2012 Affordable Care Act Update. Roadmap. Health Care Reform 1/16/2012. Daniel E. McBrayer, Esq. Johnston Barton Proctor & Rose LLP

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1 2012 Affordable Care Act Update Daniel E. McBrayer, Esq. Johnston Barton Proctor & Rose LLP Roadmap Where Health Care Reform is today Implementation Legal challenges What it means for you CMP changes Provider Screening and Revalidation Health Care Reform The Patient Protection and Affordable Care Act ( PPACA ) was passed on March 10, This bill contained sweeping changes to the healthcare system designed to: Promote better quality Achieve cost savings Develop better continuity of health care 1

2 Health Care Reform PPACA s major provisions still have not been fully implemented. Regulatory delay Budget problems General skullduggery For Example Remember the CLASS Act? Part of PPACA Government sponsored voluntary health insuranceprogramdesignedto givepeoplecash to pay for home based care services Take a deduction from your paycheck every month (like social security) and then get a cash benefit when you get old enough. For Example But the Federal government could not afford the CLASS program, despite the law. In October of 2011, the Secretary of HHS, Kathleen Sebelius, stated to Congress that: I do not see a viable path forward for CLASS at this time. CLASS is no longer funded by HHS, and is indefinitely on hold. 2

3 Legal Challenges PPACA has also been challenged in court by a number of individuals and state attorneys general (including Alabama s own Troy King). Courts are split on whether the law should be upheld. A number of these cases are currently on appeal before the United States Supreme Court. Legal Challenges Primary grounds for challenge: Individual Mandate Medicaid expansion A ruling is expected din the early summer of CMP Changes 3

4 CMP Changes PPACA has changed the way in which civil money penalties ( CMPs ) are assessed when a facility receives a poor survey result. Currently, a provider may immediately appeal a penalty, and CMPs are not due until the appeal has been exhausted. CMP Changes PPACA now requires that facilities that have been tagged must immediately pay any assessed CMPs into an escrow account upon their assessment. This applies whether or not the facility appeals the penalty. CMP Changes On a brighter note, facilities that self report deficiencies within 10 days of their discovery may have their assessed CMPs reduced. However, thisonly appliesonce peryear year, and does not apply to immediate jeopardy citations. 4

5 Considerations These changes may seriously affect a facility s willingness/ability to dispute an unfavorable survey result, as the penalty must be paid out of pocket immediately Originally introduced as a stand alone bill in 2004; Elder Justice refers to the prevention, detection, and prosecution of the abuse, neglect and exploitation of individuals age 60 and above; 5

6 Creates an Elder Justice Coordinating Council within the Department of Health and Human Services. It is responsible for coordinating elder justice activities in the federal government, and for making recommendations to Congress. It also establishes an Advisory Board on Elder Abuse, Neglect, and Exploitation. It is responsible for creating short and long term plans for the development of the field of elder justice, and to make recommendations to the Elder Justice Coordinating Council. Requires HHS to establish four stationary and six mobile forensic centers to develop forensic expertise on elder abuse; Establishesseveralprograms several and grants to increase the training and quality of LTC caregivers and surveyors. 6

7 What it does right now Covered Individuals in a facility that receives at least $10,000 in federal funds annually must report to the state survey agency and one or more local law enforcement entities, any reasonable suspicion of a crime against anyone who is a resident of, or is receiving care from, the facility. Wait, What? This will apply to most of the facilities represented here. Covered individuals must report any reasonable suspicion of a crime committed against a resident. Covered individuals are owners, operators, employees, managers, agents, or contractors of a facility. If the suspicion relates to a crime that could result in serious bodily injury to the resident, the report must be made within 2 hours of the suspicion being formed. Otherwise, the report must be made within 24 hours of the suspicion being formed. Crime Reporting 7

8 Who do you report to? The state survey agency Local law enforcement Police Department Sherriff s Office Prosecutors There is no prescribed form for the report. It may be made by telephone, , fax, or other means within the appropriate time frame. Other requirements The facility must post a notice in a conspicuous place, informing individuals of their duty to make reports under the EJA. Additionally, individuals who make reports under the EJA are given whistleblower protection for their actions. Punishments Penalties for failure to comply with the EJA: CMPs(up to a $300,000 fine for an individual who fails to report) Exclusion from participation 8

9 What does it mean for facilities? More detailed investigations and surveys Increased involvement from local law enforcement Increased reporting burden on facilities Additional resources for potential plaintiffs What does it mean for individuals working at the facility? Increased reporting burden Vigilante reporting Screening and Revalidation 9

10 Provider Screening PPACA also includes provisions for screening each provider enrolling or revalidating in the Medicare program. Anyone who submits an 855. Provider types are divided into three screening categories: Limited Risk Moderate Risk High Risk Medicare s regional contractor (e.g., CahabaGBA) will conduct the screening. Provider Screening Limited Risk Providers Physicians Nursing Homes Hospitals Limited Risk Screening Licensure verifications Periodic exclusion checks Provider Screening Moderate Risk Providers Hospice Therapy Ambulance Moderate Risk Screening Limited Risk Screening On site visit 10

11 Provider Screening High Risk Providers New Home Health New DME suppliers High Risk Screening Limited and Moderate Risk Screening Background check of owners Application Fee Starting in March of last year, CMS has created an application fee for all providers enrolling or revalidating their enrollment in Medicare. For 2011, it was $505 For 2012, it is $523 Revalidation CMS has also used the provider screening requirements of PPACA to require all providers to revalidate their enrollment in Medicare over the next four years. Cahaba has already begun sending out revalidation notices This means either using PECOS to revalidate, or completing another

12 D i l E M B E Daniel E. McBrayer, Esq. Johnston Barton Proctor & Rose LLP 569 Brookwood Village, Suite 901 Birmingham, Alabama (205) dem@johnstonbarton.com 12