Delay In Physician Pay Reduction
February 17, 2011
Posted by Frank Ciesla
The 2012 Federal budget proposed by the Obama Administration delays the threatened 28% cut in Medicare payments to doctors for two (2) more years, until after the elections. This approach continues kicking the can down the road, and does not permanently resolve the situation. At a hearing on Tuesday, February 15, 2011, both Senate Finance Committee Chair Max Baucus, a Democrat, as well as Orrin G. Hatch, the Republican ranking member, challenged Health and Human Services Secretary Kathleen Sebelius to come up with a permanent overhaul of the Medicare physician pay formula. The lack of a permanent solution continues to put at risk doctor compensation for providing services to Medicare beneficiaries. It also does not address the need to reduce Medicare expenditures so as not to continue growing the national deficit. As Senator Alan Simpson co-chair of the Debt Reduction Commission, stated on cable news, it is necessary to reduce physician compensation if we intend to have a handle on the Medicare expenditures going forward. Regrettably, the math is simple. If there are more beneficiaries, as there will be with the baby boomers, and society does not want to or cannot afford to increase the Medicare expenditures, the alternatives are to reduce payment to providers or ration care.
Florida Judge Rules That Healthcare Law Is Unconstitutional
February 1, 2011
Posted by Frank Ciesla
This week’s headlines announced that a Federal Judge in Florida struck down the healthcare law as unconstitutional. However, until the constitutionality issue is finally resolved by the U.S. Supreme Court, the federal government and most (if not all), state agencies will continue to proceed with the implementation of the statute. As stated in an earlier blog post, PPACA will require at least one thousand regulations to be drafted in order to implement the statute. In addition, the federal government continues to issue waivers from certain statutory requirements to states, corporations and labor unions. Over 200 waivers have been issued to date. Read more
HHS Solicits Comments Regarding EMTALA Treatment of Hospital Inpatients
January 18, 2011
Posted by Beth Christian
On December 23, 2010, the Centers for Medicare and Medicaid Services published an advance notice of proposed rulemaking with comment period concerning potential modifications to the regulations governing the Emergency Medical Treatment and Labor Act (EMTALA). The notice concerns the applicability of EMTALA to individuals who: (1) are determined in the hospital’s dedicated emergency department to have an emergency medical condition; (2) prior to being stabilized, are subsequently admitted to the hospital as an inpatient; and (3) later need to be transferred to another hospital with specialized capabilities for further stabilizing treatment. Read more
Obama Healthcare Plan Unconstitutional? Maybe
December 13, 2010
Posted by Frank Ciesla
A Virginia Federal District Court declared the Obama Healthcare plan unconstitutional today. Other Federal District Courts have declared it constitutional. In light of these conflicting judicial outcomes, there is no doubt that this case will ultimately be decided by the United States Supreme Court. That of course, will take a period of time which will add uncertainty while the matter is being resolved.
Medical Loss Ratio Regulations
December 10, 2010
Posted by Frank Ciesla
As the regulations required under the Patient Protection and Affordable Care Act which mandate use of the 85/15 or 80/20 medical loss ratio, are being implemented, it is clear that insurance companies will be able to dedicate a smaller and smaller amount of the premium for use in covering the non-medical expenses, including payments made by the insurance company to the insurance brokers. This will impact all employers, including health care providers, in the employer mode. Many employers, unions and governmental agencies are applying for waivers from the Secretary of Health and Human Services, on the grounds that the applicable health plans do not and cannot meet this requirement, which requests are being granted to avoid many people not having insurance. Read more
Get Ready for Physician Compare
December 9, 2010
Posted by Beth Christian
Hospitals have had to report quality data, which is made available to the public on the CMS Hospital Compare website, for some time. Pursuant to Section 10331 of the Patient Protection and Affordable Care Act (“PPACA”), data applicable to physician performance will also be collected and made available for review by the public. In addition to physician reporting, reporting may also occur for physician assistants; nurse practitioners and clinical nurse specialists; CRNAs; nurse midwives; clinical social workers; clinical psychologists; registered dieticians; nutrition professionals; audiologists; physical therapists; occupational therapists; and qualified speech-language therapists.
PPACA requires the Secretary of Health and Human Services (“HHS”) to develop a Physician Compare internet website no later than January 1, 2011. However, public access to data regarding individual physicians and other healthcare professionals will not occur until January 1, 2013. As of that date, the Secretary of HHS will be required to implement a plan to make available to the public information on physician performance that provides comparable information on quality and patient experience measures for physicians enrolled in the Medicare program. Reporting will include (to the extent practicable) the following: (1) measures collected under the Physician Quality Reporting System; (2) an assessment of patient health outcomes and the functional status of patients; (3) an assessment of the continuity and coordination of care and care transitions, including episodes of care and risk-adjusted resource use; (4) an assessment of efficiency; (5) an assessment of patient experience and patient, caregiver and family engagement; (6) an assessment of the safety, effectiveness, and timeliness of care; and (7) other information as determined appropriate by the Secretary of HHS.
PPACA also requires CMS (to the extent practicable) to consider the following in developing the Physician Compare website, data collection and reporting process: (1) processes to assure that data made public is statistically valid and reliable, including risk adjustment methodology; (2) processes by which a physician or other eligible professional has reasonable opportunity to review his or her individual results before they are made public; (3) processes to assure that the data made available to the public provides a robust and accurate portrayal of a physician’s performance; (4) data that reflects the care provided to all patients by the physician under both the Medicare program and, to the extent practicable, other payors; (5) processes to ensure appropriate attribution of care; (6) processes to ensure timely statistical performance feedback; (7) implementation of computer and data systems to support valid, reliable and accurate public reporting activities.
The statute also requires the Secretary of HHS to take into consideration input provided by multiple stakeholder groups in selecting quality measures for use under the statute. As a result, CMS is seeking input on certain aspects of the Physician Compare program before implementing it and held a town meeting on October 27th to solicit input.
Physicians and other healthcare professionals will need to consider a number of issues as the Physician Compare program is rolled out. One of these issues is how to best address questions raised by patients after they evaluate a physician’s individual results on Physician Compare. Another issue that should be reviewed is the extent to which a physician’s results as reported on the Physician Compare website may impact the use of performance-based criteria contained in healthcare professional employment contracts, shareholder agreements, or practice operating agreements. As part of our work in drafting physician contracts, we have seen a significant shift toward the use of quality metrics for evaluating healthcare professional performance. In addition, information published via Physician Compare may impact physician credentialing decisions, and the use of this information may necessitate future modifications to a healthcare facility’s medical staff bylaws. We have already seen the impact of the use of quality-driven measures through our work handling credentialing matters and in working with healthcare facilities regarding bylaw modifications. It will be interesting to see how reporting on Physician Compare will impact physicians and their relationships with their patients, as well as relationships between providers in a professional practice, and the role of physicians as members of a healthcare facility’s medical staff.
“Before The OIG Comes Knocking”
December 7, 2010
Posted by Sharlene Hunt
Changes made to the federal laws over the past year and a half have greatly increased the exposure of medical practices under the federal False Claims Act. As part of these changes, it is now a violation of the False Claims Act to retain an overpayment received from the Medicare or Medicaid program, and physicians and other health care providers now have an affirmative obligation to report and refund any overpayments of which they become aware. A violation of the antikickback law or the physician self-referral law (the “Stark” law) is also a violation of the False Claims Act. Before your practice gets a visit from the Office of the Inspector General, you should put in place policies and practices to avoid overpayments and to identify them and take appropriate steps if an overpayment is received. Read more
New Medicare/Medicaid Enrollment and Screening Requirements Proposed
November 29, 2010
Posted by Beth Christian
On September 23, 2010, the Centers for Medicare and Medicaid Services (“CMS”) published proposed regulations which will modify Medicare/Medicaid provider screening and enrollment requirements. These proposed regulations are designed to implement changes in the screening and enrollment process which were included in the federal healthcare reform legislation. Under the proposed regulations, providers will be separated into three screening categories for purposes of evaluating their initial enrollment in Medicare and Medicaid, as well as periodic revalidation of their enrollment.
La tienda líder online de réplicas camisetas de fútbol te ofrece ofertas en camisetas de fútbol y mejor servicio postventa.
The first category encompasses providers and suppliers who are considered by CMS to be of “limited categorical risk”. These include: (i) physicians or nonphysician practitioners and medical groups or clinics; (ii) ambulatory surgery centers; (iii) end stage renal disease facilities; (iv) federally qualified health centers; (v) histocompatability laboratories; (vi) hospitals; (vii) Indian health service facilities; (viii) mammography screening centers; (ix) organ procurement organizations; (x) mass immunization roster billers; (xi) portable x-ray suppliers; (xii) religious non-medical healthcare institutions; (xiii) rural health clinics; (xiv) radiation therapy centers; (xv) public or government owned or affiliated ambulance service providers; and (xvi) skilled nursing facilities. Providers or suppliers that are publicly traded on the New York Stock Exchange or on NASDAQ will also fall within the category of limited categorical risk.
When limited categorical risk entities initially enroll as providers, or when periodic revalidation of their enrollment occurs, CMS will verify that the provider or supplier meets any applicable federal regulations or state requirements for their provider or supplier type. In addition, CMS will conduct license verifications, including license verifications across state lines for multi-state providers. CMS will also conduct database checks on a pre and post-enrollment basis to ensure that providers and suppliers continue to meet the enrollment criteria for their provider and supplier type.
Certain other providers will be placed within a “moderate categorical risk” category. These include: (i) community mental health centers; (ii) comprehensive outpatient rehabilitation facilities; (iii) hospice organizations; (iv) independent diagnostic testing facilities; (v) non-government owned or affiliated ambulance service providers; and (vi) independent clinical laboratories. These providers will also fall within the “moderate” risk category upon revalidation of their provider status, as will home health agencies.
For providers in the moderate categorical risk categories, CMS will perform all of the screening requirements that it performs for providers falling within the limited categorical risk category. In addition, providers or suppliers falling into the moderate categorical risk category will also be required to have an on-site visit.
Suppliers of DMEPOS, as well as home health agencies seeking initial enrollment in Medicare or Medicaid or who are establishing a new practice location, will fall within the “high categorical risk category”. Providers and suppliers in this category will be subject to the same screening requirements for limited and moderate categorical risk providers and suppliers. In addition, they will be subject to criminal background checks and will also need to submit fingerprints to CMS.
Under certain circumstances, a low or moderate risk provider may be moved to the high risk category. This adjustment can occur if any of the following circumstances arise: (i) CMS or its Medicare contractor has information from a physician or nonphysician practitioner that another individual is using their identity within the Medicare program; (ii) CMS imposes a payment suspension on a provider or supplier; or (iii) the provider or supplier has been excluded from Medicare by the Office of Inspector General or has had its billing privileges denied or revoked by a Medicare contractor within the previous 10 years and is enrolling as a new provider or attempting to establish billing privileges for a new practice location. Movement from one category to another can also occur if the provider has been terminated or is otherwise excluded from billing Medicaid.
The new enrollment and revalidation requirements will go into effect on March 23, 2011. Thus, providers or suppliers enrolling on or after that date, as well as those revalidating their enrollment, will be required to meet these enhanced enrollment and screening requirements. durable medical equipment prosthetic, orthotics and supplies (“DMEPOS”) suppliers will be required to complete the revalidation process every three years, while other providers and suppliers will be required to complete the process every five years.
Providers and suppliers who are submitting an initial enrollment application, as well as providers and suppliers who undergo revalidation, will have to pay an application fee. For 2010, the application fee is $500. The application fee will be increased annually based upon the percentage changes in the consumer price index.
The proposed regulations also would permit CMS to impose a temporary moratorium on the enrollment of new providers for a particular provider category if CMS determines that there is a significant potential for fraud, waste, or abuse with respect to a particular provider or supplier type or particular geographic area, or both. The proposed temporary moratorium will not apply to existing providers or suppliers unless they are attempting to open up a new provider location in a geographic area where a temporary moratorium exists. The temporary moratorium will also not apply to changes of ownership, mergers or consolidations of existing providers and suppliers. There are similar regulatory provisions applicable to the Medicaid program which were also included as part of the proposed rule.
In segregating providers into low, moderate and high risk categories, CMS appears to be sending a message to the provider and supplier communities that there are particular provider and supplier types that it considers to be at greater risk of engaging in fraud and abuse activities. By proposing to utilize temporary moratoria on the enrollment of new providers in a particular provider or supplier type or geographic area, CMS appears to be following the lead of state Medicaid programs (such as New Jersey’s) that have previously imposed such moratoria for provider categories such as pharmacies and DMEPOS suppliers. We have worked with a number of providers in connection with the preparation of CMS 855 forms and survey preparation. It will be interesting to see whether the new enrollment and screening procedures will speed up or slow down the process, however, it seems certain that any step requiring an on-site inspection will slow the process down in New Jersey where the Department of Health and Senior Services has suffered from state-wide governmental layoffs.
FURTHER POSTPONEMENT OF PHYSICIAN MEDICARE CUT POSSIBLE
November 19, 2010
Posted by Sharlene Hunt
In an earlier blog post, we reported on a temporary fix adopted by Congress to address the reduction in Medicare reimbursement to physicians. That temporary fix is due to expire at the end of this month. Yesterday, the Senate voted once again to postpone the cut in Medicare physician payment rates on a temporary basis, this time through December 31, 2010, although apparently there are further discussions taking place regarding an additional 12 month postponement. Although a postponement is better than implementing the pay cut, these Congressional band aids do nothing to contribute to a permanent resolution of the pay cut issue.
In the event the pay cut issue is not addressed on a permanent basis, and at some point the Medicare pay cuts are implemented, be that January 1, 2011 or January 1, 2012, it will have a tremendous economic impact not only on physicians who treat Medicare patients, but also on all other health care providers who employ physicians or otherwise get paid for physician services. To the extent Medicare reimbursement is insufficient to cover the cost of providing physician services, physicians or their employers may be economically unable to continue to provide care to Medicare patients. The Senior Vice President of the AARP is quoted by the AP as hailing the temporary postponement of the pay cut because Medicare patients will be able to “continue to see their doctors during the holiday season.” This response seems short sighted in light of the potential devastating impact of failing to address the pay cut on a permanent basis.
IMPLEMENTATION PROCESS
November 15, 2010
Posted by Frank Ciesla
In an earlier blog post entitled “New Era in Healthcare” dated May 1, 2010, I pointed out that a substantial part of PPACA implementation will occur pursuant to the administrative process. With the passage of time, we can see that this will be both a contentious as well as a complex issue which will require much inter-agency coordination, as well as coordination with the states.
A major coordination issue arises since PPACA requires, at the federal level, regulations to be promulgated by at least three different federal agencies. They are the US Department of Health and Human Services/Centers for Medicare and Medicaid Services (“HHS/CMS”), the Department of the Treasury/Internal Revenue Service (“Treasury/IRS”), and the Department of Labor (“DOL”). Other federal agencies, such as the FTC, have stated that they will be issuing safe harbor guidelines, addressing anti-trust issues arising under PPACA.
The administrative rulemaking process has been in existence at both the Federal and State levels for decades. There is nothing unique about this process with regard to PPACA, except for the fact that the legislation left most of the details regarding implementation of legislative intent to the rulemaking process. Historically, an extensive rulemaking process has been used in circumstances where: (1) the implementation of a statute requires significant technical detail and Congress lacks the requisite expertise; (2) the implementation of the legislation requires a level of administrative detail that can best be determined by the agency actually administering the statute; or (3) politics require the use of the administrative process, in those circumstances where setting forth the detail in the legislation may cause the legislative proposal to ultimately fail, since the detail could not be agreed upon by a majority of the members of Congress. The PPACA involves all three reasons for various delegation of rulemaking to administrative agencies. An example of this is PPACA’s delegation to the Internal Revenue Service of the reporting required by the statute of the economic benefits received by employees, in those instances where employers are providing health insurance to their employees. On October 12th this Administration delayed this requirement for a year.
It is reported that the State of Utah is attempting through both the legislative process (Senator Hatch bill), as well as through this regulatory process, by requests for rulemaking, to have the Utah insurance exchange to be deemed compliant with the PPACA.
A state, such as New Jersey, must be prepared to respond to both the PPACA statute as well as to the implementing regulations. As I had pointed out in my prior blog post, it is estimated that there will be over 60,000 pages of Federal Regulations needed to implement PPACA. In response to this issue, legislation has been proposed in the New Jersey Legislature which would appoint a “Commission” to carry out implementation of PPACA. The purpose of the Commission will be to review the regulations and any statutory amendments that are issued at the federal level in order to recommend what State statutes need to be enacted and what regulations need to be proposed and adopted. In New Jersey, there are various agencies that will be involved. These include the Department of Health and Senior Services, the Department of Human Services, the Department of Banking and Insurance and the Department of Labor. There could also be requirements that involve action by the Board of Medical Examiners, the Board of Nursing and the various other professional Boards that are responsible for overseeing different licensed or certified healthcare providers.
We have already seen several instances where the form of regulatory proposals is becoming a contentious issue. A recent New York Times article set forth issues that Senator John D. Rockefeller, IV identified with regard to the administrative process. He was very concerned that when a recent proposed health care reform regulation was published in the Federal Register, nearly one hundred sixty comments were submitted by the insurers who will be subject to the regulations, but only twenty-three comments were submitted by consumer advocates. It does not appear that many (or even any) comments were submitted by the provider community.
The regulatory proposal in question deals with PPACA’s requirement that insurers spend eighty or eighty-five cents out of every dollar they collect in premiums on the welfare of patients (the “medical loss ratio”). The implementation details of the legislation were delegated to the administrative process for ultimate determination. While we have yet to see the final implementing regulations that will ultimately be adopted, those regulations are expected to be voluminous and detailed, and will be the subject of much debate.
The complexity and contentiousness of the proposed medical loss ratio regulations is resulting in requests for a number of waivers that have been submitted by both union and corporate healthcare plans, as well as governmental entities, the impact of which we will discuss in future blog posts.
Another particularly contentious area involves the status of the Administrator of CMS, Donald Berwick. He has not been confirmed and may not be confirmable by the Senate. However, the lion’s share of regulations necessary to implement PPACA will be issued by the Agency that he heads.
It also appears that of the regulatory proposals issued to date, ten have been issued in the form of “interim final rules” which do not include a public comment period. In regard to one of the “final rules”, HHS has sought public input. This development has resulted in a legislative proposal from Senator John Cornyn (R-Texas) that would require the opportunity for public comment on all regulations related to PPACA.
« go back — keep looking »