Rule Ends Required Arbitration for Nursing Home Residents
The Centers for Medicare & Medicaid Services said in a statement that its final rule makes “major changes to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs.” The agency said the policies in the final rule are targeted at reducing unnecessary hospital readmissions and infections, improving the quality of care and strengthening safety measures for residents in these facilities.
A Sept. 28 blog posting by two CMS officials said “the rules of the road for long-term care facilities haven’t had a comprehensive update since 1991. Today, we are pleased to announce that we have finalized new rules to protect and empower residents of long-term care facilities.” The officials—Andy Slavitt, the CMS’s acting administrator, and Kate Goodrich, director of the Center for Clinical Standards & Quality—said in their blog post that, as of Nov. 28, the rule “will prohibit the use of pre-dispute binding arbitration agreements.” This means that facilities may not require residents to sign pre-dispute arbitration agreements as a condition of admission to that long-term care facility, they said.
The agency officials said, “Historically, many facilities require residents to agree to binding arbitration clauses when they are admitted to these facilities. These clauses require the resident to settle any dispute that may arise using arbitration rather than the court system.” The CMS officials added that facilities and residents will still be able to use arbitration on a voluntary basis at the time a dispute arises. “Even then, these agreements will need to be clearly explained to residents, including the understanding that these arbitration agreements are voluntary, and that these agreements should not prevent or discourage residents and families from talking to authorities about quality of care concerns,” the officials said.
The rule (CMS-3260-F; RIN:0938-AR61) will be published Oct. 4 in the Federal Register.
Hospital Merger Stalls After FTC Court Win
Two Pennsylvania hospitals must put their merger on hold while the Federal Trade Commission examines the deal’s competitive impact, a federal appeals court decided (FTC v. Penn State Hershey Med. Ctr., 2016 BL 317602, 3d Cir., No. 16-2365, 9/27/16). The decision by the U.S. Court of Appeals for the Third Circuit vindicates the FTC’s long-established method for calculating market shares in hospital mergers. It also reverses the agency’s first loss on a hospital merger challenge in more than a decade and may bode well for the agency’s lawsuit over another proposed hospital merger currently pending before the Seventh Circuit in Chicago. The Third Circuit applied the FTC’s method for defining the geographic market in hospital merger cases, which is a boost for future cases. The court’s analysis is extraordinarily friendly to the FTC’s hypothetical approach to market definition in these mergers.
House GOP Passes Exemption From Health Insurance Mandate
House Republicans defied unified Democrats in passing a bill that would exempt from penalties people who were enrolled in health plans with one of the 17 failed CO-OPs created under the Affordable Care Act. The House voted 258-165 on Sept. 27 to pass the bill (H.R. 954). Democrats were united in their opposition to the bill, and the White House warned that President Barack Obama would veto the bill if it reached his desk.
The proposed exemption would undermine the individual mandate, the crucial provision of the ACA that requires all Americans to have health insurance or face a penalty, Rep. Jim McDermott (D-Wash.) said Sept. 27 on the House floor.
“This bill undermines the individual shared responsibility provision of the ACA, which is important in making many of its benefits possible, including no one being denied coverage, no pre-existing conditions and no gender discrimination,” Rep. Sander M. Levin (D-Mich.) said. Rep. Adrian Smith (R-Neb.), the main sponsor of the bill, countered that the legislation was narrowly tailored to protect from the tax penalty the few people who were unable to enroll in a new health plan after their Consumer Operated and Oriented Plans (CO-OPs) collapsed.
Addiction Drug Prescribers Get New Reporting Requirements
Qualified doctors prescribing the addiction treatment drug buprenorphine will be subject to new reporting requirements, according to a final rule released Sept. 23. The final rule will require practitioners to provide information on their annual caseload of patients by month and the number of patients provided behavioral health services and referred to behavioral health services. In addition, the rule will mandate that practitioners report on their plans to counter diversion, or the unauthorized distribution, of buprenorphine.
The rule (RIN:0930-AA22) is part of an expanded administration initiative to combat opioid abuse. It comes as the House and Senate are considering authorizing $37 million in grants to states for opioid abuse prevention. Updated reporting requirements under the rule go into effect Oct. 27. The rule is scheduled for Sept. 27 Federal Register publication.
The final rule is meant to help HHS ensure compliance with a separate final rule from the Substance Abuse and Mental Health Services Administration (SAMHSA) setting requirements for prescribers of buprenorphine. SAMHSA is part of the Department of Health and Human Services. That rule (RIN:0930-AA22), published in the July 8 Federal Register, increased the limit on the number of patients that practitioners can treat with buprenorphine to 275, nearly triple the previous cap of 100 patients. That change went into effectAug. 12.
Proposed Rule Would Bolster Medicaid Fraud Program
The Medicaid anti-fraud programs in each state would get more federal funding and enhanced prosecutorial discretion under a proposed rule released Sept. 19. The proposed rule (RIN:0936-AA07) would codify statutory changes to the Medicaid Fraud Control Unit (MFCU) program that have been made since the program began in 1977, such as increasing the federal matching rate for MFCU operations from 50 percent to 75 percent. The proposal also would formally allow MFCUs to investigate and prosecute patient abuse cases, even in facilities that don’t receive Medicaid funds.
The MFCU rule hasn’t been updated in over 30 years, during which time a number of statutory changes have been made, such as requiring that MFCUs coordinate with Health and Human Services Office of Inspector General investigators and federal prosecutors on cases. The OIG has used program and policy guidance, on-site reviews and reporting requirements to loosen some MFCU requirements and tighten others over the last 30 years.
The proposed rule was jointly released by the Centers for Medicare & Medicaid Services and the OIG. It was published in the Sept. 20 Federal Register (81 Fed. Reg. 64,383), and comments are due by Oct. 31. MFCUs operate in 49 states and the District of Columbia and are designed to investigate and prosecute Medicaid fraud. The OIG has oversight responsibility for MFCUs and determines whether to recertify individual MFCUs on an annual basis.
Medicare Advantage Premiums Down Slightly for 2017
The average Medicare Advantage monthly premium will decrease by 4 percent to $31.40 in 2017, the Medicare agency said Sept. 22. Although premiums vary by county, on average they will drop by $1.19 from $32.59 in 2016, the Centers for Medicare & Medicaid Services said.
The average premium for a basic Medicare Part D prescription drug plan will increase to $34 per month from $32.56 in 2016. The agency said about two-thirds of MA enrollees—67 percent—will not see an increase.
In addition, the agency said over 94 percent of Medicare beneficiaries will have access to a zero-premium Medicare Advantage plan. The decline in premiums is good news for the rising number of Medicare Advantage plan subscribers, according to the CMS. “Medicare enrollees will continue to have access to predictable premiums and high quality care,” Andy Slavitt, the agency’s acting administrator, said in a statement.
John Zang, DMGS Ohio Contributed to this Report