Compliance

Published on: September 8, 2023

CMS Increases Scrutiny on Hospice Providers

The Centers for Medicare & Medicaid Services (CMS) recently announced that it intends to increase scrutiny on hospice providers as a result of increased reports and CMS findings suggesting potential hospice services fraud. CMS stated that it is strengthening its hospice program integrity strategy through actions such as site visits and proposed regulations to minimize impacts to Medicare beneficiaries.

As part of this revitalized focus on hospice integrity, CMS has highlighted several observed situations that it views with heightened scrutiny. Certain reports cited by CMS have supposedly identified instances of hospices certifying patients for hospice care when they were not terminally ill and providing little to no services to patients. CMS has also indicated that the listed address for some hospices appears to be non-operational. One particular alleged trend CMS has focused on is known as “churn and burn,” where a new hospice opens and starts billing, but once that hospice is audited or reaches its statutory yearly payment limit, it shuts down, keeps the money, buys a new Medicare billing number, transfers its patients over to the new Medicare billing number, and starts billing again.

In response to these purported findings, CMS embarked on a nationwide hospice site visit program, making unannounced site visits to every Medicare-enrolled hospice. As of mid-August 2023, CMS has visited over 7,000 hospices, and indicated that nearly 400 hospices are being considered for potential administrative action as a result. While many of these hospices may very well be able to demonstrate compliance with Medicare requirements, if CMS finds grounds to conclude that a hospice is allegedly non-compliant, this may result in significant consequences such as suspension or revocation. Further, CMS has noted that rapid hospice growth trends in four states – Arizona, California, Nevada, and Texas – has led the Centers to implement a provisional period of enhanced oversight in these states. During this provisional period, CMS plans to conduct medical reviews before making payments on claims submitted by newly enrolling hospices.

Published on: September 1, 2023

CMS Announces New Voluntary Primary Care Model in Eight States

by Wachler & Associates, P.C.

The Centers for Medicare & Medicaid Services (CMS) recently announced the Making Care Primary (MCP) Model, a new voluntary primary care model that will be tested in eight states. The new model aims to improve care management and care coordination, equip primary care clinicians with tools to form partnerships with healthcare specialists, and leverage community-based connections to address patients’ health needs as well as their health-related social needs, such as housing and nutrition. CMS plans to work with eight state Medicaid agencies to engage in full care transformation across payers, with plans to engage private payers in the future. The MCP Model is slated to launch July 1, 2024 in eight participating states – Colorado, North Carolina, New Jersey, New Mexico, New York, Minnesota, Massachusetts, and Washington.

The MCP Model is a 10.5-year multi-payer model with three participation tracks that build upon previous primary care models. MCP’s overarching goal is to improve care for beneficiaries by supporting the delivery of advanced primary care services, which are foundation for a high-performing health system. To achieve this goal, the Model will provide a pathway for primary care clinicians with varying levels of experience in value-based care to gradually adopt prospective, population-based payments while building infrastructure to improve behavioral health and specialty integration and drive equitable access to care. The Model also attempts to strengthen coordination between patients’ primary clinicians, specialists, social service providers, and behavioral health clinicians, ultimately leading to chronic disease prevention, fewer emergency room visits, and better health outcomes.

Three domains define the MCP Model’s care delivery approach:

Published on: August 21, 2023

HHS, DOL, and Treasury Issue Long-Awaited Mental Health Parity Proposed Regulations

by Wachler & Associates, P.C.

On August 3, 2023, the US Departments of the Treasury, Labor, and Health and Human Services (Departments) issued proposed rules under the Mental Health Parity and Addiction Equity Act (MHPAEA) to reduce barriers to access to mental health and substance use disorder treatment. The proposed rules emphasize the Departments’ focus on mental health parity and aligns with their overarching goal to better ensure that health plans afford access to mental health or substance use disorder benefits as easily as medical or surgical benefits.

By way of background, in 1996, the Mental Health Parity Act of 1996 was enacted by Congress, requiring parity in aggregate dollar and annual dollar limits for mental health benefits. In 2008, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) added additional requirements, expanding the Mental Health Parity Act of 1996. The MHPAEA requires group health plans and insurance issuers to ensure that financial requirements and treatment limitations are not more restrictive for mental health or substance use disorder benefits than medical or surgical benefits. The Consolidated Appropriations Act in 2021 further expanded the MHPAEA by requiring health plans that cover both medical or surgical benefits and mental health or substance use disorder benefits to conduct and document comparative analyses of non-quantitative treatment limitations (NQTL) for both types of benefits.

Although the Departments have issued a fair amount of sub-regulatory guidance regarding the NQTL comparative analysis requirement, the proposed regulations are the first formal regulatory guidance they have issued in about ten years. Recently, audits by the Departments of health plans have directed their focus to MHPAEA compliance. Plan sponsors have expressed frustration with the lack of guidance and varying applications of the existing guidance, complaining that the Departments’ requests are not supported by law, not practical in application, and contradictory.

Published on: August 16, 2023

OIG Final Rule Implementing Information Blocking Penalties

by Wachler & Associates, P.C.

The Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a final rule (Final Rule) on June 27, 2023, which implements statutory provisions for specific individuals or entities subject to the information blocking requirements established by the 21^st Century Cures Act (Cures Act). The Cures Act imposes civil money penalties (CMP) of up to $1 million per violation of information blocking, which is defined as “a practice that interferes with, prevents, or materially discourages access, exchange, or use of electric health information,” except as required by law or covered by an exception.

The Final Rule authorizes HHS to impose CMPs, assessments, and exclusions on individuals and entities that engage in alleged fraud or other misconduct related to HHS grants, contracts, and other agreements, as well as increases the maximum penalties for certain CMP violations. OIG may impose CMPs of up to $1 million per violation of information blocking on a health information technology (Health IT) developer of certified health IT or a health information network or health information exchange (HIN/HIE), as those terms are defined by OIG.

Penalties may be imposed on certified Health IT developers and HIN/HIEs that do not actually interfere with access, exchange, or use of electronic health information (EHI) if the requisite intent is present. Specifically, such individual or entity may have CMP exposure under the Final Rule if it knew or should have known that a practice was likely to interfere with access, exchange, or use of EHI. Additionally, OIG has clarified that a discrete action by an actor that implicates information blocking would be viewed as a single violation. Thus, it appears that the number of violations will be directly connected to the number of discrete acts.

Published on: August 14, 2023

CMS Announces GUIDE: A Medicare Dementia Care Model

by Wachler & Associates, P.C.

On July 21, 2023, the Centers for Medicare & Medicaid Services (CMS) announced a new payment model for providers furnishing dementia care, called Guiding an Improved Dementia Experience (GUIDE). A wide range of Medicare Part-B providers and suppliers are eligible to participate, with the exception of durable medical equipment and laboratory suppliers. The model is a comprehensive package of person-centered assessments, care plans, and care coordination. Additionally, this new payment model aims to further enhance the quality of life for people living with dementia by improving dementia care, reducing strain on unpaid caregivers, and helping people with dementia remain in their homes and communities.

GUIDE’s approach to dementia care takes into account staffing considerations, quality standards, and services for beneficiaries and unpaid caregivers. Under the GUIDE model, beneficiaries are required to be screened for psychological and health-related social needs. As a GUIDE participant, providers are required to establish and maintain an interdisciplinary team consisting of a care navigator and a clinician, with the option of including additional members. The care navigator must have training in care planning and dementia assessment while the clinician is required to have dementia proficiency through experience caring for patients 65 years or older and for adults with cognitive impairment. GUIDE participants are required to provide support services alongside caregiver training.

There are two options for providers considering implementing GUIDE:

Published on: August 9, 2023

OIG Declines to Impose Sanctions on Online Healthcare Directories

by Wachler & Associates, P.C.

The Department of Health and Human Services (HHS) Office of Inspector General (OIG) released Advisory Opinion 23-04 (Advisory Opinion) on July 11, 2023, addressing arrangements between online healthcare directories and certain third-party websites (Directories) with federal healthcare program beneficiaries. In the Advisory Opinion, the OIG declined to impose sanctions on healthcare provider Directories offering these sort of advertising services to providers.

Under the proposed arrangement, healthcare provider Directories are serving as marketplaces in which users and potential patients can book medical appointments with physicians and other healthcare providers (Providers) who are listed on the online Directories. Patients can filter their results by searching for different types of medical providers, and the Directories generate personalized results using a proprietary algorithm.

Although no fee is charged to the patients for using the directory, Providers pay a fee to be included in the directory through an array of payment methods. Whenever potential patients click on a Provider’s profile during their searches, a “per-click” fee is charged to Providers. A “per-booking” fee is also charged to Providers for each new patient the Providers receive through the Directory which may vary in amount based on location, specialty, and other factors impacting the fair market value of the marketing service. Providers can also set spending caps, which would remove the Providers from the directory once a certain amount of booking fees has been met.

Published on: August 7, 2023

CMS Proposes Extension of Virtual Direct Supervision

by Wachler & Associates, P.C.

On July 13, 2023, the Centers for Medicare & Medicaid Service (CMS) released the Calendar Year 2024 Physician Fee Schedule Proposed Rule, proposing to extend remote supervision. The proposed rule continues to define “direct supervision” by allowing supervising physicians and practitioners the ability to continue “direct supervision” through real-time audio and visual interactive telecommunications through December 21, 2024.

Typically, to be payable under Medicare Part B, specific types of services must be provided under certain levels of “direct supervision” by a practitioner or physician. These services often include many diagnostic tests and other services furnished by auxiliary personnel incident to the services of the billing physician. “Direct supervision” usually requires the “immediate availability” of a supervising professional — both in-person and physical availability. However, during the COVID-19 Public Health Emergency (PHE), CMS allowed flexibility in what constituted “direct supervision” by allowing “immediate availability” to include virtual presence using two-way, real-time audio or video technology, instead of requiring physical presence. This policy allowing remote direct supervision was originally set to expire at the end of 2023.

However, due to the increased reliance on virtual direct supervision by physicians and beneficiaries alike, CMS expressed several concerns regarding the expiration of the policy. In its proposed rule, CMS noted that, despite the new patterns of virtual direct supervision that were established and often maintained during the PHE, evidence showing that patient safety is compromised by virtual direct representation is entirely absent. Moreover, telehealth services have overall allowed individuals in rural and undeserved areas to have improved access to care. Expiration of this policy could create substantial barriers to access of many healthcare services, including those furnished incident-to a physician’s service.

Published on: July 24, 2023

OIG Audits the COVID-19 Uninsured Program

by Wachler & Associates, P.C.

HHS Office of Inspector General (OIG) has released a new analysis of claims paid under the COVID-19 Uninsured Program. OIG reportedly identified a few dozen instances where the program reimbursed healthcare providers for services provided to patients who ended up having health insurance coverage. OIG generally assigned responsibility for these payments to the private contractor who administered the program, but nonetheless encouraged audits and recovery from the healthcare providers who received payments.

The COVID-19 Uninsured Program was created in early 2020 in response to provide reimbursement for providers who treated uninsured patients for COVID-19. The program was part of the larger Provider Relief Fund and paid claims up until April 2022, when it ran out of money. Altogether the Program paid out approximately $24.5 billion in claims. The program was overseen by the Health Resources and Services Administration (HRSA), but the day-to-day administration and claims processing functions were contracted to Optum Pay, a subsidiary of Optum Bank.

According to OIG (which did not refer to Optum Pay by name in its report, referring only to “HRSA’s contractor”), the contractor processing claims under the program indicated that it would check the insurance status of patients for whom claims were submitted, but in fact only checked insurance status when the patient’s Social Security Number (SSN) was included on the claim. HRSA did not require SSNs on such claims and so the majority of claims did not include SSNs and were not screened by the contractor prior to payment. Instead, HRSA’s contractor relied on the attestation by providers that the patient did not have health insurance coverage.

Published on: June 28, 2023

U.S. Supreme Court Expands Scope of the False Claims Act, Includes What Provider Believed When It Submitted the Claim

by Wachler & Associates, P.C.

The False Claims Act (FCA) was enacted during the Civil War to impose civil liability on anyone who knowingly acts in defrauding governmental programs. Healthcare fraud has been a leading source of FCA violations for several years, leading to $1.7 billion in settlements and judgments in the last fiscal year alone. Healthcare providers and suppliers who participate in Medicare and Medicaid programs are at risk for FCA violation allegations and must take measures to ensure compliance with these programs by following proper billing procedures. Notably, violations can carry significant consequences, as they impose treble damages and significant per-claim penalties which increase each year with inflation. Cases for violations of the Anti-Kickback Statute (AKS), Physician Self-Referral Law (Stark Law), and other regulatory and compliance requirements are often brought as FCA cases.

Healthcare providers and suppliers who knowingly submit false claims or fail to pay back money owed to the government may be in violation of the FCA. The FCA also carries a whistleblower provision, which allows private citizens to bring qui tam actions against providers and suppliers who have allegedly violated the Act. The government then may intervene in the action, allowing the whistleblower to recover a portion of the recovery. Qui tam actions encompass a considerable portion of FCA litigation and have broadened the scope of the FCA significantly, increasing the risk of violation allegations for healthcare providers and suppliers.

On June 1^st, 2023, the Supreme Court issued a unanimous decision in two consolidated FCA cases, U.S. ex rel. Schutte v. Supervalu Inc. and U.S. ex rel. Thomas Proctor v. Safeway, Inc., ruling that a defendant’s knowledge of a claim’s falsity refers to a subjective standard regarding what the defendant believed at the time it submitted the claims- not what an objectively reasonable person might have known or believed or what may later become reasonable in light of later facts or analysis. This ruling can generally be seen as an expansion of the “knowing” standard under the FCA and should caution healthcare providers and suppliers to take steps to ensure their knowledge and beliefs surrounding submission of claims to Medicare and Medicaid are compliant with these programs and are documented at the time claims are submitted, especially where there is a question of regulatory interpretation or ambiguity. Documentation of this knowledge in the form of written policies and procedures may be especially salient in ensuring compliance. Furthermore, if compliance issues or potential violations are raised, healthcare providers and suppliers should take immediate action to address and rectify them.

Published on: June 26, 2023

Medicare Revocation vs Suspension vs Voluntary Disenrollment

by Wachler & Associates, P.C.

The many ways in which a provider might be removed from the Medicare program are often a source of confusion and consternation for Medicare-enrolled healthcare providers and suppliers. Sometimes a Medicare revocation or suspension may occur unexpectedly and devastate a provider’s business. Sometimes a provider will voluntarily leave the Medicare program in an attempt to avoid inevitable sanctions. Each of these is a distinct mechanism and should be considered separately.

A revocation of Medicare billing privileges, commonly called a “Medicare revocation,” is a forced removal of a provider’s participation in and ability to bill the Medicare program. There are approximately two dozen grounds on which a provider’s billing privileges may be revoked, from noncompliance with Medicare program requirements (as simple as a missed signature on an insurance policy) up to abuse of billing privileges and patient harm. A revocation may be retroactive and take effect sometime in the past, before the provider is notified, or it may take effect sometime in the future, such as 30 days after the provider is notified. A Medicare revocation will be accompanied by a reenrollment bar of one to twenty years and often placement on the CMS Preclusion List. A Medicare revocation is subject to an appeals process, but most of the process is stacked heavily against the provider and it is important for the provider to be active in their response as early in the process as possible.

A suspension of Medicare billing privileges, commonly called a “Medicare suspension,” is a temporary suspension of a provider’s ability to bill the Medicare program. They are often imposed pursuant to a review or an audit where a Medicare contractor has alleged that the provider has committed some form of fraud. Suspensions are often imposed with immediate effect and sometimes without prior notice to the provider. Although suspensions are meant to be temporary, they are of undefined duration and often last for months without a specific end date, suffocating a provider’s business as effectively as a revocation. Medicare suspensions are technically subject to a truncated appeals process, but, although the suspension appeal process should still be pursued, the process is effectively meaningless and suspensions are generally best addressed through contesting the audit that supposedly identified fraudulent claims. However, it is worth noting that Medicare will often suspend a provider long before giving the provider the results of the underlying audit or the opportunity to appeal those results.