NAHC Submits Formal Comments on Provider Enrollment Rule Proposed Changes
May 6, 2016 11:39 AM
The Centers for Medicare and Medicaid Services (CMS) published a Notice of Proposed Rulemaking that includes significant changes to provider enrollment requirements along with proposals to change the moratoria authority rule and expand the requirements that physician that order, certify, or refer Medicare patients be enrolled in the Medicare system. These proposals may seem technical and innocuous, but each of them can have significant impact on a provider’s status in Medicare and Medicaid. The National Association for Home Care & Hospice (NAHC) submitted formal comments to CMS on these proposals, recommending a series of modifications and clarifications.
At the outset of its comments, NAHC suggests that all Medicare/Medicaid program integrity measures should be evaluated against a comprehensive set of guiding principles. The recommended set of 10 principles include:
The program integrity measure must be best targeted to the fraud, waste, and abuse of concern.
Program integrity measures should be evidence-based with a demonstrated return on investment.
The most effective program integrity measures are those that avoid or prevent fraud, waste, and abuse.
Stakeholder support is essential to achieving success in program integrity.
Program integrity measures should be developed in a transparent manner that assures the opportunity for public input.
There must be clear legal authority for any program integrity measure.
A program integrity measure should not erect a barrier to appropriate care access.
The least burdensome method of dealing with Medicare fraud and abuse is the best path to success.
Any reforms or remedies should properly distinguish fraud from unintentional noncompliance.
The outcome of the program integrity measures should be reliable with no “innocent victims” resulting.
NAHC concludes that the proposed changes meet most of these standards, but not all unless modifications are made for the Final Rule.
NAHC describes the proposal as “a well-conceived and thoughtful reform of provider enrollment standards,” but offers that “it can be improved through a series of clarifications and enhanced structure.” NAHC states that, “[t]he breadth of the proposed requirements is so vast that stakeholders should have a clear understanding of individual and organizational obligations as the consequences would include the potential closure and destruction of a health care provider as Medicare and Medicaid participation and enrollment is often a core part of the operation. Decision-making subjectivity should be eliminated whenever possible to ensure consistent decision outcomes.”
The areas needing clarification include the definition of “overpayments,” the impact of appeal reversals on enrollment status, the application of enrollment sanctions on related providers stemming from voluntary terminations, and what is meant by “attempt to evade” the impact of an enrollment revocation through the opening of a new provider. Most importantly, NAHC seeks clarification of the standard that affects many of the CMS enrollment decisions under the proposal that a party knew or should have known of a discloseable event.
At the center of the CMS proposal is that the past history of a provider subject to enrollment sanction can follow individual owners and employees to other Medicare providers with the potential of an enrollment denial, revocation, or termination of the succeeding provider. CMS believes that there is a risk that if an individual owned a provider that was subject to enrollment termination that a later ownership or employment relationship with a different provider may create risk to Medicare. Similarly, CMS sees a risk even where the individual was a managing employee of the provider and moved to another unrelated provider.
In this regard, NAHC comments that, “[t]he provider enrollment proposals are highly complicated and leave too much room for subjective application… While factors are presented that a decision-maker can consider in rendering enrollment determinations, the lack of objective standards creates a high risk of inconsistent determinations on comparable facts.” NAHC recommends that CMS establish an objective decision matrix that applies impact weights on relevant factors to determine whether a past relationship creates such a risk to Medicare that enrollment should be denied.
With respect to enrollment standards, NAHC also recommends that CMS should require a separate, provider-specific justification to extend an enrollment bar from one related provider to another. Also, NAHC expresses concern that the proposal to impose enrollment revocation when CMS learns that a provider did not notify CMS within 30 days of a practice location change. NAHC recommends that a provider first be given the opportunity to correct its reporting. Finally, NAHC recommends that the “look-back” period relative to knowledge of past enrollment revocations be limited to 2-3 years rather than the 5 years under consideration.
Physician Enrollment in PECOS
The CMS proposal also includes the extension of a requirement that ordering, referring, and certifying physicians be enrolled in PECOS. This requirement has been limited to physicians certifying home health services until the recent expansion to Part D drugs. The proposal would extend it to all of Medicare providers and suppliers. NAHC comments explain that CMS has limited the home health services application to “”certifying” physicians and recommends that it not be expanded to include all ordering and referring physicians as such would exponentially increase the home health agency’s workload given the numbers of physicians implicated without improving program integrity.
CMS proposes to amend the moratoria standards in two ways. First, CMS proposes to apply the moratoria only to providers who have submitted an application at the time the moratorium starts. NAHC strongly suggested such a standard to CMS when the original moratoria rules were promulgated. With the current rules, prospective providers that had invested significant funds and had a fully functioning home health agency were blocked from Medicare because they fell short of full approval at the time a moratorium took effect. NAHC’s comments note support for this proposed change.
In addition, CMS proposes to amend the rule to apply the moratoria block to providers that seek to relocate the geographic location of their office to inside the moratoria area. NAHC recommends that CMS modify that proposal and permit the provider to relocate within the moratoria area if its service area is unchanged. Currently, CMS views the office location as the determining factor rather than the provider’s service area.
The NAHC comments conclude with: “NAHC is a leader in the development and implementation of program integrity innovations. NAHC has long partnered with Medicare and other payers in rooting out the fraud, waste, and abuse through creative policy changes. The proposed provider enrollment standards are mostly proper and effective program integrity measures. Still, some modifications and clarifications of the proposals is need as discussed above. NAHC stands ready to work in partnership with CMS as this matter proceeds.”
NAHC’s comments are available here.