CMS PROPOSES NEW SAFEGUARDS AND INCENTIVES TO REDUCE MEDICARE FRAUD

On April 24, 2013, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would increase incentives for people to report information that leads to a recovery of funds from individuals and entities that have or are engaged in Medicare fraud and abuse. This proposed rule would also improve CMS’ ability to detect new fraud schemes, and help ensure that fraudulent entities and individuals do not enroll in or stay enrolled in Medicare. 

This fact sheet summarizes CMS’s proposed changes for the Medicare Incentive Reward Program as well as new provider enrollment provisions outlined in the proposed rule.

SUMMARY OF THE INCENTIVE REWARD PROGRAM PROPOSALS

CMS is proposing to increase the potential reward amount for information that leads to a recovery of Medicare funds from 10 percent to 15 percent of the final amount collected. The current program caps the reward at $1,000, meaning CMS pays a reward on the first $10,000 it collects as a result of a tip. CMS is also proposing to increase the portion of the recovery on which CMS will pay a reward up to the first $66 million recovered – this means an individual could receive a reward of $9.9 million if CMS recovers $66 million or more.

In 1998, CMS began paying rewards to individuals who reported tips that led to the recovery of funds. To date, CMS has recovered approximately $3.5 million as a result of this program and paid just $16,000 for 18 rewards. The proposed changes are similar to the IRS whistleblower program that has resulted in recoveries of over $2 billion since 2003.   

SUMMARY OF THE PROVIDER ENROLLMENT PROVISIONS

Provider enrollment is the gateway to Medicare. CMS routinely evaluates its provider enrollment policies, and has implemented new safeguards as a result of the Affordable Care Act. In the February 2011 final screening rule (72 FR 5862). CMS identified additional changes in enrollment policy that would increase the integrity of the Medicare program. Now, CMS is proposing include the following provisions:

• Add the ability to deny the enrollment of providers, suppliers and owners affiliated with an entity that has unpaid Medicare debt. This proposal would prevent individuals and entities from being able to incur substantial debt to Medicare, leave the Medicare program and then re-enroll as a new business to avoid repayment of the outstanding Medicare debt. We are proposing that CMS would only enroll individuals or entities if they repay the debt or enter into a repayment plan, if they are otherwise eligible for the program.

• Deny enrollment or revoke the billing privileges of a provider or supplier if a managing employee has been convicted of certain felony offenses. This provision ensures that CMS can block or remove bad actors from the Medicare program to protect beneficiaries and safeguard the Medicare Trust Fund.

• Permit CMS to revoke billing privileges of providers and suppliers that have a pattern or practice of billing for services that do not meet Medicare requirements. This proposal is intended to address providers and suppliers that regularly submit inaccurate claims in such a way that it poses a risk to the Medicare program.

• Make the effective date of billing privileges consistent across certain provider and supplier types. Most practitioners and practitioner groups may only submit bills as of the filing date of their enrollment application. CMS is proposing to eliminate ambulance suppliers’ current ability to bill for up to a year prior to enrollment in the Medicare program. CMS is also proposing to require that ambulance providers and other provider and supplier types submit any claims within 60 days of revocation of billing privileges, consistent with the requirements for practitioners and practitioner groups.

The proposed rule can be downloaded at: https://www.federalregister.gov/public-inspection.

Hero nursing home workers in West, Texas Nursing Home

This is who we are.

Dr. Smith and the employees and neighbors of West Rest Haven Nursing Home, A five star facility in West, Texas:

WEST, Texas -- A battered and bloody EMS director is recounting the moments leading up to the massive explosion at a fertilizer plant in the Central Txas town of West.

George Smith said they got a report of a fire at the plant, so they sent fire trucks and an EMS unit.

Meanwhile, he went to help senior citizens who lived nearby.

"I saw how bad it was, so I went to the nursing home... I'm the medical director for the nursing home. I went over to the station closest to where the fire was and called all personnel to me that were there in the building and said, 'Get people evacuated to the far side of the building," Smith said. "Luckily we had most everybody out then. But then there was just a major, major explosion. The windows came in on me, the roof came in on me, the ceiling came in. I worked my way out to go get some more help."

About a hundred residents were safely evacuated.  We, who are also nursing home folks, know they will not see the 100 saved, they will only remember the few who were lost.   We, who are nursing home folks, honor and support them.  Well done.  You ran towards the fire and stayed after the explosion to evacuate.  

We are so very proud of you.  

CMS Releases FAQ on Manual Medical Review April 17th

New FAQ on MMR:  http://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medical-Review/Downloads/FAQ_OutpatientTherapy_04172013.pdf

Quality Measures Manual moved from Technical Page to QM page, updated again

April 12, 2013

Three files related to the MDS 3.0 QM User’s Manual have been posted:

1. MDS 3.0 QM User’s Manual V8.0 contains detailed specification for the MDS 3.0 quality measures. MDS 3.0 QM User’s Manual V8.0 is available under the Downloads section of this page.
2. Quality Measure Identification Number by CMS Reporting Module Table V1.2 documents CMS quality measures calculated using MDS 3.0 data and reported in a CMS reporting module.  A unique CMS identification number is specified for each QM. The table is available under the Downloads section of this page.
3. Documentation of the Changes Made to the MDS 3.0 QM User’s Manual V6.0 to V7.0 and Also from V7.0 to V8.0 (April 2013).  The changes document is available under the Downloads section of this page.

Update on CMS clarification on ADL coding "rule of 3"

In my March 24th entry, I reported news that CMS had clarified and some would say, redefined, the rule of three.  Please see that entry for details.

Industry advocates have contacted CMS about this clarification as published by various State RAI Managers and as I reported on March 24th.   It remains possible that the ADL algorithm may not change as previously reported by CMS through the State RAI system.   We are still expecting a new RAI manual in May, so we watch and wait.  As usual,  consult your State RAI Manager for specific questions.

S&C Letters relating to Sequestration Adjustments

Following are the links to two (2) new Centers for Medicare and Medicaid Services (CMS) survey and certification letters:

I. 

FY2013 Sequestration Adjustments for Survey & Certification (S&C) 4/05/13

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-23.pdf

This Letter describes the policy or operational adjustments CMS is making to accommodate the federal budget reductions resulting from sequestration [effective 3/1/13] that impact State operations / State survey agency (SA) functions and that “…are intended to help States accomplish priority work within the reduced budget.”

·         “The overall FY’ 13 S&C Medicare budget is reduced by 5% from the FY2012 level, amounting to approximately $19 million.” Of the total reduction, CMS expects expects State allocations to be reduced by 2.5% – 3% from the FY ‘12 national budget level. The remaining reduction will be taken from CMS Central Office (CO) functions, contractual services, and one-time budget items.
·         States are expected to adhere closely to CMS priorities in conducting all survey and certification work.
·         CMS will make adjustments to the State Performance Standards System (SPSS) to accommodate the changes described and to reinforce strict adherence to the CMS workload prioritization.
·         CMS states it is “…protecting SA ability to continue onsite complaint investigations and surveys of existing providers, while reducing expenses, suspending additions to the workload, reducing time spent on lower risk areas, and reducing the CMS CO services.”
·         Separate communications will be sent to States regarding specific allocation amounts for each State.

The policy and operational adjustments State Survey Agency Directors are instructed to implement immediately include:  

Providers that Elect to Decline Medicare Assignment

·         All entities that acquire providers / plan to acquire another provider and to decline [current] assignment of Medicare certification “…(thereby resulting in termination of the existing provider agreement)”, must be informed “…there may be longer wait-times for the onsite surveys and certification work necessary period before an initial certification survey will be conducted and before Medicare participation may therefore be resumed, regardless of who might conduct the survey (State, accrediting organization, or CMS).”  

IPPS Exclusions or Addition of Locations: Exclusions from the Inpatient Prospective Payment System (IPPS), or requests to add locations on the part of an existing provider

·         Entities that inquire about adding locations/services for Medicare-certified providers are to be informed “there may be longer wait-times for any onsite surveys or certification work that may be necessary.
·         This includes additional branches or secondary locations to an existing home health agency, hospice, hospice inpatient units, Outpatient Physical Therapy extension sites, Swing Beds, or end stage renal disease services.”

Revisit Surveys  

a.  CMS Regional Office (RO) approval must be obtained prior to a second onsite revisit after a first revisit found the

 provider had still not achieved substantial compliance.

b.  CMS Central Office (CO) approval must be obtained prior to a third or fourth onsite revisit (when a 3^rd or 4^th

revisit is permitted by CMS policy) when the prior revisit found the provider had not achieved substantial

compliance. Existing protocols already require consultation /approval from CMS for some revisits (e.g., 3^rd and

4th), “…so the effect of this change is simply to change the thresholds at which the consultation occurs.”

c.  Affected providers are to be informed there may be longer wait times for revisits.  

Special Focus Facility (SFF) Nursing Homes

a.  “Last chance” onsite surveys are to be scheduled for facilities on the SFF list for more than 18 months that have

failed to improve.

o   This survey may coincide with the next planned onsite survey, “…or be advanced in accordance with the extent to which State monitoring continues to indicate lack of significant progress.”

o   After discussion with the CMS RO, “…a Medicare termination notice may be issued if the onsite survey does not reveal appropriate improvement or unless there is a major new development that CMS concludes is very likely to eventuate in timely and enduring improvement…”

b.  The progress of all other SFF facilities on the list for more than 12 months is to be reviewed. “CMS staff will

discuss with the SA the status of each facility and plan further action.”

c.  Until further notice, no replacement SFFs will be identified when a SFF is terminated from Medicare participation

or is graduated, unless otherwise directed by the CMS RO.

·         CMS states, “The effect of this adjustment will be to (a) speed final resolution (preferably substantial improvement)…where serious problems have persisted for a considerable time, and (b) continue the SFF initiative…, but at a temporarily reduced number of facilities.”

Home Health Targeted Surveys

·         All further Tier II targeted surveys of home health agencies (HHAs) that CMS has identified to SAs has having the lowest performance will be discontinued unless otherwise directed by CMS.
·         SAs are to continue to ensure that no HHA goes more than 3 years without an onsite recertification survey.

Life Safety Code (LSC)in Nursing Homes

a.  CMS is providing, at State option, a Short Form survey that may be used to assess compliance with key life-safety

code requirements for nursing homes “…CMS determines have a consistently good track record of LSC compliance…, provided the nursing home is also [100%] fully-sprinklered.”  CMS will provide a list to each SA of facilities that may qualify for the Short Form survey.

b.  States electing this option will be required to provide basic information to CMS CO for the purpose of evaluation.

c.  Certain targeting and quality controls will apply to the use of the Short Form survey. [S&C Memorandum

13-22-NH (4/5/13) offers more specific details – see below].  

+++++++++++++++++

II. 

Life Safety Code (LSC) Short Form Survey for Nursing Homes – Limited Option (4/05/13)

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-22.pdf

CMS’ stated intent for this procedure is to “allow surveyors to spend more time with facilities whose life safety code compliance poses greater risk to residents, and less time with those above-average facilities where life-safety code compliance is superior.”  Improving targeting of surveyor time is important to “(a) meet the resource limitations of the recent sequester-required budget reductions…”, (b) respond to the challenge of enforcing the 8/13/13, deadline for all nursing homes to be fully sprinklered, and “…(c) ensure that Medicare and Medicaid funds are used in the most efficient and effective manner.”   

State Option

·         CMS will permit States - at States’ option - to implement a Short Form Fire Safety Survey for a limited number of specified facilities that have demonstrated superior compliance with life safety code requirements and are fully sprinklered.

·         These facilities will be identified on a confidential list that, beginning in FY ‘13 and at the beginning of each year thereafter, CMS will make available to the respective State Survey Agencies (SAs). 

·         Only facilities that are considered fully sprinklered, do not have any significant waivers of LSC requirements, and are not certified by the use of the Fire Safety Evaluation System (FSES) will be considered for use of the short form survey (CMS is not eliminating the use of the longer LSC survey process or the FSES in implementing this Short Form.)

CMS Selection Criteria and Process

·         For the selected nursing homes, the Short Form may be used to collect data on a specific set of K tags.
·         These identified K tags will give a core indication of the facility fire safety status.  If initial survey findings indicate  there are serious problems, the survey must be expanded to cover additional K tags. 
·         The Short Form already contains more than the initial set of K tags, so the survey may easily be expanded while the survey team is onsite, or a full survey may be scheduled.

To be eligible for the Short Form process the facility must:

o   Be fully sprinklered;

o   Generally not have any waivers or use the Fire Safety Evaluation System – Health Care (FSES/HC) to be certified;

o   Have not been cited for K0062 Sprinkler Maintenance, K0054 Smoke Detector Maintenance, K0050 Fire Drills, K0104 Smoke Barriers and 0051 Fire Alarms in the last two years. 

o   Not have more than 2 survey cycles since the last Long Form survey was conducted.

·         CMS advises these criteria may be subsequently modified based on the results of LSC surveys over time.  

·         The SA may determine who completes the Short Form survey process, provided every surveyor who conducts the survey first completes the CMS Short Form survey training, expected to be available via webinar. 
·         Short Form surveys might be completed by health surveyors who have participated in a webinar in which specific K tags are reviewed; or by surveyors who ordinarily complete fire safety surveys (such as State Fire Marshals or other Health Department staff who may conduct LSC surveys on a regular basis).                                              

Attachment A

The Letter includes Attachment A: Life Safety Code – Targeted LSC Short Form - Special Survey Instructions

·         The process uses the existing Short Form 2786R (6/2007 edition).
·         Use of the existing form will expedite the process as it is already available and is part of the current data system.
·         The 2786R has been used in the past as a screening tool to determine if a more detailed LSC survey is required.  
·         The K tags selected for SF review are concentrated in the maintenance of fire protection systems in the facility, fire drills for staff, means of egress availability and emergency electrical power where installed. 

Key K Tags for the Short Form Survey

·         The following K tags are proposed to be reviewed by surveyors on-site:

o   K38 - Exit access:

o   K39 - Exit corridor width

o   K47 - Exit signs operational:

o   K50 - Fire drills:

o   K52 - Fire alarm system properly maintained

o   K62 - Automatic sprinkler system properly maintained

o   K72 - Means of egress unobstructed by furnishings and decorations

o   K144 - Emergency generator properly maintained

o   K211 - Alcohol based hand rubs properly used

New MLN Article on physician delegation in SNFs and NFs

Following is the web link to the new Centers for Medicare and Medicaid Services (CMS) MLN Matters® Special Edition Article #SE1308, “Physician Delegation of Tasks in Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs),”:  http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/SE1308.pdf

Cut and paste into your browser.  

Jimmo Improvement Standard

CMS has published a fact sheet on the Jimmo settlement at:  http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf.

 Background: 

In the case of Jimmo v. Sebelius, the Center for Medicare Advocacy (CMA) alleged that Medicare claims involving skilled care were being inappropriately denied by contractors based on a rule-of-thumb “Improvement Standard”—under which a claim would be summarily denied due to a beneficiary’s lack of restoration potential, even though the beneficiary did in fact require a covered level of skilled care in order to prevent or slow further deterioration in his or her clinical condition. In the Jimmo lawsuit, CMS denied establishing an improper rule-of-thumb “Improvement Standard.” The Court never ruled on the validity of the Jimmo plaintiffs’ allegations. 

While an expectation of improvement would be a reasonable criterion to consider when evaluating, for example, a claim in which the goal of treatment is restoring a prior capability, Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function. For example, in the regulations at 42 CFR 409.32(c), the level of care criteria for SNF coverage specify that the “. . . restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” 

The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. A beneficiary’s lack of restoration potential cannot, in itself, serve as the basis for denying coverage, without regard to an individualized assessment of the beneficiary’s medical condition and the reasonableness and necessity of the treatment, care, or services in question. Conversely, coverage in this context would not be available in a situation where the beneficiary’s care needs can be addressed safely and effectively through the use of nonskilled personnel. 

Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. Any Medicare coverage or appeals decisions concerning skilled care coverage must reflect this basic principle. In this context, it is also essential and has always been required that claims for skilled care coverage include sufficient documentation to substantiate clearly that skilled care is required, that it is in fact provided, and that the services themselves are reasonable and necessary, thereby facilitating accurate and appropriate claims adjudication.

CMS Quality Measures Manual V7.0, is now posted

CMS has released the new LTC Quality Measures manual, V7.0.  They have changed the numbering system and deleted the surveyor antipsychotic QM (as promised).  The QM concerning antipsychotics that was on Nursing Home Compare will now be used.  There is a nifty chart listing all QMs and how they are used.  The link is:  http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TechnicalInformation.html.  Scroll down to bottom of page for the manual and the chart.  I could not get to it by clicking the link.  I had to go to the technical information page via google (CMS MDS 3.0 technical information)  then click through.  It is there but takes some effort to find.

Note that this is not on the "Quality Measures"  portion of the website.

Surveyor Antipsychotic QM has new number, less exclusions

The Long Stay Antipsychotic QM that is used in the Surveyor QMs has a new number and less exclusions.  The old QM number was N031.01 and it is now N031.02.  I haven't found anything on the CMS website yet to explain the change, but if CMS did what was promised,  this QM now matches the public CMS QM which only excludes Schizophrenia,  Huntington's Disease and Tourette's Syndrome. I became aware of this when I pulled the QMs from Casper for a client since April 1st.  Remember,  as AMDA says,  dementia with behaviors is not an appropriate diagnosis for antipsychotic use.

Virginia Case Mix

The new CMS clarifications on ADL scoring and quadriplegia will, all things being equal, lower facility averages, and therefore the state average.  This is happening when we can expect the state average to lower due to recent Part B therapy restrictions as well.  When we see our state CMI fall significantly,  the financial folks are going to go ballistic, because the Medicaid check will be noticeably lower.  

The winners will be:

1.  Those who dig for the third occurrence of extensive assistance by interview, education, and bedside assessment.

2. Those who capture respiratory therapy

3.  Those who can capture 3x week therapy with 2 qualifying restorative 

4.  Those who capture 5x week therapy

5.  Those who get ADL score of 7 and capture IV fluid/meds

6.  Those who realize that a scheduled PPS assessment will be a target record if it is the last one in the quarter.

This means being willing to do extra quarterlies as these events (1-5)   occur.  We are going to have to work harder and focus more on State case mix now.  It won't "just happen" without careful, intense management.    While a lot of us make payroll with the Medicare check, we make budget with the Medicaid check.    We are lucky that the VHCA has been so successful in fending off some of the cuts that other states have taken, but the ADL change at the same time as the Part B therapy change  will  lower our state CMI now.  

Rule on quadriplegia that CMS says will be in May RAI Manual:  Only code 'primary' quadriplegia.  If the quadriplegia is a result of any other process, then code the primary process/disease and not quadriplegia.  For example:  

Quadriplegia due to spinal cord injury:  ok.  

Spastic quadriplegia due to TBI:  not ok per Virginia RAI Manager

Quadriplegia due to CP:  not ok

This raises lots of questions that we will have to ask the State RAI Manager or wait and read the May RAI manual.