Transcript The Affordable Care Act - Tools and Strategies for Managing Health

The Affordable Care Act of 2010
How Does it Affect Network Provider
Members and How Can Your
Network Help?
Heman A. Marshall, III
Christine F. Underwood
Woods Rogers PLC
540.983.7600
www.woodsrogers.com
September 25, 2012
Health Care Reform Law
• Patient Protection and Affordable
Care Act of 2010 (the “Act” or “ACA”;
Pub. L. 111-148) signed March 23,
2010
• Health Care and Education
Reconciliation Act of 2010 (Pub. L.
111-152) signed March 30, 2010
Initially, A Rocky Road
Initial Legal Challenges
• 6th Circuit declared the Act
unconstitutional
• 11th Circuit declared the Act
unconstitutional
• 4th Circuit dismissed the case for lack
of standing
The Act and The Supreme Court
June 28, 2012
U.S. Supreme Court Declared the Act
(mostly) Constitutional
•
•
•
•
Issues Before the Court
Can the Court hear the case?
Is the “Individual Mandate” constitutional?
Is the “Medicaid Mandate” constitutional?
If either or both are unconstitutional, must
the entire Act fall?
The Decision
• 5-4 Opinion
• 2 Majority Opinions – The Chief Justice
and Remainder of the Majority
• Upheld the Individual Mandate as a “Tax”
not as an exercise of the Commerce
Clause
• Upheld “most” of the Medicaid Mandate
• Struck withdrawal of all funds if a State
refuses to participate in expanded
coverage
Effect of the Decision
• We are where we were in 2010!
• Except states can decline to expand
Medicaid and continue to receive
existing levels of support
In short, the Act is alive and well!
Four Major Focuses of the Act
• Provisions applicable to Health Care
Providers
– Hospitals
– Physicians/Physician practices
– Drug and Device Makers
• Provisions applicable to health
insurance plans (private and
government)
Four Major Focuses of the Act
• Provisions applicable to all employers
regarding the workplace and
employer sponsored plans/benefits
• Provisions applicable to CMS funding
for innovation and reform
This Presentation
Addresses
Provisions Applicable to
Health Care Providers
Generally
The Major Direct Effects on Providers:
• Self-Referral Notice Requirements
• So Called “Increased Accountability”
Requirements
–
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–
–
Overpayments
Changes to the Federal False Claims Act
Amendments to the Anti-Kickback Act
Expanded Civil Monetary Penalties
Generally
• Modified Timely Filing Requirements for
Medicare Claims
• Stark II Self-Disclosure Protocol
• Physician/Hospital Ownership Restrictions
• So Called “Transparency” Requirements
• Compliance Mandate
• Medicaid Payment Changes
• Specific Requirements for Tax Exempt
Hospitals
• Value-Based Purchasing for Hospitals
• Readmission Penalties for Hospitals
Major Indirect Effects
Major Indirect Effects
• Creation of ACO concept
• EHR Incentive Program
• Other Alternative Reimbursement
Models
Self-Referrals
Self-Referrals
• Referring physician is required to
inform patients, in writing, at the time
of a referral that patients may obtain
specified services (e.g., MRI, CT,
PET) from a provider other than the
referring physician or another
provider in the same group practice
Self-Referrals
• Notice must list other suppliers who
furnish such services in the area
where the patient resides
• Effective Date: January 1, 2011
Self-Referrals
• June 13, 2010 - CMS published a proposed rule
See 75 Fed. Reg. 40140-2
• Required written notice to include no fewer than
10 other suppliers within a 25-mile radius unless
fewer than 10 suppliers within such radius
• List must include the name, address, phone
number, and distance from the referring
physician’s office location
• The physician must obtain the patient’s signature
on the disclosure notice and retain a copy of the
signed disclosure in the patient’s medical record
Self-Referrals
• The Final Rule was effective January 1,
2011 See 75 Fed. Reg. 73443-73447
• Under the Final Rule, CMS:
– Reduced the number of suppliers that must be
listed from 10 to 5
– Removed the requirement that the distance
from the physician’s office be listed
– Removed the patient signature and retention
requirement
Self-Referrals
State Laws
Also check your state laws –
Many have similar Provisions
Example:
• Virginia Law
– Requires that practitioners, prior to a referral to
a facility, must provide the patient with a notice
in bold print that discloses any known material,
financial interest of or ownership interest by the
practitioner in such facility, and states that the
services may be available from other suppliers
in the community
• Va. Code § 54.1-2964
“Transparency”
Transparency
• The Act requires manufacturers that
provide a payment or other item of value to
a physician (or to an entity or individual at
the request of a covered recipient) to
disclose annually the value, nature,
purpose and recipient of the payment
• Generally applies to device, drug, medical
supply and biologic companies, and
requires reporting payments or transfers of
value of $10 or more ($100 aggregate in
the calendar year)
• Effective Date: March 31, 2013
Medicare Payment Changes
Medicare Payment Changes
• The Act provides a 10% bonus on select
primary care services for physicians in
family medicine, internal medicine,
geriatrics and pediatrics whose Medicare
charges for office, nursing facility and
home visits comprise at least 60% of their
total Medicare charges and to general
surgeons performing major surgery in
health professional shortage areas.
– Effective January 1, 2011 – December 31,
2015
Medicaid Payment Changes
• Medicaid payment rates to primary
care physicians will be raised to no
less than 100% of the Medicare
payment rates for 2013 and 2014.
Tax-Exempt Hospitals
• Requirements (cont.)
– Set a limitation on charges for
emergency or medically necessary care
for eligible individuals not more than the
amounts billed to the insured and
eliminate gross charges;
– Undertake reasonable efforts to
determine whether an individual is
eligible for assistance before engaging
in extraordinary collection actions
Value-Based Purchasing
• The Act establishes a value-based
purchasing incentive payment to
acute care hospitals paid under the
Inpatient Prospective Payment
System based on specific
performance standards
Value-Based Purchasing
• For the first year, incentive payments
will be based on measures related to:
– Acute myocardial infarction (AMI);
– Heart failure;
– Pneumonia;
– Surgeries; and
– Healthcare-associated infections
• Effective Date: On or after October 1,
2012
Readmissions
Readmissions
• The Act defines a “readmission” as
the admission to the same hospital
from which the patient was
discharged, or to another hospital,
within a specified time period (e.g. 30
days) from the date of the patient’s
discharge
Readmissions
• The Act reduces Medicare payments
based on the percentage of
potentially preventable readmissions
for certain conditions
• Effective October 1, 2012, conditions
subject to this provision are AMI,
heart failure and pneumonia and the
readmission period is 30 days
• HHS will publish readmission rates
on a “Hospital Compare” website
Timely Claims Filing
Timely Filing of Fee-For-Service Claims
• The Act reduced the statutory timely
filing deadline for Medicare fee-forservice claims under Medicare Parts
A and B to 1 year (previously 3
years), effective for services
furnished on or after January 1, 2010
Increased Accountability
New Enforcement Tools
By Way of Background
The
“HEAT”
Initiative
HEAT
• In May 2009, DOJ and HHS
announced the creation of the “Health
Care Fraud Prevention and
Enforcement Action Team” (“HEAT”).
HEAT
• Mission of HEAT
– To gather resources across government to
help prevent waste, fraud and abuse in the
Medicare and Medicaid programs, and crack
down on the fraud perpetrators who are
abusing the system and costing us all billions
of dollars
– To reduce skyrocketing health care costs and
improve the quality of care by ridding the
system of perpetrators who are preying on
Medicare and Medicaid beneficiaries
HEAT
• Mission of HEAT (cont.)
– To highlight best practices by providers
and public sector employees who are
dedicated to ending waste, fraud and
abuse in Medicare
– To build upon existing partnerships
between DOJ and HHS such as
Medicare Fraud Strike Forces to reduce
fraud and recover taxpayer dollars
Overpayments
Overpayments
ACA Requirements
• Identified overpayments must be reported
and returned within 60 days to the
applicable contractor, intermediary or
carrier along with a written notification of
the reason for the overpayment
• Failure to return such payments within 60
days can trigger liability under the Civil
False Claims Act, 31 USC § 3729(b)(3)
• Effective Date: March 23, 2010
Overpayments
• CMS published a proposed rule on
the reporting and returning of
overpayments on February 16, 2012
– 77 Fed. Reg. 9179
Overpayments
• Under the Proposed Rule, an
overpayment is “identified” if the
provider/supplier has actual
knowledge of its existence or acts in
reckless disregard or deliberate
ignorance of the overpayment
– (Standard is consistent with False
Claims Act)
Overpayments
• CMS acknowledged that time may be
needed to conduct a “reasonable
inquiry” of a suspected overpayment
• Still little guidance as to what is
“reasonable”
• Failure to act “with all deliberate
speed” could result in a determination
of knowingly retaining an
overpayment
Overpayments
• Overpayments should be reported to
Medicare contractors using the
existing voluntary refund process
(See Chapter 4, Medicare Financial
Management Manual)
• Overpayments that may have
occurred within a 10-year look-back
period should be reported
– (Consistent with SOL under False
Claims Act)
Anti-Kickback Amendments
Anti-Kickback Amendments
• The Act amended the Anti-Kickback
statute to state that “a person need not
have actual knowledge” of the statute to
commit a violation
• Previously, regulators had to show specific
intent to commit a violation of the AKS
• Violations of AKS now constitute a false or
fraudulent claim for purposes of the False
Claims Act
• Effective Date: March 23, 2010
Civil Monetary Penalties
Civil Monetary Penalties
• The Act expanded the application of CMPs
to:
– Failure to report and return an overpayment;
– Making a false statement in a provider
enrollment application;
– Making a false statement in a claim for
payment;
– Failure to timely grant access to HHS for
investigations, audits or evaluations; and
– Ordering or prescribing a medical item or
service for an excluded individual
• Effective Date: March 23, 2010
Stark II
Self-Disclosure
Self-Disclosure
• The Act established a self-disclosure
protocol for actual or potential
violations of the Stark Law, and
granted HHS the discretion to reduce
amounts due for violations
Self-Disclosure
• HHS may consider the following factors:
– Nature and extent of the improper or illegal
practice;
– Timeliness of self-disclosure;
– Cooperation in providing additional information
related to the disclosure; and
– Such other factors as HHS deems appropriate
– Self-Disclosure Protocol was published on
September 23, 2010
Self-Disclosure
• March 2012 – CMS submitted a
report to Congress on implementation
of SDP
• Report noted that:
– CMS had received 150 disclosures from
148 providers
– Of the 150, 125 from hospitals, 11 from
clinical labs, 8 from physician groups, 2
CMHC, 2 DME, 1 ambulance company,
and 1 health care foundation
Self-Disclosure
– Six disclosures had been resolved
through settlement, collecting $783,060
(settlements ranged from $60 to
$579,000)
– Most common disclosed violations
include failure to comply with Stark
exceptions for personal service
arrangements, nonmonetary
compensation, rental of office space,
and physician recruitment arrangements
Compliance Plans
Compliance
• The Act requires all health care
providers to implement formal health
care compliance programs as a
condition of enrollment in Medicare,
Medicaid and CHIP
• Effective Date: To Be Determined
Compliance
• Compliance plans are to be based on
“core elements” to be established by
the OIG
• To date, the OIG has yet to formally
publish the “core elements”, but has
advised that it may use the 7
elements described in the Federal
Sentencing Guidelines
Compliance
• Using the Sentencing Guidelines as a
model, the OIG has developed 7
fundamentals of an effective
compliance program:
– Implementing written policies,
procedures and standards of conduct;
– Designating a compliance officer and
committee;
– Conducting effective training and
education;
Compliance
• Fundamentals cont.
– Developing effective lines of
communication;
– Conducting internal monitoring and
auditing;
– Enforcing standards through wellpublicized disciplinary guidelines; and
– Responding promptly to detected
offenses and undertaking corrective
action
Some of the Results to Date
• During Fiscal Year 2011, health care fraud
enforcement actions by DOJ and HHS
recovered nearly $4.1 billion in cases
involving fraud on federal health care
programs
• Apex Medical Group, TN – May, 2012 $4.36 million settlement related to
upcoding
The Effect of “Increased Accountability”
• 2009 – 2011: convictions up 27%
from 583 to 743
• 2009 – 2011: criminal prosecutions
up 78%
• Targeted areas: DME, HHC, therapy
• American Theraputic Corporation –
March 2012 - $87 million verdict
– Owner sentenced to 35 years in prison
The Effect of “Increased Accountability”
• Dr. Jacques Roy - $375 million in
loss – Discovered through data
mining
Provisions Affecting CMS
and Providers
New Initiatives
CMS Innovation Center
CMS Innovation Center
• Established by the Act, the CMS
Innovation Center is a “new engine
for revitalizing and sustaining
Medicare, Medicaid, and the
Children's Health Insurance Program
(CHIP) and ultimately for improving
the health care system for all
Americans.”
– ww.innovations.cms.gov
CMS Innovation Center
• Since opening its doors, the
Innovation Center has introduced 16
initiatives involving over 50,000
providers
CMS Innovation Center
See Handout – Chart of
Current Programs
Accountable Care Organizations
Accountable Care Organizations
(“ACOs”)
• A creature of the Act’s “Medicare
Shared Savings Program” (“MSSP”)
(Section 3022 of the Act)
Basic Structural Formats for ACOs:
• ACO Professionals in Group Practice
Arrangements
• Networks of Individual Practices of ACO
Professionals
• Partnership or Joint Venture Arrangements
between Hospitals and ACO Professionals
• Hospitals employing ACO Professionals
• Rural Health Centers
• FQHCs
ACOs
• Three Models
– Standard: a program that helps a
Medicare fee-for-service program
providers become an ACO
– Advanced Payment Initiative: a
supplementary incentive program for
selected participants in the Shared
Savings Program
– Pioneer Model: a program designed for
early adopters of coordinated care. No
longer accepting applications
ACOs
• Recent Developments
– As of July 9, 2012, there are 154 ACOs
participating in MSSP
– CMS has stated that 2.4 million
beneficiaries are receiving care from
providers participating in ACOs
EHR Incentive Program
(i.e., “Meaningful Use”)
EHR INCENTIVE PROGRAM
• The Medicare and Medicaid EHR Incentive
Programs provide incentive payments to
eligible professionals (EPs), eligible
hospitals and critical access hospitals as
they adopt, implement, upgrade or
demonstrate meaningful use of certified
EHR technology
• EPs can receive up to $44,000 through the
Medicare EHR Incentive and up to
$63,750 through the Medicaid EHR
Incentive (must choose Medicare or
Medicaid)
MEDICARE EHR INCENTIVE PROGRAM
• Medicare EHR Incentive Program provides
incentive payments to EPs, eligible
hospitals, and CAHs that demonstrate
meaningful use of certified EHR
technology
• EPs can receive up to $44,000 over five
years under the Medicare EHR Incentive
Program. There's an additional incentive
for EPs who provide services in a HSPA.
To get maximum incentive payment,
Medicare EPs must begin participation by
2012
MEDICAID EHR INCENTIVE PROGRAM
• Medicaid EHR Incentive Program provides
incentive payments to EPs, eligible hospitals, and
CAHs as they adopt, implement, upgrade, or
demonstrate meaningful use of certified EHR
technology in their first year of participation and
demonstrate meaningful use for up to five
remaining participation years
• Eligible professionals can receive up to $63,750
over the six years
• Medicaid EHR Incentive Program is voluntarily
offered by 43 individual states and territories, and
more states will begin offering the program in
2012
– Check with your State Medicaid Agency for more
information
ELIGIBLE PROFESSIONALS
EPs under Medicare EHR
Incentive Program
EPs under Medicaid EHR
Incentive Program
Doctor of Medicine or
Osteopathy
Physicians (primarily doctors of
medicine and doctors of
osteopathy)
Doctor of Dental Surgery or
Dental Medicine
Nurse Practitioner
Doctor of Podiatry
Certified Nurse-Midwife
Doctor of Optometry
Dentist
Chiropractor
Physician assistant who
furnishes services in a FQHC
that is led by a PA
STAGE 1 vs. STAGE 2 CORE
OBJECTIVES
• July 13, 2010 CMS issued final
regulations defining “meaningful use”
• Regulations only discussed “Stage 1”
criteria
• August 23, 2012 CMS issued final
regulations for “Stage 2” meaningful
use
– See attached comparison charts
Stage 2
• Delays deadline for implementation to
2014
• Nearly all of the Stage 1 core and
menu objectives that were proposed
are being finalized for Stage 2
Stage 2
• Some changes:
– The test of “exchange of key clinical
information” core objective from Stage 1
is eliminated in favor of a more robust
“transitions of care” core objective in
Stage 2; and the “Provide patients with
an electronic copy of their health
information” objective is also eliminated
and replaced with the “electronic/online
access” core objective
Stage 2 cont.
– Final rule adds “outpatient lab reporting”
to the menu for hospitals and “recording
clinical notes” as a menu objective for
EPs and hospitals. There will be 20
measures for EPs (17 core and 3 of 6
menu) and 19 measures for eligible
hospitals and CAHs (16 core and 3 of 6
menu)
Stage 2 cont.
– Final rule reduces some thresholds for
achieving certain measures and
modifies criteria for exclusions to
respond to difficulties commenters
identified in implementing certain
objectives in certain situations, e.g., for
some objectives CMS has added
exclusions based on broadband
availability that allow providers in
rural/underserved areas to achieve
meaningful use with fewer hurdles
Stage 2
• CMS finalized two new core
objectives:
– Use secure electronic messaging to
communicate with patients on relevant
health information (EPs only)
– Automatically track medications from
order to administration using assistive
technologies in conjunction with an
electronic medication administration
record (Hospitals and CAHs)
Alternative Reimbursement Models
Alternative Reimbursement Models
• Bundled Payments
• Comprehensive Primary Care
Initiative
• Patient Centered Medical Home
Are Your Members Ready?
Are your members ready?
• Transparency
– Are your members prepared to operate
in a more transparent health care
system?
• Quality
– Are your members focused on quality as
a compliance issue?
• Accountability
– Are your members prepared for greater
accountability?
Are your members ready?
• Do your members have the right systems
to collect, organize, track, retain and report
information and data accurately and
completely?
• Do your members have security and
privacy protections in place for creating,
transmitting, and storing data?
• Do your members have systems in place
to meet enhanced reporting and disclosure
requirements applicable to their industry
segment?
Are your members ready?
• Do your members and clinicians
understand that quality is a compliance
concern and that quality of care is
increasingly integral to payment?
• Do your members have systems that will
ensure that charting, collection and
reporting of quality data and clinical
documentation are accurate, complete,
and sufficient to justify payment?
Are your members ready?
• Do your members’ compliance
departments have the expertise to address
quality-related compliance issues?
• Are your members’ boards of directors and
management informed about the
heightened role of quality of care under
health care reform?
Are your members ready?
• Do your members have compliance plans in
place?
• Do your members know with whom their
organization does business?
– Do your members have affiliations with
excluded, suspended, or Medicare debt-owing
individuals and entities?
– Are your members prepared to meet new
requirements for background and licensure
checks?
– Are the persons furnishing services through
your members’ organizations qualified to do
so?
Are your members ready?
If the answer to any of these Questions is
“No”, how can your network assist?
- Joint Education
- Joint IT Initiatives to Reduce
Cost
- Development of model polices
and procedures
- Other Areas
Heman A. Marshall, III [email protected]
www.woodsrogers.com