This year, health lawyers, providers, consultants, and government experts from across the country convened in Orlando, Florida, for the American Health Law Association’s Long Term and Post-Acute Care Law and Compliance Conference, a comprehensive program on legal issues related to long-term healthcare provision. This program brings together knowledgeable private sector speakers with representatives from various contexts, including long-term healthcare inside and outside counsel, professional group representatives, and other regulatory and operational experts. Highlights this year included three presentations by members of AGG’s Healthcare practice.
Read on for high-level takeaways from a selection of the sessions at this content-rich conference.
Medicare and Medicaid Audit Landscape, Defense, and Collateral Consequences for Home Health Agencies, Hospice Providers, and SNFs
Bill Dombi, senior counsel in the Healthcare practice and past president of the National Association of Home Care & Hospice, provided astute insights on current developments and emerging issues in the Medicare and Medicaid audit appeal landscape. Bill highlighted key risk areas for home health agencies, hospice providers, and skilled nursing facilities, such as payment denials due to purported lack of medical necessity for the services offered. To address these risks, Bill recommended that home care and hospice operators should review their policies and procedures, enhance their documentation and forms, and remain aware of their entities’ coding and billing and activity, including services performed by contractors. Bill also discussed the payment appeal landscape, describing key components of audits and appeals, forms and functions of various Medicare audit contractors, and special strategic considerations relevant to the Medicaid audit appeal process.
Best Practices for Managing and Negotiating With Managed Care Payors: Focus on Medicare Advantage
Jennifer Hilliard, of counsel in the Healthcare practice and a member of the Post-Acute & Long-Term Care industry team, led a presentation on best practices for managing and negotiating with managed care payors with a focus on Medicare Advantage. She outlined the market penetration and growth of the Medicare Advantage program and explored the particular challenges this presents to post-acute care providers. Jennifer surveyed recent government inquiries into troubling aspects of the Medicare Advantage program, including marketing practices and the tremendous increase in prior authorization denials. She and her co-presenter discussed providers’ challenges with contracting with Medicare Advantage Organizations (“MAOs”), and explained Medicare Advantage Plan (“MAP”) product types (e.g., HMOs, PPOs, etc.) and categories (e.g., nationally vs. regionally owned, for- vs. nonprofit, vertical integration level, etc.). They also discussed Medicare Special Needs Plans (“SNPs”). Jennifer then walked audience members through the process of contracting with MAOs/MAPs, beginning with understanding providers’ negotiating leverage, payor motivation, and how to meet basic Medicare Advantage (“MA”) provider requirements. She also gave valuable instruction on basic MA and SNP provider agreement mechanics and contract requirements.
Chevron, Kisor, Loper Bright, Jarkesy (and Avon) – What Long-Term Care Practitioners Need to Know About Recent Supreme Court Administrative Law Decisions
Alan Horowitz, of counsel in the Healthcare practice and a member of the Post-Acute & Long-Term Care industry team, spoke on a panel exploring recent developments in administrative law impacting long-term care practitioners. The panel reviewed the Supreme Court of the United States’ recent landmark decision Loper Bright v. Raimondo, 603 U.S., 144 S. Ct. 2244 (2024), which significantly weakened the “Chevron deference” standard under which courts substantially deferred to agencies’ interpretations of the statutes they administer. Alan detailed the recent appellate case Avon Nursing & Rehab. v. Becerra, 119 F.4th 286 (2nd Cir. 2024), in which he filed an amicus brief supporting the provider, Avon. In Avon, providers challenged a CMS regulation that purported to give state survey agencies greater flexibility not to include registered nurses on complaint and revisit surveys, in contrast with what the pertinent statute seems to require. Avon was the United States Court of Appeals for the Second Circuit’s first post-Loper Bright decision, and the court sustained the regulation on bases neither asserted nor briefed by the parties, nor decided by the district court. Instead, the court parsed various subsections of statute and regulations “de novo” to find that complaint surveys (and revisit surveys) are not really “surveys” at all as described in CMS regulations, and so the procedural requirements attending “surveys” — including that the survey team must include a registered nurse — do not apply in such cases. The court’s analysis raises the question of whether, in this post-Loper Bright world, the weakened “Chevron deference” standard means that courts may now reconsider regulatory actions without any reference to, or respect for, the actual administrative record and basis for the agency’s action.
