EXHIBIT 10.2
Settlement Agreement
This Settlement Agreement is entered into by and between the Centers
for Medicare and Medicaid Services, United States Department of Health and Human
Services ("CMS") and Beverly Enterprises, Inc. ("Beverly"), through their
authorized representatives (collectively referred to as the "Parties"), to
resolve the Medicare reimbursement issues set forth below.
Beverly is a corporation that operates, through subsidiaries, nursing
facilities that are providers under the Medicare program. CMS is the agency of
the federal government that administers the Medicare program. CMS, through its
fiscal intermediary, is auditing certain Medicare costs reported by Beverly for
certain years. In order to avoid the delay, inconvenience, uncertainty, and
expense of concluding those audits and of subsequent protracted litigation of
the results thereof, the Parties have reached a full and final settlement as set
forth below. By entering into this settlement, Beverly does not admit to any
liability or otherwise concede the accuracy of any reimbursement position taken
by CMS or its fiscal intermediary.
In consideration of the mutual promises, covenants, and obligations set
forth below, and for good and valuable consideration as stated herein, the
Parties hereby agree as follows:
1. Beverly agrees to pay to CMS the sum of Thirty-five Million Dollars
($35,000,000) within thirty days of execution of this Settlement
Agreement.
2. CMS and Beverly agree that payment of the amount set forth in Paragraph
One (1) above is in full and final satisfaction of any and all
outstanding CMS administrative claims that were specifically excluded
from the prior settlement agreement between the United States of
America and Beverly entered into on or about February 3, 2000 (the "DOJ
Agreement") involving "Covered Conduct", as that term is defined in the
DOJ Agreement, including, without limitation, all of the facility
specific rate recalculations and routine cost limit exception request
revisions described in paragraphs nine through eleven (9-11) of the DOJ
Agreement.
3. CMS and Beverly agree that payment of the amount set forth in Paragraph
One (1) above is in full and final satisfaction of any and all
outstanding claims involving cost reporting issues for all of Beverly's
cost reporting periods ending on or before December 31, 2000,
including, without limitation, all of the administrative claims
described in paragraph eight (8) of the DOJ Agreement and any and all
outstanding claims involving Medicare reimbursement for bad debt to
Beverly for Beverly's fiscal years 1999 and 2000.
4. (a) CMS and Beverly agree that Beverly's Medicare claims for
reimbursement of bad debt for fiscal year 2001 and afterwards shall be
made based upon the policies, procedures, and documentation agreed upon
by Beverly and CMS in the protocol attached to this Agreement as
Exhibit A, the terms of which are hereby incorporated by reference into
this Agreement. The Parties acknowledge that all or part of the bad
debt protocol attached as Exhibit A may be modified or superceded by
statutory, regulatory or policy changes regarding bad debt
reimbursement, but that in any event, Beverly will be treated no
differently than any Medicare provider of skilled nursing facility
services with respect to reimbursement for bad debt.
(b) CMS and Beverly further agree that Beverly has provided CMS with a
written description of how Beverly calculates bad debt reimbursement
and reports 75% of that amount for purposes of interim payments so that
CMS can verify that this process is consistent with the protocol
attached as Exhibit A. CMS agrees to complete that verification as soon
as reasonably practicable, but within no more than 180 days after
execution of this Agreement. Upon verification that Beverly's process
is consistent with Exhibit A, CMS will instruct the fiscal intermediary
to include in Beverly's next interim payment reimbursement for bad debt
as reported on Beverly's Periodic Interim Payment submissions from
January 1, 2001 through the date of verification, and to include
payments to Beverly for bad debt claims in subsequent interim payments
made to Beverly.
(c) CMS and Beverly further agree that Beverly's Medicare bad debt
claims for fiscal year 2001 and subsequent years shall be audited and
final settlement made through review of a sample of bad debt
documentation.
5. CMS will instruct its fiscal intermediary to issue Beverly's Home
Office Cost Statements for fiscal years 1996 and 1997, which had been
completed as of February 28, 2002, to the state Medicaid programs set
forth on Exhibit B to this Agreement.
6. CMS will direct its fiscal intermediary to inform state Medicaid
programs in writing that Beverly's Medicare cost reports as filed (and
Home Office Cost Statements as filed other than those referred to in
paragraph 5 above that were completed as of February 28, 2002) for
fiscal years 1996 through 2000 represent final, settled cost
statements, and that no further adjustments will be made by Medicare
through audit for those fiscal years.
7. At a time and place to be mutually agreed upon, CMS shall facilitate a
meeting between representatives of CMS, Beverly, and CMS' fiscal
intermediary in order to discuss record keeping, cost reporting, cost
allowance, audit, and other issues.
8. This Agreement and the Exhibits hereto constitute the entire agreement
between the Parties, and this Agreement may not be amended except in a
writing signed by both Parties.
9. The undersigned represent and warrant that they are authorized to
execute this Agreement and, for those signing on behalf of CMS, that
they do so in their official capacities.
10. This Agreement may be executed in counterparts, each of which
constitutes an original and all of which constitute one and the same
agreement.
11. This Agreement is effective on the date of the signature of the last
signatory to this Agreement, and is binding on the successors,
transferees, agents and assigns of the parties.
Centers for Medicare and Medicaid Services
Date:
---------------------
By:
-----------------------
[name and title]
Beverly Enterprises, Inc
Date:
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By:
-----------------------
[name and title]
EXHIBIT A
BAD DEBT REPORTING, DOCUMENTATION, AND AUDITING PROTOCOL
BEVERLY ENTERPRISES WILL PROVIDE THE CENTERS FOR MEDICARE AND MEDICAID SERVICES
("CMS"), AND/OR ITS DESIGNATED AGENTS, THE FOLLOWING INFORMATION RELATED TO BAD
DEBTS CLAIMED ON ANY BEVERLY ENTERPRISES COST REPORTS TO BE FILED FOR PERIODS
BEGINNING WITH THE YEAR 2001 WITH CMS FOR PAYMENT UNDER THE MEDICARE PROGRAM:
REPORTING AND DOCUMENTATION
o Medicare bad debt listings (inpatient, outpatient and ESRD) that
support the amounts claimed in the cost report. The listings should
contain the following information that is necessary to determine the
allowability of the bad debts:
1. Beneficiary's name and account number (health insurance number);
2. Date of covered service;
3. Date the first bill was sent to patient, or the party responsible for
the patient's personal financial obligations, if billing is required
under the procedures for Medicare patients entitled to Medicaid;
4. Date of write-off of bad debt;
5. Amount written off as bad debt; and
6. Deductible and coinsurance amounts charged to beneficiary.
o Bad debt collection policy that describes, for all classes of patients:
(1) when the first bill is to be sent to the patient or responsible
party, if applicable, (2) the time intervals when the follow-up letters
are to be sent and/or telephone calls are to be made if the provider
uses an internal collection process, (3) the dollar thresholds for
accounts that are to be sent to the outside collection agency, and (4)
the point at which the account is written off.
If the patient files are stored electronically, the collection policy should
contain codes that are used on the electronic print screens to identify the type
of action (e.g., first bill, first follow-up notice, referral to collection
agency) taken on the account.
o If the patient accounts are referred to an outside collection
agency(s), a copy of the contract with the collection agency(s) is
needed to determine whether both Medicare and non-Medicare
uncollectible accounts are handled in a similar manner.
o Medicare, and if necessary non-Medicare, patient files containing the
documentation of the collection effort.
If the patient files are stored electronically, capability to access the print
screen that details the charges to the patient, the billing date, to whom the
bill was sent, and the number/code and the date of the follow-up letters or
phone calls, and/or referral to
collection agency (if any). Also, on request by auditor, capability to print a
sample of the actual letters to the patient.
o If a collection agency(s) is used at any time during the collection
process, a copy of the collection agency report(s) that shows for each
patient account: the name of the patient, date account placed with the
agency(s), and balance at the end of the provider's fiscal year.
o If no collection effort was exerted on some or all of the bad debts
claimed, documented evidence that the patient(s) was indigent.
o For Medicaid patients, when there is satisfactory documentation that
the state payment formula would result in zero payment, then the
write-off may occur before 120 days have passed.
FOR MEDICARE PATIENTS WHO ARE ENTITLED TO MEDICAID:
In general, the following information must be provided:
o Evidence that the patient is eligible for Medicaid (Title XIX) at the
time services were rendered.
o Copies of the bills for Medicare deductible and/or coinsurance amounts
that were sent to the state Medicaid Agency.
o Copies of the remittance advice from the state Medicaid Agency showing
that the provider's claims for the Medicare deductible and coinsurance
amounts were denied.
The procedures that shall be followed for documenting bad debt amounts claimed
for indigent residents will be those outlined in section L of the HCFA form 339
instructions, as follows:
Evidence of the bad debt arising from Medicare/Medicaid crossovers may include a
copy of the Medicaid remittance showing the crossover claim and resulting
Medicaid payment or non-payment. However, it may not be necessary for a provider
to actually bill the Medicaid program to establish a Medicare crossover bad debt
where the provider can establish that Medicaid would have no responsibility for
payment under the state plan. In lieu of billing the Medicaid program, the
provider must furnish documentation of:
o Medicaid eligibility at the time services were rendered, and
o Non-payment that would have occurred if the crossover claim had
actually been filed with Medicaid. Non-payment must be evidenced by a
reference to the pertinent sections of a Medicaid state plan or
precedent records of denial of previous claim submissions for the same
service and same category of payment.
The payment calculation will be audited based on the State's Medicaid plan in
effect on the date that services were furnished. Providers should be aware of
any changes in the Medicaid payment formula that might impact the crossover
calculation, and ensure that these changes are reflected in the claimed Medicare
bad debt.
FOR INDIGENT MEDICARE PATIENTS WHO ARE NOT ENTITLED TO MEDICAID:
The following information must be provided:
o Medicare patients' files containing documentation that the provider
used customary methods based on the guidelines in the PRM-1, section
312 to determine patient indigence. A patient's signed declaration of
inability to pay medical bills cannot be considered as proof of
indigence.
o Backup information showing that the provider considered the patient's
totals resources (e.g., analysis of assets that are convertible to cash
and unnecessary for the patient's daily living, liabilities, income and
expenses) in making the determination of indigence.
o Evidence that the provider determined that no source other than the
patient (e.g., Title XIX, local welfare agency, guardian) would be
legally responsible for the patients medical bill.
AUDITING
o Audits of claims for reimbursement of bad debts will be performed in
accordance with the "Hospital and Skilled Nursing Facility Audit
Program (revised and issued November, 1999)," Government Auditing
Standards (GAS) or Generally Accepted Auditing Standards (GAAS). Any
changes in CMS audit protocols will be incorporated into this
agreement.
The provider must comply with any changes that are made to governing CMS
statutes, regulations or manual instructions regarding bad debt policy
subsequent to the effective date of a settlement agreement entered into between
CMS and Beverly Enterprises. All or part of this protocol may be superceded by
any such CMS statutory, regulatory or policy changes regarding bad debt policy.
Beverly Enterprises
Summary of all Home Office
Cost Report Addresses
STATE FILING ADDRESS
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AL Mr. Jesse Loving
Director or Provider Audit and Reimb. Div
501 Dexter Ave.
P.O. Box 5624
Montgomery, AL 36103-5621
AR Lori Bowen
Chief Program Administrator
Department of Human Services
Division of Medical Services
Office of Long Term Care
P.O. Box 8059-Slot 402
Little Rock, AR 72203-8059
AZ Jane Wright, CPA, CIA
Arizona Dept. of Hlth Srvcs.
Office of Cost Reporting and Review
100 W. Clarendon, Suite 500
Phoenix, AZ 85013
CA Mr. Gary Wong
Dept. of Health Services
Auditor Review Analysis
591 North 7th Street
P.O. Box 943732
Sacramento, CA 94234-7320
DC Mr. Herbert Weldon, Commissioner
Commission of Health Services
Dept of Human Services
825 North Capital St, NE
Washington, DC 20020
GA Mr. Alan Sacks
Georgia Nurs. Hme Reimb Div
2 Peachtree Street, N.W.
Suite 3829
Atlanta, GA 30303-3159
404-651-7882 Phone
HI Mr. Gary S. Mizuno
Manager
Audit and Reimbursement
Hawaii Medical Srvc. Assoc.
818 Keeaumoku Street
Honolulu, HI 96808
IL Margel S. Pellicord
Illinois Department of Public Aid
201 S. Grand Ave. East - 2nd Floor
Springfield, IL 62763
ID Mr. Kevin Londeen
500 Baybrook Court
Suite 300
Boise, ID 83706
IN Kennan Buoy
Myers and Stauffer
8555 North River Road, Suite 360
Indianapolis, IN 46240
(Rate Setting Contracters for the State)
Beverly Enterprises
Summary of all Home Office
Cost Report Addresses
STATE FILING ADDRESS
----- --------------
KS Kansas Department on Aging
New England Building
503 S. Kansas Avenue
Topeka, KS 66603-3404
Attn: Director, Nurs Fac Rate Setting
KY Myers and Stauffer, LC
Certified Public Accountants
Attn: Ada M. Gebhardt
60 Devils Hollow Connector, Suite 200
Frankfort, KY 40601
LA John C. Marchand
State of Louisana
Dept of Hlth and Hosp
1201 Capitol Access Road
Baton Rouge, LA 70821-9030
MA Ms Sheri Cooney
Health Data Policy Group
Division of Health Care Finance & Policy
Two Boyleston Street
Boston, MA 02116
MD H. Terry Hancock
Clifton, Gunderson and Company
Suite 500
9515 Deereco Road
Timonium, MD 21093
MI Mr. Dennis Madalinski
Budget and Fin Admin
Bureau of Audit and Rev. Enhanc.
400 South Pine
P.O. Box 30479
Lansing, MI 48909-7979
MN Lori Mo
Human Services Building
Audit Division
444 Lafayette Road
St. Paul, MN 55155-3836
MO Marvin Bernskoetter
Department of Social Services
Division of Medical Services
308 East High Street
Jefferson City, MO 65102-6500
Beverly Enterprises
Summary of all Home Office
Cost Report Addresses
STATE FILING ADDRESS
----- --------------
MS Ms. Tabitha Clifton
Medicaid Fin. Prog. Coord.
The Division of Medicaid
Office of The Governor
Suite 801, Robert E. Lee Building
239 North Lamar Street
Jackson, MS 39201-1311
NC Chris Brady, Audit Manager
Desk Audit Section
Division of Medical Assistance
2507 Mail Service Center
Raleigh, NC 27699-2507
NE Dale Schallenburger
State of Nebraska
Department of Social Services
301 Centennial Mall South
Lincoln, NE 68509
NJ Felix A. Alamzor, Director
Hlth Fac Rate Setting - Rm 600 CN 360
Trenton, NJ 08625-0360
OH Mr. Mike Flora
Ohio Department of Human Services
Audits and Reimbursement Section
30 East Broad Street, 33rd Floor
Columbus, OH 43266-0423
PA Joyce B. Haskins, Director
Department of Public Welfare
Office of Medical Assistance
Division of Long Term Care
P.O. Box 2675
Harrisburg, PA 17105
SC Melissa C. Davis, Director
St Hlth and Hmn Svcs. Fin. Co.
Div of Long Term Care Reimb
1813 Main Street, Suite 1300
Jefferson Executive Center
Columbia, SC 29201
SD Damian Prunty
Program Administrator
Department of Social Services
Off of Provider Reimb Auditing
700 Governors Drive
Pierre, SD 57501-2291
TN Donna Crutcher
Department of State Auditing
Suite 1500
James K. Polk State Office Building
Nashville, TN 37243-0264
Beverly Enterprises
Summary of all Home Office
Cost Report Addresses
STATE FILING ADDRESS
----- --------------
TX Marian Dillard
Data Development Specialist
Texas Dept. of Human Services
Rate Analysis Department
701 West 51st Street
Mail Code W-425
Austin, TX 78751
VA Clifton Gunderson, P.L.L.C.
4144-B INNSLAKE DRIVE
Glen Allen, VA 23060-3387
WA Joe Perrino
Dept of Social Health Services
Office of Rates Management
Aging and Adult Srvcs. Admin
640 Woodland Square Loop SE
Lacey, WA 98503
WI Randall M. Engstrom, Senior Auditor
Bureau of Health Care Financing
Nursing Home Section
P.O. Box 309
Madison, WI 53701-0309
WV Richard P. Brennan, Jr., Director
Office of Audit, Research and Analysis
3701 MacCorkle Avenue, SE
Charleston, WV 25304