Medicare Coverage for Ambulance Services – Physician Certification Will Not Be Enough

A physician certification for Medicare coverage for ambulance services is not the final word. An ambulance service also must demonstrate the beneficiary’s condition and establish medical necessity when transporting the Medicare beneficiary. In a recent Southern District of Texas decision, the Court affirmed a decision by the Department of Health and Human Services (“HHS”) to deny payment to an ambulance service that provided repeated non-emergency transport to a Medicare beneficiary when the service failed to show that transportation by another means was contraindicated by the patient’s condition. Read More ›

Bona Fide Prescriber-Patient Relationship Requirement for Controlled Substance Prescribing Effective January 4, 2019

Bona Fide Relationship Requirement Law. Public Act 247 of 2107, MCL § 333.7303a(2), requires that except as provided in exceptions detailed in administrative rules, a prescriber must be in a bona fide prescriber-patient relationship with a patient before prescribing a schedule 2-5 controlled substance (“CS”). The Michigan legislature delayed the effective date of the bona fide prescriber-patient relationship requirement to the earlier of (a) March 31, 2019, or (b) the date administrative rules describing the exceptions to the requirement are promulgated. Public Act 247 also requires the prescriber to provider certain follow-up care to the patient to monitor the efficacy of the CS in treating the patient’s medical condition. Failure to comply with the bona fide relationship requirement is considered professional misconduct and may subject the prescriber to professional discipline. Read More ›

If You Have Suggestions for Improving the HIPAA Privacy or Security Rule, Now Is the Time to Speak Up

Authored by Joanne Lax (retired Member of Dykema)

On December 14, 2018, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) published a Request for Information (RFI) about ways to modify the HIPAA Privacy and Security Rules[1] to promote the transition of the health care industry to a value-based Medicare payment model and improve care coordination for patients. See “Request for Information on Modifying HIPAA Rules to Improve Coordinated Care,” 83 FR 64302 Page:64302-64310. OCR will accept responses to the RFI until February 12, 2019. Read More ›

CMS Continues to Enhance Oversight of Accrediting Organizations

The U.S. Centers for Medicare and Medicaid Services (CMS) has once again stepped up its oversight of Accrediting Organizations (AOs).[1] On December 18, 2018, CMS issued a Request for Information (RFI) seeking to determine whether AOs have a conflict of interest between their governmental contract and their private business. See “Medicare Program: Accrediting Organizations Conflict of Interest and Consulting Services; Request for Information,” 83 FR 65331. CMS will accept responses to the RFI until February 19, 2019. Read More ›

PBJ: The Sandwich that Bites Back

Several years ago the U.S. Centers for Medicare and Medicaid Services (CMS) required skilled nursing facilities (SNFs) to report nurse staffing levels using the SNF’s payroll records, in an effort to obtain more accurate information about actual daily nurse presence in SNFs. CMS has collected this Payroll Based Journal (PBJ) information for a few quarters now. CMS uses this data to publically report each SNF’s nurse staffing level on its Nursing Home Compare website and to calculate each SNF’s Five Star Rating. Publication of this PBJ data is part of CMS’ initiatives to keep consumers informed about SNF quality, so that market pressure will incentivize SNFs to improve their performance. But the PBJ data is now going to bite some SNFs through survey enforcement. Read More ›

Where Does the Money Go?

Medicare and Medicaid certified nursing homes are frequently required to pay fines (called “civil money penalties” or “CMPs”) to the U.S. Centers for Medicare and Medicaid Services (“CMS”) when government surveyors find them out of compliance with the Requirements for Participation for Long-Term Care Facilities. It is not uncommon for CMS to assess CMPs in the hundreds of thousands of dollars. Nursing homes sometimes protest that the money would be better spent by them in improving their operations to fix current non-compliance and avoid future non-compliance. On November 21, 2018, CMS announced a new initiative that it claims will promote these goals.  Read More ›

OIG Puts SNF Involuntary Discharges and Transfers Under the Microscope

Increased federal oversight may be on the horizon for skilled nursing facility involuntary transfers and discharges. The Office of Inspector General (OIG)  included in  its 2019 Work Plan reviewing SNFs’ involuntary transfers and discharges, focusing on reviewing whether State agencies have effectively investigated and enforced proper transfer and discharge procedures. Now is the time for SNFs to review their involuntary transfer and discharge procedures to make sure they are in compliance with CMS regulations. Read More ›

What do Hurricanes, Tornadoes, Blizzards, Floods, Wildfires and Earthquakes all have in Common?

Obviously, they are all natural disasters that climate scientists believe will increase in severity and intensity in the coming years. And they are all events that nursing homes and assisted living facilities (and all Medicare/Medicaid certified health care providers) are legally required to prepare for in order to protect their residents and patients. More pointedly, though, they are all events which the U.S. Senate Finance Committee’s Minority Staff (Minority Staff) believes are not presently adequately addressed by nursing homes, assisted living facilities, or the U.S. Centers for Medicare and Medicaid Services (CMS). The Minority Staff made this clear in a blistering report issued on November 2, 2018, entitled Sheltering in Danger. Read More ›

The U.S. Department of Health and Human Services Launches New Opioid-Related Initiatives

Following President Trump’s signature on broad federal legislation to combat the opioid crisis in the U.S., the U.S. Department of Health and Human Services (DHHS) announced two initiatives to further reduce opioid-related deaths. On October 25, 2018, DHHS’ Office of Inspector General (OIG) expanded its Medicare Strike Forces to address improper opioid prescriptions, and the DHHS’ Office for Civil Rights (OCR) published Guidance to prevent discrimination against individuals seeking treatment for opioid use disorder. Read More ›

Back to the Old Regime: The DOJ’s Criminal Division’s Newest Compliance Approach

On October 12, 2018, Assistant Attorney General Brian A. Benczkowski spoke at the NYU School of Law where he announced new guidelines regarding the procedures governing corporate compliance and monitorships.[1] While most of the attention has been on the new criteria for selecting corporate monitors, AAG Benczkowski also announced that the DOJ will not be hiring new corporate compliance counsel within the Criminal Division, a break from the practices of the previous administration. Read More ›