The Affordable Care Act on Trial Again in King v. Burwell

bcbs lawsuitBy: Jackie Bain

The Affordable Care Act is heading back to the Supreme Court this Spring.  The issue presented to the Supreme Court on this occasion is whether the IRS is authorized promulgate regulations to extend tax credit subsidies for coverage purchased through Federal Government’s Health Care Exchange.

The Affordable Care Act allows individuals who purchased health coverage through State-established Health Care Exchanges to subsidize a portion of that coverage through the form of refundable tax credits.  The United States treasury directly pays each eligible taxpayer to offset the cost of the taxpayer’s insurance premium.  However, a majority of States (including Florida) have elected not to establish their own Health Care Exchanges.  In order to provide coverage to persons in these States, the Federal Government set up its own Health Care Exchange marketplace. Continue reading

Hospital Physician Alignments are Tenuous

DME operation

integration1Hospitals, particularly those heading ACO development efforts, are quick to say things like “One day, all physicians will be employed by hospitals.”  Though there is clearly some wisdom under that statement, it’s also a remarkable leap of faith.

Three things are clear in this era of healthcare reform:  (1) healthcare will be provided to more, but with less; (2) there will be a growing move over time to pass financial risk to providers; and (3) those businesses in a position to control both costs and quality (and some say patient satisfaction) are in a position to both survive and even do better than ever.

This leaves the door wide open as to the form of the business that can succeed.  Is it a single specialty mega practice?  Is it a multi specialty medical practice?  How about a hospital?Continue reading

Healthcare Reform Doesn't Have to be All or Nothing

By: Jeff Cohen

pulling hairHealthcare professionals today are constantly faced with views of what’s changing in healthcare, and all of them seem equally convincing.  “One day, everyone will be employed by a hospital” is one of the favorites.  Not surprisingly, the proponents of that perspective tend to be….hospitals.  “Everyone has to merge their practices” is another favorite.  The proponents?  Large super practices, of course.

How does one sort through this?  Who’s right?  The truth is that everyone is seeing part of the whole and is “right.”  But being “right” doesn’t mean right for you.  My opinion?Continue reading

Why Compliance Plans Make Sense

Clipboard with Checklist and Red PenHas your practice implemented a compliance program or considered improving an existing one?  Is it really necessary?  Prior to the Patient Protection and Affordable Care Act (ACA), the necessity for physician practices to develop compliance plans was merely voluntary.  However, the ACA will now require physician practices to have a fraud and abuse compliance plan in place as a condition of continuing to participate in Medicare or Medicaid programs.  Because the government first published guidelines in the year 2000 for the voluntary use of compliance plans in physician practices and has subsequently enacted a mandate in the ACA for compliance plans, many physician practices are proactively implementing them.  While this compliance plan mandate may be viewed by physicians as yet another administrative burden and expense to the practice, it can have many benefits as well.  Implementing an effective compliance program can have the result of not only reducing liability risks, but can also allow a practice to reap monetary benefits.  In fact, it could be more costly for the practice not to have one!Continue reading

The Preventionists Are Coming!

paul-revereThe popular conception in healthcare is that (1) a new law was passed, (2) it changed everything, and (3) in a bad way.  Over time, however, it should get clearer that, while there was a law passed, the law alone is not driving changes to our healthcare system: it’s our own demographics and behavior.  Most of the tax dollars currently fueling our healthcare system (and arguably our economy) are tied to an aging Boomer population that are soon to drop off the income producing cliff into the Medicare population.  Bye bye income earners; hello ridiculous public healthcare expenditures.  Though it is true that the timing for expanding public spending on healthcare (with the federal mandates aimed at employers and Medicaid eligibility expansion) could not be more poorly timed, the situation is more of a “Perfect Storm” than a surgical strike.

The financial stress of our changing population and of a historic utilization based healthcare system is causing our healthcare system to morph in every way.  “Health insurance,” with increasing cost, copays and deductibles and reduced benefits, is quickly ceasing to look like your father’s 80/20 major medical plan and starting to look more like catastrophic coverage.  Fee for service compensation is fast becoming “spoken” out of existence.  There are more “pay for performance,” “case rate” and other outcome and risk based compensation models than you can shake a stick at.  The simple truths are: payers have to deliver more with less; and patients have to bear more and more of their healthcare expenses.Continue reading

Portal not "Port-All"

doorBy: David Hirshfeld

Whether as a means of satisfying the Stage 2 “meaningful use” requirements of the HITECH Act, or in an effort simply to enhance the efficiency of their practices, many of our clients have been implementing electronic medical records software that includes patient portals.  A “patient portal” is an electronic doorway between patient and practice.  Portals often allow patients to check and download their own treatment records, and to use digital messages as a means of communicating with clinicians.  Portals can be awesome tools with which to enhance your practice, but they need to be implemented thoughtfully.

A portal is often an excellent way in which to add operational efficiencies that reduce costs, increase patient satisfaction, and increase positive outcomes; BUT, if not carefully monitored, they can become inadvertent points of entry for information, the meaning of which can only be appreciated when delivered in a face-to-face office visit, where other aspects of the patient’s condition would be evident (e.g. pallor, swelling, confusion).

Portals should be limited to more benign encounters, such as: patient registration, financial clearance, medical history, appointment scheduling / confirmation, specialty referrals, notification of test results, online bill payment, non-narcotic prescription renewals, follow-up of specific conditions for which there has been a course of in-person treatment that included an agreement as to the use of the portal for follow-up.

I recommend that practitioners train their patients how and to what extent they should use the portal by presenting patients with a “Terms of Use” agreement (that they must sign); and by reminding patients of the Terms of Use if and when they use the portal for an encounter that should have been handled by an in-office visit.

A good “Terms of Use” agreement ought to convey the following information to patients before they use the portal:

  • Identify the proper subject matter to be communicated through the portal and, just as important, the types of communications that should NOT be made through the portal.
  • In addition to communication, what other functions the portal will make available to the patient (e.g. what records can patients view, can they download, can they transmit to other providers, refill prescriptions, help practice to monitor an ongoing condition, etc.).
  • The portal is highly secure, more secure than conventional email, and should be the only way that patients should convey information to the practice other than in-person or, perhaps, on the telephone.
  • Everything conveyed to the practice through the portal will become part of the patient’s medical record.
  • Not only the physician, but other clinicians and practice staff may read communications made through the portal.
  • How quickly, and in what format, will the practice respond to patient communications made through the portal.
  • Whether and on what terms the practice will allow access to records of its minor patients.
  • How modifications to the “Terms of Use” and portal functionality will be conveyed to patients.
  • A primer, as simple as possible, on how to effectively use your practice’s portal.

Portals can be awesome tools with which to enhance your practice; but they need to be implemented thoughtfully, and in conjunction with patient training.

 

ACO Challenges Are Formidable

Final-ACO-RulesHanging this nation’s cost cutting/quality enhancing hopes on Accountable Care Organizations (ACOs) is bound to be frustrating and disappointing.  The ACO model seriously lacks sufficient real world grounding and is no magic pill.  Things like resources, operational capability and alignment (of financial incentives and direction) seem to have been overlooked or undervalued.

The ACO model is based on one fundamental assumption:  an expanded role of primary care physicians can slow cost increases and ensure better coordination of care.  That assumption is flawed for two reasons:  first, there is a large and growing primary care shortage; and second, the financial incentives in healthcare have driven a system based on acute, episodic interactions, leading to enormously fragmented clinical training and care.

We not only have inadequate resources to drive change away from acute, fee for services based care, but rather we lack resources that drive wellness. As one physician with a large hospital system recently said:  “We physicians are not trained to provide healthcare.  We’re trained to intervene when things go bad.”  Asking healthcare professionals and facilities to drive a model based on outcomes and resource consumption is theoretically possible, but a remarkable leap of faith (and training) is required, given they have made their livings off of sick people for so long.  That’s not to say that changing financial incentives from acuity to wellness and outcomes won’t work.  It’s just going to require training and proof that the players can make money with the new mandates.

As far as operations go, those with the greatest access to management, capital, IT and such are also the most expensive—hospitals.  It makes sense that the core objective of healthcare reform is to “squeeze the toothpaste tube” backwards from hospital to specialist to primary care physicians, but it’s a great leap of faith to expect that hospitals will or even can control costs.  In a healthcare system where providers admittedly are rewarded for doing more with more expensive things, the sharp turn required by the new law will require more than just a new law.  With all the current hospital-driven physician acquisitions, the increasing role of hospitals on the ACO issue looks at times more like turf guarding than any real cost-saving, quality enhancing move.

At the end of the day, all players have to answer the question “Did they reduce cost and enhance quality?”  It seems convincing that moving away from the fee for service model will change behavior.  We just need to make sure (1) there are sufficient resources to implement the change, and (2) financial and clinical issues are well balanced.  Time will tell, but meanwhile the current irony is that the most expensive link in the chain is best situated to actually operationalize the ACO concept.

Alignment is critical.  Financial alignment will require the players to believe they can all thrive in the new ACO model, yet physicians are historically leery of any hospital driven system.  In fact, given that hospitals are driving the ACO bus at the moment, the biggest fear among physicians is that they will be left out.  Even among physician-driven ACOs, the tension between primary care physicians and specialists is intense.  How much of any savings will go to primaries vs. specialists is no less divisive than the issue of the hospital/physician split of the shared savings.

Even more critical is the apparent lack of consideration given to the need for patient participation.  Where is the financial incentive for healthy patient choices and the disincentive for unhealthy patient choices?  Moreover, in a culture where more is more, why would anyone want to receive care from an organization that gets more by giving less?  Given further the ability of patients to wander in and out of ACOs and yet charge their ACO with the costs of non-ACO providers (who arguably have no stake at all in reducing expenses), the forecast for patient alignment is gloomy, but their buy in is critical.  It is difficult to see where patients have any stake in this change and would even be inclined to choose to be served by an ACO.  Many noted theorists have drilled on the glaring lack of patient alignment.  Rama Juturu and recent Wall Street Journal editorialists/economist Clayton Christensen have been outspoken about the need to enlist patients in the drive from intervention to prevention.  Patients that flock to ACOs (or whatever) will only do so if they see what’s in it for them.  The only thing an ACO can sell is results, outcomes.  And that’s gonna take time to measure and to sell.

At the end of the day, the threat of ACOs (and any vehicle to control healthcare costs more effectively) isn’t that they won’t work.  It’s that cost concerns will outstrip clinical ones.  While it can be argued that the employment of physicians by traditionally adverse players (like hospitals) will likely reduce the tension between them, it is precisely that tension that has always held the threat of “money over quality” at bay.  What will happen as hospitals and other healthcare players employ more and more physicians?  One can only hope that it is not silence and that, as found in some well established systems in the Midwest and West, respect for the different and necessary roles of ensuring both quality and economic survival will balance out, regardless of the healthcare delivery model that emerges.

Regulation Postponed: March 1, 2013 Health Insurance Exchange Notice Delivery Requirement

The Affordable Care Act (ACA) requires employers to provide all new hires and current employees with a written notice about ACA’s health insurance exchanges (Exchanges), effective March 1, 2013.
On Jan. 24, 2013, the Department of Labor (DOL) announced that employers will not be held to the March 1, 2013, deadline. They will not have to comply until final regulations are issued and a final effective date is specified.

The DOL anticipates issuing the regulations in late summer or fall of 2013. The DOL, it its announcement, cites two reasons for the delay.First, the Exchange Notice (Notice) should be coordinated with the educational efforts undertaken by the Department of Health and Human Services (HHS) and with the Internal Revenue Service (IRS) guidance on “minimum value” requirements. Delaying the Notice will achieve that goal. The DOL also cites its intent to provide employers with sufficient time to deliver the Notice at a time that will be meaningful to the employees receiving it. When ready, the DOL will produce a generic Notice which will meet the law’s requirements.

Final Privacy Rule Affects Clinical Research Organizations

The final HITECH Act rule was published on January 25th, and it includes revisions to HIPAA.  The two things affected by the new rule are (1) compound authorizations, and (2) authorizations for future research.

Compound authorizations are basically authorizations for two separate uses of protected health information (PHI).  The new rule allows combining an authorization for a research study with any other written permission for the same study, such as authorization to participate in the research.  The core elements of a valid authorization remain in place.  The intent is just to provide some flexibility in clinical research settings.

Traditionally, authorizations had to be study specific.  The new rule allows authorizations not to be study specific, but they have to describe future uses or disclosures in a way that patients will understand that their PHI could be used in future research.

Billing for Associates Fraught with Risk

ACO-Payment-300x225You’ve hired a new doctor to join your practice, but it will take several months to get the new doctor on your insurance plans and to add him or her to your group practice.  What do you do?  Can you bill for the new doctor’s services under your own provider name or number?  Can you hold the billing and submit it at a later date?

Billing for the new doctor’s services under the name or provider number of a physician who did not actually perform the service is fraud.  It’s as simple as that.  And it’s a serious offense, punishable as a criminal offence, regardless of the payer involved.  In other words, it’s not true to say “Well, it’s ok to do with HMOs, but not Medicare.”  It’s fraud for every payer.  And, with federal payers, it’s a federal crime!  So what do you do?

Physicians are very limited with respect to Medicare and Medicaid patients.  The new doctor must be added to the practice’s provider number, especially if the practice provides “designated health services” such as PT, rehab, clinical lab and diagnostic imaging.  Most practices time the hiring of the new doctor with adding him or her to the provider number and also ensuring that the new doctor is contracted with various payers, all of which can take several months.

There may be a little more flexibility with respect to PPOs and HMOs, though this is tricky.  These payers are usually adamant about credentialing the new doctor and about having him or her sign a participating provider agreement before providing services to their insureds.  In some very limited circumstances, a payer may expedite the process and may even suggest a billing arrangement that would otherwise constitute insurance fraud, but physicians still need to be careful with these arrangement.  When a payer suggests such an arrangement, it is absolutely essential that the proposal and agreement be in writing and review to ensure regulatory compliance.  Otherwise, the practice and the doctors involved may be subject to fraud based claims—e.g. violations of the state insurance laws and even the federal False Claims Act.