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Articles Posted in Medicare/Medicaid

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“We serve patients poorly when government regulations gather dust in the attic: they become even more stale and liable to wreak havoc throughout the health care system. Administrative costs are driving up the cost of health care in America – to the tune of hundreds of billions of dollars. The Stark proposed rule is an important next step in President Trump’s health care agenda for Americans. We are updating our antiquated regulations to decrease burden for providers and helping bring down these increasingly escalating costs.”

– Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma.

The Department of Health and Human Services (HHS) announced today the release of several proposed changes to the regulations that interpret the Physician Self-Referral Law (the Stark Law), the Civil Monetary Penalty Law (CMP), and the Federal Anti-Kickback Statute (AKS). The proposed revisions are intended to provide greater clarity to health care professionals.

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By Adrienne Dresevic, Esq. and Carey Kalmowitz, Esq. of The Health Law Partners, P.C.

The Centers for Medicare & Medicaid Services (CMS) issued a final rule that strengthens the agency’s ability to stop fraud by barring unscrupulous providers out of federal health insurance programs. This rule is unlike past rules in that it stops providers before they get paid. This is a momentous step on CMS’s part to end “pay and chase” in federal health care fraud efforts and replace it with proactive measures.

The final rule, Program Integrity Enhancements to the Provider Enrollment Process (CMS-6058-FC), becomes effective November 4, 2019 and establishes novel revocation and denial authorities to buttress CMS’ efforts to stop waste, fraud and abuse. This rule is applicable to the entire provider community, including radiologists.

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An Ashland, KY addiction treatment specialist, Dr. Rose O. Uradu, and her substance abuse treatment center, Ultimate Care Medical Services, LLC d/b/a Ultimate Treatment Center, have agreed to pay $1.4 million to resolve civil allegations that they violated the Controlled Substances Act, and defrauded the Medicare and Kentucky Medicaid programs.

The settlement resolved a civil lawsuit alleging that Ultimate Treatment Center, at the direction of Dr. Uradu, sought and received payments from Medicare and Kentucky Medicaid for services that were not actually provided to patients. According to the Complaint, between January 2013 and September 2014, defendants billed these government programs for “evaluation and management” services, purportedly provided to patients who visited the clinic to receive daily methadone doses. The United States alleged that Ultimate Treatment Center did not actually perform these services when patients received their methadone doses, but falsely documented the performance of these services, in the patients’ medical records, in order to create the false appearance that the reimbursement was justified.

The United States further alleged that, during the period July 2013 and December 2014, defendants billed Medicare and Kentucky Medicaid for complex urine testing that the clinic’s equipment was incapable of performing, therefore violating the False Claims Act.

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In the recently released CY 2020 Outpatient Prospective Payment System (OPPS) proposed rule, the Centers for Medicare & Medicaid Services (CMS) introduced policies that, if finalized, would require hospitals to post a list of standard charges for items and services provided. This proposed rule updates the requirements set forth in the FY 2015 Inpatient Prospective Payment System (IPPS)/Long-Term Care Hospital (LTCH) final rule, which aimed to improve the transparency of hospital prices by requiring either standard charges to be posted online or compliance with patient requests for same. This rule was finalized on August 2, 2018 and came into effect on January 1, 2019. HLP previously wrote about the FY 2015 IPPS/LTCH rule here.

Following a June 24, 2019 Executive Order and several listening sessions and CMS-solicited comments, CMS offered numerous updates to its policy in the 2020 OPPS proposed rule. These changes would include defining several standard terms used in the policy, requiring the posting of 300 “shoppable services” to the hospital’s website, asking for payer-specific information, and penalizing noncompliant hospitals.

In order to ensure every hospital operating in the U.S. and in U.S. territories complies, CMS seeks to broadly define “hospital” as an institution in any State in which State or applicable local law provides for the licensing of hospitals and is either: licensed as a hospital pursuant to such law or, approved, by the agency of such State or locality responsible for licensing hospitals as meeting the standards established for such licensing. CMS does note that the rule would not apply to ambulatory surgical centers or nonhospital sites offering laboratory or imaging services but does encourage these facilities to comply with the policy. Furthermore, the rule would not apply to federally owned or operated hospitals, such as the U.S. Department of Veterans Affairs or hospitals operated by an Indian Health Program.

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On July 30, 2019, a federal jury in Detroit, Michigan, found a patient recruiter guilty for his role in a scheme involving approximately $1.3 million in fraudulent Medicare claims for home health care that were procured through the payment of illegal kickbacks.

Following a six-day trial, Dominic Trumbo, 45, of Lexington, Kentucky, was found guilty of one count of conspiracy to pay and receive health care kickbacks and three counts of receipt of health care kickbacks.

According to evidence presented at trial, from 2009 to 2017, Trumbo, owner of Trumbo Consulting Agency, solicited and received kickbacks in exchange for referring Medicare beneficiaries to serve as patients at multiple home health agencies. These agencies then submitted claims to Medicare for home health services that were purportedly provided to those beneficiaries.

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This year, key information regarding the Appropriate Use Criteria (AUC) program is being released by the Centers for Medicare & Medicaid Services (CMS) via guidance documents. A Change Request was issued July 26, 2019, informing Medicare Administrative Contractors (MACs) that they are to begin accepting AUC-related modifiers and healthcare common procedure coding system (HCPCS) codes in 2020.

Under the AUC program, a practitioner must consult a qualified Clinical Decision Support Mechanism (qCDSM) at the time of an advanced diagnostic imaging service order. The qCDSM – an electronic portal through which AUC is accessed – provides a determination of whether the order adheres to AUC or if the AUC consulted was not applicable to the patient’s clinical condition.

Currently running as a voluntary program, CMS has announced an Education and Operations Testing Period to begin January 1, 2020 and running the full calendar year to give practitioners appropriate time to adjust to the system. During this period, “claims will not be denied for failing to include AUC-related information or for misreporting AUC information.” However, CMS also writes that they expect ordering professionals to begin consulting qCDSMs and providing the relevant information to the furnishing providers during the test period “as it is important for CMS to track this information.”

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IMPORTANT NEWS FOR HOME HEALTH AGENCIES – In a fact sheet released July 11, 2019, the Centers for Medicare & Medicaid Services (CMS) detailed its annual update to the Medicare rate, as well as its plan for the implementation of the Patient-Driven Groupings Model (PDGM) and other proposals for calendar year (CY) 2020, which can be downloaded here. Despite the pushback in recent months from lawmakers, home health stakeholders, and organizations such as the National Association for Home Care & Hospice, CMS indicates their intentions of moving forward with many of the provisions included in PDGM.

Perhaps chief among Thursday’s proposed rule is CMS’s plan to phase out pre-payments for home health agencies (HHAs). This would eliminate the ability of HHAs to submit a Request for Anticipated Payment (RAP) in order to obtain 50-60% of the anticipated payment at the beginning of a patient’s care episode. According to CMS, the plan for the elimination of RAPs was brought on by “a marked increase in RAP fraud schemes perpetrated by existing home health agencies that receive significant upfront payments, never submit final claims and then close for business.” CMS is proposing that RAP payments for existing providers will be phased out over the next year, with full elimination occurring by 2021.

However, CMS’s proposed rule also includes a 1.3% – or $250 million – projected increase to the Medicare payments made to HHAs. This rate increase reflects a 1.5% home health payment update as well as a 0.2% decrease due to reductions made by the new rural add-on policy.

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The Office of Medicare Hearings and Appeals (OMHA) has announced an expansion of the Settlement Conference Facilitation (SCF) program available to the appellant community as of June 7, 2019. Previously, the option of an SCF was only available to appeals filed on or before November 3, 2017.

An SCF is “an alternative dispute resolution process designed to bring the appellant and the Centers for Medicare and Medicaid Services (CMS) together to discuss the potential of a mutually agreeable resolution for Medicare Part and Part B claims.” Claims that are eligible for SCF must be at the OMHA level or the Medicare Appeals Council (MAC) level.

An employee of OMHA is designated as a facilitator for the duration of an SCF, whose main purpose is to facilitate payment negotiations between the appellant and OMHA, working to make the two parties see the relative strengths and weaknesses of their positions. The facilitator does not act as a fact finder during this process, nor do they make determinations on the qualities of the claims.

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In order to secure a new Beneficiary and Family Centered Care Quality Improvement Organization (BFCC-QIO) contractor, the Centers for Medicare and Medicaid Services (CMS) has temporarily paused both Short Stay and Higher Weighted Diagnosis-Related Group (HWDRG) reviews.

Previously, two BFCC-QIOs have performed HWDRG reviews since 2014 and Short Stay reviews since 2015 for all 50 states and three territories: Kepro and Livanta. Moving forward, one organization will handle both types of reviews on a national basis.

Short Stay reviews provide an opportunity for BFCC-QIOs to ensure doctors and hospitals are maintaining compliance with the Medicare Part A payment policy for inpatient admission. BFCC-QIOs assumed responsibility of conducting Short Stay reviews on October 1, 2015. Previously, the reviews were conducted by Medicare Administrative Contractors (MACs) and Recovery Auditors.

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The former CEO of a hospital chain that was headquarted in Naples, Florida has agreed to pay $3.46 million to settle allegations that he caused the hospital to knowingly submit false claims to government health care programs. Gary D. Newsome was the CEO of Health Management Associates (HMA) from September 2008 to July 2013, during which time he caused patients to be admitted who could have been treated on a less costly, outpatient basis, according to the Department of Justice’s release. Allegations that Newsome caused HMA to pay remuneration to Emergency Department (ED) physicians in exchange for referrals are also resolved by this settlement.

“A physician’s health care decisions should be driven by what is in the patient’s best interest, not by what helps line a provider’s pockets,” said Barbara Bowens, the Acting U.S. Attorney for South Carolina for purposes of this case. “The U.S. Attorney’s Office will not tolerate false claims based on unnecessary hospital admissions, which drive up health care costs and can harm patients.”

The allegations against Newsome that are resolved by this settlement payment include:

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