DME FACE TO FACE RULE ENFORCEMENT

CMS has pushed back to “a date that will be announced in calendar year 2014” enforcement of the DME face to face requirement.  Under this rule, as a condition of payment for certain items of DME, a physician must have documented to the DME supplier that a physician or physician assistant, nurse practitioner or clinic nurse specialist, has had a face to face encounter with the DME beneficiary within the six month period before the written DME order.  Initially, any items that require a written order prior to delivery under the Medicaid Program Entirety Manual, items that cost more than $1,000, and other items identified as particularly susceptible to fraud, waste and abuse are included.

This rule was to be enforced July 1, 2013, then October 1, 2013, then December 31, 2013 and now, who knows.

TWO MIDNIGHTS RULE

Over 100 congressmen have sent a bipartisan letter to CMS seeking delay of a rule that presumes inpatient admissions are reasonable and necessary for Medicare beneficiaries who require more than a one day stay (meaning a stay that crosses “two midnights”) or a procedure that is specified as inpatient only.  CMS’ new policy presumes that stays spanning less that “two midnights” should have been provided on an outpatient basis.

This rule has the impact of substantially increasing out of pocket costs for Medicare beneficiaries who run afoul of this rule.

The letter points out that hospitals have had less than one month between the publication of the guidance, and the expected effective date of October 1.  The congresswoman authoring the letter has suggested that CMS delay the effective date of the rule for at least six months.  CMS now says no penalties until after December 31, 2013.

TAKE CARE OF YOUR HEALTH – OR ELSE!

Another congresswoman is asking the Equal Employment Opportunity Commission to investigate employer wellness programs that seek intimate health information.

This matter arose because of Penn State University questionnaires which require employees to pay a monthly surcharge of $100 if they did not fill out detailed health risk questionnaires.  The questionnaire includes questions about workplace stress, marital problems and women’s pregnancy plans.

A letter to EEOC points out the lack of federal guidance in what is and what is not acceptable in such questionnaires, and requests EEOC to draft detailed guidelines and clarify the meaning of “voluntary” employee participation.  As I have indicated in prior articles, this is likely to be a substantial and continuing battle ground with those who push participation in wellness programs without regard to the need for privacy and nondiscrimination.

NARROW NETWORKS

Many media outlets are recognizing likely consequences of the new ACA exchange/market place policies.  We have discussed this previously in this newsletter, but the problem appears to be gaining greater recognition.  The assumption is that beginning on October 1, those shopping for coverage will be overwhelming low and moderate income people for whom price of coverage is paramount.  Our friends at the various insurance companies have responded in California, Maine, New Hampshire, and other states, by proposing very narrow networks of hospitals and doctors.  What does this mean?

1.  If you go out-of-network the costs are likely to be unbelievably high.

2.  Because of the selection in some areas, you will have to choose between local hospitals or hospital systems.  If your doctor or other health care provider is connected exclusively with one hospital or another, you may have to change doctors and providers.

3.   Some groups of doctors are being excluded by these narrow networks, and even if a hospital affiliation is not the cause, exclusion of a medical group from the narrow network means users will have to find new providers.

4.   Indiana is one state in which insurers passed over major medical centers, in the central part of Indiana.  Southwest Indiana has not yet suffered this problem.  For example In New Hampshire, Anthem excluded ten of the States’ 26 hospitals from its narrow network.  While more than half are included, the distance and time necessary to travel to a doctor or hospital in the narrow network may create, at least, inconvenience, if not hardship.

ACA EXCHANGES OPEN

Enrollment begins for ACA this week.  Also, the United States Government began shutting down due to partisan funding intransigence.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions about this newsletter or any other matter at (812) 402-1600 or pwallace@joneswallace.com.