March 2011 Archives

March 30, 2011

The Regulations are coming! Ten things that we already know about Accountable Care Organizations.

If the rumors are true, tomorrow the Centers for Medicare and Medicaid Services, the Office of the Inspector General and the Federal Trade Commission will be releasing voluminous regulations governing the formation of Accountable Care Organizations ("ACO") and the Medicare Shared Savings Program.  But before we receive all the minutiae of the regulations, we wanted to provide a brief overview of what is already known about ACOs.

1. The purposes of ACOs are to: (1) facilitate coordination and cooperation, (2) improve the quality of care and (3) reduce unnecessary costs.

2. ACOs were created by the Affordable Care Act, which was signed by President Obama approximately one year ago.

3. In order to be an ACO, providers will have to develop a formal legal structure to receive and distribute the shared savings that are at the heart of the ACO program.

4. ACOs will have to affiliate with enough primary care providers for a minimum of 5,000 beneficiaries and will need to agree to participate in the program for a minimum of three years.

5. As this system will be based on data and evidenced-based medicine, ACOs will be required to have processes in place to "(a) promote evidenced-based medicine, (b) report the necessary data to evaluate quality and cost measures" and "(c) coordinate care."

6. ACOs must be able to demonstrate patient-centered criteria.  However, we will have to wait for the regulations to determine how CMS defines "patient-centeredness."

7. Patient experience will be one of the quality measures included in the program, along with patient outcomes and utilization.

8. ACOs will be able to be formed using a variety of different business models.  The statute specifies the group practices, networks of practices, joint ventures between hospitals and physicians and hospitals employing physicians will all be acceptable and it is possible, through the regulations, that the Secretary will bless other business models.  In crafting a business model, state-specific issues (such as corporate practice of medicine and possibly insurance regulations) will likely play a role.

9. ACOs will have to be structured to comply with the stark law, the Anti-Kickback Statute, existing Medicare rules as well as state fraud & abuse laws (corporate practice of medicine, fee splitting, etc.)  While there may be some new exceptions and safe harbors created, ACOs are going to be given carte blanche to disregard existing fraud and abuse laws.

10. The anticipated start date of the program is January 1, 2012 and providers that are appropriately structured can enroll in ACOs after that date.

It is important for providers to understand that significant time and money will go into establishing an ACO and there is no guarantee that the shared savings will lead to a recoupment of these start-up costs.  However, ACOs, along with several other new payment models that will be tested as part of the Affordable Care Act, may allow providers to share in savings achieved through coordination of care and increased use of quality data.

Please stay tuned for future articles and blog entries about Affordable Care Organizations once the regulations are published.  If you have any questions regarding Affordable Care Organizations please contact Andrew Wachler, Amy Fehn or Alicia Chandler at 248-544-0888.

March 30, 2011

Groups Seek Additional Delay In Face-to-Face Encounter Requirement

Thirteen medical societies and several senior citizen advocacy groups have requested that CMS delay the enforcement of the new face-to-face encounter requirement.  These groups are seeking to delay the effective date to no sooner than July 1, 2011.  This new requirement stipulates that physicians, or a nurse practitioner working with the physician, conduct an in person consultation before the patient is covered by Medicare for certain procedures.  The requirement, which was enacted by the Affordable Care Act, was already delayed from  its original effective date of January 1, 2011, to April 1, 2011.  For a full explanation of the rule and its requirments, please see a recently authored article by Wachler & Associates attorneys Amy K. Fehn and Jennifer Colagiovanni entitled New Audit Risk for Home Health Agencies: Face to Face Certification Requirements.

Regardless of whether the new rule is delayed, having an up to date and effective compliance program will be necessary to ensure Medicare coverage of services.  To review an existing compliance program, or create a new program, contact an attorney at Wachler & Associates at 248-544-0888.

March 16, 2011

Proposed Bill Seeks to Strengthen Health Care Enforcement Tools

A Republican Senator out of Iowa, Chuck Grassley, has introduced a new bill to the Senate.  This bill, which is entitled the Strengthening Program Integrity and Accountability in Health Care Act of 2011, seeks to amend the Social Security Act in a way that prevents improper billing, either through fraud or abuse, and waste in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP).  These amendments would serve to bolster and expand upon the prevention measures implemented in last year's Patient Protection and Affordable Care Act.

This Proposed legislation, which is part of a larger trend towards eliminating fraud and abuse in the health care arean, highlights the importance of providers maintaining up to date and comprehensive compliance programs.  To discuss new and existing compliance requirements and ways to meet these requirements, please contact a Wachler & Associates attorney at 248-544-0888. 

March 11, 2011

State Attorney Generals Have Workshops in HIPAA Enforcement

The Department of Health and Human Service's Office for Civil Rights will be conducting a series of workshops to help educate and train state Attorney Generals in enforcing the Health Insurance Portability and Accountability Act of 2009 (HIPAA).  These workshops will include reviews of HIPAA and state privacy laws and the new enforcement role of the Attorney Generals as promulgated under the Health Information Technology for Economic and Clinical Health Act (HITECH).

These workshops are part of a larger plan to increase awareness about HIPAA compliance and enforcement.  Experts anticipate an increase in HIPAA related enforcement activity in the coming months.  To discuss possible improvements to your current compliance program, or to develop a new program, contact a Wachler & Associates Attorney at 248-544-0888.

March 9, 2011

GAO Report Discovers Waste in Government Programs

The Government Accountability Office released a report on March 2, 2011, which concludes that inefficiencies and duplication in Government Programs are costing taxpayers billions every year.  This report, entitled "Opportunities to Reduce Potential Duplication in Government Programs, Save Tax Dollars and Enhance Revenue," was issued to aid lawmakers in setting the federal budget.  The report claims that 10% of all Medicare payments are either fraudulent or otherwise improper and that these payments cost the federal government roughly $48 billion.  The report goes on further to specifically call on CMS and HHS to reign in these, and other health care related costs.  Reports such as this will undoubtedly increase audit activity from CMS contractors in an already aggressive audit environment.  If you are the subject of an audit from a RAC, ZPIC, MAC or other Medicare or CMS contractor, please contact a Wachler & Associates attorney.

March 4, 2011

Justice Department Seeks Clarification on Health Care Reform Suit Ruling

The Justice Department is seeking clarification on a ruling made by U.S. District Court Judge Roger Vinson.  Judge Vinson, in his ruling on the implementation of the Patient Protection and Affordable Care Act, suggested that the government was enjoined from implementation of the Act.  The DOJ now wants the Judge to clarify whether or not there is an injunction on the implementation of the Act.  This injunction would only be applicable to the 26 states that were a party to the suit.

The ruling on this case could have a significant impact on individuals and providers in the affected states and should be carefully watched.  For information on health care reform and compliance with the various provisions, please contact a Wachler & Associates attorney. 

March 2, 2011

Recent RAC Activity

CGI, the Recovery Audit Contractor (RAC) for Region B, recently removed four DRG validation issues from its list.  This means that providers in Region B will no longer be subject to RAC audits on these particular procedures.

Connolly has added several new RAC issues to its CMS approved list.  One issue, Duplicate Claims, has been added for outpatient hospital claims.  Twelve issues have been added to DRG validation claims, and twenty-four issues have been added for medical necessity claims.  Providers in Region C need to be aware and prepared for these new issues being audited.

Some examples of the new medical necessity issues include: Skin graft and/or debridement DRG 577; Endocrine, nutritional and metabolic disorders DRG 639; Acute inpatient admission, MS-DRG 491.  For a full list of the new issues in Region C, please visit Connolly's website.

DCS, the Region A RAC, recently added four new issues to its CMS approved issues list.  All of the new issues were DRG validation claims.  Thus, providers in RAC Region A need to be aware of these new issues now subject to an audit.