Will the AHCA affect Medicaid’s nonelderly adults with disabilities?

The changes to Medicaid under the American Health Care Act (AHCA), as approved by the House Energy and Commerce Committee, carries potential implications for the nearly seven million nonelderly adults with disabilities currently covered under Medicaid, according to a Kaiser Family Foundation (KFF) issue brief. KFF’s issue brief describes how the AHCA would change Medicaid and offers insight on its potential effect upon nonelderly adults with disabilities by examining the type of insurance nonelderly adults with disabilities have, how they qualify for Medicaid, what their characteristics are, what services they receive from Medicaid, and how much Medicaid spends on the disabled.

The AHCA would change Medicaid in three major ways: (1) it would change Medicaid’s financing structure to a per capita cap, resulting in an estimated $880 billion reduction in federal Medicaid spending from 2017 to 2026, according to the Congressional Budget Office (CBO cost estimate of AHCA) (see CBO: Republican plan saves billions as 24M lose coverage, Health Law Daily, March 14, 2017); (2) it would repeal the enhanced federal matching funds for Patient Protection and Affordable Care Act’s (ACA, section 2001) (P.L. 111-148) enrollees as of January 1, 2020, except for those enrolled by December 31, 2019, who do not have a break in eligibility of more than one month; and (3) it would end the enhanced federal matching funds for Community First Choice (CFC) (ACA, section 2401), which provides attendant care services for people with disabilities, as of January 1, 2020 (see ‘American Health Care Act’ earns first stamp of approval, Health Law Daily, March 9, 2017).

Here is a summary of the KFF findings:

  • Type of health insurance. Thirty-six percent of nonelderly adults with disabilities are working for pay compared to 77 percent of those without disabilities. Among those who are working, 64 percent have access to employer-sponsored health insurance, compared to 68 percent of nondisabled workers. Thirty-one percent of nonelderly adults with disabilities have Medicaid, compared to 10 percent of those without disabilities. Only 41 percent have private insurance, compared to 74 percent of those without disabilities.
  • How do they qualify for Medicaid? KFF found that some nonelderly adults with disabilities are eligible for Medicaid through the ACA’s Medicaid expansion and some through a disability-related pathway based on both their low income and functional limitations.
  • Nearly 85 percent of nonelderly adults with disabilities have incomes below 200 percent of the federal poverty level (FPL) ($24,120 per year for an individual in 2017). Fifty-seven percent are white, 23 percent black, 16 percent Hispanic, and 3 percent Asian. About one-third of those enrolled in Medicaid have three or more functional limitations, which is more than two and one-half times the rate for those disabled who are privately insured and more than double the rate of those who are uninsured.
  • What services do they receive from Medicaid? Through Medicaid, nonelderly adults with disabilities have access to regular preventive care as well as medical care for illnesses and chronic conditions. States must provide certain minimum services for adults, such as inpatient and outpatient hospital, physician, lab and x-ray, and nursing home services. States also can choose to provide a broad range of optional services, including prescription drugs, physical therapy, private duty nursing, personal care, rehabilitative services, and case management. Most home and community-based services (HCBS) are also provided at the option of the state.
  • ACA expansion options. Section 2001 of the ACA offered states the option to expand Medicaid to nearly all nonelderly adults with income up to 138 percent of the FPL. As of 2017, 32 states have adopted the expansion. Section 2401 of the ACA created the CFC option to provide attendant care services and supports with a 6 percent enhanced federal matching funds. Eight states elected this option as of 2016. Section 2402 of the ACA also allowed states (17 as of 2015) to offer HCBS through the section 1915(i) option ( Sec. Act §1915(i)), which allows states to serve people with functional limitations that do not yet rise to an institutional level of care. Section 2703 of the ACA also created the Medicaid health homes option, which enables states (22 as of 2016) to provide care coordination services for people with chronic conditions at a 90 percent enhanced federal match for the first two years.
  • How much does Medicaid spend on people with disabilities? As of 2011, people with disabilities accounted for 15 percent of total Medicaid enrollment but 42 percent of program spending. Per enrollee spending for people with disabilities totaled $16,643 in 2011, more than five times higher than for adults without disabilities ($3,247) and nearly seven times higher than for children without disabilities ($2,463). One-half of states spend between $15,000 and $19,999 per enrollee for people with disabilities, and another third of states spend between $20,000 and $34,999 per enrollee for people with disabilities.

KFF believes that the AHCA’s per capita cap and elimination of the enhanced federal financing under the ACA expansion will put the states under budgetary pressures due to a reduction in Medicaid funds. It believes that these budgetary pressures may result in the limitation of Medicaid services for recipients, including the nonelderly disabled. KFF believes that careful consideration of the AHCA implications is warranted.

FDA considers establishing a new ‘Office of Patient Affairs’

The FDA announced that it is establishing a public docket to solicit public input on ongoing efforts to enhance mechanisms for patient engagement at the agency. In addition, to achieve a more transparent, accessible, and robust experience for patient communities, the FDA is considering establishing a new Office of Patient Affairs.

On November 4, 2014, the FDA established a docket (FDA-2014-N-1698) for the public to submit information related to the FDA’s implementation of the Food and Drug Administration Safety and Innovation Act (FDASIA) (P.L. 112-144), Patient Participation in Medical Product Discussions under FDASIA section 1137.

Based on the comments received, the FDA identified objectives for its patient engagement activities. First, to develop a nuanced understanding of the patient experience of disease by: (1) gathering patient perspective on what is clinically meaningful; (2) assessing attitudes towards benefit-risk and tolerance of uncertainty; and (3) enhancing the science of eliciting and integrating patient input.

Second, to support patients and their advocates in understanding regulatory processes and navigating the FDA by: (1) communicating relevant FDA positions, procedures, and activities; (2) connecting patients and their advocates with the appropriate resources; and (3) resolving discrete challenges and needs.

To achieve these objectives, the FDA is considering establishing a central “Office of Patient Affairs.” The responsibilities of this central office would include:

  • offering a single, central entry point to the FDA for the patient community;
  • providing triage and navigation services for inbound inquiries from patient stakeholders;
  • hosting and maintaining robust data management systems that would incorporate and formalize knowledge shared with the FDA by patient stakeholders and the FDA’s relationships with patient communities; and
  • developing a scalable and forward-looking platform for communicating with patient stakeholders, particularly online channels.

The Office of Patient Affairs would be directly accountable to the medical product Centers. A regular evaluation of this central office and of FDA’s overall patient engagement efforts are also proposed.

 

 

Identifying ‘60-day rule’ overpayments during routine auditing

The need to identify, report, and return Medicare and Medicaid overpayments to CMS under the “60-day rule” and the ability to understand and prepare for the risks posed by routine auditing are essential for all medical providers. At a recent Health Care Compliance Association (HCCA) webinar, Jean Acevedo, LHRM, CPC, CHC, CENTC, Senior Consultant, Acevedo Consulting, Inc., and Lester J. Perling, Esq., CHC, partner, Broad and Cassel LLP, discussed these topics and offered their recommendations.

The 60-day rule

Section 6402(a) of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) established new section 1128J of the Social Security Act, which requires providers and suppliers who submit claims to Medicare and Medicaid to report and return “identified” overpayments to CMS within 60-days or face potential liability under the federal False Claims Act. These requirements were implemented by CMS in a February 12, 2016 Final rule (81 FR 7653) (see CMS finally codifies the 60-day Parts A and B overpayment return rule, February 12, 2016; and Comments, questions, concerns? Weighing in on the 60-day overpayment Final rule, March 2, 2016).

According to Perling, the Final rule sets forth the following parameters for understanding the 60-day overpayment requirement:

  • Definition of an “identified” overpayment. Providers are responsible for overpayments that they “know or should have known”about through the exercise of “reasonable diligence.” Providers that deliberately choose not to investigate when they are made aware of the existence of potential overpayments, would be held liable under the FCA.
  • Exercising “reasonable diligence”. Reasonable diligence requires that providers (1) implement proactive compliance activities to monitor for the receipt of overpayments; and (2) undertake investigations “in a timely manner” in response to obtaining “credible information” of a potential overpayment.
  • “Timely” defined. CMS considers a “timely” investigation to be at the most six months from receipt of the credible information, except in extraordinary circumstances.
  • When does the 60-day period begin? The 60-day period does not begin to run until the provider has had a chance to undertake follow-up activities and quantify the amount of the overpayment.
  • Lookback period. The 60-day rule applies to overpayments identified within six years after they were received.
  • Repayment options. Providers may use claims adjustment, credit balance, the HHS Office of Inspector General’s (OIG) Self-Disclosure Protocol, or other appropriate processes to report or return overpayments. Regardless of the process used, the refund should include an explanation or the statistical sampling methodology used if the overpayment was extrapolated.

Routine baseline audit

Acevedo next discussed the annual baseline audit performed as part of the organization’s compliance program. She recommended that it be done under the attorney/client and work/product privileges in order to help insulate the organization from exposure.

Physical therapy case study

Acevedo next presented an audit case study of a physical therapy department. She stressed the need for the auditor (whether in-house or an outside contractor) to examine the three critical physical therapy documents: (1) the initial evaluation and plan of treatment; (2) the treatment notes; and (3) the clinician’s progress report.

In preforming the audit, she recommended that the auditor take note of the fact that health care professionals are creatures of habit and that, for example, they will either include all necessary elements in the plan of treatment, the treatment notes, and the progress report, or not (i.e., they are usually consistently good, or consistently bad at recordkeeping). She also cautioned that while this document audit may be time consuming, and it is important that the auditor be thorough and not just review the most recent treatment notes and progress reports.

If the auditor finds that therapy documents are deficient or erroneous, Acevedo suggested that the auditor STOP and do two things: (1) consider the possibility that an overpayment situation exists and the timeline that may kick in under the 60-day rule; and (2) alert the attorney and the owner of the practice. She cautioned, however, about jumping to conclusions and leaving a paper trail of written concerns that may amount to “breadcrumbs” for a government investigator or a whistleblower to follow.

Prospective v. retrospective audits

Perling stressed that whether the audit is prospective (i.e., occurs prior to submission of a claim) or retrospective (post claim submission) it does not matter as the finding of negative result or high error rate in either would potentially activate the 60-day rule requirements.

Issues to consider when auditing

Perling suggested taking the necessary steps prior to audit to create an attorney/client privilege that will be recognized and respected by any government investigator.

Perling also discussed whether the standards the auditor is relying on are authoritative or merely guidance. Perling believes that statutes and regulations are clearly authoritative, but that “not everything CMS publishes is authoritative.” For example, while CMS Manuals and Local Coverage Determinations are binding on the Medicare contractor, they are not binding on an administrative law judge. The real question, according to Perling, is “whether the Department of Justice or a whistleblower will think a standard is authoritative.”

Final thoughts

In closing, Perling and Acevedo offered three reminders: (1) educate before auditing; (2) the routine annual audit should review current compliance with standards, not past deficiencies; and (3) audits are still required for effective compliance programs. The danger, according to Acevedo, “is putting your head in the sand.”

Highlight on Wisconsin: As opioid overdose and deaths rise, state seeks $15.7 million in SAMHSA support

The rate of opioid overdose deaths in Wisconsin has risen approximately 81 percent from 2006 through 2015, according to a new Wisconsin Department of Health Services (DHS) report, titled “Select Opioid-Related Morbidity and Mortality Data for Wisconsin.” In response, the Wisconsin DHS has submitted an application for up to $15.7 million in federal funding to boost the state’s response to the growing misuse and abuse of opioids from the Substance Abuse and Mental Health Services Administration (SAMHSA). The amount of the grant is based on the unmet need for opioid-related treatment and the number of opioid-related deaths in the state. Wisconsin is eligible to receive up to $7,636,938 each year for the next two years under the 21st Century Cures Act.

The DHS report provides statewide and county-level data on opioid-related deaths and hospital visits, neonatal abstinence syndrome (NAS) (in which an infant is born with withdrawal symptoms from substances taken by the mother), and data on ambulance runs in which naloxone (a medication used to reverse opioid overdose) was administered. The report includes these data highlights:

  • The rate of opioid overdose deaths increased from 5.9 deaths/100,000 residents in 2006 to 10.7 deaths/100,000 in 2015.
  • Rates of drug overdose deaths involving opioids were higher among counties in the southeastern region of the state (Milwaukee area), and higher among men compared with women.
  • Drug overdose deaths involving opioids were highest among young men aged 25-34, and among women aged 35-54.
  • Hospital visits involving opioid acute poisoning (including overdose) increased from 25.3 to 52.0 per 100,000 between 2006 and 2014.
  • The rate of ambulance runs in which naloxone was administered rose from 51.2 to 67 per 100,000 from 2011 to 2015.
  • The rate of NAS increased from 2.0 to 8.7 per 1,000 live births from 2006 to 2014, a rate increase of 335 percent.

In 2016, DHS issued a Public Health Advisory due to the opioid epidemic. In 2017, Governor Scott Walker called for a special session of the legislature to consider recommendations presented by the Governor’s Task Force on Opioid Abuse. New legislative proposals will build on efforts already underway under the HOPE (Heroin, Opioid Prevention and Education) agenda, which includes 17 bills aimed at prevention and treatment of opioid addiction and overdose.

Pending approval from SAMHSA, the funds will be used to:

  • Support community coalitions focused on reducing the nonmedical use of opioids among people age 12 to 25.
  • Establish a hotline to provide information on treatment services and recovery supports.
  • Expand access to treatment for uninsured and underinsured individuals.
  • Establish new opioid-specific treatment programs to reduce the distance people have to travel for these services.
  • Establish a network of individuals in long-term recovery from the misuse and abuse of opioids trained to coach people through the treatment and recovery process.
  • Develop training for professionals on proven intervention and treatment strategies for opioid misuse and abuse.