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Medigap PHO Discount Program Receives OIG Approval

June 23rd, 2015

OIG Releases Yet Another Advisory Opinion 15-08

Medigap Arrangment Involving PHO Discounts

Medigap PHO Discount ProgramSomeone must be busy at the Office of Inspector General’s Office. Last week they released two new advisory opinions and a Special Fraud Alert. This week they released another Advisory Opinion, this time addressing sharing savings from a preferred hospital network between a Medigap insurer and its policy beneficiaries. The program at issue provided a premium credit of $100 toward the policyholder’s next renewal premium for participating in a discount program involving price reductions from a physician-hospital organization.

The second part of the program involved negotiated service rates with a physician-hospital organization (PHO). The PHO agreed to discounts of up to 100% of the Medicare Part A inpatient deductibles which would normally be paid by the Medigap plan. The PHO received an administrative fee from the Medigap plan for each discount that was provided by the PHO.

The OIG analysed the program under the civil monetary penalty (CMP) provisions and the Anti-Kickback Statute (AKS) and concluded that the arrangement would not constitute grounds for civil monetary penalties or administrative sanctions.

The OIG found that discounting of the inpatient deductible created a low risk of fraud or abuse because the Medicare Part A payments are fixed and the discount would not impact reimbursement amounts. Additionally, the OIG observed that patients would not generally haveknowledge of the discount and would not be encouraged to seek additional care. The program did not offerfinancial rewards to the physicians involved in the patient’s care and the program was open to all providers who agreed to the discount program through participation in the PHO.
The OIG also found that the premium credits that were provided to beneficiaries created minimal risk of program abuse.

The OIG also noted that the proposed arrangement has the potential of lowering costs for policyholder under the Medigap plan and that the savings would be reported to the state regulatory agency.

OIG Fraud Alert – Medical Director Compensation Arrangements

June 23rd, 2015

medical director compsnation

Medical Director – Fraud Alert – Physician Compensation

The Office of Inspector General of the Department of Health and Human Services release a new Fraud Alert on June 9, 2015.  The Fraud Alert relates to physician compensation for medical directorships and other services and warns that the compensation arrangements under these arrangements must be at fair market value and must require legitimate services to be performed in return for that compensation.  This is nothing new for those involved in physician compliance issues. However, the fact that the OIG chose this issue for a special Fraud Alert is significant in itself.

Medical director compensation has gained the attention of governmental enforcers over the years with some high profile cases that have focused on fraudulent medical director arrangements.  The compliance industry has tightened its belt on these issues; requiring strict adherence to policies and guidelines for medical director compensation. Clearly there is a legitimate need for health care providers to retain physicians to provide medical direction of various service lines.  In fact, regulations require medical director oversight in many areas.  Even where there is a legitimate need, it is necessary to carefully structure the medical director arrangement to be legally compliant.

You may find your compliance officer of health lawyer advising even more restrictive structuring of medical director arrangements as a result of this Fraud Alert.  The OIG uses Fraud Alerts to place emphasis on areas of concern.  These issuance must be taken seriously and should cause providers to review their policies, procedures and contracts to assure that they are legally compliant and could withstand scrutiny by external government investigators.

A few things to consider include:

  • Specifically defining the precise services that are required of the medical director.
  • Assuring that contracts are current, validly executed, and have not expired.
  • Require regular logs to be provided by the medical director which detail the services that are actually performed.
  • Require the service logs to correspond to specific duties that are described in the director agreement.
  • Support compensation with external fair market value opinions.
  • Cap compensation to assure that fair market value is never exceeded.

These are just a handful of issues providers need to consider when entering these arrangements with physicians.  For further details, contact your health care attorney or compliance officer.  By all means, pull your medical director agreements off the shelf and make certain that they are legally compliant.  You cannot assume that those arrangements will not be scrutinized by government enforces.

See – Fraud Alert: Physician Compensation Arrangements May Result in Significant Liability June 9, 2015.

Final Rule Under the Medicare Shared Savings Program Released

June 11th, 2015

CMS Releases Final Revised Shared Savings Program Regulations

Shared Savings Program regulationsThe Center for Medicare and Medicaid Services (CMS) has issued final regulations revising requirement applicable to Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program (MSSP).  CMS previously issued proposed rules and a notice of rulemaking in December of 2014 which were finalized on June 9, 2015 after consideration of comments received during the comment period.  The new rules are effective in August with just a few exceptions and contain some fairly significant changes in the rules that govern ACOs and applications under the MSSP.

We will be reviewing the regulations in detail and providing a comprehensive summary, so check back or grab our RSS feed.

A bullet form listing of some of the key changes in the final regulations include:

  • New requirements for ACO specific contracts or contract amendments.
  • Additional details on the ACO requirement to establish mechanisms for shared governance among ACO participants.
  • New standards for submitting a list of ACO participants/supplier.
  • Expansion of program integrity and provisions to protect beneficiaries.
  • Rules regarding adjustment to benchmarks resulting from mergers or acquisitions.
  • ACOs are required to maintain a dedicated webpage and are required to post certain information using CMS templates on that web page.  Information that must be posted included:
    • identification key clinical and administrative leaders
    • identification of the types of ACO participants involved in the ACO
    • quality measurement performance information
    • information regarding shared savings payments and losses
  • Specific requirements for ACOs to submit executed provider agreements along with their initial application and upon renewal.
  • CMS authority to take action against or terminate and ACO that does not continue to meet the minimum assigned beneficiary standards.
  • Rules regarding modification to benchmarks during a pending performance year.
  • A prohibition on an ACO provider filling the “beneficiary representative” slot on the ACO’s governing body.
  • Additional flexibility regarding the qualifications of the ACO’s medical director.
  • A transitional process from the Pioneer program to the MSSP.
  • Revised process for beneficiaries to elect to opt out of data sharing.  Beneficiaries will only be permitted to opt out directly through CMS.
  • Expansion of beneficiaries that are included in aggregate reports.
  • Removal of the requirement for ACOs to provide opt-out information to beneficiaries before requesting claims data.
  • Waiver of the three-day inpatient stay rule for certain nursing home admissions during Track 3.
  • Several revisions to the beneficiary assignment process.
  • Changes to the annual shared savings repayment mechanisms.
  • Permitting a second year of Track 1 participation for certain ACOs.
  • Revisions to the manner in which ACOs may select their MSR/MLR under Track 2.
  • Provision for prospective assignment of beneficiaries to Track 3.
  • Sharing of up to 75% of savings in Track 3.
  • First year benchmarking remains unchanged.
  • Revision of  benchmarking methods applicable to ACOs entering their second and subsequent contract periods.   Benchmarking years will be equally weighed to reflect the average per capita shared savings.

Clinically Integrated Networks – Fee Sharing Procedures

March 25th, 2015

Jointly Providing Health Care Fee Information to Payers 

As health care provider networks move down the path toward clinical integration, we are often asked to provide guidance on how information can be jointly provided to payors.  The antitrust laws recognize that collective sharing of some pricing information, even by otherwise competing providers, can be beneficial and does not necessarily violate antitrust laws.  However, there are significant limitations on what can be jointly provided and how the information can be shared.

At the outset, it should be clarified that collective negotiations by competing providers who are not financially or clinically integrated should never take place and constitutes a per se violation of federal antitrust laws.  Prohibited activities include any action in contemplation of or in furtherance of an agreement on fees or other aspects of reimbursement.  It is unlawful for a non-integrated group of competing providers to agree on or suggest a central fee schedule.  Any activity relating to prospective fees should be avoided.

Competing providers can jointly provide information on fees currently being charged or that have been charged in the past as long as certain safeguards are implemented and strictly followed.  The FTC and DOJ have stated that the joint provision of historic fee information to payors raise little anticompetitive concerns as long as the following conditions are met:

1.         Collection of fee information is managed by a third part;

2.         Any information that is made available to competing providers must be at least three (3) months old;

3.         Data provided to participating providers must meet further requirements, including:

a.         It must be aggregated so recipients cannot identify the prices charged by individual providers;

b.         There must be at least five (5) providers reporting data that goes into an integrated statistic; and

c.         No provider can represent more than twenty-five percent (25%) on a weighted basis for any statistical item.

I normally recommend that provider groups create antitrust policies that address the provision of fee information to payors and other sensitive antitrust issues.  Even an organization that is significantly clinically integrated should be concerned with the method used to convey fee information to payers.

Adopting and applying specific antitrust policies is a step toward assuring antitrust compliance.  Antitrust policies should include detailed processes for conveying fee information that incorporate the parameters applicable to the organization.

Bundled Payment Arrangements for Clinically Integrated Networks

February 27th, 2015

Bundled Payment and ACO Arrangements – Clinically Integrated Payment Methodologies

Bundled Payment Arrangements CINsBundled payment involves an agreement between a provider group and a payor for the management of a defined segment of care for an agreed price. A bundled payment would include one payment for all providers involved in the episode of care that is within the bundled area. All providers providing care within the episode of care are entitled to be covered under the bundled payment.

The idea behind bundled payment is to place providers across the spectrum of the applicable care continuum at financial risk and to provide shared financial incentives. In theory, this forces otherwise disjointed providers to cooperate to better coordinate care and to coordinate at a higher level with other elements of the continuum of care.

Bundled payment is one of the primary reasons why providers are mobbing toward clinically integrated health care systems. CINs provide a mechanism for providers across the continuum of care to agree upon protocols and other mechanisms to help them be more cost efficient in the management of bundled areas of care while maximizing the quality of care and outcomes provided to patients.

The Center for Medicare and Medicaid Services has developed a Bundled Payment Program through its Innovation Center. (76 Fed Reg. 53, 137, August 25, 2011). The BPCI (Bundled Payment Initiative) creates four models for bundled payment under the Medicare program and provides some guidance regarding the models that may be offered in the private pay area. However, there is no guarantee the private models will follow the CMS model.

Bundled payments can be either prospective or retrospective in nature. Where the payment is retrospective, Medicare pays in a fee-for-service basis subject to later reconciliation if the episode of care is classified under a bundled payment category. Retrospective bundled payment is contrasted with prospective bundling where the bundling classification is defined in advance and one single, predetermined amount is paid based on the predetermined amount.

As mentioned above, clinically integrated organizations provide a useful mechanism to facilitate bundled payment mechanisms. Under the Medicare program, there are two potential roles that a CIN can be either an Awardee or a facilitator. An Awardee  agrees to assume payment risk under bundled payment initiatives. It is their responsibility to enter contractual arrangements with the full continuum of care that is required to service the bundled episode. Awardees must contract with “episode initiators: which can include physician groups, hospitals, and potentially other providers depending on the model of bundled care that is involved.

For more information on bundled payment mechanisms and structuring clinically integrated organizations, feel free to contact John Fisher in our health care practice group.

Ambulatory Surgery Centers – Federal Settlement Highlights Safe Harbor Requirements

September 29th, 2014

ASC Investments Safe HarborsA Tennessee based ambulatory surgery center company has agreed to pay damages to a former employee who filed a suit alleging that physician investments in local surgery center entities violated the Anti-kickback Statute.  The case highlights some of the unique kickback issues that are present in ambulatory surgery center structure.  Specifically, the case demonstrates how investment terms that are intended to assure compliance with the safe harbor regulations under the Medicare Anti‑Kickback Statute (42 U.S.C. § 1320a-7b(a)-(b)) can create evidence of non-compliance if the initial terms of the offering relate, in whole or in part, to the volume or value of expected referrals from the investor in the ASC venture.

In order to comply with safe harbor requirements, ASCs must generally require investing physicians to use the facility as an extension of their medical practices.  However, if the terms of the investment are based on the volume or value of referrals, those same requirements become evidence that referrals are being required in exchange for remuneration.  In the Tennessee case, the ASC management company purchased controlling interests in local surgery center entities at a high multiple of earnings.  Physicians who were referral sources were offered investments at less than 1/3 of the value that was applicable to the non-referring management company.  That differential in value was evidence of “remuneration” under the Anti-kickback Statute and also indicated that investment terms were more advantageous based on expected referrals.

Structuring ambulatory surgery center investments to comply with Anti-kickback requirements is an extremely complex task.  Indications of compliance can become evidence of non-compliance depending on initial investment terms.  Cases such as the Tennessee case illustrate the problems that can occur when safe harbor requirements are not complied with and when decisions on investment or exclusion are made based on past or anticipated referrals.  The Tennessee case also illustrates how these issues come to light.  The Tennessee case was filed as a whistleblower case by a former administrator of one of the local surgery centers who walked away with a settlement in the millions of dollars.

We have published a more complete analysis of the Tennessee case which you can access through the following link   ASC-Investment-Federal-Case

Is your EHR Donation Agreement in Compliance?

May 23rd, 2014

The EHR donation regulations allow certain qualified entities to provide nonmonetary remuneration to physicians and other health care providers to obtain electronic health information systems without violating the Anti-Kickback Statute or the physician self referral laws.  Hospitals and other organizations have structured EHR donation programs around the existing exception.  The regulations that permitted hospitals to make payments on behalf of physicians for EHR technology was set to expire on December 31, 2013.

The Center for Medicare and Medicaid Services released final regulations on December 27, 2013, which extended the protections of the EHR donation regulations through December 31, 2021.  However, it is important that providers examine their EHR donation agreements to determine whether continued payments under the agreement comply with federal law.  Many EHR donation contracts contain automatic expiration clauses that terminated the agreement on December 31, 2013.  If those agreements have not been properly extended, payments that may have occurred under those agreements following expiration may raise compliance issues.

Providers should not assume the continued payments are protected under the extended EHR donation expiration date.  In many instances, entering a new agreement or amendment of existing agreements will be required in order to continue to qualify donation amounts under the application exceptions.

Primary Care Integration Strategies – The Division Model Group Practice

May 21st, 2014

 Divisional Merger IntegrationIt is no secret that the role of primary care is central to the creation of systems to respond to health care reform and changing reimbursement models.  To the extent primary care providers have not already relinquished their strategic positions by becoming employed, entering provider service agreements or service line management agreements with hospital controlled systems, primary care providers maintain a strong position in the market.

Primary care groups are still faced with the need to create or participate in organizations that provide for the best means to manage patient care.  Primary care groups are seeking strength in numbers by creating larger groups.  The goal is to best maintain their competitive position, to diversify risk, to create efficiencies through shared savings opportunities, and to maintain appropriate levels of influence over care cycles, protocols and division of emerging, episodic-based payment.

In order to achieve these goals, some independent primary care groups are considering merger with other groups.  Oftentimes, merging providers will seek ways to maintain some degree of intra-office independence while still taking advantage of the benefit of a larger group.

Provider mergers and acquisitions, particularly between competing independent practices in the same specialty area, can create sensitive antitrust issues.  Generally, competing providers are prohibited from agreeing to the price of services.  However, otherwise competing providers who legitimately merge into a single group are legally incapable of conspiring because they are a single entity.

The tension between the desire to maintain a degree of independence and the need to effectively merge practices leads to consideration of what has become known as a “divisional merger.”  A divisional merger is similar in many ways to the concept of a group practice without walls that was prevalent during the 1990s.  Under this model, individual offices or groups of offices form divisions that maintain some degree of operational and financial independence.  Structuring divisional model groups can be extremely tricky.  Balance needs to be created in the amount of financial, governance, and operational authority that is ceded to the central board of directors and maintained in the divisions.  If too much authority is maintained at the divisional level, there is a risk that a “failed merger” will have taken place.  If a failed merger is found, the individual providers or divisions will be considered to be independent and capable of conspiring in violation of antitrust laws.

Divisional mergers raise a host of additional legal and business issues.  A divisional model group must be structured to comply with Stark Law and Anti-Kickback prohibitions.  Generally, the group and its financial structure must comply with applicable Stark Law exceptions and must be structured as a qualifying “group practice.”  An issue that arises in virtually all divisional model structures involves the treatment of ancillary revenues; in particular, “designated health service” revenues under the Stark Law.  Although primary care practices tend not to generate as much DHS revenue as specialty practices, clinical laboratory and diagnostic revenues are common.

A divisional merger will be subject to all of the same transactional and due diligence issues that apply to any other type of merger or acquisition.  Each participant will need to assess the risk associated with merging under one entity with other participants.  This involves a lengthy process of due diligence and addressing issues that are raised through the process.  Oftentimes, numerous sets of legal counsel are involved in the structural and transactional issues.

In the end, assuming that the divisional merger is properly structured, the combined entity can create significant benefits to primary care participants.

Antitrust Policies Avoiding Spillover – Clinically Integrated Networks

May 19th, 2014

Antitrust “Spillover” In Integrated Networks

Even clinically or financially integrated networks need to take affirmative steps to limit what has been labeled by enforcement agencies as “antitrust spillover.”  This term generally refers to the affect that an agreement on price within a network might have on pricing that occurs outside of the network.  It is not wise for an organization to openly debate fees among competing provider members, even if the organization is clinically integrated.  Affirmative steps should still be taken to limit distribution of sensitive fee information.

Clinically integrated networks should implement detailed antitrust policies that reduce any adverse effects on an agreement on pricing.  Ideally, specific pricing terms should be lock boxed.  Perhaps most importantly, the clinically integrated network should assure that all providers receive training on the content of the antitrust policies and general antitrust law considerations.  Training should be verified and documented in the same manner as other compliance training.

Standards for Achieving Clinical Integration – How Much Is Enough

May 19th, 2014

Clinical Integration AttorneyI am often asked to provide my opinion on the standards that must be met in order to be considered to have achieved clinical integration.  Clinical integration provides some significant benefits under the antitrust laws.  Failure to meet clinical integration standards can have some significant downsides for providers who are attempting to adapt to health care reform by establishing new organizational models to manage care.

There is no single test to determine whether an organization is clinically integrated for antitrust purposes.  The DOJ/FTC Joint Statement on Antitrust Enforcement Policy in Health Care provides some very general guidance on factors that are indicative of clinical integration.  More detailed analysis of clinical integration requirements can be found in several advisory opinions that have been issued by the FTC.  Analysis of all available resources makes it clear that there is no single formula for achieving clinical integration and each organization will be unique in the mechanisms and processes that are used to achieve required levels of collaboration and interdependence between providers.  I can sense a degree of frustration when I am unable to provide a certain answer of the precise conditions that must be in existence to meet clinical integration tests.  I believe some of the uncertainty is due to the fact that clinical integration is a system and a process rather than a static model of operation.

We are certainly able to flush out the primary elements of a clinically integrated network.  An organization that wishes to create a CIN should clearly set its objectives, define the mechanisms that it intends to create, and should develop a plan to move toward achievement of defined goals and operation of the CIN mechanisms.  Too much focus on precisely when clinical integration is achieved tends to place the emphasis on the wrong factors and assumes that clinical integration is an end in and of itself rather than a system and a process that much be created and continuously operated.  Clinical integration changes the very fabric of how health care is delivered.  It does this by reshaping the culture in which health care providers operate.  It is not something that can be achieved overnight.  Rather, it is a continual process of growth and development.

If the focus is on creation of the system and processes, the antitrust benefits will naturally flow.  Therefore, we should be cognizant of the way that clinical integration is defined under the antitrust laws as we structure clinically integrated organizations.  But we should avoid getting bogged down in questions about how much integration is enough.

 

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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