Medicare program; Medicare as secondary payer and Medicare recovery against third parties--HCFA. Final rule; reinstatement of regulations

This rule amends final regulations published on October 11, 1989, at 54 FR 41716 in order to replace changes that were intended to clarify policy, but have been interpreted by some readers as expressing substantive policy changes. With the exception of updated cross-references, we therefore are reissuing language that was in effect before the effective date of the October 11, 1989 final rule.     

Special report on reimbursement. Medicare program abandons 1986 malpractice rule

Hospitals with claims "properly pending" before fiscal intermediaries or in the courts need do nothing in order to obtain corrected reimbursement for fiscal years so pending. However, to speed processing of corrected reimbursements for fiscal years pending in appeals before the PRRB, hospitals should request that the Board determine its jurisdiction and remand to the fiscal intermediary for payment as soon as possible. It will be helpful to include with any such request a copy of the notice of program reimbursement and the original appeal letter for each fiscal year under appeal. Despite the fact that HCFA Ruling 91-1 effectively concedes that HCFA has applied an invalid regulation to all fiscal years since May 1, 1986, HCFA counsel have stated that HCFA will not permit reopening of closed cost reports to correct the inappropriate apportionment of malpractice insurance costs. Nevertheless, hospitals that do not presently have a claim or appeal pending have several options. Under the Provider Reimbursement Manual, HIM-15, sections 2930-2931, fiscal intermediaries are required to reopen cost reports filed within the three-year reopening period to correct errors. Accordingly, should a fiscal intermediary deny a provider's reopening request, the provider should seriously consider taking an appeal to the PRRB. The PRRB's jurisdiction to review fiscal intermediary denials of requests to reopen cost reports was affirmed by the United States Court of Appeals for the Ninth Circuit, see State of Oregon v. Bowen, 854 F.2d 346 (9th Cir. 1988), a decision that is controlling in California, Oregon, Washington, Nevada, Arizona, Montana, Idaho, Hawaii, Alaska, Guam, and the Northern Mariana Islands.(ABSTRACT TRUNCATED AT 250 WORDS)     

Medicare program; Medicare secondary payer data match--HCFA. Notice

This notice provides employers with information about the Medicare Secondary Payer (MSP) Data Match Program that involves HCFA, the Internal Revenue Service, and the Social Security Administration. The Data Match was provided for by Section 6202 of the Omnibus Budget Reconciliation Act of 1989. Under this provision, employers who receive data match questionnaires from HCFA for those employees who are Medicare beneficiaries or the spouse of a Medicare beneficiary must report certain health plan coverage information. The information will be used to determine whether Medicare payments for these beneficiaries should be or should have been primary or secondary to any payment that should be or should have been made by an employer group health plan (GHP).     

Special report on reimbursement. HCFA enacts new enforcement remedies covering nursing facilities

While the regulations are revolutionary in their use of "substantial compliance," the interpretation and application of HCFA's new remedial scheme are still uncertain, as states are given broad discretion in defining important terms and in applying and interpreting the criteria to select remedies. Further complicating the issue is the fact that some states, including California, intend to seek waivers from HCFA to substitute their own state enforcement systems for most, if not all, of the new federal system. Based upon these uncertainties, the enforcement of nursing facility standards will likely be in a state of flux for some time to come.     

Special report on reimbursement. Final Medicare fraud and abuse safe harbors are published

There has been great concern in the health care industry that business arrangements that do not comply with the Safe Harbors will automatically be deemed illegal. HHS has confirmed that this is not so; the commentary to the Regulations expressly states that "The failure of a particular business arrangement to comply with these provisions does not determine whether or not the arrangement violates the statute because...this regulation does not make conduct illegal. Any conduct that could be construed to be illegal after the promulgation of this rule would have been illegal at any time since the current law was enacted in 1977....This regulation is intended to provide a formula for avoiding risk in the future." 56 Fed. Reg. at 35955. In the final analysis, the majority of transactions will fall outside the Safe Harbors and thus will continue to be judged by the standards established by the Medicare antifraud statute enacted 14 years ago. Under these standards, as HHS states, "the degree of the risk [in any particular transaction] depends on an evaluation of the many factors which are part of the decision-making process regarding case selection for investigation and prosecution." Id. at 35954. Providers that are mindful of these criteria should therefore still be able to accomplish, with relative safety, transactions that do not qualify for Safe Harbor protection.     

Medicare program; Medicare secondary payer for disabled active individuals--HCFA. Proposed rule

This proposal sets forth the rules that limit Medicare payment for services furnished to disabled "active individuals" who are covered under a large group health plan (LGHP), and prohibit discrimination by an LGHP against such individuals. These rules are necessary to implement section 1862(b)(1)(B) of the Social Security Act (the Act), and related provisions, which make Medicare benefits secondary to LGHP benefits.     

Special report on patient care. The new federal patient-dumping regulations: some commonly asked questions and answers

Until both providers and government surveyors become more familiar with the new EMTALA regulations, there will be an uncomfortable period of adjustment, and perhaps some turmoil as well, particularly regarding the new requirement that facilities who receive suspicious transfers report those transfers to HCFA. Providers should carefully examine their internal policies on discharge and transfer of emergency patients to assure that those policies are consistent with the new regulations. Particular attention should be given to inservice training for medical and support personnel in the emergency department, because they must precisely comply with the law and their errors can subject the hospital to costly investigations and potential fines of $50,000 for each violation.     

Medicare program; Medicare secondary payer for individuals entitled to Medicare and also covered under group health plans--HCFA. Final rule with comment period

These regulations establish limits on Medicare payment for services furnished to individuals who are entitled to Medicare on the basis of disability and who are covered under large group health plans (LGHPs) by virtue of their own or a family member's current employment status with an employer; and prohibit LGHPs from taking into account that those individuals are entitled to Medicare on the basis of disability. They also implement certain other provisions of section 1862(b) of the Social Security Act, as amended by the Omnibus Budget Reconciliation Acts of 1986, 1989, 1990, and 1993 and the Social Security Act Amendments of 1994. Those amendments affect the Medicare secondary payer rules for individuals who are entitled to Medicare on the basis of age or who are eligible or entitled on the basis of end stage renal disease and who are also covered under group health plans (GHPs). The provisions that apply to all three groups include-- The rules under which HCFA determines that a GHP or LGHP is not in conformance with the requirements and prohibitions of the statute; The appeals procedures respecting GHPs and LGHPs that HCFA finds to be nonconforming. The referral of nonconforming plans to the Internal Revenue Service; and The rules for recovery of conditional or mistaken Medicare payments made by HCFA. The intent of the MSP provisions is to ensure that Medicare does not pay primary benefits for services for which a GHP or LGHP is the proper primary payer and that beneficiaries covered under these plans are not disadvantaged vis-a-vis other individuals who are covered under the plan but are not entitled to Medicare.     

Special report on labor and employment. The Department of Labor issues final regulations for the federal Family and Medical Leave Act

The FMLA is a complicated and comprehensive regulatory scheme, and it is impossible to review any but the most basic provisions in this article. The final regulations provide very detailed guidance on such issues as benefits continuation, reinstatement rights, notice requirements, and enforcement measures. Personnel policies and practices must be revised to be consistent with these final regulations, and care must be taken that leave policies do not restrict rights under the FMLA or unintentionally create expanded leave rights. In complying with the FMLA, employers must also keep in mind that there are complex interplays between the federal FMLA, state laws that provide family and medical leave, the Americans with Disabilities Act, and state workers' compensation laws, that can require expert advice depending on the particular circumstances.     

Special report on reimbursement. Medicare and Medicaid false claims prosecutions: your clerk's mistake can subject you to criminal penalties!

A number of steps are available to individual and institutional providers to minimize exposure under the new wave of enforcement activity. The first is education: learn what rules apply in your setting and share that knowledge with management and line employees. Second, undertake an independent compliance review to identify and resolve any existing exposure, including voluntary disclosure to the authorities, if appropriate. Third, institute an ongoing program to communicate to all employees not only the content of applicable rules, but also the genuine commitment of management to ensure continuing compliance above other concerns.     

Special report on patient care. HCFA finally issues patient-dumping regulations

EMTALA has always been an especially worrisome law for providers because its requirements are both sweeping and vague, with potentially drastic penalties for violations. The new regulations remove only some of the law's vagueness. As with previous EMTALA amendments, all United States hospitals, as well as emergency department physicians and other doctors who see patients in the emergency department, should carefully review their internal policies regarding patient ++ transfers in light of the new regulations. For example, hospitals must have an internal policy for following up on suspicious transfers, as failure to detect an inappropriate transfer can now potentially result in a Medicare decertification action. Also, hospitals with specialized services (e.g., burn units or shock-trauma units) should review their policies on receiving transfer patients in light of the greater specificity of the new regulations. Finally, because of the confusing new requirements regarding ambulance services, all hospitals should review their relationships with and policies regarding, ambulance services and ambulance diversion.