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LEGAL ALERTS

 

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FEDERAL COURT RULES THAT AGENCY DECISION AFFIRMING QUALITY REPORTING PROGRAM PENALTY BASED ON TYPO WAS ARBITRARY AND CAPRICIOUS, Vol. 6, No. 2 (Jan. 2020) 

The court’s opinion is a strongly worded rebuke of the “Kafkaesque regulatory labyrinth for hospitals” the agency created in the LTCH Quality Reporting Program, and the agency’s failure to “navigate it themselves.” The court confirmed that the hospital submitted its quality data timely “to one arm of the Department of Health and Human Services, NHSN, but NHSN never sent the data to another arm of the Department because of the typo.” The court also found that no one at NHSN alerted the hospital to the problem before the submission deadline. We represented the hospital in this case.
FEDERAL COURT STRIKES DOWN "MUST-BILL" REQUIREMENTS FOR DUAL ELIGIBLE BAD DEBTS OF NON-MEDICAID-PARTICIPATING PROVIDERS, Vol. 6, No. 1 (Sept. 2019)

In a long-running challenge to denied Medicare bad debts by 75 long-term care hospitals in 26 states and spanning six fiscal years, the United States District Court for the District of Columbia ruled that the Centers for Medicare & Medicaid Services should not have required them to bill the state Medicaid programs and obtain a remittance advice with a payment determination (i.e., the “must-bill” policy) because this was a change to a substantive legal requirement that required notice and comment rulemaking.  This is also one of the first cases to apply the recent Supreme Court decision in Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019).  We represented the providers in these appeals.

MEDPAC SUBMITS JUNE REPORT TO CONGRESS WITH CHAPTER ON UNIFIED POST-ACUTE CARE PAYMENT SYSTEM, Vol. 5, No. 1 (June 2016)

The Medicare Payment Advisory Commission (MedPAC) released its June 2016 Report to the Congress: Medicare and the Health Care Delivery System.  The report examines a variety of Medicare payment system issues. Chapter 3 includes MedPAC's report on developing a unified payment system for post-acute care (PAC).  The Improving Post-Acute Care Transformation Act of 2014 (IMPACT) requires MedPAC to develop a prototype for a unified prospective payment system (PPS) that spans the four major PAC settings – long-term care hospitals (LTCHs), inpatient rehabilitation facilities (IRFs), skilled nursing facilities (SNFs), and home health agencies (HHAs).  Consistent with MedPAC’s discussions during prior meetings, MedPAC concluded that it is feasible to develop a common unit of payment for PAC services, with patient and stay characteristics forming the basis of risk adjustment.

DISTRICT COURT REVERSES MEDICARE APPEALS COUNCIL IN IRF COVERAGE DISPUTE, Vol. 4, No. 4 (Nov 2014)

In a case that shows the benefit of pursuing certain medical necessity denials to the federal courts, an inpatient rehabilitation facility (IRF) recently brought a successful challenge in U.S. district court to a decision by the HHS Departmental Appeals Board, Medicare Appeals Council (MAC).  The MAC had affirmed the Administrative Law Judge’s (ALJ’s) denial of two claims on grounds that they did not meet the Medicare requirements for IRF coverage.  In Teche Specialty Hospital v. Sebelius, the U.S. District Court for the Western District of Louisiana granted the IRF’s motion for summary judgment, vacated the MAC’s decision, and remanded the claims back to the MAC for further consideration.  Hospitals, including IRFs and LTCHs, often challenge payment denials by Medicare contractors where the contractor asserts the lack of medical necessity for inpatient services on the belief that the same services could have been provided at a lower level of care.  However, even well-developed appeals can result in unfavorable agency decisions when an ALJ or the MAC, in particular, fail to consider all of the evidence and testimony (or give it sufficient weight), or apply the wrong legal standard.  When this happens, it is worth taking the appeal to federal court.  Here, the provider was successful in federal court because the MAC ignored valuable testimony from the treating physician at the ALJ level and the provider was able to identify inaccuracies in the MAC’s interpretation of the requirement for IRF coverage that there be an expectation of improvement in the beneficiary’s condition.

THE IMPACT ACT OF 2014 PUTS PROVIDERS ON A PATH TO MEDICARE POST-ACUTE CARE PAYMENT REFORM, Vol. 4, No. 3 (Oct 2014)
On October 6, 2014, President Obama signed into law the Improving Medicare Post-Acute Care Transformation Act of 2014 (“IMPACT”) (H.R. 4994).  Both the United States House of Representatives and the United States Senate passed the IMPACT bill without debate or individual member vote.  IMPACT is a post-acute care (PAC) reform bill that applies to four types of PAC providers—long-term acute care hospitals (LTCHs), inpatient rehabilitation facilities (IRFs), skilled nursing facilities (SNFs) and home health agencies (HHAs).  IMPACT also includes separate provisions on hospice programs.  LTCHs, IRFs, SNFs and HHAs will be required to report to CMS standardized patient assessment data, data on quality measures and data on resource use and other measures.  Any PAC provider that fails to report required data to CMS will see its Medicare payments reduced by two percent in the next year.  The scope of IMPACT is limited by definition to traditional Medicare beneficiaries (Part A or Part B).  Medicare Advantage (Part C) patients are not included.
MEDICARE APPEALS UPDATE AND WHAT CMS IS DOING TO MAKE THE APPEAL PROCESS MORE ADVERSARIAL, Vol. 4, No. 2 (Oct 2014)
Several decisions recently issued by the Provider Reimbursement Review Board (PRRB), the CMS Administrator and the federal courts highlight the many challenges that hospitals and other providers encounter when appealing Medicare reimbursement denied on a cost report.  These decisions address a variety of topics, including requirements for claiming bad debts on cost reports and the rules for appealing cost report determinations to the PRRB.  Recent decisions also address Medicare reimbursement denied on claims review in the context of statistical sampling and reopenings.  CMS also recently issued a transmittal requiring increased participation by Medicare contractors at ALJ hearings to make the claim appeal process more adversarial.
RAC AUDIT UPDATE: LIMITED RESTART, CGI LAWSUIT & SETTLEMENT PROGRAM, Vol. 4, No. 1 (Sept 2014)

After a lull in activity earlier this year, the Recovery Audit Contractor (RAC) program has seen several new developments in recent weeks.  First, the Centers for Medicare & Medicaid Services (CMS) announced that it will allow Recovery Auditors (RAs or RACs) to restart a limited number of Medicare fee-for-service claim reviews.  Meanwhile, the procurement process for the new round of RA contracts has encountered roadblocks resulting from the bid protest brought by CGI Federal Inc. (CGI), challenging the new payment terms for RAs.  Finally, CMS has introduced a settlement program intended to reduce the volume of inpatient status claims currently pending in the appeals process.  This legal alert will discuss these recent changes to the RAC program.  Additional background and information about the RAC program is available in our August 2011 legal alert “CMS Continue to Roll Out RAC Programs, With Some Improvements,” and September 2012 legal alert “CMS Launches RAC Prepayment Review Demonstration.”

CMS MAKES NUMEROUS CHANGES TO THE MEDICARE CLAIMS APPEAL PROCESS AND PROPOSES CHANGES TO MEDICARE COST REPORT APPEALS AND REOPENINGS INVOLVING “PREDICATE FACTS”, Vol. 3, No. 5 (Aug 2013)

The Centers for Medicare & Medicaid Services (CMS) recently issued Transmittal 2729, revising and clarifying many aspects of the process for Medicare claims appeals (the “Transmittal”). The Transmittal revises CMS policies in accordance with the final regulation on Medicare claims appeals promulgated in 2009. Under the Medicare claims appeal procedures, Medicare beneficiaries, providers and suppliers can appeal adverse determinations regarding claims for benefits under Medicare Part A and Part B using a four-level administrative appeal process and the right to judicial review. The changes implemented by the Transmittal took effect July 23, 2013, and are intended to “ensure consistency with provisions of the final rule, enhance and clarify operating instructions and language and reinstate sections that were inadvertently removed from previous manual updates.” We have organized the more relevant changes into four categories discussed below: (1) timing and filing; (2) appeals decisions involving multiple beneficiaries; (3) dismissals; and (4) effectuation of decisions.

BAD DEBT UPDATE: RECENT DECISION AFFIRMS PROVIDERS' BAD DEBT CLAIMS WHILE COLLECTION EFFORTS CONTINUE & CMS BULLETIN ON QMB COST SHARING, Vol. 3, No. 4 (July 2013)
For providers participating in the Medicare program, bad debt reimbursement is an important way to offset otherwise uncollectible co-insurance and deductible amounts. However, the Centers for Medicare & Medicaid Services (CMS) has been unwilling to reimburse bad debts where collection efforts continue at an outside collection agency. The United States District Court for the District of Columbia’s recent decision in District Hospital Partners, L.P v. Sebelius took issue with this policy. In a decision that may substantially benefit providers, the court affirmed providers’ claims for Medicare bad debt reimbursement while collection efforts continued at an outside collection agency. More recently, CMS issued an Informational Bulletin on Medicare cost sharing for Qualified Medicare Beneficiaries (QMBs). For the first time, CMS acknowledges the difficulties that Medicare providers have encountered with state Medicaid programs concerning crossover claims for Medicare cost-sharing amounts, including claims for QMB cost sharing. It remains to be seen whether states will fix the many enrollment and billing impediments that still prevent providers from obtaining the processed Medicaid bills needed to satisfy Medicare’s “must bill” bad debt policy.
The omnibus final rule (the “Omnibus Rule”) issued by the U.S. Department of Health and Human Services (HHS) makes significant changes to the area of health care privacy. The Omnibus Rule includes a wide variety of modifications and clarifications to the privacy and security rules established by the Health Insurance Portability and Accountability Act of 1996
(HIPAA). These changes will impact the operations and compliance responsibilities of covered entities, including group health plans and health care providers, and their business associates. In anticipation of the September 23, 2013 deadline for compliance with these new requirements, this article outlines the necessary steps group health plans and health care providers must take to ensure their HIPAA policies and procedures comply with these changes.

TOP APPEAL ISSUES AND SUCCESS RATES AT THE PROVIDER REIMBURSEMENT REVIEW BOARD, Vol. 3, No. 2 (March 2013)

Hospitals and other Medicare providers continue to face cost report adjustments that deny reimbursement for a wide variety of items. However, certain issues are appealed more often than others. We analyzed all of the decisions issued by the Provider Reimbursement Review Board (PRRB) over the past two years. The PRRB is an independent panel that hears Medicare provider appeals of cost report determinations by payment contractors, including Fiscal Intermediaries (FIs), Carriers, and Medicare Administrative Contractors (MACs), as well as the Centers for Medicaid & Medicare Services (CMS). As long as certain jurisdictional requirements are met, the PRRB is authorized to hear a broad range of provider appeal issues. However, we found that a handful of issues dominate the PRRB’s caseload, including: (1) Disproportionate Share Hospitals (DSH), (2) Direct Graduate Medical Education (GME) and Indirect Medical Education (IME), (3) Bad Debts, and (4) Wage Index/Rural Floor/Budget Neutrality. By examining PRRB decisions between October 10, 2010 and September 25, 2012, we identified a number of trends with regard to these frequently appealed reimbursement issues and their success rates.

AMERICAN TAXPAYER RELIEF ACT OF 2012 INCREASES MEDICARE OVERPAYMENT RECOVERY PERIOD TO FIVE YEARS, Vol. 3, No. 1 (Feb 2013)

With the enactment of the American Taxpayer Relief Act of 2012 (ATRA) (i.e., the “fiscal cliff” bill), the federal government has significantly expanded its ability to recover Medicare overpayments from health care providers and suppliers.  Congress characterized the change from a three-year recovery period to a five-year recovery period as “Removing Obstacles to Collection of Overpayments.”  But the immediate effect is that the 2008 and 2009 years— previously closed to routine overpayment collections—are now at risk.  Prospectively, the burden on all health care providers and suppliers will increase as they must devote resources to preserve and defend five years of Medicare payments.

LATE TRANSMISSION OF INPATIENT REHABILITATION FACILITY PATIENT ASSESSMENTS CAN LEAD TO INCREASED SCRUTINY AND PENALTIES, Vol. 2, No. 11 (Dec 2012)

Inpatient rehabilitation facilities (IRFs) are required to transmit patient assessment data on their Medicare patients to the Centers for Medicare & Medicaid Services (CMS).  IRFs that do not transmit such data timely face a 25 percent reduction in claims payment as a penalty.  Unfortunately, CMS has done a relatively poor job in educating IRFs on the policies, processes and penalties surrounding this regulatory obligation.  In addition, CMS systems issues have hampered enforcement efforts.  With a series of reviews and reports, the Department of Health and Human Services, Office of Inspector General (OIG) hopes to change this.  The OIG has used these reports to highlight the general failure of CMS and its contractors to enforce payment penalties on IRF claims for the late-submission of patient assessment data.  In response, CMS has taken steps to address systems issues and encourage its Fiscal Intermediaries (FIs), Medicare Administrative Contractors (MACs) and Recovery Audit Contractors (RACs) to conduct post-payment reviews of IRF claims to determine whether the corresponding IRF-Patient Assessment Instrument (IRF-PAI) data was transmitted late.  IRFs should expect increased audit activity around the timeliness of IRF-PAI data transmissions and be prepared to challenge alleged overpayments.
 
When Medicare contractors reopen an initial payment determination on a claim and change that determination more than a year later, health care providers lose the finality of the original determination and, often times, all or part of the Medicare reimbursement associated with the claim.  The regulations require that the Medicare contractor have “good cause” to reopen the claim after one year.  Health care providers have been quick to raise this rule as a defense to recoupment or repayment on the claim.  But a recent decision by the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) will make it more difficult to raise this procedural argument on appeal.  In Palomar Medical Center v. Sebelius, the court held that a provider may not challenge a lack of good cause for reopening a claim determination under the Recovery Audit Contractor (RAC) program.
As of August 27, 2012, recovery audit contractors (RACs) will examine specified Medicare program claims prior to authorizing payment. This is a noted departure from the incentive-based, post-payment audit program that currently exists. Recent legislation expanded the authority of Medicare Administrative Contractors (MACs) by eliminating provisions of the Social Security Act that imposed statutory limits on contractor use of random and non-random prepayment reviews. The RAC prepayment demonstration will not interfere with MAC prepayment reviews, as neither contractor may overlap in reviewing claims already reviewed by the other contractor type. The Centers for Medicare & Medicaid Services (CMS) expects that prepayment reviews will curb fraud and abuse more efficiently than the traditional “pay and chase” audits of paid claims for errors. Unfortunately, for hospital providers in the affected States, this could mean substantial delays in Medicare reimbursement.
 

CMS RELEASES LTCH QUALITY REPORTING PROGRAM MANUAL, REPORTING SOFTWARE AND TRAINING MATERIALS, Vol. 2, No. 8 (Aug 2012)

The Medicare program has increasingly sought to measure and encourage quality of care for its beneficiaries through required quality reporting programs for participating providers. With the enactment of the Patient Protection and Affordable Care Act (Affordable Care Act), long-term acute care hospitals (LTCHs) are now subject to a quality reporting (QR) program for inpatient services. Because data collection, reporting and submission requirements for Medicare are novel for LTCHs, CMS drafted the CMS LTCH Quality Reporting Program Manual (the Manual) as guidance and is providing related software and training. LTCHs must thoroughly understand and comply with the QR Program requirements in order to avoid payment reductions beginning in FY 2014.
 
Beginning in 2014, the Patient Protection and Affordable Care Act (PPACA) requires certain health plans to cover essential health benefits (EHB), as that term is defined by the Secretary of Health and Human Services (Secretary).  On July 20, the Secretary issued a final rule that establishes data reporting standards for certain issuers of health plans to support the definition of EHB.  Specifically, issuers of the three largest small group market products in each state must report information on covered benefits.  The final rule also sets out a two-phased approach for recognizing accrediting entities for purposes of certifying qualified health plans (QHPs).
 

CMS PROPOSES CHANGES TO THE QIO REVIEW PROGRAM, Vol. 2, No. 6 (July 2012)

Health care providers regularly deal with medical reviews as part of Medicare program participation. For the past thirty years, peer review organizations, now known as Quality Improvement Organizations (QIOs), have reviewed the services of Medicare providers in an effort to maintain and improve the quality of care. Because QIO reviews follow a formal audit protocol, the process can be both time consuming and impersonal. With these and other issues in mind, on July 9, 2012, the Department of Health & Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) proposed changes to the regulations governing QIO reviews and solicited input from the public as part of the larger hospital outpatient prospective payment system (HOPPS) proposed rule. Overall, the proposed changes would increase the role of Medicare beneficiaries in the complaint review process and may shorten decision timeframes, but at the cost of certain provider rights. Most if not all Medicare providers will be impacted and should consider filing comments with CMS.
 

OIG INVITES SUGGESTIONS TO IMPROVE THE PROVIDER SELF-DISCLOSURE PROTOCOL, Vol. 2, No. 5 (July 2012)

Almost every health care provider at some time will face this situation:  previous conduct or billings related to Medicare services appear to have been out of compliance with Medicare program laws, rules, or policies.  In evaluating options for disclosing such actions to Medicare, health care providers understandably look for an established process to resolve the matter. The Department of Health & Human Services (HHS) Office of Inspector General (OIG) recognized the need for an established disclosure process almost 14 years ago and developed the Provider Self-Disclosure Protocol. The Self-Disclosure Protocol was designed to facilitate cooperation between the Federal government and health care providers by establishing a process for providers to disclose and resolve potential violations of health care program laws. However, in general, the OIG has failed to make the program attractive enough to convince providers that the benefits of participation outweigh the risks of inviting OIG enforcement. As a result, the Self-Disclosure Protocol has been only mildly successful. The OIG is now looking for ways to improve the Self-Disclosure Protocol. On June 18, 2012, the OIG announced that it will update the Provider Self-Disclosure Protocol and solicited input from the public.  This announcement is significant because it marks the first time that the OIG has explicitly solicited public comments regarding the Self-Disclosure Protocol. The OIG’s call for comments presents an excellent opportunity for health care providers to request the kinds of improvements to the Self-Disclosure Protocol that would make participation more attractive.
 
Since it was signed into law by President Obama on March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) (i.e., the health reform law) has begun to alter the healthcare landscape in numerous ways. But PPACA’s constitutionality was immediately challenged by a series of lawsuits that have culminated in a historic set of cases before the United States Supreme Court (Court). A decision is expected this June. Among the possible results, the Court could (1) decide that it is premature to rule on the law; (2) uphold the entire law; (3) strike the individual mandate to purchase health insurance (with or without related provisions); (4) strike the Medicaid expansion; or (5) strike the entire law (because parts ruled invalid are deemed not severable). If the entire law is struck down, the Medicare parts will be invalidated and the Department of Health & Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) will be forced to unwind or assert other authority for changes made pursuant to the law. This legal alert examines the favorable and unfavorable aspects of PPACA that impact LTACHs and how they may fare after the Supreme Court rules.
 

TERMINATION OF MEDICARE/MEDICAID PARTICIPATION AND PROVIDER CHALLENGES, Vol. 2, No. 3 (April 2012)

For most providers, termination from participation in the Medicare and Medicaid programs would have a profound impact on the provider’s ability to remain financially viable. This is particularly true for long-term acute care hospitals (LTACHs), due to the medically complex patient population they treat, the high level of resources expended, and the inability of LTACHs to re-enroll in Medicare during the moratorium. CMS issued new guidance this year to clarify the circumstances when a State must terminate a provider’s participation in that State’s Medicaid program after the provider’s participation in Medicare or another State Medicaid program has been terminated. Providers have a number of options to challenge a termination of program participation if they act quickly. A recent decision from the United States District Court for the Southern District of Alabama granted a temporary restraining order to a Skilled Nursing Facility (SNF) less than 24 hours before the termination was to take effect. Although such reprieves are rare, providers have other administrative options to successfully avoid termination and reach a favorable result. Because time is of the essence, it is important to alert your in-house legal department as soon as program termination is threatened. Outside counsel can help with the administrative appeals and judicial challenges to a termination action. 
 

CMS PROPOSED RULE ON OVERPAYMENT REPORTING AND REPAYMENT, Vol. 2, No. 2 (Feb 2012)

On February 16, 2012, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule to implement the health reform law mandate that Medicare providers and suppliers report and return overpayments within 60 days. The requirement is based in section 6402(a) of the Patient Protection and Affordable Care Act, as amended by the Health Care Education Reconciliation Act of 2010 (collectively, the Affordable Care Act), which created new section 1128J(d) of the Social Security Act (SSA or the Act). Medicare Part A and Part B providers and suppliers have been waiting for CMS to clarify this requirement for almost two years. Unfortunately, the proposed rule falls short by raising new questions that continue to make it difficult for providers and suppliers to know what their obligations are for reporting and repaying detected overpayments. In addition, CMS uses the proposed rule to bring routine payment corrections closer to the realm of Medicare fraud and abuse, where False Claims Act liability and civil monetary penalties raise the stakes for noncompliance.
 

CONGRESSIONAL BUDGET OFFICE FINDS LITTLE SAVINGS IN MEDICARE DEMONSTRATION PROJECTS, Vol. 2, No. 1 (Jan 2012)

The Congressional Budget Office recently released an issue brief (CBO Brief) that raises serious questions about the value of Medicare demonstration projects, finding that only one out of the ten major demonstrations to enhance the quality and efficiency of fee-for-service care actually reduced Medicare spending. In all other demonstrations, Medicare spent more on the services provided, after fees to participating organizations are considered. CBO concluded that the lack of savings was largely attributable to structural impediments built into the existing fee-for-service payment systems, which reward providers for delivering more care and lack the centralization needed for effective care coordination. CBO suggested that "substantial changes to payment and delivery systems will probably be necessary for programs involving disease management and care coordination or value-based payment to significantly reduce spending and either maintain or improve the quality of care provided to patients." However, as discussed below, CBO also provided specific recommendations to improve the cost-effectiveness of Medicare demonstrations.
 
The Centers for Medicare & Medicaid Services (CMS) recently published a final rule that will make more information available to the public about the performance of long-term acute care hospitals (LTACHs) and other providers and suppliers. The new regulations will give qualified entities access to Medicare Part A, B, and D claims data for the purpose of measuring provider and supplier performance. These regulations are primarily concerned with how this data will be used by qualified entities, with little in the way of provider protections or recourse in the event that erroneous information is published. As a result, providers will have to be increasingly vigilant to protect their reputation.
 

HEALTH CARE INNOVATION CHALLENGE TO AWARD $1 BILLION IN GRANTS, Vol. 1, No. 6 (Nov 2011) 

The Center for Medicare & Medicaid Innovation, a division of the Centers for Medicare & Medicaid Services, has unveiled a grant program it calls the Health Care Innovation Challenge that will distribute $1 billion in awards ranging in size from $1 million to $30 million.  Health care providers, health systems, clinicians, and others are eligible.  According to the Funding Opportunity Announcement, the purpose of this new program is to fund “applicants who propose the most compelling new service delivery and payment models that will drive system transformation and deliver better outcomes for Medicare, Medicaid and CHIP beneficiaries.”  As opposed to the more prescriptive programs for Accountable Care Organizations (ACOs) and payment bundling, the Challenge was designed as a type of “catch-all” grant program to serve as “an open invitation to applicants to obtain funding and support for those innovations they believe will most effectively achieve the three-part aim” of better health, better health care, and lower costs through improved quality.
 

CMS INNOVATION CENTER UNVEILS BUNDLED PAYMENTS INITIATIVE PROVIDING SHARED SAVINGS OPPORTUNITIES FOR LTACHS, Vol. 1, No. 5 (Sept 2011)

On August 25, 2011, CMS published a notice in the Federal Register requesting applications from Medicare providers, including long-term acute care hospitals (LTACHs), to participate in one or more of the initial four models to test Medicare payment bundling.  A nonbinding Letter of Intent is due by November 4, 2011, and an Application is due by March 15, 2012, for the two models available to LTACHs.
 

CMS CONTINUES TO ROLL OUT RAC PROGRAMS, WITH SOME IMPROVEMENTS, Vol. 1, No. 4 (Aug 2011) 

After the success of the three-year Recovery Audit Contractor (RAC) demonstration for Medicare Parts A and B, Congress authorized a permanent, nationwide program and later authorized similar programs for Medicare Parts C and D, and the State Medicaid programs. CMS has led the slow but steady rollout of these RAC programs, while making certain improvements that build on the changes to the permanent RAC program for Medicare Part A and Part B claims. Although these improvements may help to avoid procedural problems for health care providers, they are also designed to help overpayment determinations by RAC auditors withstand legal challenges on appeal. Yet, appealing such overpayment determinations remains the best way for providers to reclaim their right to Medicare reimbursement for services already provided.
 

RECENT DECISIONS EXTEND EQUITABLE TOLLING TO REIMBURSEMENT DISPUTES & ALLOW FOR BAD DEBT REIMBURSEMENT WHILE COLLECTION EFFORTS CONTINUE, Vol. 1, No. 3 (JULY 2011) 

For providers who miss the timeframe to appeal a cost report reimbursement issue to the Provider Reimbursement Review Board (PRRB), or who later identify issues that were not known during the appeal window, a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) may provide a basis to bring a late appeal. The D.C. Circuit recently held that equitable tolling can be appropriate to extend the statute of limitations for disputing Medicare cost reimbursement determinations by intermediaries. Under this ruling, if the PRRB determines that it lacks jurisdiction because an appeal is not timely filed, the U.S. District Court for the District of Columbia (District Court) may apply equitable tolling principles to review the decision and the intermediary determination.
 

CENTER FOR MEDICARE AND MEDICAID INNOVATION UNVEILS “PIONEER ACO”, Vol. 1, No. 2 (June 2011) 

In response to broad criticism from physician and provider groups about CMS’s proposed rule on Accountable Care Organizations (ACOs), the Center for Medicare and Medicaid Innovation (CMMI) has developed an alternative model which they hope will be more attractive to entities that are ready to enroll. These “Pioneer ACOs” would have an advanced start date in the third or fourth quarter 2011 under the Request for Application (RFA) issued by CMMI. While many of the features of CMMI’s proposed Pioneer ACO Model are identical or similar to CMS’s ACO proposed rule, Pioneer ACOs would have higher risk-reward scenarios that might be attractive to some providers. CMMI may also decide to test provider-suggested features that will not be included in the general ACO final rule.
 

CMS REMOVES BARRIER TO TELEMEDICINE IN LTACHS, Vol. 1, No. 1 (May 2011)

On May 2, 2011, CMS released a final rule that will substantially reduce the burden of credentialing and privileging physicians and practitioners who provide telemedicine services to hospitals, including long-term acute care hospitals (LTACHs). The rule will implement changes to the Medicare Conditions of Participation (CoPs) and bring the CoPs more in line with the telemedicine requirements of The Joint Commission (TJC). Currently, the CoPs govern the credentialing and privileging process for physicians and practitioners providing telemedicine services, defined by CMS as “the provision of clinical services to patients by practitioners from a distance via electronic communications.” The CoPs require the governing body of each hospital to make independent privileging decisions by examining and verifying the credentials of each practitioner. CMS recognizes that this requirement is both “duplicative and burdensome” for hospitals and imposes unnecessary barriers to the use of telemedicine. While the new rule does not go as far as allowing “privileging by proxy,” it does permit hospitals to rely on the credentialing and privileging process of the distant-site facility, provided that the hospital and the distant-site facility have an agreement in place and the distant-site meets CMS standards (even if it is not a Medicare-participating provider).