The COVID-19 crisis is far from over, as evidenced by the 300,000 new U.S. cases reported over the past seven days. Recognizing this ongoing impact, federal and state officials have left in place many of the emergency regulatory flexibilities that were implemented in the spring and early summer to support pandemic response efforts. Notably, the July 23 renewal of the federal Public Health Emergency continues dozens of temporary regulatory flexibilities and funding sources through at least late October. In recent weeks, however, the Centers for Medicare & Medicaid Services (CMS) has announced the resumption of several previously suspended administrative activities, particularly with respect to provider oversight and claims review in Medicare and Medicaid. These moves may signal CMS’s desire to ensure minimum standards for provider qualifications and billing integrity, notwithstanding the COVID-19-related resource constraints faced by providers and state governments due to the ongoing recession, shifting healthcare utilization patterns, staffing challenges, and limited access to personal protective equipment (PPE).
Providers and state governments should be mindful of the growing list of reinstated oversight activities and should ensure that they continue to abide by all applicable regulations even while taking advantage of temporary regulatory flexibilities.
Provider Oversight and State Survey Responsibilities
Survey and Certification Activities
In March, CMS suspended all routine provider surveys and directed state survey agencies to focus on infection control and “immediate jeopardy” scenarios. Follow-up guidance in June authorized states and accrediting organizations to resume certain additional survey activities in accordance with federal and state reopening guidelines, and it also enhanced the consequences associated with infection control deficiencies. Most recently, CMS issued an August 17 memo that:
- Directs states and accrediting organizations to resume virtually all survey and enforcement activities, while recognizing that the “resumption of surveys will depend on State reopening plans, staffing, and resources,” such as access to PPE.
- Provides guidance on how to resolve previously suspended enforcement actions, including with respect to the calculation of civil monetary penalties.
- Expands state survey agencies’ ability to rely on “desk reviews” in lieu of in-person visits.
- Outlines a prioritization rubric to guide states as they work through their survey and enforcement backlog.
Medicare Enrollment Requirements
In July, CMS revised its Medicare enrollment policies to reinstate certain requirements that were previously suspended. Notably, effective July 6, CMS has:
- Resumed all provider enrollment site visits. Inspectors must follow state and local requirements regarding masks or other PPE when conducting site visits.
- Resumed all DMEPOS accreditation/reaccreditation activities. (DMEPOS refers to suppliers of durable medical equipment, prosthetics, orthotics and supplies.) Surveys may be conducted on-site and/or virtually, depending on the state’s reopening plan.
Claims Review
Medicare
On March 30, CMS suspended most Medicare Fee-For-Service (FFS) medical reviews, including pre-payment medical reviews conducted by Medicare Administrative Contractors (MACs) under the Targeted Probe and Educate program, as well as post-payment reviews conducted by the MACs, the Supplemental Medical Review Contractor (SMRC) and Recovery Audit Contractors (RACs). In August, CMS has resumed the following activities:
- Requesting medical documentation from providers in connection with the Improper Payment Measurement (IPM) program.
- Effective August 11, the Comprehensive Error Rate Testing (CERT) program will resume requesting medical documentation for FFS claims in reporting years 2021 (claims submitted 7/1/2019 through 6/30/2020) and 2022 (claims submitted 7/1/2020 through 6/30/2021). Although CERT documentation requests require a response within 45 days, the CERT program has the discretion to grant extensions to providers who need more time.
- Medicare Advantage organizations and Prescription Drug Plans may similarly begin requesting documentation to support IPM reporting for fiscal year 2021, pursuant to an August 13 memo from CMS.
- Effective August 17, the MACs are resuming post-payment reviews of FFS items/services provided before March 1, 2020. (The MACs are not yet resuming the pre-payment reviews conducted through the Targeted Probe and Educate program.)
Medicaid and CHIP
In April, CMS temporarily suspended Payment Error Rate Measurement (PERM) program activities, including data requests to providers and state agencies regarding improper payments or PERM Corrective Action Plans (CAPs). CMS has now resumed all PERM activities, effective August 11. States may contact their PERM liaison if they need additional time to respond to a PERM documentation request. CMS “will continually evaluate PERM program activities to gauge whether any future suspension might again become necessary.”
Conclusion
Providers and states should ensure that their compliance programs are prepared for the resumed oversight activities described above. Although our everyday lives may not feel like we are “back to normal,” CMS appears to be moving toward normalcy with respect to its oversight of provider standards and claims review in Medicare and Medicaid.
Please contact Julian Polaris with any questions about these reinstated oversight requirements or any other COVID-19-related emergency measures affecting healthcare providers and state healthcare programs.