1. Clark, Kyle JD
  2. George, Andrew JD

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One byproduct of the Affordable Care Act's staying power beyond the prior administration is that, at least for the first half of this year, and maybe for much longer, there will be no new home healthcare agencies in Florida, Illinois, Michigan, Texas, Pennsylvania, or New Jersey. This is because, at the end of January 2018, the federal government banned new Medicare, Medicaid, and Children's Health Insurance Program providers from enrolling in these states. It exempted existing agencies, however, which can change ownership and locations within these prohibited regions. Not surprisingly, many support the ban. The Affordable Care Act authorized bans like this one to combat fraud, waste, and abuse. They are supposed to be temporary-and this ban is supposedly "temporary." But temporary is not the government's strong suit. It's been renewing the ban every 6 months since 2013.


Why ban new providers in these six particular states? Well, the government picks locations for its ban based on "advanced data analysis techniques" used to identify "health care fraud hotspots." Ironically, the government's "advanced" data analysis techniques (or, at least, its explanations of them) seem to need some updating. To explain these techniques, the government directs inquisitive readers to notices it issued in 2013 and 2014 that listed three main factors it considers when issuing bans:


* The ratio of home healthcare providers per 10,000 Medicare beneficiaries;


* The compounded annual growth rate in home healthcare provider enrollments; and


* The "churn rate" of providers entering and exiting the program.



For each factor, the government would compare suspect counties with other counties in the same state, banning new entrants in the outlier counties. Yet the government found that would-be new providers could easily circumvent this ban by enrolling outside the county while providing services within the county. The government's solution: ban the whole state!


Now, when the above factors locate a "hotspot" county, the entire state gets a ban. This seems a rather clumsy solution. Seemingly, the government could simply ban payments to unauthorized providers for services provided in banned areas. In any event, if the government is no longer imposing bans by county, then how does its stated data analysis method-comparing counties against other counties within the same state-continue to make sense? What makes the banned states different from the nonbanned states?


One answer is that the banned states are mostly home to Health and Human Services and department of Justice (HHS/DOJ) Health Care Fraud and Enforcement Action Team (HEAT) "Strike Force" offices. Knowing this, the ban seems even clumsier. Shouldn't healthcare fraud enforcement units be able to police healthcare fraud in their own backyard without blocking new healthcare altogether? The government claims to review data from the banned states to ensure that no access to care is being lost due to the ban. But the government has not provided the metrics by which it makes this critical, counterintuitive assessment.


The government has also considered allowing prospective providers to seek prior authorization before offering services in banned areas. This plan has met with resistance, however, with many believing it would be ineffective and overly burdensome.


On February 27, 2017, 27 Florida lawmakers from both parties wrote then-HHS Secretary Tom Price raising concerns about the program's effect on seniors' access to home care in their state. They noted that a demonstration of the preauthorization program in Illinois had failed to detect a single case of fraud, and they encouraged HHS to consider an alternative, more targeted approach. With a new HHS secretary having now been sworn in, perhaps HHS will heed this advice. Surely it can find more effective ways to reduce healthcare fraud than banning new healthcare.