Centers for Medicare and Medicaid Services

On October 26, 2018, CMS released a Notice of Proposed Rulemaking addressing expanded telehealth coverage in Medicare Advantage, extrapolation of RADV audit results, and updates to the Medicare Advantage and Part D Quality Star Ratings program, among other topics. If finalized, the regulations set forth in the Proposed Rule would impact not only Medicare Advantage and Part D plan sponsors but also a broad range of providers and health care companies, particularly those involved in the provision or delivery of telehealth services.

CMS is accepting comments on the Proposed Rule through December 31, 2018.

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As previously noted in our Digital Health Mid-Year Review, 2018 has seen greater acceptance of telemedicine within the Medicare program. Both regulatory and statutory changes have expanded reimbursement opportunities and, consequentially, opportunities for the deployment of telemedicine technologies. As we noted then, however, improvement in the Medicare reimbursement environment for telemedicine services has been tied to a policy goal of not increasing utilization unnecessarily. We noted in our Mid-Year Review that Congress appears to be following MedPac’s recent guidance that Congress “should take a measured approach to further incorporating telehealth into Medicare by evaluating individual telehealth services to assess their capacity to address. . . cost reduction, access expansion, and quality improvement.”

The recently introduced Reducing Unnecessary Senior Hospitalizations Act of 2018 (the RUSH Act), seems to deviate from MedPac’s suggested approach. The RUSH Act seeks to avoid hospitalizations through a program that creates financial incentives for providing certain nonsurgical services furnished by hospital emergency departments at skilled nursing facilities that are qualified to provide such services by the Secretary of Health and Human Services The RUSH Act specifically refers to the possibility that some of these services could be provided by licensed practitioners “through the use of telehealth.” Interestingly, the RUSH Act does not specify what telehealth services should be allowable or how they should be reimbursed; rather, the RUSH Act leaves these matters for agency determination.

According to Representative Diane Black (TN), one of the bill’s sponsors, “[t]here are companies who are ready and able to provide this innovative care. . . . These positive disruptors just need Medicare’s payment policies to catch up with the technology. . . giving [nursing homes] the technology-enabled tools needed to lower health care costs and, most importantly, save lives.”

As an observer of this industry, I tend to agree with this claim, but under the approach taken by this bill, that determination will need to be made by the Department of Health and Human Services. Digital health companies looking for a better reimbursement environment are well-advised to focus on the bottom line of federal health policy–lower cost, improved care and increased access.

On May 31, 2017, the US Department of Justice announced a Settlement Agreement under which eClinicalWorks, a vendor of electronic health record software, agreed to pay $155 million and enter into a five-year Corporate Integrity Agreement to resolve allegations that it caused its customers to submit false claims for Medicare and Medicaid meaningful use payments in violation of the False Claims Act.

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The Electronic Health Records (EHR) Incentive Program run by Centers for Medicare and Medicaid Services (CMS) garnered attention again last week following the release of a report by the Office of Inspector General of the US Department of Health and Human Services (OIG) describing inappropriate payments to physicians under the program. The report follows on the heels of a high-profile settlement under the False Claims Act between the US Department of Justice and an EHR vendor related to certified electronic health record technology (CEHRT) used in the EHR Incentive Program (which we’ve previously discussed in-depth).

The OIG reviewed payments to 100 eligible professionals (EPs) who received EHR incentive payments between May 2011 and June 2014 and identified 14 inappropriate payments. OIG extrapolated the results of the review to the 250,470 total EPs who received incentive payments during that time period and estimated that CMS made approximately $729 million in inappropriate EHR incentive payments out of a total of just over $6 billion in such payments during the review period. Continue Reading OIG Reports More Than $731 Million in Inappropriate Medicare Meaningful Use Payments