The declaration of COVID-19 as a public health emergency has resulted in numerous regulatory changes for Medicare, Medicaid, CHIP, and HIPAA requirements. In response, the Centers for Medicare & Medicaid Services (CMS) and the Office of Medicare Hearings and Appeals (OMHA) have had to change Medicare audits and the appeals process temporarily.
CMS New Guidelines on Medicare Audits
In March,CMS announced that they would be “prioritizing and suspending non-emergency federal and State Survey Agency surveys” in response to COVID-19. The reason being was so that surveyors and facilities could dedicate their time and resources to protecting individuals from the spread of the novel coronavirus.
With the suspension of non-emergency inspections, inspectors can now focus on addressing serious health and safety issues in the community. The new guidelines issued by the CMS are to be followed in cases where COVID-19 is likely.
According to the CMS, effective immediately, survey activity should be limited to the following (in Priority Order):
“All immediate jeopardy complaints (cases that represents a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death or harm) and allegations of abuse and neglect;
Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses;
Statutorily required recertification surveys (Nursing Home, Home Health, Hospice, and ICF/IID facilities);
Any re-visits necessary to resolve current enforcement actions;
Surveys of facilities/hospitals that have a history of infection control deficiencies at the immediate jeopardy level in the last three years;
Surveys of facilities/hospitals/dialysis centers with a history of infection control deficiencies at lower levels than immediate jeopardy.”
This means inspectors will be conducting fewer new audits in MA organizations, Part D sponsors, Medicare-Medicaid plans, and Program for All-Inclusive Care for the Elderly (PACE) organizations.
While CMS will still have oversight of these programs, audits are not the main priority at the moment. The focus will be on the following:
Instances of noncompliance when the health and/or safety of beneficiaries is at serious risk, and
Complaints alleging infection control concerns, including COVID-19 or other respiratory illnesses.
How Are Appeals Impacted?
With COVID-19, the appeals process is more difficult to conduct in a timely manner for the CMS. However, in appeal cases that were started prior to COVID-19, CMS has implemented a process for Medicare Fee-For-Service (FFS), Medicare Advantage (MA), and Part D audits.
In these limited cases, the appeal process will include:
Extensions for filing an appeal
Waiving time limits for additional information in order to adjudicate the appeal
Processing an appeal even if there is an incomplete appointment of representative forms, but communicating solely with the beneficiary
Using information that is available to process requests that wouldn’t normally meet the requirements
Being as flexible as possible in the appeals process if good cause is satisfied
For third-level appeals withOMHA, hearings will continue as scheduled through telework. OMHA will, however, allow Administrative Law Judges (ALJs) to be flexible when granting reasonable requests for rescheduling hearings and filing time extensions.
If you have questions about your Medicare audit or appeal, call (713) 909-7323 to speak to our experienced health care business attorneys today.