero. His daughter endured a two-month stay in the neonatal department, his wife had a two-month, inpatient hospital stay, his daughter underwent multiple surgeries for her lungs and heart, and his daughter had 24-hour care for 60 days. All for zero euros. All children in the Netherlands are automatically insured by the government.
While I see the downside of paying 52% of your income to the Dutch government and having to pay for health insurance, I do see the benefit of Dutch insurance if you have a medical emergency, like a premature baby.
France has the best health care system in the world! In a 2000 World Health Organization (WHO) comparison of 191 different countries’ health care, France came out at number one. And they are not afraid to tell you. Even though the WHO ranking is from 2000, the French still tout its outcome because there have been no other such rankings since then. The French believe in the universal right to health care.
The entire population must pay compulsory health insurance.
Our two-hour ride on the Eurostar from Paris to London gave me a unique opportunity to ask other passengers about health care, especially since there is bar in one of the cabins. People congregated there to drink, eat, and talk, plus one nosy American asking about health care. The following are summaries of the stories I heard:
Nancy, who is from Devon, England and has lived in France with her family since 2006 thinks that French health care is the best. Since she moved to France her family has, unfortunately, undergone 6 operations. Her husband had cancer a couple of years ago and the Oncopole (oncologist) encouraged alternative therapies and even told him the taxi drivers (bringing patients home from the hospital) often go straight to a rebouteuse (a healer) after radiotherapy. A lot of doctors practice homeopathy, which is fantastic, according to Nancy. She also said that doctors prescribe “sacks full of medicine.” The good news is that Nancy’s husband is in remission.
Alice, a former British citizen, who moved to France told me the French health care system saved her husband’s life. Five years ago, her husband started to feel ill while visiting the UK. They couldn’t get a family/general practitioner to come to their home (I thought, my doctor wouldn’t come to my home in the US either). Over the phone, the general practitioner said, “take an aspirin and rest.” They also went to the ER but gave up after 7 hours waiting as her husband was in extreme pain (Juxtapose Blake’s recount that he never waited over 4 hours in the ER in the UK). A few days later they flew home, and her husband could not walk. Within an hour of arriving in France, her husband was admitted to a hospital. He was diagnosed with stage 4 kidney failure and stage 5 equates to dialysis. Needless to say, Alice is a French health care fan.
My daughter and I used a tour group company for our mommy-daughter vacation, and, while in France, I heard one person tout that health care is free in France. I will contend, from my travels, that French health care is great, but not completely free. I saw a presumably-homeless, elderly gentleman with no legs begging for money. In extremely, broken Frenglish and impromptu sign language, I asked the gentleman why he didn’t have health coverage and was he a French citizen? To the best of my ability, I interpreted his responses to indicate that, yes, he is a French citizen, but that free, French health care does not include prosthetics.
Taxes are approximately 41% if you make over $72,617. Whereas, in the US, if you make over $72,000 your tax bracket is 15.55%, barring extraordinary circumstances.
Italy has the best health care system in the world! From my travels, I gathered that Italians believe that their health care system is the best (over France’s – I believe that there is a bit of a friendly rivalry). In 2000, the World Health Organization (WHO) ranked Italy as the 2nd best health care system in the world, right under France. In 2012, WHO found Italy’s life expectancy to be 82.3 years.
Italy has a regionally organized National Health Service (“SSN” – Servizio Sanitario Nazionale) that provides citizens with free or low-cost healthcare. It’s funded through national income taxes and regional VAT, and generally the standard of care is very high. I was pleased to discover that foreign citizens living in Italy with a regular stay permit are entitled to all the same treatment and rights as Italian citizens. Retirement 2035 – here I come!
For a country with the best health care in the world, I saw the most homeless, medically-challenged beggars than any other country. Maybe there are more homeless, medically-challenged beggars in Italy than other country because the weather is so nice, the gelato is so delicious, the population is greater, mental health care is worse, or the food is so amazing…I do not know. But I saw the most homeless, medically challenged beggars in Italy than anywhere else. Oddly, the afflictions were the same. Their feet were misshapen and curled inward to a degree that did not allow them to walk. It was heartbreaking. I googled it and discovered that medical articles have been written on the anomaly of foot deformities in southern Italy.
Taxes in Italy are as follows:
- 23% for amounts up to $36,000
- 33% for the next band from $36,001 to $39,300
- 39% for amounts between $39,301 and $119,200
- 45% for amounts $119,201 and over.
I met Valentina in Roma. Europe has strict hourly limits for bus drivers and our original bus driver, apparently, over-drove. Valentina stepped in and was very chatty, unlike the original bis driver who spoke no English. Considering our group consisted of 21 English-speaking vacationers and one couple fluent in Spanish and English, a bus driver who only spoke French was unhelpful.
Valentina told me that in Italy, mainly in the south, public hospitals are very crowded and offer very limited and sometimes hasty assistance, so that patients are too soon sent to rehabilitation centers, very few of which are public. This almost entirely private field is financially sustained by the National Health Service, which pays a per diem for a patient’s clinic stay. If a patient still needs rehabilitation after 2 months in a rehabilitation clinic or center, reimbursement from the National Health Service will be in any case cut by about 40%. Private insurance is very rare and usually is not involved in rehabilitation.
In private rehabilitation centers, physicians often have to deal with overworked nurses and angry, worried patients and relatives.
Valentina said that her mother went to her general practitioner complaining of frequent headaches, depression, anxiety, dizziness, and recurrent fatigue. Her general practitioner, diagnosed her as “a hysteric neurotic,” and she was prescribed anxiolytics. Her headaches continued. When she finally was able to see a specialist, her magnetic resonance image report showed that she had several cerebral metastatic lesions from an otherwise silent neoplasia – basically, a death sentence.
Switzerland has the best health care system in the world! The Swiss health care system is regulated by the Swiss Federal Law on Health Insurance. There are no free state-provided health services, but private health insurance is compulsory for all persons residing in Switzerland (within three months of taking up residence or being born in the country) (country #2 on my options for retirement).
Like every country we visited, Switzerland has a universal health care system, requiring all to buy insurance. Switzerland holds a special place in my heart. My mother’s mother, Martha Zuin (imagine an umlaut over the ‘u’), immigrated to the US from Switzerland, so I still have family living in Switzerland.
The plans in Switzerland resemble those in the United States under the Affordable Care Act: offered by private insurance companies, community-rated and guaranteed-issue, with prices varying by things like breadth of network, size of deductible and ease of seeing a specialist. Almost 40% of people get subsidies offsetting the cost of premiums, on a sliding scale pegged to income. Although these plans are offered on a nonprofit basis, insurers can also offer coverage on a for-profit basis, providing additional services and more choice in hospitals. For these voluntary plans, insurance companies may vary benefits and premiums; they also can deny coverage to people with chronic conditions. Most doctors work on a national fee-for-service scale, and patients have considerable choice of doctors, unless they’ve selected a managed-care plan.
Both Swiss and German systems cost their countries about 11 percent of GDP.
Mia, the hotel clerk at Lake Maggiore, is a Swiss resident. She informed me that insurance premiums are not adequately adjusted to income, and they have doubled in price since 1996, while salaries have risen by just one-fifth. It comes as no surprise, then, that just over a quarter of the population needed government assistance to pay their premiums in 2014. She says that over 1/2 of Swiss residents owe money for medical bills.
You can be blacklisted from reimbursement for health insurance in Switzerland. Some 30,000 blacklisted patients so far have lost their right to be reimbursed for medical services under basic insurance and can be refused care, save for emergencies. A policy initially designed to encourage people to pay up has instead come under fire for going against the principle of basic health coverage for all. In 2017, EHR became mandatory for most, which increased the costs for many health care visits.
Research told me that Switzerland is the second most expensive country for health care other than USA with The Netherlands, Sweden, Germany, and Denmark closely following.
Germany has the best health care system in the world! The German health care system and Switzerland’s have a lot in common. According to interviewees, Germany has slightly better access to health care, especially with respect to costs. Switzerland has higher levels of cost-sharing, but its outcomes are hard to beat — arguably the best in the world – for real.
A majority of Germans (86%) get their coverage primarily though the national public system, with others choosing voluntary private health insurance. Most premiums for the public system are based on income and paid for by employers and employees, with subsidies available but capped at earnings of about $65,000. Patients have a lot of choice among doctors and hospitals, and cost sharing is quite low. It’s capped for low-income people, reduced for care of those with chronic illnesses, and nonexistent for services to children. There are no subsidies for private health insurance, but the government regulates premiums, which can be higher for people with pre-existing conditions. Private insurers charge premiums on an actuarial basis when they first enroll a customer, and subsequently raise premiums only as a function of age — not health status. Most physicians work in a fee-for-service setting based on negotiated rates, and there are limits on what they can be paid annually.
Though mostly public, the German health insurance system is not a state-run system like the National Health Service in the United Kingdom. In fact, more than 100 different health insurers, known as sickness funds, compete for members in Germany’s comparatively decentralized system. These sickness funds are non-profit, non-governmental organizations that operate autonomously. Most Germans’ health insurance contributions are deducted from their paychecks by their employers. The amount, however, is capped at 14.6% of a person’s salary, split fifty-fifty between the employer and the employee, so 7.3% each way. But coverage is not dependent on the employer, so when Germans change or lose their jobs, nothing changes in their health insurance. Recent changes in health care have allowed the wealthy to obtain higher quality and more efficient health care services. Anyone who makes over 57,600 euros/year can opt out of public health care and pay for private health care. Doctors are more prone to be more attentive of their privately-insured patients.
We met Emma at a beer garden; she was our waitress. Emma was as equally inquisitive about American health care as I was about German health care. She said that she could not get her head wrapped around HIPAA. Privacy, she indicated, is not a hot topic issue in Germany. Emma said that doctors in Germany “get it wrong a lot.” When I asked her what she meant, she said that she went to her general practitioner for chest pain. Whereas, in America, chest pain is considered serious, Emma said that her doctor did not even place a stethoscope on her chest. Instead, he told her to go home, rest, and take an Ibuprofen. Emma’s friend had a baby with a problem in one eye. She went to several doctors and they told her nothing can be done. She finally went to a specialist in Spain and received a concrete diagnostic and special glasses for the 7 month-old-baby, because the eye movement was related to the eye condition.
Austria has the best health care system in the world! If European health care were on a bell curve, Austria would be at the bottom (hmmmmm…..although I have not compared Austria to the US). Dr. Clemens Martin Auer is the President of the European Health Forum Gastein and Director General at the Austrian Federal Ministry of Health.
Dr. Auer is focused on digital health and access to drugs. Talking to people in other European countries, who complained about over prescribing, Austria, apparently, has a high cost issue barring many people from receiving prescriptions.
In Austria, the health care system is largely financed by social security contributions and taxes, to a lesser part also by private sources, such as prescription charges, compulsory personal contributions, per-diem charges for hospital stays or contributions to private health insurance.
Each month a contribution will be taken from your tax payment, which is worked out according to how much you earn. This gives you access to basic healthcare including treatment in hospitals, medication, dental care, and some specialist appointments. If you make over 31,000 euros, you pay 41% tax.
According to Tobias, the man I met in Innsbruck, people wait months to see a specialist. So, if you have a cold, you are good, but of you have cancer, then get on the waiting list. Tobias also told me that people do not go to hospitals unless they have a severe injury or serious surgery. Instead, the general practitioners are heavily relied on. I am not sure I like the idea of going to a generalist for everything. If I have stark knee pain, I want to see an orthopedic, not a general internist. But I am learning that free health care may not equate to the best health care.
To listen, please click here.
Highlights of this episode include:
- Background on why CMS will forego all audits unrelated to the coronavirus.
- What types of audits will CMS continue during the coronavirus pandemic?
- What providers need to know about complying with current audits, such as TPE audits.
- How providers can protect themselves by documenting exceptions such as two-day admissions.
- And more…
Mike Passanante: Hi, this is Mike Passanante and welcome back to the award-winning Hospital Finance Podcast®.
As a result of the COVID-19 crisis, the government has suspended most auditing activities for providers. To sort out what that means for hospitals, I’m joined by Knicole Emanuel. Knicole is an attorney at Potomac Law Group in Raleigh, North Carolina, where she concentrates on Medicare and Medicaid regulatory compliance litigation. Knicole, welcome to the show.
Knicole Emanuel: Thank you and thank you for having me.
Mike: Knicole, the government announced that it is suspending survey activities. Practically what does that mean for providers?
Knicole: Well, so right now because of the Coronavirus, CMS has decided to forego audits that are unrelated to the coronavirus. So actually effective April 3, 2020. The only audits that will be conducted will be those audits that are germane to all immediate Jeopardy complaints. Those kind of cases that represent a situation in which an entities non-compliance has placed the health and safety of recipients in its care at risk for serious injury. So we’re talking about potential serious injury or serious harm.
Another audit that’s going to continue would be complaints alleging infection control concerns because that would obviously be impacted by the coronavirus. Any sort of statutorily required recertification surveys are going to be conducted. I would assume that they’re going to be conducted telephonically. They’re not going to be going on-site and revisits necessary to resolve current enforcement actions. That’s important because when this Coronavirus all came about, there were hundreds and hundreds and hundreds, perhaps thousands upon thousands of healthcare providers already in the middle of TPE audits or RAC audits or MAC audit. And they’d already had on-site visits, they’d already had maybe perhaps a lower accuracy rating. And they’re going to be stuck in this cycle of being stuck in the audit until they can get a resurvey because with this coronavirus the penalties that they’re enduring, whether it’s a suspension of admission, or whether it’s a monetary penalty. These penalties are being administered even if they cannot have a secondary or a revisit of the audit to get them off of the penalty that they’re currently on. So it’s really important that people who are in the middle of audit and when all this came down to get them off of the audit cycle so they can go back to providing care.
Mike: So essentially, there are a number of activities that are suspended. But it’s important for providers to know that there is a subset of activities that will continue even during this period.
Knicole: Correct. But they’re all going to be activities that are of the utmost importance. The items that take lower priority are going to be pushed down.
Mike: Okay, and you mentioned the TPE audits a second ago. So that’s the targeted probe and education. Are they going to continue during this time period as far as you know?
Knicole: Well, so as far as I know, they are not going to continue as in they’re not going to start new TPE audit. Now the question then becomes, “Well, I received a document request a month ago for a TPE audit. Do I need to comply now?” And the conservative safe answer is to go ahead and keep complying with these document requests. Although the deadlines for these document requests, those are going to be extended. I’m sure you’ll be able to get extensions for trying to comply with those. And in reality, if you contact the people who are conducting the audit, you may find that the entire audit in general is put on pause. But don’t assume it’s put on pause. Try to make sure you comply, unless you find out it’s on pause. And if you get something over the email or over a phone that says that your TPE audit is paused currently, follow up with an email and get it in writing. Because future audit, they’re not going to remember that your particular audit was with pause during the coronavirus.
Mike: That’s great advice, Knicole. Do you have any other recommendations for providers as they’re navigating through this time?
Knicole: Yes, I do. There are a number of providers right now that are asking for exceptions, and I can give examples. So for example, in the hospital setting, there are hospitals that are asking for waivers for the inpatient admission standards or the two-day admission, or the moon rules. All those kind of things are asking for exceptions, and a lot of the hospital, A lot of the providers are getting the exceptions they need to allow people to have to stay longer in their hospitals because they have nowhere to discharge them. They can’t go back to their nursing homes where the coronavirus may or may not be. And so, because they’re getting all these exceptions, five years from now when you’re undergoing an audit, no one is going to remember that you had this exception that this particular consumer can stay in my hospital for two extra days or five extra days. And five years from now, you may get audited and say, “Well, you got to recoup all this money because you let them stay in for too long of a time.” When in reality, you are given an exception, write all the exceptions down. Keep one place, keep a computer program, keep a hard copy, whatever you want to do, and notebook, if that you want to get down to not having any technology involved. But keep track of all of these exceptions that you get as little as they may be because if you’re getting an exception for one person, and that one person can stay longer than the two-day allowance for the outpatient stays, and you multiply that by, okay, well, now you’ve got to take that exception and extrapolate it again, 200 people over the course of a year, that’s a lot of money we’re talking about. So you need to make sure you keep track of all the exceptions, no matter how small. And keep track of them somewhere that you’re not going to lose them. If your attrition rate is high with executives, you need to make sure that the next people in line had that knowledge so that in future audit, you can explain that you did not abide by the regulations for good reason. You had an exception, but no one’s keeping track of all these exceptions.
Mike: And so, it’s great advice, Knicole. And I know you’ve got a great blog of your own that people can follow. If people wanted to read more about what’s going on here on that blog or get in touch with you, how can they do that?
Knicole: Well, you’re more than welcome to go onto my blog, which is Medicare and Medicaid law. It is at medicaidlawnc.com. You can also contact me at any time. I’m at Potomac Law Group. I help providers across the country and not only in North Carolina, but in 33 states. And so, I am pretty well versed on all the exceptions that I’m seeing. It’s really fast-paced right now. It’s scary. It’s surreal. But it is really important to make sure that everything is written down because in the future– I mean, that old saying that old adage for nurses, if it’s not written, it doesn’t exist, is really going to matter in the future years.
Mike: Knicole, thanks for adding some clarity around this very complex issue. We appreciate you coming back to the show today.
Knicole: Absolutely. Thank you.
Written by my partner, Isaac Mamaysky. This article is germane to health care providers during this COVID19 pandemic.
The governor of Ohio recently made national headlines by telling employers across the state to check employees’ temperatures every day before work. Whenever employers conduct health screenings or otherwise make decisions based on their employees’ health, the Americans with Disabilities Act becomes a key consideration.
The ADA regulates employer-mandated medical examinations, the medical questions employers are allowed to ask employees, and of course, the provision of reasonable accommodations to disabled individuals, including during a pandemic.
During the 2009 H1N1 swine flu pandemic, the U.S. Equal Employment Opportunity Commission published a document called Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. Having faded into relative obscurity in the intervening years, the EEOC’s guidance once again became relevant when COVID-19 was named a global pandemic.
Since that time, employment attorneys have referenced the 2009 guidance and wrestled with its implications for 2020. Last week, the EEOC updated its H1N1 guidance to clarify exactly how the principles apply today. The EEOC also updated a separate guidance document called What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and released a supplemental webinar titled Ask the EEOC.
Perhaps not surprisingly, the Ohio governor’s request aligns with the EEOC’s compliance guidelines, which help employers navigate ADA considerations while keeping COVID-19 out of the workplace. While medical examinations are normally prohibited under the ADA, the EEOC explains that examinations are appropriate when an employee would pose a “direct threat” to others by transmitting COVID-19.
Taken together, the EEOC’s updated guidance materials provide the following key takeaways for employers.
Employers should not ask questions related to disabilities, such as whether an employee has a compromised immune system or a medical condition that makes the employee more susceptible to COVID-19.
Employers can ask questions about symptoms of COVID-19 to ensure that sick employees stay home. Likewise, when employees call in sick without giving details, employers can ask about symptoms of COVID-19 in order to protect the rest of the workforce. However, employers should not ask these questions of employees who are already working remotely and have not been interacting with customers or coworkers.
Employers can check temperatures and conduct COVID-19 screenings of current employees, and of new employees but only after making a conditional job offer. If an employer has a reasonable belief based on objective evidence that a particular employee might have COVID-19 (due to a hacking cough, for example), the employer may conduct a health screening only of that one employee, rather than the entire workforce.
If an employee refuses to answer COVID-19 screening questions or refuses a temperature check, then the employer may bar the employee from the workplace. The EEOC encourages employers to assure employees that their medical information will remain confidential, which may make employees more likely to comply with employer requests.
Any records resulting from medical screenings should be maintained in a separate medical file (i.e., not as part of an employee’s personnel file) and treated as a confidential medical record. If a manager receives medical information while teleworking, and thus cannot follow the employer’s usual confidentiality protocols, the medical information should be safeguarded to the greatest extent possible until it can be properly filed when the manager returns to the workplace. This may mean documenting medical information using initials or ensuring that laptops and devices cannot be accessed by others in the household.
Likewise, employers who send an employee home should keep the decision confidential. Employers can tell other employees that they were exposed to a coworker with COVID-19, and then send home all employees who worked in close proximity to that person, but employers should not identify the coworker in question.
That person’s identity should only be shared with those who have a need to know, such as a supervisor who interviews the coworker about who might have been exposed to them in the workplace. Likewise, if an employee is teleworking due to having COVID-19, the employer can share the fact that the employee is teleworking but should not share the reason the employee is teleworking.
Employers can delay the start date of an employee who has symptoms of COVID-19. If an employer needs an employee to start working immediately, then the employer can withdraw a job offer to an employee with COVID-19.
Employers can request that employees who recently traveled to affected areas or were exposed to a person with symptoms of COVID-19 stay out of work until a certain number of days passes without symptoms. Employers should not specifically ask employees if they have a family member with COVID-19, which would be prohibited by the Genetic Information Nondiscrimination Act. Employers can ask, more generally, if employees have been exposed to any person with symptoms of COVID-19.
Employers can require a doctor’s clearance prior to allowing an employee to return to work. Note, however, that the Centers for Disease Control and Prevention tells employers not to require a doctor’s note to validate symptoms, because that discourages employees from staying home.
Employers can require employees to adopt infection-control practices in the workplace, such as prohibiting handshakes and requiring frequent hand-washing, wearing masks, maintaining six feet of distance from other employees, and related measures.
For the moment, much of this guidance applies to essential businesses, such as supermarkets and transportation companies, which are still open despite quarantines and other social distancing measures. Many nonessential businesses, which are currently closed, aspire to reopen as soon as possible.
While the exact timeline is still unclear, many businesses will likely reopen while COVID-19 is more controlled than it is today but still a risk, especially for employees with compromised immune systems and other medical conditions (such as lung disease and heart issues).
Since employers cannot ask questions related to disabilities, how can they determine which employees may be unavailable when they reopen? The EEOC explains that an inquiry is not disability-related if it identifies nonmedical reasons for absence on the same footing with medical reasons.
So, for example, an employer is permitted to ask a survey question along the following lines: In the event our business reopens in the near future, would you be unable to come to work for a reason such as your child’s day care center being closed, public transportation being sporadic, other dependents needing care, or having a compromised immune system or other health condition?
In this way, employers can determine which staff will be unavailable without running afoul of the ADA.
Depending on how early a particular business reopens, certain vulnerable employees might need to continue working from home for some period of time. Of course, employers are not absolved of their obligations to provide reasonable accommodations during a pandemic.
The EEOC observes that the rapid spread of COVID-19 has increased the number of requests for reasonable accommodations. This number will continue to increase if businesses reopen while the virus is not fully contained.
If an employer’s usual reasonable accommodation processes are delayed due the volume of inquiries, the EEOC encourages employers to implement temporary solutions that enable employees to keep working while the discussion and potential provision of reasonable accommodations is pending. The EEOC’s webinar provides extensive details on this topic.
Reflecting the general uncertainty surrounding current events, the EEOC is still unsure whether COVID-19 is a disability under the ADA. As the EEOC observes, our knowledge of COVID-19’s spread and containment changes day by day and its status as a disability will become clearer as time goes on.
As employers and their attorneys have seen, federal and state laws and regulations are changing equally fast. For now, while much of the country is on pause, employers should watch the changing landscape closely.
In the coming weeks and months, and especially as businesses reopen, states are expected to implement many new safety protocols. Perhaps a number will even follow Ohio’s lead by beginning each workday with a temperature check.
This article originally appeared in Law 360’s Expert Analysis section on March 31, 2020.
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Note: This bulletin is for general use and should not be construed to provide legal advice as to particular factual situations.
Effective March 10, 2020, the Division of Health Benefits (DHB) implemented a 5% rate increase for the Medicaid provider groups listed below. See DHHS Update. (This update was published April 3, 2020, but retroactively effective).
DHB will systematically reprocess claims submitted with dates of service beginning March 10, 2020, through the implementation date of the rate increase.
Claims reprocessing for Skilled Nursing Facility providers will be reflected in the April 7, 2020, checkwrite. All other provider groups claim reprocessing will be included in subsequent checkwrites beginning April 14, 2020.
Providers receiving a 5% increase in fee-for-service reimbursement rates:
- Skilled Nursing Facilities
- Hospice Facilities
- Local Health Departments
- Private Duty Nursing
- Home Health
- Fee for Service Personal Care Services
- Physical, Occupational, Respiratory, Speech and Audiology Therapies
- Community Alternatives for Children (CAP/C) Personal Care Services (PCS)
- Community Alternatives for Disabled Adults (CAP/DA) Personal Care Services (PCS)
- Children’s Developmental Service Agency (CDSA)
[Notice that none of the increased rates include Medicaid services managed by managed care organizations (“MCOs”). No mental health, substance abuse, or developmentally disabled services’ rates are included].
Reprocessed claims will be displayed in a separate section of the paper Remittance Advice (RA) with the unique Explanation of Benefits (EOB) codes 10316 and 10317 – CLAIMS REPROCESSED AS A RESULT OF 5% RATE INCREASE EFFECTIVE MARCH 10, 2020 ASSOCIATED WITH THE COVID-19 PANDEMIC. The 835 electronic transactions will include the reprocessed claims along with other claims submitted for the checkwrite (there is no separate 835). Please note that depending on the number of affected claims you have in the identified checkwrite, you could see an increase in the size of the RA.
Reprocessing does not guarantee payment of the claims. Affected claims will be reprocessed. While some edits may be bypassed as part of the claim reprocessing, changes made to the system since the claims were originally adjudicated may apply to the reprocessed claims. Therefore, the reprocessed claims could deny.
This Medicaid rate increase could not come faster! While it is a small, itsy-bitsy, tiny, minuscule semblance of a “bright side”…a bright side it still is.