Legal spotlight: Mandates, audits

AMARILLO, Texas – With the roller coaster of vaccine mandates and the uptick in audits, legal issues are keeping HME providers on their toes, say Jeff Baird and Denise Leard. Baird and Leard, both health care attorneys with Brown & Fortunato, gave HME News a look into the latest developments on these two topics. 

Vaccine variables

The long story short, Baird says, is if you’re an HME company, you have to worry about whether or not your employees are visiting a health care facility that bills Medicare. While HME companies themselves have been exempted from CMS’s vaccine mandate, other facilities have not.  

“If you’re a provider and you have employees delivering products to a facility such as a hospital or a skilled-nursing facility and they’re setting up patients or interacting with their employees, those employees need to be vaccinated,” said Baird, chairman of the Health Care Group. 

HME companies no longer have to worry about a separate vaccine mandate for companies of 100 or more employees: The Occupational Safety and Health Administration (OSHA) recently withdrew its Vaccination and Testing Emergency Temporary Standard. 

As for HME companies making decisions about whether or not they themselves want to mandate vaccines (recognizing religions and medical exemptions, of course) – Baird says his clients are pretty much evenly split. 

“Some clients have implemented a mandatory vaccine requirement, where they have been willing to risk losing some employees,” he said. “Others are not implementing a requirement but are requiring employees to wear masks and if you have symptoms you have to test.”   

Aggressive audits 

Audits, in general, have picked up, but Leard, a member of the Health Care Group, says the UPICs, in particular, are being more aggressive, especially for surgical dressings. 

“They’re being quick to suspend payments based on allegations of fraud,” she said. “But it’s not fraud. It’s just a claim with something slightly off in the documentation.” 

Leard says the UPICs are targeting more complex claims for surgical dressings – those that involve multiple wounds, alginates, other wound fillers and autolytic debridement.     

The UPICs might be basing their suspensions on “allegations of fraud” to buy themselves more time to investigate claims, Leard says. 

“If you have a payment suspension based on an overpayment, they have 180 days and they can renew it only one time,” she said. “If it’s based on fraud, they can renew as long as they want to.”