IHCA
by Sean Fahey and Todd Selby, Hall Render Killian Heath & Lyman, P.C., IHCA Associate Member
Recently, the Indiana State Department of Administration, on behalf of Indiana's Family and Social Services Administration (FSSA), posted a Request for Proposals to contract with multiple attorneys for Indiana Medicaid estate recovery. The Request for Proposals is at http://www.in.gov/idoa/proc/bids/rfp-11-84/. It appears Indiana plans to get much more aggressive in Medicaid estate recovery, including opening probate estates. Contracts are scheduled to be awarded September 19, 2011.
The FSSA wants the attorneys selected to perform a broad range of responsibilities including preparing petitions to open probate estates as creditors, filing claims in probate estates, filing liens on real property, and pursuing non-probate assets. Indiana reportedly recovered over $9,700,000 from recipients in 2007.
The Indiana Medicaid estate recovery statute is found at I.C. Sec. 12-15-9-1. Indiana's Medicaid estate recovery laws allow FSSA to collect from probate estate assets, as well as from the non-probate estate assets of a deceased recipient. There can be no estate recovery while a surviving spouse or minor is living. Indiana also has lien laws that allow Medicaid to place liens on real estate owned by a Medicaid recipient. Also, in the event it does not file a lien on real estate held by a recipient, Medicaid can within five (5) months of the date of death open an estate administration, file its claim and force the sale of the real property to pay its claim.
During the 2010-11 Indiana legislative session, FSSA attempted to exempt Medicaid estate claims from I.C. Sec. 29-1-7-15.1(b), which provides that real estate in an decedent's estate cannot be sold to pay claims if an estate is not opened within five (5) months after death. Indiana attorneys testified against this provision and it was removed from legislation passed in the 2010-11 Indiana legislative session. However, the legislature referred this issue to the 2011 summer Probate Code Study Commission to study “how the probate code should be amended to permit the sale of real estate located in Indiana to satisfy a claim by ... [Medicaid, the U.S., or a state or subdivision of the state] against a decedent regardless of whether letters testamentary or of administration are issued within five (5) months of the decedent’s death.” Section 22, Senate Enrolled Act 331.
Long term care facilities should keep Indiana's renewed estate recovery focus in mind as they consider collecting their receivables that are due from deceased residents. Facilities will want to ensure that they have settled payment issues before a resident dies, as Medicaid will be more active in opening estates and asserting their priority claim.
If you have questions about this matter, please contact Todd J. Selby at (317) 977-1440 or Sean Fahey at (317) 977-1472 at Hall Render Killian Heath & Lyman, P.C.
Wednesday, June 29, 2011
Wednesday, June 8, 2011
Repaying Medicaid Overpayments – New Procedures and Requirements
A significant change in how the State of Indiana (the “State”) recoups alleged overpayment of Medicaid funds from providers takes effect on July 1, 2011. The new law, which was part of the Budget Bill (HEA 1001), will dramatically change the procedure for all Medicaid providers when contesting a recoupment attempt by the State for allegedly overpaid Medicaid funds. The statute, codified at IC 12-15-13-3.5 and -4, addresses the new recoupment procedures for non-institutional providers and institutional providers and will be administered by the Family and Social Services Administration through the Office of Medicaid Policy and Planning.
The Current Law (soon to be expiring)
Under current law, which is only effective through the end of June 2011, when a Medicaid provider is notified by the State that an overpayment may have occurred, the provider has three options when contesting the notice of overpayment. The provider can:
• Pay the money back within 60 days with interest;
• Pay the money back within 60 days and request a hearing; or
• Not pay the money back and request a hearing.
If the provider chose the third option and lost the appeal the provider is required pay interest on the amount from the date of the notice of overpayment. Many providers chose to exercise their rights under this third option.
The New Law
As applied to Indiana’s comprehensive care facilities, the new Medicaid overpayment statute provides a preliminary administrative reconsideration process during which the State and facility discuss draft audit findings that may lead to the State issuing a final recalculated Medicaid rate in order to recoup alleged overpayments from the facility. It is critical that facilities take action at each step in the new process to protect their rights. Failure to act may result in waiver or surrender of appeal rights.
Under the new law, a facility that receives draft audit findings from the State can provide comments to the State and then the State will issue a preliminary recalculated rate for the facility. Once the facility receives this preliminary recalculated rate, the facility has 45 days to request administrative reconsideration of the preliminary rate. A facility that receives a preliminary recalculated rate must request administrative reconsideration or the facility will not be permitted to appeal the final determination of the State.
Once the State and the facility conclude the reconsideration hearing, and if the State believes an overpayment has occurred, the State will notify the facility in writing that the State believes an overpayment has occurred and is issuing a final recalculated Medicaid rate. The final recalculated Medicaid rate will be implemented retroactively upon the next payment cycle.
If a facility disagrees with the final recalculated rate the facility may file an appeal with the State no later than 60 days after issuance of the notice of final recalculated Medicaid rate. If, after the appeal and hearings, the State determines that no overpayment has been made, then the State must pay back to the facility the amount of the overpayment, any interest paid by the facility to the State, and interest on the overpayment amount and interest paid by the provider.
Conclusion
With this significant change to the procedure that the State must utilize to recoup alleged overpayment to providers, there are bound to be problems that occur. It is possible that this new statute, with the reconsideration process, will provide for a more transparent approach to settling alleged overpayments of Medicaid funds. However, the reconsideration process in the new law is not yet tested and all Medicaid providers should take great care in handling each step of the process, which will help in any subsequent appeal pursued by a provider.
Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with comments, questions or for more information.
The Current Law (soon to be expiring)
Under current law, which is only effective through the end of June 2011, when a Medicaid provider is notified by the State that an overpayment may have occurred, the provider has three options when contesting the notice of overpayment. The provider can:
• Pay the money back within 60 days with interest;
• Pay the money back within 60 days and request a hearing; or
• Not pay the money back and request a hearing.
If the provider chose the third option and lost the appeal the provider is required pay interest on the amount from the date of the notice of overpayment. Many providers chose to exercise their rights under this third option.
The New Law
As applied to Indiana’s comprehensive care facilities, the new Medicaid overpayment statute provides a preliminary administrative reconsideration process during which the State and facility discuss draft audit findings that may lead to the State issuing a final recalculated Medicaid rate in order to recoup alleged overpayments from the facility. It is critical that facilities take action at each step in the new process to protect their rights. Failure to act may result in waiver or surrender of appeal rights.
Under the new law, a facility that receives draft audit findings from the State can provide comments to the State and then the State will issue a preliminary recalculated rate for the facility. Once the facility receives this preliminary recalculated rate, the facility has 45 days to request administrative reconsideration of the preliminary rate. A facility that receives a preliminary recalculated rate must request administrative reconsideration or the facility will not be permitted to appeal the final determination of the State.
Once the State and the facility conclude the reconsideration hearing, and if the State believes an overpayment has occurred, the State will notify the facility in writing that the State believes an overpayment has occurred and is issuing a final recalculated Medicaid rate. The final recalculated Medicaid rate will be implemented retroactively upon the next payment cycle.
If a facility disagrees with the final recalculated rate the facility may file an appeal with the State no later than 60 days after issuance of the notice of final recalculated Medicaid rate. If, after the appeal and hearings, the State determines that no overpayment has been made, then the State must pay back to the facility the amount of the overpayment, any interest paid by the facility to the State, and interest on the overpayment amount and interest paid by the provider.
Conclusion
With this significant change to the procedure that the State must utilize to recoup alleged overpayment to providers, there are bound to be problems that occur. It is possible that this new statute, with the reconsideration process, will provide for a more transparent approach to settling alleged overpayments of Medicaid funds. However, the reconsideration process in the new law is not yet tested and all Medicaid providers should take great care in handling each step of the process, which will help in any subsequent appeal pursued by a provider.
Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with comments, questions or for more information.
ISDH Online Survey Report System Now Live
The Indiana State Department of Health (ISDH) Survey Report System is now operational. The Survey Report System is first being introduced to comprehensive care facilities (nursing homes) and residential care facilities (licensed assisted living). The system will later be expanded to other health care facilities, agencies, and centers.
The ISDH Survey Report System will be used by the ISDH to send health care facilities the "Survey Report Form 2567" along with survey letters and documents issued by the ISDH as part of the licensing and certification process. Here are some of the things that the system will accomplish.
- The system will eliminate the need for mailing surveys and documents.
- The system will enable the health care facility to immediately view and print survey reports and survey related documents through the online system.
- The system will allow health care facilities to complete and submit the Plan of Correction (POC) online and upload supporting documents as part of the Plan of Correction.
- The survey report with its plan of correction will be posted online on the ISDH Consumer Report.
- The online system increases the efficiency of the survey process allowing for quicker responses.
The ISDH Survey Report System was implemented on March 1, 2011. All future surveys for comprehensive care facilities (nursing homes) and residential care facilities (licensed assisted living) will utilize the new system. Upon entry into the facility, surveyors will confirm email addresses and provide facilities with access information. All survey reports and survey-related documents will be posted to the Survey Report System and facilities must submit their plan of correction, if required, through the system.
The ISDH created a Survey Report System User's Manual. The User's Manual is designed to assist health care facilities in utilizing the Survey Report System. The Manual provides a step by step explanation of the system using screenshots.
Facilities will access the ISDH Survey Report System through the ISDH State Health Gateway. Instructions for accessing the State Health Gateway are included in the User's Manual and will be provided to facilities when surveyors begin a survey. The system will require a username and password which will be provided to the facilities by surveyors at the time of the facility's first survey after implementation of the system.
In ISDH LTC Newsletter Issue # 11-04, the ISDH requested facilities to complete a registration form providing the ISDH with the facility email address that they wish to use for this system. Any facilities that have not yet completed the registration form are encouraged to do so. The online registration form is found at www.in.gov/isdh/25053.htm.
The registration is solely to ensure that the ISDH has the email address that the facility wishes to use for survey notifications. The ISDH needs every nursing home to provide the facility email address to which they wish survey document notifications to be sent. A facility may, but is not required to, select a second email address for notifications to be sent. Some facilities may want to use the second email notification address for their corporate office or owners. At the time of entry into a facility, surveyors will confirm these email addresses and provide the facility with the username and password needed to access the system.
If the Indiana comprehensive care facility (nursing home) and residential care facility (licensed assisted living) has not already done so, the facility should complete the following action items:
1. Review the Survey Report System User's Manual.
2. Identify (or create) a facility email address for ISDH survey notifications.
3. Determine an additional office or individual entity that the facility would like to receive ISDH survey notifications.
4. Complete the online registration form at www.in.gov/isdh/25053.htm providing the ISDH with information needed to register your facility into the Survey Report System.
Recently, at least one facility experienced a problem receiving their survey report. The survey system had a glitch that resulted in the facility not receiving their survey report until days before their plan of correction was required. A quick response and resolution was required to avoid a negative outcome for the facility.
Should your facility experience any problems or if you have any questions, please contact any one of the following attorneys who have significant experience in handling licensure and survey issues for LTC facilities:
Lori McLaughlin at lmclaughlin@kdlegal.com or (219) 227-6075
Randall R. Fearnow at rfearnow@kdlegal.com or (317) 238-6279
David E. Jose at Djose@kdlegal.com or (317) 238-6211
Melinda R. Shapiro at mshapiro@kdlegal.com or (317) 238-6226
Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244
The ISDH Survey Report System will be used by the ISDH to send health care facilities the "Survey Report Form 2567" along with survey letters and documents issued by the ISDH as part of the licensing and certification process. Here are some of the things that the system will accomplish.
- The system will eliminate the need for mailing surveys and documents.
- The system will enable the health care facility to immediately view and print survey reports and survey related documents through the online system.
- The system will allow health care facilities to complete and submit the Plan of Correction (POC) online and upload supporting documents as part of the Plan of Correction.
- The survey report with its plan of correction will be posted online on the ISDH Consumer Report.
- The online system increases the efficiency of the survey process allowing for quicker responses.
The ISDH Survey Report System was implemented on March 1, 2011. All future surveys for comprehensive care facilities (nursing homes) and residential care facilities (licensed assisted living) will utilize the new system. Upon entry into the facility, surveyors will confirm email addresses and provide facilities with access information. All survey reports and survey-related documents will be posted to the Survey Report System and facilities must submit their plan of correction, if required, through the system.
The ISDH created a Survey Report System User's Manual. The User's Manual is designed to assist health care facilities in utilizing the Survey Report System. The Manual provides a step by step explanation of the system using screenshots.
Facilities will access the ISDH Survey Report System through the ISDH State Health Gateway. Instructions for accessing the State Health Gateway are included in the User's Manual and will be provided to facilities when surveyors begin a survey. The system will require a username and password which will be provided to the facilities by surveyors at the time of the facility's first survey after implementation of the system.
In ISDH LTC Newsletter Issue # 11-04, the ISDH requested facilities to complete a registration form providing the ISDH with the facility email address that they wish to use for this system. Any facilities that have not yet completed the registration form are encouraged to do so. The online registration form is found at www.in.gov/isdh/25053.htm.
The registration is solely to ensure that the ISDH has the email address that the facility wishes to use for survey notifications. The ISDH needs every nursing home to provide the facility email address to which they wish survey document notifications to be sent. A facility may, but is not required to, select a second email address for notifications to be sent. Some facilities may want to use the second email notification address for their corporate office or owners. At the time of entry into a facility, surveyors will confirm these email addresses and provide the facility with the username and password needed to access the system.
If the Indiana comprehensive care facility (nursing home) and residential care facility (licensed assisted living) has not already done so, the facility should complete the following action items:
1. Review the Survey Report System User's Manual.
2. Identify (or create) a facility email address for ISDH survey notifications.
3. Determine an additional office or individual entity that the facility would like to receive ISDH survey notifications.
4. Complete the online registration form at www.in.gov/isdh/25053.htm providing the ISDH with information needed to register your facility into the Survey Report System.
Recently, at least one facility experienced a problem receiving their survey report. The survey system had a glitch that resulted in the facility not receiving their survey report until days before their plan of correction was required. A quick response and resolution was required to avoid a negative outcome for the facility.
Should your facility experience any problems or if you have any questions, please contact any one of the following attorneys who have significant experience in handling licensure and survey issues for LTC facilities:
Lori McLaughlin at lmclaughlin@kdlegal.com or (219) 227-6075
Randall R. Fearnow at rfearnow@kdlegal.com or (317) 238-6279
David E. Jose at Djose@kdlegal.com or (317) 238-6211
Melinda R. Shapiro at mshapiro@kdlegal.com or (317) 238-6226
Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244
Monday, June 6, 2011
AHCA Hosts Webinar on ACOs and Post-Acute Care Providers
CMS recently published its proposed rules for accountable care organizations (ACO) in accordance with the Federal health reform legislation which is often referred to as the Affordable Care Act. Under the Act, CMS' has introduced the ACO model in furtherance of its "triple aim" of better care for individuals, better health for populations and lower growth in health care expenditures.
Although most ACO discussions typically concern hospitals and physicians, post-acute care providers are also another important part of the health care continuum that will likely be impacted. On May 18th, in order to broaden these discussions, the American Health Care Association (AHCA) hosted an informative webinar on May 18th which reviewed the proposed ACO rules and the impact and related roles that post acute care providers will have under this proposed model of care.
To request additional information regarding the impact that ACOs will likely have on post acute care providers please contact Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244. For a copy of the AHCA materials, click here.
Although most ACO discussions typically concern hospitals and physicians, post-acute care providers are also another important part of the health care continuum that will likely be impacted. On May 18th, in order to broaden these discussions, the American Health Care Association (AHCA) hosted an informative webinar on May 18th which reviewed the proposed ACO rules and the impact and related roles that post acute care providers will have under this proposed model of care.
To request additional information regarding the impact that ACOs will likely have on post acute care providers please contact Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244. For a copy of the AHCA materials, click here.
OIG Cites Improper Use of Anti-Psychotic Drugs in Nursing Facilities
Health and Human Services' Office of Inspector General (OIG) published a report on May 4, 2011 which concerns the improper use of anti-psychotic drugs in long term care. The OIG's review of medical records for elderly nursing home residents during a six-month period revealed that 14% of the 2.1 million elderly nursing home residents had at least one claim for anti-psychotic medications. Of those 14%, the OIG cited that approximately 22% were not administered in compliance with CMS standards. The OIG also questioned at least 50% of these claims to be erroneous, either because the medications were not medically necessary or because their use was associated with off-label uses.
The OIG report communicated numerous recommendations to CMS in order to (1) ensure accurate coverage and reimbursement decisions; (2) improve survey and certification procedures to prevent and detect unnecessary anti-psychotic drug use; and (3) correct all erroneous claims and related payments identified in the OIG report.
According to CMS data, more than 20% of nursing facility residents have a psychiatric diagnosis and as many as one-third of patients admitted to nursing facilities were already taking these medications prior to admission. All of these factors reflect the importance of facility standards and related safeguards governing the care of residents who require anti-psychotic medications as part of their treatment regimen.
To access a copy of the OIG report, go to http://oig.hhs.gov/oei/reports/oei-07-08-00150.asp.
If you would like additional information, please contact Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244.
The OIG report communicated numerous recommendations to CMS in order to (1) ensure accurate coverage and reimbursement decisions; (2) improve survey and certification procedures to prevent and detect unnecessary anti-psychotic drug use; and (3) correct all erroneous claims and related payments identified in the OIG report.
According to CMS data, more than 20% of nursing facility residents have a psychiatric diagnosis and as many as one-third of patients admitted to nursing facilities were already taking these medications prior to admission. All of these factors reflect the importance of facility standards and related safeguards governing the care of residents who require anti-psychotic medications as part of their treatment regimen.
To access a copy of the OIG report, go to http://oig.hhs.gov/oei/reports/oei-07-08-00150.asp.
If you would like additional information, please contact Susan E. Ziel at sziel@kdlegal.com or (317) 238-6244.
Regulatory Committee Continues Evaluation of the Health Facility Administrators
The Regulatory Occupations Evaluation Committee (ROEC) met again on May 25, 2011 to continue its evaluation of the Health Facility Administrators Board (HFAB), which issues professional licenses to Indiana Health Facility and Residential Care Administrators. ROEC was formed due to a law passed by the Indiana General Assembly in 2010 that required an evaluation of the need for and function of every professional licensing agency administered by the State of Indiana.
At the most recent ROEC meeting, the committee discussed what the committee’s final report to the Indiana Legislature should contain. Though no agreement was reached on the content of the final report, the following concepts were discussed to be included in the final report:
• Recommend that all license types should be retained as personal accountability is maintained by licensure and there is the potential for consumer harm without licensure
• Recommend that a study of the AIT program be conducted to examine barriers that may exist that reduce the number of available candidates for licensure and evaluate consistency of curriculum for AIT programs
• Recommend that all licensed administrators be required by law to report change of employment to the licensure board (for purposes of obtaining additional data about high turnover, which may correlate to poor performance)
• Recommend that the HFA/RCA licensure program be transferred from the Indiana Professional Licensing Agency (IPLA) to the Indiana State Department of Health (ISDH)
The above recommendations are not yet final and ROEC will meet again next month to hear testimony from the ISDH about the fourth potential recommendation that would move the licensure program from the IPLA to the ISDH. The IHCA will continue to keep a close watch on the ROEC’s progress.
Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with any questions or comments.
At the most recent ROEC meeting, the committee discussed what the committee’s final report to the Indiana Legislature should contain. Though no agreement was reached on the content of the final report, the following concepts were discussed to be included in the final report:
• Recommend that all license types should be retained as personal accountability is maintained by licensure and there is the potential for consumer harm without licensure
• Recommend that a study of the AIT program be conducted to examine barriers that may exist that reduce the number of available candidates for licensure and evaluate consistency of curriculum for AIT programs
• Recommend that all licensed administrators be required by law to report change of employment to the licensure board (for purposes of obtaining additional data about high turnover, which may correlate to poor performance)
• Recommend that the HFA/RCA licensure program be transferred from the Indiana Professional Licensing Agency (IPLA) to the Indiana State Department of Health (ISDH)
The above recommendations are not yet final and ROEC will meet again next month to hear testimony from the ISDH about the fourth potential recommendation that would move the licensure program from the IPLA to the ISDH. The IHCA will continue to keep a close watch on the ROEC’s progress.
Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with any questions or comments.
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