Healthcare Regulation Update: Centers for Medicare and Medicaid Services Announces Enrollment Moratorium On New Home Health Agencies in Miami-Dade and Monroe Counties

Jul 30, 2013   

Last week, from July 23-25, the Home Care Association of Florida held its annual convention in Orlando, Florida. We were actively involved in the convention, and among the many discussions we participated in was the federal government’s increased (and sometimes confusing, abusive, and ultra vires) efforts at combating fraud, waste, and abuse in the home health industry in Florida. Coincidentally, only a day after the conference concluded, the Centers for Medicare and Medicaid Services (“CMS”) announced its imposition of a moratorium on the enrollment in the Medicare, Medicaid, and Children’s Health Insurance Program (“CHIP”) of home health agencies in Miami-Dade and Monroe counties to prevent and combat fraud, waste, and abuse. A copy of CMS’s notice announcing the moratorium can be read here and will be published in the Federal Register on July 31, 2013.

Pursuant to section 6401(a) of the Patient Protection and Affordable Care Act and its implementing regulation found at 42 C.F.R. § 424.570, the Secretary of the Department of Health and Human Services (“HHS”), of which CMS is a member agency, is authorized to implement a temporary moratorium on new enrollment by fee-for-services providers and suppliers, if the secretary determines that such a moratorium is necessary to prevent or combat fraud, waste, or abuse. Additionally, pursuant to section 1866(j)(7)(B) of the Social Security Act, the Secretary’s decision to impose a temporary enrollment moratorium is not subject to judicial review.

In deciding to implement the moratorium, CMS looked at a variety of factors. First, CMS consulted with the Office of Inspector General (“HHS-OIG“) and the Department of Justice (“DOJ“) which cited the significant potential for fraud in Miami-Dade County. Second, CMS compared Miami-Dade to other similarly sized metropolitan areas and found that Miami-Dade had approximately 38 home health agencies per 10,000 beneficiaries while the national average for similar sized areas is approximately 2 agencies per 10,000 beneficiaries. In addition, CMS found that Miami-Dade HHAs frequently had excessive “outliers” and payments to HHAs in Miami-Dade were 77 percent greater than the average for comparison counties. (In simple terms, outliers provide Medicare providers with additional payment for high cost cases. Under the prospective payment system, CMS adjusts basic prospective payments for unusually high costs. These additional payments are known as “outlier” payments and are designed to protect providers and suppliers from excessive losses due to unusually high-cost cases.) Further, excessively high outliers continue to exist in Miami-Dade despite CMS’s efforts to limit outlier payments through policy change.

CMS’s rationale for the moratorium in Monroe County was more prophylactic in nature. As explained by CMS:

Florida has divided the state into 11 home health “licensing districts,” that prevent a home health agency from providing services outside its own licensing district. Monroe is the only bordering county within the same licensing district as Miami-Dade. CMS has determined that it is necessary to extend this moratorium to Monroe to prevent potentially fraudulent HHAs from enrolling their practices in a neighboring county to avoid the moratorium.

However, CMS found it was not necessary to extend the moratorium to other counties in South Florida, such as Broward and Palm Beach, because “the state’s home health licensing rules ”¦ prevent providers enrolling in these counties from serving beneficiaries in Miami-Dade.” It remains to be seen whether the moratorium will actually prevent waste, fraud, and abuse or merely shift it to other large population bases (such as Broward and Palm Beach counties) throughout the state.

As a result of the moratorium, new home health agencies will be barred from enrollment for the next six-months. Additionally, should CMS believe it is necessary, the moratorium may be extended in six-month increments. Existing providers will not be affected by the moratorium and will be allowed to continue to participate in the Medicare, Medicaid, and CHIP programs. However, we remind those providers still operating in South Florida that combatting fraud among Miami-Dade HHAs has remained a major priority for CMS since as early as 2007 and we expect that these providers will remain under the CMS microscope for years to come.

The health law attorneys of Fuerst Ittleman David & Joseph, PL have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services. For more information, please contact at 305-350-5690 or contact@fidjlaw.com.