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Homeostasis: Health Care Law Blog

Homeostasis: Health Care Law Blog


Hospice Providers Take Note: OIG Highlights Compliance Vulnerabilities in the Medicare Hospice Benefit

For a number of years, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services has published concerns about the quality of Medicare-certified hospice providers and about fraud and abuse in the Medicare hospice benefit program. On July 31, 2018, the OIG consolidated its concerns into a portfolio “Vulnerabilities in the Medicare Hospice Program Affect Quality Care and Program Integrity: A Portfolio” (OEI-02-16-00570). While neither the U.S. Centers for Medicare and Medicaid Services (CMS) nor the National Hospice and Palliative Care Organization agree with all of the OIG’s concerns or recommended fixes, the OIG is steadfast. Hospice providers can expect continued OIG scrutiny of both industry and individual provider practices, as well as continued OIG effort to effect structural change in the Medicare hospice benefit to improve program integrity. Read More ›

Changes Coming to the Michigan Medicaid Nursing Facility Level of Care Determination Process

The Michigan Medicaid program is proposing to modify its Nursing Facility Level of Care Determination (LOCD) effective November 1, 2018. See Proposed Policy 1819-LOCD—Level of Care Determination (LOCD) Process Improvements. The Nursing Facility LOCD is used to determine an individual’s eligibility for a variety of Medicaid long-term care benefits: nursing facility care, MI Choice Waiver programs, Program of All-Inclusive Care for the Elderly (PACE), and MI Health Link. It determines whether an individual meets the medical/functional criteria for Medicaid payment for these services. Providers that do not properly complete a LOCD when needed may not bill the Medicaid program for services provided to the applicable individual, and are subject to retroactive recoupment of payments received and potential False Claims Act allegations.

The principle proposed modifications to the LOCD are: Read More ›

Act Now to Protect Your Two Percent!

The IMPACT Act of 2014 requires skilled nursing facilities (SNFs) to submit quality data to the federal Centers for Medicare and Medicaid Services(CMS). Failure to do so on a timely basis will shave two percent off the SNF’s Medicare reimbursement for the next federal fiscal year. Read More ›

CMS Expands SNF Data Available to Consumers on Nursing Home Compare and Other Web Sites

On June 22, 2018, the federal Centers for Medicare and Medicaid Services (CMS) announced via a subscription email blast additional skilled nursing facility (SNF) information that it plans to make available to the public through Nursing Home Compare and other government websites. Additional information about the email blast can be obtained from bettercare@cms.hhs.gov. Some of this enhanced information will also be included in the calculation of the SNF’s Five Star Rating. Read More ›

What Can Medicaid Plans and Providers Expect as a Result of New CMS Medicaid Integrity Initiatives?

On June 26, 2018, the Centers for Medicare and Medicaid Services (CMS) announced several initiatives to strengthen Medicaid integrity. While these initiatives are directed to State Medicaid Agencies, Medicaid managed care organizations and providers should expect a trickledown effect that could impact their operations and finances. Read More ›

What to Do When Guidance Doesn’t Seem to Guide

On June 14, 2018, the U.S. Department of Health and Human Service’s Office for Civil Rights (OCR) issued guidance to the clinical research community about the proper content of HIPAA authorizations to use Protected Health Information (PHI) for future clinical research.

The Guidance was mandated by the federal 21st Century Cures Act (Cures Act), which among other things, encourages finding cures for disease and injury through scientific research. The Cures Act required OCR to address three points:

  • What information will satisfy the “purpose” provision of a HIPAA authorization when the plan is for PHI to be used for future research that may not even be contemplated at the time the authorization is signed—e.g. when PHI will be placed in a research database or repository for use in as yet unspecified future research protocols?
  • What is a sufficient expiration date or event for a HIPAA authorization for future research?
  • What information must the authorization provide about the individual’s right to revoke the authorization and the mechanisms to accomplish revocation?
 Read More ›

Covenant FN 40: A Silver Lining for Health Care Providers?

The Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., decision last year posed new problems for health care providers seeking to litigate no-fault benefit payment disputes against insurance companies. The Michigan Supreme Court held that providers could no longer bring direct causes of action against no-fault insurance companies for payment denials or underpayments because the no-fault statute does not mention any such cause of action. However, Footnote 40 of the Court’s opinion offered another option: the health care provider can enforce an assignment of past or present—not future—benefits from the patient. If the patient signs an assignment of benefits form at the time of each service, the health care provider can bring an action against the no-fault insurer on behalf of the patient. It remained unclear though how Michigan courts would interpret this footnote and whether the courts would impose additional restrictions on providers’ use of assignments to litigate payment disputes with no-fault insurers. Recent case law clarifies how providers may use Footnote 40. Read More ›

New Federal Right To Try Act Poses Practical and Ethical Dilemmas for Physicians

On May 30, 2018, the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017 (“Right To Try Act,” or “Act”) became the law of the land. See 115 P.L. 176; 132 Stat. 1372; 2018 Enacted S. 204. Proponents herald it as a new era for terminally ill patients for whom standard treatments have not worked. Critics assail it as an assault on the authority of the U.S. Food and Drug Administration (FDA) and a sham that adds little to patients’ existing options.

What does the Act mean for physicians providing care to terminally ill patients? Like many of its state-based existing counterparts, the Act raises practical problems and exacerbates ethical dilemmas that physicians face as they balance their obligation to support their patients against their obligation to avoid futile and even harmful interventions. Read More ›

Reminder: 7-Day Rule for Opioid Prescribing for Acute Pain Starts July 1, 2018

Only a few days remain before the 7-day rule for opioid prescribing goes into effect in Michigan. Beginning July 1, 2018, a prescriber who is treating a patient for acute pain shall not prescribe more than a 7-day supply of an opioid within a 7-day period. Acute pain is defined by statute as the normal, predicted physiological response to a noxious chemical, thermal, or mechanical stimulus that is typically associated with invasive procedures, trauma, and disease, and that usually lasts for a limited timeRead More ›

Forecasting Turbulence for Health Care Providers

Bankruptcies and other debt restructuring activities for health care providers are on the rise, and recent headlines related to the industry suggest further stormy weather ahead. Please join Dykema attorneys Mark Andrews and Lea Courington as they discuss the intersection of healthcare and insolvency. What is the current state of the industry? Why are nursing homes, hospitals and other healthcare institutions in financial trouble? What factors are changing reimbursement rates? What effect does litigation have on the success or failure of the nursing home industry? What market forces are at play in consolidating some aspects of the industry? The speakers will also discuss recent cases, regulatory restrictions on reimbursements, disruptive technology, tort claims and qui tams, and the anatomy of a bankrupt healthcare company. Read More ›