Takeaways from the American Health Law Association’s 2021 Medicare and Medicaid Payments Conference

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On March 24 – 26, 2021, the American Health Law Association (AHLA) held a virtual Institute on Medicare and Medicaid Payment Issues. The program addresses legal and regulatory issues related to reimbursement and brings together a variety of stakeholders from private practice and key government regulatory agencies in the healthcare space, including representatives from Centers for Medicare and Medicaid Services (CMS), the Health and Human Services Office of Inspector General (HHS-OIG), and the Department of Justice (DOJ). The government stakeholders often provide valuable insights into what the industry as a whole and providers can expect in a post-pandemic world and with a new administration.

As was to be expected, the COVID-19 public health emergency was a central feature in many of the presentations. Below are two key takeaways from the conference.

COVID-19 Compliance Audits Are on the Horizon

Through the Coronavirus Aid, Relief, and Economic Security Act (CARES), qualified providers of health care, services, and support received various provider relief payments to cover healthcare‐related expenses or lost revenue during the public health emergency. Providers who comply with all the terms and conditions are not required to repay funds received. However, providers who provide inaccurate information may face recoupment and other legal action, or in the event of intentional wrongdoing, providers can face criminal, civil, or administrative penalties, revocation of Medicare billing privileges, exclusion, or False Claims Act liability. OIG identified provider relief payments as a focus area of their Work Plan, including HHS’s calculation of provider relief payments and distribution to eligible providers, information, and quarterly‐reporting, and providers’ adherence to the post‐payment reporting requirements. In addition, the Office of Management and Budget (OMB) will perform audits of commercial entities that received $750,000 or more of federal funding in a single fiscal year. Accordingly, providers should be familiar with all FAQs and maintain detailed and accurate documentation related to any and all provider relief funds.

Telehealth Is Here To Stay

One of the outcomes of the COVID pandemic has been expanded access to telehealth. The Coronavirus Preparedness and Response Supplemental Appropriations Act (CPRSAA) and the CARES Act provided numerous allowances to expand telehealth as an immediate response to the Public Health Emergency. Due in part to the success of telehealth in meeting the needs of the public, the Medicare Physician Fee Schedule for CY 2021 demonstrates that the expansion of telehealth will continue beyond the pandemic. For example, new services were added to the Medicare Telehealth List, and permanent additions include home visits and custodial care, cognitive assessments and care planning, and group psychotherapy visits. Temporary additions include all levels of physical and occupational therapy, nursing facility discharge day visits, and emergency department visits, among others. As with any government programs, with the expansion, telehealth and telefraud became the focus of increased enforcement activity and telehealth providers should expect to be subject to increased CMS/OIG scrutiny.

What Providers Can Expect from the Biden Administration

The new administration is expected to focus on increased COVID-19 relief and stimulus payments and restoration and expansion of the Affordable Care Act (ACA). Biden’s COVID relief will focus on expanding funding and distribution of vaccines, testing, treatment and increased funding for rural health care providers. With regard to the ACA, the Biden Administration is looking to walk back many of the state waivers allowed under the Trump administration. For example, Biden signed an Executive Order directing agency review and expressed to various states its intent to revoke waivers that Medicaid beneficiaries work as a condition of coverage.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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