Healthcare Reform – Duane Morris Health Law

March 18, 2018 by Neville M. Bilimoria

GAO Report: Assisted Living Providers & Federal Regulation

OCR Loosens HIPAA Enforcement Amidst Coronavirus Pandemic

On February 5, 2018, the Government Accountability Office, a nonpartisan investigative arm of Congress, found that there are huge gaps in regulation of assisted living facilities. The report, entitled “Medicaid Assisted Living Services: Improved Federal Oversight of Beneficiary Health and Welfare is Needed,” comes on the heels of years of discussion as to whether assisted living facilities are sufficiently regulated by individual states, or whether further federal oversight is warranted.

The suggestion of the need for federal regulation of assisted living came from GAO’s finding that more than $10 billion a year is spent from federal and state funds for assisted living services for more than 330,000 Medicaid beneficiaries. With demand for additional Medicaid assisted living funding, and the potential increase in demands of the senior population in the next 5 years, these numbers will continue to rise significantly as noted by the GAO: “Medicaid spending on long-term care is significant, representing about one quarter of Medicaid spending annually and is expected to grow with an aging population.” Continue reading “GAO Report: Assisted Living Providers & Federal Regulation”

February 19, 2018 by Neville M. Bilimoria

Illinois Posts Medicaid Managed Care Performance Report

In January 2018, The Office of the Auditor General for the State of Illinois published its Performance Audit (“Audit Report”) of Medicaid Managed Care Organizations (“Medicaid MCOs”) for Fiscal Year 2016. What was unleashed was a startling review of the Medicaid MCOs’ performance over FY 2016 in administering the Medicaid Program for what was then called the Integrated Care Program (“ICP”) or Medicare/Medicaid Alignment Initiative (“MMAI”) Programs. You may recall these ICP and MMAI Medicaid MCO programs in Illinois involved almost a dozen Medicaid MCOs that covered about 70% of the State of Illinois Medicaid recipients.

The Audit Report played into health care providers’ deepest fears in Illinois: showing that Medicaid Managed Care may not be working as it was intended; namely, to reduce costs and improve quality of care in the Medicaid Program in Illinois. For example, long term care providers in Illinois had to fight tooth and nail with Medicaid MCOs under the ICP and MMAI programs, experiencing cumbersome Medicaid contracts, denied claims, delayed claims, and worse yet, a prior authorization administration problem (administrative MCO delay) which in some instances prevented residents from receiving care timely. Most, but not all, of those issues are still being resolved, but providers had hoped that there was a good reason for this madness involving Medicaid MCOs: better and lower cost care for Medicaid beneficiaries. Continue reading “Illinois Posts Medicaid Managed Care Performance Report”

January 30, 2017 by Neville M. Bilimoria

Cybersecurity and Emergency Preparedness for Long-Term Care

On January 13, 2017, the Centers for Medicare and Medicaid Services (“CMS”) sent a Memorandum (“Memo”) to State survey agency directors encouraging long-term care providers to “consider cybersecurity when developing or reviewing their emergency preparedness plans.” The Memo was a follow-up to the CMS long-term care emergency preparedness rule published in the Federal Register on September 16, 2016: “Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers.” Under that final rule, long-term care facilities were held to additional standards, including requirements to have emergency and standby power systems in place. Nursing homes were also required to create plans regarding missing residents that could be activated regardless of whether the facility has activated its full-scale emergency plan. The rule was spurred on by recent flooding in Baton Rouge, Louisiana, and other emergency disasters, such as Hurricane Sandy and the 2009 H1N1 pandemic, according to CMS.

Whether State surveyors will actually enforce lack of cybersecurity plans for emergency preparedness as violations remains to be seen from this Memo. But certainly, a State survey agency could impose deficiencies for failure to have a proper cybersecurity plan and/or a proper cybersecurity back‑up plan as part of a facility’s emergency preparedness going forward. It is not clear why CMS decided to send this encouragement Memo three months after the Final Rule on emergency preparedness, but it likely has something to do with the fact that 2016 was a banner year for HIPAA privacy infractions and HIPAA enforcement by the Office for Civil Rights (“OCR”), the entity responsible for HIPAA compliance. In 2016, payouts for HIPAA violations skyrocketed to record heights of $23.51 million from OCR enforcers against health care providers. That number was triple the previous record of almost $7.94 million in payouts in 2014, followed by $6.19 million in payouts in 2015.

Continue reading “Cybersecurity and Emergency Preparedness for Long-Term Care”

February 3, 2015February 27, 2015 by Philip H. Lebowitz

Health System Integration and Antitrust Laws on Collision Course

Health systems attempting to fulfill the mandate of integrating hospitals and physicians may find themselves accused of going too far. Although the Affordable Care Act, shared savings, gainsharing and other alternative payment methodologies have made integration of physicians, hospitals and other providers an operational goal, success in reaching that goal may be challenged by private antitrust actions.

In a recent Florida federal court decision, the antitrust complaint of “several of Southern Brevard County’s physicians and physicians practice groups” was held to have stated a monopolization claim against Health First, Inc. and three of its wholly-owned subsidiaries — an insurer, a hospital and a physician practice group. Essentially, by fully integrating its business, and incentivizing in-network referrals and managed care pricing, Health First became vulnerable to claims of tying, exclusive dealing, price discrimination and monopolization.

Continue reading “Health System Integration and Antitrust Laws on Collision Course”

July 10, 2013September 10, 2014 by Duane Morris

IRS Publishes Notice Providing Transition Relief in Response to ACA Delay

As outlined in our prior Alert, the Obama administration recently announced a one-year delay in the effective date of three key provisions of the Patient Protection and Affordable Care Act (ACA): (1) the annual information reporting requirements applicable to insurers, self-insuring employers and certain other providers of minimum essential coverage, (2) the annual information reporting requirements applicable to large employers (i.e., those with 50 or more full-time equivalent employees); and (3) the employer shared responsibility provisions. These provisions of the ACA will now be fully effective for 2015.

Click here to read the full Alert, which provides highlights from the IRS Notice 2013-45.

July 3, 2013September 10, 2014 by Duane Morris

Obama Administration Delays ACA Employer Reporting and Penalties for 2014

In a July 2, 2013, blog posting on the U.S. Department of the Treasury website titled “Continuing to Implement the ACA in a Careful, Thoughtful Manner” the Obama administration announced that it will provide an additional year before the Patient Protection and Affordable Care Act’s (ACA) mandatory employer and insurer reporting requirements begin. These reporting requirements, which were originally scheduled to go into effect on January 1, 2014, will now be delayed until January 1, 2015. More significant is the fact that the Obama administration acknowledges that the delay in the reporting requirements will make it impractical to determine which employers owe shared responsibility payments for 2014. Therefore, the employer shared responsibility provisions will also not be applicable until 2015.

Click here to read the full Alert.

June 28, 2012September 10, 2014 by Duane Morris

Affordable Care Act Declared Constitutional … For the Most Part

On June 28, 2012—the last day of the 2011 term—the U.S. Supreme Court ruled in a 5-4 decision, with Chief Justice Roberts writing for the majority, that the individual mandate provision of the Patient Protection and Affordable Care Act (the “Act”) is constitutional based on Congress’s taxing power. A key passage read from the bench by Chief Justice Roberts is as follows:

Continue reading “Affordable Care Act Declared Constitutional … For the Most Part”

June 28, 2012September 10, 2014 by Duane Morris

Supreme Court Upholds ACA’s Individual Mandate

On June 28, 2012, the United States Supreme Court upheld the Affordable Care Act’s (“ACA”) individual mandate in a long-anticipated decision on the constitutionality of the ACA. The Court upheld the ACA’s individual mandate under Congress’ taxing power, and also held that the lawsuits challenging the ACA were not barred by the anti-injunction act. The Court, however, found the ACA’s Medicaid expansion unconstitutional because it “threaten[ed] States with the loss of their existing Medicaid funding if they decline to comply with the expansion.”

The full slip opinion may be accessed here.

May 9, 2012September 10, 2014 by Duane Morris

CMS Delays Data Collection Under ACA’s Physician Payments Sunshine Act to January 1, 2013

On May 3, 2012, the Centers for Medicare and Medicaid Services (CMS) officially announced that it will delay data-collection and reporting requirements under the Patient Protection and Affordable Care Act’s (ACA) Physician Payments Sunshine Act (the “Sunshine Act”), due in part to the large number of comments received in response to CMS’s December 19, 2011, proposed rules. Data collection by CMS will not start until at least January 1, 2013.

Continue reading “CMS Delays Data Collection Under ACA’s Physician Payments Sunshine Act to January 1, 2013”

April 13, 2012September 10, 2014 by Duane Morris

CMS Releases New Medicare Advantage and Medicare Part D Rules, Implements Several Provisions of ACA

On April 12, 2012, the Centers for Medicare & Medicaid Services (“CMS”) released a final rule with comment period (“Final Rules”) implementing changes to the Medicare Advantage program and Medicare’s prescription drug benefit program, referred to as Medicare Parts C and D, respectively. Part C and D plan sponsors and other participants should carefully review the changes, particularly those related to increased transparency and exclusion from Parts C and D. The Final Rules are the latest effort by CMS to improve accountability, transparency, and effectiveness of the Medicare program.

Continue reading “CMS Releases New Medicare Advantage and Medicare Part D Rules, Implements Several Provisions of ACA”