Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

On September 20, 2008, the Department of Health and Human Services, Office of Inspector (the "OIG") published in the Federal Register a supplemental compliance guidance for Nursing Facilities ( the "Guidance"). The purpose of the Guidance is to supplement its prior compliance program guidance for nursing facilities issued in 2000. According to the OIG:

"The new CPG emphasizes the importance of submitting accurate claims and discusses issues related to reporting resident case-mix data, therapy services, screening for excluded individuals and entities, and restorative and personal care services. The guidance also urges nursing facilities to consider the risks of improper kickback payments associated with their business arrangements including those involving free goods and services, as well as those with physicians and suppliers."

The OIG's expanded discussion in the Guidance of fraud and abuse risks present in a nursing facility environment illustrates its increased enforcement focus on relationships between nursing homes and their referral sources, such as hospices. The Guidance includes, for example, a list of questions for a nursing home to ask itself when identifying potential kickback risks. The Guidance also contains a list of "potentially aggravating considerations" for a nursing home to look for when trying to determine arrangements at greatest risk of prosecution, such as whether the arrangement has a "potential to interfere with, or skew, clinical decision-making."

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Beth Kastner and I recently authored an article for Compliance Today discussing compliance-related issues in relationships between hospices and nursing homes.

Shortly after we sent the article to the editors, CMS released the revised conditions of participation (COPs) for hospices, which includes a final COP for hospices that provide hospice care to residents of a SNF/NF or ICF/MR.

Fortunately, we were able to update the article in time to reference this final COP.  The CMS preamble discussion on this COP is another starting point worthy of review in analyzing these types of relationships.

Thanks to the folks at the Health Care Compliance Association for granting us permission to link to the article on this website.

The article, published in the August 2008 issue of Compliance Today, appears here with permission from the Health Care Compliance Association.  Call HCCA at 888/580-8373 with reprint requests.

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In what seems to be becoming a new tradition, CMS's proposed Medicare Physician Fee Schedule ("PFS") for calendar year 2009 revises more than the fee schedule. Among other things (like gainsharing), it proposes further changes to last year's changes to the Anti-Markup Rule. If you have not been following the saga of CMS's changes to the Anti-Markup Rule, hopefully this Health Law Strategist article will help you catch up. 

At this point, the changes from the 2008 PFS are scheduled to be effective as of January 1, 2009. The proposed 2009 PFS presents two alternatives (though CMS reserves the right to choose neither). One option is the obvious one: to let the 2008 changes go into effect as planned, using a site-of-service-based approach, with certain much-needed clarifications.

The second option is a new non-site-based approach where the Anti-Markup Rule would apply if the PC or TC is either purchased from an outside supplier or performed or supervised by a physician who does not "share a practice" with the billing physician or physician organization. A physician does not "share a practice" if he or she is employed or contracted by more than one physician or physician organization. 

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Final Medicare Conditions of Participation (“COPs”) for hospices were published on June 5, 2008. They will become effective on December 2, 2008.

The final rule is a follow-up to the proposed rule issued in 2005. The final rule does not contain any major surprises for the hospice community and appears to be largely perceived by providers as a positive development and much needed updated—this is the first major overhaul of the COPs since their inception in the 1980s.

The COPS contain more specificity on requirements for contractual arrangements between hospices and their vendors, as well as other medical providers, such as nursing homes. For example, there is a new COP detailing what must be in the contract between a hospice and a nursing home when the hospice provides care to nursing home residents.

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In St. Vincent’s Catholic Medical Centers of New York v. CMS, the HHS Departmental Appeals Board (DAB) addressed a decision by the CMS New York Regional Office determining that a cancer center located 327 yards from the provider’s main campus did not qualify for designation as “on campus” for purposes of determining provider-based status. The DAB remanded the case to CMS for further proceedings, in order to articulate its reasons for denying the center provider-based status as an on-campus facility.

The regulations governing provider-based status impose less stringent requirements on facilities that are on campus than on those that are off campus. The regulations define “campus” as “the physical area immediately adjacent to the provider's main buildings, other areas and structures that are not strictly contiguous to the main buildings but are located within 250 yards of the main buildings, and any other areas determined on an individual case basis, by the CMS regional office, to be part of the provider's campus.”

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