Healthcare

In our practices, we are seeing an increasing number of denials or de facto denials of Medi-Cal provider enrollments. The consequences of a Medi-Cal enrollment denial can be quite serious. First, a provider may not receive reimbursement for services provided to Medi-Cal beneficiaries when it is not an enrolled provider. Second, it takes a long time to advance applications through the California Department of Health Care Services (“DHCS”) enrollment application review process (in some instances nine months or even longer), so re-filing can mean an extended period of no reimbursement. Third, a provider or other providers that are affiliated with the denied provider may have to disclose the denial, however innocuous, on enrollment applications in the Medicare and Medicaid programs forever. Failure to do so may itself cause additional denials in the future, so it is also important to keep track of the denial.

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I am fresh back from Baltimore, Maryland, where I was on the faculty of AHLA’s annual Institute on Medicare and Medicaid Payment Issues. I have been on the faculty of this program for a dozen years, and am always thrilled to hear the latest in healthcare payment and reimbursement changes and trends. This year I spoke on Medicare policies on hospital co-location, and presented along with the person who oversaw development of the government policy, David Wright, Director of the Quality, Safety & Oversight Group of the Centers for Medicare & Medicaid Services.

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On February 13, 2023, the Centers for Medicare & Medicaid Services (“CMS”) proposed a long-delayed regulation that would implement a provider enrollment provision of the Affordable Care Act that expands the information required to be disclosed by skilled nursing facilities (“SNFs”). The law requires that SNFs report detailed information to CMS regarding SNF relationships with private equity companies, real estate investment trusts and other real estate lessors, clinical consultants and providers of accounting and financial services during the provider enrollment process. The proposed rule was published in the Federal Register on February 15, 2023¹. The proposed changes are subject to comment; comments must be received by CMS by April 14, 2023. To become final, CMS would respond to these comments and issue a final rule thereafter.

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Certain healthcare transactions closing on or after April 1, 2024 are subject to an advance notice regulatory review and analysis by a newly created Office of Health Care Affordability (“OHCA”) within the California Department of Health Care Access and Information.  The OHCA will prospectively analyze the transactions by conducting a cost and market review of significant transactions and report to the public on the anticipated impacts on the healthcare market.  The information submitted to the OHCA by the parties to the transaction will become public information.

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I have been in healthcare legal practice since the mid-1990s.  During a summer in law school, I worked for the California Legislative Counsel Bureau, which is the agency that serves as legal counsel to the California legislature.  During my stint there, I recall various healthcare licentiates arguing about whether to expand the practice of non-physicians, with physicians generally asserting that such changes would be detrimental to healthcare quality and the other healthcare licentiates arguing that they provide a quality service at a more reasonable price-point.  This same tension has woven its way through legislative and payment policy during the intervening decades with the same arguments being advanced.  However, during that time we have seen the gradual increase in scope of practice of non-physician advanced practice professionals such as nurse practitioners (“NPs”), physician assistants (“PA”) and certified nurse midwives.  These trends are evidenced by several recent legal developments both in Medicare payment policy and California state law.

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