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On Thursday, December 19, 2013, from 1:00-2:00 pm Eastern Time, the Centers for Medicare & Medicaid Services (CMS) will hold a Special Open Door Forum (ODF) to answer questions from hospitals, practitioners, and other interested parties about the new policies released on August 2, 2013 as part of the Fiscal Year (FY) 2014 Inpatient Prospective Payment System (IPPS)/Long-Term Care Hospital (LTCH) Final Rule (CMS-1599-F) and corresponding medical review criteria.

Thursday’s ODF will be the fourth in its series of ODFs regarding physician order and certification, hospital inpatient admission and medical review criteria. The most recent ODF discussed the “probe and educate” reviews to be conducted by the MACs. If you missed any of the prior ODFs, a transcript of each ODF can be found on CMS’ website.

To access the ODF, the participant dial-in number is 1-866-501-5502, and the conference ID number is 16505942. For more information, please visit the ODF website. If you have any questions regarding the final rule or questions about the Medicare appeals process, please contact an experienced healthcare attorney at Wachler & Associates at 248-544-0888 or wapc@wachler.com.

In November 2013, the Department of Health and Human Services (HHS), Office of Inspector General (OIG) issued a report which called for additional quality measures (QMs) of Medicare nursing home resident hospitalization rates. The application of QMs to nursing home hospitalization rates is intended to resolve identified discrepancies between hospitalization rates for Medicare- and Medicaid-certified nursing homes. In its study, the OIG found that one quarter of Medicare nursing home residents experienced hospitalization in FY 2011, which resulted in $14.3 billion in Medicare spending. Among nursing homes linked to the highest rates of resident hospitalization were:

1. Nursing homes located in Arkansas, Louisiana, Mississippi, and Oklahoma;
2. Nursing homes receiving fewer than four stars according to CMS’ Five-Star Quality Rating System;

The Centers for Medicare and Medicaid Services (CMS) announced during its September 26, 2013 Open Door Forum that, for a period of 90 days, CMS will not permit Recovery Audit Contractors (RAC) to review inpatient admissions of one midnight or less that begin on or after October 1, 2013. This three-month period, from October 1 through December 31, will give hospitals additional time to ensure that the necessary policies and procedures are in place to comply with CMS’s new inpatient status rules. Again, all inpatient admissions of one midnight or less will not be subject to pre-payment or post-payment review by the RACs.

As an effort to provide guidance and education to hospitals about the new inpatient rules, CMS will instruct the Medicare Administrative Contractors (MAC) to review 10 to 25 inpatient hospitals claims, per hospital, spanning less than two midnights after admission with dates of admission between October 1, 2013 and December 31, 2013. These probe reviews will be conducted by the MACs to determine whether the medical necessity of the patient status complied with the 2-midnight benchmark. The probe samples will be utilized by the MACs to evaluate hospitals’ compliance with the new inpatient rule and provide feedback to CMS to determine what additional guidance needs to be developed. If the MAC identifies issues from its review of a hospital’s inpatient admission claims, the MAC will conduct education for that hospital, as well as any additional follow up deemed necessary.

Wachler & Associates will continue to monitor any further developments regarding CMS’s new inpatient admission rule. In the meantime, hospitals should use the additional three-month implementation period to ensure its admission and documentation protocols comply with the new inpatient admission standards and certification and order requirements. If you need assistance in developing an effective compliance program, or need help navigating through the complexities of the new inpatient admission rule, please contact an experienced health care attorney at Wachler & Associates via phone (248-544-0888) or email (wapc@wachler.com).

The Centers for Medicare & Medicaid Services (CMS) updated the Medicare provider Additional Documentation Requests (ADR) limitations, which relate to the Medicare Fee-for-Service Recovery Audit Program. These changes went into effect April 15, 2013. The limitations include:

• Recovery Auditors can select up to 75% of any claim type for review (compared to 100%). The remaining 25% can be requested from any or all other types. For example, if a provider submitted three different claim types, the Recovery Auditor may select up to 75% of the calculated ADR from one of the claim types, and the balance of the calculated ADR may be selected from any single or combination of the remaining claim types.
• Recovery Auditors may request up to 20 records per 45 days from providers whose calculated limit is 19 additional documentation requests or less (compared to a minimum of 35 records).

On Friday, July 13, 2012 the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule that if finalized would change the face-to-face requirements of a home health encounter. Under the current rule, before certifying a patient’s eligibility for the home health benefit the physician must document a face-to-face encounter with the patient. In lieu of the physician having a face-to-face encounter, an allowed non-physician practitioner (NPP) may have the face-to-face encounter with the patient and notify the certifying physician. Allowed NPPs under the current rule are nurse practitioners, clinical nurse specialists, certified nurse-midwives, and physician assistants.

Under the current rule, a physician who cared for a patient in an acute or post-acute care facility, and had privileges at that facility, could perform the face-to-face encounter and inform the certifying physician. The proposed rule would allow a NPP working in collaboration with a physician in an acute or post-acute care facility to perform the face-to-face encounter, report it to the acute care physician, who would then report it to the certifying physician. The proposed rule is intended to provide the certifying physician with the most accurate and timely assessment of the patient’s current clinical condition.
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On June 7, 2012, Ann Maxwell, Regional Inspector General, Office of Evaluation and Inspections, Office of Inspector General (OIG), Department of Health and Human Services (HHS), testified before the U.S. House of Representatives Committee on Oversight and Government Reform: Subcommittee on Government Organization, Efficiency and Financial Management. She testified about an OIG assessment of Medicaid program integrity, which concluded that more needs to be done to protect the integrity of Medicaid payments.

The testimony focused on two national Medicaid integrity programs: the Centers for Medicare and Medicaid Services’ (CMS) National Medicaid Audit Program, and the Medicare-Medicaid Data Match Program (Medi-Medi). The National Medicaid audit program consists of two types of Medicaid Integrity Contractors (MIC), Review MICs and Audit MICs. Review MICs conduct data mining and Audit MICs conduct audits of specific providers. The Medi-Medi program joins together CMS and State and Federal agencies to collaborate and analyze billing trends to identify potential fraud, waste, and abuse. OIG assessment of the programs, as outlined in the testimony, indicates that neither program is effectively accomplishing its mission.

The OIG concluded that the National Medicaid Audit program did not identify overpayments in an amount to prevent a negative return on investment. In fiscal year 2010, CMS paid MICs $32.1 million, while the Audit MICs identified only $6.9 million in the first six months of the year. The Medi-Medi Program also yielded a negative return on investment, recovering $57.8 million in 2007 and 2008, while CMS spent $60 million on the program during the same period.

During the period of OIG review, the National Medicaid Audit Program Review MICs did not produce any potential fraud leads for referral to law enforcement, and CMS did not have a formalized process for Review MICs to identify potential leads. CMS has now implemented a formalized process.

Also during the OIG review period, Review MICs did not complete all of the required tasks for which they were contracted. Along with other tasks Review MICs are contracted to perform, they must provide or recommend audit leads to CMS. Review MICs provided no audit leads during the review period, and CMS stated that it did not expect them to provide audit leads.

Ms. Maxwell’s testimony included OIG recommendations to CMS to improve the efficiency and effectiveness of Medicaid programs. These recommendations include:

• Devote the resources necessary to improve the quality of the Medicaid data available to conduct national Medicaid program integrity data analysis and mining.
• Improve the ability of contractors to properly analyze Medicaid data in light of state-specific policies.
• Evaluate the goals, design, and operations of Medicaid programs to determine what aspects should be a part of a national Medicaid program integrity strategy.
• Hold contractors responsible for all tasks outlined in their contracts.
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In June 2012 the Centers for Medicare and Medicaid Services (CMS) released Recovery Audit Program appeals data for fiscal year 2011. The report indicates that of the claim denials appealed, 43.4% were returned in the provider’s favor.

In fiscal year 2011, 903,372 claims were determined to be overpayments. Of those overpayments, 56,620 were appealed by the provider and 24,548 were returned in the provider’s favor.

The data shows that the type of claims overturned on appeal were more commonly automated claims, but far more money was overturned in complex claims. Nearly $30 million in overpayments was overturned on appeal in complex claim denials alone.
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On Wednesday, December 21, the Centers for Medicare and Medicaid Services (CMS) will hold a Special Open Door Forum on the Recovery Auditor Pre-Payment Review Demonstration Program. The Demonstration Program is a mandatory program for providers in 11 states, including: CA, FL, IL, LA, MI, MO, NC, NY, OH, PA and TX. The program will involve Recovery Auditors’ (RACs’) pre-payment review of certain claims, beginning with hospital short-stay inpatient claims. After the November 15 announcement of the program, CMS has released very little details about the program. We encourage all Medicare providers in the 11 states, especially hospitals, to participate in the Open Door Forum. The details of the forum and call-in information are listed below.

For more information on CMS’ recent demonstration projects or for assistance with appealing a Recovery Auditor’s determination, please contact a Wachler & Associates attorney at 248-544-0888 or visit www.racattorneys.com.

Date: Wednesday, December 21, 2011

Thirteen medical societies and several senior citizen advocacy groups have requested that CMS delay the enforcement of the new face-to-face encounter requirement.  These groups are seeking to delay the effective date to no sooner than July 1, 2011.  This new requirement stipulates that physicians, or a nurse practitioner working with the physician, conduct an in person consultation before the patient is covered by Medicare for certain procedures.  The requirement, which was enacted by the Affordable Care Act, was already delayed from  its original effective date of January 1, 2011, to April 1, 2011.  For a full explanation of the rule and its requirments, please see a recently authored article by Wachler & Associates attorneys Amy K. Fehn and Jennifer Colagiovanni entitled New Audit Risk for Home Health Agencies: Face to Face Certification Requirements.

Regardless of whether the new rule is delayed, having an up to date and effective compliance program will be necessary to ensure Medicare coverage of services.  To review an existing compliance program, or create a new program, contact an attorney at Wachler & Associates at 248-544-0888.