• Mississippi joins other courts in throwing out health reform challenge
• Virginia seeks quick high court ruling
• CMS implements federal health program fraud prevention measures
• Health reform repeal fails; repeal of reporting requirement succeeds
• Legislation grows to revise health reform law

Mississippi joins other courts in throwing out health reform challenge

A federal court in Mississippi has joined more than a dozen other districts in ruling that those seeking to overturn the Patient protection and Affordable Care Act (ACA) do not have standing to file suit (a listing of many of these cases is available at http://m.whitehouse.gov/blog/2010/12/08/health-reform-wins-another-round-court. In four other cases, judges have ruled on the merits of the challenges to the ACA

In Lt. Gov. Phil Bryant vs. Eric Holder Jr. (Civ. Act No. 2:10-CV-76-KS-MTP), the U.S. District Court for the Southern District of Mississippi stated that the lawsuit “contains insufficient allegations to establish that [the plaintiffs] will certainly be ‘applicable individuals” who must comply with the minimum coverage provision [of the ACA].”

In addition, according to the court, “it is not certain from Plaintiffs’ allegations that, in the event they were considered “applicable individuals,” they would incur the tax penalty [under the ACA] for non-compliance.

The four rulings that have been decided on the constitutionality of the ACA are:

• State Of Florida, et al. v. United States Department Of Health And Human Services, et al. (Case No.: 3:10-Cv-91);
• Commonwealth of Virginia v. Kathleen Sebelius (Civ. Act. No. 3:10CV188-HEH));
• Liberty University v. U.S. (Case No. 6:10-cv-00015-nkm);
• Thomas More Law Center, Jann Demars; John Ceci; Steven Hyder; And Salina Hyder, v. Barack Hussein Obama (No. 10-CV-11156)).

Virginia seeks quick high court ruling

Meanwhile, Virginia attorney general Ken Cucchinelli has petitioned the Supreme Court for an immediate review of Commonwealth v. Sebelius.

According to a press release from Mr. Cucchinelli’s office, “Normally, appeals of decisions of United States district courts are first heard in the federal courts of appeals. But Rule 11 provides that an immediate review in the U.S. Supreme Court is permissible “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in” the Supreme Court.

Mr. Cuccinelli noted, “Rule 11 is the exception to the general rule, but this case and the other cases challenging the constitutionality of PPACA are truly exceptional in their own right. There are a number of suits pending throughout the country challenging the constitutionality of PPACA. Presently, 28 states have filed suits challenging the authority of Congress to enact this law. That, in and of itself, is exceptional and makes the cases excellent candidates for immediate review in the Supreme Court.”

CMS implements federal health program fraud prevention measures

The Office of the Inspector General (OIG) of the Centers for Medicare & Medicaid Services (CMS) has issued a new rule with comment period setting forth new procedures for screening of providers of medical or other services and suppliers in the Medicare, Medicaid, and Children’s Health Insurance Programs (CHIP)and other measures to prevent fraud, waste, and abuse in those federally-financed programs. The final rule was published in the February 2 Federal Register. These new anti-fraud and abuse measures provided for in the Patient Protection and Affordable Care Act (ACA), are effective beginning March 25, 2011.

In the new rule, CMS explains that “we have found that certain types of providers and suppliers that easily enter a line or business without clinical or business experience--for example, by leasing minimal office space and equipment--present a higher risk of possible fraud to our programs. As such, we believe that because these types of providers pose an increased risk of fraud they should be subject to substantial scrutiny before being permitted to enroll and bill Medicare, Medicaid, or CHIP. This type of pre-enrollment scrutiny will help us move away from the “pay and chase” approach...checking the background of providers at the time they apply to become Medicare providers is a crucial step to reduce the risk of enrolling providers intent on defrauding or abusing the program...In particular, we have recommended stricter scrutiny of enrollment processes for two types of providers whose services and items CMS has identified as especially vulnerable to improper payments--home health agencies (HHAs) and suppliers of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).”

CMS may impose screening requirements according to the risk of fraud, waste, and abuse posed by the category of provider of medical or other items or services or supplier. The screening may include a licensure check, including across state lines; a criminal background check; fingerprinting; unscheduled or unannounced site visits, including pre-enrollment

site visits; database checks, including across state lines; and other screening that CMS determines is appropriate. Providers considered at high risk will be subject to these stricter screening requirements and providers originally considered of limited or moderate risk may be redesignated as high risk. Medicare Advantage organizations also are required to verify licensing of providers and suppliers, including physicians and other health care professionals.

The new screening procedures apply to newly enrolling providers and suppliers, including eligible professionals, beginning on March 25, 2011. Currently enrolled Medicare, Medicaid, and CHIP providers, suppliers, and eligible professionals are subject to the new screening procedures beginning on March 23, 2012, but beginning on March 23, 2011, for those who revalidate their enrollment information. Within Medicare, the March 25, 2011, implementation date will affect those current providers and suppliers whose 5-year revalidation cycle (or 3-year revalidation cycle for DMEPOS suppliers) results in revalidation occurring on or after March 25, 2011, and before March 23, 2012.

Based on CMS’ experience, the agency proposed that the following entities generally pose moderate risk to the Medicare program and therefore would be subject to a “moderate” screening level: community mental health centers; comprehensive outpatient rehabilitation facilities; hospice organizations; independent diagnostic testing facilities; independent clinical laboratories; and non-public, non-government owned or affiliated ambulance services suppliers.

The new rule also does the following:

• Imposes an application fee on institutional providers and suppliers;
• Sets out temporary moratoria that may be imposed if necessary to prevent or combat fraud, waste, and abuse under the Medicare, Medicaid programs, and CHIP programs;
• Provides guidance for states regarding termination of providers from Medicaid and CHIP if terminated by Medicare or another Medicaid State plan or CHIP, as well as provider and supplier terminations from Medicare when those providers are terminated by a Medicaid state agency (required under the ACA); and
• Specifies requirements for suspension of payments pending credible allegations of fraud in the Medicare and Medicaid programs.

The CMS OIG will consider public comments only on the fingerprinting requirements, contained in Secs. 424.518 and 455.434 and discussed in section II.A.5. of the preamble of the final rule, that are received at one of the addresses provided below, no later than 5 p.m. on April 4, 2011.

In commenting, refer to file code CMS-6028-FC. Submit comments in one of the following ways:

• Electronically to http://www.regulations.gov. Follow the instructions for “submitting a comment.”
• By regular mail to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-6028-FC, P.O. Box 8013, Baltimore, MD 21244-8013.

For further information on Medicare program provider and supplier issues, contact Frank Whelan, (410) 786-1302, for enrollment issues; Joseph Strazzire,(410) 786-2775, for payment suspension issues; and Laura Minassian-Kiefel, (410) 786-4641, for compliance program issues.

Health reform repeal fails; repeal of reporting requirement succeeds

On Wednesday, February 2, during debate on S. 223, the FAA Air Transportation Modernization and Safety Improvement Act, the Senate rejected a repeal of the Patient Protection and Affordable Care Act (ACA) and approved an amendment to repeal an ACA reporting requirement.

In a procedural move intended to add the repeal of the ACA to the FAA reauthorization legislation, Sen. Mitch McConnell (Ken.) introduced S.Amdt. 13, “to repeal the job-killing health care law and health care-related provisions in the Health Care and Education Reconciliation Act of 2010.” A vote that would have allowed the repeal to go forward without budgetary considerations failed along party lines 57-41. Sens. Joseph Lieberman (Conn.) and Mark Warner (Vir.) did not vote.

The Congressional Budget Office has reported the ACA does not reduce jobs and its repeal would add $230 billion to the deficit through 2021.

In another amendment to the FAA bill, the Senate approved unanimously S. Amdt. 9, “to repeal the expansion of information reporting requirements for payments of $600 or more to corporations.”

Under ACA Sec. 9006, Internal Revenue Code Sec. 6041 was amended to require that all companies would have to report on Form 1099 payments of $600 or more to corporations in the course of a trade or business.

S. 223, the FAA reauthorization bill, was expected to gain passage in the Senate this week.

For more information, visit http://www.ebri.org or http://www.shrm.org.

Majority of Americans oppose using defunding to slow health reform implementation

The majority of Americans (62%) oppose the idea of Congress using defunding efforts to slow down the implementation of the Patient Protection and Affordable Care Act (ACA), according to a new poll from the Kaiser Family Foundation and the Harvard School of Public Health. The poll, The Public’s Health Care Agenda for the 112th Congress, found that 57% of Republicans favor defunding health reform in the absence of repeal, but most independents are opposed (62%) along with the great majority of Democrats (84%). And, even among those who do not like the law and want to see it repealed, almost four in ten say they disapprove of cutting off funding.

The poll reported that 50% of Americans hold an unfavorable opinion of the ACA, while 41% hold a favorable view. However, the public is divided on what should happen next. Nearly as many people want to expand the law (28%) or keep it as it is (19%), as want to repeal and replace the law with a Republican-sponsored alternative (23%) or simply repeal it (20%). Kaiser noted that opinions about what should happen next remain highly partisan: 77% of Republicans back some form of repeal, while 51% of Democrats said they want the law expanded.

According to Kaiser, though the public is divided on what should happen next with the ACA, this does not mean that they want Congress to stop working on health care. When asked about the top two issues they would like addressed by the President and Congress in 2011, health care (46%) and the economy (40%) were the top two issues cited by survey respondents. The third most cited issue, the deficit, was cited by only 13% of respondents.

The survey was conducted January 4 through 14 and includes responses from 1,502 individuals ages 18 and older. For more information, visit http://www.kff.org/kaiserpolls/8134.cfm.