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Medicare Advantage Plans May Soon Offer Personal Care Services

Personal Care

(April 10, 2018):  On April 2, the Centers for Medicare and Medicaid Services (CMS) announced an expansion of the benefits that private health plans may offer Medicare beneficiaries under the Medicare Advantage (MA) program in 2019.  In its Final Call Letter for bids from plans that participate in the MA program (“MA plans”) for 2019, CMS expanded the services that plans would be permitted to offer in 2019 as supplemental health related benefits, even if the primary purpose of those benefits includes daily maintenance.  While these benefits are not required to be included in MA plans, plans are provided the latitude to include them if they choose and may very well change the reimbursement landscape for personal care agencies around the country.

I.  Background:

As background, MA Plans are permitted to offer certain benefits that are not included as part of the Medicare fee for service, or Original Medicare, benefits, if those benefits are, among other things, primarily health related.  As discussed in the Final Call Letter, CMS considers an item or service to be primarily health related “…if the primary purpose of the item or service is to prevent, cure, or diminish an illness or injury.”  However, CMS previously has not considered a service to fit within this category if the primary purpose is daily maintenance.

II.  Expansion of Coverage for Personal Care Services:

In the Final Call Letter, CMS recognizes that there is value in certain services that “diminish the impact of injuries or health related conditions and reduce avoidable emergency and health care utilization.”  The Letter does not specify the benefits that would fall under this rubric, but includes as an example, fall prevention devices for individuals at risk high risk for falling and similar products that protect against injury resulting from falls.  The Letter further states that services that diminish the impact of injuries and health conditions and reduce avoidable utilization can be included as supplemental benefits under certain circumstances, even if a significant purpose of the item is daily maintenance.”

As further described in the Letter, “[u]nder the new interpretation, in order … to be ‘primarily health related’ … [an item] must diagnose, prevent, or treat an illness or injury, compensate for physical impairments, act to ameliorate the functional/psychosocial impact of injuries or health conditions, or reduce avoidable emergency and healthcare utilization.”  The intent is to provide plans with the flexibility to offer supplemental benefits that can enhance quality of life and improve health outcomes.

The service must, however, be medically appropriate, recommended by a licensed provider as part of a plan of care, and cannot include items or services that are solely to induce enrollment.  The Letter also indicates that CMS will be issuing more detailed guidance in the future.

As noted, above, while not entirely clear, it is quite possible that MA plans will be permitted to cover personal care services under the revised standards for supplemental benefits.  Indeed, in a press release issued by CMS announcing a draft of the Bid Letter for comment in early February, CMS described the proposal as allowing supplemental benefits to “include services that increase health and improve quality of life, including coverage of non-skilled in-home supports, portable wheel chair ramps and other assistive devices and modifications when patients need them.” (Emphasis supplied.)  While neither the press release accompanying the Final Bid Letter nor the Letter, itself, includes any language specifically referencing these items, the broader language of the Final Letter can certainly be read to permit plans to offer personal care services under certain circumstances.

III.  What Steps Should Your Personal Care Agency Take?

So what can a provider that wishes to offer these services, including personal care services, as part of an MA plan for 2019, do at this point?  First, providers can be watchful for additional guidance from CMS that should be forthcoming.  Second, they can begin to approach the MA plans that cover a significant number of MA subscribers in their service area to discuss both including these items or services as supplemental benefits in the plans’ upcoming bids to CMS for the 2019 year, and to discuss pricing.   In doing so, providers should be prepared with data or other information demonstrating that offering the service will reduce costs without harming patients.  For example, a provider that wished to offer personal home care services would attempt to prepare a cost benefit analysis showing that home visits reduce the incidence for hospital admissions or admissions to skilled nursing facilities. Additionally, if the MA plan is also a provider of Medicaid managed care services, the provider may also include in the analysis the cost/benefit of lowering admissions to the nursing facility long stay side of the equation.  There are other permutations to the analysis, but the key is to begin discussions with the various plans, and to accumulate data that demonstrate both the short term and long-term cost and health benefits of the particular service.

Providers that wish to take advantage of this opportunity should also note that the Bipartisan Budget Act of 2018 expands supplemental benefits for chronically ill enrollees to also encompass benefits that are not primarily health related in certain circumstances beginning in 2020.  This change recognizes the importance of certain social determinants to health status – something that some state Medicaid programs are beginning to recognize as well.  However, this change only affects “chronically ill” beneficiaries and does not begin until 2020, whereas the expanded definition of supplemental benefits in the Bid Letter affects services provided to all MA beneficiaries and begins in 2019.  Additionally, the Final Bid Letter notes that the expanded definition of supplemental benefits in that Letter requires that the benefit address specific illnesses and/or injuries, and reiterates that it will be issuing further guidance on both expansion options in the future.

We would also note that all MA plans are required to have compliance programs in place that meet the seven elements of an effective program.  Under this program, they are also responsible for providing certain training for providers under their programs, as well as for the compliance of those providers.  While Liles Parker attorneys, and in fact, virtually all knowledgeable health care attorneys, have long counseled their clients on the importance of establishing and maintaining effective compliance programs, and while some segments of the industry are required to maintain such programs by law, any entity that wishes to contract with MA plans to provide health care related services almost certainly will be required by the plan to maintain a compliance program.  Thus, any entity that wishes to take advantage of the expanded coverage of services under the Final Bid Letter should be prepared to demonstrate that it has an effective compliance program.

With respect to providers of personal care services, there are a number of areas of vulnerability.  One major such area is ensuring that aides actually perform the services for which a program is billed.  Several years ago, there were a number of investigations and prosecutions where aides were alleged to have colluded with clients to defraud the Medicaid program by failing to provide the service for which the aides were paid, and paying the client a portion of the payments.  There are mechanisms to monitor this type of activity; however, it is a major risk area for home care agencies and should be addressed in any compliance program.

IV.  Conclusion:

In short, the Final Bid Letter for 2019 presents the possibility of expanding the services that certain MA plans will cover, including the possibility of covering personal care services.  However, providers that wish to contract with MA plans for these services should be taking the actions described, above. Liles Parker attorneys have extensive experience in assisting clients throughout the health care industry, including home care and home health, in responding to new government and payor initiatives, including establishing and maintaining an effective compliance program.

Personal CareMichael Cook, J.D., is a Partner at the firm Liles Parker, Attorneys & Counselors at Law.  Mr. Cook represents nursing home, assisted living, home health and personal care clients in regulatory matters.  Anyone interested in discussing the material discussed in this article should feel free to contact Michael Cook at 202-298-8750 or mcook@lilesparker.com.       

 

 

 

 

 

 

HHS-OIG Issues Report on Improper Claims for Nonemergency Transportation Services

OIG is Concerned About Improper Claims for Nonemergency Medical Transportation Services(September 6, 2010):  The Department of Health and Human Services, Office of Inspector General (OIG) recently issued its report examining the costs of nonemergency transportation services reimbursed by Medicaid.  Pursuant to 42 C.F.R. § 431.53, Texas and other States are required to ensure that Medicaid patients have transportation to medical facilities and providers to obtain covered Medicaid services.

In Texas, the Texas Health and Human Services Commission has contracted with the Texas Department of Transportation to administer this nonemergency transportation program. The Department of Transportation has subcontracted with various private transportation providers to provide these services.

I.  OIG’s Findings Regarding Nonemergency Transportation Services:

Upon audit, OIG found that one transportation provider had allegedly provided nonemergency transportation services for which the Texas Health and Human Services Commission had improperly claimed reimbursement by Medicaid.

As set out in OIG’s report, Nonemergency Medical Transportation Costs in the State of Texas, 35 of the 100 sampled nonemergency transportation claims sampled were found by the auditors to be unallowable or partially unallowable.  Reasons for denial included:

  •  Nonemergency transportation was allegedly provided by drivers who did not have a criminal background check or who had a prohibited criminal history on file with the subcontractor.
  • The Medicaid beneficiary allegedly cancelled the transportation request in advance of the trip or was a “no-show” at the origination address.
  • The Medicaid beneficiary allegedly did not receive a Medicaid-covered health care service on the transportation date.
  • The Medicaid claims were paid at a premium rate applicable for transportation between two counties when the transportation was actually provided within the same county.

II. Recommendations:

In light of these findings, we recommend that providers review their practices to ensure that these and other specific risk areas regularly encountered in the provision of nonemergency transportation services are incorporated in their Compliance Plan and assessed as part of the provider’s recurring compliance review activities.  In this heightened enforcement environment it is essential that ambulance and nonemergency transportation providers continue to take steps to ensure that all applicable statutory and regulatory provisions are met.

Liles Parker attorneys have represented both ambulance and non-emergency transportation providers reimbursed by Medicare and Medicaid.  Should your transportation company be audited, give us a call. For a free consultation call:  1 (800) 475-1906.

HHS-OIG Reports that Four Medicaid Audit Error Types Accounted For 95% of the Net Improper Medicaid Overpayments

Four Medicaid Audit Error Types Accounted for 95% of Medicaid Overpayments

(April 20, 2010): The Department of Health and Human Services, Office of Inspector General (OIG) recently released its report on Medicaid Audits “HHS-Analysis of Improper Payments Identified During the Payment Error Rate Measurement Program Reviews in 2006 and 2007 (A-06-09-00079).” As set out in the report, four types of medical review errors accounted for 95% of the net improper Medicaid overpayments during 2006 and 2007.  A breakdown of the Medicaid audit error findings are set out in the report is detailed below.  OIG examined a total of 1,356 medical review errors and 202 data processing errors.

 

I.  Medicaid Audit Error Findings:

Of the medical review errors analyzed by OIG, the agency found that four types accounted for 78% of the errors and 95% of the net improper Medicaid overpayments. The four error types included:

Error Type #1:  Insufficient documentation (37.4%);

Error Type #2:  No documentation (25%);

Error Type #3:  Services that violated State policies  (12.9%); and

Error Type #4:  Medically unnecessary services (2.4%).

The 1,356 medical review errors included 23 service categories, six of which accounted for 67 percent of the errors and 95 percent of the net improper Medicaid overpayments. The six service categories included:

Category #1:  Nursing facilities;

Category #2:  Inpatient hospitals;

Category #3:  Home and Community-Based Services waivers;

Category #4:  Intermediate care facilities for the mentally retarded;

Category #5:  Prescribed drugs; and

Category #6:  Physician practices.

II.  Medicaid Audit Error Types of Data Processing Problems:

Of the 202 data processing errors OIG analyzed, four types accounted for 78 percent of the errors and 64 percent of the net improper Medicaid overpayments. The four error types included:

Error Type #1: Pricing errors,

Error Type #2: Non-covered services errors,

Error Type #3: Rate cell errors for managed care claims, and

Error Type #4: Errors in the logic edits of claim processing systems.

The 202 data processing errors represented 18 service categories, six of which accounted for nearly 73 percent of the errors and 79 percent of the net improper Medicaid overpayments. The top six service categories included:

Category #1: Inpatient hospitals

Category #2: Nursing facilities,

Category #3: Capitated care,

Category #4: Prescribed drugs,

Category #5: Physicians, and

Category #6: Outpatient hospital.

III.  Estimated Financial Impact (Federal Only):

For 2006, CMS estimated that the Federal share of the improper payments paid was $6.6 billion.  This increased considerably, to $18.6 billion in 2007 (Federal share only).  OIG has recommended that CMS provide States with similar analytical data to help them address these improper payments.

IV.  Final Remarks:

LWith the passage of the recent Health Care Reform legislation, CMS has been authorized to expand the RAC program to Medicaid.  Now, more than ever before, it is essential that providers carefully analyze their operations, coding and billing practices in order to ensure that Medicaid billings meet applicable regulatory and statutory requirements.

Healthcare LawyerRobert W. Liles, Esq. serves as Managing Partner at Liles Partner.  Robert and several of our other attorneys have extensive experience working on Medicaid cases.  Should your physician practice or clinic find itself facing a Medicaid audit or investigation, give us a call for a complementary consultation.  We can reached at: 1 (800) 475-1906.