AAHomecare Zeroes in on Proposed Medicare Enrollee Rules

ARLINGTON, Va. — CMS’ proposal to broaden its
screening tools for providers enrolling in government insurance
programs is on the right track to curb fraud and abuse, but the
American Association for Homecare says the rule still needs to be
modified to prevent potential problems with the proposal.

The association joined several other health care organizations
that weighed in on the Centers for Medicare and Medicaid Services’
187-page proposed rule that would implement provisions in the
Affordable Care Act related to Medicare, Medicaid and the
Children’s Health Insurance Program. Comments were due Nov. 16; the
new provisions are set to take effect March 23, 2011.

“AAHomecare supports Medicare’s efforts to end the relentless
‘pay and chase’ cycle that has riddled the Medicare DMEPOS benefit
with fraudulent providers,” said Tyler Wilson, president, in the
association’s six-page comments about the proposed rule.

However, Wilson said, several areas of the proposal should be
refined or clarified. For example, under the proposal, providers
would be assigned to one of three fraud risk categories: limited
risk, moderate risk and high risk. The range of screening tools
such as license verifications, database checks, fingerprinting,
criminal background checks and unscheduled or unannounced site
visits would escalate according to the category.

CMS is proposing to place enrolled DME providers in the
moderate-risk category, while new enrollees would be in the
high-risk tier. The latter tier would demand fingerprinting and
background checks on owners, authorized or delegated officials or
managing employees, as well as include all current screening
procedures.

“One important concern we have is that CMS proposes to lump
together new locations of currently enrolled, compliant providers
and newly enrolling providers with no enrollment history as a
Medicare provider and that may truly pose high risks for the
program,” AAHomecare said in its comments. “We believe that new
locations of currently enrolled Medicare DMEPOS providers should be
distinguished from other providers that do not have an established
record with the Medicare program.”

The association suggested that CMS screen new locations of
Medicare enrolled suppliers “in the same manner the agency proposes
to screen currently enrolled providers. To accomplish this, CMS
should determine a newly enrolling provider’s risk to Medicare
based on the tax identification number of the new location.”

AAHomecare also called for CMS to clarify how it planned to
administer fingerprint and criminal background checks: For example,
would the agency identify contractors to perform the screenings or
accept screenings from commercial screening services?

Another provision, which would allow the Department of Health
and Human Services secretary to impose a temporary moratorium on
enrollment in six-month increments to help “prevent or fight”
fraud, also drew AAHomecare’s attention. The moratorium would
extend not only to newly enrolling providers, but also the
establishment of new locations.

“We believe … that this should be a drastic remedy that
should be used only in situations where the agency can clearly
articulate the basis for imposing such an extreme measure,” the
association said in its comments. “This means that CMS must be
capable of publishing the data it used to determine a moratorium
was necessary, the steps it will take to resolve the issues that
gave rise to the need for the moratorium, and when it expects to
lift the suspension in new enrollments.”

The association also took issue with another provision that
gives CMS the authority to suspend payments when what it deems “a
credible allegation” of fraud is being investigated. CMS has
defined a “credible allegation” as one coming from any source,
including fraud hotline complaints, claims data mining and patterns
identified through provider audits, civil false claims cases and
law enforcement investigations.

“Placing providers on payment suspensions must be viewed as a
remedy of last resort,” AAHomecare said. The association is
concerned “that the terms ‘credible allegation of fraud’ are too
ambiguous to ensure that providers receive due process protections
when CMS or its contractors suspend payments to a provider.

“CMS must clearly state how it will determine that fraud
allegations are credible,” AAHomecare insisted. “Any final rule
that includes a provision of suspension of payments must answer the
following questions: How does CMS or its contractors decide whether
an allegation of fraud is credible? It the determination made on
the basis of: witness interviews; document reviews; statistical
data?

“How does CMS balance a provider’s right to due process against
threats to the Medicare program? … Does CMS consider: the
length of time the provider has been Medicare enrolled; whether the
provider has a history of complaints or documented noncompliance
with the program rules; who is raising the allegations of fraud and
in what context; how much time has elapsed between the actions that
are alleged to be fraudulent and when the allegations are first
made?”

AAHomecare also said CMS must give the provider an opportunity
to respond to the allegations. In situations where the provider is
not allowed to respond, the association suggested, “CMS must be
able to show that it performed an analysis using at least the
criteria we identified above and that the agency determined that
the possible threat to the Medicare program outweighed the
provider’s right to address the evidence before the payment
suspension is implemented.”

The American Medical Association also submitted comments on the
proposal and took issue with the plan’s structure that would lump
physicians and other practitioners who provide DME with HME
providers, thus putting them in a higher-risk tier. “This will
create a significant disincentive to office-based physicians to
continue offering DMEPOS,” according to the AMA. “Furthermore, such
office-based practices offering DMEPOS do not pose a heightened
risk of fraud and abuse to the program and we are not aware of any
studies that indicate otherwise”

CMS should make an exception and place those practitioners in
the lowest-risk tier, the AMA said.

The American Hospital Association also questioned that provision
on behalf of providers affiliated with hospitals. Those HME
providers, the AHA said, should be considered lowest risk, as are
hospitals.

“Unlike the free-standing providers that CMS proposes to
designate as high or moderate risk, hospital owned/affiliated
entities are part of larger established organizations that have
high levels of accountability to their internal governance
structures and have longstanding relationships with an
responsibilities to their local communities,” the AHA said in its
comments.