Quiero saber acerca de...

jbell on DSKJLSW7X2PROD with RULES2

45596

Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations
Historically, most States elect a lesser-of policy for state payment of cost-sharing for hospital claims, meaning that they pay very little, if any, Medicare cost-sharing. For example, 43 States used the lesser-of policy for cost-sharing for Medicare inpatient hospital claims in 2018. Therefore, it seems plausible that these States would choose to elect lesser-of payment policies for any newly enrolled providers, generally limiting new cost-sharing liability to zero. However, because States have the flexibly to set their cost-sharing methodology for newly enrolled provider types, we have not estimated costs based on those future elections. However, by properly processing claims for Medicare costsharing it ensures Medicare is not inappropriately paying bad debt on any costsharing liability the State should have paid through its Medicaid State plan elections.
a. Updating State Medicaid Systems With Other Provider Types and Cost-Sharing Logic While some States in the past have inhibited enrollment of certain types of providers or suppliers that are not explicitly included in their Medicaid State plan, we have no sound basis upon which to estimate how many States will need to make systems changes to implement the policy. We estimate a one-time burden for any state or territory Medicaid program that needs to make systems changes to comply with the provider enrollment requirement as indicated in section X.A of the preamble of this final rule. We estimate that it would take a maximum of 6 months of work approximately 960 hours by a computer programmer working at a Bureau of Labor Statistics BLS mean hourly rate of $44.53
per hour to make the necessary systems changes. We project a cost per State of approximately $42,749 960 $44.53 =
$42,749. States are likely eligible for 90/10
Federal medical assistance percentage FMAP for the State Medicaid Management Information System MMIS as set forth in 1903a3A of the Act.
We estimate a 6-month implementation period for these system updates. In this final rule, there will be 17 months between when we publish the final rule in August 2021, and the January 1, 2023 applicability date. The purpose of the 17-month window is to give organizations flexibility to find a 6-month period to perform updates as indicated in section X.A. of the preamble of this final rule.
States have the ability to choose, in consultation with CMS, when in the 17month implementation period they want to make this change. Therefore, as noted previously, the total cost impact per State of $42,749 will occur over 6 months within this 17-month period.
b. New Providers and Suppliers Enrolling in State Medicaid Systems We are uncertain how many providers and suppliers will seek to newly enroll in Medicaid as a result of this policy. We estimate enrollment will take an average of three hours for a provider office manager, at a BLS mean hourly rate of $28.91 per hour, to complete and would cost $86.73 for each provider 3 hours $28.91/hr. Therefore, for every 100 providers and suppliers that apply to enroll in Medicaid, we estimate a cost of
VerDate Sep<11>2014

02:06 Aug 13, 2021

Jkt 253001

$8,673. We assume that it will take States a similar amount of time to review and process these enrollment applications. Therefore, for every 100 providers and suppliers for which a State will need to process enrollment applications, we estimate the total cost per State is $8,673.
c. Reducing Medicare Bad Debt Appeals This final rule will not affect existing bad debt appeals. However, we believe the final rule may reduce the number of future bad debt appeals by ensuring certain Medicareenrolled providers and suppliers can enroll with state Medicaid programs, receive Medicaid Remittance Advice RA, and claim Medicare bad debt. In eliminating these appeals, the provision will eliminate the cost for providers and suppliers to pursue such appeals and subsequent litigation, as well as the costs for CMS to defend them. Therefore, we estimate provider and Medicare cost savings from avoiding future Medicare bad debt appeals. As noted previously, we did not estimate a reduction in Medicare bad debt payments that would result from an increase in State payment of Medicare costsharing because States have flexibility to choose their cost-sharing payment methodology for different provider types in their Medicaid State plan, and we do not have a clear basis for assumptions about their future choices.
While we cannot predict the outcome of future appeals and litigation, the February 2021 decision in the Select Specialty HospitalDenver v. Azar case, which included claims from 77 providers in 26
states from 2005 to 2010, helps us better understand the potential costs avoided by finalizing this provision.
Medicare Hospital Insurance Trust Fund Payments. After an adverse decision for CMS
in that case, the Federal government ultimately paid the plaintiffs a total of $23,649,492, which included the principal amount of $18,656,588 for the payment of bad debt claims that had been denied, plus associated interest of $4,992,904. This provision helps ensure that the amount paid for bad debt accurately reflects State liability;
it would also eliminate costs associated with interest, should future cases be decided similarly to Select Specialty Hospital Denver v. Azar.
Litigation costs. In the case, the plaintiffs sought $1,174,000 in total costs of attorneys fees and costs incurred to litigate denied Medicare bad debt claims dating from 2005
to 2010 through the Medicare Provider Reimbursement Review Board PRRB and in Federal District Court. The court denied this request, so these costs were borne by the providers. Their true litigation costs might have been higher since there were subsequent proceedings in the case not reflected in the fee request.
The Federal government also bears significant costs to process and defend these appeals and subsequent litigation: The Medicare Administrative Contractor MAC
and the Federal Specialized Service prepare the documentation to present at the PRRB;
the PRRB holds a hearing and issues a decision; the CMS Attorney Advisor disseminates the PRRB decision to the appropriate parties, such as the Federal
PO 00000

Frm 00824

Fmt 4701

Sfmt 4700

Specialized Service and CMS payment policy staff, for input on the PRRB decision and then issues a final Administrators decision on the case, if appropriate; the Office of General Council defends the case in court, prepares and files briefs and motions, which may also involve components of the U.S.
Department of Justice; if necessary, the Office of General Council advises CMS regarding any appropriate settlements or implementation of any adverse decisions, which the MAC then implements.
Currently, there are at least 20 open cases before the PRRB for the same issue presented in the Select Specialty HospitalDenver case, involving claims with dates of service from 2007 to 2020. We estimate the provider bad debt reimbursement in controversy across these 20 open cases to be $17,248,242.
Of these 20 open cases, nine cases are under remand from the Federal District Court with a calculated potential interest amount of $2,740,794.
Because we are finalizing this proposal, it is likely that appeals on this issue, and their associated costs for Medicare providers and for the Federal government described previously, will not continue into the future.
In sum, we note that the estimated costs saved by providers, CMS, and other Federal agencies in avoiding ongoing Medicare bad debt appeals likely offset the aggregate spending for providers and suppliers to enroll with state Medicaid programs, and for States to process those applications, as well as the aggregate spending for States to update the state Medicaid systems, which will likely be eligible for 90/10 FMAP, as described previously.
10. Effects of the Policy Changes to the Medicare Shared Savings Program In section X.B. of the preamble of this final rule, we describe the changes to the Medicare Shared Savings Program Shared Savings Program established under section 1899 of the Act that we are adopting in this final rule.
As previously communicated in the regulatory impact analysis for the preceding proposed rule, the changes are estimated to reduce program spending relative to a status quo baseline by extending the flexibility for certain ACOs to elect to freeze their participation level along the BASIC tracks glide path for PY 2022. Such special flexibilityhaving proven popular among ACOs that chose to freeze their level of participation for PY 2021 in light of the uncertainties caused by the COVID19 PHE, is expected to again help retain ACO
participation in the program, particularly among ACOs leery of taking on downside risk, or increasing levels of downside risk, in the midst of pandemic-related uncertainty. In modeling the impacts of the changes, we used ACO performance data from the 6month performance year from July 1, 2019, through December 31, 2019, based on CY
2019, along with preliminary data from performance year 2020 to identify ACOs that would be likely to opt for this flexibility and to estimate the potential impact on program spending. We also considered the benchmark and performance information ACOs would have available when making participation decisions for PY 2022 in the context of
E:FRFM13AUR2.SGM

13AUR2