Massachusetts Health Care Plan
August 6, 2012
Posted by Frank Ciesla
As we have stated in prior blogs, the health care plan developed in the State of Massachusetts is a model which must be watched as a precursor of what most likely will happen under the Affordable Care Act (“ACA”). As we previously pointed out in my July 3rd blog, legislation is pending in Massachusetts which will implement cost reductions in health care. Referenced are four articles from the Boston newspapers [(1) 8/1/12 Boston Globe; (2) 8/1/12 Boston Globe; (3) 7/31/12 Boston Herald; and (4) 7/31/12 Boston Business Journal] as to the recent enactment of legislation by the Massachusetts legislature which very likely will be signed by the Governor.
While the specifics will play out over the next 24 months, what is clear is that reimbursement to health care providers will be reduced. This mode of making health care “affordable” and accessible to a larger number of people assumes that the reduction in payments to providers will provide the providers with sufficient resources, including compensation to the individual providers delivering the health care. The model also assumes that these payment reductions will not result in a reduction of those services as a result of providers not receiving sufficient reimbursement to be able to fund the costs of providing services. There appears to be no question that a significant portion of the affordability and accessibility to health care which will be provided in Massachusetts will be at the expense of the providers. This approach needs to be watched carefully, since it may be adopted in implementing the ACA.
Update on Sustainable Growth Rate
August 6, 2012
Posted by Frank Ciesla
Legislation has been proposed in regard to the Sustainable Growth Rate (“SGR”) to avoid adversely affecting physician payment for another year, effective January 1, 2013. The Congressional Budget Office (“CBO”) has scored the proposal. The CBO has determined that “a one-year Medicare physician payment “patch” that would block a scheduled 27 percent reimbursement cut Jan. 1 and instead continue the same rates doctors now receive would require offsets totaling $18.5 billion over 10 years”. (See Report). However, the proposed joint action of the House and Senate to continue funding government operations through March of 2013, does NOT include any funds for the “patch”.
As you can see, even under the proposed legislation, there is no intent to permanently resolve the problem created by the SGR. The simple reason for this is the fact that the CBO is required to score any proposed legislation based upon the law in effect at the time of the scoring. Therefore, when the CBO scores any health care legislation, it has for the last number of years always determined that the viability of the legislation includes the reductions to physician payment required by the SGR, as set forth in the then current legislation. Therefore, should the proposed legislation be enacted, deferring the implementation of the SGR either for one year until January 1, 2014 or two years January 1, 2015, any scoring of health care legislation during that period of time will be based upon the reduction of physician fees as of either January 1, 2014 or January 1, 2015. Based upon its historical track record, Congress has never implemented the physician cuts required by the SGR, but has always kicked the can down the road for a short period of time.
It is likely that this legislation, for at least one year, will pass so that the cliff faced by physicians on January 1, 2013 will now be pushed out to January 1, 2014 or January 1, 2015, but it also appears that it will not go away and will not be a permanent resolution of the issue.
Penn State Sanctions Take Their Cue From The OIG
July 23, 2012
Posted by Beth Christian
The NCAA has announced the sanctions that will be imposed against the Penn State football program. It is interesting to note that many of the penalties imposed are strikingly similar to those imposed against health care providers who are involved in health care fraud investigations:
- A substantial fine ( equal to one year’s worth of football revenue) was imposed.
- The football program will be subject to the oversight of an outside monitor for a period of five years.
- The University will be required to appoint a compliance officer.
- The University will be required to enter into a consent agreement with the NCAA with detailed compliance provisions.
- No “death penalty” (exclusion from participation) was imposed. This is similar to the approach taken by the OIG when developing sanctions against larger institutional providers and publicly traded entities.
It may be helpful to use this football analogy when instructing staff members of the importance of corporate compliance and the penalties that may be imposed when compliance is ignored. We have seen too many instances in our practice where a health care provider implements compliance initiatives too “late in the game,” and will require our help in negotiating a settlement with the US Attorney’s office and/or the OIG.
Massachusetts Provider Payment Controls: A Harbinger for the Future?
July 3, 2012
Posted by Frank Ciesla
From a provider’s point of view, the issue of most concern under the Affordable Care Act (the “Act”) is the impact that the law will have on the compensation paid to providers for services rendered to the beneficiaries of either governmental or private insurance programs. In light of the Supreme Court’s decision last week, there has been a lot of discussion regarding the impact of the Act on insurance companies, taxpayers, and individuals. However, the financial impact on providers must also be considered. Without financially stable providers, there is no health care.
A recent article in Modern Healthcare discusses some of the payment challenges that have arisen as a result of the early health care reform program implemented in Massachusetts. Massachusetts has now come to realize that it must control the costs of health care by controlling payments made to the providers. There may be different approaches to doing this, but at the end of the day, there will be a negative impact on payments to providers. As Massachusetts focuses more and more on that issue, we will keep you informed. Since the Massachusetts approach served as the model for the Affordable Care Act, any cost controls placed on payments to providers in Massachusetts may be a model for the federal program in the future, in its attempt to control the cost of health care.
In our previous blog in March, we discussed the approach taken by the Massachusetts AG to empanel a state grand jury to determine what providers were paid by insurance carriers. Based on the previously confidential information obtained, the Massachusetts legislature, with the Governor’s support, is now drafting legislation to control payments to providers. It will be interesting to see what payment controls may be implemented in Massachusetts, and whether similar controls will be required on the federal level.
PPACA Upheld by Supreme Court
June 28, 2012
Posted by Sharlene Hunt
Today, the United States Supreme Court issued its eagerly awaited decision in the case challenging the constitutionality of the Patient Protection and Affordable Care Act (“ACA”). The Supreme Court has in effect upheld the constitutionality of the ACA, not by upholding the individual mandate, which requires individuals to maintain minimum levels of health insurance, but by upholding the government’s ability to impose a tax on individuals who do not comply with the mandate. With respect to the Medicaid provision of the ACA, the Court upheld the expansion of the Medicaid program with the conditions imposed by Congress, but for States that do not comply with the expansion, the Court held that federal government cannot take away existing Medicaid funds as provided under the ACA.
Chief Justice Roberts issued the opinion of the Court regarding the individual mandate. He also issued a separate opinion regarding several issues, including the expansion of the Medicaid program and loss of funding to States that refuse to expand their Medicaid programs. He concluded that the loss of funding was unconstitutional, but that the flaw could be fixed by nullifying the loss of funding. Justice Ginsberg issued a separate opinion, joined by Justice Sotomayor, and joined in part by Justices Breyer and Kagan, as to four issues, concurring in part, concurring in the judgment, and dissenting in part. A separate dissenting opinion was issued by Justices Scalia, Kennedy, Thomas and Alito, and Justice Thomas issued a separate dissenting opinion. Thus, the opinion was far from unanimous and from a legal point of view therefore lacks precedential guidance to the courts, patients, providers or payors on a number of issues.
Now that the Supreme Court has issued its decision, the uncertainty regarding the Court’s ultimate holding has been addressed. However, the uncertainty surrounding the ACA is far from resolved. The results of the election in November will still have a huge impact on the implementation of the statute. The statute itself requires the issuance of voluminous regulations interpreting a broad spectrum of the statutory provisions. Whether Mitt Romney or Barack Obama win the Presidential election will determine who controls the issuance of the regulations. Because the statute is so broadly written, a great deal of discretion can be exercised through the implementing regulations.
In addition, control of the Houses of Congress could also have an impact on the statute, and on implementation of the statute. If the Republican party gains control of both Houses, while there will most likely be a push for repeal of the statute in whole or in part, unless the Republicans have a filibuster proof majority in the Senate, it is highly unlikely such a repeal will occur. If the Democrats control both Houses, then one would assume it will be full speed ahead with implementation, unless the Democrats do not have filibuster proof majority in the Senate, in which case grid lock could occur. If control of the Houses is split between the two parties, then funding the implementation of the statute will most likely be an ongoing problem.
Stay tuned as we delve further into the Supreme Court’s opinion and the impact it will have.
Healthcare Providers Reporting To Motor Vehicle Commission
June 27, 2012
Posted by Sharlene Hunt
A bill set for a vote tomorrow in both Houses of the New Jersey Legislature would permit certain healthcare providers to report to the Motor Vehicle Commission information regarding patients with an alleged impairment. The information to be reported would include the name, age, address and description of the alleged impairment of any person sixteen years of age or older. Impairments covered by the bill are defined as any health problems that, “in the healthcare provider’s judgment, will significantly affect the person’s ability to safely operate a motor vehicle.” Healthcare providers covered by the bill include physicians, podiatrists, dentists, optometrists, advanced practice nurses, and psychologists.
The bill is permissive, and does not require reporting to the Motor Vehicle Commission. The Health Insurance Portability and Accountability Act (HIPAA) and regulations issued under HIPAA permit the release of protected health information if “required by law.” The term “required by law” is defined in the HIPAA regulations as a mandate contained in a law that compels disclosure and is enforceable in a court. The proposed bill does not rise to the level of a mandate, and thus this disclosure would not be permissible under HIPAA. The bill therefore raises an interesting conundrum for healthcare providers who are bound by obligations of patient confidentiality.
One of the critical underlying reasons for laws protecting patient confidentiality is to encourage individuals to seek treatment without the fear of having their medical condition become public information. If an optometrist determines that her patients’ cataracts could affect their ability to drive, will senior citizens cease to seek eye care in order to avoid reporting, thereby keeping their driving privileges but exacerbating their vision problems? Will an individual with an inflammation in his knees avoid seeking treatment for fear that his physician could determine the problem could affect his ability to brake quickly in an emergency? Since the bill is not mandatory, does the healthcare provider who reports one of these conditions expose herself to liability for breach of confidentiality?
The issue of individuals driving with medical conditions that create a safety risk is a serious one indeed. Such a condition could put not only that individual at risk, but also the entire population traveling on the roads of New Jersey. However, this bill has serious implications not only for patients who may become hesitant to seek care in order to retain their driving privileges, but also for healthcare providers who are now “permitted” to report such conditions, but who may nonetheless be violating patient confidentiality in doing so. While a court might eventually find in favor of the healthcare provider based on public policy, the issue is certainly not addressed in the proposed bill.
The Train Has Left the Station
June 27, 2012
Posted by Beth Christian
On Thursday, June 28th, the US Supreme Court is expected to issue its widely anticipated decision regarding the Affordable Care Act. I am currently attending the American Health Lawyers Association Annual Meeting in Chicago, where the changing landscape of healthcare is a hot topic. On Monday, we had former CMS Administrator Dr. Donald Berwick as a keynote speaker.
Dr. Berwick noted that no matter what the Supreme Court decides, “the train has left the station.” Dr. Berwick noted that the health industry’s recognition of the need for systemic change has stimulated enough new developments that the Supreme Court’s decision on whether or not to uphold the law was “not the whole game here.” Other industry leaders have highlighted new healthcare delivery models which use a strong focus on data analysis and evidence based medicine as vehicles to improve quality and reduce costs. Given the investments being made in these new models and the interest in them being exhibited by non-government payors, they are likely to remain no matter what the Supreme Court decides.
Social Media May Impact You As A Health Care Employer
June 13, 2012
Posted by Beth Christian
With the advent of social media platforms such as Facebook, LinkedIn and Twitter, employers have had to confront issues arising from their employee’s use of these platforms both on and off the job. Employers in the health care arena are not immune from these challenges. Over at the Giordano, Halleran & Ciesla IP Biz Tech blog, our colleague, Melissa Skrocki, has outlined the key points of the court’s decision in Deborah Ehling v. Monmouth-Ocean Hospital Service Corporation, et al, 2012 WL 131926 (D.N.J. May 30, 2012). The case involves an employee of MONOC, an emergency medical services provider, who filed suit against her employer, claiming that MONOC initiated retaliatory conduct against her after accessing her Facebook page. While the court dismissed the plaintiff’s New Jersey Wiretap Act claims, the court rejected the defendant’s motion to dismiss the plaintiff’s violation of privacy claims. More details about the Ehling case can be found here: http://www.ipbiztech.com/a-betrayal-among-friends-privacy-issues-surrounding-posts-on-facebook/
CMS Adopts Final Rule Implementing Changes to the Medicare Conditions of Participation for Hospitals
May 16, 2012
Posted by Beth Christian
Last week, the Centers for Medicare and Medicaid Services published notice of its adoption of amendments to the Medicare Conditions of Participation for Hospitals, 42 C.F.R. Parts 482 and 485. The following represents a summary of some of the more significant amendments to the Conditions of Participation:
1. CMS will allow one governing body to oversee multiple hospitals in a multi-hospital system. CMS has also added a requirement that a member, or members, of the hospital’s medical staff be included on the single governing body as a means of ensuring communication and coordination between a single governing body and the medical staffs of individual hospitals in the health care system. Read more
NEW EFFORTS UNVEILED TO CONTROL PAYMENTS TO MASSACHUSETTS HEALTH CARE PROVIDERS
May 9, 2012
Posted by Frank Ciesla
As a follow-up to my blog regarding the Massachusetts approach to payments to healthcare providers, the Massachusetts legislature is now attempting to control increases in reimbursement for medical care which is paid to healthcare providers. As can be seen, while there is a difference in approach between the Massachusetts House and Senate, both are attempting to control costs by reducing payments to providers.
As has been pointed out previously, the issue in healthcare is not just access, but affordability. It appears that the Massachusetts legislature is now attempting to control healthcare costs by controlling the payments to healthcare providers. There is no reason to believe that this approach ultimately will not also be taken at the federal level in regard to any federal healthcare program. As pointed out in our recent blog regarding the Medicare Trustee Report, the laws currently on the books at the federal level for Medicare will, unless changed, require a 30.9% reduction in payments to physicians as of January 1, 2013.
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