GOOD MORNING
TODAY’S LEGAL MENU…
Audits and Appeals (alphabet soup)
60 Day Salad (don’t eat: find & send)
Good Faith Price Estimates (sma$hed)
Rumors, Lies, & the deceased (no calories)
APPEALING THE BIG MAC ATTACK
Redetermination
Reconsideration
ALJ
Medicare Council
Federal Court
THE ONLY THING PEOPLE
HATE MORE THAN LOSTING
MONEY…
Is the
person who lost it for them.
SO…..LET US COUNT
THE CALENDAR DAYS…
Redetermination request …< 120 days
Reconsideration request … < 180 days
ALJ? … < 60 days
BE AWARE
To stay recoupment, you must file the
redetermination appeal within 30 days.
To stay recoupment, you must file the
reconsideration appeal within 60 days.
There is no stay at the ALJ appeal.
Recoupment begins.
BE CAREFUL….
Even though you have
stayed recoupment…..
Interest on the claimed
over- payment continues to
accrue.
YOU MAY NEED A
FINANCIAL STRATEGY
Discuss with the client the financial implications
of 9.75% compounded interest due on the claimed
overpayment, should their appeal(s) fail …
vs.
Repayment with the appeal, qualifying the client
for § 935 interest on the recouped dollars should
they prevail.
ALTERNATIVE STRATEGY
CONSIDER AN ERS…
That is an…..Extended Repayment Schedule
Runs from the date of the overpayment letter.
Requires considerable documentation of hardship
from the provider.
Interest continues to accrue.
Typically limited to no more than
60 months.
AND THEN…THE
Many audits and post-payment findings rely on a
statistical sampling methodology.
Permitted when the MAC’s educational intervention
has failed to correct payment errors, or there is a
sustained or high level of payment error.
TO APPEAL THIS
METHODOLOGY….
You need to hire one of these……
ALJ APPEALS…42%
SUCCESS RATE IN 2014
There is a required “amount in controversy”
There is a delay in assigning the appeals
No Section 935 stay of recoupment
If assigned but not heard < 90 days, you may
escalate to the Medicare Appeals
Council…but
not a practical strategic move
SETTLEMENT…REALLY?
Pilot project through Office of Medicare Hearings
and Appeals (OMHA)
Phase I and II limited to Part B appeals
Named: Settlement Conference Facilitation (SCF)
Lengthy list of eligibility requirements
AND NOW…THERE IS
Phase III of the SCF begins for
PART A providers…
There are several criteria to
qualify for participation…
You must submit a PART A
expression of interest
SPEAKING OF STRATEGY …
Be nice.
These people are not frightened of you, nor are
they impressed.
These people have lawyers….courts….statutes and
rules, case law…..and considerable inertia.
These people have something your client wants or
needs.
These people have ways to make a provider
….hurt.
WHAT DO I WANT FIRST?
A relationship with one or more of those people.
Phone number, remember their birthday. Talk
weather.
You must somehow let them understand …. that
you understand…..that they have a point.
Even if you don’t really believe that.
You want to guide this relationship into a collegial
one, working together to help this provider perform
in a more compliant manner.
Acknowledge the education that accompanies the
findings. Install a coding and billing compliance
program.
THE 60 DAY RULE
REPORT AND RETURN …
Within 60 days of which the
overpayment was identified….
OR
By the date any corresponding cost
report is due……
Whichever is later.
WHEN IS IT “IDENTIFIED?”
WHEN…
“…a person has or should have, through the
exercise of reasonable diligence, determined that
the person has received an overpayment and
quantified the amount of the overpayment.”
WHAT IS ... REASONABLE
DILIGENCE?
“Proactive compliance activities
conducted in good faith by
qualified individuals to monitor
for the receipt of overpayments,”
OR…
“…investigations conducted in good faith and in
a timely manner by qualified individuals in
response to obtaining ‘credible information’ of a
potential overpayment.”
CMS SAYS :
That part of “identification” – which triggers the 60
day time period – is quantifying the amount.
And how long should “reasonable diligence” take?
8 months: 6 months as the benchmark for a timely
investigation, and 2 months for reporting and
returning…unless it is an unusually complex
investigation.
Under the final rule, overpayments must be reported
and returned only if a person identifies the overpayment
within 6 years of the date the overpayment was received.
The 6 year look back period is measured from the date
the person “identifies” the overpayment.
PRICE TRANSPARENCY LAW
OHIO REVISED CODE §5162.80
“A provider of medical services…shall provide in
writing, before products, services or procedures
are provided,
a reasonable, good faith estimate of all of the
following for the provider’s non-emergency
products, services or procedures:
 The amount the provider will charge the patient
or the consumer’s health plan issuer for the
product, service, or procedure
 The amount the health plan issuer intends to
pay…
 The difference, if any, that the consumer or other
responsible party for the consumer’s care would
be required to pay…
DECEASED PATIENT COLLECTIONS
& OTHER GRAVE CONCERNS
The ability to collect a deceased patient’s debts to a
facility or other creditor is limited by Ohio law.
All claims must be presented in writing within 6
months after the death of the resident.
The game: sometimes the opening of an estate is
intentionally delayed until after the 6 month
period to perfect a claim against a decedent’s estate.
MONITOR THE
CALENDAR !
How can claims be monitored
so that your claim can be
timely served?
What are the procedures for
effective monitoring?
WHAT DO WE DO?
Is the needed information
accessible?
What should the notice of
claim include?
Does the claim have to be filed
with the probate court?
BUT……………..
What if it appears an estate will not
be opened within 6 months of the
death of the patient?
LASTLY…
Consideration should be given to opening an
estate for a deceased resident whenever the
resident’s account balance is greater than
$10,000.
HOW TO COMPLY WITH HIPAA?
YOU HAVE PRIVACY...
HOW ABOUT SECURITY ?
The HIPAA SECURITY RULE…
COVERED ENTITIES ARE RESPONSIBLE TO
ENSURE THE CONFIDENTIALITY, INTEGRITY,
AND AVAILABILITY OF ELECTRONIC
PROTECTED HEALTH INFORMATION (“ePHI”)
IS YOUR DATA SECURE?
This applies to information your facility creates,
receives, maintains, or transmits to others.
You are required to identify reasonably anticipated
threats or hazards and to take action to protect the
data from such threats.
The law stipulates that certain actions are required,
and others are addressable.
HOW LARGE WOULD YOU LIKE YOUR
FINE?
Recent settlements by the Office of Civil Rights (“OCR”)…
• Advocate Health Care Network settlement regarding multiple
breaches or loss of computers compromising 4 million patient
records including financial information. Fine: $5,500,000.
• WellPoint, Inc. settled claims that it left ePHI of 612,402 individuals
accessible to the public over the internet. Fine: $1,700,000.
• Affinity Health Plan left the ePHI of 344,579 individuals on the
hard drive of a copy machine that was leased and not wiped upon
return. Fine: $1,215,780.
• Idaho State University settled a breach violation with OCR due to a
disabled computer fire-wall, opening the medical records of 17,500
patients to public view … for 10 months. Fine: $400,000.
Retain professional assistance and
perform and document the required
Security Risk Analysis. It is required
under the law, and should you report a
breach to OCR, and they audit you, you
will be fined merely for not having
performed the risk analysis.
RANSOMWARE
The Office of Civil Rights (“OCR”) has issued new
guidance on a ransomware attack:
When ePHI is encrypted as a result of an
ransomware attack, a breach has occurred because
the ePHI encrypted has been acquired, and thus is
a “disclosure” not permitted under the HIPAA
Privacy Rule.
CONSIDER THE IMPLICATIONS….
The mere act of encrypting the data qualifies as an
acquisition or disclosure, regardless of whether the
perpetrator can view the PHI, read its contents or
retain the information in any way.
Can there be an “acquisition” or “disclosure” by
computer code if that information is not accessible
by an unauthorized person?
OCR answer: YES.
David E. Schweighoefer
Brouse McDowell
388 South Main Street, Suite 500
Akron, Ohio 44311-4407
330-535-5711 – Phone
330-253-8601 – Fax
www.brouse.com
[email protected]
COL L ECTIV E EX P ERIENCE . COL L A BORATIV E CULTURE . CRE ATIV E SOLU TION S