Triad of Innovation

Clinical

by Kristin Rowan | Jan 24, 2024 | Clinical, Regulatory, Vendor Watch

by Kristin Rowan, Editor

The Arizona Healthcare Cost Containment System (AHCCCS American Rescue Plan (ARP) Program has awarded a grant to a collaborative group of care providers, solutions providers, and educators. On January 18th, Arizona home care agency Cypress HomeCare Solutions announced they have been selected at the recipient of this program award along with solutions provider PocketRN and educator Nevvon. As a team, they will implement services that improve client and provider experiences while also creating health system savings.

In Her Own Words

Last week, we spoke with PocketRN CEO Jenna Morganstern-Gaines. “Nevvon and PocketRN are working with Cypress to implement [the use of] PocketRN by Cypress’s caregivers to study cost of care, experience for clients, families, and the care team, and outcomes,” explained Morganstern-Gaines. She further explained that part of the requirements of the grant is to issue quarterly reports and a final evaluation of the program after one year. They are currently through the first phase of the study, which was to onboard patients, families, and caregivers.

PocketRN is a telehealth platform that engages in “whole person clinical care.” It is a flexible, virtual nursing and clinical service application that wraps clinical care around non-medical care in the home. The use a proactive approach by assigning a virtual nurse to each patient who continues to check in with the patient and the family to provide coaching and assistance and to help coordinate care.

“There’s a real reason we use the phrase ‘nurse you back to health’ and not ‘doctor you back to health’. The person that will help follow through is the nurse and PocketRN provides you a one-to-one relationship with a nurse that will follow through with all of your care providers to ensure that you are ‘nursed’ back to health.”

Jenna Morganstern-Gaines

CEO, PocketRN

We will be following this ongoing study and providing updates from the reports we receive.

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news .She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Call to Action: Advocacy Is Everyone’s Responsibility

CMS

by Tim Rowan | Jan 24, 2024 | CMS, Regulatory

by Tim Rowan, Editor Emeritus

he battle for stable Home Health reimbursement rates continues full speed ahead on Capitol Hill, but the advocacy organizations engaged on the front lines of that battle are losing ground. The Partnership for Quality Home Healthcare and the National Association for Home Care and Hospice have deployed weapons from educating Congressional staffers to suing CMS. Those traditional methods appear to be insufficient, as the specter of draconian rate cuts casts a larger and larger shadow.

Missing from the conflict is the only effective weapon, flooding lawmakers with messages from their constituents.

According to Joanne Cunningham, CEO of the Partnership, the time is now to bring that weapon to the front. She told over 600 attendees at this week’s Home Care 100 event in Scottsdale that she and Bill Dombi have done everything they can up to now, adding that the only way to stop $3.5 to $5 billion in Medicare cuts is for every person of voting age whose livelihood depends on Home Health care to call or write their House Member and Senators.

CMS Payment rate cuts<br />
Joanne Cunningham

STEP ONE: A "Must-Pass" Bill

“Preserving Access to Home Health Act of 2023,” is a pair of bi-partisan bills introduced into the House and Senate in the summer of 2023. (S.2137/H.R. 5159) They would prevent CMS from making new cuts to the PDGM payment system, both now and in the future, by blocking annual “recalculations” that traditionally use flawed formulae.

The bills would require MedPAC to perform more comprehensive calculations before it makes recommendations to Congress. Currently, the Commission only considers revenue and profit margins from traditional Medicare. They determine that Home Health margins are too high without looking at the small-to-negative margins providers accrue from Medicare Advantage, Medicaid, the VA, and private insurance. Medicare profit margins make it possible for HHAs to care for patients with stingier payers. Reducing those margins too far, which MedPAC recommends every year, would remove access to care for millions of beneficiaries.

STEP TWO: Educating Congress

Ms. Cunningham emphasized that elected officials, as well as bureaucrats who write the regulations to implement the “will of Congress,” have yet to understand the impact in-home care has on overall healthcare spending and access to care. “We have to get bureaucrats to look at our data,” she said. “We know we save the trust fund more than we take from it, and we know that we are turning patients away because we cannot pay enough to attract clinicians in sufficient numbers. We have to educate them all.” She offered a few concrete suggestions.

What Works Best

- Data, data, data. The most effective policy argument starts with independent analysis from outside the industry.
- Tell stories. Elected officials and their staffers respond to real-life experiences of people within their districts and states. A group from Inhabit Health, for example, sat Congressional staffers down and told them about individual patients who had been kept out of hospitals and EDs, about great care they had received. They added summaries of their typical patients as well.
- Listen. Staffers will challenge your assertions and ask hard questions. They will help you identify your ‘Achilles Heels.’ See this as helpful preparation for meeting the Member or Senator.
- See them at home. Cunningham underscored the importance of making appointments and meeting with House members and Senators away from DC, for two reasons.
  - “A lot of people approach a Member on the way out of a church they both attend. What they don’t realize is that they are one of ten who will do the same thing between the church door and his car, from ten different industries. You just become ‘part of the clutter’ and are quickly forgotten.”
  - Back home advocacy is the most important thing you can do; it is even better than going to DC. Their main interest is re-election and they respond to messages from constituents. The purpose of advocacy is to cut through the noise. At home, you can say, “Hey, I know you; you’re my neighbor; listen to me!”
- Repetition is key. When you write a letter, it goes on a list. Staffers count up how many constituents have written about each issue. The best strategy is to make them feel pressure from back home. Marshall all the political pressure you can, but fill it with data.

Case in Point

Ms. Cunningham told about leading a group of Home Health providers from Oregon to meet with Senator Ron Wyden in his home office. To make their case for Home Health reimbursement support, they showed him their books, which proved that MedPAC is wrong about Home Health profit margins. They changed his mind. She said that meeting was so powerful and successful, it has become a model for working with other states.

STEP THREE: Expose Medicare Advantage

The Partnership’s goal is to ensure alignment of the MA home health benefit with traditional Medicare – as all Medicare beneficiaries are all entitled to the same home health benefit, regardless of the payor.

“MedPAC met during the first week of January to discuss Medicare Advantage. The meeting, which included a focus on the methodology of payments, was contentious at times.” Cunningham said. “In its January 12 report to Congress, The Medicare Advantage Program: Status Report, MedPAC forecast that CMS will overpay MA plans as much as $88 billion in 2024, based on prior year behavior.”

Higher coding organizations have a competitive advantage because they receive larger payments for enrolling the same beneficiaries as other organizations, and they can offer more extra benefits and attract new enrollees simply because of their coding efforts

Andrew Johnson, PhD

Principal Policy Analyst, MedPAC

MA’s focus on extras such as Silver Sneakers, vision care, and basic dental care, along with low or zero premiums added to the Medicare Part B premium that all beneficiaries pay, are what MA plans emphasize in their annual barrage of TV commercials. Never mentioned on TV or in direct mail brochures are two practices that impact many times more dollars than gym memberships and low premiums. The undeserved $88 billion mentioned in the MedPAC report comes from exaggerating initial assessments of plan enrollees. Payments from Medicare to a plan hinge on patient acuity. When improperly padded, acuity robs the trust fund and pads insurance company profits.

The second downplayed practice is on the care side of the equation. The largest MA plans have often been found to deny procedures that traditional Medicare standards would have covered. When they do pay for care, especially Home Healthcare, they pay rates below traditional Medicare rates, often lower than provider costs. Cunningham concluded her comments with a description of the Partnership’s efforts to bring pressure from MedPAC and the HHS OIG to force MA plans to comply with regulatory requirements. “We are all of one mind regarding MA. I think we are going to see practices change.”

About PQHH

The Partnership for Quality Home Healthcare was established in 2010 to work in partnership with government officials to ensure access to quality home healthcare services for all Americans. Representing community- and hospital-based home healthcare agencies nationwide, the Partnership is dedicated to developing innovative reforms to improve the program integrity, quality, and efficiency of home healthcare for our nation’s seniors.
pqhh.org

# # #

Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. More information: RowanResources.com
Tim@RowanResources.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report.homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com

MedPAC Report Slammed for Telling Truth About MA Abuses

Regulatory

by Tim Rowan | Jan 24, 2024 | Regulatory

Untitled Document

Analysis by Tim Rowan, Editor Emeritus

erennial Home Health enemy MedPAC angered a different group last week by releasing a status report on insurance companies participating in the Medicare Advantage program.¹

The report details the way in which giant, for-profit, health insurance companies improperly increase per-customer payments by upcoding their health assessment at enrollment, and then slash costs by denying coverage for healthcare services that traditional Medicare would have honored. MedPAC was also critical of the practice of requiring prior authorizations, backed up by utilization review algorithms that are supposedly intended to “minimize furnishing unnecessary services” but which effectively increase denials for necessary care.

According to the report, MedPAC expects CMS to pay MA plans $88 billion in 2024.

On January 12, a meeting to discuss the report ended in what one reporter politely described as “a kerfuffle.” Other witnesses to the meeting chose to describe it as a shouting match.

“One member, Brian Miller, MD, MPH, of Johns Hopkins University in Baltimore, accused panel leadership of issuing a negative status report on MA plans’ market dominance, saying it had been ‘hijacked for partisan political aims to justify a rate cut to Medicare Advantage plans.’

“Miller said the analysis … ‘appears to be slanted to arrive at a foregone conclusion in order to set up and provide political cover’ just before the Centers for Medicare & Medicaid Services prepares its annual rate notice for MA plans, expected in coming weeks. ‘The chapter reads like attack journalism as opposed to balanced and thoughtful policy research.'”²

Report authors fired back, citing numerous ways MA plans generate higher revenue, including enrolling people who are relatively healthy, known as favorable selection. They then vigorously scan patients’ medical histories and charts to code for health factors that generate higher per-capita payments, known as coding intensity, often spending less on services. Coding intensity is also the difference between a risk score that a beneficiary would receive in an MA plan versus in fee-for-service. Though MA plans skew toward healthier enrollees, MedPAC found that MA risk scores are about 20.1% higher than scores would be for the same beneficiaries had they enrolled in Fee For Service Medicare.

Namath, Walker, Shatner and Brokers

Criticism of MA plan behavior did not only come from MedPAC commissioners and report authors. For example, Lynn Barr, MPH, founder of Caravan Health, which was acquired by CVS Health through its acquisition of Signify Health, exposed what the annual TV ads do not make clear, that their 800 numbers go to brokers, not to any one plan.

“This is not the big, lovely, glowing success that everybody says it is. And we continue to create policies that drive people into these plans. Medicare allows money paid to MA plans to be used for broker commissions as high as “$600 to recruit them, plus $300 a year every year that they stay in the MA plan.

“We have allowed MA to buy the market, and that is why MA is growing. It’s not because the quality’s so great. People don’t love the prior auth, people are leaving their plans a lot. Aside from Medicaid, Medicare is the least profitable payer for doctors. And at the same time, we give all this money to the plans. It’s unconscionable.”

Adding to the “kerfuffle” with a powerful anecdote, Stacie Dusetzina, PhD, of Vanderbilt University Medical Center in Nashville, Tennessee, noted that even cancer patients often have trouble getting necessary care because of the plans’ limited networks. She referenced a January 7 NPR story³ about an MA enrollee who could not get the cancer care he needed from his MA plan, and could not get out of the plan without facing 20% in expensive copays. In all but four states, supplemental plans that could pick up the difference can reject patients with costly conditions.

“When you are 65 and aging into the program,” Dr. Dusetzina summarized, “you are healthy at that time and may not be thinking about your long-term needs. [If you did], it would push you to think harder about the specialty networks that you may or may not have access to when the MA plan is making your healthcare decisions.”

1 A 30-page slide presentation is available to the public at medpac.gov/wp-content/uploads/2023/10/MedPAC-MA-status-report-Jan-2024.pdf. The complete report is available only to MedPAC commissioners. The charts on slides 26 and 27 show how MA plans learned to pad profits in 2018 and increased the practices exponentially since then.

2 Cheryl Clark, MedPage Today January 16, 2024 medpagetoday.com/special-reports/features/108275

3 npr.org/2024/01/07/1223353604/older-americans-say-they-feel-trapped-in-medicare-advantage-plans

Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. RowanResources.com; Tim@RowanResources.com

CMS Proposes Policy Changes to Medicare C & D

CMS

by Rowan Report | Dec 13, 2023 | CMS, Regulatory

From the NAHC Newsroom

Public comments due January 5, 2024

CMS Policy Changes to Medicare C & D. On November 5, 2023, the Centers for Medicare & Medicaid Services (CMS) issued the Contract Year 2025 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly; Health Information Technology Standards and Implementation Specifications.

Key provisions in the CMS policy changes that are of interest to home health and hospice providers are detailed below.

Behavior Health

CMS aims to improve access to behavioral health care by adding certain behavioral health provider specialties to the MA network adequacy standards as a new facility-specialty type. The new facility-specialty type, ‘‘Outpatient Behavioral Health,’’ can include Marriage and Family Therapists (MFTs), Mental Health Counselors (MHCs), Opioid Treatment Program (OTP) providers, Community Mental Health Centers or other behavioral health and addiction medicine specialists and facilities.

Special Supplemental Benefits for the Chronically Ill (SSBCI)

CMS is proposing regulatory changes that would help ensure that SSBCI items and services offered are appropriate and improve or maintain the health or overall function of chronically ill enrollees. The MA organization must be able to demonstrate through relevant acceptable evidence that an item or service offered as SSBCI has a reasonable expectation of improving or to maintain the health or overall function of a chronically ill. The MA plan must follow its written policies based on objective criteria for determining an enrollee’s eligibility for an SSBCI when making such eligibility determinations. CMS is proposing to require that the MA plan document its denials of SSBCI eligibility rather than its approvals.

CMS will also modify and strengthen the current requirements for the SSBCI disclaimer that MA organizations offering SSBCI must use whenever SSBCI are mentioned. Additionally, CMS proposes to require MA plans to notify enrollees mid-year of the unused supplemental benefits available to them. The notice would list any supplemental benefits not utilized by the beneficiary during the first 6 months of the year.

Guardrails for Agent and Broker Compensation

CMS is proposing to generally prohibit contract terms between MA organizations and agents, brokers or other third party marketing organizations (TPMOs) that may interfere with the agent’s or broker’s ability to objectively assess and recommend the plan that best fits a beneficiary’s health care needs, CMS proposes to set a single compensation rate for all plans; revise the scope of items and services included within agent and broker compensation; and eliminate the regulatory framework which currently allows for separate payment to agents and brokers for administrative services. CMS also intends to make similar changes to the Part D agent broker compensation rules.

Health Equity and Utilization Management (UM)

CMS proposes to require that a member of the UM committee have expertise in health equity and that t the UM committee conduct an annual health equity analysis of the use of prior authorization. The analysis would examine the impact of prior authorization on enrollees with one or more of the following social risk factors (SRFs): receipt of the lowincome subsidy or being dually eligible for Medicare and Medicaid (LIS/DE); or having a disability.

Right To Appeal an MA Plan’s Decision To Terminate Coverage for Non-Hospital Provider Services

Beneficiaries enrolled in Traditional Medicare and MA plans have the right to a fast-track appeal by an Independent Review Entity (IRE) when their covered skilled nursing facility (SNF), home health, or comprehensive outpatient rehabilitation facility (CORF) services are being terminated. Currently, Quality Improvement Organizations (QIO) act as the IRE and conduct these reviews. Under current regulations, MA enrollees do not have the same access to QIO review of a fast-track appeal as Traditional Medicare beneficiaries. CMS proposes to (1) require the QIO, instead of the MA plan, to review untimely fast-track appeals of an MA plan’s decision to terminate services in an HHA, CORF, or SNF; and (2) fully eliminate a provision that requires the forfeiture of an enrollee’s right to appeal a termination of services decision when they leave the facility. These proposals would bring MA regulations in line with the parallel reviews available to beneficiaries in Traditional Medicare and expand the rights of MA beneficiaries to access the fast-track appeals process.

Dual eligible Special Needs Plans (D-SNP)
CMS proposes to increase the percentage of dually eligible managed care enrollees who receive Medicare and Medicaid services from the same organization.
CMS is also proposing to limit out-of-network cost sharing for D–SNP preferred provider organizations (PPOs) for specific services.

Further, CMS is proposing to lower the D–SNP look-alike threshold from 80 percent to 70 percent for plan year 2025 and 60 percent for plan year 2026. This proposal would help address the continued proliferation of MA plans that are serving high percentages of dually eligible individuals without meeting the requirements to be a D–SNP.

The National Association for Home Care and Hospice will continue to analyze the proposed rule, but supports CMS’ aim to protect Medicare beneficiaries by modifying policies and procedures that will improve programs under Part C and Part D.

Public comments are due January 5, 2024.

CMS is Already Hurting Home Care and Now MedPAC Wants to Make it Worse

CMS

by Kristin Rowan | Dec 13, 2023 | CMS, Regulatory

by Kristin Rowan, Editor

Last week, MedPAC met for their December meeting to discuss “Assessing payment adequacy and updating payments.” Hospice services and Home health care services were each presented separately to Congress and commissioners are set to review the key indicators and discuss updates to Medicare payment rates for 2024.

The findings presented to Congress gave me whiplash.

Hospice Services

There is ‘mixed evidence’ on whether hospice reduces Medicare expenditures, but is has important benefits for beneficiaries
2021 saw a 6% increase in hospices, mostly in for-profit agencies
Hospice use rates are down overall, but MedPAC blames the effects of the pandemic on death rates and patterns of care
Hospice use continues to shift from SNFs to in-home care
In 2020, 18.6% of hospices exceeded the payment cap
MedPAC recommends the cap be wage adjusted and reduced by 20%

See the full Hospice Services presentation to Congress here.

Opinion

Of the 18.6% of hospices that exceeded the payment cap in 2020, 17.2% of those were also in the highest bracket of hospice providers with stays longer than 180 days. The payment cap is not enough to cover patients who need hospice care for longer time periods, even though the requirement for hospice care is expected death within 6 months. If hospice is intended to care for a patient for 180 days, shouldn’t the payment cap be equal to 180 days of care? If a hospice provider is caring for a patient for longer, shouldn’t they get paid more?

MedPAC is convinced that lowering the cap would only impact those hospice providers who have the longest stays. However, if those hospices can no longer provide care because the payment cap has been reached, it will fall to other providers to continue care, stretching the already overworked hospice nurses even thinner.

Home Health Care Services

The Bipartisan Budget Act (BBA) of 2018 prompted CMS to implement PDGM and required MedPAC to review PDGM in its first year of operation
BBA 2018 changes must be budget neutral
CMS issued a $2 billion one-time reduction for overages and a 3.925 percent permanent reduction
The decline in the number of Home Health Agencies continues
The number of FFS beneficiaries declined, but the per capita use of HHS increased
The median Medicare margin (profit) for efficient providers is 28.4 percent, but only 14% of HHAs met cost and quality criteria
The median Medicare margin indicates Medicare payments are too high

Opinion

This makes about as much sense as the new phenomenon “dog math.” 14% of all Home Health Care agencies are considered efficient. On average, those who are efficient have a 28% Medicare profit margin. Among 133 industries reporting gross profit margins across the U.S., a 28% profit margin puts Home Care Agencies at number 104 out of 133, much lower than the average or median profit margins of every other industry.¹ The all-payer margin is about 12%, making them the second least profitable industry in the U.S., coming in only slightly higher than auto manufacturers. The smallest HHAs have a profit margin just under 6%. MedPAC’s stance seems to be that if an HHA is making enough money to barely survive, they are making too much money.

See the full Home Health Care Agency presentation to Congress here.

©2023 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. editor@homecaretechreport.com

Medicare Advantage Dominated November News

CMS

by Tim Rowan | Dec 6, 2023 | CMS, Regulatory

by Tim Rowan, Editor Emeritus

MA Plans Continue to Exaggerate Patient Conditions for Profit

Medicare Advantage for Profit

As we reported in October (More MA Plans Caught Inflating Patient Assessments, 10/11/23), insurance companies operating Medicare Advantage plans routinely pad the patient assessments that set their monthly revenue from the Medicare Trust Fund. Worse, CMS bowed to industry pressure earlier this year and agreed not to extrapolate the amount of the fraudulent payments, as it does with Home Health and Hospice overpayments (Government Lets Health Plans That Ripped Off Medicare Keep the Money, 2/22/23).

Now, we hear that the HHS OIG has totaled its 2023 audits and announced it found over $213 million in padded Medicare Advantage overpayments so far this year. In its latest semiannual report, covering fraudulent patient assessments between April and September, the OIG said it recovered $82.7 million. Total recoveries would have been higher except for that CMS ruling that prevents the agency from extrapolating payments before contract year 2018.

Will SEC Allow Cigna/Humana Marriage?

Early last month, Bloomberg broke the news that Cigna was in talks to sell its Medicare Advantage business to Health Care Service Corporation, the parent company of BCBS in Illinois, Texas, New Mexico, Montana and Oklahoma. Should that sale be approved, it would remove an obstacle to Cigna’s rumored desire to merge with Humana.

Though approval is uncertain — the SEC has squashed more than one similar attempt under both the current and former Presidents — it would create what Axios called “another Titan” that would rival UnitedHealth Group and CVS Health in size. CVS acquired Aetna in 2018. It would also combine two Pharmacy Benefit Managers, giving the new entity control of a third of the market, which would be equal to the market share owned today by CVS.

In 2017, a proposed merger between Cigna and Elevance Health, formerly Anthem, was struck down in court. A proposed merger between Humana and Aetna was also canceled in a federal court the same year. Large, powerful insurers, and the PBMs they own, have come under increased scrutiny from federal regulators.

The Biden administration has already launched a warning shot, indicating it will be scrutinizing private equity acquisitions in health care. In September, the Federal Trade Commission sued private equity firm Welsh, Carson, Anderson & Stowe after it bought up nearly all of the anesthesiology practices in Texas and then, with competition removed, began to jack up prices. FTC chair Lina Khan made it clear the suit was intended to send a message to all consolidation attempts that might harm patients.

United to Change Prior Authorization Policy

According to a November 27 policy update from UnitedHealthcare (UHC), the payer is updating its Home Health prior authorization and concurrent review process for services that are delegated to Home & Community Care, the payer’s home care division.

The updated policy, which are set to take effect January 1, will affect United’s Medicare Advantage and Dual Special Needs plans in 37 states, a UnitedHealthcare news release stated.

In Summary

Start of care visits still do not require prior authorization.
Providers must notify Home & Community Care of the initiation of home care services. UHC encourages providing notice within five days after the start of a care visit to help avoid potential payment delays.
Before the 30th day, providers must request prior authorization for days 30 to 60, by discipline, and provide documentation to Home & Community Care.
For each subsequent 60-day period, providers must request prior authorization, by discipline, and provide documentation to Home & Community Care during the 56- to 60-day recertification window.

UHC says it will respond to questions about the prior authorization approval process at HHinfo@optum.com

In related news, in its annual investor conference call, the company projected “revenues of $400 billion to $403 billion, net earnings of $26.20 to $26.70 per share and adjusted net earnings of $27.50 to $28.00 per share” for 2024. Cash flows from operations are expected to range from $30 billion to $31 billion.

©2023 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com

OIG Crackdown on Employees Ineligible to Work for Medicare

CMS

by Tim Rowan | Nov 15, 2023 | CMS, Editorial, Regulatory

Dear Friends,

I have some news that may be upsetting. Frankly, that is my intention, to frighten you into action.

In August, a Home Health provider in New York paid an $$866,339.25 fine for violating the “Civil Monetary Penalties Law.”* The Chinese-American Planning Council Home Attendant Program had employed an individual, in connection with the New York State Consumer Directed Personal Assistance Program (CDPAP), who was excluded from participation in the New York Medicaid program and was not eligible to furnish services under the CDPAP.

Georgia provider Agape Hospice Care paid $250,993.97 in penalties, the specific amount it had paid in salary and benefits to two unlicensed nurses.

If this law is unfamiliar to you, it is the requirement that you may not employ any individuals who are not eligible to work within the Medicare system.*

This is only one example of a new OIG crackdown!

Bridges MN, a non-profit with services to the disabled, was fined $150,171.96 for employing a single excluded individual.
Vicki Roy Home Health Service paid a $38,000 fine for employing one excluded caregiver.
Providence Health System-Southern California, doing business as Providence Little Company of Mary Medical Centers, which includes two hospitals, agreed to pay $141,562 in connection with the employment of an excluded emergency services technician from Aug. 8, 2016, to June 5, 2019. (Note that this person was employed for nearly three years without the health system knowing, as they are required to know, that he or she was excluded.)
Joseph Health Personal Care Services, doing business as Nurse Next Door, agreed to pay $32,244 in connection with the employment of an excluded constant care attendant from Nov. 2, 2017, to Aug. 8, 2019.

My friends, the list goes on and on, and these are just the Home Health agencies:

Serenity Home Healthcare Services Agreed to Pay $146,000
Professional Home Health Care 2: $77,000
Chinese-American Planning Council Home Attendant Program: $866,000
Visiting Angels of Rhode Island: $158,000

I learned of at least 25 other healthcare providers that were fined under this law. Clearly, the HHS OIG is on the warpath. This is not a regulation you are wise to ignore.

That is why I write you today. I have found an affordable service that performs monthly OIG exclusion screening for you. Doing it yourself would require a dedicated FTE and hours of painstaking work.

I would be honored if you would accept my introduction to the company that provides this service. If the fines I listed above grabbed your attention, you can see that a service of this type is like an insurance policy that costs a fraction of the disaster it can prevent.

The company is called Carosh Compliance Services. The monthly service is called “OIG Express.” I know and trust the founding CEO, Roger Shindell. To contact Roger and learn more about this necessary service, use this link: https://oig.hhs.gov/faqs/exclusions-faq/
Sincerely,

Tim Rowan
Editor Emeritus
The Rowan Report
Tim@RowanResources.com

CMS Issues Final Rule for 2024 with Drastic Pay Cut

CMS

by Kristin Rowan | Nov 8, 2023 | CMS, Regulatory

By Kristin Rowan, Editor

On November 1, CMS issued its Home Health Final Rule for CY 2024. As expected, the final rule includes drastic pay cuts to Medicare home health services payments. The original proposed rule issued earlier this year included a 5.653% rate reduction, the remainder of the 7.85% reduction from 2020-2021 and an additional 1.636% for 2022, for a total rate reduction of 9.36% overall from the start of PDGM. In a surprising turn, CMS has not implemented the full 5.779% rate cut from the initial proposal, opting instead to introduce the rate cuts over two years. The 2024 rate cut will be 2.890%, half of the full adjustment CMS alleges is still needed. The CMS final rule does not attempt to collect any of the alleged overpayments from 2020-2022, totaling $3,439,284,729.00.

NAHC President Bill Dombi offered this response:

“We continue to strenuously disagree with CMS’s rate setting actions, including the budget neutrality methodology that CMS employed to arrive at the rate adjustments. We recognize that CMS has reduced the proposed 2024 rate cut. However, overall spending on Medicare home health is down, 500,000 fewer patients are receiving care annually since 2018, patient referrals are being rejected more than 50% of the time because providers cannot afford to provide the care needed within the payment rates, and providers have closed their doors or restricted service territory to reduce care costs. If the payment rate was truly excessive, we would not see these actions occurring. The fatally flawed payment methodology that CMS continues to insist on applying is having a direct and permanent effect on access to care. When you add in the impact of shortchanging home health agencies on an accurate cost inflation update of 5.2% over the last two years, the loss of care access is natural and foreseeable.

We now implore Congress to correct what CMS has done and prevent the impending harm to the millions of highly vulnerable home health patients that depend and will depend in the future on this essential Medicare benefit. Fortunately, longstanding advocates for home health care, Senator Debbie Stabenow (D-MI) and Senator Susan Collins (R-ME) have introduced S. 2137 to eliminate the rate cuts. We urge the Congress to support this legislation and enact it into law before the end of the year. The 2024 rate cuts must not take effect.”

The final rule includes the following:

A net 3.0% inflation update
A 2.890% Budget Neutrality permanent adjustment
A $3,489,523,364 alleged overpayment in 2020-2022. CMS has not scheduled a collection of the alleged overpayment in 2024 or any other year yet.
Recalibration of the 432 case mix weights with a separate budget neutrality adjustment in the payment rates of +1.0124%
CMS estimates an increase in CY2024 Medicare spending of $140 million ($525 million inflation increase minus the $455 million rate adjustment plus a $70 million outlier FDL change)

HHAs that fail to provide required quality data will have these rates reduced by two percent.

Non-payment-related changes

In addition to the inflation increase and payment adjustments, the CMS Final Rule includes a number of other changes. These changes include amendments for the payment of Disposable Negative Pressure Wound Therapy, removing and replacing OASIS measures in HHVBP, new coverages and payments in IVIG services, the adoption of two new measures and the removal of one existing measure in HHQRP, coverage for lymphedema therapy items under a new Medicare Part B benefit, and revisions to Medicare provider enrollment requirements.

Hospice Provisions

Hospice Special Focus Program (SFP)

CMS is pushing forward with the Hospice SFP. Despite the commonsense suggested changes requested by NAHC and multiple others, CMS is using a flawed algorithm in the structure and implementation of SFP. This flawed algorithm will fail to identify hospices most appropriate for additional oversight and support. This creates the risk of reducing access to higher quality care and directing patients and families to hospices that perform most poorly relative to health and safety requirements. The official stance from NAHC is strong support of the SFPs goal to improve poor performing hospices, but are emphatically against the method in which SFP is being implemented and will continue to advocate for changes to the structure of the program.

Hospice Informal Dispute Resolution (IDR)

The IDR process for hospice is for condition-level survey findings which may trigger an enforcement action. The finalized IDR process allows hospice programs an opportunity to resolve disputes during recertification or reaccreditation for continued participation in Medicare. this allows for settlement agreement prior to a formal hearing, which will save time and money for the hospice agency. NAHC has additional recommendations for the Hospice IDR process that have not been implemented in the final rule.

Hospice 36-month rule

CMS is extending the “36-month” rule that currently applies to home health agencies and hospices, which is designed to prevent the flipping of Medicare certifications to non-vetted hospice owners. There are several exceptions to the rule for hospices. Even if a hospice undergoes a CIMO, a new owner must enroll as a new hospice and undergo a survey or accreditation unless:

The hospice submitted 2 consecutive years of full cost reports since initial enrollment or the last CIMO, whichever is later.
A hospice’s parent company is undergoing an internal corporate restructuring, such as a merger or consolidation.
The owners of an existing HHA are changing the hospice’s existing business structure (for example, from a corporation to a partnership (general or limited)), and the owners remain the same.
An individual owner of an hospice dies

New hospice owners will immediately be placed into the “high-risk” category for screening requirements and will have to submit fingerprints for a national background check from all owners with a 5% or greater direct or indirect ownership interest.

CMS Final Rule Synopsis and NAHC Response

We reached out to NAHC President Bill Dombi after the release of the Final Rule for CY2024. He provided us with a full breakdown of each provision in the final rule and the NAHC stance on each topic.

You can read all of these changes and how NAHC will continue to advocate for changes to the final rule here.

# # #

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently started writing for The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

editor@homecaretechreport.com

Big Win for Advocacy in Home Care

Admin

by Kristin Rowan | Oct 25, 2023 | Admin, Regulatory

by Kristin Rowan, Editor

Marking a significant victory for the HCAOA Connecticut Chapter and the home care industry, in the legislative session that ended last week, lawmakers unanimously passed a bill to reverse the policy guidance issued by the Department of Consumer Protection in January that banned use of the word “care” by home care agencies. In response to the guidance that directly harmed the industry, the Chapter and its members engaged in a strong lobbying effort to reverse it.
The guidance had caused significant concern and confusion for agencies, caregivers, consumers and lawmakers. Indeed, the Department had recently begun enforcing the ban against HCAs, requiring them to remove the word “care” from websites and other advertising.

On June 2, the state Senate gave final legislative approval to House Bill 5781, which allows HCAs to use the word “care” in their business names and advertising and advertise having employees trained to provide services to individuals experiencing memory difficulties as long as the agency prominently advertises that it solely provides nonmedical care, and doesn’t use any words, such as those related to medical or health care licensure or services, to describe services beyond the scope of those a HCA is authorized to provide. Also, HCAs must give consumers written notice that the agency provides nonmedical care and obtain the consumer’s signature on the notice before providing services. The Governor is expected to sign Public Act 23-48 shortly.

Chapter leaders and many members testified in support of the legislation, contacted the Governor and met with lawmakers and other officials, engaged in grass roots support, and advocated for the change. “It was a significant effort by the Chapter but our strategy and the work of members paid off,” said Marlene Chickerella, Chapter Chair and owner of B&M Homemaking Services in West Haven. “We are very grateful to lawmakers for changing the policy and appreciate all the support and assistance of our member-home care agency owners. They stepped up and clearly made a difference.”

Additionally, House Bill 5781, which originally arose out of the Homemaker-Companion Task Force recommendations:
• Requires the Office of Policy and Management to develop a plan and proposed timeline to transfer oversight of HCAs from Consumer Protection to the Department of Public Health; the plan will include recommendations on training standards and appropriate use of the term “care” to describe home care services.
• Adds failure to give a consumer written notice that the agency provides nonmedical care to a list of violations for which DCP may revoke, suspend, or refuse to issue or renew a HCA’s registration; requires DCP to revoke a HCA’s registration if the agency is found to have violated any revokable provisions three times in a calendar year.
• Requires HCAs to develop in consultation with the consumer a service plan or contract that includes (1) a person-centered plan of care, (2) anticipated oversight by the agency of the caregiver assigned to the consumer, and (3) how often the person who oversees the agency’s caregiver and consumer will meet.
• Requires DCP to post on its website a guide detailing the process for consumers to file complaints against a HCA; and requires agencies to give consumers a printed copy of this guide with their contract or service plan.
• Requires HCAs to create a brochure and maintain a website detailing the services it provides.

###

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly at kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

CMS News

CMS

by Rowan Report | Oct 11, 2023 | CMS, Medicare Advantage, Regulatory

NOW AVAILABLE IN iQIES – Preview Reports and Star Rating Preview Reports for the January 2024 Refresh

CMS just published updated measure for Home Health Outcome Information Set (Oasis) and all HH QRP claims-based measures. These updated measures are no based on the standard number of quarter.

For additional information, please see the HH Quality Reporting Training webpage and the Home Health Data Submission Deadlines webpage.

©2023 by Rowan Consulting Associates, Inc., Colorado Springs, CO. This article originally appeared in Home Care Technology: The Rowan Report. Click here to subscribe. It may be freely reproduced provided this copyright statement remains intact. editor@homecaretechreport.com

Should Insurance Companies Own Home Health Agencies?

Editorial

by Kristin Rowan | Sep 13, 2023 | Editorial, M&A, Regulatory

by Kristin Rowan, Editor

UnitedHealth Group Makes Bid to Buy Amedisys after Acquiring LHC Group

Amedisys is one of the leading providers of home health, hospice, and other healthcare at home services. It operates more than 500 locations in 37 states and the District of Columbia. After acquiring Contessa Health in 2021 for $250 million, Amedisys added hospital-at-home, SNF-at-home, and palliative care to its list of services.

Optum Outbids Option Care Health

In May of this year, Option Care Health and Amedisys issued joint statements announcing a merger of the two companies in an all stock-option bid. Option Care Health provides home and alternate site infusion services, while Amedisys provides home health, hospice, and high-acuity care. The merger was valued at $3.6 billion. It would have increased stockholder value, increased access to care across the United States, and created a network of more than 16,000 health care professionals, according to the joint statement.¹

By June 26th, Option Care Health confirmed the termination of the merger and a $106 million termination payment from Amedisys, after Amedisys accepted an all-cash bid from UnitedHealth Group.²

UnitedHealth Expanding Service Options

UnitedHealth Group acquired LHC Group earlier this year for $5.4 billion.³ That acquisition folded LHC Group into UnitedHealth Group’s Optum. The acquisition came after increased demands for home care services. UnitedHealth Group considered this a move toward value-based care. The Federal Trade Commission stalled the merger with requests for additional details in mid-2022. Despite the FTC probe and a shareholder lawsuit, the deal was ultimately approved and the LHC Group delisted its stock on February 22.⁴

New Merger Faces Federal Scrutiny

Optum and Amedysis expected concerns over anti-trust issues surrounding the merger, according to a joint statement from the two groups. The Department of Justice recently asked for more information.⁵ The request will push back the timeline for the merger. Amedisys believes there is little geographic overlap between Amedisys and LHC Group and that the scrutiny is a result of other UnitedHealth Group acquisitions.

Optum Remains Optimistic

In a press release about the merger, Optum CEO Patrick Conway, M.D. said, “Amedisys’ commitment to quality and care innovation within the home, and the patient-first culture of its people, combined with Optum’s deep value-based care expertise can drive meaningful improvement in the health outcomes and experiences of more patients at lower costs, leading to continued growth.”⁶

Even with the recent acquisitions and mergers, if this deal with Amedisys proceeds, Optum will have only a 10% market share across the U.S. For this reason, as well as the demand for home care far exceeding the supply, Optum believes this merger will be approved.

Opinion

Should a company that brokers health insurance also be allowed to be the provider of care? In this author’s experience, job-based healthcare insurance does not come with many options. There may be different levels of care to fit your budget, but the insurance company is already chosen by the employer. This means that employees and their families choose to have health insurance or not but cannot choose the insurance company.

Home Care, Hospice, Post-Acute Care, Palliative Care, and other in-home services are very personal. The company you choose and the care provider you get have to fit your needs and personality and there is a high level of trust needed to allow a stranger into your home when you are in a vulnerable state. If the insurance company is also providing the care, the option to find a care provider that suits the level of trust needed almost disappears.

Oversight

In 2021, President Joe Biden signed an executive order for more vigorous oversight of the healthcare market. Mergers and acquisitions are being scrutinized more heavily to preclude monopolies of care. The FTC and DOJ, in response to this executive order, have proposed updates to antitrust guidelines that will make healthcare mergers and acquisitions more difficult.⁷

Medicare Advantage

Medicare beneficiaries enrolled in Medicare Advantage has now reached 50%, making insurance companies more involved in senior care than ever before.⁸ Insurance companies only recently increased the percentage of revenue spent on patient care to 80%, up from as low as 50% before 2010.⁹ Given these facts, it may be worth questioning whether the insurance companies have too much control over care now, and if the acquisition of care providers by insurance providers should be eliminated completely to avoid a complete takeover of healthcare by insurance companies that already focus more on profit than people.

# # #

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

¹https://investors.optioncarehealth.com/news-releases/news-release-details/option-care-health-and-amedisys-combine-creating-leading
²https://investors.optioncarehealth.com/news-releases/news-release-details/option-care-health-confirms-termination-merger-agreement
³https://www.reuters.com/markets/deals/amedisys-agrees-unitedhealth-buyout-offer-scraps-option-care-deal-2023-06-26/
⁴https://www.fiercehealthcare.com/payers/unitedhealth-lhc-group-close-54b-merger-deal
⁵https://www.healthcaredive.com/news/unitedhealth-amedisys-second-request-doj/690612/
⁶https://www.unitedhealthgroup.com/newsroom/2023/2023-06-05-optum-offers-to-combine-with-amedisys.html
⁷https://www.medicaldevice-network.com/news/unitedhealth-acquisition-under-doj-scrutiny/?cf-view
⁸https://homecaretechreport.com/article/3549
⁹https://www.commonwealthfund.org/publications/issue-briefs/2019/jul/how-aca-medical-loss-ratio-rule-protects-consumers-insurers

EEOC Sues Licensed Home Care Agency for Discrimination

CMS

by Tim Rowan | Aug 23, 2023 | CMS, Regulatory

by Tim Rowan, Editor

Home Care Agency Removed Black and Hispanic Home Health Aides from Assignments to Accommodate Racial Preferences of Clients, Federal Agency Charges

There is a question that appears on social media chat pages with great regularity. What does a home care agency do when a client places it in a difficult legal position? The family of a Spanish-speaking grandmother asks for a Spanish-speaking caregiver. An elderly white gentleman insists on a white, English-speaking caregiver.

For agencies across the country, the only reasonable answer to this question is, “I don’t like my choices.” Those choices are to either offend, likely lose, a client, or risk violating Equal Employment Opportunity laws. It is common knowledge that home care clients have ample options should they become disillusioned with their current agency. In this situation, an agency has to choose between confronting a client’s racial bias and risk losing the client, or accommodating a client and losing a federal lawsuit. In other words, here we have the very definition of “no-win.”

With a recent action, the EEOC has put our entire industry on notice which option it expects. On July 31, the federal agency issued a public news release announcing it has filed a lawsuit against a New York agency. Four Seasons Home Care is a licensed personal care agency under a corporate umbrella with sister companies that offer Nursing and Rehabilitation, Certified Home Health, a Dialysis Center, Pharmacy, and an Adult Health Day Care Center. The company was faced with this common dilemma and made a choice of which the EEOC disapproved.

Reaction to the announcement, reprinted verbatim below, has already begun to appear on social media sites, including LinkedIn and home care groups on Facebook. One eloquent comment came from the CEO of an organization that serves an elderly client base made up of elderly people, mostly first-generation, who come from dozens of other countries and speak dozens of languages.

He pointed out that, in a diverse market like New York, it is common for patients and clients to express preference for an aide who can relate to their culture and speak their language. He even mentioned data that shows a connection between culture match and care effectiveness. The reason there has been a push to achieve diversity in the caregiving community expressly for the purpose of culture matching.

What stood out to this writer is that some of the language violates a journalistic rule, specifically the one against revealing the author’s bias within an otherwise facts-only story. In the second paragraph, the phrasing “including by removing Black and Hispanic” caregivers implies that the entire lawsuit is about disadvantaging these two groups. By looking beyond any implied meaning and parsing the language as written, one can see that removing these two specific ethnic groups is part of the accusation, but the writer offers no clue as to whether “part of” means 10 percent or 90 percent of the people discriminated against were Black and Hispanic.

Without this knowledge, one is led to assume that the entire accusation is that Four Seasons discriminated against Black and Hispanic caregivers. However, it is just as possible, based on the vague term “including,” that other ethnic groups were also victims of discrimination. It is just as possible that some Black and Hispanic caregivers were recipients of bonus work hours when assigned to clients who requested a caregiver with their cultural or language backgrounds. Sadly, the bottom line is that the language of the news release does not actually say what it appears to say. We will have to wait for the case to arrive in court to know what percentage of Four Seasons policy discriminated against minorities and what percentage help them.

Complete Announcement From EEOC

NEW YORK — ACARE HHC Inc., doing business as Four Seasons Licensed Home Health Care Agency, a Brooklyn-based company that provides its clients with home health aides, violated federal law by removing aides from their work assignments due to their race and national origin to accommodate client preferences, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s lawsuit, Four Seasons routinely would accede to racial preferences of patients in making home health aide assignments, including by removing Black and Hispanic home health aides based on clients’ race and national origin-based requests. Those aides would be transferred to a new assignment or, if no other assignment were available, lose their employment completely.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race and national origin.

The EEOC filed suit, (EEOC v. ACARE HHC d/b/a Four Seasons Licensed Home Health Care, 23-cv-5760), in the U.S. District Court for Eastern District of New York, after first attempting to reach a pre-litigation settlement through the agency’s conciliation process. The EEOC seeks compensatory damages and punitive damages for the affected employees, and injunctive relief to remedy and prevent future discrimination based on employees’ race and national origin.

“Making work assignment decisions based on an employee’s race or national origin is against the law, including when these decisions are grounded in preferences of the employer’s clients,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office.

“It is long past the day when employers comply with the discriminatory requests of its clients or customers, to the detriment of its Black and Hispanic workers,” said Timothy Riera, acting director of the New York District Office.

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island, and Vermont.

More information about race discrimination can be found at eeoc.gov/racecolor-discrimination. More information about national origin discrimination can be found at eeoc.gov/national-origin-discrimination.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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Supreme Court Takes Action About Knowledge Required to Prove False Claims

CMS

by Elizabeth E. Hogue, Esq. | Jul 12, 2023 | CMS, Regulatory

by Elizabeth Hogue, Esq.

For providers to be liable under the federal False Claims Act, enforcers must prove that they knowingly submitted false claims. The U.S. Supreme Court recently issued an opinion in United States ex rel. Schutte v. SuperValu, Inc. [No. 21-1326 (U.S. June 1, 2023)], which defines what “knowingly” means. The Court decided that providers act knowingly depending on their “culpable state of mind” when they submitted alleged false claims; not what providers may have thought after submitting them. The requirement to prove knowledge, or “scienter,” said the Court, refers to providers’ knowledge and subjective beliefs; not to what objectively reasonable persons may have known or believed.

On June 30, 2023, the U.S. Supreme Court issued orders that revive two whistleblower lawsuits based on the opinion described above. Specifically citing the above decision, the Court granted whistleblower Troy Olbausen’s request to hear his case. The Court then vacated an Eleventh Circuit decision that dismissed Olhausen’s whistleblower lawsuit.

The Eleventh Circuit previously dismissed Olhausen’s suit against Arriva Medical because he could not prove that the defendants had knowledge of their submission of false claims in view of their objectively reasonable interpretation of the Medicare rules in question. The Supreme Court sent the case back to the Eleventh Circuit for further consideration based on its decision in Schuttte v. SuperValu, above [Olhausen v. Arriva Med., LLC, No. 22-374 (U.D. June 30, 2023)].

Likewise, on June 30, 2023, the Supreme Court sent a case back to the Fourth Circuit for further consideration in light of the Schutte case.

These actions make it clear that the new standard set by the Supreme Court in the Schutte case will make a difference in cases based on the federal False Claims Act. The Court said in the Schutte case:

“Both the text and the common law also point to what the defendant thought when submitting the false claim – not what the defendant may have thought after submitting it…As such, the focus is not, as respondents would have it, on post hoc interpretations that might have rendered their claims accurate. It is instead on what the defendant knew when presenting the claims…Culpability is generally measured against the knowledge of the actor at the time of the challenged conduct.”

The Court also said:

“Under the FCA, petitioners may establish scienter by showing that respondents:

actually knew that their reported prices were not their ‘usual and customary’ prices when they reported those prices;
were aware of a substantial risk that their higher, retail prices were not their ‘usual and customary’ prices and intentionally avoided learning whether their reports were accurate, or
were aware of such a substantial and unjustifiable risk but submitted the claims anyway…

If petitioners can make that showing, then it does not matter whether some other, objectively reasonable interpretation of ‘usual and customary’ would point to respondents’ higher prices. For scienter, it is enough if respondents believed that their claims were not accurate.”

Proving that providers submitted false claims just got tougher for enforcers.

See Ms. Hogue’s earlier report on this SCOTUS case in our June 7 edition: homecaretechreport.com/article/3587

Crackdown is Coming: Are You Paying Overtime?

Admin

by Tim Rowan | May 17, 2023 | Admin, Regulatory

by Tim Rowan, Editor

he Department of Labor, Wage and Hour Division, has selected several southeastern states as targets for its investigation into a practice that appears to be quite common, underpaying in-home caregivers. It appears, based on early DoL reports, that some Home Care agency owners in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee either do not understand the law, or simply try to get away with it.

According to a mid-February, 2023 report:

“From 2020 to 2022, Wage and Hour Division investigators identified violations in nearly 89 percent of more than 1,200 home care and nursing care investigations. These reviews led the agency to recover more than $16.2 million in back wages and liquidated damages for more than 13,000 workers.

The department produced an instructional webinar on federal wage and hour regulations for home care, residential care and nursing care industry employers, workers and other stakeholders in the Southeast. “Caring For Those Who Care: Fair Labor Standards Act Requirements in the Care Industry,” is part of the DoL’s ongoing education and enforcement initiative to improve compliance in those states.

On October 13, 2022, the DoL published a Notice of Proposed Rulemaking to revise the Department’s guidance on how to determine who is an employee or independent contractor under the Fair Labor Standards Act. The NPRM proposes to rescind the rule, Independent Contractor Status Under the Fair Labor Standards Act (2021 IC Rule), that was published in the closing days of the previous administration, January 7, 2021, and replace it with an analysis for determining employee or independent contractor status that is more consistent with the FLSA as interpreted by longstanding judicial precedent. The Department believes that its proposed rule would reduce the risk that employees are misclassified as independent contractors, while providing added certainty for businesses that engage (or wish to engage) with individuals who are in business for themselves.

A DoL publication explained this targeted effort aligns with the agency’s initiative to protect essential workers in the Southeast. See an April 28 update on progress of the proposed rule here.

Writing for a Polsinelli Law firm bulletin, home care attorney Angelo Spinola stated, along with the caveat that this is not to be construed as legal advice, “The DOL is not required to give employers prior notice of an audit. In fact, WHD investigators often initiate unannounced investigations to observe normal business operations. As such, the best way to prepare for a DOL audit is to conduct regular and periodic internal audits of employment records and policies to ensure compliance with the FLSA. Internal audits typically include a review of exempt employee classifications, independent contractor classifications, payroll and time records, and FMLA and other leave law compliance. It is advisable to work with knowledgeable employment attorneys who can counsel employers on current wage and hour laws and best practices.”

Abuse Found to be Widespread

From 2020 to 2022, Wage and Hour Division investigators identified violations in nearly 89 percent of more than 1,200 home care and nursing care investigations. These reviews led the agency to recover more than $16.2 million in back wages and liquidated damages for more than 13,000 workers. In addition, the division assessed employers a total of $156,404 in civil money penalties. The February DoL report cited two recent North Carolina cases as examples of the practices it uncovered throughout the South:

Gentle Shepherd Care – which provides home healthcare services in the Charlotte area – failed to combine hours when employees worked at more than one of its locations during the same workweek. By doing so, the employer did not pay the affected workers their additional half-time premium rate for overtime for hours over 40 in a workweek. The Fair Labor Standards Act requires all hours worked in a workweek be combined when calculating wages, regardless of where employees performed the work. Back wages and liquidated damages recovered: $193,768 for 98 workers.

A separate investigation found Greenville”s At Home Personal Care paid employees straight-time rates for all hours worked, including hours over 40 in a workweek. By doing so, the employer did not pay the additional half-time premium rate for overtime as the FLSA requires. In addition, the employer failed to pay for travel time between the clients’ homes when the employees visited multiple clients during the same day. The agency also did not keep accurate records as required. Back wages and liquidated damages recovered: $187,148 for 28 workers.

North Carolina Wage and Hour Division District Director Richard Blaylock stated, “Workers who provide home healthcare services deserve to be paid every penny of their hard-earned wages as they care for our loved ones. When employers choose to ignore the law, they deny workers the wages they earned and need to support their families. Employers must use this investigation’s outcome as a reminder to review their pay practices to ensure they comply with the law.”

Employers can contact the Wage and Hour Division at its toll-free number, 1-866-4-US-WAGE. The division also offers online resources for employers, such as a fact sheet on Fair Labor Standards Act wage laws overtime requirements. Workers who feel they may not be getting the wages they earned may contact a Wage and Hour Division representative in their state through a list and interactive online map on the agency’s website. Workers and employers alike can help ensure hours worked and pay are accurate by downloading the department’s Android Timesheet App for free. Learn more about Wage and Hour Division.

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CMS News: New Rule Cracks Down on Medicare Advantage Upcoding

CMS

by Tim Rowan | Feb 1, 2023 | CMS, Medicare Advantage, Regulatory

by Tim Rowan, Editor

CMS Rule to Protect Medicare

The U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services, finalized the policies for the Medicare Advantage “Risk Adjustment Data Validation” program, which is CMS’s primary audit and oversight tool of MA program payments.

Under this program, CMS identifies improper risk adjustment payments made to Medicare Advantage Organizations in instances where medical diagnoses submitted for payment were not supported in the beneficiary’s medical record. The commonsense policies finalized in the RADV final rule (CMS-4185-F) will help CMS ensure that people with Medicare are able to access the benefits and services they need, including in Medicare Advantage, while responsibly protecting the fiscal sustainability of Medicare and aligning CMS’s oversight of both Traditional Medicare and MA programs.

In Other Words, Fraud

As required by law, CMS’s payments to MAOs are adjusted based on the health status of enrollees, as determined through medical diagnoses reported by MAOs. Studies and audits done separately by CMS and the HHS Office of Inspector General have shown that Medicare Advantage enrollees’ medical records do not always support the diagnoses reported by MAOs, which leads to billions of dollars in overpayments to plans and increased costs to the Medicare program as well as taxpayers.

No Overpayments Collected Since 2007

“Protecting Medicare is one of my highest responsibilities as Secretary, and this commonsense rule is a critical accountability measure that strengthens the Medicare Advantage program. CMS has a responsibility to recover overpayments across all of its programs, and improper payments made to Medicare Advantage plans are no exception. For years, federal watchdogs and outside experts have identified the Medicare Advantage program as one of the top management and performance challenges facing HHS, and today we are taking long overdue steps to conduct audits and recoup funds. These steps will make Medicare and the Medicare Advantage program stronger.”

Xavier Becerra

Secretary, Department of Health and Human Services

“CMS is committed to protecting people with Medicare and being a responsible steward of taxpayer dollars,” said CMS Administrator Chiquita Brooks-LaSure. “By establishing our approach to RADV audits through this regulation, we are protecting access to Medicare both now and for future generations. We have considered significant stakeholder feedback and developed a balanced approach to ensure appropriate oversight of the Medicare Advantage program that aligns with our oversight of Traditional Medicare.”

The RADV final rule reflects CMS’s consideration of extensive public comments and robust stakeholder engagement after the release of the 2018 Notice of Proposed Rulemaking. The finalized policies will also allow CMS to continue to focus its audits on those MAOs identified as being at the highest risk for improper payments. The RADV final rule can be accessed at the Federal Register.

Pre-Implementation Performance Report

The January 2023 Pre-Implementation Performance Report is now available to download from the Internet Quality Improvement Evaluation System (iQIES).

Instructions on how to access the PIPR are available below and on the Expanded HHVBP Model webpage under “Model Reports.”

Background

To support home health agencies during this first performance year, CMS issued PIPRs in November 2022 and January 2023 to all active HHAs. The PIPR provides HHAs with data on their quality measure performance used in the expanded HHVBP Model, in comparison to HHAs nationally within peer cohorts, in advance of the first Interim Performance Reports (IPRs) in July 2023. The PIPRs do not contain calendar year (CY) 2023 data. The January 2023 PIPR includes a new tab containing preliminary achievement thresholds and benchmarks by volume-based cohort.

Need Help Understanding Your PIPR?

To assist HHAs in understanding the purpose, content, and use of the PIPRs, the HHVBP Technical Assistance Team created an on-demand video and downloadable resource, “Introduction to the Pre-Implementation Performance Report,” available on the Expanded HHVBP Model webpage. The video is also available on the Expanded HHVBP Model YouTube channel.

Additionally, the December 2022 edition of the “Expanded HHVBP Model Frequently Asked Questions” includes questions regarding the PIPR. If you do not see an answer to your specific question, please email the HHVBP Model Help Desk at HHVBPquestions@lewin.com.

If you experience an issue with accessing resources on the Expanded HHVBP Model webpage, first try refreshing the webpage. If that does not work, please try closing and reopening the browser. If you continue to experience issues, please try clearing the cache/cookies—links to instructions are below.

Locating the PIPR in iQIES

Log into iQIES at iqies.cms.gov.
Select the My Reports option from the Reports
From the My Reports page, select the HHA Provider Preview Reports
Select the HHVBP file to view the desired report. To quickly locate the most recently published report, select the down arrow adjacent to the Created Date label at the top of the table. This will order the reports in the folder from newest to oldest.
Select the file name link and the contents of the file will display.

Help Desk Information

Should you experience difficulty locating the HHVBP file or with downloading, please contact the iQIES Help desk staff by email at iQIES@cms.hhs.gov or by phone at (800) 339-9313.

For questions about the content of the expanded HHVBP Model reports, please contact the HHVBP Help Desk staff by email at HHVBPquestions@lewin.com.

*Please include your name, agency name, and the CCN when contacting the help desks.

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©2023 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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