Updated on: June 17, 2020

COVID will become an Excuse for Future RAC and MAC Audits

Original story posted on: June 16, 2020

If you err, err on the side of the patient.

Being nice can get you in trouble. But as David Glaser, Dr. Ronald Hirsch, and I have said over and over, being nice and putting patient care first should be the excuse during this COVID pandemic for future Recovery Audit Contractor (RAC) and Medicare Administrative Contractor (MAC) audits. We believe that when you err or if you err, err on the side of the patient.

One of my clients is an ENT physician who routinely writes off Medicare co-pays, and not because of any malicious intent. On the contrary, she has a huge heart, and lives in a rural portion of Idaho. However, writing off co-pays, even for charitable reasons, can cause Medicare to investigate you of trying to decrease the cost of Medicare.

We all know that if you are going to make money with skilled nursing, then you have to watch the financial trends, all of which will demonstrate your need to accept Medicaid. You could make the business decision to only accept Medicare. But your financial charts would look like a person on life support: up and down without much consistency.

Medicare pays for nursing home care for its beneficiaries, but only pays the full amount for 20 days. For the 80 days following, Medicare will pay for 80 percent of the cost. After 100 days, Medicare does not pay for nursing home care.

Medicaid will pay 100 percent of the cost of nursing home care for its beneficiaries. However, to be eligible for Medicaid nursing home care, the patient must have very limited income and very few financial assets (ballpark limits are assets valued under $2,000 and monthly income under $2,313). Medicaid eligibility criteria is state-specific, so you would need to look up your own state’s criteria.

Unless there is a medical need for a private room in a nursing home, Medicaid will pay for a shared room only.

Well, since COVID, how many people have requested solo rooms? I know I would. Some states allow “family supplementation,” which allows family members to supplement the payment in order to upgrade their loved one to a private room. Other states consider family supplementation to be a gift that may disqualify the individual for Medicaid.

For its part, the skilled nursing industry continues to face operating headwinds, such as increased regulatory requirements, expense and staffing pressure, and reimbursement challenges stemming from RAC and/or MAC audits. One of the biggest changes in recent years has come in the shift away from traditional Medicare reimbursement (fee-for-service) toward privately managed plans, or Medicare Advantage (MA) plans, which pay for managed healthcare based on a monthly fee-per-enrollee.

As reported by the Centers for Disease Control and Prevention (CDC) and Kaiser, the growth in patients is coupled with all-time low reimbursement rates – at least in North Carolina, a private room costs $252 per day. In New York, that same daily private room costs $406.

According to exceptions implemented by COVID, CMS expanded the ability for hospitals to offer long-term care services (“swing beds) for patients who do not require acute care, but do meet the Skilled Nursing Facility (SNF) Level of Care Criteria, as set forth at 42 CFR 409.31. Under section 1135(b)(1) of the Act, CMS is waiving the requirements at 42 CFR 482.58, “Special Requirements for hospital providers of long-term care services (“swing beds”)” subsections (a)(1)-(4) “Eligibility,” to allow hospitals to establish SNF swing beds payable under the SNF prospective payment system (PPS) to provide additional options for hospitals with patients who no longer require acute care, but are unable to find placement in a SNF.

In order to take advantage of the COVID leniency, you must:

  • Not use SNF swing beds for acute-level care.
  • Comply with all other hospital conditions of participation and those SNF provisions set out at 42 CFR 482.58(b), to the extent not waived.
  • Be consistent with the state’s emergency preparedness or pandemic plan.

Do not forget to make a memorandum to file for your legal counsel to maintain.

Programming Note: Knicole Emanuel is a permanent panelist on Monitor Mondays. Listen to her live reporting every Monday at 10 a.m. EST

Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards.  She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining.  Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Practus, LLP and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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