Latest News | Mcare DSH

From: CMS Website

CMS allows the use of the DSH data for a limited period of time.  Over the past several years we have obtained hundreds of the SSI files for use in our Medicare appeals.  Past DUAs rarely had a return date included in the form.  CMS is now working to get a handle on this outstanding information. 

For DUAs without expiration dates, CMS is sending out e-mails with a 90 day notification for action.  We have received close to two hundred of these e-mails over the past week.  If you were the original requestor, you should also be receiving these e-mails.

According to CMS instructions, action is needed to either request an extension or to close the DUA and confirm that the data is destroyed.  The extension and or closure according to the instructions must be submitted by the requestor (Hospital).  Toyon is the custodian of the SSI data.  We are in the process of developing a process to handle the DUAs.  In our particular case, virtually all of the data files being used are still active as part of our Medicare SSI appeals.  CMS is requiring that the extensions be submitted to them between 60 – 90 days from the expiration date identified in the e-mail.

We are diligently working on sorting these out and will be communicating with the requestors in the near future.  The request for extension is very simple and we will be providing the framework of the e-mail to send to CMS.

Continued use of the DSH data will need to be updated annually.  Where the data is no longer needed, all of the original files and related linked files are required to be destroyed.  A signed confirmation of the destruction of the data is required as part of the final “closure request” submission. 

For questions, please contact Glenn Bunting or Ron Knapp at 925-685-9312.

Data Use Agreement (DUA) – Extensions & Closures

From: CMS Website

CMS SSI detail for data released on March 16, 2012 is now available to be requested by hospitals.  This information is free but requires a DSH Data Use Agreement be prepared and included in the request.  The requests are now all handled on-line.

We recommend all hospitals that receive Medicare DSH entitlements request this information for review and scrutiny of the match process.  Click here to view the DUA form required to request this data.  This form is to be completed, scanned and sent by e-mail to CMS at DataUseAgreement@cms.hhs.gov.  Notification of the DUA number creations will be sent to the Requestor within 3-5 business days of receipt of the request.  The data will be shipped to the Custodian in approximately 6-8 weeks.

The SSI issue continues to be litigated particularly for CMS’s inclusion of the Medicare Advantage days now contained in the SSI ratio development.  Verification of the changes made in the match process communicated in CMS-1498-R need to be carefully reviewed to verify that the changes were actually made.

If you have any questions concerning the process please contact either Glenn Bunting or Ron Knapp at 925-685-9312.

SSI Data Available from CMS – FY 2006 – 2009

HHS Files Petition to Supreme court on Equitable Tolling Issue
From: King & Spalding 4/23/12

Note: Toyon Associates is pursuing this equitable tolling issue for several of our clients.

Article Excerpt:
On April 13, 2012, Health and Human Services Secretary Kathleen Sebelius filed a petition for writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the D.C. Circuit’s ruling that equitable tolling applies to the 180-day time limit for providers to file administrative appeals of final Medicare cost report payment determinations. Sebelius v. Auburn Regional Medical Center, U.S., No. 11-1231, petition for cert. filed Apr. 13, 2012.

At issue is the June 2011 decision, whereby the D.C. Circuit’s three-judge panel ruled that equitable tolling is available for Medicare cost report appeals because a claim for Medicare payment is analogous to a contract claim. Auburn Regional Medical Center, et al. v. Sebelius, 642 F.3d 1145 (D.C. Cir. 2011). By way of background, the equitable tolling issue arose in the context of provider appeals of the SSI Ratio component of the disproportionate share hospital (DSH) adjustment for fiscal years 1987-1994. The providers did not appeal the SSI Ratio issue to the Provider Reimbursement Review Board (PRRB) until they learned of the issue in 2006 (as a result of the Baystate litigation), more than a decade after the 180-day window for appealing their Medicare cost reports had passed.
Read more…

Click here to view the Supreme Court petition submitted by HHS.

Medicare DSH – Norwalk Hospital

PRRB 2012-D14 – 3/19/12 (FY 2005)

In this appeal the FI challenged the PRRB’s jurisdiction over Medcaid eligible days where there was no adjustment made by the FI in the finalization of the Medicare cost report.  The Board concluded in this case that they do have jurisdiction over the DSH – Medicaid Eligible Days issue.

This decision provides an excellent presentation of the history of the DSH issue.  Glenn Bunting, our Appeals Vice President highly recommends review of this case if you are interested in understanding the chronology of this issue since it’s implementation in May 1986.

Read more:

From: US District Court of Columbia – 1/30/12

Great news from the US District Court of Columbia – Regarding the issue of Part A exhausted dual-eligible days and the inclusion of these patients in the Medicaid fraction for Medicare DSH purposes.  The DC court concluded that these types of days must be included in the Medicaid fraction for the period at issue.

This court followed the Northeast decision from the DC Circuit and concluded that CMS’s current policy on these days cannot be applied retroactively to periods before the 10/1/04 rule change.

Toyon has in place literally hundreds of years of appeals outstanding that this decision will apply to assuming CMS does not appeal the decision. We are hopeful that this will help move these appeal years to settlement resolutions over the next year.

Medicare DSH – Lifespan SWC 2003 DSH Mcare + Choice Days Group

PRRB 2012-D6 – January 18, 2012 (FYE 9/30/03)

The Hospitals are appealing the exclusion of the Medicaid eligible patient days also enrolled in an M+C managed care plan from the Medicaid fraction for Medicare DSH allowable reimbursement purposes.  The year of this appeal is prior to CMS 10/1/04 implementation of the specific inclusion of these types of days in the Medicare fraction of the DSH proxy.  

Based on similar federal court decisions for Northeast Hospital and Metropolitan Hospital, the PRRB agreed with the Hospitals request for inclusion of these days in the Medicaid fraction.

Medicare DSH – Sampling; Medicare + Choice Days – Exempla Lutheran Med Ctr – FYE 12/31/04

CMS Admin Decision: PRRB 2011-D32

The CMS Administrator overturned the 6/3/2011 PRRB (2011-D32) decision allowing

Medicare + Choice days in the Medicaid fraction prior to October 1, 2004 discharges. The case also involved a dispute with the sampling methodology used by the Intermediary that was overturned by the PRRB. The CMS Administrator overturned both PRRB decisions.

As discussed above, we are very hopeful of a resolution for this issue based on the recent Appellate Court decision reported to you in the week of September 12th, 2011.

Medicare + Choice Group – Partners 2002-2004 DSH

CMS Admin Decision: PRRB 2011-D37 – 8/23/11

The CMS Administrator overturned the 6/16/2011 PRRB (2011-D37) decision allowing the Medicare + Choice days to be included in the numerator of the Medicaid fraction used to calculate the DSH payment. The CMS Administrator has consistently overturned the PRRB decisions for Medicare + Choice DSH issue.

We are awaiting CMS response to the recent Appellate Court decision on this issue that appears to have placed a final nail in CMS’s longstanding position for this issue prior to October 1, 2004. This case was previously reported to you in our week of September 12th, 2011 report.

Northeast Hosp Group v. Sebelius – Appellate Court Decision

U.S. Court of Appeals – District of Columbia – 9/13/11

Issue:

Medicare Choice M+C (Part C) Days Inclusion with the Medicaid Patient Days Ratio

Fiscal Years: 1999 – 2002

History:

PRRB ruled that the dual eligible patients with Medicare M+C coverage should be included in the Medicare proxy of the DSH ratio.  They denied the request of the provider that patients with these days be included in the Medicaid patient day ratio.

The CMS Administrator affirmed the PRRB decision.  The Provider pursued the issue at District Court (District of Columbia).  An opinion was issued on March 30, 2010 that granted the Providers request for inclusion of these dual eligible days in the Medicaid patient day ratio.  This decision was appealed by the Secretary of HHS.

Appeals Court Decision:

The District of Columbia’s ruling was upheld for the years in question.  The Appeals Court reasoning for upholding the decision did not follow the lower court’s reasoning.  

The Appeals Court in their decision validated CMS’ 2004 rule making that adopted a policy of counting M+C days in the Medicare fraction.  This rule making became effective on October 1, 2004.  What they didn’t allow however was the retroactive application of this rule prior to October 1, 2004.  So Northeast still prevailed, but only due to the fact that the Secretary cannot retroactively implement this policy. 

What does this Decision Mean?

The decision delineates the M+C issue to before and after October 1, 2004.  Appeals for M+C dual eligible days will before October 1, 2004 have a win from this decision.  Appeals for services on or after October 1, 2004, will have a much tougher time prevailing.

It remains to be seen whether this Court’s decision will be appealed further.  The next level is the U.S. Supreme Court.  Given that the decision is in the District Columbia, its applicability is for the entire Country.  This decision further validates CMS’ inclusion of the M+C days in the Medicare SSI proxy effective October 1, 2004.

From CMS E-mail:

An error was discovered and fixed in the bill discharge date edit logic for the Fiscal Year (FY) 2011 INP PPS PC Pricer. The update is for claims dated from 10/01/2010 to 09/30/2011.  The update is dated 07/26/2011.

Inpatient Rural Hospital Demonstration – Cost Settlement Methodology

Pub 100-19 Demonstrations; Trans. 77 – July 22, 2011

Summary of Changes:

This demonstration reimburses specific hospitals for Medicare inpatient services through cost based reimbursement. Eight hospitals are continuing from the initial 5-year demonstration period, mandated by section 410A of the Medicare Modernization Act. Eighteen new hospitals will be starting the demo starting with cost report periods beginning May 1, 2011 through January 1, 2012. This CR identifies the hospitals, MACs and legacy contractors, and defines the payment methodology.