by Tim Rowan
On September 5, 2019, CMS announced a final rule giving the agency more authority to keep "unscrupulous providers out of our federal health insurance programs." Specifically, the rule reasserts the authority of HHS to deny applications for enrollment or re-enrollment in the Medicare program, but adds more reasons for denial. It is acceptance of an enrollment application that gives an individual or company the ability to send a claim to a Medicare Administrative Contractor.
The announcement asserted that this marks a switch from CMS's traditional "pay and chase" policy to an effort to stop fraud before payments are made. The Final Rule, "Program Integrity Enhancements to the Provider Enrollment Process" (PIEPEP), (CMS-6058-FC) created several new revocation and denial authorities, as well as other supporting authorities. The official announcement explained the expansion is "to strengthen CMS's efforts to stop fraud, waste, and abuse."
More than a few industry observers have expressed concerns about what this may mean to Home Health, depending on how CMS decides to enforce it. One of these observers made contact with a CMS official who will be responsible for enforcement. "We're still discussing it," he said. "We are undecided about how we will implement it."
This rule was finalized 21 months ago.
Once the folks in charge decide how to apply this regulation, impact on providers could turn in a number of directions, says home care attorney Elizabeth Hogue. "My fear is that they will find somebody who once worked at a HHA where payments were suspended, or overpayments were not returned. Now that employee goes to a new HHA, which is denied enrollment in Medicare because of that employee's name on the roster."
Asked whether CMS would exercise some discretion in situations like this, the unnamed CMS official "hemmed and hawed," repeating, "we're still trying to decide." Nevertheless, CMS admitted in its Fall, 2019 announcement that it "expects these provisions will cause 2600 new withdrawals of providers per year from the programs."
Reminder: Fraud is Only One Component of
"Fraud, Waste, and Abuse"
When we asked Medicare appeals veteran and OperaCare founding CEO Michael McGowan for his take on the new Affiliations Reporting rule, he surprised us with a broader perspective.
"CMS has taken many approaches to addressing Fraud, Waste, and Abuse in Home Health. Sure, there are occasional sensational headlines about fraud arrests, but they have been largely ineffective in protecting the Medicare trust fund from the other two legs of the stool: waste and abuse, where the real losses occur.
"During the past twenty years, CMS has pretty much ignored waste and abuse, tripping over dollars to save pennies.
"When I speak to CMS's contracted ZPIC/UPIC auditors, they tell me that they cannot fathom performing any type of audit absent a formal criminal fraud investigation. Routine, daily waste and abuse are not on their radar, nor, apparently, in their vocabulary.
"A technology as simple as placing a claims adjudication engine in front of each MAC's payment gateway, one that can identify waste and abuse within claims data and return questionable claims to the provider for clarification, has actually been rejected by CMS.
"In the end, it will be attorneys who defend whatever CMS comes up with when they finally decide how to implement this new round of fraud prevention experimentation. They will have the final say over who gets to work in Home Health and who does not. The people who want to work diligently in the trenches may not be able to. The ones causing the far more expensive waste and abuse problem will continue uninterrupted."
We asked home care attorney Liz Pearson, of Pearson and Bernard, PSC, of Edgewood, Kentucky, to give us a second opinion. As always, her insights are not to be taken as legal advice.
"Some of the ownership issue will remain as it is now," she told us. "If an owner, officer, Director or manager (CFO, etc.) has a criminal background, you have to report it. In particular, they are looking at crimes linked to Medicare or other government payers, but include general crimes like theft. Even before this rule, they have been allowed to reject an application if one of those people have been convicted of such crimes. They look at all the facts surrounding any crime, but if it's Medicare/Medicaid fraud, that is an absolute no go!"
Pearson added that there is a 5-year lookback cap on outstanding overpayment liabilities, so anyone who walked away from insurmountable IPS-era debts could be approved today, but recent liabilities will be a problem under the new rule. "And they can happen for a lot of reasons – late cost reports and the like," Pearson added. "CMS could deny an application or re-enrollment (revalidation) until those debts are settled. Or, it may decide it can deny the application even after old debts are settled. We simply do not know yet."
It seems that the individuals most likely to be mistreated by the expanded authority CMS has given itself, assuming they ever decide how to implement the rule, will be former management level employees who may have played no role in a provider's fraudulent activity. "When they join another provider, or try to open a new agency of their own," attorney Hogue told us, "they could carry the stain of their previous employer and impose it on the new one. Unfortunately, we cannot know that until CMS puts the September, 2019 rule into place."
In the comment section, attorney Pearson discovered, CMS recognized the burden that would be created for every provider to report every "affiliation" that an owner, board member, or managing employee might have had with some provider that had its own affiliation with another provider with a disclosable event. "Those events might include an uncollected debt, a payment suspension exclusion, or an enrollment that was terminated (voluntary or involuntary) or denied in the last six years," she explained.
Instead of the provider having to gather all this background information for the applicable people/entities during an enrollment or revalidation application, "CMS will do the research in its records and other places to determine if any owner, board member or managing employee has such an affiliation and will request details on that affiliation directly from the provider who submitted the application. CMS with then evaluate that affiliation to determine if it creates 'undue risk' of fraud, waste or abuse."
"Part of the problem," attorney Hogue concluded in our interview, "is that when they take drastic steps that harm Home Health Agencies, there are no bodies to deal with. Unlike when they shut down a SNF or a hospital, Home Health has no residents or bedridden patients who have to be immediately relocated and continuously cared for. That may be why they don't take us seriously when we talk about HHAs being shut down."
©2021 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Home Care Technology: The Rowan Report. homecaretechreport.com One copy may be printed for personal use; further reproduction by permission only. email@example.com