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CMS Has Announced that it is Extending Home Health Enrollment Moratoria

February 10, 2014 by  
Filed under Home Health & Hospice

(February 10, 2014):  The Centers for Medicare & Medicaid Services (CMS) recently announced that it has extended its temporary moratoria on the enrollment of home health agencies in Fort Lauderdale, Detroit, Dallas, and Houston. Additionally, CMS has set forth a temporary moratorium on the enrollment of new ground ambulance suppliers in the Greater Philadelphia area. Furthermore, CMS is extending for six-months the current enrollment moratoria of home health agencies in Chicago and Miami and for Houston area ground ambulance supplier enrollment in its Medicare, Medicaid and Children’s Health Insurance Program (“CHIP”) operations.  This is just the latest round in CMS’ ongoing efforts to prevent and combat fraud, waste, and abuse in these health care programs while safeguarding taxpayer dollars and ensuring patient access to care is not interrupted.

I.   Background on the Home Health Enrollment Moratoria:

Under the Patient Protection and Affordable Care Act (the “ACA”), the Secretary of the Department of Health and Human Services (HHS) was given new tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and CHIP. One of these tools allows the Secretary to impose a temporary moratorium on the enrollment of new providers and suppliers in these health care programs if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse.

·         Consultation with Law Enforcement

CMS alone, or in consultation with HHS’ Office of Inspector General (OIG) or the Department of Justice (DOJ), or both, as well as State Medicaid agencies, can impose a temporary moratorium on newly enrolling health care providers and suppliers if the agency determines that there is a significant potential for fraud, waste, or abuse with respect to a particular provider or supplier type or particular geographic locations or both. More importantly, if a provider or supplier is subject to a moratorium, CMS denies the enrollment application of that provider or supplier.

CMS previously identified two provider and supplier types – home health agencies and ground ambulance suppliers – in five geographic locations that warranted a temporary enrollment moratorium. CMS reached this conclusion based in part on the experience of Health Care Fraud Prevention and Enforcement Action Team (HEAT) units, a joint initiative between DOJ and HHS to prevent fraud, waste, and abuse in the Medicare and Medicaid programs. HEAT’s Medicare Strike Force Teams use advanced data analysis practices to identify high billing levels in health care fraud hotspots in order to target emerging or migrating schemes along with chronic fraud by criminals masked as health care providers or suppliers. Strike Force teams are generally located where Medicare claims data reveal aberrant billing patterns and intelligence data analysis suggests that fraud may be occurring. CMS generally considers the locations of these teams when moratoria extensions and additions may be imposed.

·         Data Analyses 

When considering whether to impose an enrollment moratorium, CMS looks at both qualitative and quantitative factors that suggest a high risk of fraud, waste, or abuse. For example, the agency looks at counties with 200,000 or more Medicare beneficiaries; it also analyzes metrics such as the number of providers or suppliers per 10,000 Medicare fee-for-service beneficiaries and the compounded annual growth rate in provider or supplier enrollment. CMS even assesses certain groups in target locations based on the average amount spent per beneficiary.

The agency relies on law enforcement’s longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions. CMS’ determination of high risk fraud in certain provider and supplier types within these geographic locations are usually confirmed by the agency’s data analysis, relying on factors CMS identifies as strong indicators of fraud risk. The agency considers health care fraud schemes to be highly migratory and temporary in nature, so many of its program integrity elements and anti-fraud activities are designed to allow it to adapt to emerging fraud in different locations.

According to CMS, the laws and regulations governing its moratoria authority give the agency flexibility to use any and all relevant criteria for future moratoria, and CMS may rely on additional or different criteria as the basis for future moratoria.

·         Beneficiary Considerations With Respect to the Temporary Moratorium

Importantly, considerations as to whether to impose a moratorium must include determinations relative to beneficiaries’ access to medical assistance and care. These determinations are usually made in consultation with State Medicare Agencies and with the appropriate State Department of Emergency Medical Services, as well as the agency’s own review of its data regarding the number of providers and suppliers in the target and surrounding counties and Medicare Payment Advisory Commission (MedPAC) reports.

Moreover, CMS’ temporary enrollment moratoria remain in effect for six months. If the agency finds it necessary, it may also extend a moratorium in six-month increments. If a moratorium is lifted, the provider or supplier groups that were unable to enroll because of the moratorium are then designated to CMS’ high screening level for six months from the date the moratorium was lifted.

II.  CMS Extends its Home Health Enrollment Moratoria, Adds Four New Geographic Areas:

Under its powerful fraud fighting capabilities, CMS enacted initial enrollment moratoria of home health agencies for the Chicago and Miami geographic locations. This included the Florida counties of Miami-Dade and Monroe, as well as the Illinois counties of Cook, DuPage, Kane, Lake, McHenry, and Will. In its recent announcement, CMS will be extending for six-months the current enrollment moratoria of home health agencies in these geographic locations.

More importantly, CMS has now imposed new temporary moratoria on the enrollment of home health agencies in four major metropolitan areas. Specifically, a moratorium has been placed on: Broward County, Florida, which includes the city of Fort Lauderdale; the Texas county of Dallas, which includes the city of Dallas, as well as the surrounding counties of Collin, Denton, Ellis, Kaufman, Rockwall, and Tarrant; the Texas county of Harris, which includes Texas’ largest city Houston, as well as the surrounding counties of Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, and Waller; and finally, the Michigan counties of Wayne, which includes the largest city in that state, Detroit, as well as the surrounding counties of Macomb, Oakland, and Washtenaw.

III.  CMS Imposes Enrollment Moratoria of New Ground Ambulance Suppliers in Philadelphia:

Under the latest enrollment moratoria, CMS has also included a temporary moratorium on the Medicare Part B enrollment of new ground ambulance suppliers in the Greater Philadelphia area. Specifically, the moratorium will applies on the enrollment of ambulance in the Pennsylvania counties of Bucks, Delaware, and Montgomery, as well as the New Jersey counties of Burlington, Camden, and Gloucester.  It also applies to the enrollment of ambulance service providers in Medicaid and CHIP.

Notably, the moratorium does not apply to provider-based ambulances, which are owned and / or operated by a Medicare provider (or furnished under arrangement with a provider) such as a hospital, critical access hospital, skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, or hospice program, and are not required to enroll separately as a supplier in Medicare Part B.

Moreover, the latest announcement also extends the moratorium on the enrollment of ambulance suppliers and providers in the greater Houston, Texas area.  This included the counties of Harris, Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, and Waller.

IV.  CMS’ Analysis and Statements on the New and Extended Enrollment Moratoria:

In July 2013, CMS’ initial use of the temporary enrollment moratoria authorities focused on three fraud “hot spot” metropolitan areas. As noted above, CMS consulted with HHS-OIG and the DOJ and determined that fraud trends warranted a moratorium on home health providers and ambulance suppliers in these metropolitan areas. CMS’ review of key factors of potential fraud risk included a disproportionate number of providers and suppliers relative to beneficiaries, and extremely high utilization.  The geographic areas outlined above ranked high in these fraud risk factors.

Marilyn Tavenner, the Administrator for CMS, believes that the agency’s recent action demonstrates how the ACA continues to protect taxpayer dollars by moving the agency beyond “pay and chase” to prevent fraud in areas of known risk.  Ms. Tavenner found that the

“first use of the moratoria put fraudsters on notice that we are using all available tools, including these moratoria, to combat fraud, waste and abuse in our health care programs, while maintaining patients’ access to care…Today’s announcement shows we are continuing our intense fight against fraud, waste and abuse in these vital health care programs.”

V.  What Does this Mean for Current and Future Home Health Agencies and Ambulance Suppliers?

The new moratoria and the six-month extension of the existing home health enrollment moratoria began on Friday, January 31. CMS expects this new and extended moratorium to remain in place for a period of six months. CMS can lift the moratoria earlier or extend it another six months if data indicates that it is warranted.

Regarding the extension of the current moratoria for home health agencies in the Miami and Chicago metropolitan areas, and to ground ambulance suppliers in the Houston metropolitan area, the extension only applies to new enrollments. Existing providers and suppliers in these areas can continue to deliver and bill for services; however, no new provider and supplier applications will be approved in these areas. 

Moreover, prospective home health agency applications within the affected geographic areas that were not approved prior to the January 30, 2104 announcement will be denied by the Medicare Administrative Contractor (MAC). “Approved” means that by 12:00 AM on January 30, 2014, the initial certification was completed, the second MAC review was completed, the CMS Regional Office (“RO)” sent the tie-in notice to the MAC; the MAC performed a site visit and the MAC decided to switch the home health agency’s Provider Enrollment Chain Organization System record to an “approved” status.

Additionally, as of 12:00 AM on January 30, 2014, the State Survey Agencies (SAs) and ROs must cease all review of any initial home health agency applications pending within the SA or RO for prospective providers in the affected counties of the moratoria. Furthermore, the SAs / ROs may not review any application for a home health agency branch location within the affected geographic areas through the duration of the moratorium.

VI.  Final Remarks:

This latest announcement has a substantial impact of new home health agencies and ground ambulance suppliers in the affected metropolitan areas.  Home health agencies whose applications are denied due to the moratorium will receive denial letters and will be given appeal rights.

How significant is this announcement? One of our attorneys, Jennifer Papapanagiotou, spoke with an authority at the CMS-Dallas Regional Office and that individual reported that over 100 applications in Texas alone have been affected. Interestingly, the individual at CMS reported that the CMS-Dallas Regional office had no prior notice of the moratorium and that it is being driven largely by the HEAT task force.

While we cannot say whether the moratorium will be extended after this six-month period, there are some telling signs in the data that may give some hints.  We believe that the moratorium in the Houston area will likely be extended again. The data indicates that the Houston area is off-the-charts regarding its disproportionately large numbers of agencies per beneficiary and its higher than normal claim payments per beneficiary. While Dallas’s numbers are not as severe, they, too, are disproportionately high and may indicate that the moratorium will likely be extended in this metropolitan area as well.

We have worked with a number of home health providers in the past. We recognize the complexities with setting up a new home health agency or ensuring that your current practice meets all of the relevant Federal and State regulations. We also understand the medical necessity, documentation, coverage, coding and billing requirements applicable to home health claims.  If you need assistance with dealing with the new CMS moratoria or any home health compliance issues, give us a call today.

Robert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law.  Liles Parker attorneys represent health care providers and suppliers around the country in connection with Medicare audits by ZPICs and other CMS program integrity contractors.  The firm also represents health care providers in HIPAA Omnibus Rule risk assessments, privacy breach matters, State Medical Board inquiries and regulatory compliance reviews.  For a free consultation, call Robert at:  1 (800) 475-1906

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