On Feb 5, 2016, CMS proposed a new regulation to establish a Prior Authorization Requirement for Home Health services provided in 5 select states:

  • Florida,
  • Texas,
  • Illinois,
  • Michigan, and
  • Massachusetts

 

The following was extracted from that notice:

Type of Information Collection Request: New Collection;

Title of Information Collection: Medicare Prior Authorization of Home Health Services Demonstration;

Use: Section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)) authorizes the Secretary to “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act (the Act).” In accordance with this authority, we seek to develop and implement a Medicare demonstration project, which we believe will help assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring among HHAs providing services to Medicare beneficiaries.

This demonstration would help assure that payments for home health services are appropriate before the claims are paid, thereby preventing fraud, waste, and abuse. As part of this demonstration, we propose performing prior authorization before processing claims for home health services in: Florida, Texas, Illinois, Michigan, and Massachusetts. We would establish a prior authorization procedure that is similar to the Prior Authorization of Power Mobility Device (PMD) Demonstration, which was implemented by CMS in 2012. This demonstration would also follow and adopt prior authorization processes that currently exist in other health care programs such as TRICARE, certain state Medicaid programs, and in private insurance.

The information required under this collection is requested by Medicare contractors to determine proper payment or if there is a suspicion of fraud. Medicare contractors will request the information from HHA providers submitting claims for payment from the Medicare program in advance to determine appropriate payment. Form Number: CMS-10599 (OMB Control Number: 0938-NEW); Frequency: Occasionally; Affected Public: Private sector (Business or other for-profits and Not-for-profits); Number of Respondents: 908,740; Number of Responses: 1; Total Annual Hours: 454,370. (For questions regarding this collection contact Carla David (410) 786-4799.)

Following are my initial thoughts/concerns I have had about this proposal that I shared with the industry via various emails and listserves on Feb 5th:

FYI – In today’s Federal Register.

Following is today’s notice that includes two collection (of information) requests from CMS that have EVERYTHING to do with the widespread perception that FRAUD IS RAMPANT throughout the HH industry!  No doubt this has a lot to do with the disinformation disseminated by many regulatory/oversight bodies; not the least of which are CMS and MedPac as they manipulate data to present a grossly bias perspective of home health.  But just as damning as that, is the industry’s apathetic (yes, I deliberately used that term!) history of defending itself and participating in the Rule-Making Process.

Well make no mistake, the below notices ARE part of that Rule-Making Process (which is a continual process; not something that happens once a year), and if you do not want to get involved and comment on these proposals, then DO NOT COMPLAIN with whatever CMS does (and its impact to your agency)!  This IS JUST LIKE voting for our political leaders; if you don’t vote, don’t complain about who’s in office!  There is currently a strong movement against home health by CMS, etc… (and there has been for quite a while); regardless of HH being the most cost-effective environment in which to provide healthcare to the recipient.  The ‘imaginary’ front-line that has theoretically been protecting HH from these attacks has crumbled like the French Maginot Line of WWII; and unfortunately, that front-line has been all but non-existent for the industry’s defense for too many years and that is why proposals like those below can even come to light.

The industry NEEDS to stand up as one and let CMS know that we are not going to idly sit by anymore and let them defame and wrongfully depict our industry as being one full of fraudsters and crooks!  And stand-up as one DOES NOT mean rely on the same old handful of individuals and organizations that have for years participated in the Rule-Making Process (and a thank-you goes out to the few who have gotten involved in this process over the last few years).  This means that individual organizations, owners, administrators, Directors, etc… should all take the time to prepare and submit comments (individually) so that we as an industry are not submitting 100s of comments for any Proposed Rule, that we are in fact submitting 1,000s; no, 10s of 1,000s of comments for this and any significant Proposed Rules, Notices, etc…, for the indefinite future to put CMS et. al., on notice that the line has been crossed and we as an industry are not going to take it anymore (Note: there were only 120 comments submitted for the 2016 Proposed Rule, and there were only 100 comments submitted for the 2014 Proposed Rule, which was the Rule that introduced Rebasing: this from an industry of approx. 13k HHAs!)!

Agency Information Collection Activities: Proposed Collection; Comment Request

 Link:  https://www.federalregister.gov/articles/2016/02/05/2016-02277/agency-information-collection-activities-proposed-collection-comment-request

 The PDF doc:  https://www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02277.pdf

Action:  Notice.

ADDRESSES:

When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:

  1. Electronically. You may send your comments electronically to http://www.regulations.gov. Follow the instructions for “Comment or Submission” or “More Search Options” to find the information collection document(s) that are accepting comments.
  2. By regular mail. You may mail written comments to the following address: CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number__, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.

DATES: Comments must be received by April 5, 2016

 

  1. Type of Information Collection Request: Extension of a currently approved collection; Title of Information Collection: Medicare Probable Fraud Measurement Pilot; Use: The Centers for Medicare & Medicaid Services (CMS) is seeking Office of Management and Budget (OMB) approval of the collections required for a probable fraud measurement pilot. The probable fraud measurement pilot would establish a baseline estimate of probable fraud in payments for home health care services in the fee-for-service Medicare program. CMS and its agents will collect information from home health agencies, the referring physicians and Medicare beneficiaries selected in a national random sample of home health claims. The pilot will rely on the information collected along with a summary of the service history of the HHA, the referring provider, and the beneficiary to estimate the percentage of total payments that are associated with probable fraud and the percentage of all claims that are associated with probable fraud for Medicare fee-for-service home health. Form Number: CMS-10406 (OMB Control Number 0938-1192); Frequency: Annually; Affected Public: Individual and Private Sector (Business or other for-profits); Number of Respondents: 6,000; Total Annual Responses: 6,000; Total Annual Hours: 7,500. (For policy questions regarding this collection contact Cecelia Franco at (786) 313-0737).

 

  1. Type of Information Collection Request: New Collection; Title of Information Collection: Medicare Prior Authorization of Home Health Services Demonstration; Use: Section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)) authorizes the Secretary to “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act (the Act).” In accordance with this authority, we seek to develop and implement a Medicare demonstration project, which we believe will help assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring among HHAs providing services to Medicare beneficiaries.

This demonstration would help assure that payments for home health services are appropriate before the claims are paid, thereby preventing fraud, waste, and abuse. As part of this demonstration, we propose performing prior authorization before processing claims for home health services in: Florida, Texas, Illinois, Michigan, and Massachusetts. We would establish a prior authorization procedure that is similar to the Prior Authorization of Power Mobility Device (PMD) Demonstration, which was implemented by CMS in 2012. This demonstration would also follow and adopt prior authorization processes that currently exist in other health care programs such as TRICARE, certain state Medicaid programs, and in private insurance.

The information required under this collection is requested by Medicare contractors to determine proper payment or if there is a suspicion of fraud. Medicare contractors will request the information from HHA providers submitting claims for payment from the Medicare program in advance to determine appropriate payment. Form Number: CMS-10599 (OMB Control Number: 0938-NEW); Frequency: Occasionally; Affected Public: Private sector (Business or other for-profits and Not-for-profits); Number of Respondents: 908,740; Number of Responses: 1; Total Annual Hours: 454,370. (For questions regarding this collection contact Carla David (410) 786-4799.)

 

My thoughts/comments/concerns:

  • If this goes through, expect you’re A/R Days to skyrocket!!!
    • That is, your Medicare Cash-flow will most likely take a BIG hit (i.e., slowdown) when this is implemented and it could take months to recover from!

This Fed’l Reg publication is ostensibly a one-page document that is for both notices, and what I have included above is approx. 75% of that document!

Your comments (due by April 5th) do not have to be long and elaborate, they can easily be presented on one-page and it could take a lot less time than I have already invested in putting this notice together.  What you could say though is:

  • that you are sick and tired of having our industry held out as the poster-child for fraud and abuse!
  • that there is nothing that has been identified in HH that indicates that fraud and abuse is any more rampant in our industry than any other government subsidized industry (not just healthcare!), and
  • that activities undertaken by those to try to establish rampant fraud in the HH industry, have done anything but that, as big %s that are one time held out as fraud and abuse are subsequently whittled down to very small %s, with most that was held out as fraud and abuse actually being overturned and established as reasonable and proper.  We are not saying that there is no fraud and abuse in our industry; there is (again, just as there is in EVERY government subsidized industry), but that we, the vast majority which are honest and diligent operators want to eliminate fraud and abuse as well, and that this ‘blanket-bombing approach’ to tackle fraud in our industry (which CMS has used way too long) is improper and borders on grossly-negligent and abusive in its own right!
  • You might also consider cc’ing your members of Congress on your comments also (so that they see them and that CMS sees them seeing them!)
  • And please be original in wording/syntax so that the comments don’t attain the ‘form letter’ feel which will negate the power of volume

Now that Medicare is no-longer politically considered the proverbial ‘third-rail’ that it once was, it seems that there is more abuse coming from the regulatory side of the system than there is from the industry!  Consider:

  • The 10% Outlier Cap;
  • The grossly negligent presentation of Medicare Profit Margins in HH;
  • Rebasing;
  • The implementation of the F2F regulation;
  • Etc…

 

Stand-up and make a difference.  Put in an hour (only 1 hour!) and prepare and submit a comment or two refuting the need for this and suggest that CMS require the MACs to do what they were chartered to do and get back out on the road doing field audits of those organizations suspected of perpetrating fraud in our industry!  PPS did not end the FI/MACs ability to go out and review the books/records of the agencies in HH, the FI/MACs and CMS did that on their own.  If you run a good, tight ship are you afraid of the FI/MACs coming out and auditing your records (tell you what, I’d rather have the FI/MAC doing that review than the RACs/ZPICS, etc… that are compensated based on what they find (and how much that they find is ever beneficial to the agency?))?  I was a Medicare Auditor early in my career.  And later, I fought Medicare Auditor’s proposed adjustments for years when I went to work in the industry.  Many, if not most Medicare Auditors were good and reasonable in their reviews, but there were those that were the self-appointed saviors of the Medicare Program (extremists) that would find catastrophic issues just about anywhere they went; and I fought many battles with these individuals.  Every year for at least 5 or 6 years we had multiple agencies audited and it seemed that every time they would come up with a proposed adjustment or two, that if upheld would have closed that agency.  Yet every single time I was able to defeat those adjustments that would have closed our agencies.  Was I good at what I did?  Maybe.  But what was better, was that I knew and understood the regulations and what we were doing as an organization better than the auditor, and was thus able to end those proposed adjustments prior to a financial catastrophe occurring at that agency.  If I would have taken a couple of % of what I saved our agencies over the years as compensation, I could have retired years, and years ago (just to give an indication of materiality)!  But in a manner of speaking, things were better then, because the fight was out in front of everyone; not of the covert nature that it is today and basically has been since a few years after the inception of PPS.

Is this the kind of fight that you want to be in?  One that targets the whole industry (covertly)?  Or would you rather have the fight be taken directly to those agencies that CMS, et. al, allude to as full of fraud and abuse and take your chances should they come visit you?

  • If you play the game fairly and reasonably, you should not have anything to worry about!
  • And if you need assistance fighting that fight, should it come to that, that assistance can be found!

Let’s protect and save our industry from the unscrupulous entities out there; whether they operate in our industry or in the regulatory bodies that oversee our industry.

Respectfully,

John

Fighting this fight since 1997!

 

 

This is a follow-up that I did on March 4th as I was preparing my comments:

What does everyone that works in Home Health think about CMS’s Proposed ‘Prior Authorization for Home Health Services’?

  • This notice was published in the Federal Register on February 5th with little fan-fare from the industry!

Here is the link to that notice (#2; not that #1 is ok either)https://www.federalregister.gov/articles/2016/02/05/2016-02277/agency-information-collection-activities-proposed-collection-comment-request

From that Proposed Rule:

“… authorizes the Secretary to “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act (the Act).  In accordance with this authority, we seek to develop and implement a Medicare demonstration project, which we believe will help assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring among HHAs …” 

How is this going to help with the identification and prosecution of fraud?

” This demonstration would help assure that payments for home health services are appropriate before the claims are paid, thereby preventing fraud, waste, and abuse. As part of this demonstration, we propose performing prior authorization before processing claims for home health services in: Florida, Texas, Illinois, Michigan, and Massachusetts. We would establish a prior authorization procedure that is similar to the Prior Authorization of Power Mobility Device (PMD) Demonstration, which was implemented by CMS in 2012. This demonstration would also follow and adopt prior authorization processes that currently exist in other health care programs such as TRICARE, certain state Medicaid programs, and in private insurance.”

Although this is proposed for just 5 states (FL, TX, IL, MI & MA), the other 45 states and US protectorates need to be concerned; because it’s coming to you next if this thing goes through!

I would say that anyone that tells you that this is a good thing for Home Health (HH), the beneficiaries we serve and the Medicare program overall must really have some ‘rosy’ colored glasses, and/or have never worked with any payors that already utilize the pre-authorization process.  And do not focus on the example they identify with the Power Mobility Device (PMD) Demonstration, citing this as representative is simply ludicrous!  The PMD industry and activity is nothing at all like HH and the way we care for the Medicare beneficiary.  Obtaining a PMD is a one-time event; nothing like the recurring visits that are HH!  Waiting 2-weeks for approval of a PMD is one thing.  How do you think the beneficiaries are going to like waiting for the approval to occur before receiving Medicare services?  … or having those services significantly reduced/limited?  This is just another, not so veiled attempt by CMS to take over Case-Management in HH.

This provision is NOT going to stop fraud in HH.  This is just another one of those overly-far reaching regulations that CMS is going to implement that will hurt/damage the 98+% of all good, honest and compassionate agencies that operate in HH.  Most of the significant fraud cases that I have seen brought, and/or settled, involved HHAs that were in-league with the docs/referral sources.  So unscrupulous HHAs that are in league with unscrupulous docs/referral sources will just keep chugging right along ripping off the program while this regulations negatively impacts the rest of the HHAs in these five states (and soon, the rest of Medicare).  This has been done by CMS many times in the past (many times with horrific results); and generally speaking, it is the honest, hardworking agency that is harmed: NOT that fraudsters!  If CMS is earnest about trying to stamp out fraud in HH (which I think that EVERY good, honest and compassionate agency would be in favor of), why don’t that take their expertise out on the road and start auditing (clinically, financially & operationally) those suspected perpetrators of fraud.  That’s what I believe has needed to be done for years and years, but they stopped that for the PPS time frame (we in the industry did not stop this, they did.  I know, because I used to be one that went out and did audits of HHAs).

But this is what our government, and just about all bureaucracies therein have come to: reasonableness and logic be damned, we’re from the government and were going to fix everything without any input from you!  This is what they have been doing for 20 years and whenever there is a problem with what they did, it is always the industry that pays the price.

For those of you that have never worked with a payor requiring pre-authorizations for services, the potential problems are not necessarily easy to see.  But just about everyone out there that has had experience working with payors that require pre-authorizations know the headaches and angst that just about every one of these payors causes for an HHA.  Plus there is the question of ‘Quality of Care’.  Wait till you see what happens to your Home Health Compare scores, your Star Ratings,  your Survey Results (HHCAHPS)  (all will likely go down) and your re-hospitalization rates (which will likely go up!)

The era that we are in is not too dissimilar to that of the Salem Witch Trials; with CMS being the puritans that will save everything and the mere accusation by them signifies guilt, and the HH industry is populated by the witches (so therefore, we are all guilty).

If you are content with this current environment, you do not have to do anything; just sit back and enjoy the witch hunt (well, that is at least until it arrives at your doorstep).   

But if this environment that exists, upsets and/or offends you, then you will likely also disagree with the value of this supposed fraud-busting regulation.  If that is the case, then please join those other, competent, and prudent individuals that will strive to make a difference by submitting comments to this short-sighted proposed regulation and put CMS on notice that we as an industry are not going to sit idly by while they try to circumvent the proper laws and regulations and dismantle the HH industry at their whim.

Comments to this proposed rule can be directly made via the following link:  http://www.regulations.gov/#!submitComment;D=CMS-2016-0012-0001