This week in Medicare updates—10/4/2023
Medicare Provider Compliance Newsletter
On September 25, CMS published the September 2023 edition of the Medicare Provider Compliance Newsletter. This edition of the newsletter included a CERT review of hospital outpatient services and a recovery audit review of hypoglossal nerve stimulation for obstructive sleep apnea.
Civil Money Penalty Reinvestment Program (CMPRP) Revisions
On September 25, CMS published a Memorandum to state survey agency directors regarding the CMPRP structure. Through this program, CMS takes CMPs collected from nursing homes and reinvests them in ways aimed at improving the quality of care and life for nursing home residents. This memorandum reviews allowable uses of CMP projects, and non-allowable uses of CMP funds, and solicits information from facilities without facility-wide WiFi to explore how to ensure internet access for residents.
Effective date: Immediately.
CMS Statement on Current Status of Blood Tests for Organ Transplant Rejection
On September 25, CMS published a Press Release regarding the recent controversy over MAC billing guidance that was issued on March 31 which limits reimbursement for molecular testing for organ transplant rejection. CMS stated that it has not made changes that affect a patient’s ability to have blood tests to monitor for organ transplantation rejection when medically appropriate and ordered by a physician. The statement follows two recent editorials in the Wall Street Journal criticizing CMS for the current MAC guidance and claiming that guidance limits patient access to the tests.
CMS noted in the statement that the MACs released a new proposed LCD with comment period in August and stated that the proposed LCD keeps current coverage criteria intact. The text of the LCD notes that these tests will not be covered if they are not used to inform clinical decision-making. The comment period ended on September 23.
Medicare Advantage Compliance Audit of Specific Diagnosis Codes that Health Net of California Submitted to CMS
On September 26, the OIG published a Review of whether select diagnosis codes that Health Net of California submitted to CMS for use in the risk adjustment program complied with federal requirements. The OIG conducted the audit by selecting a sample of 200 enrollees with at least 1 diagnosis code that mapped to an HCC for 2015. Health Net provided medical records as support for 1,325 HCCs associated with 195 of the 200 enrollees. After reviewing records associated with 1,333 HCCs, the OIG found that 230 HCCs were not validated. This included 46 HCCs for which a different HCC should have been used for either a more severe or less severe manifestation of the disease. The OIG also found 123 HCCs for which medical records supported diagnosis codes that Health Net should have submitted to CMS but did not.
The OIG said risk scores for the 200 sampled enrollees should have been based on 1,272 HCCs instead of the 1,333 HCCs they were based on. Health Net received $69,182 in net overpayments for 2015 because of this. This total was revised from the OIG’s original findings, where it claimed 245 HCCs were not validated and Health Net received $90,488 in overpayments.
The OIG recommends Health Net refund the federal government for the net overpayments and improve its policies and procedures to prevent, detect, and correct noncompliance with federal requirements for diagnosis codes used to calculate risk-adjusted payments.
Medicare Advantage Value-Based Insurance Design (VBID) Model CY 2024 Model Participation
On September 26, CMS published a Fact Sheet regarding participation in the Medicare Advantage VBID Model for 2024. Participation has increased from 52 participating Medicare Advantage Organizations (MAO) in 2023 to 69 participating MAOs in 2024. CMS projects that 12.4 million beneficiaries will be enrolled in participating plans in 2024, an increase from 9.3 million in 2023. The VBID Model began in January 2017 and will continue through December 2030.
2024 Premiums and Deductibles for Medicare Advantage and Part D Prescription Drug Plans
On September 26, CMS published a Press Release to announce the premiums and deductibles for 2024 Medicare Advantage and Part D Prescription Drug Plans ahead of the start of open enrollment, which will begin on October 15. The average monthly plan premium for Medicare Advantage is expected to be $18.50 per month, a slight increase from the 2023 average premium of $17.86. CMS expects that approximately 50% of all Medicare beneficiaries will be enrolled in a Medicare Advantage plan in 2024. More information on premiums and costs for 2024 Medicare Advantage and Part D plans is available on the CMS website.
Home Health Agencies Rarely Furnished Services Via Telehealth Early in the COVID-19 PHE
On September 27, the OIG published a Report regarding whether home health agencies (HHA) used telehealth to furnish home health services early in the PHE and whether HHAs complied with Medicare requirements for doing so. The OIG selected a random sample of 200 home health claims with beginning service dates from March 1 through December 31, 2020. It found that four of those 200 claims had home health services furnished via telehealth, and all four failed to fully comply with Medicare requirements for these services. Two of the claims did not include a provision in the plan of care allowing for the use of telehealth services, two had plans of care that did not tie the use of telehealth to patient-specific needs identified in the comprehensive assessment, and one claim had telehealth services substituted for a home visit ordered in the plan of care. The OIG attributed these issues to the newness of the requirements and unfamiliarity with providing telehealth in the home health sphere.
The OIG recommends CMS monitor HHA reporting of G-codes for home health services furnished via telehealth to provide better oversight of this service and determine whether any future regulations or guidance are necessary.
Revisions to the Special Focus Facility (SFF) Program
On September 27, CMS updated a Memorandum to state survey agency directors, originally published on October 21, 2022, to add technical corrections to various sections in the memorandum. Corrections apply to dates for selection notifications, language clarifying CMS approval, communication processes post-graduation, and more.
Report of Hospice Election for Part D
On September 27, CMS published One-Time Notification Transmittal 12273, which rescinds and replaces Transmittal 12160, dated July 27, to make updates to the attachment and to make revisions to BRs 13202.1, 13202.1.2, and 13202.2. In a departure from previous transmittal corrections, this transmittal includes details about exactly what language in the BRs was updated. The BRs detail the process for the FISS and VDC on managing reports of finalized hospice elections. The original transmittal was published regarding the creation of reports to alert Part D when a beneficiary enrolls in hospice.
Effective date: January 1, 2024
Implementation date: January 2, 2024
Revisions and Deletions to Medicare Financial Management Manual, Chapter 4, Debt Collection Related to Extended Repayment Schedules (ERS) and Debt Management
On September 27, CMS published Medicare Financial Management Transmittal 12262 regarding revisions and deletions to the manual due to changes to the ERS process that enhance debt management and procedure efficiency. The transmittal also updates policy language and standard practice.
Effective date: October 30, 2023
Implementation date: October 30, 2023
2024 Annual Update of HCPCS Codes Used for Skilled Nursing Facility (SNF) Consolidated Billing (CB) Update
On September 28, CMS published Medicare Claims Processing Transmittal 12266 regarding updates to the list of HCPCS codes used for SNF CB. The new code files will be posted to the CMS website in early December.
Effective date: January 1, 2024
Implementation date: January 2, 2024
Ambulance Inflation Factor (AIF) for CY 2024 and Productivity Adjustment
On September 28, CMS published Medicare Claims Processing Transmittal 12268 regarding an update to the manual to list the AIF for 2024, which is 2.6%. The 2024 ambulance fee schedule file will be available in November 2023.
Effective date: January 1, 2024
Implementation date: January 2, 2024
Advisory Opinion 23-06
On September 28, the OIG published an Advisory Opinion regarding a proposed arrangement involving a laboratory company’s proposal to purchase anatomic pathology services from third-party laboratories. The requestor, which was the anatomic pathology laboratory, would enter into an arrangement with the laboratories where the requestor would purchase the technical component of anatomic pathology services from the other laboratories, the requestor would perform the professional component of the service, the requestor would bill commercial insurers as an in-network provider for both the technical and professional components and the requestor would then pay the referring laboratory a fair market value fee per specimen for performing the technical component of the tests. The arrangement would include a specific carve-out against doing this for any services that would be reimbursable by federal health care programs. The requestor was seeking an opinion as to whether this arrangement would constitute grounds for the imposition of sanctions under the exclusion authority or civil monetary penalty provisions related to the anti-kickback statute.
The OIG said this arrangement would constitute grounds for sanctions under the anti-kickback statute, as the OIG has longstanding concerns about arrangements where parties carve out referrals of federal healthcare program beneficiaries or business because these tend to disguise remuneration for federal healthcare program business through payments purportedly not for federal health care program business. The OIG was also concerned by the potential referrals from the labs to the requestor and provided significant incentive for the laboratories to refer patients—including federal health care program beneficiaries--to the requestor.
Adjustment to the Amount in Controversy Threshold Amounts for CY 2024
On September 29, CMS published a Notice in the Federal Register to announce the annual adjustment in the amount in controversy threshold amounts. The CY 2024 amount in controversy thresholds is $180 for ALJ hearings and $1,840 for judicial review.
The annual adjustment takes effect on January 1, 2024.
Extension of CLIA Exemption for the State of Washington
On September 29, CMS published a Notice in the Federal Register to announce it is extending the exemption period for the state of Washington from CLIA for another six months until April 2, 2024. This exemption applies to laboratories located in and licensed by the state of Washington that meet certain requirements.
Effective dates: October 2, 2023 – April 2, 2024
Updated List of Laboratory Tests Subject to Exceptions to Laboratory Date of Service Policy
On September 29, CMS published the Download Link to the updated list of laboratory tests subject to exceptions to the lab date of service policy.
Patient Safety Work Products (PSWP), Survey Process, and Quality Assessment and Performance Improvement (QAPI) Survey Documents
On September 29, CMS published a Memorandum to state survey agency directors regarding documentation for PSWP and documentation for QAPI surveys. When surveyors ask for documentation of QAPI compliance, facilities may identify certain documents that can't be disclosed because it's being used as PSWP. Surveyors should not demand disclosure of these materials. The memo provides examples of what is and isn't considered PSWP; documents that aren't considered PSWP must be turned over to surveyors upon request.
Effective date: Immediately. Please communicate to all appropriate staff within 30 days.