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Posts tagged "CMS"

U.S. District Court Grants Injunction Staying CMS Ban on Pre-Dispute Binding Arbitration Agreements

On November 7, 2016, the U.S. District Court for the Northern District of Mississippi granted the motion for preliminary injunction filed by the American Health Care Association (AHCA) and other plaintiffs, staying the November 28, 2016 effective date of the ban on pre-dispute binding arbitration agreements imposed by the Centers for Medicare & Medicaid Services (CMS). CMS has the right to appeal the District Court's decision to the Fifth Circuit Court of Appeals. At this point in time, we have not had confirmation as to whether CMS will invoke its right to an appellate court review of the District Court's ruling.

CMS Imposes Ban on Pre-Dispute Binding Arbitration Agreements in Nursing Facilities

On September 28, 2016, the Centers for Medicare & Medicaid Services ("CMS") issued the final Requirements of Participation ("Final Rule") for nursing facilities. The Final Rule becomes effective on November 28, 2016. A key provision under the Final Rule is the ban on pre-dispute binding arbitration agreements. Nursing facilities that participate in the Medicare or Medicaid programs are prohibited from: (a) entering into a pre-dispute arbitration agreement with a resident or a resident's representative; and (b) requiring a resident to sign an arbitration agreement as a condition of admission. In light of the Final Rule, facilities that currently utilize a pre-dispute binding arbitration clause or agreement have a couple of potential options. One option is to wait and see if any litigation is filed by any providers supported by their representative trade association to challenge the regulation. In such event, an injunction most likely would be requested, and if granted, would stay the implementation date of the ban until a decision could be made on the merits of CMS' rulemaking. Another option is to develop a plan to amend your current arbitration clause or agreement to conform to the new rule. Facilities that utilize a separate stand-alone agreement would need to discontinue its use by the effective date. Facilities that have an arbitration clause within their admission agreement could either strike it out or remove it from the admission agreement.

Provider Right to Sue for Adequate Rates in Federal Court Severely Restricted

In Armstrong v. Exceptional Child Center, Inc., the United States Supreme Court found that providers do not have a private right of action under §30(A) of the Medicaid Act to require a state to increase Medicaid payment rates, significantly impacting the ability of providers to sue states in federal court to challenge Medicaid rates. Section 30(A) of the Medicaid Act, often referred to as the "Equal Access Provision," requires states to:

Proposed Home Health Conditions of Participation

The Centers for Medicare & Medicaid Services (CMS) published a proposed rule (CMS-3819-P) on October 9, 2014, that would revise Medicare's Home Health Agency (HHA) Conditions of Participation (COPs). Specifically, the proposed health and safety requirements would focus on the care delivered to patients by HHAs, reflect an interdisciplinary view of patient care, allow HHAs greater flexibility in meeting quality care standards and eliminate unnecessary procedural requirements. CMS has not updated the HHA COPs since 1989.

CMS Presses Pause on RAC Reviews

On February 18, 2014, the Centers for Medicare and Medicaid Services (CMS) announced that it had suspended the ability of Recovery Audit Contractors (RAC) to request documents for claims reviews until CMS has had an opportunity to finish the procurement process for new RAC contracts. Under the Recovery Audit Program, RACs are charged with identifying improper Medicare payments. The Program has long been a source of controversy, in part because RACs are paid a contingent fee based on a percentage of claims they deny. Currently, this fee ranges from 9% to 12.5%.

CMS Issues Clarification on NF Compliance Program Mandate

As we recently reported, Section 6102 of the Affordable Care Act ("ACA") requires all nursing facility providers to have a Corporate Compliance Plan in effect by March 23, 2013. While the ACA required the Office of the Inspector General ("OIG") to promulgate regulations to provide guidance to facilities on the content, scope and requirements of this mandate, to date, the OIG has yet to issue any written materials.  Last week, CMS advised that it is likely that such regulations will not be issued until later in 2013.  CMS further stated that it will not enforce the statutory mandate until final regulations are issued. In the interim, providers should continue their existing compliance efforts, consistent with current guidance promulgated by the OIG.

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