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CMS Posts Preview of Proposed Rules

Last week, CMS posted the Preview of the Proposed Rules, which will officially be released in Federal Register format and open for comments on September 23. The proposed rule focuses on implementing the Affordable Care Act (“Act”) that will, in part:
• Establish screening procedures for suppliers and providers of services participating in Medicare, Medicaid, and the Children’s Health Insurance Program (“CHIP”)
The screening process will apply to “providers of services,” which is defined as “health care entities that furnish services primarily payable under Part A of Medicare, such as hospitals, home health agencies, hospices, and skilled nursing facilities.” Furthermore, suppliers are also to be screened. “Suppliers” are “health care entities that furnish services primarily payable under Part B of Medicare, such as independent diagnostic testing facilities (IDTFs), durable medical equipment prosthetics, orthotics, and supplies (DMEPOS) suppliers, and eligible professionals, which refers to health care suppliers who are individuals, that is, physicians and the other professionals listed in section 1848(k)(3)(B) of the Act.” The screening includes a number of methodologies ranging from fingerprinting to unannounced site visits to checks across state lines.
• Impose an application fee on “each institutional provider of medical or other items or services or supplier”
This fee would be used to conduct the screening process and to fund other “program integrity efforts.” An “institutional provider of medical or other items or services or suppliers” is defined as any healthcare provider that bills Medicare, Medicaid, or CHIP on a fee-for-service basis, except those entities or practitioners who submit the CMS 855I to enroll in Medicare.
• Impose temporary moratoria–suspensions–on payments, If necessary, to prevent fraud, abuse, and waste under Medicare, Medicaid, and CHIP The temporary moratoria will be in six-month increments in the following situations:
1. CMS identifies a trend associated with a high risk of fraud, waste, or abuse;
2. A state has imposed a moratorium on enrollment in a particular geographic area, provider type, or supplier type; or 3. CMS has identified a particular provider or supplier type or a particular geographic area that has a high potential for fraud.
• Provide guidance to states on how to terminate providers and suppliers from Medicaid or CHIP if they have been terminated from Medicare, Medicaid, or CHIP • Provide the requirements for suspension of payments pending credible allegations of fraud, abuse, and waste in Medicare and Medicaid According to the Act, the Secretary may suspend payments if there is a credible allegation of fraud, abuse, or waste. “Credible allegation of fraud” includes “an allegation from any source, including but not limited to fraud hotline complaints, claims data mining, patterns identified through provider audits, civil false claims cases, and law enforcement investigations. Allegations are considered to be reliable when they have indicia of reliability.” The rules note that, while the definition is evolving, an investigation has concluded–there has been a resolution of an investigation–when “legal action is terminated by settlement, judgment, or dismissal, or when the case is closed or dropped because of insufficient evidence.”

Please check back at the end of the week for a link to the proposed rules in the Federal Register format.

For more information, please contact Adrienne Dresevic, Esq. or Carey F. Kalmowitz, Esq. at (248) 996-8510 or (212) 734-0128 or Daniel B. Brown, Esq. at (770) 804-6475 or visit the Stark and Anti-Kickback specialty page on the HLP website.

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