News & Updates

“Current Issues Affecting PA Nursing Facilities” Seminar – 5 NHA and CPA Credits

Friday, December 11, 2020
8:15 a.m. – 2:30 p.m.
*Approved for 5 Virtual or in-person CEU credit hours for NHAs, CPAs*

CLICK HERE to view a printable, PDF flyer.

Agenda:

  • 7:45 a.m. – 8:15 a.m.     In-Person Registration                                                                             
  • 8:15 a.m. – 8:25 a.m.     Welcome & Administrative Remarks                                                                        
    Andrew R. Eisemann, Esq.                                                                                                                                                                                                

 Part I:  Labor & Employment  (1.5 Credit Hrs)                                                                                                                     

  • 8:25 a.m. – 9:10 a.m.       NLRB & Union Activity Update                                                                                                                
    Louis J. Capozzi Jr., Esq.
  • 9:10 a.m. – 9:55 a.m.       COVID-19 Employment Law Update                                                                                                              
    Brandon S. Williams, Esq.
    Corey S. Smith, Esq.   
  • 9:55 a.m. – 10:10 a.m. Mid-Morning Break

Part II:  Reimbursement & Finance (2 Credit Hrs)

  • 10:10 a.m. – 11:40 a.m.    Your Resident Accounts Receivable:  Best Practices to Maximize Reimbursement Recovery                   
    Andrew R. Eisemann, Esq.
    Daniel B. Sullivan, Esq.                                 
  • 11:40 a.m. – 12:10 p.m.   COVID-19 Relief Funds: Reporting, Compliance and Accountability 
    Daniel K. Natirboff , Esq.            
    Timothy Ziegler                                                                                                                                  
  • 12:10 p.m. – 1:00 p.m. —  Lunch Break

Part III:  Avoiding Lawsuits & Compliance/ Regulatory Update (1.5 Credit Hrs)

  • 1:00 p.m. – 1:45 p.m.        Panel:  Avoiding Lawsuits in a COVID-19 Environment                                                                                           
    Andrew R. Eisemann, Esq.
    Bruce G. Baron, Esq.
    Brandon S. Williams, Esq.
  • 1:45 p.m. – 2:30 p.m.        COVID-19 Compliance & Regulatory Update                                                                                                                           
    Bruce G. Baron, Esq.                                                                                       
    Daniel K. Natirboff, Esq.     
  • 2:30 p.m. – In-Person Social

Registration Information:

In-Person:  Radisson Hotel Harrisburg, 1150 Camp Hill Bypass, Camp Hill, PA 17011

Virtual: Zoom sign-in information provided upon RSVP.

The Registration Deadline is November 27, 2020! To Register:  RSVP to Cassie Reed at cassier@capozziadler.com or 717-233-4101. Provide your name, company, and job title. If you need NHA credit, please provide your NAB ID #. IF you need CPA credit, please provide your license number.  Please note whether you are planning on attending virtually or in-person!

Cost.  None. 

Credits

This program is approved by the National Continuing Education Review Service (NCERS) of the National Association of Boards of Examiners for Nursing Home Administrators for 5 clock hours (Program Approval Code: 20211210-5-A71585-DL); is pending approval by PACLE for 5 substantive participant hours of CLE for attorneys (Course No. TBD; In-person attendance required!);  and is approved by the Pennsylvania State Board of Accountancy (No. PX177781) for continuing education credits for CPAs.

In-person participants must sign in and out in order to obtain Continuing Education Credits for Program Hours actually attended.  Attorneys seeking PA CLE Credits must file Certificates of Attendance and pay the required fee directly to PACLE in order to obtain CLE credits. 

Objectives:  As a result of this presentation the participant will be able to…

  • Identify strategies to avoid lawsuits in long-term care.
  • Assess the impact of new COVID-19 developments in health care law and regulations on facility status and resources.
  • Evaluate the impact of recent NLRB decisions on facility workplace organization status.
  • Understand labor law developments, including medical marijuana in PA, which may require an update of employee manuals.
  • Understand how to maximize reimbursement from all payer sources in the new Managed Care system.

Prerequisites:  Prior knowledge in the area of long-term care.

Experience level:   Intermediate

Required advanced preparation:   None

Teaching methods:

  • Facilitated Lecture/Content Review
  • Interactive Panel Discussions
  • Case Study Discussions

OLTL ACT 24 Cost Reporting Update for Nursing Facilities

Below is updated guidance from the Pennsylvania Department of Health Regarding Cost Reporting. If you have questions on how this impacts your nursing facility, please contact Dan Natirboff (dann@capozziadler.com) or Tim Ziegler (timz@capozziadler.com) at our firm.

“The Office of Long-Term Living (OLTL) is delaying the due date by which nursing facilities must submit interim reports on COVID-19 impacts and the use of Act 24 funding. The new due date for interim reporting is Monday, November 30.

Unexpected delays in web portal user provisioning for OLTL providers have made it necessary to delay the due date for interim reporting by nursing facilities. OLTL anticipates nursing facilities will be able to access the Act 24 reporting web portal during the week of November 9. Nursing facilities will receive a link and instructions via email when the web portal is available.

OLTL will also offer a webinar on November 16 to give nursing facility providers a chance to ask questions about reporting COVID-19 related costs under Act 24.  OLTL will provide a link and additional details on the webinar in coming days.

In the meantime, nursing facilities should begin populating the applicable Excel reporting templates provided in the October 27 Listserv message (attached). Nursing facilities are encouraged to review the frequently asked questions documents and send any remaining questions about Act 24 reporting to act24reporting@pa.gov.

Additionally, providers are advised to review the guidance for eligible COVID-19 costs on the U.S. Department of Treasury websites Coronavirus-Relief-Fund-Guidance and Coronavirus-Relief-Fund-Frequently-Asked-Questions, and in DHS’s Frequently Asked Questions. These documents outline the conditions and acceptable uses of Cares Act and Act 24 funding. Importantly, deadline by which costs must be incurred to be eligible under Act 24 is November 30, 2020.

Any provider that does not expect to use all or part of the Act 24 funding may return the funds to OLTL at:
PA Department of Human Services
Office of Long-Term Living
PO Box 8025
Harrisburg, PA 17105-8025

Please send any remaining questions about OLTL Act 24 reporting to act24reporting@pa.gov.”

Phase 3 CARES Act Provider Relief Funding Application Due

November 6, 2020 is the deadline for providers to apply for CARES Act Phase 3 Provider Relief Funds. The Health and Human Services CARES Act Provider Relief Fund page has more information on the CARES Act and the requirements for the Phase 3 application.

Click HERE to download a toolkit provided by the Pennsylvania Department of Health.

If you have any questions that arise when preparing your application for the Nov. 6th deadline, please contact Dan Natirboff (dann@capozziadler.com) or Tim Ziegler (timz@capozziadler.com) at our firm.

Webinar: COVID-19 Relief Funds: Reporting, Compliance & Accountability

  • Date & Time: Thursday, October 29th from 1:00pm – 2:00pm Duration: 60 minutes
  • NHA & CPA Credits: This educational offering is approved for 1 hour of NHA credit (Approval Code: 20211028-1-A70854-DL) and is approved for 1 hour of CPA credit (PX177781).
  • Cost: NONE
  • Session Description: Over the past 9 months, a variety of COVID-19 relief funds have been offered to long-term care providers, including PPP funds, COVID-19 Hazard Pay Grants, and three rounds of CARES Act funding. During this webinar we will provide an overview of each funding stream and then explore the compliance measures and reporting requirements that providers need to be aware of.
  • The first half of the webinar will provide an overview of each funding source and their compliance requirements.
  • During the second half of the webinar we will look at the financial records and reporting requirements issued to date. Providers must be aware of these requirements in order to ensure that all eligible COVID expenses and lost revenues are properly documented to reduce and/ or eliminate any liability to the government agency for unused funding.
  • Speakers:
    • Daniel K. Natirboff, Esquire, Chair of Licensure, Compliance, Regulatory Practice & Enforcement Group
    • Timothy T. Ziegler, Long-Term Care Reimbursement Analyst

Registration Required:
Please RSVP to Cassie Reed at cassier@capozziadler.com or 717-233-4101. Provide your name, company, and job title. If you need NHA credit, please provide your NAB ID #. Cassie will send you the webinar sign-in information via both email and a calendar invite, within a week of the webinar.

CLICK HERE to download a printable, PDF Flyer

National Labor Relations Board (NLRB) reinstates 80-years of precedent

Employers do not have to provide unions with notice and opportunity to bargain, prior to disciplining employees while negotiating a new CBA.

On June 23, 2020, the current three members of the National Labor Relations Board (NLRB) issued their decision in 800 River Road Operation Co., LLC, 369 NLRB No. 109, overruling Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). 

The current Board determined that the prior decision, which overturned 80 years of prior NLRB precedent on the issue:
(1) conflicted with Board precedent and the rationale of the decision of the U.S. Supreme Court in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) (establishing the right to union representation during disciplinary investigations), relevant to the issue;
(2) misconstrued the general unilateral-change doctrine announced by the U.S. Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962), with respect to what constitutes a material change in working conditions; and,
(3) imposed a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practice.   

The prior decision required an employer to provide a union with notice and an opportunity to bargain before imposing discipline on any union-represented employee who was not yet covered by the terms of a collective bargaining agreement; and, for any violation, required reinstatement and backpay for the disciplined employee unless the employer could prove the discipline was imposed for “good cause” within the meaning of Section 10(c) of the National Labor Relations Act.  The Board decision will apply retroactively to all pending cases in whatever stage.
 
As a result of the decision in 800 River Road Operating Co., LLC, the effective rule, as previously discussed in Fresno Bee, 337 NLRB 1161 (2002), is that there is no predisciplinary bargaining obligation under the National Labor Relations Act.  Our Firm previously successfully argued for application of the Fresno Bee precedent and that any change to that rule had to be applied prospectively only, CPL (Linwood) LLC, 367 NLRB No. 14 (2018).
 
The new Board majorities’ major decisions that overturned prior Board decisions since 2017 include:

  1. The Boeing Co., 365 NLRB No. 154 (2017)(employee handbook rules)
  2. PCC Structurals, 365 NLRB No. 160 (2017) (composition of Bargaining Units)
  3. Supershuttle Dfw, Inc.,  367 NLRB No. 75 (2019) (returning to common law principles for determining independent contractor status)
  4. Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019) (when successor is required to bargain to avoid “perfectly clear successor” status);
  5. Johnson Controls, Inc., 368 NLRB No. 20 (2019) (providing for disputes with withdrawal of recognition of union to be resolved by post-withdrawal elections)
  6. Kroger Ltd. Partnership 1 Mid-Atl., 368 NLRB No. 64 (2019)(more flexibility to permit charitable solicitations on employer premises)
  7. MV Transportation, Inc., 368 NLRB No. 66 (2019) (adoption of “contract coverage” standards to determine employer authority to make unilateral changes to working conditions).

If you have any questions regarding this favorable pro-Employer decision or about any of the other pro-Employer decisions issued by the Trump-appointed NLRB, please contact Louis J. Capozzi, Jr. at our Firm (Email: LouC@CapozziAdler.com).

COVID-19 Legal Update

Capozzi Adler, P.C. is assisting LTC providers and small businesses with legal issues arising during the COVID-19 pandemic. To those of you in long-term care who are on the front lines caring for our country’s most vulnerable citizens:  we applaud you for your bravery and resilience during this difficult time. 

Congress is about to enact the largest economic relief effort in U.S. History, the Coronavirus Aid, Recovery, and Economic Security Act (CARES Act), with funds expected to flow quickly starting in April 2020.  State Governments are also putting in place relief programs for their citizens and businesses.  Relief will be available under these programs for businesses, self-employed individuals, employees, the unemployed, students and retirees, along with special programs and requirements for health care providers and other employers. 

Our Firm continues to provide legal services and counseling under the current public health precautions in place in Pennsylvania. We are available to assist businesses in:

  • Navigating whether the new FMLA and Paid Sick Leave requirements effective April 2, 2020 apply to them, including the special provisions relating to employees who are health care providers or first responders.
  • Applying for waivers of State limitations on operations.
  • Responding to union and employee issues related to continued operations, health and safety, under current precautions and conditions.
  • Applying for forgivable loan relief from the Small Business Administration to help sustain operations and employees, or employee retention credits under the pending $2 Trillion CARES Act, which also includes a delay in payment of employer payroll taxes.
  • Coordinating and clarifying guidance regarding resident admissions policies during the COVID-19 pandemic.

We are able to work with our clients remotely and can arrange for on-site consultation as may be required.  If you need help with business issues to get through the current crisis, do not hesitate to reach out to us.

Recent DHS COVID-19 Updates for Long-Term Care Providers:

State Budget Stretching Out Processing Time for New Home Care and Home Health Licenses

Pennsylvania has been working to rebalance its Medicaid Program expenditures for long-term care and support services to get more recipients into lower cost home- and community-based programs instead of higher cost nursing home care, including through the current roll out of the new Community Health Choices Medicaid managed care program and expansion of LIFE Programs.  However, the State Budget has not allocated funds for the Department of Health to hire more staff for processing licenses for new home- and community-based providers. 

The result is longer processing time frames for license applications, beyond the 60-days prior notice required by Department regulations (28 Pa. Code Section 51.3), for new Home Care and Home Health Care providers seeking to meet the increasing demand for home- and community based services.  New companies seeking to provide these services will need to factor in the new licensing time frames.

For new Home Health licenses (28 Pa. Code Chapter 601), the Department of Health current  projected processing time frame is 6 months to a year (including the related Medicare certification).  There are currently 580 licensed home health agencies in Pennsylvania.

For new Home Care licenses (28 Pa. Code Chapter 611), the Department of Health current projected processing time frame is 5-6 months.  There are currently 2,264 licensed home care agencies or registries in Pennsylvania.

The Pennsylvania Department of Human Services has not reported any network shortages of licensed home- and community-based providers during the roll out of Community Health Choices in the Southwest (14 counties) and Southeast (5 counties) Regions.  Implementation of Community Health Choices in the 48 remaining counties (Phase 3) is scheduled for January 1, 2020; and, will test whether the current license delays are affecting network sufficiency there. 

A current and growing shortage of both Home Care Workers and Home Health Aides nationwide has been reported.  Forbes stated in their April 18, 2018 article “The Shortage of Home Care Workers: Worse Than You Think” that “Government statisticians rank home care as one of the nation’s fastest growing occupations, with an additional million workers needed by 2026; that’s an increase of 50% from 2014.”

Home Health Care News reported in their May 6, 2018 article “Where the Home Health Aide Shortage Will Hit Hardest by 2025” that “The number of new job openings for home health aides by 2025 is expected to reach 423,200, a growth rate of 32%….the expected workforce gap will also hit negative -446,300 workers by 2025….with all states needing more home health aides.”

                For more information about licensing for health care services facilities by the Pennsylvania Department of Health and the Pennsylvania Department of Human Services, you may contact Bruce G. Baron, Esq. at BruceB@CapozziAdler.com or 717-233-4101.

Take Control Of Your Resident Accounts Receivable: Your Resident’s Resident Representative

I want to focus this installment of our series known as “Take Control of your Accounts Receivable” on a critical player in your efforts to watch your bottom line: the resident’s “Resident Representative”, or, as some nursing facilities in Pennsylvania refer to this person, the “Responsible Party” or “Designated Representative”.  Our installments in this series share with you tips, legal updates, personal observations, and “lessons learned” to help you improve the effectiveness of your Accounts Receivable Management Program. 

Why do I want to devote this space to a discussion of the Resident Representative?  The weakest link in the admissions and account management process that negatively impacts a nursing facility’s bottom line is frequently the identification and preparation of a resident’s Resident Representative.

            The reasons for this weak link include one or more of the following:

  1. The Admission Agreement lacks a clear definition, or any definition whatsoever, of a Resident Representative, or it lacks a description of the duties and responsibilities of the Resident Representative;  
  2. The Admission Agreement properly explains that a Resident Representative will not be held personally liable for the debt, but, it fails to disclose that a Resident Representative can potentially be held financially liable in the amount that he or she fails to transfer from the resident’s income or assets despite having access to the resident’s resources;
  3. The Admission Director identifies the resident on the first page of the Admission Agreement as the Resident Representative, although a member of the resident’s family or a friend signs the signature line on the last page of the Admission Agreement;
  4. The signature line of the Admission Agreement for the Resident Representative does not identify the signatory as the resident’s Resident Representative;
  5. The Admission Director fails to identify a Resident Representative or neglects to name the person on the first page of the Admissions Agreement; 
  6. The Admission Director neglects to have the Resident Representative sign the last page of the Admission Agreement,  which is a legally enforceable contract;
  7. The Admission Director fails to adequately explain to the Resident Representative his or her duties or responsibilities, including assistance in the MA application process.  Or, worse, the Admission Director directs the Resident Representative to not make any payments or escrow the resident’s income while Medicaid is pending;
  8. The Admission Director fails to adequately explain to the Resident Representative that the Admission Agreement is a legally enforceable and binding contract; 
  9. The Admission Director or Business Office fails to explain to the Resident Representative the benefits of arranging direct deposit of the resident’s Social Security income either as Representative Payee or through the Resident Fund Management System.  The same issue applies to the resident’s pension income;  
  10. The Business Office fails to mail a monthly bill to the Resident Representative during the first several months after the facility admits the resident as a matter of policy while MA is pending; and,
  11. Finally, the Business Office simply allows the Resident Representative to avoid payment or not cooperate for too long.  In other words, the Resident Representative is taking advantage of a disorganized Business Office or its passive attempts at collection.    

When the weak link breaks . . ..   I am certain that you have experienced one or more of the following situations as a result of the weaknesses above:  

1.  The family spends the resident’s money on non-allowable expenses although the relative or resident truly believes that these expenditures were justified;

2.  A relative intentionally or fraudulently diverts the resident’s funds for personal consumption or investments; 

3.  The Resident Representative fails to fully cooperate in the Medicaid application process, including the transfer of financial documents or information; or, 

4.  Although the CAO directs the Resident Representative to “spend down” the resident’s funds to qualify for Medicaid, he or she refuses, even if the amount is nominal.  As a result of this last scenario, you’re attempting to collect against a private pay resident with insignificant financial resources.            

What law allows you to contract with a resident’s family member or friend to act as the Resident Representative?  The term, “Resident Representative,” is generally accepted under the law.  The Nursing Home Reform Act of 1987 permits the nursing facility to contract with a person who has access to the resident’s income and resources to transfer payments from the resident’s income and resources.  42 U.S.C. §1396r(c)(5)(B)(ii). 

Furthermore, the Pennsylvania Administrative Code permits a resident to name a Resident Representative.  28 Pa. Code §201.24(a).   This section of the Code defines the Resident Representative as someone who can make decisions on behalf of the resident, but it does not obligate a Resident Representative to make payments.  In addition, this section prevents a nursing facility from naming an employee as a resident’s Resident Representative, unless a court appoints the employee as the resident’s guardian.       

Accordingly, an Admission Agreement must be clear as to the definition, duties, and responsibilities of a Resident Representative to be legally enforceable.  If the Admission Agreement is clear, the Resident Representative can be held legally liable for his or her failure to perform his duty to remit payment form the resident’s funds.  Of course, the Resident Representative may also be held liable personally if he diverts the resident’s funds for non-allowable purposes, which requires a court order.    

Is a Resident Representative a Guarantor?  No.  As most of you are aware, Medicaid law expressly restricts a nursing facility that is eligible for Medicaid or Medicare reimbursement from requiring a third party guarantee of payment to the facility as a condition of admission or continued stay.  A Guarantor is someone who is personally liable for a debt from his or her own assets.  An example of a Guarantor is the father who co-signs a car loan for his daughter.  The law does not prohibit a third person voluntarily guarantee payment to the nursing facility.  I continue to see, however, the term Guarantor in admission agreements, admission fact sheets, or account invoices even though the admission agreement does not clearly obligate a third party as a guarantor.     

Why do you need to take a look at the Resident Representative clauses of your Admission Agreement?  Although Pennsylvania court case law regarding the legal financial liability of a Resident Representative is scarce, the Allegheny County Court of Common Pleas recently addressed this issue in Five Star Quality Care, Inc d/b/a Overlook Green v. Joyce and Charles Yablonski.  The opinion of this Court will have a strong persuasive effect on other county courts throughout Pennsylvania.  In summary, the Court disallowed the nursing facility’s claim against a resident’s “Responsible Party” because the Admission Agreement did not “clearly and unambiguously” define the term “Responsible Party” or obligate the Responsible Party to guarantee payment.  In fact, the Court expressly preferred the term “Resident Representative”, rather than “Responsible Party”, because the usage of “Resident Representative” is more widely accepted and defined in state statutes.   

Because it is the nursing facility or its management company that drafts the Admission Agreement, the burden is on the nursing facility to ensure the requirements and obligations of a Resident Representative are “clear and unambiguous.”  Otherwise, the nursing facility’s attempts to collect a debt against a Resident Representative in a court may be weakened or unsuccessful. 

 If you would like more information on how your Admission Agreement can be used or modified to protect your facility’s bottom line, including an analysis and revision of the contract terms related to the Resident Representative, you may contact Andrew R. Eisemann, Esq. at our Firm at andrewe@capozziadler.com or 717-233-4101.

Keeping Compliant Where Federal Overpayment Rule Set Aside, Affordable Care Act Ruled Unconstitutional, Appeals Pending

In 2016, CMS published its Overpayment Rule, 81 F.R. 7652 (2/12/2016), effective March 14, 2016, 42 CFR Part 401, Subpart D, to clarify when and how Medicare and Medicaid providers were to identify and return “overpayments” in order to avoid False Claims Act liability added by the Affordable Care Act (ACA).  The new Compliance and Ethics Program Condition of Participation for Nursing Facility Providers, 42 CFR § 483.85, with its effective date of November 28, 2019 coming soon, also implements a requirement added by the ACA. 

While efforts to pass laws that “repeal and replace” the ACA have not succeeded to date, there have been two recent court victories on this front.  First, in September 2018, the U.S. District Court for the District of Columbia, in a challenge to the Overpayment Rule under the Federal Administrative Procedures Act (APA), ruled that the entire Rule must be set aside.  UnitedHealthcare Ins. Co. v. Azar, 330 F.Supp.3d 173 (D.D.C. 2018), currently on appeal to the U.S. Court of Appeals for the D.C. Circuit (No. 18-5326). 

Second, in December 2018, the U.S. District Court for the Northern District of Texas ruled, in a challenge by several States to the entire ACA as amended by the Tax Cuts and Jobs Act of 2017, reducing the ACA’s shared responsibility payment to -0-, that the entire ACA, including the overpayment provision, must be stricken as unconstitutional.  Texas v. U.S., 340 F.Supp.3d 579 (N.D. Tex. 2018).  Since the District Court granted a stay of its decision pending review by the U.S. Court of Appeals for the Fifth Circuit, 352 F.Supp.3d 665 (N.D. Tex. 2018), appeal pending at No. 19-10011, the ACA remains “in effect.” 

Even if these two efforts are successful in further reducing providers’ False Claims Act liability, these lower court victories should not change provider compliance program behavior.  Longstanding OIG Compliance Guidance, issued before the enactment of the ACA, advised that providers must take decisive steps to correct identified noncompliance, including the return of any overpayments.  Both the OIG and the Pennsylvania Medicaid Program have established self-disclosure protocols for providers “to voluntarily come forward and disclose overpayments or improper payments.” 

Participation in these programs and continuing current compliance program efforts can reduce provider risks, including avoidance of compulsory Corporate Integrity Agreements, reduction in potential damages, and deferral of actual repayment pending settlement.  State and Federal audits for potential overpayments are also not letting up. 

If you have concerns about how to deal with possible overpayments identified through your compliance program or related to recent audit results, you may contact Bruce G. Baron, Esq. (bruceb@capozziadler.com) at our Firm. 

Protecting Beneficiary Rights in the the Managed Care Environment

Bruce G. Baron, Esquire (bruceb@capozziadler.com)

 The USDHHS Office of Inspector General (OIG) is expected to issue its Work Plan Report (OEI-09-19-00350) next year (2021) on the results of its review of Medicaid Managed Care Organization (MCO) Plans’ denied services and payments that were overturned on appeal to help monitor for improper denials of access to covered services that benefit the MCO’s bottom lines. 

In September 2018, the OIG issued a critical report of Medicare Advantage MCO Plans (OEI-09-16-00410) that cited 45% of the Plans for providing incomplete or incorrect information to beneficiaries thereby inhibiting their exercise of appeal rights (only 1% of access to coverage decisions were appealed in the period reviewed), while 75% of denials that were appealed were overturned in the appeal process.  The 2018 Report recommended that CMS: (1) enhance its oversight of MCO contracts including those with extremely high overturn rates and/or low appeal rates and take corrective action as appropriate; (2) address persistent problems related to inappropriate denials and insufficient denial letters in Medicare Advantage; and, (3) provide beneficiaries with clear, easily accessible information about serious violations by MCOs.

Federal Managed Care regulations (42 CFR §§ 438.228(a), 438.400-438.424) require Medicaid Managed Plans to provide “timely and adequate notice of adverse benefit determinations” (42 CFR § 438.404), including the right: (a) to obtain reasonable access to and copies of all documents relevant to the determination at no cost to the beneficiary ; (b) to get information on the procedures required to perfect and to expedited, as needed, the appeal; and, (c) to get information on how to continue benefits pending the resolution of the appeal. 

The Medicaid Managed Care Plans must also provide information about the appeals process to all participating providers (42 CFR § 438.414); and, nursing homes must also provide residents with information regarding Medicaid coverage and related State and local advocacy organizations (42 CFR §§ 483.10(g)(4)(ii-iii)).  Nursing homes that are subject to the Conditions of Participation and any related State licensure regulations (e.g., 28 Pa. Code §   201.2, incorporating the 1998 version of resident rights rules) should update and monitor the application of their policies and procedures to assure residents’ rights related to Medicaid coverage under their Medicaid Managed Care Plans given the OIG’s concerns to prevent inappropriate denials of services and payments.