CMS Announces Ninth Extension Of “Temporary” Home Health Moratorium ¹

By Denise M. Leard, Esq.

Just as fraud schemes have become highly migratory and transitory in nature, so has CMS’ targeting, monitoring, and enforcement of these schemes. On January 30, 2018, the Centers for Medicare and Medicaid Services (CMS) announced the ninth extension of its temporary moratoria on enrollment of home health agencies (HHAs) into the Medicare, Medicaid, and the Children’s Health Insurance Programs (CHIP) in Florida, Illinois, Michigan, and Texas.

The initial temporary moratoria became effective in July 2013 and was limited to specific counties in these states. However, the breadth of the moratorium was expanded from the county level to the state level in August 2016. Providers that desired to, or were in the process of enrolling HHA locations inside or near the original targeted areas between 2013-2016 became collateral damage in an enrollment process that can sometimes take up to five months to complete.

BACKGROUND

CMS can impose a temporary moratorium on the new enrollment of particular providers and suppliers into Medicare, Medicaid, and CHIP in particular geographic areas if it determines there is a significant potential for fraud, waste, and/or abuse². And unless the State determines that the imposition of such moratorium would adversely impact its Medicaid beneficiaries’ access to care, States and CHIP must comply with any CMS imposed moratorium.³

Moreover, affected providers and suppliers have very limited appeal rights when CMS imposes a temporary moratorium. Those affected are precluded from seeking judicial review regarding the “basis” of a CMS imposed temporary moratorium⁴. They can seek review of adverse enrollment decisions resulting from the imposition of a temporary moratorium; but the review is only available after all administrative appeals have been exhausted, and the scope of the review is limited to whether the temporary moratorium applies to the appealing provider or supplier.⁵

Table A below identifies the past and current geographic areas and counties that have been subject to the temporary moratoria. Providers and suppliers who submit an enrollment application for a HHA practice location in any of these geographic locations will be denied unless one of the following exceptions apply:

• Provider was participating as a Medicaid managed care network provider prior to January 1, 2018 and is required to enroll with the State Medicaid agency pursuant to a new statutory requirement¹⁶;
• Provider is submitting an application to report a change of one of the following:
  1. Practice location;
  2. Provider or supplier information, such as phone number or address; or
  3. Ownership that does not require initial enrollment under § 424.550;
• Provider’s enrollment application was already approved by a Medicare contractor, but had not yet been entered into PECOS at the time the moratorium was imposed¹⁷;
• CMS lifts the temporary moratorium on or around July 29, 2018¹⁸; or
• The President of the United States declares an area a disaster, circumstances warranting the imposition of the moratorium are abated, if the Secretary declares a public health emergency, or if, the Secretary determines that the moratorium is no longer needed.¹⁹

OPTION B??

Historically, the primary means of circumventing a temporary moratorium have been to enroll a new location outside of the moratorium area but provide services for beneficiaries within the moratorium area. However, CMS continues to close that loophole by expanding the temporary moratoria’s geographic area. Today, if a provider or supplier still wants to obtain a new Medicare number for a HHA business in the affected areas, there are very few choices.

One option for prospective enrollees is to patiently brave the storm of uncertainty and wait to see if CMS will extend and/or expand the temporary moratoria upon its July 30, 2018 expiration date. Providers and suppliers that choose this option should be aware that once a moratorium is lifted, the previously targeted provider and supplier types will automatically be designated with a “high” categorical screening level if they apply within 6 months from the date the moratorium was lifted²⁰. This means that in addition to CMS’ usual screening requirements, all individuals who maintain a 5% or greater direct or indirect ownership interest in the provider or supplier will be required to submit a set of fingerprints for a national background check form and a criminal history record check of the Federal Bureau of Investigation’s Integrated Automated Fingerprint Identification System.²⁰

Other options include enrolling in Medicare, Medicaid, and/or CHIP as a different provider or supplier type not subject to the temporary moratorium to receive payment for exempted services; or if the provider or supplier was participating as Medicaid managed care network providers prior to January 1, 2018, they be allowed to enroll in Medicaid FFS through the State Medicaid Agency, even in areas where a temporary moratorium has been imposed.

CONCLUSION

Current law and regulations governing the moratoriums give CMS the authority and flexibility to use any tool, resource, and/or relevant criteria to prevent and combat fraud, waste, and abuse. Imposing a temporary moratorium is just one of them. Unfortunately, many providers and suppliers (and beneficiaries) become unintended targets when such a moratorium is imposed, extended, and/or expanded with very little notice or opportunity to prepare. The best advice for any prospective providers or suppliers right now is to become familiar with and prepare for the “high” level enrollment screening that will follow if the temporary moratorium is lifted on or around July 30, 2018.

This material is provided for informational purposes only and is not legal advice. Readers should contact their own counsel to obtain legal advice with respect to any specific issue.

Denise M. Leard, Esq., is an attorney with the Health Care Group at Brown & Fortunato, P.C., a law firm based in Amarillo, Texas. She represents pharmacies, infusion companies, home medical equipment companies, and other health care providers throughout the United States and Puerto Rico. Mrs. Leard is Board Certified in Health Law by the Texas Board of Legal Specialization. She can be reached at (806) 345-6318 or dleard@bf-law.com.