Home Health & Hospice Week

Not all of the items passed in the "Regulatory Reform" section of the newly enacted Medicare law are good for home care providers.

The regulatory reform provisions were "designed to respond to a series of concerns articulated across provider types," explains attorney Bill Sarraille with Sidley Austin Brown & Wood in Washington, DC. They attempt to address "a number of nagging issued and concerns," especially regarding appeals.

In some cases they make things better, in some cases they codify existing policy - and in some cases "they are not better," Sarraille says.

For example, Section 931 of the law requires Administrative Law Judges to move from the Social Security Administration to the Department of Health and Human Services by October 2005. ALJs hear appeals regarding Medicare claims, and often reverse contractor determinations.

"Although the law requires steps to be taken to ensure the independence of ALJs after the transition, it is difficult to conclude that the number of positive outcomes for providers will remain the same," worries Burtonsville, MD-based attorney Elizabeth Hogue.

The ALJs have been a "reality check" for Medicare contractors making claims determinations, Sarraille insists. Moving them to HHS will undermine the independence that made them a fair avenue for Medicare appeals.

"Any reductions in positive results for providers may be explained by saying that now, at last, under CMS' jurisdiction, ALJs understand the criteria and how they are to be applied," Hogue predicts.

Another big concern is the provision barring introduction of new evidence after the first level of appeals, notes Ann Howard with the American Association for Homecare. Section 933 spells out that "a provider of services or supplier may not introduce evidence in any appeal ... that was not presented at the reconsideration conducted by the qualified independent contractor ... unless there is good cause which precluded the introduction of such evidence at or before that reconsideration."

"Providers must be scrupulous about introducing all relevant information at this level as opposed to waiting until the hearing," Hogue explains. "It may mean that providers will need to get affidavits from witnesses they may use at a hearing to submit at the reconsideration level."