Updates from the December 22 edition of the Texas Register include the repeal of 40 TAC §§7.301 through 7.311 and §§7.313 through 7.316, concerning community relations, amendments to nursing facilities licensure and Medicaid certification requirement provisions, health and human services agencies licensing remedies, amendments to sections dealing with licensing standards for assisted living facilities, and more.

For more information, visit the relevant section of the Texas Register.

Additionally, the Texas Health and Human Services Commission (HHSC) will hold a public hearing for proposed rate methodology for Federally Qualified Health Centers and Rural Health Clinics on January 4, 2007, at 10:00 a.m. in the Permian Basin Meeting Room of the Braker Center, Building H, at 11209 Metric Boulevard, Austin, Texas 78758-4021.

For details, read the announcement.

In other news, HHSC has proposed amendments to §353.2 under the Managed Health Care section to implement the Integrated Care Management model, required by state law. For more information, see the relevant section of the December 29 Texas Register.

An Iowa University law professor conducted a study of home health care workers and found that they have few legal protections. (Medical News Today)

It’s more difficult to regulate employment inside a private home, and home health care workers don’t seem to be a high priority for agencies like the Occupational Safety and Health Administration.

Once again, soon-to-be retiring baby boomers will set the tone of the debate. According to the article, home health care is a fast growing industry. As more boomers need such services, home health workers will be in greater demand. Although poorly paid now, I suspect this will change. Those in demand have leverage to negotiate higher wages.

The problem now, according to the study, is that many home health care workers are illegal aliens. The issue isn’t how to protect illegal alien workers (who shouldn’t be working in the U.S. anyway) but how to prevent them from being hired in the first place. It’s harder to take advantage of legal workers.

(Photo source)

In a letter dated December 18, the Texas Department for Aging and Disability Services (DADS) notified all assisted living, adult day care, home and community support service agencies, immediate care, and nursing facilities about a change in program notifications.

DADS has been providing program notifications online effective October 1, 2006. Notifications will no longer be sent postal mail. DADS advises providers to visit the Regulatory Services policy web site and/or sign up to receive notifications by e-mail. You may download the letter here.

DADS informed nursing, home and community-based services, ICF-MR/RCs, and Texas Home Living providers in a letter dated December 19, about changes in certain travel reimbursements. For information, download the letter here.

A National Provider Identifier (NPI) is a 10-digit number used to identify providers under the 1996 Health Insurance Portability and Accountability Act (HIPAA). According to the Centers for Medicare and Medicaid Services, there are only 151 days left to comply with the NPI requirement.

From the site:

If you are a health care provider who bills for services, you probably need an NPI. If you bill Medicare for services, you definitely need an NPI! Getting an NPI is easy. Getting an NPI is free. The first step is to get your NPI. Once you obtain your NPI, it is estimated that it will take 120 days to do the remaining work to use it. This includes working on your internal billing systems, coordinating with billing services, vendors, and clearinghouses, testing with payers. As outlined in the Federal Regulation, (The Health Insurance Portability and Accountability Act of 1996 (HIPAA)) you must also share their NPI with other providers, health plans, clearinghouses, and any entity that may need it for billing purposes. If you delay applying for your NPI, you risk your cash flow and that of your health care partners as well.

Pharmacists may see their Medicaid reimbursements reduced if a proposed new rule becomes a reality.

The Kaiser Network reports (via the New York Times) that the Bush administration proposed a rule that would save the government $8.4 billion over the next five years. This would allow the government to offer drug discounts to beneficiaries similar to those offered in the private sector.

The proposed rule would limit the federal government’s share of Medicaid costs, which would reduce Medicaid reimbursements to pharmacies. Bruce Roberts, executive vice president of the National Community Pharmacists Association, told the New York Times, “The proposed rule would have the perverse effect of discouraging the use of generic drugs. The new limits on Medicaid reimbursement will be way below what drugstores typically pay for those drugs.”

Also see “Medicaid rule would hit pharmacists hard.”

In a provider letter to nursing facilities dated December 18, the Department of Aging and Disability Services (DADS) asked these facilities for help with providing personal representative information to the Medicaid Estate Recovery Program.

Although some providers fill out the personal representative information request form, others do not. From the letter:

The expectation is that once the Texas Integrated Eligibility Redesign System (TIERS), the new Medicaid database, is available statewide, MERP’s ability to obtain additional contact information on nursing facility recipients will be enhanced. Until that time, however, the program depends to a large extent on your cooperation and thanks you in advance for your support.

You may download the letter here.

The Department of Health and Human Services has notified nursing facilities that in some cases, Medicaid is improperly billed and therefore pays for the date of death that occurs during a Medicare Part A skilled nursing facility stay in error.

This determination was made after a review of the Texas Medicaid Long Term Care payments for individuals with Medicare and Medicaid coverage. In some cases, however, Medicaid does pay for date of death if the patient falls under a certain classification. For more information, download the letter here.

Physicians receiving Medicare reimbursements will get a reprieve. Before adjourning last week, Congress passed a bill that will reverse a 5.1 percent reduction in reimbursement. (Kaiser Network)

Reimbursement rates will remain at their current levels, and physicians who report quality-of-care data will get a 1.5 percent increase. Back in September, one lawmaker, House Ways and Means Committee Chair Bill Thomas, offered to block the reduction if the American Medical Association (AMA) and other doctors groups agreed to report quality-of-care data.

The AMA rejected the offer. (See Physicians Reject Offer To Block Reimbursement Rate Cuts)

The decision was the right one. Under the new legislation, reporting quality-of-care data is optional, not required. Those who can afford to gather data and submit reports have an incentive to do so.

A survey conducted by the Kaiser Family Foundation showed that 85 percent of U.S. residents favor government price negotiations for Medicare prescription drugs. The federal government currently is prohibited from negotiating drug prices or establishing a list of preferred drugs. (Kaiser Network)

According to the survey, 92 percent of Democrats, 85 percent of Independents and 74 percent of Republicans favor government negotiation of Medicare drug prices. If that’s the case, “party-line Medicare battles” in Congress may not be so heated after all. Or will they? From the press release:

And, while policymakers struggle with the budget deficit, few people (6%) rank reducing spending on government health programs as their top priority. But partisan differences emerge on priorities, with Democrats placing a much higher priority on expanding coverage, Republicans emphasizing reducing costs, and Independents split.

You may download the press release here.

The recent decision in United States v. Regence Blue Cross (10th Cir 12/05/2006) illustrates the power of qui tam, or private, civil lawsuits under the False Claims Act (FCA). Under the FCA, an action can be commenced either by the United States itself, or as a “qui tam” action, by a private person acting “for the United States Government” against providers “in the name of the Government.” The false claim may take many forms: overcharging for a product, failing to perform a service, delivering less than the promised amount of goods or services, underpaying money owed to the government, and charging for one thing but delivering another, to list just a few examples. The legal definitions of a false claim can be found in section § 3729 of the Act.

In this case, a former employee sued more than seven years after alleged violations were committed. Specifically, the plaintiff claimed that her former employer, three managers, and a related laboratory presented false Medicare claims to the Government, submitted a false budget payment request to the Health Care Financing Authority (“HCFA”), fraudulently avoided adverse contract action by HCFA by backdating and falsifying documents to manipulate its contract performance ratings, and retaliated against her under the FCA’s “whistleblower” protections and in violation of State law.

The employee’s job included reviewing claims submitted by medical service providers, including laboratories. After complaining internally that a laboratory was presenting false claims for Medicare reimbursement, and that Regence had failed to take appropriate action to stop this “fraud,” Ms. Sikkenga filed a qui tam suit. While the trial court had dismissed all Ms. Sikkenga’s claims, the 10th Circuit reversed, permitting some of Sikkenga’s fraud claims as well as her state law claim to proceed.

While the final determination on Ms. Sikkenga’s is yet to be made, this case highlights why we continue to see increases in qui tam actions. A company or individual that has made a false claim may be liable for triple damages, a civil fine of $5,500 to $11,000 per false claim, and the attorney’s fees of the citizen whistleblower. Individuals or companies that cause someone else to submit a false claim can also be found liable under the False Claims Act.
The standard of proof in a False Claims Act case is “preponderance of the evidence”, i.e., the claim is more likely true than not. This is the same burden of proof ordinarily applicable in most civil cases, and is easier to meet than the “beyond a reasonable doubt” standard used in criminal cases.

So what should you do? Recognize the new importance of business ethics and corporate compliance policies and training, teach supervisors and staff about ethical obligations, and have clear complaint policies and procedures in place for responding to whistleblowers.