Archive for the ‘Medicare and Medicaid’ Category

RCS-1 Model Worksheet Gives a Glimpse of a World Without RUG

Monday, March 12th, 2018

By Fisher, JD, CHC, CCEP

RCS-1 Sample Worksheet

RUG System for Skilled Nursing Facility Reimbursement – Time is Running Out

It is currently anticipated that the RUG system, which is currently used to calculate reimbursement for Medicare Part A skilled nursing services, will be changed over the next year.  CMS is currently considering a new Resident Classification System that will completely change the way SNFs are reimbursed for their services.

Providers are getting glimpses of what may be included in the new calculation system.  CMS issued a draft sample worksheet using the RCS-1 system.  The stated purpose is to give providers a description of how the new system would work.  The worksheet gives a description of how a manual calculation would take place using the RCS-I methodology.

The sample draft worksheet that was issued by CMS is available here.  RCS_I_Logic-508_Final

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Wisconsin Home Health Quality Regulations – HHA Attorney Wisconsin

Tuesday, February 14th, 2017

Wisconsin Home Health Quality Reporting Requirements-  OASIS Data Item Set 

The reporting of quality data by home health agencies (HHAs) is mandated by Section 1895(b)(3)(B)(v)(II) of the Social Security Act (“the Act”).  This statute requires that ‘‘each home health agency shall submit to the Secretary such data that the Secretary determines are appropriate for the measurement of health care quality. Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this clause.’’

OASIS reporting is mandated in the Medicare regulations at 42 C.F.R.§484.250(a), which requires HHAs to submit OASIS assessments and Home Health Care Consumer Assessment of Healthcare Providers and Systems Survey (HH CAHPS) data to meet the quality reporting requirements of section 1895(b)(3)(B)(v) of the Act.

Home Health Quality Reporting Requirements

OIG Releases Annual Work Plan for 2017

Monday, January 23rd, 2017

OIG Annual Work Plan for 2017 – Topics Covered

The Health and Human services Office of Inspector General (OIG) recently released its 2017 Annual Work Plan.  Work planning is an ongoing project within the OIG.  Every year, the OIG publishes a work plan that consolidates the OIG audits and evaluations that are being conducted or planned within the organization.  The annual work plan has become a source that compliance officers look to as a tool for the identification of potential risk areas or areas of emphasis within their organization.  It is obviously not the only source for identifying compliance risk areas, but is certainly one reliable source that providers can draw on when setting their annual compliance priorities.

The 2017 OIG Work Plan can be download through the OIG site.

Ruder Ware’s health care group will continue to put out blogs and articles on various issues identified in the 2017 Annual Work Plan.  We will focus primarily on issues that were introduced for the first time in this year’s plan.

Ambulatory Surgery Centers – Federal Settlement Highlights Safe Harbor Requirements

Tuesday, June 2nd, 2015

By John Fisher, JD, CHC, CCEP

ASC Investments Safe Harbors

A Tennessee based ambulatory surgery center company has agreed to pay damages to a former employee who filed a suit alleging that physician investments in local surgery center entities violated the Anti-kickback Statute.  The case highlights some of the unique kickback issues that are present in ambulatory surgery center structure.  Specifically, the case demonstrates how investment terms that are intended to assure compliance with the safe harbor regulations under the Medicare Anti‑Kickback Statute (42 U.S.C. § 1320a-7b(a)-(b)) can create evidence of non-compliance if the initial terms of the offering relate, in whole or in part, to the volume or value of expected referrals from the investor in the ASC venture.

In order to comply with safe harbor requirements, ASCs must generally require investing physicians to use the facility as an extension of their medical practices.  However, if the terms of the investment are based on the volume or value of referrals, those same requirements become evidence that referrals are being required in exchange for remuneration.  In the Tennessee case, the ASC management company purchased controlling interests in local surgery center entities at a high multiple of earnings.  Physicians who were referral sources were offered investments at less than 1/3 of the

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Voluntary Self Disclosure Decisions Can Be Complicated

Tuesday, April 8th, 2014

By John Fisher, JD, CHC, CCEP

OIG Self Disclosure Decisions

Provider Self Disclosure Decisions – Voluntary Disclosure Process

The decision whether or not to voluntarily disclose to the government can be very difficult.  Not every case is clear.

Clearly not every situation where there has been a billing error amounts to fraud or wrongdoing requiring use of the self-disclosure protocol.  Many over-payments that are identified through audit can be dealt with at the intermediary level.  Where investigation raises questions about whether incorrect bills are “knowingly” submitted, the self disclosure process may provide some mitigation of potential loss.  Situations where the provider perhaps “should have known” raise more difficult issues of analysis.

The situation is also complicated because a potential whistle-blower may view a situation much differently than a provider who finds what it believes to be an innocent mistake through the audit process.  A provider may sincerely believe that there was no “wrongdoing” and that a simple mistake has been identified.  Finding such a mistake may actually be evidence that the provider’s compliance efforts are working.  On the other hand, there is a whole legal profession out there now that is advertising for people to come forward with these types of mistakes.  With potential recover under the False Claims Act of 3 times

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Personal Care Service Providers and Wisconsin Medicaid

Friday, February 14th, 2014

By John Fisher, JD, CHC, CCEP

Personal Care Service Providers – Wisconsin Medical Assistance

Wisconsin Statute § 49.45(42)(d)3 describes the types of organizations that qualify to receive Medicaid reimbursement for “personal care services.”  Qualified entities include licensed home health agencies and other entities that are certified under section (2)(a)(11) to provide personal care services under section 49.46(2)(b)6j.  The DHS does not appear to have implemented regulations that specifically describe the criteria that “other entities” must meet in order to become qualified to receive reimbursement from Medicaid for the provision of personal care services.

The applicable provisions of section 49.45(2)(a)(11) do not contain specific criteria that “other entities” must meet but simply refers to the requirement that DHS promulgate rules establishing qualifications of providers.  The referenced statutory provision does not refer specifically to the requirements that “other entities” must meet in order to qualify to receive reimbursement for personal care services.

The requirements that must be met in order to become a licensed home health are more extensive than the personal care services entity.  However, becoming licensed as a home health agency will qualify you to provide and bill for personal care services directly.  It would also permit you to bill private pay patients for skilled nursing and other

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Payment Suspension Fraud and Abuse – End To Pay and Chase

Monday, May 27th, 2013

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.

MSA Metropolitan Statistical Areas Wisconsin

Thursday, April 11th, 2013

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

Overpayment Demands and Collections CMS Medicare Overpayment

Friday, March 22nd, 2013

CMS Overpayment Demands and Collections Matters

The Affordable Care Act affirmatively requires a health care provider who has received an overpayment to return such amount within 60 days after it has been identified. Returning an overpayment past the 60 day notice period becomes a violation of the Federal False Claim Act. An “overpayment” includes any amount that a person returns or receives under Medicare of Medicaid that is not entitled.

The normal procedure that is followed by CMS is to recoup overpayments against future payments that are due to the provider. If CMS initiates the process, it will normally start with the issuance of a demand letter. Outstanding overpayment obligations may be referred to the Department of Treasury for collection following written notice to the provider. In some cases, private collection firms might also be used.

Providers can often work out extended repayment plans with private collection agencies, treasury, or directly with CMS. There are also opportunities to compromise some overpayment claims.

There is no statute of limitation for recoupment or offset of claims. There is a 6-year statute of limitations on affirmative actions to collect on overpayment.

In some cases, providers can be liable for the overpayment liabilities of entities that the purchase under the theory of successor liability. Medicare does not change a high rate of interest on overpayments that remain outstanding.

Mandatory Compliance Programs For Nursing Facilities

Sunday, February 17th, 2013

Nursing Facilities Are The First to Require Compliance Programs

The Patient Protection and Affordable Care Act of 2010 (PPACA) mandates compliance programs for most providers and requires the Secretary of Health and Human Services to publish regulations that establish the core elements for compliance programs.

Nursing facilities are the first providers to be mandated and must comply in 2013. However, CMS missed its statutory deadline of March 23, 2012 for issuing detailed regulations for nursing facility compliance programs. It is expected that these regulations and the requirements for other providers will be forthcoming now that the Supreme Court has opened the way for enforcement.  In the meantime, nursing facilities do not have precise guidance on compliance program requirements. 

Even though final detailed regulations have not been issued, providers should not wait to step up their compliance efforts.  There are many sources for guidance on how compliance should operate.  Providers will be required to certify that their compliance programs are effective in preventing and detecting criminal, civil, and administrative violations and in promoting quality of care.  Simply having a program in place is not enough.  The program must have sufficient operating history to demonstrate that it is “effective.”  Effectiveness reviews should be periodically performed to support the required certifications.