The Medicare program has ongoing policy choices when it comes to implementing various ACA provisions, each with its own policy options, collateral effect and mathematical calculations. Many of these policies, effects and calculations are subject to imprecision, misinterpretation, and error. Traditionally, in such cases CMS is questioned, petitioned - occasionally sued - and the policy is changed. However, the ACA contains “preclusion of review” requirements which effectively attempt to limit providers and Medicare patients’ right to appeal CMS policy decisions and their related effects.
An example is the law’s preclusion related to readmissions. The law states, “there shall be no administrative or judicial review…of the following:
- The determination of the base operating DRG payments amounts.
- The methodology for determining the adjustment factor…including excess readmissions ratio… aggregate payments for excess readmissions… and aggregate payments for all discharges… and applicable periods and applicable conditions.
- The measures of readmissions…”
Most of the preclusion provisions have similar wording such as the new disproportionate share hospital payments provision. (See “the new Medicare DSH payment” HFMA 2013)
With these provisions in place, providers may appear to have a good case but be inhibited in their ability to appeal. So, this issue may well be something providers and beneficiaries will need to confront in the future.