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COMPLIANCE CORNER: Medicare Offers Settlement Options

On Nov. 3, 2017 the Centers for Medicare and Medicaid Services and the Office of Medicare Hearings and Appeals (OMHA) (the division of the U.S. Department of Health and Human Services that administers the Medicare appeals process) announced two new settlement opportunity for Medicare Part A and Part B providers and suppliers with eligible fee-for-service appeals pending in the administrative appeals process. These new programs are the Low Volume Appeals Settlement (LVA) and the expanded Settlement Conference Facilitation program (SCF). CMS offered LVA as a lump-sum settlement offer for eligible Appellants with certain eligible appeals. SCF affords eligible Appellants an opportunity to negotiate a lump-sum settlement offer on certain eligible appeals. SCF and LVA have complimentary eligibility criteria that collectively have the opportunity to resolve nearly every Medicare Part A or Part B claim under $100,000.00 in billed charges that is pending at the Administrative Law Judge (ALJ) or Medicare Appeals Council (Council) levels of the Medicare appeals process as of Nov. 3, 2017.

CMS and OMHA announced these new settlement opportunities consistent with their efforts in recent months and years to combat the backlog of appeals pending at the ALJ and Council levels of review in Medicare’s administrative appeals process. Although Congress established a ninety day timeframe for ALJs to hear and decide appeals at the third level of the administrative appeals process, appellants are waiting well over three years for a hearing and decision by an ALJ. The backlog in the appeals process is the result of multiple contributing factors such as more Medicare beneficiaries, more aggressive audit activity by Medicare contractors, increased claim denials and low rates of overturned appeals at the lower-levels of the Medicare appeals process. Despite CMS’s efforts in recent years to modify the administrative appeals process by revising the regulations which govern the appeals process, and OMHA’s efforts to streamline efforts and increase efficiencies in the appeals process, OMHA continues to receive more appeals that it can adjudicate in any given year. The backlog in appeals necessitates the release of new settlement opportunities for appellants, and appellants should consider participation in both the LVA and SCF processes.

The LVA Settlement is open to Medicare Part A and Part B appellants with eligible fee-for-service appeals pending in the administrative appeals process. CMS defines “low volume” as appellants with less than 500 appeals pending before the ALJ or Council levels of review, combined. Eligible and participating appellants are permitted to withdraw pending, eligible appeals from the backlogged Medicare appeals process in exchange for a non-negotiable settlement sum as final resolution of the disputed appeals. Through LVA, Appellants are offered 62 percent of the net Medicare approved amount of their eligible claims.
CMS provided the following appeal eligibility criteria for the LVA Settlement:

1. The appeal was pending before the OMHA and/or Council level of appeal as of November 3, 2017;

2. The appeal has a total billed amount of $9,000 or less;

3. The appeal was properly and timely filed at the OMHA or Council level as of November 3, 2017;

4. The claims included in the appeal were denied by a Medicare contractor and remain in a fully denied status in the Medicare system;

5. The claims included in the appeal were submitted for payment under Medicare Part A or Part B;

6. The claims included in the appeal were not part of an extrapolation; and,

7. As of the date the LVA Settlement Agreement is fully executed, the appeal was still pending at the OMHA or Council level of review.

There are practical considerations for appellants to consider while participating in the process. First, an appellant cannot choose to settle some eligible claims and not others. By participating in LVA, an appellant agrees to settle all pending and eligible claims. Therefore, appellants that practiced an aggressive appeal philosophy in appealing all or nearly all of the denied claims stand to benefit from participation in the LVA Settlement as it offered a guaranteed payout sum on claims that otherwise may not have achieved favorable resolution before the ALJ or Council. Secondly, as with the prior settlements, neither the appellant nor CMS make any admissions of fault or liability and the claims settled will remain denied in CMS’ common working file. Therefore, by settling claims through LVA appellants may incur refund obligations to other payors.

Initially the LVA Settlement was released with two eligibility periods depending on an appellant’s NPI number. On March 30, 2018, however, CMS announced that regardless of an appellant’s NPI number, it was extending the deadline to participate until June 8, 2018. It is currently too soon to gauge the success of the LVA Settlement. However, given the program’s broad eligibility criteria for both appellants and appeals, it is expected that the LVA Settlement will make some impact on clearing the backlog and freeing adjudication resources for OMHA and the Council.

SCF is an alternative dispute resolution process which applies mediation principals to allow Medicare Part A and Part B appellants to negotiate a lump sum settlement of eligible claims with CMS. If a settlement is reached, a settlement agreement is signed the day of the settlement conference and the settled claims are withdrawn and dismissed from the Medicare appeals process.

CMS has published preliminary eligibility criteria for the expanded SCF, which once implemented will include:

1. The appellant must be a Medicare provider or supplier that has been assigned an NPI;

2. The appeals involve request(s) for ALJ hearing or Council review filed on or before November 3, 2017 with a total of 500 or more appeals pending at OMHA and the Council combined; or with any number of appeals pending at OMHA and the Council that each have more than $9,000 in billed charges;

3. The request(s) for ALJ hearing and/or Council review must arise from a Medicare Part A or Part B Qualified Independent Contractor (“QIC”) reconsideration decision;

4. All jurisdictional requirements for OMHA or Council review were met for the eligible appeals;

5. The amount of each individual claim in an appeal must be $100,000 or less (for the purposes of an extrapolated statistical sample, the overpayment amount extrapolated from the universe of claims must be $100,000 or less);

6. The appellant cannot have filed for bankruptcy and/or expect to file for bankruptcy in the future; and

7. Certain appellants that have or have had False Claims Act litigation or investigations pending against them, or other program integrity concerns, including pending civil, criminal, or administrative investigations will be ineligible.

The expanded SCF program is designed to resolve large volumes of claims at the ALJ or Council levels, or lower volumes of claims at the ALJ or Council levels with high billed charges. With such broad eligibility criteria we anticipate that many appellants will be eligible to participate in the SCF process. There are recommended best practices and strategies for participation in SCF. Prior to the facilitation CMS will select a sample of claims that it will review. CMS will then form an opinion on the strength of the claims. Appellants should prepare a thorough evaluation of the sample claims through a comprehensive position paper with supporting documentary evidence and testimonial support and share this information with CMS prior to the facilitation. Appellants should also consider showcasing their major strengths, accolades and any unique considerations for CMS’ review. A thorough and strong posturing of the case prior to the facilitation can have a substantial impact on the success of the facilitation.

The voluntary and expedited nature of the SCF process should be attractive to Medicare appellants. If settlement is not reached, an appellant’s claims return to the ALJ appeals process in the order in which they were originally received. Although OMHA did not establish a firm time table for initiation and completion of the SCF process, a conservative estimate is that this process takes a minimum of ten weeks from the date an appellant receives OMHA’s spreadsheet identifying eligible claims until the date of the facilitation. In comparison to the Medicare appeals process that at recent estimates takes nearly 173 weeks at the ALJ level of appeal alone, SCF offers an expedited resolution process.

SCF and LVA promote the efficient use of judicial and appellant resources and encourage expedited resolution opportunities. Where the alternative to participation in these programs is the backlogged administrative appeals process, appellants with pending and eligible claims should consider participation in SCF and LVA.

LEGAL LEANINGS: Costs Down; Quality Up

How can providers increase quality of care while reducing cost to patients? The answer is through innovation, creativity, increased patient responsibility, partnership, and real-time flow of information. Here are just a few ideas to consider in reaching this overarching goal. While none of the ideas articulated below are novel or groundbreaking on their own, they are strategies that we have observed to be successful and that have benefited both patients and practices.

Encourage Your Patients to Be Involved in Their Healthcare Decisions—Both Procedurally and Financially

One of the keys to bringing costs down and letting the competitive consumer market assist in the process is having an informed clientele. Often, patients do not see the costs of the services provided until after the numbers have gone through their insurance. In the past, consumerism had little impact on the healthcare cost structure due to fear overriding frugality—no one wants to save a few hundred dollars on a particular test and then “die” as a result of that decision. Find ways to encourage your patients to compare the true costs of their medical care by establishing the quality baseline. For example, two identical CT Scanners sitting next to each other can have very different price points depending on their ownership. Once a patient understands the quality differential and that the less expensive one is the equal (or even superior) of the other, consumerism can take place.

Partner with Urgent Cares and Ambulatory Surgical Centers

For many non-urgent medical situations, sending patients to quality urgent care and ambulatory surgical centers for testing can bring costs down for everyone. This is particularly noticeable to patients who have high deductible health insurance plans. Because there is a smaller or vastly reduced facility fee reimbursed to the typical ASC as opposed to hospitals, the overall cost of using outpatient centers is lower. Find those urgent care centers that treat patients with your quality of care standards and make those known to your patients or, even better, establish or “partner” with an urgent care so that your standards of treatment are extended into the after-hours time periods and the higher cost of an emergency room visit is avoided.

Interdisciplinary Partnerships

We are only beginning to scratch the surface for the benefits achieved through interdisciplinary practice teamwork. For smaller practices, consider adding different complementary specialists on site in the areas of behavioral health, nutrition, or weight management to give your patients a one-stop holistic option for health needs. While care must be taken to structure the partnerships properly, don’t just co-locate these, but integrate them into the practice. In many cases billing codes exist for truly integrated professionals.

Implement Proven Screening Programs and Preventive Medicine

Many health-related organizations have created successful screening and early intervention procedures for a variety of conditions. Offer easy access to these screenings to your patients (many are free). More and more payors have discovered that implementing these preventive steps can save millions, if not billions, of dollars in coverage costs down the road. If a patient is reluctant, a more directed intervention and repetitive follow-up may be necessary. However, if even a small percentage of patients avoid the projected health risk, the financial outcome may be significant for the provider. Further, your high quality and reduced cost metrics will make your practice desirable for inclusion by the clinically integrated networks, accountable care organizations, or a variety of other merit-based incentive plans.

One example, for patients at risk for Type 2 Diabetes, is the CDC approved Diabetes Prevention Program from the National Kidney Foundation of Michigan.

Real-Time Flow of Information

“The key to healthcare integration decreased cost and increased satisfaction is the flow of information—having everyone have the right information at the right time and in the right place,” explains Dr. Spencer Erman, MD, FAAFM, Vice President and Chief Medical Informatics Officer of Hartford HealthCare.

While many electronic health records allow providers to exchange information within their group or institution, we need a system that allows all medical practitioners to have access to medical records when they need it. Seek out options that allow for real-time, secure exchanges of medical records and information. Push your clinical organizations and governmental representatives to create a system of information technology that is as easy and secure as your ATM card is for your finances. If your patients carried a complete history with them at all times universally accessible, imagine the reduction in costs that could be achieved, and having a complete medical history with all patients would invariably allow for better and more timely medical treatments to take place. Resist the idea that your medical records are a “tying mechanism” to your patients. It is rare that a patient will whimsically change providers because their medical records are easily available.

Now is the time for innovation, creativity, increased patient responsibility, partnership, and real-time flow of information to achieve significant cost reductions in our health care with no reduction in quality.

1 Learn about the National Kidney Foundation of Michigan’s Diabetes Prevention Program here: “Diabetes Prevention Program,” National Kidney Foundation of Michigan, March 11, 2018 https://www.nkfm.org/communities-families/diabetes-prevention-program. See CMS’s proposed expansion of the Medicare DPP: https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2017-Fact-Sheet-items/2017-07-13-3.html.
2 For example, the Michigan Health Information Network Shared Services (MiHIN) lets unaffiliated groups exchange records in real time. See Michigan Health Information Network Shared Services, 2017, https://mihin.org/.

ON MEDICINE: States Are The Laboratory Of Democracy

As the endless dispute about reforming healthcare drags on in Washington, the participants might want to note two articles that appeared in the daily AMA Morning Rounds on February 9, 2018:

The first references several state-requested innovations to Medicaid:
Quoting the Congressional Quarterly, “in addition to work requirements,… several states “want to impose time limits on how long people can stay on the program.” A couple of states “want to roll back their Medicaid expansions to cover fewer people,” and still others would like “to require drug testing or limit the list of prescription drugs they’ll pay for…”

The press already has reported on some of these proposed work requirements. As an example, The Washington Post reported on January 11 that 10 states are requesting federal permission to impose work requirements on able-bodied adults who are enrolled in Medicaid.

The second AMA article highlights the significant observation that enrollment in state-run ACA programs is up, and enrollment in Healthcare.gov programs is down:
“…A majority of the states which manage their own ACA exchanges “saw more people sign up in 2018 than last year, while 29 of the 34 states that rely on the federal government to promote enrollment saw their sign-ups fall,” according to data unveiled by the National Academy of State Health Policy. The article says 11 of the 17 state-based marketplaces had higher enrollment, while the 34 states which use HealthCare.gov had an average decline of 5.3 percent.”

Ah. Programs run by states seem to be more popular than the one run by the federal government. Interesting.

The famous U.S. Supreme Court Justice Brandeis once wrote that “the states are the laboratory of democracy.” And so it seems to be. Instead of being solely promulgated from on high, innovative experimental programs for healthcare delivery are percolating up from below. Some of these will fail. Some will succeed. And we will learn from both.

There is another relevant development. The Jan 30 New York Times reported that “Amazon, Berkshire Hathaway and JPMorgan Chase — announced on Tuesday that they [will] form an independent health care company for their employees in the United States.” This is stunningly consistent with some of the proposals that we made when I was on the AMA Council of Medical Service 20 years ago. Our idea was that, in addition to employer-based healthcare, healthcare coverage could be organized by neighborhoods, churches, unions and any other combination of like-minded people. While the proposed mega-group above still would be employer-based, it would be quantitatively different from a group that is limited to employees of one machine shop.

In Germany and several other countries in Europe, healthcare plans are called krankenkassen, which might be translated roughly as healthcare ‘cash boxes.’ As it happens, these often are organized according to religious denomination, a notion better suited to European culture than ours. While we would not organize healthcare in exactly that way, the idea is one that could be adapted, as the CMS recognized.

So the ideas keep rolling out. In short, perhaps we might benefit from a little less grandstanding in Washington and a little more experience with experiments in our 50 states as we fumble our way to an improved healthcare system.

Dr. Adelman is a past president of the Wayne County Medical Society and Michigan State Medical Society as well as past member of the AMA Board of Trustees. Now retired from the practice of pediatric surgery, she is the author of The Rebel: A biography of Ram Jethmalani.

IN MY OPINION: The New Medicine, Be Careful

Could it be that medical care is now taken for granted? Are the fantastic technologies, miracle drugs, futuristic hospitals, and finally even doctors now simply viewed as facts of nature, things that were always there and will always be there? Is there the expectation that doctors will forever improve the quality of life and add years to it?

Could it be possible that government intervention into healthcare was the origin of the concept that patients need do nothing to earn their medical care and even presume perfection and cures? All they needed to do was wish it, demand it, and the government would decree that it happen. Could this thinking now be leading to the rise of a generation of patients who expect medical treatment and cures as a right simply because they wish it?

Was it not in the recent past considered above all important for physicians to have the ability to think and judge, to consider the countless variables and options relevant to the individual uniqueness of each patient, process the sum total of the information and render his or her decision? Of course physicians appreciate there are general approaches to the work-up and treatment of a variety of illnesses captured in so called “evidence based medicine,” with algorithms and protocols generalized from population groups. But if new physicians are taught excessive reliance on such protocols or if compliance with them is demanded, does this not inhibit clinical judgement? Do knowledge, experience and even intuition no longer have a role? Isn’t every patient an individual, and aren’t all protocols and algorithms based on the average typical case? It is actually quite easy to standardize statistical protocols, but not at all easy to standardize patients.

Such protocols were introduced as “helpful suggestions,” but they have now become rules firmly attached to the system. Hopefully the degree to which young doctors are being trained to follow protocols is not resulting in such a degree of command and control that this approach is now considered normal. To have such a system mandating physicians to devoutly comply with mandates demanding adherence to guidelines and protocols that excludes creative medical thinking must compromise diagnostic and therapeutic excellence. This will, as well, crush the pride and individualism characteristic of physicians. Such a profession will have a diminishing attraction for the brightest students. MACRA, ACO’s, hospital compliance mandates, EMR’s, all of which increase physicians work in many non-productive and aggravating ways, are filled with more and more guidelines, protocols and mandates.

The power of hospital administrators, insurance company executives, government bureaucrats and other power brokers that increasingly control physicians’ fates have imposed such fear in physicians that “keeping one’s mouth shut” has become the rule.

So we now have a clash between government and the expectations it has indoctrinated into a growing populace with the medical profession and its 1500 year traditional culture. There is little to indicate that physicians can win or even mount a competitive effort. If the “practice” of medicine, a craft, is replaced by obedient protocol followers, a profession will have been replaced by just another occupation. What a pity.

Some will hate the quote of Dr. Hendricks in “Atlas Shrugged” simply because the philosophical novel was authored by Ayn Rand, but I think it worth quoting anyway. “Let them discover the kind of doctors that their system will now produce. Let them discover, in their operating rooms and hospital wards, that it is not safe to place their lives in the hands of a man whose life they have throttled. It is not safe, if he is the sort of man who resents it – and still less safe, if he is the sort who doesn’t.”


State Permanently Yanks Nassar’s Medical License, Docks Him $1M

The state April 6 permanently revoked the medical license of Larry Nassar and fined him $1 million, making it the largest fine ever issued by a health professional or occupational board in the history of the Michigan Department of Licensing and Regulatory Affairs (LARA), according to the department.

Nassar, the former physician for Michigan State University and team doctor for U.S.A. Gymnastics, has been sentenced to federal prison on child pornography possession charges. He was sentenced to state prison on numerous counts of criminal sexual conduct, stemming from his sexual abuse of hundreds of women, often under the guise of medical treatment.

The state’s Board of Osteopathic Medicine and Surgery initially revoked Nassar’s license on April 25, 2017, based on LARA’s order summarily suspending Nassar’s license and an administrative complaint filed in January 2017.

The permanent revocation stems from Nassar’s convictions, outlined in January 2018 administrative complaint filed by the Attorney General’s office on behalf of LARA.

The $1 million fine is to be paid to the state after all restitution, criminal fees and fines, and civil judgments Nassar is ordered to pay have been fully satisfied.

Supreme Court Asked To Review Healthy Kids Dental Contract

MCNA is taking its fight challenging Michigan’s procurement process of the Healthy Kids Dental contract to the state’s Supreme Court.

MCNA filed March 29 an appeal seeking to reverse the Michigan Court of Appeals decision dismissing the dental provider’s lawsuit against the state over what it calls the “unlawful award” of a $659 million Healthy Kids Dental contract to Blue Cross Blue Shield.

“We are taking this fight to the state’s highest court because the citizens of Michigan deserve a full accounting of how taxpayer dollars are being spent, and to shine a light on a deeply flawed and highly political bidding process that has undermined Michigan’s stated commitment to transparency and competitive bidding,” said Carlos Lacasa, MCNA’s vice president and general counsel.

“It is our hope that when Supreme Court justices review the facts of this case, they’ll see the fatal flaws in the state’s procurement process, which favors political clout over experience and results,” he added.

MCNA filed two lawsuits in January. The first alleges the state’s Department of Technology, Management and Budget showed “blatant favoritism” in awarding the contract and the second alleges multiple violations of the Freedom of Information Act.

The state sought to dismiss the case, but Ingham County Judge William Collette said at a February hearing he wanted more information and ordered a state official be deposed over the contract award. Collette’s decision came after an attorney for the state admitted, but couldn’t explain why, the state allowed BCBS to change its bid.

In mid-March, however, the Michigan Court of Appeals dismissed MCNA’s lawsuit without explanation.

MCNA has added prominent lawyers Clifford Taylor, a former chief justice of the Michigan Supreme Court, and John Bursch, former Michigan solicitor general, to its legal team as it prepares to argue its case before the state Supreme Court.

“The primary legal issue is straightforward and of great importance to Michigan taxpayers,” Bursch said. “The Court of Appeals said that MCNA has no right to seek judicial review of state procurement decisions. But Michigan law says that an aggrieved party may appeal ‘any’ decision of ‘any’ state agency.

“MCNA simply wants its day in court. Without that day, no court will ever be able to look beyond the curtain in a procurement decision,” he added. “Taxpayers are entitled to that transparency.”

Shirkey Gaining Support On Healthy Michigan Boilerplate Change

Two key lawmakers said today they are supportive of Sen. Mike Shirkey’s attempt to effectively require beneficiaries of Healthy Michigan to pay more in co-pays and annual premiums if they don’t move out of the expanded Medicaid program to the individual insurance market after four years.

Both chairs of the appropriations subcommittees overseeing the Department of Health and Human Services (DHHS) budget said they like the idea of inserting a provision in the Fiscal Year 2019 spending plan to clarify that Michigan’s 2013 Healthy Michigan law required recipient buy-in and that’s not what they see is happening.

Instead, Rep. Ned Canfield (R-Sebewaing), a medical doctor by profession, said two-thirds of recipients don’t pay their contributions and 60 percent don’t pay their fair share of co-pays.

“I don’t think that was the intent of the law these men and women thought they were passing,” Canfield said. “I believe the Legislature that passed Healthy Michigan did a brilliant job of displaying how we can help people and then help them out of Medicaid.”

Healthy Michigan is the 2013-passed Medicaid expansion program pushed by Gov. Rick Snyder that only passed a reluctant Republican-controlled Legislature after then-Rep. Shirkey and Sen. Roger Kahn (R-Saginaw) required DHHS to get two waivers.

The first required the expanded population of those making between 100 and 133 percent of the federal poverty level to contribute 2 to 5 percent of their income for service. The second required this population to pay up to 7 percent of their income after four years or find insurance on the health exchange.

But a reluctant Centers for Medicare and Medicaid Services under President Barack Obama was among the reasons the waiver ended up getting implemented in a way that nobody is getting moved off the benefit, Shirkey said.

“I believe the Department had some headwind, but I also believe it’s not in the nature of the Department to design a system by which people go off the benefit,” Shirkey said.

The result is that the program is not running consistent with statute and either the program needs to change or the statute. Neither Shirkey or Sen. Pater MacGregor (R-Rockford), chair of the Senate DHHS Appropriations Subcommittee, said they’re interested in changing the statute.

“What we passed in 2013 and what we’ve implemented is running in opposite directions,” MacGregor said. “Something needs to change.”

For MacGregor, the point is not about saving the state money, it’s about encouraging able-bodied recipients to begin training for the numerous skilled trades available in Michigan’s job market.

“I see this as a win-win,” he said.

He also noted Healthy Michigan was designed to push recipients to lead healthier lives. He’s not sure that’s being pushed either.

Shirkey said he understands that as it’s currently being run, moving the expanded Medicaid population to the health insurance exchange would cost more money, but that’s because the program isn’t being run the way the law intended.

“The department has to resubmit the waiver so it aligns with the statute,” Shirkey said.

Sen. Curtis Hertel (D-East Lansing), a Democratic member on the DHHS Appropriations Subcommittee, said he’s not convinced Shirkey is barking up the right tree with the boilerplate addition.

Hertel commended Shirkey for the courage it took to move the Healthy Michigan program in 2013, but the law is written vaguely and is open to interpretation.

“If you don’t believe the Department is following the statute, there’s a process for that and that’s the courts,” Hertel said. “This is up for interpretation, but I don’t think a new legislature can interpret the meaning of an old Legislature and then try to put in boilerplate what a different law means.”

While Shirkey was in the room when the law was written, that doesn’t mean it’s “his baby,” Hertel said.

“So while I have an enormous amount of respect for Sen. Shirkey and the work he did on the law, I think saying that his interpretation is the right interpretation gives him a lot more power than I’m comfortable with him having,” he said.

Asked about earlier this month about Shirkey’s concerns and if the state intended for this to unfold the way it has with the way it crafted the waiver, DHHS spokeswoman Lynn Suftin said the transition to the exchange is being implemented in compliance with federal law.

In addition, Sutfin said Shirkey “has made us and the Governor’s office aware of his concerns and our legal teams are reviewing.”

Analysis: State Saves $2.5M From 3K People Keeping Healthy MI Coverage

Of the 13,550 people warned they could be moved from Healthy Michigan to a plan on the federal health insurance exchange, 27 percent of them have jumped through the hoop necessary to keep their Healthy Michigan coverage.

If the rest of that original group of people do not complete their health risk assessment (HRA), one analysis has the state paying potentially up to $6.4 million more in costs associated with moving those folks to the commercially-priced health insurance exchange market.

If all 13,550 people from that original cohort had opted against the HRA, that could’ve cost the state $8.9 million if they had all moved over to the federal insurance exchange, meaning at this point the state has staved off $2.5 million it might have had to pay otherwise.

The $6.4 million cost estimate—calculated with help from the Michigan Association of Health Plans’ analysis of health insurance exchange premium prices—is on track with what the Michigan Department of Health and Human Services has already asked for in additional spending this year.

The state requested $6 million for this year to cover what it says is half of the year’s costs in the transition. Of that, $345,000 would come from the General Fund. The Legislature has not yet considered the supplemental request.

However, another 1,451 letters were issued in March to people who have been on Healthy Michigan for at least one year and who had not completed the HRA. And the state expects to send out about 1,500 letters each month, said DHHS spokesperson Lynn Suftin.

As of March 22, there have been 3,777 people who were contacted in the first group who have done the HRA, meaning they keep their Healthy Michigan coverage.

Due to a variety of factors, it’s going to cost the state more to have this population of Healthy Michigan beneficiaries move over to the marketplace than to just stay on Healthy Michigan.

But to figure out how much that could be, MIRS sought out estimates of the average cost of a Healthy Michigan plan, as well as the costs of plans provided on the federal exchange.

Dominick Pallone, executive director of the MAHP, analyzed the non-tobacco prices for health insurance products sold on the individual market exchange, based on a list of plans provided by the Michigan Department of Insurance and Financial Services.

From that, the aggregate average of monthly premiums was estimated at $385.25 per month, according to Pallone’s analysis.

In comparison, Pallone said a rough composite estimate of Healthy Michigan is around $330 per member, per month.

From there, the difference between Healthy Michigan and a commercial plan on average would be roughly $55 per month in additional costs for taxpayers, Pallone said.

So that $55 multiplied by 12 months and by the number of people from that original group of people notified—9,773 people—who have not completed an HRA produces the estimate of $6.4 million.

The state’s match rate for Medicaid is 6 percent, so about $387,010 of those estimated costs would need to come straight from the GF.

But that $6.4 million gross cost estimate is a moving target, given the fact that people may be completing their HRAs and thus able to stay with Healthy Michigan—albeit with more cost-sharing.

That, and a new batch of people newly eligible for the transition to the exchange will be contacted each month by DHHS.

So the number of people who complete their HRAs will impact how much it will cost to transition folks over to the federal exchange.

It’s not clear yet how many people will complete their HRAs. It’s also not clear how many people will eventually become eligible to transition over to the marketplace from Healthy Michigan.

The Healthy Michigan program has more than 687,000 people enrolled in total.

Lansing Lines is presented in cooperation with MIRS, a Lansing-based news and information service.

Buried In The Budget Bill Are Belated Gifts For Some Health Care Providers

When President Donald Trump signed the last-minute budget deal into law earlier this month, the news coverage emphasized how the bill boosted military funding, provided tens of billions in disaster aid and raised the debt ceiling.

But buried deep in the 652-page legislation was a repeal of a limit on Medicare coverage of physical and occupational therapy. It received little public attention, but to the American Physical Therapy Association, this headline was decades in the making.

The group had spent 20 years lobbying to reverse a component of the Balanced Budget Act of 1997, which would have limited patients to $2,010 worth of occupational therapy a year, and another $2,010 of physical therapy and speech-language pathology. Each time the limit was about to kick in, APTA managed to postpone its implementation — sometimes for just months, sometimes for another year or so.

Justin Moore, APTA’s CEO, quit his job as a physical therapist in Missouri and moved to Washington, D.C., in 1999 specifically to lobby Congress full time about staving off these so-called therapy caps. He recalls recruiting thousands of physical therapists to protest on Capitol Hill, long hours lobbying in congressional offices and eleventh-hour victories to keep the cap from taking effect.

Just hours after Trump signed the sweeping bill, Moore joked: “I’ve got to figure out what to do next,” celebrating the victory with cupcakes in his Virginia office.

It’s a story of one long-fought battle, marked by legislative twists and convolutions, procrastination and budgeting witchcraft. But it provides a window into the bizarre world of the way much of health care financing gets done in Washington — as an afterthought and via backroom negotiations.

“This is a miniature version of what we also have as the inefficiencies of health policy and health care,” said Thomas Miller, a resident fellow at the conservative American Enterprise Institute, a Washington think tank. “We do a lot of things that burn up resources and energy, and we treat them as a big deal, and that tends to keep you down in the trenches, shooting at things in front of you and not looking at the larger picture.”

In their enthusiasm to pass a budget this month, Congress included permanent dissolution of the therapy caps — 277 pages into the bill. The bill contained several other measures meant to placate medical constituencies by fulfilling their financial requests: for instance, forestalling payment cuts to so-called Disproportionate Share Hospitals, which treat higher proportions of low-income patients, and continuing a payment bump to certain rural home health providers.

An Arbitrary Amendment

The therapy cap came as an amendment to the 1997 budget bill, part of a “big push to reform entitlements,” recalled Katherine Hayes, health policy director at the D.C.-based Bipartisan Policy Center, who worked at the time for Rhode Island Republican Sen. John Chafee, then the chair of the Senate subcommittee on health care.

Its inclusion was somewhat arbitrary — “an assignment … to get some savings in the health sector,” recalls Sen. Ben Cardin (D-Md.), who at the time was a junior member of the House Ways and Means Committee, where the proposal originated.

Others recalled some concern that Medicare was paying too much for physical therapy and a hope that limiting coverage might help control these costs.

Since lawmakers “had to reach the target [for savings], it went into the package. Once it went into the package, it was enacted and became law,” said Cardin, who has introduced numerous bills over the years attempting to repeal the caps.

Almost immediately, backlash came from a small but impassioned therapy contingent, willing to devote the bulk of its lobbying resources to this one issue, with effect. Lawmakers on both sides of the aisle balked when it came to actually implementing the caps.

Over the years, that resistance translated into Capitol Hill rallies, starring speakers such as Maine Republican Sen. Susan Collins, who would wear and remove baseball caps — metaphorically “lifting the cap,” Moore recalled. It also meant full-court-press phone-a-thons from the nation’s physical therapy community, calling on Congress to extend the delay, usually by attaching legislative language to whatever must-pass spending bill or health care funding measure was moving through the pipeline.

The therapy lobby kept the legislative patches going, but efforts always stopped short of a full repeal, many recalled. This solution allowed lawmakers to have it both ways: They did not have to take a generous popular benefit, physical therapy, away from voters. But they continue to support a budget amendment aimed at taming runaway spending.

“For a number of years, we thought [the cap] was not a thoughtful approach,” said Cybele Bjorklund, who worked from 1995 to 2015 as a Democratic staffer in Congress. “Many Republicans also realized pretty early on this was not good policy. But again — nobody wanted to then pay to get rid of it.”

And so, sidestepping imposition of the therapy cap was achieved by adding the delay into a hodgepodge of small health initiatives, known as the “extenders,” which are addressed every few years. In 2006, Congress switched from delaying the cap to simply allowing for easy exceptions for patients who needed therapy beyond the stipulated limits.

On the balance sheet for the budget bill that passed this month, the nonpartisan Congressional Budget Office estimated the permanent therapy cap repeal will cost more than $6 billion over the next decade.

A Few Hiccups And, Ultimately, Repeal

The ups and downs of the therapy cap provision kept APTA in business — providing fodder to mobilize their members and resulting in increasing lawmakers’ interest in a permanent deal, Moore said. Political gamesmanship and partisan bickering resulted in brief lapses — in late 2003, for a month in 2006 and in early 2010 — when lawmakers failed to patch together a bill in time.

Meanwhile, the estimated cost of forestalling or mitigating therapy caps grew more expensive each time around.

An effort to incorporate repeal of the caps into the 2010 Affordable Care Act failed, partially, Bjorklund recalled, because Democrats wanted the sweeping health law as a money saver. That meant every penny counted, and even a few billion dollars represented deadweight.

In 2015, a proposed Senate amendment to a larger bill on doctor payments again would have ended the therapy caps. It was ruled out of order after falling two votes short of a motion to waive concerns about its relevance.

That exhaustive 20-year effort laid the groundwork for this month’s deal. When Bjorkland heard that therapy caps could be on the table for this year’s budget bill?

“I remember saying, ‘Please, just get rid of it, will you? Finish it off!’” she said.

Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente. http://www.kaiserhealthnews.com

Engler Moves To Fire Osteopathic Dean

In an email letter to members of the Michigan State University Board of Trustees, the university’s new interim president, John Engler, reports he wants to fire Dr. William Strampel, Dean of the Osteopathic Medical School since 2002, for his role in the Larry Nassar case.

The President’s recommendation, after five days on the job, requires an affirmative vote of a faculty hearing committee to reverse his tenure.

Strampel has been on medical leave since last December.

According to an MSU news release, he was accused of not following-up on the medical procedures he asked Nassar to follow after a joint FBI and campus police department investigation into sexual abuse allegations concerning Nassar.

The release quoted Strampel as saying he did not “see the need to follow up to ensure” Nassar complied with the recommendations to use a rubber glove and have another adult in the room during his medical exams.

“William Strampel did not act with the level of professionalism we expect from individuals who hold senior leadership positions, particularly a position that involves student and patient safety,” wrote Engler. “Further allegations have arisen that question whether his personal conduct over a long period of time met MSU’s standards. We are sending an unmistakable message today that we will remove employees who do not treat students, faculty, staff, or anyone else in our community in an appropriate manner.”

Engler added that he hopes the “courageous survivors” of Nassar’s abuse “will see this as an unmistakable indication that things are changing quickly at Michigan State.”

This story presented in cooperation with MIRS, a Lansing-based news and information service.

Former U-M Pediatric Doc Charged With Child Pornography

A former University of Michigan-affiliated pediatric rheumatologist who was investigated for having sex with a patient is facing federal child pornography charges, according to a federal complaint unsealed Feb. 12.

Mark Franklin Hoeltzel, 46, stood mute—meaning a not guilty plea was entered for him—in front of U.S. District Magistrate Judge Elizabeth A. Stafford. He is charged with receipt of and possession of child pornography. He faces up to 20 years in prison if convicted as charged.

U.S. Assistant Attorney General Mollie O’Rourke asked that Hoeltzel be immediately detained, which Stafford granted.

Defense attorney Raymond Cassar said he demanded the hearing to argue for his client’s release because he believes Hoeltzel, who had returned from treatment out of state when he was arrested, is not a risk of flight nor is he a risk to the community.

“He was coming back into the state when they arrested him and the government knew that; we had made arrangements for him to come back,” Cassar said. “The biggest reason I want to get him out on bond is to get him back into treatment here in Michigan.

“That’s important for him. The treatment he’s undergoing is important for him. It’s important for his growth and to address the charges,” added Cassar, declining to elaborate on the treatment. “Mark Hoeltzel is a good man. He’s never been in trouble before and I need to remind all . . . readers he is presumed innocent. We are looking forward to our day in court.”

Cassar did not speak about the specific allegations except to acknowledge the charges.

The complaint, filed in U.S. District Court in Detroit, said the investigation began Dec. 4 when Ann Arbor law enforcement learned the state’s Department of Licensing and Regulatory Affairs (LARA) was investigating the Ann Arbor doctor “for having a sexual relationship with a female patient.”

That investigation lead to a search warrant of Hoeltzel’s Ann Arbor home on Dec. 11 where investigators seized a flash drive that contained about 210 images of child pornography and a Dell laptop that contained about 94 images of child pornography, according to a complaint authored by U.S. Homeland Security Investigations Special Agent Michael MacBride, who noted that the images contained about 71 unique files between both devices and the rest were duplicates.

The files, created or accessed between 2008 and May 17, 2017, contained primarily images of minor females with their genitals exposed “in a lascivious manner,” according to the complaint.

Hoeltzel’s patient told authorities in December that she had been treated for rheumatoid arthritis for years and that at age 18 the doctor sent her a text message instructing her to make an appointment with him, according to court documents.

The patient told authorities that during the first appointment, Hoeltzel “grabbed her from behind, pulled her butt into his groin, and rubbed his erect penis on her” and they “engaged in regular and frequent sexual acts” at his clinic and her home, MacBride’s complaint noted.

The complaint further alleges that Hoeltzel discussed his 12- to 15-year-old patients with the woman, describing the teens as “hot.” The woman also said Hoeltzel spent “many occasions” with her at his clinic engaged in sex acts and not providing medical treatment.

MacBride’s complaint describes the complainant as a “vulnerable” person who has a “chronic debilitating condition, which causes her to have a dependency on narcotic prescription pain medication in addition to mental health diagnoses.”

In January, Attorney General Bill Schuette’s office said Hoeltzel began texting the woman, then 17, after he saw her at the clinic when she received treatment from another doctor. Hoeltzel transferred the patient’s care to himself.

Schuette’s office also said Hoeltzel exchanged emails and online messages with an 11-year-old patient he met at a U-M Arthritis Camp in 2004. The exchanges lasted through 2006, and were “flirtatious and suggestive” messages, which the girl’s mother reported to the Arthritis Foundation, who was responsible for the camp.

After the mother reported it, university officials required Hoeltzel to undergo a “boundaries course,” according to the complaint.

As of Monday, Hoeltzel has not been charged in connection with the relationship with his patient or in connection with the allegations about the 11-year-old child.

MacBride said a LARA investigator also reviewed Hoeltzel’s prescriptions for his patient and determined that he prescribed narcotics “beyond and outside of recommendations for a patient” with the woman’s diagnoses.

LARA suspended Hoeltzel’s medical license on Dec. 21 on U-M initially suspended Hoeltzel, whose employment was later terminated.

Jake Jacobson, director of public relations for Children’s Mercy Hospital in Kansas City, Missouri, confirmed Monday that the hospital warned Hoeltzel’s former patients there that he had been accused of sexual misconduct with two Michigan patients.

Hoeltzel worked for the Missouri hospital between 2007 and 2013.

Jacobson said the hospital began a “thorough internal investigation” in late January when it learned about the allegations against Hoeltzel in Michigan. He could not say whether any patients reported misconduct by the doctor nor could he say whether the investigation includes allegations of child pornography.

Cassar said he was not aware of the Children’s Mercy investigation.

This story presented in cooperation with MIRS, a Lansing-based news and information service.

COMPLIANCE CORNER: State OIG Initiating Aggressive Pharmacy Inventory Audits

Recently, we have received reports that the Michigan Department of Health and Human Services (MDHHS) Office of Inspector General (OIG) is conducting aggressive audits of pharmacies that concentrate on invoice and inventory records. In most cases, the targets of these invoice and inventory audits are independent pharmacies. According to the OIG, the purpose of inventory audits is to ensure that a pharmacy is not billing Medicaid for more drugs than it purchased. But the methodology utilized by the OIG is susceptible to error, resulting in inaccurate overpayment demands, and there are questions as to the legality of these types of audits prior to July 1, 2015. This article will explore the legal framework governing inventory audits and one of the many legal defenses being raised by pharmacies subject to recoupment as a result of this type of audit.

Pharmacies, like any other healthcare provider, are required to comply with various federal and state laws, as well as state policies as a condition of participation in the Medicaid program. The OIG relies on authorities contained within the Medicaid Provider Manual, as well as its general powers under the Social Welfare Act, 400.1 et. seq., and Executive Reorganization Order 2010-1, MCL 333.26368, to perform inventory audits.

While the OIG has broad powers to conduct audits and recoup funds paid in excess to which a pharmacy is entitled, its power is tempered by notice requirements. MDHHS is required to provide notice to each provider of a change in policy or procedure affecting providers, MCL 400.111a(6). “[A] person is not required to resort to, and shall not be adversely affected by, a matter required to be published and made available, if the matter is not so published and made available.” MCL 15.241. Documents that are required to be published and made available to the public by a state agency include “written statements that implement or interpret laws, rules, or policy, including but not limited to, guidelines manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions.” Id.

On June 1, 2015, pharmacy providers received notice of a new proposed policy, MSA 15-15, which required pharmacies to maintain various records, including invoices, manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records, to support the quantity of goods paid for by Medicaid during the audit period. Under this policy, failure to maintain these records would result in recoupment of pharmacy funds. MSA 15-15 was characterized as an “addition” to pharmacy audit policy to support the ability of the Department to recover funds where there is insufficient documentation of inventory and purchase histories. Prior to MSA 15-15, the Medicaid Provider Manual did not explicitly provide that failure to maintain invoices, manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records would result in recoupment.MSA 15-15 went into effect on July 1, 2015, and was incorporated into the Pharmacy chapter of the Medicaid Provider Manual in subsection 19.2— an entirely new subsection— on October 1, 2015. Although subsection 19.2 has only been in effect since July 1, 2015, the OIG has relied on this section to support audits of pharmacy invoice records from the last seven years.

Outside of subsection 19.2, the OIG is utilizing general policies applicable to all providers to support inventory audits prior to July 1, 2015. The “Record Keeping” section of the General Information for Providers chapter of the Medicaid Provider Manual requires all providers, including pharmacies, to maintain certain fiscal records for a period of seven years. One type of fiscal record that must be maintained is purchase invoices for items offered or supplied to the beneficiary. Medicaid Provider Manual, General Information for Providers, §§ 15.1 and 15.6; See also MCL 400.111b. However, this general policy does not require pharmacies to maintain the other types of documents listed in subsection 19.2, including manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records, and it does not provide that failure to maintain these records will result in recoupment.

Thus, pharmacies hit with overpayment demands by the OIG are challenging the results of inventory audits before July 1, 2015 on the ground that, prior to that date, the Pharmacy chapter of the Medicaid Provider Manual did not provide that failure to maintain the comprehensive list of documents identified in subsection 19.2 would result in recoupment. This issue is currently under review by Administrative Law Judges in the Michigan Administrative Hearing System.

Notwithstanding any potential legal defenses that may exist, Pharmacies should take inventory audits by the OIG very seriously. There could be devastating financial consequences if a pharmacy fails to maintain the documentation listed in subsection 19.2 of the Pharmacy chapter of the Medicaid Provider Manual for a period of seven years. For additional information, please contact a Wachler & Associates attorney at 248-544-0888.

Sarah Hillegonds is an associate attorney at Wachler & Associates, P.C. Ms. Hillegonds practices in all areas of healthcare law and devotes a substantial portion of her practice to representing health care entities in the defense of RAC, Medicare, Medicaid and third-party audits. Ms. Hillegonds also represents healthcare providers in licensing matters.


ON POINT WITH POs: Wanted: A Connected Network Of Michigan Upstreamists Focused On #SDOH

The upstreamists are coming! The upstreamists are coming! If you know what I’m talking about, I’ll consider you a loyal follower of this column—or someone who is already attuned to the social determinants of health (#SDOH). In my October 2017 column, I discussed a call to action on #SDOH and cited the upstreamist term used by Rishi Manchanda, MD, a physician and public health innovator who has worked in South Central Los Angeles and advocates for incorporating #SDOH into primary care.

I couldn’t be more excited to announce that Dr. Manchanda will be coming to Michigan (for the first time!) when MedNetOne joins with the Oakland University School of Health Sciences on Wednesday, April 18 to present a day-long symposium at OU on #SDOH, Better Upstream Health for Better Downstream Care. Dr. Manchanda will be joined by healthcare innovator Paul Grundy MD, MPH, who just stepped down after a stellar career as IBM’s Global Director of Healthcare Transformation and is considered the “godfather” of the Patient Centered Medical Home.

A quick review: social determinants of health may include:
• Economic resources, including access to jobs that provide a living wage
• Safe workplaces and safe neighborhoods
• Quality of schools and availability for advanced education and training
• Clean and safe water, air and food
• Positive support systems through home and family relationships and extended social interactions

The broad spectrum of factors comprising #SDOH can make it challenging to know where to begin when managing health crises that arise as a result of inadequate understanding of the role #SDOH play in overall health and quality of life. To this end, Better Upstream Health for Better Downstream Care is an important event – but not only for those directly involved with providing healthcare and administering healthcare programs or organizations. It’s planned as a community event to engage the healthcare community, legislators, local and state leaders, business decision makers and concerned citizens who want to be part of the solution for holistic healthcare that addresses the role that #SDOH play in overall health and wellness.

Tragically, we have all seen how #SDOH has played out in Flint and with other social and environmental disasters. This conference is a call to action to identify new opportunities for innovative programs and cross-sector partnerships to drive change across and between social services and health systems and help galvanize current and potential upstreamists as part of the solution. No one person or organization can do this alone. With more upstreamists in the community we can enhance and target efforts to raise awareness of -and act on- #SDOH in the broader public health conversation. Upstreamists investigate and aim to resolve the root cause of illness or lingering ill health; they don’t necessarily treat symptoms. Although physicians can certainly be upstreamists, as Drs. Manchanda and Grundy have already shown, we also need a greater reach and buy-in. We need pharmacists, clinicians, community health workers, social workers, behavioral health specialists, public health experts and public interest attorneys. We also need students like those at OU’s School of Health Sciences and other academic disciplines, including liberal arts, engineering and computer science, to be thinking of new ideas and innovations that address #SDOH.

It’s a new era, and we need all hands on deck to make measurable change through multi-disciplinary initiatives. Please join us on April 18 and help Michigan launch an upstreamist community network.

To register for the event or for sponsorship information, visit https://www.oakland.edu/shs/healthology/. If you want to help Michigan be a leader in developing upstreamists, contact me at ematuszewski@mednetone.net