Tuomey Court Has A Lot to Say

bcbs lawsuit

 

By: Jeff Cohen

The Tuomey decision, U.S. Court of Appeals case out of South Carolina, contains important lessons for physicians, especially as it relates to (1) compensation arrangements with hospitals, (2) proper compensation arising in connection with the provision of designated health services (“DHS”), and (3) the advice of counsel defense.

The concept of DHS arises largely in the context of the federal Stark Law, which in pertinent part (1) forbids physicians from owning and referring to providers of DHS (e.g. PT, rehab, diagnostic imaging, home health, DME, clinical laboratory, inpatient and outpatient hospital services), (2) describes how medical practices can provide DHS to their own patients, and (3) forbids even physicians within a practice from allocating DHS profits on the basis of who ordered or referred to them.

The Tuomey case involves a whistleblower action filed against a not for profit hospital system.  The original jury in that case decided that the system didn’t violate the False Claims Act, but the appellate court set aside the verdict using facts and testimony that had be excluded from the jury trial, Tuomey Healthcare System was found to have knowingly submitted over 21,000 false claims to Medicare and the government was awarded over $237 Million (most of it in the form of punitive damages).  The government (which often advances the plaintiff’s—“relator” case in whistleblower cases) filed a motion for a new trial, which the trial court granted and the appellate court affirmed.

The case involves the following:Continue reading

Is an ACO Right for You? The Complete ACO Checklist for Providers

AcoBy: Valerie Shahriari

As the movement to value based arrangements continues many providers are considering joining an Accountable Care Organization (ACO).  At the same time, regulators from the Federal Trade Commission (FTC) and the HHS Office of Inspector General (OIG) are signaling increased scrutiny of Accountable Care Organizations and other value based payment arrangements, especially those making creative use of the antitrust and fraud and abuse waivers in place for Medicare ACOs.  A recent article states that claims of higher quality of care may help in defense of antitrust action.  Tracking and organizing results that reflect efficiencies and quality improvements is obviously a must but before a provider even considers joining an ACO, the following questions must be asked and answered:

  1. What level of risk are you willing to assume?
    1. First know what level of risk you are willing to assume. For instance, are you comfortable assuming risk at all or do you want to enter this area more slowly and share in only the savings?  A core challenge when converting to a value based, rather than fee for service system, is the lack of consistency in payment measures.
  1. What are your baseline metrics for the quality measures?
    1. The ACO will identify quality measures as part of the agreement. Currently there is a lack of a single set of metrics adopted by all payer sources.  To negotiate your position, you must know your baseline and whether you can meet the benchmarks identified.  Quality metrics can include for example, HEDIS measures, AHRQ measures, and CMS measures.

Continue reading

Medical Necessity and Payment: Who Decides?

medical necessity kpgBy: Karina Gonzalez

There is nothing readily understood about the term medical necessity.  In healthcare it is the “overarching criterion for payment”.  There is no payment for services or supplies if there is no medical necessity to support it.   Today, every provider at some time is faced with a denial because of lack of medical necessity.  Physician providers will usually hear that payors do not get in the way of the physician-patient relationship.  Payors typically state that they never tell a physician how to practice medicine and a denial based on lack of medical necessity is for purposes of payment only.  However, what provider, on a routine basis, will continue to order care and services which medically unacceptable and not supported for payment purposes?

The definition of medical necessity varies from one commercial plan to another. Federal law such as Medicare has its definition and so does state law under programs such as Medicaid.  Various medical associations such as the AMA also define medical necessity.

Generally, medical necessity refers to services or supplies which are required for the treatment of an illness, injury, diseased condition or impairment and which is consistent with a patient’s diagnosis or symptoms and are in accordance with generally accepted standards of medical practice.  Services or supplies must not be ordered only as a convenience to the patient or provider. Of course care and services which are investigational or unproven are not considered medically necessary.Continue reading

Cigna Continues Attack on Out of Network Providers

By: Karina Gonzalez

Cigna filed a multimillion-dollar federal lawsuit against 11 Indiana based Ambulatory Surgical Centers for billing fraud in allegedly failing to collect out-of-network cost share obligations from customers. In line with Cigna’s ongoing practice, it stopped paying the  Center’s claims and demanded return of  monies paid and filed an injunction against the Centers to halt fee-forgiving models in the future.  Cigna’s definition of fee forgiveness involves a provider accepting an insurer’s payment and then waving in full or in part the cost share obligations of its customers.  Cigna will deny the entire bill, or will claim it made an overpayment and demand return of all monies paid.  It consistently leaps to the conclusion that if the patient did not pay his/her responsibility or was not billed for it then there is no insurance coverage and essentially no payment will be coming from Cigna to the provider. This is exactly the situation that many Florida out-of-network providers are facing when they provider services to Cigna customers.

Is Cigna applying this same inquiry to its in-network providers who may also waive or forgive a co-payment or deductible because a patient is unable to pay?  Many out-of-network providers are voicing objections because they have no contractual relationship yet Cigna’ believes that it has unilateral authority to enforce a contractual requirement against them.   Although Florida has enacted a prohibition on waiver of co-payments and deductibles it does not support Cigna’s ongoing practice of denying all payment and providing no coverage for the service for what it terms as a practice of fee-forgiveness.

How to Get Managed Care Companies to Pay For Your Practice's Improvements

managed care moneyBy: Valerie Shahriari

Florida’s providers are buzzing with questions about value based care, asking why now? Is it a fad? Will it really ever be a widespread form of payment? Why does Florida seem farther behind the value based curve than other markets?

While there are more aggressive markets in other parts of the country, the bottom line is this: CMS changes are coming and they will not be stopped.  The government has invested too much money to turn around at this point.  Here are just a few examples of why:

  • The CMS Value Based Program with hospitals is already implemented;
  • Center for Medicare and Medicaid Innovation is piloting NUMEROUS programs covering many physician specialties
  • CMS expanded the Medicare Shared Savings Program to 3 tracks.
  • A new Merit-Based Incentive Payment for Physicians, Physician Assistants, Nurse Practitioners, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists will be apply to payments for services furnished in 2019.

The train has left the station. Providers will now shift from fee for service to value based payments with CMS.  To be successful and still have a profitable business, clinical integration and quality improvements will need to be implemented to improve your practice whether you are hospital based or office based AND whether you are employed by a hospital or in private practice. These changes will be implemented for all of your patients as you will not distinguish in your level of service between patients with managed care as the payor rather than CMS.  This essentially means that managed care payors will reap the benefits of these improvements in your practice.  If you do not have a value based contract in place with the managed care payors they will not be sharing one dime with you.  They will reap the benefits of your improvements AND keep the money!  And by the time you get around to a managed care contract that is value based, the shared savings opportunities will be less than if you began those discussions now. Continue reading

SB1138 List

SB 1138

The following Florida Senators are slated to have a role in regards to SB 1138:

Filed By:

Senator Jeff Clemens (R), Palm Beach County; (561) 540-1140; [email protected]

Referred to:

Children, Family & Elder Affairs Committee

Chair: Senator Eleanor Sobel (D), Broward; (954) 924-3693; [email protected]

Vice Chair:  Senator Thad Altman (R), Brevard; (321) 868-2132; [email protected]

Senator Charlie Dean (R), NW Central Florida; (352) 860-5175; [email protected]

Senator Nancy Dietert (R), Sarasota/Charlotte; (941) 480-3547; [email protected]

Senator Rene Garcia (R), Miami-Dade; (305) 364-3100; [email protected]

Senator Travis Hutson (R), Volusia/Flagler; (386) 446-7610; [email protected]

Senator Jeremy Ring (D), Broward; (954) 917-1394; [email protected]

 

Appropriations Subcommittee on Health & Human Services

Chair: Senator Rene Garcia (R)

Vice Chair:  Senator Christopher Smith (D), Broward; (954) 321-2705;                [email protected]

Senator Joseph Abruzzo (D), Palm Beach; (561) 791-4774; [email protected]

Senator Aaron Bean (R), Nassau; (904) 346-5039; [email protected]

Senator Lizbeth Benacquisto (R), Lee; (239) 338-2570; [email protected]

Senator Denise Grimsley (R), South Central Florida; (863) 386-6016; [email protected]

Senator Garrett Richter (R), Lee/Collier; (239) 417-6205; [email protected]

Senator Eleanor Sobel (D)

 

Appropriations Committee

Chair:  Senator Tom Lee (R), Hillsborough; (813) 653-7061; [email protected]

Vice Chair:  Senator Lizbeth Benacquisto (R)

Senator Thad Altman (R)

Senator Anitere Flores (R), Miami-Dade; (305) 270-6550; [email protected]

Senator Don Gaetz (R), Panhandle; (850) 897-5747; [email protected]

Senator Bill Galvano (R), Manatee/West Central Florida; (941) 741-3401; [email protected]

Senator Rene Garcia (R)

Senator Denise Grimsley (R)

Senator Alan Hays (R), Lake; (352) 742-6441; [email protected]

Senator Dorothy Hukill (R), Volusia; (386) 304-7630; [email protected]

Senator Arthenia Joyner (D, Hillsborough; (813) 233-4277; [email protected]

Senator Jack Latvala (R), Pinellas; (727) 793-2797; [email protected]

Senator Gwen Margolis (D), Miami-Dade; (305) 571-5777; [email protected]

Senator Bill Montford (D), Panhandle; (850) 487-5003; [email protected]

Senator Joe Negron (R), Martin/St. Lucie/Indian River; (772) 219-1665; [email protected]

Senator Garrett Richter (R)

Senator Jeremy Ring (D)

Senator David Simmons (R), Seminole; (407) 262-7578; [email protected]

Senator Christopher Smith (D)

 

 

How to Get Managed Care Companies to Pay for Your Practice’s Improvements

managed care moneyBy: Valerie Shahriari, via Healthcare Reimbursement Blog

Florida’s providers are buzzing with questions about value based care, asking why now? Is it a fad? Will it really ever be a widespread form of payment? Why does Florida seem farther behind the value based curve than other markets?

While there are more aggressive markets in other parts of the country, the bottom line is this: CMS changes are coming and they will not be stopped.  The government has invested too much money to turn around at this point.  Here are just a few examples of why:

  • The CMS Value Based Program with hospitals is already implemented;
  • Center for Medicare and Medicaid Innovation is piloting NUMEROUS programs covering many physician specialties
  • CMS expanded the Medicare Shared Savings Program to 3 tracks.
  • A new Merit-Based Incentive Payment for Physicians, Physician Assistants, Nurse Practitioners, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists will be apply to payments for services furnished in 2019.

The train has left the station. Providers will now shift from fee for service to value based payments with CMS.  To be successful and still have a profitable business, clinical integration and quality improvements will need to be implemented to improve your practice whether you are hospital based or office based AND whether you are employed by a hospital or in private practice. These changes will be implemented for all of your patients as you will not distinguish in your level of service between patients with managed care as the payor rather than CMS.  This essentially means that managed care payors will reap the benefits of these improvements in your practice.  If you do not have a value based contract in place with the managed care payors they will not be sharing one dime with you.  They will reap the benefits of your improvements AND keep the money!  And by the time you get around to a managed care contract that is value based, the shared savings opportunities will be less than if you began those discussions now. Continue reading