Medicare Compliance & Reimbursement

CMS sends mixed messages about what to expect.

Don’t be fooled into a false sense of security by the onslaught of deregulation. All the changes don’t mean you can be lax on your compliance protocols now — but, there is some relief for honest providers who do stay within the law.

Here’s why: Despite the feds doubling down on enforcement and tighter fraud controls from the Centers for Medicare & Medicaid Services (CMS), a recent court decision and policy proposals do signal that compliance norms are changing.

Read on to see three factors that may impact fraud and abuse now and in years to come.

1. Medicare Provider Enrollment Will Be Stricter Under New Rule

CMS wants to nip corruption in the bud from the get-go, suggests a new policy from the agency.

The Program Integrity Enhancements to the Provider Enrollment Process final rule was published in the Federal Register on Sept. 10 and targets organization owners as well as providers and suppliers. Affiliated owners have previously escaped enforcement and exclusion, but CMS aims to close up that loophole.

“The new rule is intended [to] prevent bad actors from circumventing Medicare requirements by using elaborate, inter-provider relationships, or through name and identity changes,” explain Atlanta-based partner attorneys Jessica Tobin Grozine and Hedy Silver Rubinger with Arnall Golden Gregory LLP in online analysis.

Plus: “CMS will have authority to deny or revoke a provider’s or supplier’s Medicare enrollment in certain specified circumstances. These new enforcement authorities will work hand-in-hand with current change of ownership requirements to give CMS greater authority to deny or revoke enrollment,” warn Grozine and Rubinger.

Highlights of the new rule include:

Medicare providers and suppliers will now need to list all affiliations with other providers and suppliers on their enrollment applications who are currently in debt and/or are suspended, have their rights revoked, and are excluded from federal healthcare programs.

CMS extends revocation authority to look beyond a provider’s enrollment location and scrutinize more deeply past abusive and negligent behavior in all areas of Medicare.

If a provider or supplier misleads or lies on an enrollment application, CMS will prohibit enrollment for up to three years.

Originally, CMS could block enrollees for only three years, but the rule allows the agency to “now block providers and suppliers who are revoked from re-entering the Medicare program for up to 10 years,” says a fact sheet on the rule.

Restrictions go into effect on Nov. 4, 2019.

See the rule at  www.federalregister.gov/documents/2019/09/10/2019-19208/medicare-medicaid-and-childrens-health-insurance-programs-program-integrity-enhancements-to-the.

2. FCA Court Decision Consoles Worried Providers

On Sept. 9, the Eleventh Circuit Court offered the opinion in the AseraCare case that Medicare claims reviewers’ decisions don’t always align with what providers deem reasonable and medically necessary, and that those differences shouldn’t result in false claims. The hospice reimbursement case may set a precedent in regard to claims liability in civil and criminal cases in the future, suggest Baker Donelson attorneys Jonell Beeler, Linda Finley, Hal Litchford, and Donna Thiel with the Baker Ober Health Law division in online analysis.

Gist of the decision: “While there is no question that clinical judgments must be tethered to a patient’s valid medical records, it is equally clear that the law is designed to give physicians meaningful latitude to make informed judgments without fear that those judgments will be second-guessed after the fact by laymen in a liability proceeding,” states the opinion.

The Court’s determination offers some relief, but providers should remain vigilant and continue to offer detailed documentation to the feds.

“The decision is not a free pass for providers to rely solely on the physician’s plan of care to establish medical necessity,” caution the Baker Donelson attorneys. “Providers still bear the obligation to make rational determinations about whether services supplied are provided at times and in quantities likely to be medically necessary. Physician orders alone will not override Medicare’s coverage decisions or its direct guidance on what it will consider a valid claim.”

Review the Court’s decision at http://media.ca11.uscourts.gov/opinions/pub/files/201613004.pdf.

3. Potential Stark Changes Aim to Match Quality Initiatives

The Physician Self-Referral Law — or Stark Law for short — trips up a lot of physicians and is considered a nuisance by many in the healthcare industry. And because of the perennial issues Medicare providers have abiding by the regulation, it’s now on the feds’ radar for a revamp.

Definition: Stark “prohibits physicians from referring patients to receive ‘designated health services’ payable by Medicare or Medicaid from entities with which the physician or an immediate family member has a financial relationship, unless an exception applies,” reminds HHS Office of Inspector General (OIG) guidance.

First: Last year, CMS issued a Request for Information (RFI), asking stakeholders to weigh in on Stark and its impact on complying with care models and the Quality Payment Program (QPP).

In the past, Medicare providers who supplied extra care were paid for it, but under new quality initiatives, coordination is key, suggest attorneys Michael Strazzella, Eric Temmel, and John R. Washlick with national law firm Buchanan Ingersoll & Rooney PC in online analysis.

“As the industry shifts from volume-based, fee-for-service reimbursement models toward value-based care, physicians are increasingly incentivized to improve outcomes while minimizing patient cost,” Strazzella, Temmel, and Washlick write.

The Buchanan Ingersoll & Rooney attorneys add, “Under a value-based system, physicians are no longer paid for each applicable intervention...eliminating Stark Law restrictions may stimulate investment in joint ventures, permitting providers to collaboratively expand services and improve efficiency.”

According to the CY 2020 Medicare Physician Fee Schedule, CMS is still examining the public’s commentary and is now asking for input on Stark advisory opinions. CMS does not give a date for the release of a final rule.