The Centers for Medicare & Medicaid Services (“CMS”) announced a new initiative, the ACO Investment Model, on October 15, 2014.  Under the model, ACOs which are made up of “providers [who] lack adequate access to … capital” may receive additional funding from the CMS “to invest in infrastructure necessary to successfully implement population care management.” The eligibility criteria are as follows:

• The ACO must be accepted into and participate in the Medicare Shared Savings Program. The ACO’s first performance period in the Medicare Shared Savings Program must have started in either 2012, 2013 or 2014 or will start in 2016.
• The ACO has completely and accurately reported quality measures to the Medicare Shared Savings Program in the most recent performance year, if the ACO started in the Medicare Shared Savings Program in 2012, 2013 or 2014, excluding ACOs that will start in 2016.  The ACO has a preliminary prospective beneficiary assignment of 10,000 or fewer beneficiaries for the most recent quarter, as determined in accordance with the Shared Savings Program regulations.
• The ACO does not include a hospital as an ACO participant or an ACO provider/supplier (as defined by the Shared Savings Program regulations), unless the hospital is a critical access hospital (CAH) or inpatient prospective payment system (IPPS) hospital with 100 or fewer beds.
•  The ACO is not owned or operated in whole or in part by a health plan.
•  The ACO did not participate in the Advance Payment Model.

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Choosing a nursing home can be a daunting task for consumers who often have myriad questions regarding the quality of care available at the nursing homes in their areas. To help answer these questions, CMS has created the Nursing Home Compare website, which provides consumers with easy-to-compare ratings of nursing homes’ staffing, quality measures, and health inspections, as well as an overall rating, of each nursing home in the country. To help consumers make informed decisions about nursing home quality, CMS uses the Five Star Quality Rating System, by which CMS compares data from nursing home inspections, self-reports, and assessments.  Based on this information CMS calculates nursing homes’ star levels on a scale of one to five, with five stars being much above average and one star being much below average.

However, there has been concern over the accuracy of the self-reported data that CMS uses in calculating its star ratings. To improve the Five Star Quality Rating System, and to standardize the results, Congress recently passed the Improving Medicare Post-Acute Care Transformation Act (“IMPACT Act”). The IMPACT Act will require providers to submit standardized data to allow CMS to compare quality across different post-acute care settings, and will provide funding for the quarterly electronic submission of nursing home staffing information that is tied to payroll data. CMS will also increase both the number and type of quality measures used in the Five Star Quality Rating System. The first additional measure, starting January 2015, will be the extent to which antipsychotic medications are in use. Future additional measures will include claims-based data on re-hospitalization and community discharge rates. Continue reading…

12,915 complaints were reported in 2013 to the Department of Health and Human Services Office of Civil Rights (“OCR”) according to Illiana L. Peters, Senior Adviser for HIPAA Compliance and Enforcement.  Cozen O’Connor attended Ms. Peters’ presentation at the Safeguarding Health Information: Building Assurance through HIPAA Security conference on September 22-23, 2014.  The conference was hosted jointly by OCR and the National Institute of Standards and Technology (“NIST”).  Below are a few discussion points worth mentioning from the conference:

• Between September 2009 and August 31, 2014, OCR investigated 1176 reports involving breach of Protected Health Information (“PHI”) where more than 500 individuals were affected and approximately 122,000 reports affecting less than 500 individuals.
• According to Ms. Peters, 60% of the large breaches could have been prevented by encrypting the covered entities and business associates’ laptops and mobile devices.
• Theft and loss continues to be the most common cause of breaches but OCR expects that IT hacking will continue to rise as a significant breach risk.
• Since 2009, consumer complaints regarding HIPAA violations continue to rise.
• Covered entities and business associates should already have in place business associate agreements that have been updated for the Omnibus Rule.
• Business associates must comply with all of the HIPAA Security Rules applicable to covered entities, “PERIOD.”
• Given the known risks of hacking, theft and loss and the direct guidance from OCR, covered entities and business associates must recognize that inadequate security, inadequate physical and technical safeguards is not acceptable.
• OCR expects that covered entities and business associates will be familiar with recent corrective actions, resolution agreements such as Parkview, NYP/Columbia, Concentra, QCA, Skaget County, Adult & Pediatric Dermatology, P.C., and Affinity Health Plan, Inc.

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With little fanfare just before the Labor Day weekend, CMS announced a program in which it would enter into administrative agreements with eligible providers in exchange for the providers’ withdrawal of pending appeals (“Settlement Process”). This announcement follows massive backlogs in administrative appeals resulting from retroactive denials of inpatient claims by Medicare contractors, including recovery auditor contractors (“RAC”), as well as a lawsuit brought by the American Hospital Association challenging these delays. Under the Settlement Process, CMS is willing to pay “68% of the net allowable amount” for eligible claims within 60 days. According to CMS, eligible providers should submit requests to participate in the Settlement Process by October 31, 2014, and eligible providers may file for an extension of time to request a settlement if they are unable submit requests by the end of October. Although this Settlement Process holds promise for certain providers, it does not apply to all providers or all claims.

Eligible Providers

Only acute care hospitals and critical access hospitals may participate in the Settlement Process. The following providers are not eligible to participate:

• Cancer hospitals;
• Children’s hospitals;
• Inpatient rehabilitation facilities;
• Long-term care hospitals; and
• Psychiatric hospitals that are paid under the inpatient psychiatric facility prospective payment system.

CMS may exclude eligible providers from participating in this Settlement Process if they are subject to pending False Claims Act litigation or investigations.

Eligible Claims

Only the following claims are eligible:

• Claims for dates of admissions prior to October 1, 2013;
• Claims for patients that were not Medicare Part C enrollees; and
• Claims that are pending appeals of inpatient-status claim denials, which were rejected by Medicare contractors, including RACs.

An eligible provider may select the eligible claims it would like to settle, while continuing to appeal certain other claims.

For more information regarding the Settlement Process, please contact Mark Gallant, Chris Raphaely, or Ryan Blaney.