Home Health & Hospice Week

Medicare has some newly proposed antifraud regulations that soon could change how you do business.

The Centers for Medicare & Medicaid

Services has proposed a number of anti-fraud regs based on the health care reform law, according to the Sept. 23 Federal Register. CMS proposes new authority to impose a six-month moratorium on new Medicare enrollees.

CMS could impose moratoria when it finds "significant potential for fraud, waste or abuse," the regulation proposes. The agency could find that potential by using data such as a rapid increase in enrollment applications. Or CMS would consider "any recommendation" from the Department of Justice,

Department of Health and Human Services, HHS Office of In-spector General, or the Government Accounta-bility Office "to impose a temporary  moratorium for a specific provider or supplier type in a specific geographic area," CMS notes. The rule seems to give CMS an "unchecked authority to implement the enrollment moratorium," notes attorney Joel Hamme with Powers Pyles Sutter & Verville in Washington, D.C. That could be good or bad, depending on where you're sitting, notes attorney Robert Markette Jr. with Gilliland & Markette in Indianapolis.

"For already established providers, it is likely to be more helpful than harmful," Markette tells Eli. "A provider in a region under a moratorium will not have any new competitors in the marketplace." A nationwide moratorium would "immediately make all home health agencies that were not subject to the 36-month rule more valuable, because a nationwide moratorium would mean that the only way into the industry was to buy an established provider whose billing privileges will transfer to the new owner," Markette adds.

If You're Contemplating An Expansion, Keep An Eye On Moratorium Rule

But a moratorium also could limit an agency's plans for expansion, Markette says. Heads up: Expect CMS to target highgrowth home care areas for moratoria once the rule goes into effect, says the National Association for Home Care & Hospice -- and they could go into place quicker than you think. The trade group supports the concept of moratoria, but will recommend that CMS let applicants in the pipeline go through.

Thumbs up: The Visiting Nurse Associationsof America applauds CMS's moratorium proposal.

"Over the past 10 years, the number of Medicare home health and hospice providers has increased exponentially and has led certain providers to engage in abusive practices in order to maximize Medicare profits," the trade group says in a release. "VNAA has called for Congress and CMS to impose a temporary moratorium on the enrollment of new Medicare home health and hospice providers, the vast majority of which entering the market are for-profit," says VNAA's Andy Carter. The VNAA already recommended a temporary moratorium in its comments on the 2011 Home Health Prospective Payment System rule, the trade group points out.

CMS doesn't impose any compliance plan requirements yet, but they probably aren't far off for home care providers. The Patient Protection and Affordable Care Act gives CMS the authority to require compliance plans of Medicare providers, but the topic will be subject to separate rulemaking, CMS explains in the proposed rule. For now, CMS is merely soliciting comments on what the compliance plan requirements should look like and how they should be applied. Some providers think this means they should hold off on doing compliance plan work.

But providers shouldn't take a wait-and-see approach on compliance plans, recommends attorney Julie Mitchell with Mitchell Day Health Law Firm in Ridgeland, Miss. "Compliance programs simply make good business sense as well as providing evidence of a provider's efforts to operate in compliance with applicable laws and regulations," Mitchell says. "Auditors and investigators will be able to review a provider's compliance plan to check its adequacy and to ensure that the provider is following its own compliance plan."

Right now: "You should already have some form of compliance plan in place," Markette urges. "If you don't, it is time to start working on one."

What to expect: "If you use the OIG home health or hospice compliance guidance and build your compliance plan around the seven elements, you will most likely only have minor changes to make when CMS issues more formal guidance on the subject," Markette predicts. "I anticipate CMS will issue industry-specific compliance plan requirements, in much the same way OIG issued industryspecific guidance documents."

CMS also makes a number of parallel proposals for the Medicaid and SCHIP programs.