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.