310 Rules of MedicareJust because it has a code doesn’t mean it’s covered.Just because it’s covered doesn’t mean you can bill for it.Just because you can bill for it doesn’t mean you’ll get paid for it.Just because you’ve been paid for it doesn’t mean you can keep the money.Just because you’ve been paid once doesn’t mean you’ll get paid again.
410 Rules for MedicareJust because you got paid for it in one state doesn’t mean you’ll get paid in another state.You’ll never know all the rules.Not knowing the rules can land you in the slammer.There’s always somebody who doesn’t get the message.There’s always somebody who gets the message and ignores it.
5DSH Rule For FFY 2014 Effective Federal Fiscal Year 2014 New DSH formula25% based on current formula75% based on uncompensated care
7DSH Uncompensated Care Factor 175% of amount which would have been paid under old DSH formulaCMS estimates this to be $9.25 billionDSH Payment under old rule = $12.34B x 75% = $9.25B
8DSH Uncompensated Care Factor 21 minus percent change in uninsured populationCMS estimates this to be 88.8%Uninsured percentages based on CBO estimatesUninsured in 2013 (based on 2010 report) = 18%Estimate for 2014 published in Feb 2013 = 16%1 – [( )/.18] = = .889 less statutory reduction .001 = .888$9.2535B x .888 = $8.217B
9Medicare DSH Reimbursement Source: CMS, Office of the Actuary.
10DSH Uncompensated Care Factor 3Percent of individual hospital uncompensated care costs to total uncompensated care costsThis represents each hospital’s “piece of the pie”CMS discusses the use of S-10 dataCMS indicates S-10 data is not yet appropriate to useCMS proxy for uncompensated care is to count low income patientsCMS to use Medicaid eligible days and SSI days as a proxy for uncompensated careHospitals in States which have accepted Medicaid expansion will benefit compared to hospitals States without Medicaid expansionCannot be appealedIf at audit your % goes down, paybackIf it goes up, nothing
11Issuance Of The NPRs NPR’s: Being issued or have been issued for fiscal years 2007, 2008, and 2009Various issues that may need to be appealed or reopened in the future:Disproportionate Share Hospital (DSH) CalculationSSI percentage Ratios (SSI%) – Medicare ProxyMedicare Part C DaysDual Eligible Days – Exhausted Days and Medicare Secondary/No Pay DaysSystemic ErrorsDSH Eligible Days – Medicaid Proxy
12Issuance Of The NPRs: Recommendations Schedule deadlines for ReopeningsThree (3) years from the NPR dateSchedule deadlines for Appeals180 days from the NPR dateBoard must receive Provider’s request no later than 180 days after the Provider received the determination being appealedProvider is presumed to have received the determination 5 days after issuance, unless established to the contrary by a preponderance of the evidence. (42 C.F.R. § (a)(1))Date of receipt by the Board is date of delivery if delivered by a nationally-recognized courier, or the date stamped “received” if delivered otherwise, unless established to the contrary by a preponderance of the evidenceDetermination of date of receipt is not subject to appeal
13Issuance Of The NPRs: Recommendations Order MEDPAR Data through the Centers for Medicare and Medicaid Services (CMS)Data Usage Agreement (DUA) processAppeal your NPRs for self-disallowed items or items adjusted during auditWhether through an Individual Appeal or Group AppealJoin Group AppealsStrength in numbersMay not have a choice
14The Appeals GameThere are four (4) players in the Medicare cost report appeals arenaThe ProviderAppeals adjustmentsThe MACDefends adjustmentsThe PRRBStrong interest in docket managementIf a case can be dismissed, it will be dismissedThe Courts
15Jurisdictional Challenges The PRRB is currently questioning jurisdiction when a provider appeals an issue not adjusted or protested for all cost reporting periods ending on or after December 31, 2008The PRRB is generally denying jurisdiction (more discussion to follow)Need to amend cost reports that have not had an NPR issuedMAC reluctant to amend cost reports for protest item onlyProtest – It may be your only avenue to appeal an issue
16CMS Uninsured Proposed Rule 2012 Expands “Uninsured” definition from person without coverage to service without coverageExamples: limited coverage, or limited coverage programs (Indian Health), exhausted benefits, lifetime benefit expiration, etc.Does not cover deductible/patient responsibility bad debt, non-medically necessary, prisonersMore consistent with pre-MMA definitionMust be an inpatient/outpatient health care service
17Recent Legal Update – Trouble’s Brewing Todd Prine, Director
18Topics for Today’s Discussion Allina and Beyond: Who’s On FirstDanbury: Tightening the ScrewsProtest, Protest, Protest
20Allina Procedural History Issue:Whether enrollees in Part C are entitled to benefits under Part A, such that they should be counted in Medicare fraction, or, if not entitled to Part A, should they be included in Medicaid fraction.Argued February 7, 2014 before United States Court of AppealsDecided April 1, 2014Affirmed in-part, reversed in-part lower court decision
21Allina Procedural History Pre-2003 – Part C patients not entitled to benefits under Part Ainclude in Medicaid fraction2003 – Proposed rule “clarifying that once beneficiary elects … Part C … should be included in the count of total patient days in the Medicaid fraction …”2004 – Secretary mandated that Part C beneficiaries to be counted in Medicare fractionproposed effective 2005, CMS issued correction adopting for 2007Court decision:CMS pulled a “switcheroo”Clarify as used in 2004 would be clarifying “then-existing policy excluding Part C days from Medicare fraction”2003 notice of proposed rulemaking inadequate, not a logical outgrowthNo opportunity for public commentNo disclosure of critical information (“financial impact”)Held:Notice of rulemaking deficient – VACATE RULEReversed order to recalculate
22Allina Medicaid Fraction Medicare Fraction Eligible Medicaid Days Entitled Part A + Entitled to SSITotal Patient DaysTotal Patient Days Entitled to Part ACMS options:Recalculate DSH <2013New regulation adopting 2004 “clarification”Continue to litigate 2004 positionAppeal Allina to Supreme CourtProvider options:Continue protesting Part C on Cost ReportMedicare ProtestMedicaid ProtestContinue PRRB AppealsContinue Litigation
24Danbury Arguments Decided by PRRB – May 23, 2014 PRRB ruled in favor of MAC (surprise!!!!)Issue: Whether the PRRB has jurisdiction over Medicaid days when there was no adjustment?Provider ContentionMAC ContentionClaimed tantamount to Bethesda “self-disallowance”futile, no support dataNo adjustment or protest item on cost reporti.e., no adjustmentno protestData not available from State to validate at cost report filingProvider has responsibility of submitting complete and accurate data on cost reportNot CMS responsibility to collect Medicaid data – It’s yours!!cited PRRB rule 7.2ARequires concise statementNO JURISDICTION
25Danbury HOWEVER… PRRB Decision Obligation to submit eligible day information when filing cost reportCongress did not intend additional reporting mechanism (state eligibility)Provider has obligation as part of year end settlement to prove to MAC Medicaid days wrongProvider has obligation to claim dissatisfactionHOWEVER…PRRB acknowledges State verification might not be available for yearsPractical impediment
26DanburyHOWEVER…Administrator historically held CMS did not adjust/acknowledge for impedimentAkin to Bethesda: legal impediment standard, thus no adjustment required to meet jurisdiction
27Danbury THUS… No State data available => dissatisfaction!!! Bethesda invoked, aligns with PRRB Rule 7Administrator does not concede BethesdaProvider could have used own data (no state verification necessary)Use estimatesPRRB discussion (problems with including unverified Medicaid days in cost report filing)Raise false claims issueHow do you accurately estimateReopening’s are discretionaryFutility determine at time of filing
28Danbury JURISDICTION DENIED!! HOWEVER… Provider failed to establish practical impedimentJURISDICTION DENIED!!Danbury Lessons:Include protest item on cost report filingAmend cost report if possible to include protestFile appeal/reopening of adjustmentIF YOU HAVE MEDICAID DAYS APPEAL PENDING SEE ALERT 10 – DEADLINE FOR RESPONSE JULY 22, 2014.
29Summary of Lessons Learned AllinaCMS unsure what to do with Part C Days for prior yearsProtest to remove from Medicare Proxy / include in Medicaid Proxy2013 forward appears to fall in Medicare ProxyCourts did not strike legitimacy of Part C daysViolation of APACourt did not order recalculationDanburyProtest Medicaid days on cost reportIf appeal pending without adjustment perfect jurisdictionSee Alert 10Bethesda losing steamStandards to invoke very high“‘cause” will not sufficePROTEST! PROTEST! PROTEST!
30* * * * * For more information please contact: Manie Campbell –Todd Prine –CampbellWilson, LLP15770 Dallas, Parkway, Suite 500Dallas, TX 75248(214)* * * * *