Medicare Reimbursement: CMS Issues New Medical Review Instructions to Contractors

On Aug. 14, CMS issued new marching orders to Medicare Administrative Contractors (Contractors). The message: Tighten up the way you target suppliers and providers for medical review.

The Targeted Medical Review Process
The orders involve execution of the so called Targeted Probe and Education, a pilot started in 2014 in which Contractors carry out a detailed medical review process to crack down on improper Medicare billing and claims.

The review process lasts up to three rounds but providers can get out after any of the three rounds by demonstrating low error rates or sufficient improvement. Providers who still have high error rates after three rounds may be subject to additional actions, including 100 percent prepay review, extrapolation or referral to a recovery auditor.

SITUATION
Your lab is located in Colorado, Washington or another state where recreational and medical marijuana use is legal. But you're still shocked to find three of your employees smoking pot at work. The employees recognize that they've been caught red-handed but each offers up a different explanation.

• Bud reveals that he's addicted to marijuana;

• Herb explains that he uses medical marijuana to treat his cancer-related pain; and

• Mary Jane admits to being a recreational (rather than medical) user but can prove that she got the pot legally.

QUESTION
Which employee(s) can you fire for violating your lab's zero tolerance workplace drug policy?

ANSWER
All three

RULE
Use of marijuana in the workplace is grounds for discipline up to and including termination.

Bud, the Marijuana Addict: EEOC laws require employers to make accommodations for employees with disabilities. Addiction to drugs and alcohol is considered a disability under the law. But accommodations aren't required if they'd impose undue hardship. And while the line between required accommodation and undue hardship is determined case-by-case, the clear consensus from court cases and EEOC guidelines is that permitting employees to use or be impaired while at work would create an unacceptable health and safety risk.

Herb, the Medical Marijuana User: The same disability analysis applies to Herb because cancer and most other illnesses, injuries and conditions for which marijuana is used as a medical treatment would constitute "disabilities" under the law. While tolerating medical marijuana use away from work may be a required accommodation (as long as the employee isn't impaired while actually working), tolerating it at work would clearly be undue hardship.

Mary Jane, the Casual User of Legal Marijuana: Disability protections don't apply to Mary Jane because she isn't an addict and doesn't smoke pot to treat a disability. She's only a casual user. The fact that she obtained the marijuana legally won't shield her from discipline for violating a zero tolerance policy banning drug use in the workplace.

PRACTICAL IMPACT
Using marijuana at work in violation of a clear HR policy is justifiable under neither disability discrimination nor marijuana legalization laws and thus subject to discipline up to termination.