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CMS Proposes Changes In Rules For CMOs

For the first time in more than a decade, the Centers CMOfor Medicare and Medicaid Services issued proposed changes in rules affecting Care Management Organizations

On June 1, 2015, the Centers for Medicare and Medicaid Services (“CMS”) published a proposed rule affecting Care Management Organizations (CMOs) that administer Medicaid benefits.  This is the first major overhaul of the managed care system since 2002.  Most believe these changes are long overdue as CMOs now cover approximately 74 percent of all Medicaid enrollees making managed care the dominant delivery system for Medicaid.

According to CMS, the Proposed Rule will “improve beneficiary communications and access, provide new program integrity tools, support state efforts to deliver higher quality care in a cost-effective way, and better align Medicaid and CHIP managed care rules and practices with other sources of health insurance coverage.”

The Rule targets seven main areas:

  • Improvement of the beneficiary’s experience
  • State delivery system reform
  • Quality improvement
  • Program and fiscal integrity
  • Managed long-term services and supports (MLTSS) programs
  • Children’s Health Insurance Program (CHIP)
  • Alignment with Medicare Advantage and Private Coverage Plans

Public comments are due July 27, 2015. CMS has published a Fact Sheet outlining the Proposed Rule that can be found here.

We urge CMOs to familiarize themselves with the Proposed Rule and take advantage of the time period for public comment. If you have any questions involving the Proposed Rule, please contact Kimberly Sheridan at 678.325.3872.

 

CMS Proposes New Quality Reporting Measures for Medicare Payment

MedicareThe Centers for Medicare and Medicaid Services (CMS) has proposed a rule regarding Medicare payments for inpatient rehabilitation facilities. Through this new rule, CMS introduces new quality measures that will be tied to reimbursement.

Such quality measures generally focus on overall performance with respect to specific components of the health status of patients, like new or worsening pressure sores, and certain events, such as falls causing major injuries.

A facility’s failure to submit the information regarding these quality measures would result in a reduction in Medicare payments to that facility.

In the CMS publication, the government estimates the new quality reporting requirements will cost inpatient rehab facilities around $24 million. However, because the rule also proposes a modest rate increase, the government estimates that the changes under the rule will result in $130 million increase in payments to those facilities.

The Proposed Rule can be found here.

If you have questions regarding these new quality reporting requirements, please contact DJ Jeyaram or Danielle Hildebrand at 678.325.3872.

Physicians’ Medicare Payments No Longer Tied To Economy

SRGAfter almost 20 years, Congress finally passed a law repealing the Sustainable Growth Rate (SGR ). Under SRG, Medicare payments to physicians were tied to the growth rate in the economy. Because of the sluggish economy during and after the Great Recession, the growth rate formula has resulted in either a reduction or inadequate increase in Medicare reimbursement rates. As a result, Congress recently passed last minute, short-term fixes to ensure that physicians receive the appropriate fees.

With the passage of the new law, physicians will finally see stabilization in Medicare payments. The statute provides for a 0.5% increase for the next five years. Then the government will transition to a new system in which payments will be based on quality, value and accountability – the Merit-based Incentive Payment System.

The repeal of SGR is good news for physicians treating Medicare patients. Because Medicare reimbursement rates have been so unpredictable for the last decade, physician practices  have had little opportunity to arrange for innovative care models. With the new law, physicians have the chance to come up with groundbreaking care delivery models while developing patient care protocols focused on quality and gearing up for the next phase in Medicare reimbursement.

If you are a physician with questions about Medicare reimbursement or enrollment, or need healthcare regulatory advice, please contact DJ Jeyaram at DJ@jeylaw.com or Danielle Hildebrand at Dhildebrand@jeylaw.com.

Supreme Court Rules Medicaid Providers Cannot Sue To Enforce Their Rights

US Supreme CourtOn March 31, 2015, in a 5-4 decision, the United States Supreme Court issued its opinion in Armstrong v. Exceptional Child Center, Inc.[1] This decision essentially precludes all Medicaid providers from bringing a private cause of action to enforce their rights under the Medicaid Act.

Through Medicaid, the federal government subsidizes the States’ providing of medical services to qualified people. To get the federal monies, a state must adopt, and the federal government must approve, its Medicaid plan. Section 30(A) of the Medicaid Act requires that a state Medicaid plan must contain procedures to ensure that reimbursement rates for healthcare providers “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to meet the need for care and services in the geographic area.

In Armstrong, a group of providers filed suit under the Supremacy Clause to enforce the provisions of Section 30(A) and to enjoin the Idaho Health and Welfare Department officials from continuing to reimburse the providers at rates lower than rates set forth in a provider cost study that had recommended increasing reimbursement rates. The 9th Circuit ruled that the Supremacy Clause gave the providers an implied right of action to bring suit. The Supreme Court disagreed.

The majority of the Supreme Court reasoned that while the Supremacy Clause instructs the courts to give federal law priority when there is a clash between a federal law and a state law, it does not create a cause of action.

The Majority went on to hold that the providers could not proceed in equity because the power of the federal courts to enjoin unlawful state action must be set out expressly or implicitly in statute. Here, the court reasoned that the Medicaid Act set out an express provision of a single remedy for the State’s failure to comply with the Medicaid act. That remedy is found in 42 U.S.C. Section 1396(c) and stated that the Secretary of Health and Human Services may withhold Medicaid funds if the State is failing to comply with the Medicaid Act.

What are the real life implications of this suggested remedy? As pointed out in Justice Sotomayor’s dissent, the Majority’s suggested remedy-withholding state funds will lead to the very result the law was enacted to prevent: depriving the poor of essential medical assistance.

What is the potential impact of this decision? If low rates cannot be challenged, Medicaid recipients will have fewer choices of health care providers because lower reimbursement rates make it harder for healthcare providers to choose to provide care to Medicaid recipients.[2]

What remedies are left for a provider? In Georgia, a Medicaid provider’s relationship with the State is based in contract, so remedies under the contract may still exist. If you are a provider and have a question about your rights under the Medicaid Act, please contact Kimberly Sheridan at Jeyaram & Associates at 678-709-4703.

[1] For the full opinion, please go to http://www.supremecourt.gov/opinions/14pdf/14-15_d1oe.pdf

[2] http://harvardcrcl.org/supreme-court-threatens-medicaid-reimbursement-accountability/

 

Court Finds DCH’s Handling of Mass Reprocessing “Inconsistent and Misleading”

DCHIn a decision last week, the Office of State Administrative Hearings (OSAH) reversed the Department of Community Health’s (DCH) denial of a Request for Administrative Review by a group of Children Intervention Services (“CIS”) providers. The CIS providers had requested a review of recoupment actions that stemmed from two 2014 Mass Reprocessings by the Department, one involving NCCI edits that included claims dating back to 2010.  The Department argued that the providers missed the 30 day deadline to file a Request for Administrative Review.

Attorney Kimberly Sheridan of Jeyaram & Associates represented the group of CIS providers in the administrative hearing and argued that the providers should be granted a review because they followed all the instructions specific to the mass reprocessing posted by the Department in several banner messages and emails, as well as in-person conversations. Through the banner and email message instructions, the Department departed from its standard deadlines in its policy manuals.  The Court found that the Department’s position was “illogical and wholly unfair,” and that its instructions to the providers after the mass reprocessing were “inconsistent and misleading.” The Court also said the providers had justifiably relied on these instructions and could not now be penalized for their reliance.

At this time, the Department has not made it known if it will appeal the decision.

If you are a provider subject to a recoupment and need help, or if you need to appeal DCH’s decisions, Jeyaram & Associates has extensive experience and success with these cases. Contact Kimberly Sheridan at ksheridan@Jeylaw.com or 678.325.3872.

Healthcare Providers Need To Examine Billing Practices To Ensure Compliance

healthcare fraudLast month, the Department of Health and Human Services released its annual report for the Health Care Fraud and Abuse Control Program. According to the report, in 2014 more than 900 new criminal health care fraud investigations were opened by the Department of Justice. There was a slight increase in the number of criminal cases and convictions from last year, with 496 cases and 735 defendants convicted of criminal health care fraud. Civil cases alone resulted in $2.3 Billion in settlements and judgments.

The government’s press release reiterated that detecting and eliminating fraud and abuse continues to be a top priority. The government attributes its high recoveries to a change in strategy which uses real-time data analysis to detect fraud more quickly. The Centers for Medicare and Medicaid currently uses advanced analytics on Medicare fee-for-service claims. The goal of this is to detect aberrant and suspicious billing patterns which would then trigger an investigation or enforcement action by the government.

Now is the time to for Medicare and Medicaid providers to review their billing practices and financial relationships to ensure that they are compliant with federal laws. Charges against providers were made under the False Claims Act, as well as Anti-Kickback Statute, the Stark Law (Physician Self-Referral Law), and other federal laws.

The full annual report is available at www.oig.hhs.gov/publications/hcfac.asp.

If you have any questions about the legality of your billing practices or financial relationships, please contact DJ Jeyaram at DJ@jeylaw.com or Danielle Hildebrand at dhildebrand@jeylaw.com.

 

DJ Jeyaram Earns Georgia’s Top Lawyers’ Award – Healthcare & Administrative Law

Healthcare Law AwardPrincipal DJ Jeyaram has achieved the prestigious 2014 peer-reviewed rating of AV Preeminent® by Martindale-Hubbell®. According to Martindale-Hubbell, “The AV Preeminent® Rating is a significant accomplishment and demonstrates that a lawyer’s peers have ranked them at the highest level of professional excellence.” Martindale-Hubbell is the company that has long set the standard for lawyer ratings. DJ earned the award for superior legal service in healthcare and administrative law.

Congratulations DJ Jeyaram!

DCH Adopts New Rules for Rural Hospitals

DCH Rural HospitalsA potential solution to rural hospitals’ funding challenges

A few months ago, the Georgia Board of Community Health (DCH) adopted new rules that allow rural hospitals to reduce the scope of services provided and operate as a rural free standing emergency department. This provides an alternative to closing down operations for rural hospitals which may be struggling with funding operations on a full service scale. It also provides an opportunity for rural hospitals that recently ceased operations (and have either maintained a current DCH license or their license expired within the last 12 months) to re-open their doors.

Hospitals interested in pursuing this course of action must meet certain conditions including:

  1. The hospital must be located in a rural county (population under 35,000);
  2. The hospital must be located within 35 miles of a licensed general hospital;
  3. The hospital must be open 24 hours a day, 7 days a week; and
  4. The hospital must provide non-elective emergency treatment for periods continuing less than 24 hours.

Like the general and specialized hospitals, the rural free standing emergency department must obtain a permit to operate, as well as a specific license to operate as a rural free standing emergency department.

The new rules also require that specific operational elements be put in place. For example, a free standing emergency department must attempt to enter into an agreement with the surrounding hospitals and provide in that agreement a mechanism for patient transfer.

One controversial requirement set forth in the new rules is the requirement to provide certain medical services to patients such as medical screenings and treatment to stabilize without considering the individual’s ability to pay. Jimmy Lewis, CEO of the Georgia Rural Hospital trade organization, has stated that this rule may be unfair to the new stand-alone EDs because the transferee hospital “most often objects if the patient is a no-pay thus keeping the patient in the ED beyond licensure capability.” See http://www.hometownhealthonline.com/blog.

Furthermore, rural free standing EDs will have to bill Medicare and Medicaid at a lower provider rate rather than the current hospital rates. As of May 20, 2014, the application to become a rural free standing emergency department was made available by DCH. See http://dch.georgia.gov/documents/rural-freestanding-emergency-department- application-packet-5192014. According to DCH’s instructions, hospitals should submit a completed application along with supporting documentation at least 6 weeks prior to the planned opening date of the facility. If you are a hospital considering taking this step, the following items should be obtainedand/or completed to support your application:

  1. evidence that the hospital’s Certificate of Need authorization is still active;
  2. an application for a permit;
  3. notarized affidavits regarding ownership identification;
  4. a written request to conduct an initial licensure survey; and
  5. a statement from the local fire safety authority stating that an inspection has been made of the premises and that the state and local fire safety requirements have been met and the facility is approved for occupancy.

If you have any questions or would like legal assistance,  please contact Danielle Hildebrand at dhildebrand@jeylaw.com.

Healthcare Fraud: What To Do If You’re Audited

healthcare fraudOver the past several years, we’ve seen a trend in increased investigations and enforcement of healthcare fraud. This trend continued in 2013 and is continuing in 2014. Nationally, in 2013, the United States Attorney’s Office investigated 1,013 new criminal matters involving healthcare fraud and filed charges in 480 of these cases. In Georgia, in 2013, there were 336 Medicaid Fraud Investigations.  Of those investigations, only 13 led to indictment; but of those 13 indicted, 10 resulted in convictions. Given this trend, if you are a healthcare provider, it is vital to know what to do if you find yourself being investigated for fraud.   Following are some important  steps to follow if the government shows up at your door with a search warrant: —  Immediately call your attorney. Do not pass go. Call.  It is crucial to call an attorney who has experience in both health care law and in defense. —  Ask for identification of the people at your door. Review the credentials or business card. Write down the name and contact information. —  Do NOT destroy, alter or remove any documents. —  Be polite. Remain calm. Be cooperative. Say please and thank you. —  Ask for a copy of the search warrant and any affidavit filed in support of the warrant. —  Ask what crime and conduct is under investigation. —  Request that no interviews be conducted until your attorney arrives. —  Immediately advise all supervisory personnel of the search and that they are to wait for the attorney to arrive before answering any questions. —  Compile an inventory of all the documents being removed and ask if you can copy all the documents being seized – this includes making a back up disk for all computer files —  Make a record of everything said by an investigating officer. If you cannot do this during the search, write up your recollection after the search —  If possible, videotape or photograph the search —  DO NOT speak with the press Jeyaram & Associates has helped numerous organizations facing charges of healthcare fraud. To learn more or for assistance, contact Kimberly Sheridan at ksheridan@jeylaw.com

CIS Recoupments Begin – Still Time To Appeal

CIS Recoupment ClaimsThe first Special Remittance Advices (“RA”) pursuant to the Department of Community Health’s CIS Claims Reprocessing were issued this week.  Claims originally processed between November 1, 2010, through June 30, 2012, that billed specific CPT codes are subject to this special reprocessing based on the CMS National Correct Coding Initiative mandated by the Affordable Care Act.

Early reports are that the Special RA’s detailing the voided claims have been several hundred pages long with recoupments reported from $5000 to $100,000.

Some providers have indicated that DCH may be willing to enter into payment plans with providers to space-out the recoupment amount and that the Department may also allow denied claims to be re-billed with the proper CPT modifiers to allow for payment.

Section 202 of DCH’s Part I:  Policies and Procedures Manual requires that claims be received within six (6) months after the month in which service was rendered to be reimbursed unless certain exceptions are met.  It is unclear whether DCH considers the Special Reprocessing as meeting the exception requirements.  If it does not, then providers may be limited to six (6) months for re-billing claims.

If you think the Department’s determination of recoupment is incorrect, you can still appeal the determination as described in Part I of this article. It is extremely important that you satisfy all of the appeal requirements and meet all deadlines.  Failing to do so means that you waive your appeal rights and may not be able to challenge the DCH action.

If you’ve received notice that your practice is subject to the reprocessing recoupment and need help or if you need to appeal DCH’s decisions, Jeyaram & Associates can help. Contact DJ Jeyaram at DJ@Jeylaw.com or 678.325.3872.