radar Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry
If you have had a loved one suffer from dementia, you know the emotional, physical, and financial toll of this terrible disease. With advancements in dementia treatment, however, there is renewed hope on addressing this disease and increasing emphasis on fostering innovative care models.
Estimates show that Medicaid enrollment grew by more than 20 million (approximately 31%) during the public health emergency (PHE) and the top Medicaid managed care organizations (MCOs) experienced a 44.1% increase in managed care enrollment between March 2020 and March 2023. This increase has been largely attributed to the continuous enrollment condition, which conditioned certain federal funding on maintaining all Medicaid enrollments during the PHE. In spring of 2023, the continuous enrollment condition ended and states were given a year to redetermine the eligibility of 94 million Medicaid enrollees.
The Biden administration recently announced its much-anticipated proposed rule for implementing a minimum staffing “floor” for nursing homes in the United States and further launched a nursing home accountability initiative. These efforts are seismic for the long-term care nursing home community and will bring new challenges and scrutiny to a health industry sector battered with healthcare personnel shortages, pandemic recovery obstacles, changing reimbursement models, and regulatory scrutiny.
For over a year, the hospice industry, legislators, and state and federal regulators have expressed concerns about the fast growth and potentially unscrupulous activities of new hospices in several states in particular. Those concerns were covered in the press and congressional hearings, with the California legislature leading the way to clamp down on abusive hospice practices with a hospice license moratorium enacted in 2022. Hospice industry leaders had called for the Centers for Medicare and Medicaid Services (CMS) to take additional action to target abusive new hospice practices in certain states and on July 12, 2023, CMS announced targeted oversight of new hospices in Arizona, California, Nevada, and Texas in a “MLN fact sheet.”
The Centers for Medicare & Medicaid Services (CMS) proposed on April 23, 2023 two rules that would affect Medicaid managed care: Ensuring Access to Medicaid Services (CMS 2442-P) and Medicaid and Children’s Health Insurance Program (CHIP) Managed Care Access, Finance, and Quality (CMS-2439-P). The proposed rules recognize the growth of managed care, which currently constitutes more than 70% of the Medicaid population.
Medicaid enrollment grew significantly during the public health emergency (PHE). States implemented expanded eligibility and enrollment as well as reduced cost sharing and premiums based on Medicaid program regulatory flexibilities available during the PHE, but many of those will expire on May 11, 2023 and December 11, 2023.
The US Department of Justice’s (DOJ’s) Civil Division released its annual fraud statistics on February 7, covering fiscal year 2022. Settlements and judgments under the False Claims Act (FCA) exceeded $2.2 billion in the fiscal year ending on September 30, 2022. Consistent with previous years, a significant portion of the recoveries related to the healthcare industry.
The Centers for Medicare & Medicaid Services (CMS) delayed the publication of the final rule on the use of extrapolation and the application of a fee-for-service adjuster (FFS Adjuster) in risk adjustment data validation (RADV) audits of Medicare Advantage organizations (MAOs). The proposed rule was published on November 1, 2018, more than four years ago. With this latest extension, the final rule deadline is now February 1, 2023.
Is the COVID-19 pandemic making you feel a bit like Bill Murray in Groundhog Day? Although most parts of life have returned to the "new normal," the federal government remains in a seemingly endless cycle of regulatory uncertainty.
Last month, we had an engaging Fast Break session covering the growing importance of risk adjustment in various health insurance programs and novel government theories of liability associated with risk adjustment reporting. Morgan Lewis associates Tesch Leigh West and Michelle M. Arra described the fundamental processes regarding risk adjustment and highlighted recent audit and enforcement trends in this area.