[Federal Register Volume 79, Number 23 (Tuesday, February 4, 2014)]
[Rules and Regulations]
[Pages 6475-6486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02166]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 424
[CMS-6046-N]
Medicare, Medicaid, and Children's Health Insurance Programs:
Announcement of New and Extended Temporary Moratoria on Enrollment of
Ambulances and Home Health Agencies in Designated Geographic Locations
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Extension and establishment of temporary moratoria.
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SUMMARY: This document announces the imposition of temporary moratoria
on the enrollment of new ambulance suppliers and home health agencies
in designated geographic locations to prevent and combat fraud, waste,
and abuse.
DATES: Effective January 30, 2014.
FOR FURTHER INFORMATION CONTACT: August Nemec, (410) 786-0612. News
media representatives must contact CMS' Public Affairs Office at (202)
690-6145 or email them at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. CMS' Authority To Impose Temporary Enrollment Moratoria
Under the Patient Protection and Affordable Care Act (Pub. L. 111-
148), as amended by the Health Care and Education Reconciliation Act of
2010 (Pub. L. 111-152) (collectively known as the Affordable Care Act),
the Congress provided the Secretary with new tools and resources to
combat fraud, waste, and abuse in Medicare, Medicaid, and the
Children's Health Insurance Program (CHIP). Section 6401(a) of the
Affordable Care Act added a new section 1866(j)(7) to the Social
Security Act (the Act) to provide the Secretary with authority to
impose a temporary moratorium on the enrollment of new Medicare,
Medicaid or CHIP providers and suppliers, including categories of
providers and suppliers, if the Secretary determines a moratorium is
necessary to prevent or combat fraud, waste, or abuse under these
programs. Section 6401(b) of the Affordable Care Act added specific
moratorium language applicable to Medicaid at section 1902(kk)(4) of
the Act, requiring States to comply with any
[[Page 6476]]
moratorium imposed by the Secretary unless the state determines that
the imposition of such moratorium would adversely impact Medicaid
beneficiaries' access to care. Section 6401(c) of the Affordable Care
Act amended section 2107(e)(1) of the Act to provide that all of the
Medicaid provisions in sections 1902(a)(77) and 1902(kk) are also
applicable to CHIP.
In the February 2, 2011 Federal Register (76 FR 5862), CMS
published a final rule with comment period titled, ``Medicare,
Medicaid, and Children's Health Insurance Programs; Additional
Screening Requirements, Application Fees, Temporary Enrollment
Moratoria, Payment Suspensions and Compliance Plans for Providers and
Suppliers,'' which implemented section 1866(j)(7) of the Act by
establishing new regulations at 42 CFR 424.570. Under Sec.
424.570(a)(2)(i) and (iv), CMS, or CMS in consultation with the
Department of Health and Human Services' Office of Inspector General
(HHS-OIG) or the Department of Justice (DOJ), or both, may impose a
temporary moratorium on newly enrolling Medicare providers and
suppliers if CMS determines that there is a significant potential for
fraud, waste, or abuse with respect to a particular provider or
supplier type or particular geographic locations or both. At Sec.
424.570(a)(1)(ii), CMS stated that it would announce any temporary
moratorium in a Federal Register document that includes the rationale
for the imposition of such moratorium. This document fulfills that
requirement.
In accordance with section 1866(j)(7)(B) of the Act, there is no
judicial review under sections 1869 and 1878 of the Act, or otherwise,
of the decision to impose a temporary enrollment moratorium. A provider
or supplier may use the existing appeal procedures at 42 CFR part 498
to administratively appeal a denial of billing privileges based on the
imposition of a temporary moratorium, however the scope of any such
appeal would be limited solely to assessing whether the temporary
moratorium applies to the provider or supplier appealing the denial.
Under Sec. 424.570(c), CMS denies the enrollment application of a
provider or supplier if the provider or supplier is subject to a
moratorium. If the provider or supplier was required to pay an
application fee, the application fee will be refunded if the
application was denied as a result of the imposition of a temporary
moratorium (see Sec. 424.514(d)(2)(v)(C)).
B. Determination of the Need for a Moratorium
In imposing these enrollment moratoria, CMS considered both
qualitative and quantitative factors suggesting a high risk of fraud,
waste, or abuse. CMS relied on law enforcement's longstanding
experience with ongoing and emerging fraud trends and activities
through civil, criminal, and administrative investigations and
prosecutions. CMS' determination of high risk fraud in these provider
and supplier types within these geographic locations was then confirmed
by CMS' data analysis, which relied on factors the agency identified as
strong indicators of fraud risk.
Because fraud schemes are highly migratory and transitory in
nature, many of CMS' program integrity authorities and anti-fraud
activities are designed to allow the agency to adapt to emerging fraud
in different locations. The laws and regulations governing CMS'
moratoria authority give us flexibility to use any and all relevant
criteria for future moratoria, and CMS may rely on additional or
different criteria as the basis for future moratoria.
1. Application to Medicaid and the Children's Health Insurance Program
(CHIP)
The February 2, 2011 final rule also implemented section
1902(kk)(4) of the Act, establishing new Medicaid regulations at Sec.
455.470. Under Sec. 455.470(a)(1) through (3), the Secretary \1\ may
impose a temporary moratorium, in accordance with Sec. 424.570, on the
enrollment of new providers or provider types after consulting with any
affected State Medicaid agencies. The State Medicaid agency will impose
a temporary moratorium on the enrollment of new providers or provider
types identified by the Secretary as posing an increased risk to the
Medicaid program unless the state determines that the imposition of a
moratorium would adversely affect Medicaid beneficiaries' access to
medical assistance and so notifies the Secretary. The final rule also
implemented section 2107(e)(1)(D) of the Act by providing, at Sec.
457.990 of the regulations, that all of the provisions that apply to
Medicaid under sections 1902(a)(77) and 1902(kk) of the Act, as well as
the implementing regulations, also apply to CHIP.
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\1\ The Secretary has delegated to CMS authority to administer
Titles XVIII, XIX, and XXI of the Act. For more information, see the
September 6, 1984 Federal Register (49 FR 35247) and the December
16, 1997 Federal Register (62 FR 65813).
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Section 1866(j)(7) of the Act authorizes imposition of a temporary
enrollment moratorium for Medicare, Medicaid, and/or CHIP, ``if the
Secretary determines such moratorium is necessary to prevent or combat
fraud, waste, or abuse under either such program.'' While there may be
exceptions, CMS believes that generally, a category of providers or
suppliers that poses a risk to the Medicare program also poses a
similar risk to Medicaid and CHIP. Many of the new anti-fraud
provisions in the Affordable Care Act reflect this concept of
``reciprocal risk'' in which a provider that poses a risk to one
program poses a risk to the other programs. For example, section 6501
of the Affordable Care Act titled, ``Termination of Provider
Participation under Medicaid if Terminated Under Medicare or Other
State Plan,'' which amends section 1902(a)(39) of the Act, requires
State Medicaid agencies to terminate the participation of an individual
or entity if such individual or entity is terminated under Medicare or
any other State Medicaid plan.\2\ Additional provisions in title VI,
Subtitles E and F of the Affordable Care Act also support the
determination that categories of providers and suppliers pose the same
risk to Medicaid as to Medicare. Section 6401(a) of the Affordable Care
Act required us to establish levels of screening for categories of
providers and suppliers based on the risk of fraud, waste, and abuse
determined by the Secretary. Section 6401(b) of the Affordable Care Act
required State Medicaid agencies to screen providers and suppliers
based on the same levels established for the Medicare program. This
reciprocal concept is also reflected in the Medicare moratoria
regulations at Sec. 424.570(a)(2)(ii) and (iii), which permit CMS to
impose a Medicare moratorium based solely on a state imposing a
Medicaid moratorium. Therefore, CMS has determined that there is a
reasonable basis for concluding that a category of providers or
suppliers that poses a risk to Medicare also poses a similar risk to
Medicaid and CHIP, and that a moratorium in all of these programs is
necessary to effectively combat this risk.
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\2\ Although section 6501 of Affordable Care Act does not
specifically state that individuals or entities that have been
terminated under Medicare or Medicaid must also be terminated from
CHIP, CMS has required CHIP, through federal regulation, to take
similar action regarding termination of a provider that is also
terminated or had its billing privileges revoked under Medicare or
any State Medicaid plan.
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[[Page 6477]]
2. Consultation With Law Enforcement
In consultation with the HHS-OIG and the Department of Justice
(DOJ), CMS identified two provider and supplier types in five
geographic locations that warrant a temporary enrollment moratorium.
CMS reached this determination based in part on the federal
government's experience with the Health Care Fraud Prevention and
Enforcement Action Team (HEAT), a joint effort between DOJ and HHS to
prevent fraud, waste, and abuse in the Medicare and Medicaid programs.
The Medicare Fraud Strike Force teams are a key component of HEAT and
operate in nine locations nationwide.\3\ Each HEAT Medicare Fraud
Strike Force team combines the programmatic and administrative action
capabilities of CMS, the analytic and investigative resources of the
FBI and HHS-OIG, and the prosecutorial resources of DOJ's Criminal
Division's Fraud Section and the United States Attorney's Offices. The
Strike Force teams use advanced data analysis techniques to identify
high billing levels in health care fraud hotspots so that interagency
teams can target emerging or migrating schemes along with chronic fraud
by criminals masquerading as health care providers or suppliers. The
locations of the Strike Force teams are identified by analyzing where
Medicare claims data reveal aberrant billing patterns and intelligence
data analysis suggests that fraud may be occurring. The presence of a
Strike Force team within or near a particular geographic area is one
factor that CMS considered in identifying the locations subject to the
moratoria announced in this document.
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\3\ The HEAT Medicare Strike Force operates in Miami, FL; Los
Angeles, CA: Detroit, MI; Houston, TX; Brooklyn, NY; Southern
Louisiana (the Strike Force in Southern Louisiana started in Baton
Rouge and now operates in New Orleans as well); Tampa, FL; Chicago,
IL; and Dallas, TX.
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As a part of ongoing antifraud efforts, the HHS-OIG and CMS have
learned that some fraud schemes are viral, meaning they replicate
rapidly within communities, and that health care fraud also migrates--
as law enforcement cracks down on a particular scheme, the criminals
may redesign the scheme or relocate to a new geographic area.\4\ As a
result, CMS has determined that it is necessary to extend these
moratoria beyond the target counties to bordering counties, unless
otherwise noted, to prevent potentially fraudulent providers and
suppliers from enrolling in a neighboring county with the intent of
providing services in a moratorium-targeted area. CMS will monitor the
surrounding counties, as well as the entirety of each affected state,
by reviewing claims utilization and activity, for indicia of activity
designed to evade these moratoria. Throughout the duration of these
moratoria, CMS will continue to consult with law enforcement, to assess
and address the spread of any significant risk of fraud beyond the
moratoria locations.
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\4\ Testimony of the Inspector General, ``Preventing Health Care
Fraud: New Tools and Approaches to Combat Old Challenges.'' See
http://www.hhs.gov/asl/testify/2011/03/t20110302i.html.
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3. Data Analysis
CMS analyzed its own data to determine the extent to which it
confirms the specific provider and supplier types within geographic
locations recommended by law enforcement as having a significant
potential for fraud, waste or abuse, and therefore warranting the
imposition of enrollment moratoria. CMS identified all counties across
the nation with 200,000 or more Medicare beneficiaries (``comparison
counties''), and analyzed certain key metrics, which we believe to be
strong indicators of potential fraud risk. These metrics included
factors such as the number of providers or suppliers per 10,000
Medicare fee-for-service (FFS) beneficiaries and the compounded annual
growth rate in provider or supplier enrollments. CMS also reviewed the
2012 FFS Medicare payments to providers and suppliers in the target
locations based on the average amount spent per beneficiary who used
services furnished by the targeted provider and supplier types.
The four locations subject to the temporary enrollment moratoria
for home health agencies (HHAs) are counties that contain or are
adjacent to HEAT Medicare Fraud Strike Force locations and are also
consistently ranked near the top for the identified metrics among
counties with at least 200,000 Medicare beneficiaries in 2012. See
Table 1 of this document for a summary of the moratoria locations and
some of the metrics examined.
4. Beneficiary Access To Care
Beneficiary access to care in Medicare, Medicaid, and CHIP is of
critical importance to CMS and its state partners, and CMS carefully
evaluated access for the five target moratorium locations. To determine
if the moratoria would create an access to care issue for Medicaid and
CHIP beneficiaries in the targeted locations and surrounding counties,
CMS consulted with the appropriate State Medicaid Agencies and with the
appropriate State Department of Emergency Medical Services. All of CMS'
state partners were supportive of CMS analysis and proposals, and
together with CMS, have determined that these moratoria will not create
access to care issues for Medicaid or CHIP beneficiaries.
In order to determine if the moratoria would create an access to
care issue for Medicare beneficiaries, CMS reviewed its own data
regarding the number of providers and suppliers in the target and
surrounding counties, and confirmed that there are no reports to CMS of
access to care issues for these provider and supplier types. This
conclusion is also supported by recent reports issued by the Medicare
Payment Advisory Commission (MedPAC), an independent Congressional
agency established by the Balanced Budget Act of 1997 to advise
Congress on issues affecting the Medicare program. MedPAC has a
Congressional mandate to monitor beneficiaries' access to care and
publishes its review of Medicare expenditures annually. Based on
MedPAC's March 2013 report (finding no access issues to Medicare home
health services \5\), and its June 2013 report (finding no access
issues to Medicare ambulance services \6\), CMS does not believe these
moratoria will cause an access to care issue for Medicare
beneficiaries.
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\5\ MedPAC, March 2013, ``Report to Congress: Medicare Payment
Policy, Chapter 9 home health services.'' http://www.medpac.gov/documents/Mar13_entirereport.pdf.
\6\ MedPAC, June 2013, ``Chapter 7, Mandated Report: Medicare
payment for ambulance services.'' http://www.medpac.gov/chapters/Jun13_Ch07.pdf.
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In the March 2013 report, MedPAC also recommended that CMS use its
authorities under current law to examine providers with aberrant
patterns of utilization for possible fraud and abuse. With regard to
home health services, MedPAC stated that a moratorium on the enrollment
of new HHAs would prevent new agencies from entering markets that may
already be saturated.\7\ CMS will continuously monitor for reductions
in the number of HHA providers and Part B ambulance suppliers, as well
as beneficiary complaints, and will continue consultation with the
states, for any indication of a potential access to care issue.
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\7\ MedPAC, March 2013, ``Report to Congress: Medicare Payment
Policy, Chapter 9 home health services.'' http://www.medpac.gov/documents/Mar13_entirereport.pdf.
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5. When a Temporary Moratorium Does Not Apply
Under Sec. 424.570(a)(1)(iii), a temporary moratorium does not
apply to changes in practice locations, changes to provider or supplier
information such as phone number, address, or changes in ownership
(except changes in
[[Page 6478]]
ownership of HHAs that require initial enrollments under Sec.
424.550). Also, in accordance with Sec. 424.570(a)(1)(iv), the
moratorium does not apply to an enrollment application that a CMS
contractor has already approved, but has not yet entered into the
Provider Enrollment Chain and Ownership System (PECOS) at the time the
moratorium is imposed.
6. Lifting a Temporary Moratorium
In accordance with Sec. 424.570(b), a temporary enrollment
moratorium imposed by CMS will remain in effect for 6 months. If CMS
deems it necessary, the moratorium may be extended in 6-month
increments. CMS will evaluate whether to extend or lift the moratorium
before the end of the initial 6-month period and, if applicable, any
subsequent moratorium periods. If one or more of the moratoria
announced in this document are extended, CMS will publish document of
such extensions in the Federal Register.
As provided in Sec. 424.570(d), CMS may lift a moratorium at any
time if the President declares an area a disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, if circumstances
warranting the imposition of a moratorium have abated, if the Secretary
has declared a public health emergency, or if in the judgment of the
Secretary, the moratorium is no longer needed.
Once a moratorium is lifted, the provider or supplier types that
were unable to enroll because of the moratorium will be designated to
CMS' high screening level under Sec. Sec. 424.518(c)(3)(iii) and
455.450(e)(2) for 6 months from the date the moratorium was lifted.
II. Imposition of Home Health Moratoria--Geographic Locations
Under its authority at Sec. 424.570(a)(2)(i) and (iv), CMS is
implementing temporary moratoria on the Medicare enrollment of HHAs in
the geographic locations discussed in this section. Under regulations
at Sec. Sec. 455.470 and 457.990, these moratoria will also apply to
the enrollment of HHAs in Medicaid and CHIP.
A. Moratorium on Enrollment of HHAs in the Florida County of Broward
CMS has determined that there are factors in place that warrant the
imposition of a temporary Medicare enrollment moratorium for HHAs in
Broward County (which contains the City of Fort Lauderdale, FL).
Florida has divided the state into 11 home health ``licensing
districts,'' that prevent an HHA from providing services outside its
own licensing district. Broward is the only county in its licensing
district. In this instance, it is not necessary to extend the
moratorium to the other counties that border Broward because of the
state's home health licensing rules that prevent providers enrolling in
these counties from serving beneficiaries in Broward. CMS has also
consulted with the State Medicaid Agency and reviewed available data,
and determined that the moratorium will also apply to Medicaid and
CHIP.
Beginning on the effective date of this document, no new HHAs will
be enrolled into Medicare, Medicaid or CHIP with a practice location in
the Florida county of Broward, unless their enrollment application has
already been approved, but not yet entered into PECOS or the State
Provider/Supplier Enrollment System at the time the moratorium is
imposed.
1. Consultation With Law Enforcement
Consistent with Sec. 424.570(a)(2)(iv), CMS has consulted with
both the HHS-OIG and DOJ regarding the imposition of a moratorium on
new HHAs in Broward County. Both HHS-OIG and DOJ agree that a
significant potential for fraud, waste, or abuse exists with respect to
HHAs in the affected geographic location. Miami-Dade, which is adjacent
to Broward, is a Strike Force location. CMS has identified these
counties as the target of program integrity special projects, and
beneficiaries that reside in these counties are the recipients of
monthly Medicare Summary Notices due to the high risk of fraud in these
counties.\8\ The HHS-OIG has previously identified Florida as a state
that had a high percentage of HHAs with questionable billing.\9\ There
has also been considerable Strike Force and law enforcement activity in
this area of the country. In FYs 2012 and 2013, the U.S. Attorney's
Office for the Southern District of Florida charged 113 defendants in
51 HHA cases, 55 individuals pled guilty, and there have been 8 trial
convictions, including cases that involved conduct in Broward. In
addition to criminal prosecutions, the government has also pursued
civil fraud enforcement, such as its intervention in July 2013 in a
whistleblower lawsuit against a home health care company in Fort
Lauderdale, alleging that the company was engaged in a multi-million
dollar kickback scheme.\10\ CMS program integrity contractors are also
actively investigating HHAs in this area.
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\8\ HHS and DOJ, ``Health Care Fraud and Abuse Control Program
Annual Report for Fiscal Year 2012.'' See http://oig.hhs.gov/publications/docs/hcfac/hcfacreport2012.pdf.
\9\ Office of Inspector General Report, ``CMS and Contractor
Oversight of Home Health Agencies.'' (OEI-04-11-00220). See https://oig.hhs.gov/oei/reports/oei-04-11-00220.pdf. The HHS-OIG defines an
``HHA fraud-prone area'' as those that are--(1) Strike Force Cities;
(2) Strike Force cities where individuals have been charged with
billing potentially fraudulent home health services; and (3) located
in a state that had a high percentage of HHAs with questionable
billing identified by the HHS-OIG.
\10\ Department of Justice, ``US Intervenes in False Claims Act
Lawsuit Against Fla. Home Health Care Company and Its Owner.'' See
http://www.justice.gov/opa/pr/2013/July/13-civ-717.html.
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2. Data Analysis
a. Medicare Data Analysis
CMS' data show that in 2012, there were 31 U.S. counties
nationally, including Broward, with at least 200,000 Medicare
beneficiaries. CMS excluded Broward County, FL, New York County, NY,
Miami-Dade County, FL and Cook County, IL, and used the remaining 27
counties as ``comparison counties.'' \11\ In the comparison counties,
there was an average of 5.9 HHAs per 10,000 Medicare FFS beneficiaries.
In Broward County, there were 11.2 HHAs per 10,000 Medicare FFS
beneficiaries. This means that the ratio of HHAs to Medicare FFS
beneficiaries was 89.8 percent greater in Broward County than in the
comparison counties. Broward had the fifth highest ratio of providers,
behind locations all also subject to moratoria on HHA enrollment.\12\
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\11\ CMS's data shows that there are 31 counties that have at
least 200,000 Medicare beneficiaries. For the home health analysis,
27 ``comparison counties'' are used. Besides Broward, three other
counties were excluded from the comparison counties. New York
County, NY, is excluded due to unique local conditions, such as that
location's high density, its compact geography, its high real estate
costs, and the fact that very few HHAs that serve the large number
of beneficiaries in that location are actually located within New
York County. We believe that this outlier would have biased the
average by making it artificially low, and could potentially over-
represent the difference in ratios between the target county and the
comparison counties. Miami-Dade County, FL and Cook County, IL are
also excluded because CMS already determined that the data and other
factors indicated a risk of fraud in those counties, and imposed HHA
moratoria there on July 30, 2013, which are being extended by way of
this document.
\12\ The areas with the highest ratio of providers to Medicare
FFS beneficiaries are: Miami-Dade County, FL; Dallas County, TX;
Harris County, TX; and Oakland County, MI.
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CMS' data show that in 2012, HHAs in Broward County were receiving
payments of $6,432 per average Medicare home health user per year,
compared to HHAs in the comparison counties, which received payments of
$5,387. Payments to HHAs in Broward were 19 percent greater than the
average for the comparison counties. Broward had the sixth highest
payments to
[[Page 6479]]
HHAs, behind locations all also subject to the moratoria on HHA
enrollment.\13\
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\13\ The areas with the highest payments providers to Medicare
FFS are: Miami-Dade County, FL; Harris County, TX; Dallas County,
TX; Tarrant County, TX; and Cook County, IL.
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b. Medicaid Data Analysis
As discussed previously in section I.B.1. of this document, CMS
believes that generally, a category of providers or suppliers that
poses a risk to the Medicare program also poses a similar risk to
Medicaid and CHIP. In addition, the data also show a significantly
higher annual utilization of Medicaid home health services in Broward
County compared to the entire state. CMS compared Broward County
against the rest of the state rather than against comparison counties
nationally because Medicaid policies are not necessarily uniform across
different states. In 2011 \14\ in Broward County, Medicaid paid HHAs an
average of $281,609 per provider per year, or 95 percent more than the
average of $144,704 that Medicaid paid to HHAs in the rest of the
state.
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\14\ CMS used 2011 data from the Medicaid Statistical
Information System (MSIS) because it was the most recent data
available for all three states in this document.
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3. Beneficiary Access to Care
Based upon CMS' consultation with the State Medicaid agency, CMS
has concluded that imposing this temporary moratorium will not create
an access to care issue for Medicaid or CHIP beneficiaries in Broward
at this time. Accordingly, under Sec. Sec. 455.470 and 457.990, this
moratorium will apply to the enrollment of HHAs in Medicaid and CHIP,
unless the State later determines that imposition of the moratorium
will adversely impact beneficiary access to care and so notifies CMS
under Sec. 455.470(a)(3).
CMS reviewed Medicare data for the target county, and found that
there are no problems with access to HHAs in Broward. Additionally, as
described in section I.B.4. of this document, MedPAC has not reported
any problems with Medicare beneficiary access to home health care.
While CMS has determined there are no access to care issues for
Medicare beneficiaries, nevertheless, the agency will continuously
monitor these locations under a moratorium for changes such as an
increase in beneficiary complaints to ensure that no access to care
issues arise in the future.
B. Moratorium on Enrollment of HHAs in the Texas Counties of Dallas,
Collin, Denton, Ellis, Kaufman, Rockwall, and Tarrant
CMS has determined there are factors in place that warrant the
imposition of a temporary enrollment moratorium for HHAs in Dallas
County, TX (which contains the City of Dallas), as well as the six
surrounding Texas counties--Collin, Denton, Ellis, Kaufman, Rockwall,
and Tarrant. CMS has determined that it is necessary to extend this
moratorium to the surrounding counties to prevent potentially
fraudulent HHAs from enrolling in a neighboring county to avoid the
moratorium. CMS has consulted with the State Medicaid agency and
reviewed available data and determined that this moratorium will also
apply to Medicaid and CHIP.
Beginning on the effective date of this document, no new HHAs will
be enrolled into Medicare, Medicaid or CHIP with a practice location in
the Texas Counties of Dallas, Collin, Denton, Ellis, Kaufman, Rockwall,
and Tarrant unless their enrollment application has already been
approved but not yet entered into PECOS or the State Provider/Supplier
Enrollment System at the time the moratorium is imposed.
1. Consultation With Law Enforcement
Consistent with Sec. 424.570(a)(2)(iv), CMS has consulted with
both the HHS-OIG and DOJ regarding the imposition of a moratorium on
new HHAs in Dallas County, TX and the surrounding counties. Both HHS-
OIG and DOJ agree that a significant potential for fraud, waste, or
abuse exists with respect to HHAs in the affected geographic locations.
The HHS-OIG has previously identified Dallas, TX as an HHA fraud-prone
area because it is a Strike Force location where individuals have been
charged with billing potentially fraudulent home health services, and
is located in a State that had a high percentage of HHAs with
questionable billing identified by the OIG.\15\ There has also been
considerable Strike Force and law enforcement activity in this area of
the country. Since February 2011, the Strike Force has filed 4 home
health fraud cases, and charged 18 individuals that have resulted in 7
guilty pleas in Dallas county TX. For example, in February 2013, two
owners of a Dallas, TX home health care agency, were sentenced to 37
months in federal prison for their roles in a nearly $1.3 million
health care fraud conspiracy.\16\ In October 2012, a Dallas, TX area
home health services company owner admitted his role in a $374 million
home health fraud scheme in which he and others conspired to bill
Medicare for unnecessary services that were never performed.\17\ In
February 2012, a Federal grand jury indicted a Dallas, TX area doctor
and owner of an association of health care providers, along with five
others, in a $374 million home health care fraud scheme, the largest
fraud case ever indicted in terms of the amount of loss charged against
a single doctor.\18\
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\15\ Office of Inspector General Report, ``CMS and Contractor
Oversight of Home Health Agencies.'' (OEI-04-11-00220). See https://oig.hhs.gov/oei/reports/oei-04-11-00220.pdf.
\16\ DOJ, ``Local Home Health Agency Owners are sentenced for
Roles in Nearly $1.3 million Health Care Fraud Conspiracy.'' See
http://www.justice.gov/usao/txn/PressRelease/2013/FEB2013/feb21opurum_george_agatha_hcf_sen.html.
\17\ DOJ, ``Owners of Texas Home Health Services Company Pleads
Guilty, Admits Role in $374 million fraud scheme.'' See http://www.fbi.gov/dallas/press-releases/2012/owner-of-texas-home-health-services-company-pleads-guilty-admits-role-in-374-million-fraud-scheme.
\18\ HHS and DOJ, ``Health Care Fraud and Abuse Control Program
Annual Report for Fiscal Year 2012.'' See http://oig.hhs.gov/publications/docs/hcfac/hcfacreport2012.pdf.
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2. Data Analysis
a. Medicare Data Analysis
CMS' data show that in 2012, there were 31 U.S. counties
nationally, including Dallas, TX, with at least 200,000 Medicare
beneficiaries. CMS excluded Dallas County, TX and three other counties
as explained previously and used the remaining 27 counties as
``comparison counties.'' \19\ In 2012, there was an average of 5.2 HHAs
per 10,000 FFS beneficiaries in the comparison counties. In Dallas
County, TX, there were 24.4 HHAs per 10,000 Medicare FFS beneficiaries.
This means that the ratio of HHAs to FFS beneficiaries was 369 percent
greater in Dallas County, TX than in the comparison counties. Only
Miami-Dade County, FL had a higher ratio of HHAs to Medicare FFS
beneficiaries compared to the comparison counties.
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\19\ See footnote 11 for explanation of the 3 additional
counties that were excluded for purposes of the HHA comparison
county analysis.
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CMS' data show that in 2012, HHAs in Dallas County, TX were
receiving payments of $7,336 per average home health user per year,
compared to HHAs in the comparison counties, which received payments of
$5,312. Payments to HHAs in Dallas County, TX were 38 percent higher
than the average for HHAs in the comparison counties in 2012. Only
payments in the counties of Miami-Dade, FL and Harris, TX (which
contains the City of Houston) were higher in 2012.
[[Page 6480]]
b. Medicaid Data Analysis
As discussed previously in section I.B.1. of this document, CMS
believes that generally, a category of providers or suppliers that
poses a risk to the Medicare program also poses a similar risk to
Medicaid and CHIP. In addition, the data also show a significantly
higher annual utilization of Medicaid home health services in Dallas
County, TX compared to the entire state. CMS compared Dallas County, TX
against the rest of the state rather than against comparison counties
nationally because Medicaid policies are not necessarily uniform across
different states. In 2011 \20\ in Dallas County, TX Medicaid spent an
average of $3,236 per home health user per year, or 35 percent more
than the average $2,404 per home health user that Medicaid spent in the
rest of the state.
---------------------------------------------------------------------------
\20\ CMS used 2011 data from the Medicaid Statistical
Information System (MSIS) because it was the most recent data
available for all three states in this document.
---------------------------------------------------------------------------
3. Beneficiary Access
Based upon CMS' consultation with the State Medicaid agency, CMS
has concluded that imposing this temporary moratorium will not create
an access to care issue for Medicaid or CHIP beneficiaries in Dallas,
TX or the surrounding counties at this time. Accordingly, under
Sec. Sec. 455.470 and 457.990, this moratorium will apply to the
enrollment of HHAs in Medicaid and CHIP, unless the State later
determines that imposition of the moratorium will adversely impact
beneficiary access to care and so notifies CMS under Sec.
455.470(a)(3).
CMS reviewed Medicare data for the target and surrounding counties,
and found that there are no problems with access to HHAs in Dallas, TX
or surrounding counties. Additionally, as described in section I.B.4 of
this document, MedPAC has not reported any problems with Medicare
beneficiary access to home health care. While CMS has determined there
are no access to care issues for Medicare beneficiaries, nevertheless,
the agency will continuously monitor these locations under a moratorium
for changes, such as an increase in beneficiary complaints, to ensure
that no access to care issues arise in the future.
C. Moratorium on Enrollment of HHAs in the Texas Counties of Harris,
Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, and
Waller
CMS has determined that the imposition of a temporary enrollment
moratorium for HHAs that enroll in Medicare, Medicaid or CHIP in Harris
County, TX (which contains the City of Houston) is warranted, and is
extending the moratorium to the seven surrounding counties--Brazoria,
Chambers, Fort Bend, Galveston, Liberty, Montgomery, and Waller. CMS
has determined that it is necessary to extend this moratorium to the
surrounding counties to prevent potentially fraudulent HHAs from
enrolling in a neighboring county to avoid the moratorium. CMS has also
consulted with the State Medicaid Agency and reviewed available data
and has determined that the moratorium will also apply to Medicaid and
CHIP.
Beginning on the effective date of this document, no new HHAs will
be enrolled into Medicare, Medicaid or CHIP with a practice location in
the Texas Counties of Harris, Brazoria, Chambers, Fort Bend, Galveston,
Liberty, Montgomery or Waller unless their enrollment application has
already been approved, but not yet entered into PECOS or the State
Provider/Supplier Enrollment System at the time the moratorium is
imposed.
1. Consultation With Law Enforcement
Consistent with Sec. 424.570(a)(2)(iv), CMS has consulted with
both the HHS-OIG and DOJ regarding the imposition of a moratorium on
new Medicare, Medicaid or CHIP HHAs in Harris County, TX and
surrounding counties. Both the HHS-OIG and DOJ agree that a significant
potential for fraud, waste or abuse exists with respect to HHAs in the
affected geographic locations. The HHS-OIG has previously identified
Houston as an HHA fraud-prone area because it is a Strike Force
location where individuals have been charged with billing potentially
fraudulent home health services, and is located in a State that had a
high percentage of HHAs with questionable billing identified by the
OIG.\21\ There has also been considerable Strike Force and law
enforcement activity in this area of the country. Since June 2010, the
HEAT Strike Force has filed 7 cases in Houston, TX alleging home health
fraud, and 16 individuals have been charged in connection with these
cases resulting in 9 guilty pleas and 3 trial conviction. For example,
in March 2013, a physician was sentenced to 63 months in prison for his
role in a $17.3 million Medicare home health care fraud scheme.\22\ In
June 2012, former co-owners of a home health care company were
sentenced to 9 years in prison for their participation in a $5.2
million fraud scheme.\23\
---------------------------------------------------------------------------
\21\ Office of Inspector General Report, ``CMS and Contractor
Oversight of Home Health Agencies.'' (OEI-04-11-00220). See https://oig.hhs.gov/oei/reports/oei-04-11-00220.pdf.
\22\ Department of Justice, ``Houston-area Doctor Sentenced to
63 months in Prison for Role in $17.3 Million Medicare Fraud
Scheme.'' See http://www.justice.gov/opa/pr/2013/March/13-crm-313.html.
\23\ HHS and DOJ, ``Health Care Fraud and Abuse Control Program
Annual Report for Fiscal Year 2012.'' See http://oig.hhs.gov/publications/docs/hcfac/hcfacreport2012.pdf.
---------------------------------------------------------------------------
2. Data Analysis
a. Medicare Data Analysis
CMS' data show that in 2012, there were 31 U.S. counties
nationally, including Harris County, TX with at least 200,000 Medicare
beneficiaries. CMS excluded Harris County, TX and three other counties
as explained previously and used the remaining 27 counties as
``comparison counties.'' \24\ In the comparison counties in 2012, there
was an average of 5.2 HHAs per 10,000 Medicare FFS beneficiaries. In
Harris County, TX, there were 19.6 HHAs per 10,000 Medicare FFS
beneficiaries. This means that the ratio of HHAs to Medicare FFS
beneficiaries was 277 percent greater in Harris County, TX than in the
comparison counties. Harris County, TX had the third highest ratio of
HHAs to Medicare FFS beneficiaries compared to the comparison counties,
behind Miami-Dade, FL and Dallas, TX counties.
---------------------------------------------------------------------------
\24\ See footnote 11 for explanation of the 3 additional
counties that were excluded for purposes of the HHA comparison
county analysis.
---------------------------------------------------------------------------
CMS' data show that in 2012, HHAs in Harris County, TX were
receiving payments of $7,631 per average home health user per year,
compared to HHAs in the comparison counties, which received payments of
$5,253. Payments to HHAs in Dallas County, TX were 45 percent higher
than the average for HHAs in comparison counties in 2012, second only
to Miami-Dade, FL.
b. Medicaid Data Analysis
As discussed previously in section I.B.1. of this document, CMS
believes that generally, a category of providers or suppliers that
poses a risk to the Medicare program also poses a similar risk to
Medicaid and CHIP. In addition, the data also show a significantly
higher annual utilization of Medicaid home health services in Harris
County, TX compared to the entire state. CMS compared Harris County, TX
against the rest of the state rather than against comparison counties
nationally because Medicaid policies are not necessarily uniform across
different states. In
[[Page 6481]]
2011 \25\ in Harris County, TX Medicaid spent an average of $4,251 per
home health user per year, or 83 percent more than the average of
$2,324 per home health user that Medicaid spent in the rest of the
state.
---------------------------------------------------------------------------
\25\ CMS used 2011 data from the Medicaid Statistical
Information System (MSIS) because it was the most recent data
available for all three states in this document.
---------------------------------------------------------------------------
3. Beneficiary Access
Based upon CMS' consultation with the State Medicaid agency, CMS
has concluded that imposing this temporary moratorium will not create
an access to care issue for Medicaid or CHIP beneficiaries in Harris
County, TX or the surrounding counties at this time. Accordingly, under
Sec. Sec. 455.470 and 457.990, this moratorium will apply to the
enrollment of HHAs in Medicaid and CHIP, unless the State later
determines that imposition of the moratorium will adversely impact
beneficiary access to care and so notifies CMS under Sec.
455.470(a)(3).
CMS reviewed Medicare data for the target and surrounding counties,
and found that there are no problems with access to HHAs in Harris
County, TX or surrounding counties. Additionally, as described in
section I.B.4. of this document, MedPAC has not reported any problems
with Medicare beneficiary access to home health care. While CMS has
determined there are no access to care issues for Medicare
beneficiaries, nevertheless, the agency will continuously monitor these
locations under a moratorium for changes such as an increase in
beneficiary complaints to ensure that no access to care issues arise in
the future.
D. Moratorium on Enrollment of HHAs in the Michigan Counties of Wayne,
Macomb, Monroe, Oakland, and Washtenaw
CMS has determined there are factors in place that warrant the
imposition of a temporary enrollment moratorium for HHAs in Wayne
County, MI (which contains the City of Detroit), as well as the four
surrounding counties; Macomb, Monroe, Oakland, and Washtenaw. CMS has
determined that it is necessary to extend this moratorium to the
surrounding counties to prevent potentially fraudulent HHAs from
enrolling in a neighboring county to avoid the moratorium. CMS has also
consulted with the State Medicaid agency and reviewed available data
and determined that the temporary moratorium will also apply to
Medicaid and CHIP.
Beginning on the effective date of this document, no new HHAs will
be enrolled into Medicare, Medicaid or CHIP with a practice location in
the Michigan Counties of Wayne, Macomb, Monroe, Oakland, and Washtenaw
unless their enrollment application has already been approved but not
yet entered into PECOS or the State Provider/Supplier Enrollment System
at the time the moratorium is imposed.
1. Consultation With Law Enforcement
Consistent with Sec. 424.570(a)(2)(iv), CMS has consulted with
both the HHS-OIG and DOJ regarding the imposition of a moratorium on
new HHAs in Wayne County, MI and the surrounding counties. Both HHS-OIG
and DOJ agree that a significant potential for fraud, waste, or abuse
exists with respect to HHAs in the affected geographic locations. The
HHS-OIG has previously identified Detroit has an HHA fraud-prone area
because it is a Strike Force location where individuals have been
charged with billing potentially fraudulent home health services, and
is located in a State that had a high percentage of HHAs with
questionable billing identified by the OIG.\26\ There has been
considerable Strike Force and law enforcement activity in this area of
the country. Since January 2010, the Strike Force filed 14 home health
fraud cases, and charged 84 individuals that have resulted in 44 guilty
pleas and 6 trial convictions. For example, in May 2013, a Detroit-area
home health care agency owner was sentenced to 60 months in prison for
causing the submission of over $1 million in false and fraudulent
billing to Medicare as part of a $13.8 million health care fraud
conspiracy.\27\ In April 2013, an employee of a Detroit medical service
company pled guilty for her role in a $24 million home health care
fraud scheme.\28\ Also in April 2013, a federal jury in Detroit
convicted the office manager of a home health agency for her
participation in a $5.8 million Medicare fraud scheme.\29\ As of March
2013, 44 individuals were charged in a health care fraud and drug
distribution scheme that centered on an allegation that three home
health agency owners would provide kickbacks, bribes, and other illegal
benefits to physicians to induce them to write prescriptions for
patients with Medicare, Medicaid, and private insurance.\30\
---------------------------------------------------------------------------
\26\ Office of Inspector General Report, ``CMS and Contractor
Oversight of Home Health Agencies.'' (OEI-04-11-00220). See https://oig.hhs.gov/oei/reports/oei-04-11-00220.pdf.
\27\ DOJ, ``Detroit Area Home Health Agency Owner Sentenced to
60 Months for Role in $13 Million Health Care Fraud Scheme.'' See
http://www.justice.gov/opa/pr/2013/May/13-crm-544.html.
\28\ Federal Bureau of Investigation, ``Detroit Home Health
Company Employee Pleads Guilty to Role in Medicare Fraud Scheme.''
See http://www.fbi.gov/detroit/press-releases/2013/detroit-home-health-company-employee-pleads-guilty-to-role-in-medicare-fraud-scheme.
\29\ DOJ, ``Detroit-Area Home Health Agency Office Manager
Convicted in $5.8 million Medicare Fraud Scheme.'' See http://www.justice.gov/opa/pr/2013/April/13-crm-443.html.
\30\ DOJ, ``Forty-Four Individuals Indicted in Health Care Fraud
and Drug Distribution Scheme.'' See http://www.justice.gov/usao/mie/news/2013/2013_3_20_stayreal.html.
---------------------------------------------------------------------------
2. Data Analysis
a. Medicare Data Analysis
CMS data show that in 2012, there were 31 U.S. counties nationally,
including Wayne County, MI with at least 200,000 Medicare
beneficiaries. CMS excluded Wayne County, MI and three other counties
as explained previously and used the remaining 27 counties as
``comparison counties.'' \31\ In 2012, there was an average of 5.9 HHAs
per 10,000 Medicare FFS beneficiaries in the comparison counties. In
Wayne County, MI there were 7.1 HHAs per 10,000 Medicare FFS
beneficiaries. This means that the ratio of HHAs to FFS beneficiaries
was 19 percent greater in Wayne County, MI than in the comparison
counties.
---------------------------------------------------------------------------
\31\ See footnote 11 for explanation of the 3 additional
counties that were excluded for purposes of the HHA comparison
county analysis.
---------------------------------------------------------------------------
b. Medicaid Data Analysis
As discussed previously in section I.B.1. of this document, CMS
believes that generally, a category of providers or suppliers that
poses a risk to the Medicare program also poses a similar risk to
Medicaid and CHIP. Additionally, the data also show a significantly
higher annual utilization of Medicaid home health services in Wayne
County, MI compared to the entire state. CMS compared Wayne County, MI
against the rest of the state rather than to comparison counties
nationally because Medicaid policies are not necessarily uniform across
different states. In 2011 \32\ in Wayne County, MI Medicaid paid HHAs
an average of $26,981 per provider per year, or 24 percent more than
the average of $21,842 that Medicaid paid HHAs in the rest of the
state.
---------------------------------------------------------------------------
\32\ CMS used 2011 data from the Medicaid Statistical
Information System (MSIS) because it was the most recent data
available for all three states in this document.
---------------------------------------------------------------------------
3. Beneficiary Access
Based upon CMS' consultation with the State Medicaid agency, CMS
has concluded that imposing this temporary moratorium will not create
an access to care issue for Medicaid or CHIP
[[Page 6482]]
beneficiaries in Wayne County, MI or the surrounding counties at this
time. Accordingly, under Sec. Sec. 455.470 and 457.990, this
moratorium will apply to the enrollment of HHAs in Medicaid and CHIP,
unless the State later determines that imposition of the moratorium
will adversely impact beneficiary access to care and so notifies CMS
under Sec. 455.470(a)(3).
CMS reviewed Medicare data for the target and surrounding counties,
and found that there are no problems with access to HHAs in Wayne
County, MI or surrounding counties. Additionally, as described in
section I.B.4. of this document, MedPAC has not reported any problems
with Medicare beneficiary access to home health care. While CMS has
determined there are no access to care issues for Medicare
beneficiaries, nevertheless, the agency will continuously monitor these
locations under a moratorium for changes such as an increase in
beneficiary complaints to ensure that no access to care issues arise in
the future.
III. Imposition of Ambulance Moratorium--Geographic Area
Under its authority at Sec. 424.570(a)(2)(i) and (iv), CMS is
implementing a temporary moratorium on the Medicare Part B enrollment
of ambulance suppliers in the geographic area discussed in this
section. The moratorium does not apply to provider-based ambulances,
which are owned and/or operated by a Medicare provider (or furnished
under arrangement with a provider) such as a hospital, critical access
hospital, skilled nursing facility, comprehensive outpatient
rehabilitation facility, home health agency, or hospice program,\33\
and are not required to enroll separately as a supplier in Medicare
Part B.\34\
---------------------------------------------------------------------------
\33\ Medicare Claims Processing Manual, CMS Pub. No. 100-04,
Chapter 15, ``Ambulance.'' See http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c15.pdf.
\34\ Medicare Program Integrity Manual, Chapter 15, Medicare
Enrollment. See http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/pim83c15.pdf.
---------------------------------------------------------------------------
Under regulations at Sec. Sec. 455.470 and 457.990, this
moratorium will also apply to the enrollment of ambulance service
providers in Medicaid and CHIP. The moratorium does not apply to air
ambulances attempting to enroll in Medicare, Medicaid or CHIP.
A. Moratorium on Enrollment of Ambulances in the Pennsylvania Counties
of Philadelphia, Bucks, Delaware, and Montgomery, and the New Jersey
Counties of Burlington, Camden, and Gloucester
CMS has determined that there are factors in place that warrant the
imposition of a temporary enrollment moratorium for ambulance suppliers
that enroll in Medicare Part B and ambulance providers in Medicaid and
CHIP in Philadelphia County, PA (which contains the City of
Philadelphia), as well as the six surrounding counties--the
Pennsylvania counties of Bucks, Delaware, and Montgomery, and the New
Jersey counties of Burlington, Camden, and Gloucester. CMS has
determined that it is necessary to extend this moratorium to the
surrounding counties to prevent potentially fraudulent ambulance
suppliers from enrolling in a neighboring county to avoid the
moratorium. CMS has consulted with the Pennsylvania and New Jersey
State Medicaid Agencies and reviewed available data, and has determined
that this moratorium will apply equally to enrollment of ambulance
suppliers in Medicaid and CHIP.
Beginning on the effective date of this document, no new ambulance
suppliers will be enrolled into Medicare, Medicaid or CHIP with a
practice location in the Pennsylvania Counties of Philadelphia, Bucks,
Delaware, and Montgomery, and the New Jersey Counties of Burlington,
Camden, and Gloucester unless their enrollment application has already
been approved but not yet entered into PECOS or the State Enrollment
System at the time the moratorium is imposed. The moratorium does not
apply to air ambulance suppliers or providers attempting to enroll in
Medicare, Medicaid or CHIP.
1. Consultation With Law Enforcement
Consistent with Sec. 424.570(a)(2)(iv), CMS has consulted with
both the HHS-OIG and DOJ regarding the imposition of a moratorium on
new ambulance suppliers in Philadelphia, PA and surrounding counties.
Both the HHS-OIG and DOJ agree that a significant potential for fraud,
waste and abuse exists with respect to ambulance suppliers in the
affected geographic locations. The HHS-OIG previously found that the
Medicare ambulance transport benefit may be highly vulnerable to abuse
in locations with high utilization, such as Philadelphia, PA and
surrounding locations DOJ prosecuted an operator of an ambulance
service company, indicted in June 2012, for submitting more than $5.4
million in false claims to Medicare for medically unnecessary
transportation of patients by ambulance.\35\ Additionally, in April
2013, the owner of a Philadelphia ambulance supplier pled guilty to a
health care fraud scheme that involved billing Medicare for ambulance
services that were not medically necessary, that were not actually
provided, or that were induced by illegal kickbacks.\36\ Also in April
2013, seven people were charged in a $3.6 million health care scheme
for unnecessary ambulance rides in Philadelphia.\37\
---------------------------------------------------------------------------
\35\ HHS and DOJ, ``Health Care Fraud and Abuse Control Program
Annual Report for Fiscal Year 2012.'' See http://oig.hhs.gov/publications/docs/hcfac/hcfacreport2012.pdf.
\36\ DOJ, ``Owner of Brotherly Love Ambulance Pleads Guilty to
$2 million Health Care Fraud Scheme.'' See http://www.justice.gov/usao/pae/News/2013/Apr/kuranplea_release.htm.
\37\ DOJ, ``Seven Charged in Health Care Fraud Scheme.'' See
http://www.justice.gov/usao/pae/News/2013/Apr/pennchoice_release.htm.
---------------------------------------------------------------------------
2. Data Analysis
a. Medicare Data Analysis
CMS' data show that in 2012, there were 31 U.S. counties
nationally, including Philadelphia, PA, with at least 200,000 Medicare
beneficiaries. CMS excluded Philadelphia County, PA, New York County,
NY and Harris County, TX and used the remaining 28 counties as
``comparison counties.'' \38\ In 2012, there was an average of 1.4
ambulance suppliers per 10,000 Medicare FFS beneficiaries in the
comparison counties. In Philadelphia County, PA there were 4.8
ambulance suppliers per 10,000 Medicare FFS beneficiaries. This means
that the ratio of ambulance suppliers to FFS beneficiaries was 243
percent greater in Philadelphia County, PA than in the comparison
counties, the third highest ratio compared to comparison counties.
---------------------------------------------------------------------------
\38\ CMS' data shows that there are 31 counties that have at
least 200,000 Medicare beneficiaries. Besides Philadelphia, for the
ambulance analysis, 2 additional locations were excluded leaving 28
``comparison counties''. New York County is excluded due to unique
local conditions, such as New York's high density, its compact
geography, and its high real estate costs. We believe that this
outlier would have biased the average by making it artificially low,
and could potentially over-represent the difference in ratios
between the target county and the comparison counties. Harris
County, Texas is also excluded because CMS already determined that
the data and other factors indicated a risk of ambulance fraud in
that county, and imposed a moratorium on July 30, 2013, which is
being extended in this document.
---------------------------------------------------------------------------
CMS' data show that the compounded average annual growth rate of
ambulance suppliers in Philadelphia County, PA, is 15 times higher
compared to the comparison counties'
[[Page 6483]]
annual growth rate of 1 percent, the second highest growth rate
compared to comparison counties.
CMS' data show that in 2012, ambulance suppliers in Philadelphia
County, PA were receiving payments of $1,314 per average ambulance user
per year, compared to ambulance suppliers in comparison counties, which
received payments of $803. Payments to ambulance suppliers were 64
percent higher than the average for comparison counties, and the third
highest compared to comparison counties.
b. Medicaid Data Analysis
As discussed previously in section I.B.1. of this document, CMS
believes that generally, a category of providers or suppliers that
poses a risk to the Medicare program also poses a similar risk to
Medicaid and CHIP. In addition, the data also show a significantly
higher annual utilization of Medicaid ambulance services in
Philadelphia County, PA compared to the entire state. CMS compared
Philadelphia County, PA against the rest of the state rather than to
comparison counties nationally because Medicaid policies are not
necessarily uniform across different states. In 2011 \39\ in
Philadelphia County, PA Medicaid paid ambulances an average of $18,254
per provider per year, or 130 percent more than the average of $7,922
that Medicaid paid ambulances in the rest of the state.
---------------------------------------------------------------------------
\39\ CMS used 2011 data from the Medicaid Statistical
Information System (MSIS) because it was the most recent data
available for all three states in this document.
---------------------------------------------------------------------------
3. Beneficiary Access
After consulting with the Pennsylvania and New Jersey State
Medicaid agencies and the Pennsylvania and New Jersey State Departments
of Health Emergency Medical Services, and reviewing available data, CMS
has concluded that imposing this temporary moratorium will not create
an access to care issue for Medicaid or CHIP beneficiaries in
Philadelphia County, PA or the surrounding counties at this time.
Accordingly, under Sec. Sec. 455.470 and 457.990, this moratorium will
apply to the enrollment of ambulance providers in Medicaid and CHIP,
unless either or both states later determine(s) that imposition of the
moratorium will adversely impact beneficiary access to care and so
notify(ies) CMS under Sec. 455.470(a)(3).
CMS reviewed Medicare data for the target and surrounding counties,
and found that there are no problems with access to ambulance suppliers
in Philadelphia County, PA or surrounding counties. Additionally, as
described in section I.B.4. of this document, MedPAC has not reported
any problems with Medicare beneficiary access to ambulance services.
While CMS has determined that this temporary moratorium will not create
an access to care issue for Medicare beneficiaries in Philadelphia
County, PA or the surrounding counties at this time, nevertheless, the
agency will continuously monitor these locations under a moratorium for
changes, such as any increase in beneficiary complaints, to ensure that
no access to care issues arise in the future.
IV. Extension of Home Health Moratoria--Geographic Locations
In accordance with Sec. 424.570(b), CMS may deem it necessary to
extend the moratoria in 6-month increments. Under its authority at
Sec. 424.570(b), CMS is extending the temporary moratoria on the
Medicare enrollment of HHAs in the geographic locations discussed in
this section. Under regulations at Sec. Sec. 455.470 and 457.990, this
moratorium also applies to the enrollment of HHAs in Medicaid and CHIP.
At Sec. 424.570(b), CMS stated it would publish a Federal Register
document announcing any extension, and this document fulfills that
requirement.
A. Moratorium on Enrollment of HHAs in the Florida Counties of Miami-
Dade and Monroe
In the July 31, 2013 Federal Register (78 FR 46340), CMS published
a document announcing the imposition of a temporary moratorium on the
enrollment of new HHAs in the Florida counties of Miami-Dade and
Monroe, as well as the qualitative and quantitative factors that
supported CMS' determination of a need for the moratorium. CMS
consulted with both the HHS-OIG and DOJ regarding the extension of the
moratorium on new HHAs in Miami-Dade and Monroe counties, and both HHS-
OIG and DOJ agree that a significant potential for fraud, waste and
abuse continues to exist in this geographic area. Law enforcement
agencies continue to investigate and prosecute significant fraudulent
activity relating to home health services in these counties. For
example, five Miami residents were arrested for their roles in a $48
million home health scheme on September 25, 2013,\40\ and three home
health recruiters pled guilty for their role in the same $48 million
scheme \41\ on September 4 and 26, 2013.\42\ Additionally, two Miami-
Dade County, FL health care clinic owners pled guilty in connection
with an $8 million health care fraud scheme involving a now-defunct
home health care company on August 13, 2013.\43\
---------------------------------------------------------------------------
\40\ http://www.justice.gov/opa/pr/2013/September/13-crm-1071.html.
\41\ http://www.justice.gov/opa/pr/2013/September/13-crm-985.html.
\42\ http://www.justice.gov/opa/pr/2013/September/13-crm-1077.html.
\43\ http://www.fbi.gov/miami/press-releases/2013/health-care-clinic-owners-plead-guilty-in-miami-for-roles-in-8-million-health-care-fraud-scheme.
---------------------------------------------------------------------------
As stated in the July 31, 2013 Federal Register document, CMS' data
showed that Miami-Dade County had the highest ratio of HHAs to Medicare
FFS beneficiaries compared to comparison counties, as well as the
highest payments to HHAs compared to comparison counties. During the
first 60 days of the moratorium, CMS revoked the billing privileges of
14 HHAs, and deactivated the billing privileges of 7 HHAs in Miami-
Dade, FL. CMS has also performed other actions, such as payment
suspensions and revocation of provider/supplier numbers for HHAs in
this target area.
As provided in Sec. 424.570(d), CMS may lift a moratorium at any
time if the President declares an area a disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, if circumstances
warranting the imposition of a moratorium have abated, if the Secretary
has declared a public health emergency or, if in the judgment of the
Secretary, the moratorium is no longer needed. Neither Miami-Dade
County nor Monroe County has been the site of a recent disaster or
public health emergency. Additionally, the circumstances warranting the
imposition of the moratorium have not yet abated, and CMS has
determined that the moratorium is still needed as we monitor the
indicators described and continue with administrative actions such as
payment suspensions and revocation of provider/supplier numbers.
Based upon CMS' consultation with the State Medicaid Agency, CMS
has concluded that extending this moratorium will not create an access
to care issue for Medicaid or CHIP beneficiaries in Miami-Dade, FL or
the surrounding county at this time. CMS also reviewed Medicare data
for the target and surrounding county and found there are no problems
with access to HHAs. Additionally, as described in section I.B.4. of
this document, MedPAC has not reported any problems with Medicare
beneficiary access to home health care. While CMS has determined there
are no access to care issues for Medicare beneficiaries, nevertheless,
the
[[Page 6484]]
agency will continue to monitor these locations.
As a result of the law enforcement consultation and consideration
of the factors and activities described, CMS has determined that the
temporary enrollment moratorium will be extended for 6 months to combat
fraud in this area.
B. Moratorium on Enrollment of HHAs in the Illinois Counties of Cook,
DuPage, Kane, Lake, McHenry and Will
In the July 31, 2013 Federal Register (78 FR 46340), CMS published
a document announcing the imposition of a temporary moratorium on the
enrollment of new HHAs in the Illinois Counties of Cook, DuPage, Kane,
Lake, McHenry and Will, as well as the qualitative and quantitative
factors that supported CMS' determination of a need of the moratorium.
CMS consulted with both the HHS-OIG and DOJ regarding the extension
of the moratorium on new HHAs in Cook and surrounding counties, and
both HHS-OIG and DOJ agree that a significant potential for fraud,
waste and abuse continues to exist in this geographic area. We have
found that law enforcement activities continue. For example, a Chicago
resident was arrested in connection with an indictment in an alleged
$12 million home health fraud scheme on October 29, 2013.\44\ In
another example, nine defendants were indicted in a Chicago home health
kickback scheme on September 26, 2013.\45\ The CEO of a Chicago home
health company was arrested and $2.6 million in alleged fraud proceeds
from various bank accounts were seized on August 27, 2013. A physician
who was also involved in this same scheme was arrested.\46\
---------------------------------------------------------------------------
\44\ https://oig.hhs.gov/fraud/enforcement/criminal/.
\45\ http://www.justice.gov/usao/iln/pr/chicago/2012/pr0925_01.pdf.
\46\ http://www.fbi.gov/chicago/press-releases/2013/mobile-doctors-chicago-ceo-and-doctor-arrested-on-federal-health-care-fraud-charges.
---------------------------------------------------------------------------
As stated in the July 31, 2013 Federal Register document, CMS' data
showed that the growth rate in Cook County was double the national
average of comparison counties, and that payments to HHAs were some of
the highest nationally compared to the comparison counties. CMS has
performed administrative actions, including investigations, referrals
to law enforcement and payment suspensions on HHAs in this target area.
As provided in Sec. 424.570(d), CMS may lift a moratorium at any
time if the President declares an area a disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, if circumstances
warranting the imposition of a moratorium have abated, if the Secretary
has declared a public health emergency, or if in the judgment of the
Secretary, the moratorium is no longer needed. Cook and the surrounding
counties have not been the site of a recent disaster or public health
emergency. Additionally, the circumstances warranting the imposition of
the moratorium have not yet abated, and CMS has determined that the
moratorium is still needed as we monitor the indicators described and
continue with administrative actions such as payment suspensions and
revocations of provider/supplier numbers.
Based upon CMS' consultation with the State Medicaid Agency, CMS
concluded that extending this moratorium will not create an access to
care issue for Medicaid or CHIP beneficiaries in Cook or the
surrounding counties at this time. CMS also reviewed Medicare data for
the target and surrounding counties and found there are no problems
with access to HHAs. Additionally, as described in section I.B.4. of
this document, MedPAC has not reported any problems with Medicare
beneficiary access to home health care. While CMS has determined there
are no access to care issues for Medicare beneficiaries, nevertheless,
the agency will continue to monitor these locations.
As a result of the law enforcement consultation and consideration
of the factors and activities described, CMS has determined that this
temporary enrollment moratorium will be extended for 6 months to combat
fraud in this area.
V. Extension of Ambulance Moratoria--Geographic Area
A. Moratorium on the Enrollment of Ambulance Suppliers and Providers in
the Texas Counties of Harris, Brazoria, Chambers, Fort Bend, Galveston,
Liberty, Montgomery and Waller
In the July 31, 2013 Federal Register (78 FR 46340), CMS published
a document announcing the imposition of this temporary moratorium on
the enrollment of new ambulance suppliers and providers in the Texas
Counties of Harris, Brazoria, Chambers, Fort Bend, Galveston, Liberty,
Montgomery and Waller, as well as the qualitative and quantitative
factors that supported CMS' determination of a need of the moratorium.
CMS consulted with both the HHS-OIG and DOJ regarding the extension
of the moratorium on new ambulances in Harris County, TX and
surrounding counties, and both HHS-OIG and DOJ agree that a significant
potential for fraud, waste and abuse continues to exist in this
geographic area. For example, the owner of a Houston-based ambulance
company was convicted of multiple counts of health care fraud on
October 30, 2013.\47\
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\47\ http://www.yourhoustonnews.com/deer_park/news/owner-of-texas-based-ambulance-service-convicted-of-health-care/article_49a3ed6e-355e-5478-aa99-8d383071d1dc.html.
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As stated in the July 31, 2013 Federal Register document, CMS' data
showed that Harris County, TX had the highest ratio of ambulance
suppliers to Medicare beneficiaries compared to the comparison
counties, as well as having the highest number of providers not
continuously billing since 2008--a strong indicator of churn (churn is
a term used to describe the switching between provider numbers when a
provider number is identified as being involved in fraud and abuse)--
compared to the comparison counties. In the first 60 days of the
moratorium, CMS has revoked the billing privileges of 15 ambulance
suppliers.
As provided in Sec. 424.570(d), CMS may lift a moratorium at any
time if the President declares an area a disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, if circumstances
warranting the imposition of a moratorium have abated, if the Secretary
has declared a public health emergency, or if in the judgment of the
Secretary, the moratorium is no longer needed. Harris County, TX and
the surrounding counties have not been the site of a recent disaster or
public health emergency. Additionally, the circumstances warranting the
imposition of a moratorium have not yet abated, and CMS has determined
that the moratorium is still needed as we monitor the indicators
described and continue with administrative actions such as payment
suspensions and revocations of provider/supplier numbers.
Based upon CMS' consultation with the State Medicaid Agency, CMS
concluded that extending this moratorium will not create an access to
care issue for Medicaid or CHIP beneficiaries in Harris County, TX or
the surrounding counties at this time. CMS also reviewed Medicare data
for the target and surrounding counties and found there are no problems
with access to ambulance services. Additionally, as described in
section I.B.4. of this document, MedPAC has not reported any problems
with Medicare beneficiary
[[Page 6485]]
access to ambulance services. While CMS has determined there are no
access to care issues for Medicare beneficiaries, nevertheless, the
agency will continue to monitor these locations.
As a result of the law enforcement consultation and consideration
of the factors and activities described, CMS has determined that the
temporary enrollment moratorium will be extended for 6 months to combat
fraud in these areas.
VI. Summary of the Moratoria Locations
CMS is executing its authority under sections 1866(j)(7),
1902(kk)(4), and 2107(e)(1)(D) of the Act to implement a moratorium in
the following counties for these providers and suppliers:
Table 1--New Home Health Agency Moratoria
----------------------------------------------------------------------------------------------------------------
Law enforcement Medicare data Medicaid data
City and State Counties activity (2012) (2011)
----------------------------------------------------------------------------------------------------------------
Fort Lauderdale, FL............. Broward........... Adjacent to HEAT Ratio of HHAs to HHAs were paid 95
Miami-Dade Strike Medicare FFS percent more per
Force Location. Beneficiaries was year compared to
92 percent higher the rest of the
than Comparison state.
Counties.
Detroit, MI..................... Macomb............ HEAT Strike Force Compounded annual HHAs were paid 24
Monroe............ Location. growth was almost percent more per
Oakland........... double the year compared to
Washtenaw......... national average. the rest of the
Wayne............. state.
Dallas, TX...................... Collin............ HEAT Strike Force Ratio of HHAs to Spent 35 percent
Dallas............ Location. Medicare FFS more per home
Denton............ Beneficiaries was health user
Ellis............. 365 percent compared to the
Kaufman........... higher than rest of the
Rockwall.......... Comparison state.
Tarrant........... Counties.
Houston, TX..................... Brazoria Chambers. HEAT Strike Force Ratio of HHAs to Spent 83 percent
Fort Bend Location. Medicare FFS more per home
Galveston. Beneficiaries was health user
Harris............ 276 percent compared to the
Liberty Montgomery higher than rest of the
Waller............ Comparison state.
Counties.
----------------------------------------------------------------------------------------------------------------
TABLE 2--New Ambulance Moratorium
----------------------------------------------------------------------------------------------------------------
Law enforcement Medicare data Medicaid data
City and State Counties activity (2012) (2011)
----------------------------------------------------------------------------------------------------------------
Philadelphia, PA................ Bucks (PA)........ .................. Ratio of Ambulance Ambulances paid
Delaware (PA)..... Suppliers to 130 percent more
Montgomery (PA)... Medicare FFS per year compared
Philadelphia (PA). Beneficiaries was to the rest of
Burlington (NJ)... 232 percent the state.
Camden (NJ)....... higher than
Gloucester (NJ)... Comparison
Counties.
----------------------------------------------------------------------------------------------------------------
VII. Regulatory Impact Statement
CMS has examined the impact of this document as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), the Regulatory Flexibility Act (RFA)
(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social
Security Act, section 202 of the Unfunded Mandates Reform Act of 1995
(March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism
(August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major regulatory
actions with economically significant effects ($100 million or more in
any 1 year). This document will prevent the enrollment of new home
health providers and ambulance suppliers in Medicare, and ambulance
providers in Medicaid and CHIP. Though savings may accrue by denying
enrollments, the monetary amount cannot be quantified. After the
imposition of the moratoria on July 30, 2013, 231 HHAs and 7 ambulance
companies in all geographic areas affected by the moratoria had their
applications denied. We have found the number of applications that are
denied after 60 days declines dramatically, as most providers and
suppliers will not submit applications during the moratoria period.
Therefore, this document does not reach the economic threshold and thus
is not considered a major action.
The RFA requires agencies to analyze options for regulatory relief
of small entities. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and small governmental
jurisdictions. Most hospitals and most other providers and suppliers
are small entities, either by nonprofit status or by having revenues of
$7.0 million to $35.5 million in any one year. Individuals and states
are not included in the definition of a small entity. CMS is not
preparing an analysis for the RFA because it has determined, and the
Secretary certifies, that this
[[Page 6486]]
document will not have a significant economic impact on a substantial
number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if an action may have a significant impact
on the operations of a substantial number of small rural hospitals.
This analysis must conform to the provisions of section 604 of the RFA.
For purposes of section 1102(b) of the Act, CMS defines a small rural
hospital as a hospital that is located outside of a Metropolitan
Statistical Area for Medicare payment regulations and has fewer than
100 beds. CMS is not preparing an analysis for section 1102(b) of the
Act because it has determined, and the Secretary certifies, that this
document will not have a significant impact on the operations of a
substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any regulatory action whose mandates require spending in any 1
year of $100 million in 1995 dollars, updated annually for inflation.
In 2013, that threshold is approximately $141 million. This document
will have no consequential effect on state, local, or tribal
governments or on the private sector.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed regulatory action (and
subsequent final action) that imposes substantial direct requirement
costs on state and local governments, preempts state law, or otherwise
has Federalism implications. Since this document does not impose any
costs on state or local governments, the requirements of Executive
Order 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, the
Office of Management and Budget reviewed this document.
Authority: Sections 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh) and 44 U.S.C. Chapter 35; Sec. 1103 of the
Social Security Act (42 U.S.C. 1302).
Dated: January 27, 2014.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2014-02166 Filed 1-30-14; 4:15 pm]
BILLING CODE 4120-01-P