Articles Posted in Compliance

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The Office of Medicare Hearings and Appeals (“OMHA”) has been updating the OMHA Case Processing Manual (“OCPM”) since the Medicare appeals final rule became effective on March 20, 2017. As an effort to regulate and codify procedures for adjudicative functions through statutes, regulations, and OMHA directives, the OCPM is regularly revised to stay up-to-date with the Medicare appeals process.

The first major recent revision to the OCPM was eliminating the four divisions: Part A/B Claim Determinations, Part C Organization Determinations, Part D Organization Determinations, and SSA Determinations. The revised OCPM is no longer divided and consists of twenty consecutive chapters. In May 2018, the OCPM added new chapters 1 and 20, and revised chapter 19. In July 2018, the OCPM revised chapters 5, 6, and 7.  Most recently, on November 30, 2018, OMHA published new chapters 17 and 18.

Chapter 17 is entitled “Dismissals.” It addresses reasons why an ALJ or attorney adjudicator may dismiss requests for hearings or a review of reconsideration dismissal. For example, the reasons an ALJ may dismiss a case include, without limitation, an untimely filing, failure to cure a defect in the request for hearing, or failure to appeal.  On the other hand, an attorney adjudicator may dismiss a request for hearing only when the appellant withdraws the request for hearing.  The chapter also outlines the information that must be contained within a dismissal order, the impact of a dismissal on a case, and the circumstances in which an adjudicator may vacate his or her dismissal. Lastly, the chapter addresses the right to appeal an ALJ’s or attorney adjudicator’s dismissal order.

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On September 26, 2018, the Centers for Medicare & Medicaid Services (“CMS”) announced plans to commence a review demonstration of Home Health Agencies (“HHAs”) in Illinois, Ohio, North Carolina, Florida, and Texas, with the option to expand to other states in the JM jurisdiction. CMS invited public comment on CMS’ new proposal in the Federal Register by October 29, 2018. The Pre-Claim Review Demonstration (“PCRD”) was re-named the Review Choice Demonstration (“RCD”) and began in Illinois on December 10, 2018.

The RCD is a revised version of the PCRD. The PCRD went into effect in August 2016 but was short-lived, as it was halted in April 2017 due to wide backlash among Home Health Industry providers. Thus, the new RCD should be more welcomed HHAs, as it is much more flexible than the previously rigid PCRD.

The Secretary is authorized to “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established under [the Act].” Based on this authority, CMS implemented the RCD to help identify, investigate, and prosecute potential fraud occurring within HHAs who are providing services to Medicare beneficiaries. The RCD is intended to ease the burden on CMS by reducing the number of audits while protecting the Medicare Trust Fund by ensuring that payments for home health services are appropriate.

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On November 1, 2018, a U.S. District Court ordered the United States Department of Health and Human Services (“HHS”) to eliminate the Medicare appeals backlog by the end of fiscal year 2022.  There are currently 426,594 backlogged appeals. The recent ruling imposes a timetable for reducing the backlog of appeals. Specifically, 19% of the appeals must be cleared by the end of fiscal year 2019; 49% of the appeals must be cleared by the end of fiscal year 2020; 75% by the end of fiscal year 2021; and the backlog must be eliminated entirely by 2022. To demonstrate its progress, HHS must file quarterly status reports beginning on December 31, 2018.

The Court’s order arises from a lawsuit that was filed by the AHA in 2014. AHA alleged that HHS was violating federal law by failing to process appeals within 90 days from the date of the Office of Medicare Hearings and Appeals’ receipt of the request for hearing.  In 2016, the District Court entered summary judgment in favor of the AHA and ordered HHS to comply with a timetable to eliminate the backlog of appeals by 2020.  In 2017, the D.C. Circuit reversed the District Court and ordered the District Court to evaluate HHS’ claim that compliance with the timetable would be impossible.

HHS has implemented some backlog-reduction efforts to try complying with the previous ruling to eliminate the backlog by fiscal year 2020. Settlement Conference Facilitations (“SCF”) are an example of one of these initiatives. Medicare Part A and Part B providers and suppliers who have appeals pending before an ALJ are encouraged to participate in SCF. SCF uses a facilitator to help the appellant and CMS find a mutually agreeable resolution. Initiatives like SCF are a step forward in reducing the backlog, as it takes people out of the long waiting period and resolves cases in a simpler matter.

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In 2015, Anthem, Inc. (“Anthem”) discovered that criminal hackers had breached its electronic database and gained access to over 79 million records, including the records of at least 12 million minors.  The protected health information obtained by the hackers included, among other information, names, addresses, dates of birth, medical IDs, and Social Security numbers. The hackers were able to gain access to the information by using a “spear phishing” email technique. At least one employee received a phishing email and responded to it, allowing the hackers to gain remote access to the employee’s computer and at least 90 other systems, including Anthem’s data warehouse.

Although the massive data breach was first discovered in January 2015, the breach actually began on February 18, 2014 – meaning the breach went undetected for almost a whole year.   “Unfortunately, Anthem failed to implement appropriate measures for detecting hackers who gained access to their system to harvest passwords and steal people’s private information,” said Office of Civil Rights (“OCR”) Director Roger Severino.

Anthem has agreed to pay $16 million to the Department of Health and Human Services’ (“HHS”) OCR and take corrective action to prevent potential violations of HIPAA rules in the future.  While other breaches like this have occurred in the past, this was the largest health data breach in U.S. history, and the $16 million settlement is now the largest HIPAA settlement in history.

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The Centers for Medicare & Medicaid Services (“CMS”) recently announced a review of Inpatient Rehabilitation Facilities (“IRFs”) that will focus on the “reasonable and necessary” requirement that IRFs are required to meet. An IRF provides rehabilitation services to patients who have suffered an injury, illness, or surgery that has left them in need of intensive rehabilitation.  Services provided by IRFs include physical therapy, occupational therapy, rehabilitative nursing, speech-language pathology, and the procurement of prosthetic and orthotic devices.

IRF services are considered “reasonable and necessary” if: (1) the patient requires therapeutic intervention in multiple therapy disciplines, (2) the patient actively participates in and benefits from the therapy program, (3) the patient is sufficiently stable at the onset of the program, (4) the patient is supervised by a physician, (5) the patient’s chart has the correct documentation within it, and (6) the patient requires an interdisciplinary team approach to care and the team has weekly meetings.

IRFs are not meant to be used as an alternative to a full course of treatment.  Patients who are still completing their treatment in the hospital and cannot fully participate in intensive rehabilitation therapy will not have their IRF service determined to be reasonable or necessary. Furthermore, IRF is not appropriate for patients who have finished their hospital treatment and no longer need intensive rehabilitation.

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The Provider Reimbursement Review Board (“PRRB”) is an independent panel that a Part A provider can appeal to if it is not satisfied with any final determination. In order to appeal, the amount in controversy for a single hospital must be at least $10,000, and at least $50,000 for a group of hospitals.  The PRRB’s decision is considered the final administrative remedy for providers.  If a provider is dissatisfied with the PRRB decision, it can seek judicial review before a federal district court.  Last month, the PRRB released 90 pages of updated rules without advanced notice, which providers and attorneys are expected to comply with in their appeals.  These significant changes to the PRRB rules could be catastrophic for providers because they may waive their entire appeal if they fail to follow a new rule.

Hospitals tend to utilize the PRRB appeals process by challenging disproportionate-share hospital payment calculation, or by challenging the amount of Medicare bad-debt payment they receive. These are generally complex issues that require a significant amount of time to investigate and fully develop.  Unfortunately, the parties will no longer be afforded the ability to develop their case as it proceeds through the appeals process. The new rules require a preliminary position paper (and the corresponding exhibits) to be filed with the PRRB at the beginning of the appeal process. This new requirement forces providers to have their argument in its most complete form at the beginning of the process because additional arguments and evidence cannot be added later, except for good cause. Additionally, if anything is missing in the initial submission of materials, the entire appeal will be dismissed.

Another extremely important change is that providers may now simultaneously file appeals with the PRRB and then withdraw them if they believe their claims can be resolved with the Medicare Administrative Contractor (“MAC”).  If a resolution is not reached, providers can reinstate their appeals with the PRRB. Furthermore, if a provider appeals the same issue arising from different Notice of Program Reimbursements (“NPRs”) in the same year, it must be brought in the same appeal.

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The Centers for Medicare & Medicaid Services (“CMS”) recently released a proposal that would alter the Medicare Physician Fee Schedule (“MPFS”) and significantly change evaluation and management (“E/M”) code payment rates. Payment rates for services furnished by physicians and other non-physicians are published in the MPFS, and E/M visits account for about 40% of allowed MPFS charges. CMS’ goal with this new proposal is to make documentation less time-consuming and allow providers to spend more time with their patients.  However, the proposal, which would lower reimbursement rates, has not been well-received by all providers.

Currently, E/M codes range from levels 1-5; 1 being a relatively simple service performed by a non-physician, and 5 being the most complex service performed by a physician. CMS is proposing to collapse levels 2-5 for new and established patients, creating one flat rate for levels 2-5. By having a single payment rate, CMS is expecting patient care to improve.

Normally, when documenting for the higher-level codes, physicians use boilerplate language in order to meet billing requirements. There have been concerns that this boilerplate language can be harmful to patients because the clinically important information gets lost within it. Thus, by eliminating the need for nuanced language to distinguish each level, CMS hopes that patients will have more face time with their provider. Furthermore, when patients access their charts, they will be able to clearly understand what the issue is.

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The Centers for Medicare and Medicaid Services (“CMS”) recently released a final rule that is meant to empower patients and reduce administrative burdens by advancing the MyHealthData and the CMS Patients Over Paperwork initiatives.  Payment policies and reimbursement rates are updated under the “Medicare Hospital Inpatient Prospective Payment System (“IPPS”) and Long-Term Acute Care Hospital (“LTCH”) Prospective Payment System Final Rule,” which will modernize Medicare by aiding in the shift from a fee-for-service to value-based payment system.  The final rule also creates greater transparency surrounding hospital prices, increases accessibility to Electronic Health Records (“EHR”), and allows providers to spend less time on paperwork and more time with patients.

The final rule reveals that CMS has finally decided to put an end to a special payment adjustment policy, known as the 25% rule.  The 25% rule was introduced in 2004, but its implementation had been postponed for years due to concerns about reimbursement.  The 25% rule would have reduced LTCH Medicare reimbursement if more than a quarter of the LTCH hospital had patients from a single acute-care hospital. The National Association of Long-Term Hospitals estimated that the reduced rate would have caused LTCHs to receive 50% to 60% less in reimbursement.

The rule was originally crafted by CMS because LTCHs often failed to follow payment criteria that defined qualifications for prospective payment system rates. This issue was addressed in the Bipartisan Budget Act of 2013 with the site-neutral payment policy. AHA Executive Vice President, Thomas Nickels said in a letter to CMS, “given the scale of LTCH cuts under site-neutral payment, implementing the 25% rule… would unjustifiably exacerbate the instability and strain on the field, which would threaten access for the high-acuity, long-stay patients that require LTCH-level care.” Furthermore, alternative payment models are now in place, which incentivize hospitals to follow the payment criteria.

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During a hearing on July 17, 2018, Department of Health and Human Services (HHS) Deputy Secretary Eric Hargan announced that HHS is interested in reforming the Stark law and the Anti-Kickback Statute (AKS). As value-based care is becoming more prominent in the healthcare system, coordinated care between providers is a necessity; but the Stark law and AKS are considered an impediment to coordinated care. Hargan contends that since the Stark law was created in a fee-for-service context, it “may unduly limit ways that physicians and healthcare providers can coordinate patient care [in a value-based system].”

HHS’s push for reform comes out of the “Regulatory Sprint to Coordinated Care,” which is an initiative launched by CMS that seeks to remove barriers to coordinated care while still upholding laws and rules that keep patients safe. According to Hargan, HHS is working on creating administrative rules to address these barriers.

Aside from the regulatory hurdles that the Stark law imposes on coordinated care, HHS is also concerned about the strict liability aspect of the Stark law. Strict liability imposes civil liability with monetary penalties onto the provider, regardless of the intent underlying the Stark law violation arises from an accident. HHS believes that strict liability turns providers away from entering into coordinated care arrangements, because the complexity of the Stark law may cause providers to violate it unintentionally and become liable. A suggested change from HHS is to define “noncompliance” in a clearer manner, which would allow providers to feel more at ease with participating in coordinated care.

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On July 12, 2018, the Centers for Medicare and Medicaid Services (“CMS”) released a statement proposing significant changes to Medicare that would modernize and restructure the Medicare program to deliver increased quality of care at a lower cost to beneficiaries. This will be done by utilizing a value-based healthcare system that works with modern-day technology. The proposal primarily alters the Medicare Physician Fee Schedule and Quality Payment Program.

CMS’s proposal coincides with its Patients Over Paperwork initiative, because it reduces the paperwork requirements for billing, thereby enabling doctors to spend more time with their patients.  The proposed changes to the Physician Fee Schedule and Quality Payment Program will streamline documentation requirements to reduce the administrative burdens on providers. Generally, providers create medical records that use boiler plate language to satisfy Medicare billing requirements, which often contain few details specific to the patient and their personal stories. Allowing providers to designate a plan of care based upon what the provider determines from the time spent with the patient and not based upon documentation guidelines will significantly increase the quality of care.

If the proposal is effectuated, it will modernize payment policies so that telehealth will be more available to Medicare beneficiaries. When a beneficiary virtually contacts their provider (through telephone or other telecommunication devices) to determine whether they need and in-office visit or not, Medicare would cover this service. Additionally, there would be coverage for a physician’s time when they review images or videos sent to them for a diagnosis. CMS would also like to have a patient’s updated medical records follow the patient throughout the healthcare system. This would increase transparency and collaboration by allowing all of the patient’s providers to see the patient’s medical history in full.