Wachler & Associates Health Law Blog

Published on: March 1, 2021

A Primer on Medicare Revocation

A revocation of Medicare billing privileges can have devastating impacts on a healthcare provider. Not only does a revocation render the provider unable to bill the Medicare program for a period of time, but it can have wide-ranging impacts on a provider’s practical ability to operate or to practice in their chosen field.

Medicare billing privileges can be revoked for twenty-two enumerated reasons, including non-compliance with Medicare enrollment requirements, felony convictions, and failure to respond to requests for medical records. A recent expansion of CMS’s revocation authority also updated the ability to revoke a provider for an “abuse of billing privileges” to include a pattern or practice of submitting claims that do not meet Medicare requirements. In some cases, the Medicare Administrative Contractor (MAC) gathers the information and determines to revoke a provider. In other cases, the MAC forwards the information to the Centers for Medicare & Medicaid Services (CMS) and CMS makes the revocation determination. The revocation may be based on a prior interaction with the MAC or CMS, such as a prior audit of the provider. The provider may not necessarily be told during this interaction that it can lead to a revocation of billing privileges.

When CMS or a MAC revokes billing privileges, they will set a reenrollment bar, which dictates how long a provider must wait before it can reapply for Medicare billing privileges. CMS recently expanded its authority to set the reenrollment bar. In general, reenrollment bars may now be set between 1 and 10 years, depending on the circumstances, although certain provisions allow for longer bars. CMS may also decide to place a revoked provider on the CMS Preclusion List. The Preclusion List labels the provider a “bad actor” and cuts off their ability to bill Medicare Part C and Part D. A Medicare revocation or placement on the Preclusion List may also impact contracts outside the Medicare program. For example, commercial carriers may terminate participation agreements with a provider based on a Medicare revocation or placement on the Preclusion List.

Published on: February 24, 2021

Michigan Announces New Resources to Aid COVID-19 Vaccine Sign Up

by Wachler & Associates, P.C.

The Michigan Department of Health of Human Services (MDHHS) recently announced various support programs to help Michigan residents sign up for and gain access to the COVID-19 vaccine. Methods to obtain a COVID-19 vaccine in Michigan have been difficult for individuals 65 and older; many county local health departments are not offering the vaccine and will not provide vaccine information over the phone. These resources may be useful to providers when consulting with elderly patients.

Since individual physician providers cannot yet distribute the vaccine, the only other option for older qualifying individuals is to make an appointment with a local hospital system or pharmacy that is currently distributing the vaccine. However, these hospitals require patients to have an active online chart account with the hospital. In addition, hospital vaccine appointments are given to online chart account holders at random, and patients must continue to monitor their emails for appointment notifications. Many pharmacies, such as Right Aid and Meijer, are following a similar format for those 65 and older, and require patients to schedule appointments online or through the pharmacy’s smartphone application. These processes have caused difficulty for elderly individuals seeking the vaccine, who may have more trouble navigating online portals, emails, and smartphone applications.

Due to the varying degrees of technological access and understanding of Michigan residents 65 and older, MDHHS is working with community partners to make the COVID-19 vaccine appointment process smoother. Qualifying residents can visit Michigan.gov/COVIDvaccine for the most current COVID-19 vaccine information or call the COVID-19 Hotline at 888-535-6136 for assistance. MDHHS has also partnered with 2-1-1, a free, confidential website service that helps connect Michigan residents with COVID-19 information and community organizations across Michigan with thousands of different programs. 2-1-1 utilizes a comprehensive database of health and human services in Michigan with more than 7,000 agencies providing over 36,000 services across the state. MDHHS first began its partnership with 2-1-1 in June of 2020 to help individuals in Michigan find and register for COVID-19 testing, over the phone or internet, and expanded its partnership on February 12, 2021 to include directing individuals to local vaccination clinics.

Published on: February 22, 2021

OIG Opines on Per-Vaccine Compensation for Administrative Services

by Wachler & Associates, P.C.

On February 17, 2021, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) updated its FAQ’s concerning the COVID-19 public health emergency. In the update, OIG gave guidance on its enforcement discretion regarding administrative services provided to COVID-19 vaccination sites on a per-vaccine basis. It should be noted that this guidance is not an advisory opinion, is not binding on OIG, and does not constitute a waiver of any statutory or regulatory requirement, though it may be helpful when structuring these arrangements.

OIG addressed the question of whether a non-provider philanthropic entity could contract to provide administrative services to a healthcare provider relating to the operation of COVID-19 vaccination sites and be compensated on a per-vaccine basis. The entity would provide administrative services including arranging for the physical vaccination sites, data systems, online and web-based scheduling, site development and training, and reporting to state agencies. The healthcare provider would provide clinical staff, oversee administration of the vaccine, and bill third-party payors, including federal healthcare programs.

After billing for the vaccine administration, the healthcare provider would retain a certain amount per hour for compensation and to cover staffing costs. The remainder of the compensation would flow to the entity providing the administrative services. OIG specified that there would be no other arrangements between the entity, the healthcare provider, any beneficiary, or other person capable of arranging for referrals for items or services payable by a federal healthcare program.

Published on: February 19, 2021

A Primer on Assignment of Payment

by Wachler & Associates, P.C.

Many Medicare practitioners, providers, and suppliers do not directly bill for the services they supply and similarly do not directly receive reimbursement. Billing and reimbursement may occur through an employment or independent contractor relationship, through a billing company, or through another arrangement. However, each of these arrangements must comply with the Medicare assignment of payment rules that dictate how and to whom the practitioner, provider, or supplier may assign their right to receive reimbursement from Medicare.

The general rule is that Medicare will pay assigned benefits only to the physician, practitioner, or supplier who furnished the service, and not to another person or entity. To reassign payment to another person or entity, an arrangement must meet one of several enumerated exceptions. The most common exceptions are:

Payment to Agent: Medicare may make payment, in the name of the provider, to an agent who furnishes billing or collection services. In general, the agent or billing company may not have a financial interest in the dollar amount billed or the actual collection of payment, and the agent must act under payment disposition instructions which the provider may modify or revoke at any time. Different provisions may apply if the agent merely prepares bills and does not receive payment for the provider or supplier.

Published on: February 15, 2021

2021 Special Enrollment Period for the Health Insurance Marketplace

by Wachler & Associates, P.C.

On January 28, 2021, The Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), and in accordance with an Executive Order issued by the Biden Administration, announced a Special Enrollment Period (SEP) for individuals and families to gain coverage on the Affordable Care Act (ACA) health insurance Marketplace. Due to the uncertainty caused by the COVID-19 pandemic, CMS determined that the public health emergency poses exceptional circumstances for consumers in obtaining health insurance. The SEP will be available to individuals in 36 states which participate in Marketplaces using the Healthcare.gov platform. CMS is encouraging states using their own Marketplace platform to offer a similar SEP. CMS’s goal is to guarantee quality, affordable coverage to more families during the COVID-19 pandemic.

The SEP will begin on February 15, 2021, and end on May 15, 2021. Marketplaces using Healthcare.gov will make operational a SEP for all eligible Marketplace users in the state. Eligible consumers who are submitting a new application, or current users who are modifying an existing application, may apply for coverage. Users will be able to access the SEP through various platforms, including Healthcare.gov, the Marketplace call center, or direct enrollment outlets. Consumers can obtain assistance with coverage from a network of more than 50,000 agents and brokers registered with the Marketplace and over 8,000 individuals trained in assisting with Marketplace coverage.

States with their own Marketplaces can, but are not mandated, to offer a similar enrollment period, although it is CMS’s recommendation that these states establish a SEP as well. Marketplace coverage is prospective; therefore, it will begin the first day of the month after an individual enrolls using Healthcare.gov. Current users must update their existing application to claim the SEP and to receive a determination on whether they are eligible. No additional application questions, documentation, verification requirements, or qualifying events such as job loss or the birth of a child, will be necessary for consumers to show they qualify for the SEP. Some consumers may already qualify for existing SEPs, Medicaid, or the Children’s Health Insurance Program (CHIP), and can find out if they are eligible using Healthcare.gov. Beginning February 15, 2021, consumers seeking to enroll using the SEP can find out if they qualify by using Healthcare.gov, and are no longer limited to calling the Marketplace call center. Eligible consumers will have 30 days after submitting an application to select a plan. Current enrollees will be able to switch to any plan available in their area without being restricted to the same coverage level as their current plan.

Published on: February 12, 2021

OIG Makes Multiple Updates to Work Plan in January 2021

by Wachler & Associates, P.C.

In January 2021, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) added several new items to its work plan. The OIG work plan sets forth various projects including OIG audits and evaluations that are underway or planned to be addressed during the fiscal year and beyond by OIG. These are some of the highlights of the new additions to the work plan of which providers and suppliers should be aware.

First, due to increased use of telehealth during the COVID-19 public health emergency, OIG will conduct a series of audits of Medicare Part B telehealth services in two phases. Phase one audits will focus on making an early assessment of whether services such as evaluation and management, opioid use order, end-stage renal disease, and psychotherapy meet Medicare requirements. Phase two audits will include additional audits of Medicare Part B telehealth services related to distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits to determine whether Medicare requirements are met.

OIG will also evaluate home health services provided during the COVID-19 public health emergency to determine which types of skilled services were furnished via telehealth, and whether those services were administered and billed in accordance with Medicare requirements. OIG has indicated that it will report as overpayments any services that were improperly billed and will make appropriate recommendations to CMS based on the results of our review.

Published on: February 10, 2021

MDHHS Partners with Wayne State University and Wayne Health to Expand Mobile COVID-19 Testing

by Wachler & Associates, P.C.

On February 3, 2021, the Michigan Department of Health and Human Services (MDHHS) announced it will expand mobile COVID-19 testing and other public health services in partnership with Wayne State University (WSU) and Wayne Health (WH). The partnership between MDHHS, WSU, and WH began in September 2020 and is an extension of a pilot program between WSU, WH, Ford Motor Company, and The Arab Community Center for Economic and Social Services (ACCESS). According to MDHHS, the mobile health units will provide critical health services, COVID-19 testing to high-risk communities, and reduce barriers to healthcare during the COVID-19 pandemic.

The pilot program, which began in April 2020, was an extension of drive-through COVID-19 testing sites in Detroit and Dearborn, with financial support from WSU. Ford Motor Company provides vehicles, drivers, tents, sanitation, power, and Wi-Fi for mobile testing. Each mobile unit will be equipped for COVID-19 testing with medical staff and tools provided by WSU and ACCESS.

The new program will allow three mobile units to travel between sites and provide COVID-19 testing and other healthcare services to communities at the highest risk. MDHHS, WSU, and WH have expanded the pilot program to offer flu vaccinations, cardiometabolic risk factor screenings, and social determinant assessments, in addition to the already offered services such as blood pressure screening, HIV testing, and on-site referrals for public benefits including Medicaid, unemployment assistance, as well as food and shelter programs. The mobile unit program has also partnered with Detroit Parent Network (DPN) to supply community navigation services to patients who utilize the mobile health units. DPN family health advocates ensure patients are connected to the proper resource providers, such as utility assistance, child enrichment, food assistance, referrals to primary care physicians, and ensure the mobile health unit patients are available to follow-up. The services are available to all individuals who walk or drive to the mobile units, and no appointments or prescriptions are required.

Published on: February 3, 2021

A Primer on Medicare Targeted Probe and Educate Reviews

by Wachler & Associates, P.C.

Targeted Probe and Educate (TPE) reviews are a popular audit tool for Medicare Administrative Contractors (MACs) to assess a healthcare provider or supplier’s compliance with Medicare billing requirements. A TPE review consists of up to three rounds of claims review, with education to the provider after each round. A provider or supplier navigating a TPE review should take care to comply with the program’s requirements and timelines and should be aware of the potential consequences of a review.

The Centers for Medicare & Medicaid Services (CMS) initially introduced TPE reviews as a pilot program in only a few jurisdictions. In 2017, CMS expanded the program nationwide and has continued to update and refine the program since its introduction.

A provider who is placed on a TPE review will first receive a Notice of Review letter. This letter will describe the reason that the provider has been placed on TPE review and will provide a brief outline of the process. This letter will not request medical records but will generally indicate that medical records requests will be forthcoming. This letter will likely warn that, if a provider/supplier fails to improve the accuracy of its claims after three rounds, the MAC will refer the provider/supplier to CMS for additional action, such as prepayment review, extrapolation of overpayments, referral to a RAC, or other disciplinary action. Providers should be aware that a TPE can lead to revocation of Medicare billing privileges and placement on the CMS Preclusion List.

Published on: February 1, 2021

CMS Codifies Definition of “Reasonable and Necessary” in Medicare Coverage Determinations

by Wachler & Associates, P.C.

On January 14, 2021, the Centers for Medicare & Medicaid Services (CMS) issued a final rule codifying a definition for “reasonable and necessary” coverage under Medicare Part A and Part B. CMS hopes codifying the meaning of “reasonable and necessary” will provide clarity and consistency to the current process of coverage determination for items and services under Part A and Part B. The final rule takes effect on March 15, 2021.

The definition of “reasonable and necessary” has three components: an item or service is required to be 1) safe and effective, 2) not experimental or investigational, and 3) appropriate for Medicare patients. Whether an item or service is appropriate for Medicare patients will be based on the duration and frequency deemed appropriate for the item or service and whether the item or service:

Is provided in accordance with accepted standards of medical practice

Published on: January 27, 2021

Uncertainty Surrounding CARES Act Reimbursement for Out-of-Network COVID-19 Testing

by Wachler & Associates, P.C.

In response to the COVID-19 pandemic, Congress has attempted to make COVID-19 testing free to individuals by requiring commercial insurers to cover testing. However, federal guidance and action by commercial insurers have muddied the waters and left clinical laboratories in an unenviable position.

The Families First Coronavirus Response Act (FFCRA), passed by Congress on March 18, 2020, required commercial insurers to provide coverage of FDA-approved tests for the “detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19,” as well as items and services relating to a visit that results in such a test, at no cost to the beneficiary. Shortly thereafter, on March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act expanded the types of approved tests that were covered by the FFCRA and set the reimbursement rate for COVID-19 testing by out-of-network laboratories. Pursuant to the CARES Act, clinical laboratories must post their “cash price” for COVID-19 testing on their public website and insurers must reimburse out-of-network laboratories for COVID-19 testing at this “cash price.”

However, in June 2020, three government agencies, Department of Health and Human Services, Department of Transportation, and Department of Labor, released guidance that created several points of confusion regarding these requirements. For example, because the FFCRA and CARES Act only require coverage for testing for the “detection or diagnosis” of COVID-19, the June 2020 guidance excluded testing for employment, travel, and monitoring purposes from that which insurers were required to cover. Instead, the guidance required that the testing be done for the “individualized diagnosis or treatment” of COVID-19. Further, despite the FFCRA’s mandate that insurers cover items and services for visits that result in a COVID-19 test, the June 2020 guidance limited coverage to the testing itself and excluded from coverage “any other items and services.”