On January 30, 2014, the Centers for Medicare and Medicaid Services (“CMS”) announced the expansion of its moratorium on the enrollment of new home health agencies in Medicare, Medicaid, and the Children’s Health Insurance Program (“CHIP”) to four new geographic areas around the country including Broward County, Florida. Concurrent with this expansion, CMS also announced that the moratorium on the enrollment of new home health agencies currently in place for Miami-Dade and Monroe Counties would be extended for an additional six months. (More information on the moratorium currently in place in Miami-Dade and Monroe Counties can be read in our previous report here.) A copy of CMS’s press release can be read here
Pursuant to section 6401(a) of the Patient Protection and Affordable Care Act and its implementing regulation found at 42 C.F.R. § 424.570, the Secretary of the Department of Health and Human Services (“HHS”), of which CMS is a member agency, is authorized to implement a temporary moratorium on new enrollment by fee-for-service providers and suppliers, if the secretary determines that such a moratorium is necessary to prevent or combat fraud, waste, or abuse. Additionally, pursuant to section 1866(j)(7)(B) of the Social Security Act, the Secretary’s decision to impose a temporary enrollment moratorium is not subject to judicial review.
In deciding to expand the moratorium to Broward County, CMS compared Broward County to other similarly sized metropolitan areas and found that the ratio of home health agencies to Medicare beneficiaries was 89 percent greater in Broward than in the comparison counties. In addition, Broward had the sixth highest payments per average Medicare home health user in the country. (The top five regions: Miami-Dade, County, FL; Dallas County, TX; Harris County, TX; Tarrant County, TX; and Oakland County, MI are all also subject to the home health agency moratorium.)
In addition, CMS’s rationale for expanding the moratorium was also prophylactic in nature. As explained by CMS:
As a part of ongoing antifraud efforts, the HHS-OIG and CMS have learned that some fraud schemes are viral, meaning they replicate rapidly within communities, and that health care fraud also migrates – as law enforcement cracks down on a particular scheme, the criminals may redesign the scheme or relocate to a new geographic area. As a result, CMS has determined that it is necessary to extend these moratoria beyond the target counties to bordering counties, unless otherwise noted, to prevent potentially fraudulent providers and suppliers from enrolling in a neighboring county with the intent of providing services in a moratorium-targeted area.
A copy of the notice to be published in the federal register announcing the moratorium can be read here.
CMS found it was not necessary to extend the moratorium to the other counties that border Broward, such as Palm Beach, Collier, and Hendry counties because of “the state’s home health licensing rules that prevent providers enrolling in these counties from serving beneficiaries in Broward.” This reasoning was the same relied upon by CMS in not placing Broward in the original moratorium that included Miami-Dade and Monroe. However, as is evident with the latest expansion of the home health agency moratorium, the mere fact that Florida prohibits home health agencies from serving patients located in a different licensing district (Florida is divided into 11 “licensing districts” for home health agency licensing purposes) will not necessarily prevent unscrupulous business owners from merely moving into moratorium-free districts to engage in their nefarious activity. Thus, as we questioned in our previous report, it remains to be seen whether the moratorium will achieve its prophylactic effect and prevent waste, fraud, and abuse or merely shift it to other licensing districts throughout the state.
As a result of the moratorium, new home health agencies will be barred from enrollment for the next six-months. Additionally, should CMS believe it is necessary, the moratorium may be extended in six-month increments. Existing providers will not be affected by the moratorium and will be allowed to continue to participate in the Medicare, Medicaid, and CHIP programs. However, we remind those providers still operating in South Florida that combatting fraud among South Florida HHAs has remained a major priority for CMS since as early as 2007 and we expect that these providers will remain under the CMS microscope for years to come.