CMS COVID-19 Lessons from the Front Lines, Friday, May 22nd, 12:30 – 2:00 PM Eastern

The Wisconsin DHS has issued a Badger Bounce Back Plan. The plan identifies steps and criteria to guide the reopening of health care and other services in the state.

(i) symptoms; showing a downward trajectory in illnesses of a 14-day period;

(ii) cases, fewer and fewer positive tests over a  14-day period;

(iii) health care system; hospitals can treat patients without “crisis care” and there is robust testing;

(iv) testing; every Wisconsin resident with systems is able to get lab tests with results reported to public health within 48 hours of collection;

(v) contact tracing; every individual who tests positive is interviewed within 24 hours and their contacts are interviewed within 48 hours; and

(vi) protective equipment; all health care and public safety entities must have adequate protective equipment. 

By Fisher, JD, CHC, CCEP

Section 1557 Covered Entities and Employer Sponsored Health Plans

Section 1557 of the Affordable Care Act (ACA) prohibits “covered entities” discrimination in health programs that receive federal financial assistance from the Department of Human and Health Services.  Regulations were issued in 2016 that define the details of compliance with Section 1557 which prohibits discrimination based on race, color, national origin, age, disability and sex.  (including discrimination based on pregnancy, gender identity and sex stereotyping).  The stated purpose for the rules is to expand access and eliminate barriers to the ability to obtain health care coverage.

The definition of “covered entities” to which Section 1557 apply is extremely broad.  Through the broad definition, the requirements of Section 1557 apply to any health program or activity that received federal financial assistance through the Department of Health and Human Service.  This definition includes most health care providers, such as hospitals, nursing homes, and physician, who receive Medicare or Medicaid reimbursement, insurance marketplace and exchanges and participating health plans.

The Section 1557 rules extend to some (but not all) employers that are group health plan sponsors.  Determining whether Section 1557 applies to a specific employer can be quite complicated and is based on several factors such as

Read more here: Health Law Blog

Health Care Legislation Signed By Governor Walker 

Wisconsin Governor Scott Walker signed 63 new pieces of legislation into law on April 9, 2014, several of which relate to the health care industry.  The new health care legislation includes the following:

1.         HIPAA Harmonization.  The HIPAA Harmonization Act which changes laws relating to behavioral health records to better align Wisconsin laws to federal HIPAA requirements.  Assembly Bill 453.

2.         Hospital Conditions of Participation.  A new law requiring the Wisconsin Department of Health Services to use Medicare Conditions of Participation when surveying hospitals.  This legislation gives DHS the authority to enforce standards that are contained in federal regulations as the minimum standards for Wisconsin hospitals.  The DHS is required to interpret the conditions of participation using guidelines established by the Federal Center for Medicare and Medicaid Services (“CMS”).  The new standards will apply beginning July 1, 2016.  Senate Bill 560.

3.         Physician Residency Requirement.  Post medical school residency requirements for physicians are increased from one to two years.  New medical school graduates will now be required to complete two years of residency unless they receive an unconditional endorsement from the residency program director.  The new law also creates a new “resident educational license” to replace the current “temporary educational permit.”  A new “administrative physician license” is also created which authorizes physicians to hold a license limited to administrative services.  Senate Bill 579.

4.         Mental Health Pilot Program.  A new pilot program in Milwaukee County was created which allows emergency detention without the involvement of law enforcement in certain circumstances.  Under this bill, the authority to initiate emergency detention is expanded to a “treatment director” or their designee, including a licensed social worker, professional counselor, or psychiatric nurse.  The stated purpose of the pilot program is to reduce stigma in mental health by allowing a clinical approach rather than a law enforcement approach to emergency detentions.  Assembly Bill 500.

5.         Volunteer Health Care Programs.  A law to allow an out-of-state health care professional to partner with a non-profit provider to participate in Wisconsin’s volunteer health care provider program.  The health care provider must have a current license to practice in their home state or territory and must only volunteer within their scope of their practice.  Senate Bill 391.

6.         Provider “Apology” Protection.  A new law which allows a health care provider to have full and frank conversations with patients or patients’ relatives that may include apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy, without risk of admissibility in civil action, administrative hearing, disciplinary proceedings, mediation, or arbitration as evidence of liability.  Assembly Bill 120.

7.         Tribal Treatment Facilities.  A new law that permits an approved tribal treatment facility to assess and treat participants in the intoxicated driver program who are either tribal members or relatives of tribal members.  The bill requires a court to notify the person convicted of operating while intoxicated that the offender is eligible for treatment at the facility and the facility must notify the appropriate county assessment agency within 72 hours of assessing the individual.  Assembly Bill 32.

8.         Annual Mental Health Service Reports.  A new requirement that the Wisconsin Department of Health Services provide a report to the Legislature on January 1 of every odd numbered year that describes what mental health services are being provided by the counties.

9.         Fetal Alcohol Syndrome Reports.  A requirement that hospital employees refer infants to a physician if they suspect the infant has fetal alcohol syndrome.  The physician is then required to evaluate the infant for the syndrome if they determine there is a significant risk of fetal alcohol syndrome.  The physician must then report to the agency responsible for investigating cases of child abuse and neglect.  Assembly Bill 675.

If you require further information on any of these legislative enactments, please contact John H. Fisher, II, CHP, CCEP.  Further updates will also be found at http://www.healthlaw-blog.com.

By John Fisher, JD, CHC, CCEP

Read more here: Health Law Blog

Payment Suspension – Moving Away from Pay and Chase

CMS now has the authority to suspend further payments to a provider following receipt of any “credible allegation of fraud.”  Allegations are deemed to be credible when they have an “indication of reliability.”  The allegation can come from a number of possible sources such as employee complaints, whistleblower claims, provider audits, false claims allegations, or virtually any other source as long as CMS deems the allegation to be credible.  The suspension of payment may last up to eighteen (18) months or longer if a referral is made for further administrative action.

Suspension of payment is an extremely draconic remedy which can threaten the financial existence of some providers.  The remedy is available even before there is solid proof that fraud has been committed.  The possibility of having payment suspended is yet another reason for providers of all types to adopt sensible, scaled compliance programs.  An effective compliance program is the provider’s best proactive defense to the potentially devastating impact of having payment suspended.

Metropolitan Statistical Areas in the State of Wisconsin

Wisconsin contains 11 Metropolitan statistical areas that are totally within the state and an additional four MSAs that overlap state borders.  The Wisconsin MSAs include the following areas:

1.         Appleton (Outagamie and Calumet)

2.         Eau Claire (Eau Claire and Chippewa)

3.         Fond du Lac (Fond du Lac(

4.         Green Bay (Brown, Oconoto and Kewaunee)

5.         Janesville (Rock)

6.         Madison (Dane, Columbia and Iowa)

7.         Milwaukee-Waukesha-West Allis (Milwaukee, Waukesha, Ozaukee and Washington)

8.         Oshkosh-Neenah (Winnebago)

9.         Racine (Racine)

10.       Sheboygan (Sheboygan)

11.       Wausau (Marathon)

The four cross-border MSAs applicable to the State of Wisconsin include:

1.         La Crosse (La Crosse/WI plus Houston/MN

2.         Minneapolis-St. Paul-Bloomington (Anoka, Carver, Chicago, Dakota, Hennepin, Isanti, Ramsey, Scott, Sherburne, Washington and Wright/MN plus Pierce and St. Croix, Wisconsin)

3.         Duluth (Carlton and St. Louis/MN plus Douglas, WI

4.         Chicago-Naperville-Joliet (Cook, Dekalb, DuPage, Grundy, Kane, Kendall, Lake, McHenig and Will/IL plus Jasper, Lake, Newton and Porter/IN plus Kenosha, WI

HIPAA Preemption of State Law

The HIPAA Privacy Rule provides a Federal floor of privacy protections for individuals’ individually identifiable health information where that information is held by a covered entity or by a business associate of the covered entity. State laws that are contrary to the Privacy Rule are preempted by the Federal requirements, unless a specific exception applies. These exceptions include if the State law:

• relates to the privacy of individually identifiable health information and provides greater privacy protections or privacy rights with respect to such information
• provides for the reporting of disease or injury, child abuse, birth, or death, or for public health surveillance, investigation, or intervention, or
• requires certain health plan reporting, such as for management or financial audits. In these circumstances, a covered entity is not required to comply with a contrary provision of the Privacy Rule.

Additional areas that permit State law to have an exception from the Federal preemption rules can be created by formal request from the State if certain requirements are met.  The Department of Health and Human Services (HHS) may, following request from a State, determine that a provision of State law which is “contrary” to the Federal requirements – as defined by the HIPAA Administrative Simplification Rules – and which meets certain additional criteria, will not be preempted by the Federal requirements. The Secretary of HHS must determine that one of the following criteria apply before granting and exception from the HIPAA preemption rules. These criteria require a showing that the state law at issue:

1.  is necessary to prevent fraud and abuse related to the provision of or payment for health care,
2. is necessary to ensure appropriate State regulation of insurance and health plans to the extent expressly authorized by statute or regulation,
3. is necessary for State reporting on health care delivery or costs,
4. is necessary for purposes of serving a compelling public health, safety, or welfare need, and, if a Privacy Rule provision is at issue, if the Secretary determines that the intrusion into privacy is warranted when balanced against the need to be served; or
5. has as its principal purpose the regulation of the manufacture, registration, distribution, dispensing, or other control of any controlled substances (as defined in 21 U.S.C. 802), or that is deemed a controlled substance by State law.

Only State laws that are “contrary” to the Federal requirements are eligible for an exemption determination. In order to be considered “contrary”  it must be impossible for a covered entity to comply with both the State and Federal requirements, or that the provision of State law is an obstacle to accomplishing the full purposes and objectives of the Administrative Simplification provisions of HIPAA.

Although physicians averted a nearly 27% reduction in reimbursement under Medicare, the Fiscal Cliff Legislation included a number of changes in reimbursement that in additiona to the “doc fix.”  Many of those chanced will not make health care providers very happy.  For example, the Wisconsin Hospital Association reported on friday about “Troubling Hospital Cuts” that are included in the Fiscal Cliff legislation.  Although some important programs benefiting rural providers were extended, other provisions were included that will not be as positive for hospitals and some other providers.

Some of the health care provisions that were included in the Fiscal Cliff Legislation include:

• Medicare contractors will be given an additional 2 years to pursue overpayments from providers.  Previous law limited the recovery time period to three years.  The Fiscal Cliff legislation extended the period that Recovery Audit Contractors and other contractors can look at to assess overpayments against providers.
•  The exceptions process relating to outpatient therapy services cap is extended for an additional year. The cap is also extended to therapy furnished as part of outpatient services provided by a critical access hospital.
• Limitations were placed on reimbursement for stereotactic radiosurgery.
• A new competitive pricing system for Medicare diabetic supplies is created.
• The temporary increase in ambulance costs un certain rural areas was extended for another year.
• A reduction by 10% in reimbursement for many non-emergency ambulance transports.  The legislation also calls for the preparation of a study on existing cost reports for ambulance services furnished by hospitals and critical access hospitals.  The existence of this study provides evidence that future reforms in ambulance service reimbursement may be on the way.
• The reduction in reimbursement for certain advanced imaging services is increased from 75& to 90%.
• CMS is required to adjust bundled payments for end stage renal disease to reflect changes in utilization and current sales prices of certain drugs and biologicals. Implementation of the oral-only ESRD-related drug requirement was delayed through the end of 2015.
• The Medicare-Dependent and Low-Volume Hospital programs were extended.  Although the extension in for only a short time, these important additional payments for rural hospitals are being extended.
• Implementation of a system to recoup payments made to hospitals under that result from the shifting of PPS payments to MS/DRG system. The new provisions permit recoupment from hospitals for “upcoding” or “coding creep.” This change is estimated to cost hospitals nationwide around $10.5 billion to be recouped for 2014 through 2017.