EHR Incentive Program Meaningful Use Stage 1 Updated

CMS has recently published a tip sheet consolidating for eligible professionals and hospitals the revisions made to the Stage 1 meaningful use measures that are effective in 2013.  These changes modify the following meaningful use objectives:

  • Public Health Reporting Objectives
  • Electronic Exchange of Key Clinical Information
  • Computerized Physician Order Entry (CPOE)
  • Record and Chart Changes in Vital Signs
  • Electronic Prescribing
  • Electronic Copy of and Electronic Access to Health Information (changes only applicable starting in 2014)

Some of the changes in the measures are required, while others are optional for 2013 but become required for 2014.  To view the Stage 1 changes tip sheet click here.

At the same time CMS also revised its Stage 1 Meaningful Use table of contents and tip sheets for each objective/measure for eligible professionals and hospitals/CAH.

If you have questions regarding the Medicare or Medicaid EHR Incentive Programs or meaningful use generally please contact Elana Zana.

OIG Updates its Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs

On May 8, 2013, the OIG issued an updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs (the “Updated Special Advisory Bulletin”).  The Updated Special Advisory Bulletin replaces and supersedes the OIG’s 1999 Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs.

The Updated Special Advisory Bulletin advises that the effect of an OIG exclusion is that the provider will receive no Federal Health care program payment for any items or services furnished by an excluded person or at the medical direction or on the prescription of an excluded person.  The prohibition on payment applies to all methods of Federal health care program payment.  It also extends to items or services beyond direct patient care.  Accordingly, OIG says that an excluded person is prohibited from serving in an executive or leadership role (i.e., as the CEO or CFO, general counsel, director of health information management or director of human resources) for a provider that furnishes items or services payable by Federal health care programs and is prohibited from providing other types of administrative and management services (i.e., health IT services and support, strategic planning, billing/accounting, staff training and human resources).

OIG urges providers to review each job category and contractual relationship to determine whether the item or service being provided is directly or indirectly, in whole or in part, payable by a Federal health care program.  If it is, OIG advises the provider to screen everyone that performs under that contract or category.  This would include, for example, screening nurses provided by staffing agencies or physician groups that contract with hospitals to provide ER coverage, and billing or coding contractors.  OIG warns that relying on the screening conducted by the contractor may not always be sufficient to protect the provider from CMP liability.

The Updated Special Advisory Bulletin warns that providers who arrange or contract with an excluded person face potential civil monetary penalties (“CMPs”) of up to $10,000 for each item or service furnished by the excluded person for which payment is sought, in addition to an assessment of up to three times the amount claimed and program exclusion.  OIG states that CMP liability would apply to the furnishing of all of the categories of items or services that are violations of an OIG exclusion, including direct patient care, indirect patient care, administrative and management services, and items or services furnished at the direction or on the prescription of an excluded person when the person furnishing the services either knows or should know of the exclusion.  Exclusion violations may also lead to criminal prosecutions or civil actions (i.e., claims under the False Claims Act).  OIG urges providers to use OIG’s self-disclosure protocol to self-disclose the employment of or contracting with an excluded person.

To best minimize risk of overpayment and CMP liability, OIG suggests that providers check the OIG’s List of Excluded Individuals and Entities (the “LEIE”) monthly.  OIG also recommends that providers use the LEIE as the primary source of information on exclusion.

To access the Updated Special Advisory Bulletin, click here.

If you have questions regarding exclusions from federal health care programs or provider contracting generally please contact Carrie Soli.

Sequester Payment Reductions to Medicare EHR Incentive Payments

CMS has confirmed that the mandatory reductions in federal spending aka the sequester will affect the Medicare EHR Incentive Program payments made in 2013.  Accordingly, all Medicare EHR Incentive Program payments made to hospitals and eligible professionals will have a 2% reduction.  This reduction applies to any hospital or eligible professional that participates in the program with a reporting period ending on or after April 1, 2013. 

The 2% reduction will not apply to the Medicaid EHR Incentive Program.  Therefore, those hospitals and eligible professionals expecting Medicaid EHR Incentive Program payments will receive the full amount without any sequester related reduction. 

If you have questions regarding the Medicare or Medicaid EHR Incentive Program please contact Elana Zana.

New Court of Appeals Decision Provides Guidance on Medicaid Spenddown Requirements

The recent appellate decision in Multicare v. State of Washington Department of Social and Health Services (DSHS) sheds light on how hospitals should use a patient’s “spenddown” in the billing process for the Medicaid Medically Needy (MN) program.

The MN program assists low-income families with medical costs.  A family can qualify for the MN program if its income is less than a certain amount during a specific base period.  A family that exceeds the maximum income level can still qualify for the program if it pays medical expenses in an amount equal to or over the excess income.  For example, if a family’s income is $500 over the maximum level, it can still qualify for the MN program if it spends $500 on medical expenses.  This process of using excess income is called the “spenddown.”

In the Multicare case, DSHS alleged that the hospital billed the MN program without deducting the spenddown liability of patients.  According to DSHS, this billing practice resulted in overpayments to the hospital. The hospital argued that the spenddown requirements were an enrollment qualification, not a deduction from DSHS’s payments.  The Washington State Court of Appeals, however, sided with DSHS and found that hospitals must factor in a patient’s spenddown to determine DSHS’s payment obligations.

The Court provided examples of how to use a patient’s spenddown, including the following:  A patient has a spenddown liability of $500 and total hospital charges of $450.  The total charges would apply to the spenddown liability, resulting in a new spenddown of $50.  Since a spenddown remains, the patient is not enrolled in the MN program and DSHS has no payment obligations for the services provided by the hospital.  Instead, the patient would owe the Hospital the $450.

Hospitals should review their Medicaid billing policies to ensure compliance with the Multicare decision.  You can view the decision here.  If you have questions or would like to follow-up, please contact Don Black or Casey Moriarty.

OIG Approves Gift Card Program for Medicaid Patients

According to a new advisory opinion issued by the U.S. Department of Health & Human Services’ Office of Inspector General, healthcare providers may be able to use free gift cards to encourage patients in capitated Medicaid managed care plans to receive clinical services.

In the opinion, a federally qualified health center (FQHC) asked the OIG whether it could offer free grocery store gift cards to certain patients in capitated Medicaid managed care plans.  The goal of the gift card program was to incentivize patients to receive health screenings and other clinical services at the FQHC.

The OIG stated that, in general, the Anti-Kickback Statute prohibits Medicare and Medicaid providers from providing “giveaways” to patients in order to induce them to receive clinical services.  However, the OIG approved this specific gift card program because the only eligible patients were enrolled in capitated Medicaid plans.  Under these plans, the FQHC’s reimbursement would not be based on the nature or number of services that the FQHC provides to the patients. Thus, the gift card program would not result in increased costs to the Medicaid program.

The opinion represents an interesting exception to the general rule that providers should not provide free goods and services to patients to  incentivize them to receive clinical services.  View the full opinion.

CMS Posts Meaningful Use Stage 2 Specification Sheets

Looking for more detail on the Meaningful Use Stage 2 requirements?  CMS has conveniently created specification sheets for each Meaningful Use measure.  These sheets explain in detail each numerator and denominator eligible professionals and hospitals much achieve to be eligible for the EHR Incentive Payments.  The sheets also contain the certification and standards criteria issued from the Office of the National Coordinator.

For Eligible Professionals click here.

For Eligible Hospitals and Critical Access Hospitals click here.

For assistance with the EHR Incentive Programs and meaningful use in general please contact Elana Zana.

Comparison of Stage 1 vs Stage 2 Meaningful Use

Sifting through the hundreds of pages of new rules can be overwhelming.  Luckily, CMS has provided comparison charts to help navigate the meaningful use changes coming our way with Stage 2.  Along with the new rules, CMS clarified that the earliest Stage 2 meaningful use is effective is fiscal year 2014 for hospitals and calendar year 2014 for eligible professionals (more on 2014 to come in future posts).

Click on the links below to see the comparison charts:

Stage 2 Meaningful Use – Eligible Professionals: 17 core objectives, 3 of 6 menu objectives, 9 of 64 clinical quality measures.

Stage 2 Meaningful Use – Hospitals & CAHs: 16 core objectives, 3 of 6 menu objectives, 16 of 29 clinical quality measures.

For more information about meaningful use and the EHR Incentive Programs please contact Elana Zana.

CMS Issues 3 FAQs on Stage 2 Rules and the Medicaid EHR Incentive Program

CMS has responded to several questions following the issuance of its Stage 2 Meaningful Use Final Rule.  Along with publishing new meaningful use guidelines, the Final Rule adds new provisions regarding the calculation of patient volume for Medicaid providers.  CMS has recently published these new FAQs, some of which take effect immediately, while others will start in 2013, giving the states some time to update their guidance.  These new rules will affect all eligible professionals, regardless of their stage in participation in meaningful use.  To see additional FAQs click here.

Medicaid changes to patient volume calculations 

Q: The EHR Incentive Programs Stage 1 Rule stated that, in order for a Medicaid encounter to count towards the patient volume of an eligible provider, Medicaid had to either pay for all or part of the service, or pay all or part of the premium, deductible or coinsurance for that encounter.  The Stage 2 Rule now states that the Medicaid encounter can be counted towards patient volume if the patient is enrolled in the state’s Medicaid program (either through the state’s fee-for-service programs or the state’s Medicaid managed care programs) at the time of service without the requirement of Medicaid payment liability. How will this change affect patient volume calculations for Medicaid eligible providers?  

A: Importantly, this change affecting the Medicaid patient volume calculation is applicable to all eligible providers, regardless of the stage of the Medicaid EHR Incentive Program they are participating in. Billable services provided by an eligible provider to a patient enrolled in Medicaid would count toward meeting the minimum Medicaid patient volume thresholds.  Examples of Medicaid encounters under this expanded definition that could be newly eligible might include: behavioral health services, HIV/AIDS treatment, or other services that might not be billed to Medicaid/managed care for privacy reasons, but where the provider has a mechanism to verify eligibility.  Also, services to a Medicaid-enrolled patient that might not have been reimbursed by Medicaid (or a Medicaid managed care organization) may now be included in the Medicaid patient volume calculation (e.g., oral health services, immunization, vaccination and women’s health services, telemedicine/telehealth, etc.).

Providers who are not currently enrolled with their state Medicaid agency who might be newly eligible for the incentive payments due to these changes should note that they are not necessarily required to fully enroll with Medicaid in order to receive the payment.

In some instances, it may now be appropriate to include services denied by Medicaid in calculating patient volume.  It will be appropriate to review denial reasons.  If Medicaid denied the service for timely filing or because another payer’s payment exceeded the potential Medicaid payment, it would be appropriate to include that encounter in the calculation.  If Medicaid denied payment for the service because the beneficiary has exceeded service limits established by the Medicaid program, it would be appropriate to include that encounter in the calculation.  If Medicaid denied the service because the patient was ineligible for Medicaid at the time of service, it would not be appropriate to include that encounter in the calculation.

Further guidance regarding this change will be distributed to the states as appropriate.

CHIP patients eligible to be included in Medicaid patient volume totals
Q: The Stage 2 Rule describes changes to how a state considers CHIP patients in the Medicaid patient volume total when determining provider eligibility. Patients in which kinds of CHIP programs are now appropriate to be considered in the Medicaid patient volume total?  

A: States that have offered CHIP as part of a Medicaid expansion under Title 19 or Title 21 can include those patients in their provider’s Medicaid patient volume calculation as there is cost liability to the Medicaid program in either case (under the Stage 1 Rule, only CHIP programs created under a Medicaid expansion via Title 19 were eligible). Patients in standalone CHIP programs established under Title 21 are not to be considered part of the patient volume total (in Stage 1 or Stage 2). This change to the patient volume calculation is applicable to all eligible providers, regardless of the stage of the Medicaid EHR Incentive Program they are participating in.

Changes to the base year of the Medicaid EHR Incentive Program for hospital incentive payment calculation 
Q: Are there any changes to the base year for the Medicaid EHR Incentive Program hospital incentive payment calculation?

A: Yes. Previously Medicaid eligible hospitals calculated the base year using a 12 month period ending in the Federal fiscal year before the hospital’s fiscal year that serves as the first payment year.  In an effort to encourage timely participation in the program, §495.310(g)(1)(i)(B) of the Stage 2 Rule was amended to allow hospitals to use the most recent continuous 12 month period for which data are available prior to the payment year. This change went into effect upon publication of the Stage 2 Rule.  Only hospitals that begin participation in the program after the publication date of the Stage 2 Rule (i.e., program years 2013 and later) will be affected by this change.  Hospitals that began participation in the program prior to the Stage 2 Rule will not have to adjust previous calculations.