FutureFocus July 25, 2018 Physician Self-Referral Laws Are Antiquated

Lisa Remington

In this week’s FutureFocus, we discuss the Physician Self-Referral Law affecting all post-acute providers. Enacted in 1989, the Stark Law have turned into an outdated set of legal requirements inhibiting and blocking the ability to move into value-based care. This is important to learn about as it will change our future healthcare delivery system. We also take a look at anti-kickback issues in palliative care, and a report by the OIG examining home health agency low utilization claims and hospice benefit charges.

Lisa Remington, President, Remington Health Strategy Group

By: Ronald M. Schwartz, Contributing Writer, The Remington Report

The Department of Health and Human Services Office of Inspector General recently revised its “Active Work Plan” to include two areas involving post-acute care:

  • Medicare home health claims for services with 5 to 10 Skilled visits, which includes Low Utilization Payment Adjustments (LUPA); and,
  • Medicare payments made outside of the hospice benefit.

Below is OIG’s rationale for these reviews, both scheduled for completion in FY 2019.

For the HHA claims review: “Since OIG has not reviewed payments for LUPA, we will review supporting documentation to determine whether home health claims with 5 to 10 skilled visits in a payment episode in which the beneficiary was discharged home met the conditions for coverage and were adequately supported as required by Federal guidance.”

OIG explains that if an HHA provides four or fewer visits from a skilled service provider that are included under home health coverage (excluding visits providing only services listed in 42 CFR § 409.49, or “Excluded services”) in an episode, the HHA will be paid a standardized per-visit payment based on visit type. Such payment adjustments, and the episodes themselves, are called Low Utilization Payment Adjustments (LUPA). Once a fifth visit is provided, an HHA will instead receive a full 60-day payment based on episode of care.

Medicare Payments Made Outside of the Hospice Benefit

Regarding the hospice review: “Prior OIG reviews have identified separate payments that should have been covered under the per diem payments made to hospice organizations” OIG notes. The review involves producing summary data on all Medicare payments made outside the hospice benefit, without determining the appropriateness of such payments, for beneficiaries who are under hospice care. “In addition, we will conduct separate reviews of selected individual categories of services (e.g., durable medical equipment, prosthetics, orthotics and supplies, physician services, outpatient) to determine whether payments made outside of the hospice benefit complied with Federal requirements.”

According to 42 CFR 418.24(d), in general, a hospice beneficiary waives all rights to Medicare payments for any services that are related to the “treatment” of the terminal condition for which hospice care was elected. The hospice agency assumes responsibility for medical care related to the beneficiary's terminal illness and related conditions. Medicare continues to pay for covered medical services that are not related to the terminal illness.

Other Reviews OIG Recently Added to its Active Work Plan Are:

* CMS's Contingency Planning for Information Technology Systems; Denials and Appeals in Medicare Part D; Inappropriate Denial of Services and Payment in Medicare Advantage; National Background

* Check Program, Assessment of Concluded State Grant Programs in 2017; Medicare Part B Payments for End-Stage Renal Disease Dialysis Services; State and Territory Response and Recovery Activities for the 2017 Hurricanes; Accountable Care Organizations' Strategies Aimed at Reducing Spending and Improving Quality; and, Denials and Appeals in Medicare Part C.