CMA Alert – Bad Home Health Pre-Claim Demo is Back; Comments On Proposed SNF Payment; Health Care Sabotage; More

1. Home Health Pre-Claim Review Demonstration Model, Take Two
2. Read the Center's Comments on Proposed Reimbursement for Skilled Nursing Facilities
3. Health Care Sabotage: DOJ Won’t Defend ACA
4. Nursing Home Residents at Risk
5. Clarification on DMEPOS Prior Authorization from June 7, 2018 CMA Alert

Home Health Pre-Claim Review Demonstration Model, Take Two

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In April 2017, the Centers for Medicare and Medicaid Services (CMS) abandoned a multi-state Medicare Pre-Claim Review Demonstration Model that had so many flaws it never made it out of the initial implementation state, Illinois. The latest proposed model promises to improve on the past model and boasts of greater flexibility and choice for providers in demonstration states (Illinois, Ohio, North Carolina, Florida, and Texas[1]). Instead of having to follow the strict pre-claim review procedures of the earlier model, or face a 25% payment reduction for home health services, providers will be able to choose from either 100% pre-claim review or 100% post-payment review, or face a 25% payment reduction. CMS states that these review processes will achieve the following:

• Help ensure that payments for home health services are appropriate;
• Further develop improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring among home health agencies;
• Protect the trust fund; and
• Reduce appeals.

For over half a century, the public has believed that CMS (and its’ administrative predecessors) have strived for appropriate payments in the Medicare program. However, before purposeful progress can be achieved to address fraud in the Medicare program, CMS must first ensure that Medicare contractors know Medicare law. The Center for Medicare Advocacy recently participated as legal experts in reviewing an OIG audit performed by a Medicare contractor. The contractors’ medical reviewers misunderstanding of Medicare law was shocking. Even more stunning was the fabricated standards applied to deny legally-defensible cases. Equally disturbing is that these same contractors are charged with educating providers about Medicare coverage. The dissemination of misinformation by contractors is unconscionable and must be corrected. That is how the trust fund will be best protected, by ensuring beneficiaries are properly approved for legally covered services. Finally, the goal of reducing appeals will only be appropriate when inappropriate denials are reduced.

The Center for Medicare Advocacy has no information offering assurance that this proposed demonstration program will be an improvement over the earlier failed model. Adding the alternative option of 100% post-payment review does not address the concerns that brought down the 2016 model in Illinois – onerous, rigid requirements that had to be met in unreasonable sequential order, derailed as soon as a doctor could not be reached for signature or a file could not be uploaded to a Medicare contractor properly. Under the failed demonstration, access to home health services in Illinois was reduced for beneficiaries by a double-digit percentage. Was that fraud reduction or the result of unreasonable administrative barriers for providers, who were then unable to continue the fight to serve Medicare beneficiaries? And the Medicare beneficiaries who lose access in those battles are the most vulnerable patients, with long-term chronic conditions.

CMS’ announcement of the new “Review Choice” Demonstration mistakenly stated that they had “posted a 60-day Federal Register Notice to allow providers the opportunity to review and comment” on the revised demonstration.[2] (Emphasis added). Certainly CMS meant to include beneficiaries and their advocates among those interested parties and members of the public who are legally entitled to comment and whose information CMS should consider when they review comments.

Public comments on the proposed action must be received by July 30, 2018. The Center for Medicare Advocacy will provide draft comments ahead of the due date for any organizations or individuals who wish to sign-on or use them to draft their own comments.

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Read the Center's Comments on Proposed Reimbursement for Skilled Nursing Facilities

On May 8, 2018, the Centers for Medicare & Medicaid Services (CMS) proposed a new Medicare Part A reimbursement system for skilled nursing facilities, called Patient-Driven Payment Model (PDPM).[1]  The Center for Medicare Advocacy issued an Alert on the proposed rules (“CMS Tries Again: Another New Skilled Nursing Facility Medicare Reimbursement System Proposed – If Implemented, Would Gut Therapy,” May 17, 2018) and has now drafted comments, which are available at https://www.medicareadvocacy.org/cma-comments-on-nursing-home-reimbursement-rules/.   

Comments to CMS on PDPM are due June 26.

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Health Care Sabotage: DOJ Won’t Defend ACA

In a previous Alert, we highlighted a lawsuit against the federal government by State Attorney’s General in twenty states led by Texas. At the center of the lawsuit is the Affordable Care Act’s (ACA) individual mandate penalty, which was repealed by Congress in last year’s tax bill. The lawsuit claims that the ACA is null and void because it doesn’t have the force of the individual mandate penalty. If successful, this lawsuit would sabotage the ACA, destabilize our health care system, and deny millions of consumer’s critical health coverage. People with pre-existing conditions and those who are older and sicker would be hit the hardest.  

To make matters worse, the U.S. Department of Justice (DOJ) sided with the states and will not be defending the ACA against the lawsuit. In fact, DOJ takes it a step further and argues against provisions of the ACA that guarantee coverage to people who are older, sicker, or have pre-existing conditions. Politico reports that a DOJ memo argues "This Court should hold that the ACA’s individual mandate will be unconstitutional as of January 1, 2019, and that the ACA’s guaranteed-issue and community-rating provisions are inseverable from the mandate.”

This unfortunate and unbelievable legal argument is a direct Administration assault on the health care of millions of consumers who are older or sicker. According to our partners at Justice in Aging, “Without these protections, 25 million Americans aged 50-64 may be unable to see doctors because they won’t be able to pay their much higher premiums.” The ACA’s guaranteed issue of coverage and community rating are vital protections for people who could be discriminated against and denied coverage. This latest action by the Administration will be added to our growing list of ways our health care is being sabotaged.

The ACA made it possible for people with pre-existing conditions to gain access to quality and often life-saving coverage. Millions of people now have access to essential benefits such as prescription drugs, preventive services, emergency services and hospitalization. As an organization working for fair access to health care, we renew our call to the Administration to defend and implement the ACA as it is the law of the land. We say again that the courts must not be used to sabotage our health care.

• See Protect Our Care’s stories of people who have pre-existing conditions here: http://protectourcare.us/stories/pre-existing-condition-stories/

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Nursing Home Residents at Risk

Since January 2017 the health and safety of nursing home residents has become increasingly imperiled. Nursing home lobbyists have urged the Centers for Medicare & Medicaid Services (CMS) to eliminate or delay regulations and dramatically reduce enforcement of violations. Unfortunately, CMS has shown a disturbing willingness to follow these lobbyists’ recommendations.

For example, under regulations finalized by the prior administration, nursing homes were obligated by November 2017 to conduct prompt care planning and institute antibiotic stewardship programs. The administration complied with lobbyist requests to delay enforcement of these and other requirements, establishing a moratorium until May 2019 on money penalties, even though nursing homes have been on notice of these requirements since September 2016.

Similarly, nursing home lobbyists have attacked a regulation from the previous administration that had prevented nursing homes from obtaining arbitration agreements from residents during the admissions process. In response, the current administration has proposed to rescind that regulation and issue a new regulation that would authorize nursing homes to require arbitration agreements as a condition of being admitted.  

Advocates including the Center for Medicare Advocacy, Consumer Voice, CANHR, and the Long Term Care Community Coalition, and led by Justice in Aging, have created a tracker of industry lobbying and resulting administrative actions, as well as a series of policy alerts providing more detail about the specific protections weakened by industry lobbying. An online version of the tracker and policy alerts are available on the JIA website. They will update the page regularly to include future CMS actions.

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Clarification on DMEPOS Prior Authorization from June 7, 2018 CMA Alert

While the prior authorization process allows unlimited prior authorization submissions, for non-affirmative prior authorization decisions, if a supplier submits a claim for payment determination to Medicare for DMEPOS, and that claim is denied, beneficiary appeal rights are available.

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