AAA Government Affairs E-Update

Supplemental Edition

1. AAA RTF Audio Conference on Quality Measures

2. FTC Delays Enforcement of Red Flags Rule

3. OIG Issues New Ambulance Advisory Opinion

1. AAA RTF Audio Conference on Quality Measures

The meeting of the AAA Reimbursement Task Force (RTF) scheduled for Monday, May 4, from 8:00 a.m. to 12:00 p.m. (eastern) can be accessed as an audio conference for those AAA member representatives who would like to listen to the session.  To access the audio conference, please dial 1-800-884-7896 and enter the pass code of 193896 followed by the pound sign. 

The meeting will focus on the Quality Measures Initiative the AAA is undertaking in response to the possible requirement by Congress that CMS implement quality measures for all Medicare providers.  The meeting will be facilitated by Kathy Lester of Patton Boggs.  To download a copy of the presentation that Kathy will give at the meeting, please log-in to the "Members Only" section of the AAA website at www.the-aaa.org and select "Reimbursement Issues" from the drop down menu under "Industry Issues".   The slide presentation is the first document listed on the page under "Reimbursement Issues" and is entitled "5-3-09 RTF Quality Measures Presentation".

2. FTC Delays Enforcement of Red Flags Rule

By R. Michael Scarano, Jr., Foley & Lardner LLP

The Federal Trade Commission ("FTC") announced on April 30 that it will delay enforcement of the "Red Flags Rule" ("Rule") until August 1, 2009, to give creditors and financial institutions more time to develop and implement written identity theft prevention programs.  The FTC also said it will soon release a template written program to help entities that have a low risk of identity theft, such as businesses that know their customers personally, comply with the Rule.

The original enforcement date for the Rule, November 1, 2008, was previously postponed to May 1, 2009.  In its statement announcing the additional delay, the FTC acknowledged that there is an ongoing debate regarding whether Congress wrote the Red Flags provision in the Fair and Accurate Credit Transactions Act of 2003 ("FACTA"), the legislation authorizing the Rule, too broadly.  The FTC indicated that delaying enforcement of the Rule will "give Congress time to consider the issue further."  The delay will also allow industries and associations more time to share guidance with their members, and provide low risk entities an opportunity to use the template being prepared by the FTC in developing their programs.

FACTA directed the FTC and certain other regulatory agencies to promulgate rules requiring "creditors" and "financial institutions" that maintain covered accounts to implement programs to identify, detect and respond to patterns, practices or specific activities that could indicate identity theft.  FACTA's definition of "creditor" applies broadly to any entity that regularly extends or renews credit, including health care providers and other entities that regularly permit deferred payments for goods or services.  A number of health care trade associations, including the American Ambulance Association, have complained loudly to the FTC that Congress did not intend the rules to apply to providers, but the FTC has disagreed.

On April 2, 2009, the FTC launched a website with resources to help covered entities design and implement identity theft programs.  See http://www.ftc.gov/redflagsrule .  The template being developed by the FTC will be posted on that website.

The delay of the Rule's enforcement is good news for health care providers and other creditors that have been scrambling to comply by May 1.  The additional time will help creditors assure that they are compliant by the new August 1st enforcement date.  The FTC's announcement also provides some hope that Congress will narrow the reach of the Rule prior to that date.

3. OIG Issues New Ambulance Advisory Opinion

By Brian S. Werfel, Esq., AAA Medicare Consultant

On April 30, 2009, the Office of the Inspector General (OIG) posted Advisory Opinion 09-03.  This opinion involved the municipal ambulance services operated by three adjoining towns.  Each town's ambulance service provided emergency ambulance services to its residents.  In addition, the three towns had a mutual-aid agreement, whereby an ambulance service would respond to emergencies within one of the adjoining towns whenever that town's ambulance service was unable to respond.  Each town had elected to treat local taxes as payment-in-full for applicable co-insurance and deductibles due from town residents, i.e., each town billed its residents only to the extent of their insurance.

The issue in this opinion was whether20the towns could extend insurance-only billing to residents of the adjoining towns, when they responded under the mutual-aid agreement.  The purpose was to ensure that residents were billed consistently, regardless of whether they were transported by the local ambulance service or by the ambulance service of one of the adjoining towns.

The OIG determined that the arrangement posed a minimal risk of fraud and abuse, and, therefore, allowed the arrangement.

Among the factors cited by the OIG in reaching its decision were: (1) the infrequent nature in which mutual-aid was provided, (2) the fact that the arrangement was limited to emergency transports, which minimized the risk of over-utilization, (3) residents' expectation that they would not receive a bill for deductibles and co-insurance when the local ambulance service responded, and (4) the fact that the three ambulance services were all municipally-owned.  The OIG made a point of distinguishing this arrangement from situations where a municipality requires a private ambulance service to waive deductibles and co-insurance as part of an RFP process.  As is the case with all Advisory Opinions, this opinion can only be relied upon by the parties that requested the opinion.