by Elizabeth E. Hogue, Esq. | Sep 27, 2024 | Admin, Advocacy, Audits, Regulatory
by Elizabeth E. Hogue, Esq.
The "Wicked Witch" Chevron is Gone
On June 28, 2024, the U.S. Supreme Court overturned a decision of the Court in 1984 often referred to as “Chevron.” The Chevron case said that Courts must defer to administrative actions that are reasonable interpretations of ambiguous statutory language.
In Loper Bright Enterprises v. Raimondo, however, the U.S. Supreme Court abandoned the decision in Chevron and said that:
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- The “deference that Chevron requires of courts reviewing agency action cannot be squared with” the Administrative Procedure Act (APA). The APA “specified that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action…even those involving ambiguous laws – and set aside any such action inconsistent with the law as they interpret it.”
- The framers of the U.S. Constitution envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.”
- The views of the executive branch should inform the judgment of the judiciary, not supersede it.
- “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
What Does it Mean for Providers?
The short answer is that we don’t know yet. It is unclear how the new standards of the Loper Bright decision will be applied and affect health care providers. The Supreme Court said that the recent Court decision does not call past cases into question that were based on Chevron, but existing regulations are not insulated from challenges. It is likely that several providers will “swing for the fences” for favorable rulings based on Loper Bright!
One possible “candidate” for disruption is the reliance of administrative law judges (ALJs) on Chapter 8 of the Medicare Program Integrity Manual. This section offers an overview of use of inferential statistics and statistical sampling to estimate overpayments in Medicare audits. Chapter 8 of the Manual is only nine pages long. ALJs routinely use this section of the Manual to hamper providers’ ability to mount a compelling defense that challenges auditors’ methods using widely accepted standards within the statistical community. Challenges to this practice based on Loper Bright may prevent ALJs from reliance on these sections of the Manual.
Another possible target is the use of sub-statutory and even sub-regulatory guidance from the Centers for Medicare and Medicaid Services (CMS) and the Medicare Administrative Contractors (MACs) by fraud and abuse enforcers to make determinations about illegal conduct, especially under the False Claims Act (FCA). Defendants arguably now have a better chance to challenge the basis of claims of illegal conduct in light of Loper Bright.
The story of Loper Bright has not been written by any means. Surely providers should use this significant change in the law to their benefit whenever possible.
Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.
©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
©2024 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.
by Kristin Rowan | Mar 13, 2024 | Clinical, CMS
By Kristin Rowan, Editor
March 12, 2024, the National Association for Home Care and Hospice (NAHC), Leading Age, the National Hospice and Palliative Care Organization (NHPCO), and the National Partnership for Healthcare and Hospice Innovation (NPHI), published their findings from a 2023 survey on regulation. These findings were presented to Congress and CMS earlier this year. The organizations surveyed 133 respondents, who noted regulatory issues as the top concern for providers. Of particular concern was the audits that have been increasing steadily for years.
More than half of respondents said they have undergone simultaneous audits, usually the TPE and SMRC audits. 52.9% of respondents said they had multiple audits within six months of each other, conducted by different contractors, and more than half of those said they had to submit the same charts for each audit.
Hospice Auditor Issues
The findings indicate some issues with the training, knowledge, and integrity of auditors. Many respondents indicated having received denials of physician visits, documented separately from face-to-face visits, simply because they occurred on the same day. Some reported denials due to the absence of an IDG meeting even when no IDG meeting was required. Multiple respondents said the denial reasoning was copied and pasted from past denials and/or that the auditor did not seem to have read the documentation that was sent.
Auditing Inconsistencies
The report findings indicate that there are often delays in receiving audit results, sometimes up to 18 months. Some RAC audits had listed available dates for findings, but the findings were not actually available for several months after the listed date. Respondents also indicated that instructions from the auditors were presented using terminology that was not consistent with standard operating procedures in a hospice environment (read: auditors are using hospital lingo and expecting hospices to understand it).
Technical billing issues, when payments are denied not due ineligibility, but because of missing or incorrect information, can be corrected and then processed and paid. However, several respondents indicated that different MACs give different information on how process corrections for election statements and election addendums.
Gross Miscalculations
This was reported in the survey only once, but, as with any survey, extrapolating the data to the whole population, one must assume it has happened more than once: A hospice provider had a claim denied while under a CERT audit. The denial was due to the auditor decided that the patient was not terminally ill, even though the patient expired during the audit.
Recommendations for CMS
The organizations have some recommendations for changes:
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- CMS should re-focus its audit contractors on patterns and practices characteristic of providers that aim to minimize or avoid therapeutic care and supportive services that are required under the hospice benefit and fully reimbursed through the per diem payment.
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- CMS should require substantive education and training for all auditors that is consistent with the education given to providers to minimize inconsistencies.
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- CMS should increase transparency of audit contractor activity, including the number and types of audits being conducted, audit recovery amounts, results of audits by specific audit contractors, including reversal rates, top denial reasons and compliance with required timeframes for notification and review.
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- CMS should implement an informal mechanism to enable MACs and hospice providers to resolve technical claims denials prior to engaging in the formal appeal process.
- CMS should require audit contractor medical reviewers to have an equivalent level of expertise and training in hospice care as the hospice medical director who certified a patient’s terminal illness.
According to a statement from NAHC, in 2023, the organizations have submitted 34 recommendations to CMS. To date, half of them have been implemented. They will continue to work with CMS toward enhanced transparency, equitable auditing, and targeting genuine fraud, waste, and abuse.
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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.homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com
