Washington Report – September, 2013
Bill Finerfrock, Zhaneta Mansaku, Kirk Shields
Government Shut Down
Members of Congress and Certain Staff Must Get Health Benefits Through Exchange
Employer Notification Requirement and the ACA
CMS Tells Contractors to have ICD-10 LCDs available by April, 2014
New Health IT tools
SHOP till you Drop?
Basic Health Benefit Program Proposed
Beware of Health Insurance Marketplace Scams
CMS Transmittals
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Government Shut Down
By the time this report is published, the government shut-down will have commenced on October 1, 2013 – the beginning of the new federal Fiscal Year (FY). Although not unprecedented, it has been several years since the last government shut down due to a dispute between the Congress and President. The last time this occurred, Bill Clinton was occupying the White House and Newt Gingrich was the Speaker of the House of Representatives.
The federal Fiscal Year runs from October 1 through September 30th. This means that Fiscal Year 2014 began on Tuesday, October 1. In order for the government to operate, the Congress must pass and the President must sign appropriations bills that release the money necessary to fund the operation of the federal government.
All indications are that this dispute could last for some time.
As of early October, not a single one of the 12 appropriations bills required to fund the government have been signed into law.
Due to the lack of appropriations, a government-wide shut-down of all “non-essential” services was to commence on October 1st. Government agencies have wide latitude in determining what constitute “essential” services so it is not clear the full-extent of a government shut-down.
What does this mean for Medicare and Medicaid?
Because the money used to pay Medicare benefits is not subject to the appropriations process (it is an entitlement program not a discretionary program) and the processing of Medicare claims is deemed “essential,” the Centers for Medicare and Medicaid (CMS) has announced that there should be no disruption in the processing and payment of Medicare claims. In fact, most CMS activities will continue despite the appropriations impasse.
Although this is good news for providers and patients, it should be noted that all work on policy issues or new/pending regulations will be suspended during the shut-down. Work, for example, on drafting the final Physician Fee Schedule rule for 2014 has been suspended during the shut-down and could delay the release of that final rule. In years past, the Medicare Physician Fee Schedule Final Rule has been released in early November. Due to the shut-down, it is expected that the release of the Final Rule will be delayed. How long of a delay will be determined by how long the government shut-down continues.
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Members of Congress and Certain Staff Must Get Health Benefits Through Exchange
When the Patient Protection and Affordable Care Act (ACA) was enacted in 2010, there was a provision put into the legislation that stipulated that Members of Congress and Congressional staff must obtain health insurance in the same way as other individuals. Although Members of Congress and staff had historically been treated the same as all other federal employees (i.e. covered under the Federal Employees Health Benefits Program or FEHB) a majority in Congress felt that it would be wrong to subject the American people to a reformed health insurance system that did not also affect them.
Until recently, it was not clear exactly how that would happen.
In mid-September the federal Office of Personnel Management (OPM) which oversees all federal employee benefits, announced that beginning in January, Members of Congress and certain Congressional staff would no longer be covered by the FEHB. As with all other full-time federal employees, OPM said the federal government would continue to make a contribution to cover a significant portion of the cost of the insurance – but only if the Members of Congress and covered staff purchased their health insurance through the Washington DC Small Business Exchange.
Members of Congress and covered staff would be limited in the choices they have available to only those plans available on the DC Small Business Exchange. Currently, there are four Health Insurers (CareFirst, Kaiser, United Heathcare and Aetna) offering products for sale on the DC Small Business Exchange.
Members of Congress and covered staff are free to purchase insurance outside of the DC Exchange; however, they will be responsible for the full cost of the insurance (i.e. no “employer” contribution).
Lawmakers and their staffs will have to shop for insurance through the D.C. exchange, regardless of where they live. This will likely prove problematic for most Members of Congress as they maintain their permanent residence in their home state. Most of the health insurance products being offered in the DC Exchange are either closed network or limited Preferred Provider networks with either no coverage for out-of-network care or very high deductibles and co-pays for out-of-network coverage. In large measure, the networks offered are exclusive to the Washington, DC Metropolitan area.
According to OPM, it will be up to each Member of Congress to determine which employees are covered by the ACA mandate. So in any given Congressional office, some staff may move to the Exchange and other staff will remain in the FEHB program.
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Employer Notification Requirement and the ACA
According to the Department of Labor, all employers covered by the Fair Labor Standards Act (FSLA) were obligated to make the health insurance notification to covered employees by October 1, 2013.
In late September, however, the Department of Labor announced that it would not penalize employers who fail to notify workers about changes to their health insurance coverage under the Affordable Care Act. Although the Department of Labor announcement eases some employer fears, it is not clear whether an employee would have a separate cause of action against an employer who failed to make the required notifications.
For employers wishing to meet the federal mandate, the Department of Labor has prepared sample notification letters the employer can use:
Here are the links:
One for employers that DO offer health insurance:
http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf
One for employers that DO NOT offer health insurance:
http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf
Spanish language versions of these model forms are also available for download.
The notification must be in writing AND written in a manner that can be expected to be understood by the “average” employee. The written notification can be hand delivered or it may be sent to the employee via first class mail or electronic mail. Although employers are not required to obtain written verification from the employee indicating receipt of the notice, employers may wish to obtain verification in the event that there is a question.
For new employees (those hired after 10/1/2013), the communication must be given within 14 days of the beginning of their employment. There is also an ACA notification requirement when an employee leaves if that employee is eligible for COBRA benefits.
To learn more about the employee notification requirement, you can also visit the Department of Labor’s website: http://www.dol.gov/ebsa/newsroom/tr13-02.html
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CMS Tells Contractors to have ICD-10 LCDs available by April, 2014
According to a recent announcement by CMS, the Medicare Administrative Contractors (MACs) are required to post Local Coverage Decisions (LCDs) associated with the changeover to ICD-10 on the Medicare Coverage Database (MCD) no later than April 10, 2014.
All other LCDs and Articles (e.g., changes not affected by ICD-10) shall be published on the MCD no later than September 4, 2014.
In addition, CMS announced that “All LCDs and Articles will receive a new LCD/Article ID number (e.g., LCD ID 1234 will become LCD ID 4567)” and this could have an impact on Medicare Administrative Contractors (MACs) local systems; such as changing their Medicare Summary Notice (MSN) to capture the new LCD/Article ID number.
CMS has determined that although new LCD numbers will be assigned to the ICD-10 LCD policies, the policies shall not be considered new policies. Because this is just a change in the numbering (and not the underlying policy), CMS considers this type of update to be a coding revision. Therefore, Contractors have been advised that as long as the change does not alter the “intent of coverage/non-coverage within an LCD” and only translates ICD-9 codes to the appropriate ICD-10 code, the policy does not need to be vetted through the Carrier Advisory Committee.
If, however, the MAC is revising more than just the codes, they must follow the normal LCD development process
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New Health IT tools
In mid-September, CMS released new eHealth resources and blogs, and conducted a series of webinars to help providers participate in eHealth programs.
The new resources include:
* An interactive eHealth timeline that highlights key 2013 and 2014 milestones to guide participation in the eHealth programs.
* An eHealth eligibility chart that will help health care professionals determine eligibility for eHealth programs.
* An interactive eHealth Payment Adjustment tool to help eligible professionals (EPs) determine if they will incur payment adjustments for the Medicare and Medicaid Electronic Health Record Incentive Programs, eRx Incentive Program, and the Physician Quality Reporting System.
Finally, CMS has posted a white paper with 2011 data on the Electronic Health Record (EHR) Incentive Program. Highlights include:
10% of all Medicare EPs and 17% of eligible hospitals met and successfully attested to demonstrating meaningful use for Stage 1.
No eligible hospitals were unsuccessful in attesting to meaningful use.
If you would like more information about CMS eHealth initiatives, you are encouraged to visit the CMS eHealth website where you can sign up to receive the latest e-health news.
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SHOP till you Drop?
The Department of Health and Human Services (HHS) is ramping up their efforts to reach out to small businesses in an effort to make small employers (and their employees) aware of new options available to them under the Affordable Care Act.
In conjunction with the Small Business Administration (SBA), the Small Business Majority, Main Street Alliance, Business Forward, and the U.S. Hispanic Chamber of Commerce, the HHS campaign will try to help small employers learn more about how to take advantage of the Small Business Health Option Program (SHOP).
SHOP is designed for small employers with 50 or fewer full-time employees.
In a press release announcing the initiative, HHS Secretary Kathleen Sebelius said, “In recent years, the number one concern for many small businesses has been the increasing cost of health insurance premiums. Many who would like to offer insurance to their employees have faced few choices, high administrative costs, and skyrocketing premiums when an employee gets sick.”
Employers buying health insurance through the SHOP Marketplace may also qualify for a Small Business Health Care Tax Credit to help defray their premium costs. Small businesses with fewer than 25 full-time-equivalent employees may be eligible for a federal tax credit of up to 35 percent of their contribution to employees’ health insurance premiums. Beginning in 2014, this tax credit will be worth as much as 50 percent of the employer’s contribution to premiums and will be available only to those purchasing coverage through the SHOP. To learn more about the tax credits, go to small employer tax credit and see if you might qualify.
The SHOP Marketplace opened on Oct. 1st. Small employers can go to www.healthcare.gov and start the application process and get an overview of available plans and premiums in their area. The SHOP is different from the Individual Marketplace so be sure to access the appropriate section of the state or federal website.
Beginning Oct. 1st, HHS began taking calls (Monday through Friday, 9 a.m. to 7 p.m. EST) through a dedicated SHOP small employer call center at 1-800-706-7893. Employers may contact the call center for assistance when completing an application. This call center will also refer employers in states running their own SHOP Marketplace to the correct contact information for their state.
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Basic Health Program Proposed
The Patient Protection and Affordable Care Act provides states with a new coverage option called the “Basic Health Program.” This health insurance program is aimed at individuals who are citizens or lawfully present non-citizens, who do not qualify for Medicaid, the Children’s Health Insurance Program (CHIP) or other minimum essential coverage and have an income between 133 percent and 200 percent of the federal poverty level (FPL).
On Wednesday, September 25, CMS issued a proposed rule establishing the standards for the Basic Health Program (BHP). Although the “Basic Health Program” was to be up and running by January 1, 2014, the Administration will not meet that deadline. HHS hopes to have this program started by January 1, 2015.
BHP provides states with the option to establish a health benefits coverage program for low-income individuals who would otherwise be eligible to purchase coverage through the Health Insurance Marketplace. The proposed rule sets forth a framework for eligibility and enrollment, benefits, delivery of health care services, transfer of funds to participating states, state administration and federal oversight.
At a minimum, BHP benefits will include the ten essential health benefits specified in the Affordable Care Act. The monthly premium and cost sharing charged to eligible individuals will not exceed what an eligible individual would have paid if he or she were to receive coverage from a Qualified Health Plan (QHP) through the Marketplace. A state that operates a Basic Health Program will receive federal funding equal to 95 percent of the amount of the premium tax credits and the cost sharing reductions that would have otherwise been provided to (or on behalf of) eligible individuals if these individuals enrolled in QHPs through the Marketplace.
This rule proposes:
(1) The procedures for certification of a state-submitted Basic Health Program blueprint, and standards for state administration of the Basic Health Program consistent with that blueprint;
(2) Eligibility and enrollment requirements for standard health plan coverage offered through the Basic Health Program;
(3) The benefits covered by such standard health plans as well as requirements of the plans;