WASHINGTON, D.C. – During the public health emergency (“PHE”) CMS suspended most Medicare fee-for-service (“FFS”) medical reviews. Unfortunately, this suspension is coming to an end. In the most recent Coronavirus Disease 2019 (COVID-19) Provider Burden Relief Frequently Asked Questions (FAQs), the following question was asked: “Is CMS suspending most Medicare Fee-For-Service (FFS) medical review during the Public Health Emergency (PHE) for the COVID-19 pandemic?” The answer is:
On March 30 CMS suspended most Medicare Fee-For-Service (FFS) medical review because of the COVID-19 pandemic. This included pre-payment medical reviews conducted by Medicare Administrative Contractors (MACs) under the Targeted Probe and Educate program, and post-payment reviews conducted by the MACs, Supplemental Medical Review Contractor (SMRC) reviews and Recovery Audit Contractor (RAC). As states reopen, and given the importance of medical review activities to CMS’ program integrity efforts, CMS expects to discontinue exercising enforcement discretion beginning on August 3, 2020, regardless of the status of the public health emergency. If selected for review, providers should discuss with their contractor any COVID-19 related hardships they are experiencing that could affect audit response timeliness. CMS notes that all reviews will be conducted in accordance with statutory and regulatory provisions, as well as related billing and coding requirements. Waivers and flexibilities in place at the time of the dates of service of any claims potentially selected for review will also be applied.
The reaction from industry stakeholders has been immediate:
- “This is unbelievable…[T]he situation today is as bad, if not worse, than it was in April and May. Hospitals are looking for equipment to rent, smaller DME suppliers are out of equipment, and it is taking all available staff to manage through the day-to-day operations of the business.”
- “We are seeing the same situation in many areas across the country, not just the northeast as it was previously. In places like Houston we are having to send in reinforcements just to keep up.”
- Coming from a state that is low risk we are still having issues getting people in to see their doctors. It’s crazy but very real.”
- “We still have the same issues obtaining documentation and patients not being able to get in to see their physicians. We must understand what they will be enforcing vs. not enforcing and how telehealth plays into this. I feel like we are all very vulnerable with this announcement.”
- “Our Florida location is still in the worst time of this [p]andemic. Sleep centers are still not open in Michigan…[E]ven though some states are opening back up, many are closing back down.”
Admittedly, medical review is important for the preservation of the integrity of the Medicare program. However, the country is still in a crisis mode. The need to suspend medical review in April – June is just as real today. The pandemic is spiraling upward. According to Wayne van Halem, president of The van Halem Group: “We work with many DME suppliers in responding to post-payment audits and prepayment reviews. Many of our clients are in triage mode…they are barely hanging on trying to meet the needs of their patients. At this critical juncture, having to respond to audits is an unnecessary burden and one that a number of suppliers simply will not be able to meet.” AAHomecare is taking a leadership role in addressing this challenge. According to Kim Brummett, vice president of Regulatory Affairs for AAHomecare, the association will be talking to CMS about this challenge…with the goal of achieving a realistic solution.
Other issues that the FAQs discuss are:
- During the PHE, CMS will not enforce signature requirements on proof of delivery slips. Suppliers should document in the medical record the appropriate date of delivery and that a signature was not able to be obtained because of COVID-19.
- All DMEPOS orders require a signature prior to submitting claims for payment. However, all DMEPOS, except for Power Mobility Devices (PMDs), can be provided via a verbal order. PMDs require a signed, written order prior to delivery.
- Beginning on August 3, 2020, CMS will resume full operations for the prior authorization program for certain DMEPOS items. For Power Mobility Devices and Pressure Reducing Support Surfaces that require prior authorization as a condition of payment, claims with an initial date of service on or after August 3, 2020, must be associated with an affirmative prior authorization decision to be eligible for payment.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or email@example.com.
Wayne H. van Halem, AHFI, CFE founded The van Halem Group in 2006. The Atlanta-based firm merged with VGM Group in 2014 and he currently serves as President as the company assists providers in the navigation of complex issues related to audits, appeals, enrollment, and compliance. As a CMS contractor for 10 years, Mr. van Halem spent a majority of that time as a fraud investigator and national Appeals Director. He can be reached at (404) 343-1815 or Wayne@vanHalemGroup.com.
Kim Brummett is vice president of Regulatory Affairs at American Association for Homecare. She is responsible for interfacing with regulatory bodies, such as CMS and other government oversight agencies, the GAO and OIG on issues that affect membership. With a primary focus on compliance, strategic planning, contracting with institutional accounts and managed care payers, accounts receivable, order qualification, information technology and reimbursement, Ms. Brummett has had direct accountability for all of reimbursement’s operational components. She can be reached at (202) 372-0750 or firstname.lastname@example.org
AAHOMECARE’S EDUCATIONAL WEBINAR
Accessing Another Supplier’s Third Party Payor Contract
Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato, P.C.
Tuesday, July 28, 2020
1:30-2:30 p.m. CENTRAL TIME
The DME industry primarily serves the elderly. As such, historically, DME suppliers have focused on billing Medicare fee-for-service…and have not had to worry about commercial insurance contracts. This has changed. Today, approximately 35% of Medicare beneficiaries are covered by Medicare Advantage Plans (“MAPs”) and approximately 70% of Medicaid beneficiaries are covered by Medicaid Managed Care Plans (“MMCPs”). MAPs and MMCPs are administered by commercial insurers. In order for a DME supplier to be included as a plan provider, the supplier needs to sign a contract with the insurer. The challenge for suppliers is that many panels are “closed” to new suppliers, meaning that the insurer will not offer a contract to the new supplier. But what if another DME supplier (“Supplier B”) has a contract? Can the supplier, that does not have a contract (“Supplier A”), somehow access Supplier B’s contract? This webinar will discuss how Supplier A can gain access to a third party payer (“TPP”) contract issued to Supplier B. This webinar will also point out the legal pitfalls to avoid. Topics that will be discussed include: (i) whether a TPP contract has a provision that discusses subcontracting and, if so, what that provision says; (ii) the importance of Supplier B handling the intake and assessment…while Supplier A can handle delivery and patient education; (iii) how compensation between the suppliers should be calculated so as to avoid problems under the federal anti-kickback statute; and (iv) how the foregoing steps can be avoided by Supplier A purchasing the stock of Supplier B.