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Physician Payment Sunshine Act
The vilification of physicians continues …
The Physician Payment Sunshine Act has been around for a while now, but things are getting ready to heat up. On August 1, the federal regulations implementing the Physician Payment Sunshine Act go into effect.
The regulations were finalized last February, to “implement the requirements in section 6002 of the Affordable Care Act … . That provision requires applicable manufacturers of drugs, devices, biologicals, or medical supplies covered under [Medicare or Medicaid or CHIP] to report annually to the Secretary certain payments or other transfers of value to physicians and teaching hospitals. [The Act] also requires applicable manufacturers and applicable group purchasing organizations to report certain information regarding the ownership or investment interests held by physicians or the immediate family members of physicians in such entities.”
Medical Economics published a very good summary of the Sunshine Act, “Sunshine Act: 7 things you need to know.” Manufacturers and GPOs on August 1 will start gathering data on physicians with whom they have made a specified payment or other transfers of value or who have investment or ownership interests in the manufacturers or GPOs. The nearly 80 triple-columned pages of regulations define the various terms and explain how the data is to be gathered and reported. The data will be reported to CMS electronically by March 31, 2014 and will be available online to patients and others.
In a related story, Medical Economics reported yesterday that there is now an app for physicians to track reports made regarding them pursuant to the Act.
Hospitals Offer Better Food As Patient Satisfaction Becomes More Important Under Federal Health Law – Kaiser Health News
Administrators say the focus on food has taken on extra importance since Medicare last year began paying them based partly on their patient satisfaction scores, a change that is part of the federal health care law known as Obamacare.
“Food service helps the overall experience,” said Jim McGrody, director of food and nutrition at Rex, as he inspected his kitchen cold room used for brining pickles, curing turkey pastrami and fermenting cabbage into sauerkraut. Several letters of praise from former patients hang in the kitchen.
— Good healthcare, not good food, should be the focus, but sloppy unappetizing food preparation doesn’t say much about the quality of the facility’s healthcare.
See on www.kaiserhealthnews.org
Modern Physician: Survey shows Primary-care docs generating more hospital revenue
While physicians in general generated less net revenue for their affiliated hospitals last year, primary-care doctors generated more, on average, than other specialists, according to a survey of hospital chief financial officers conducted by Merritt Hawkins (PDF), an Irving, Texas-based physician recruitment firm.
According to the survey of 102 CFOs conducted in January, physicians in the 18 specialties tracked by Merritt Hawkins brought in an average of almost $1.45 million to their affiliated hospitals—a 9% decrease from the $1.54 million recorded by physicians in 2010, the last time the survey was conducted. But the revenue generated by the direct admissions, procedures, tests and other services ordered by family physicians, internists and pediatricians equaled almost $1.57 million, which was up around 13% from the almost $1.39 million recorded in 2010. (Although it was still below the almost $1.6 million reported in a 2004 Merritt Hawkins survey.) And, while orthopedic surgeons (more than $2.68 million) and invasive cardiologists (almost $2.17 million) were the top revenue-generating specialties, the average figure for the 15 non-primary-care specialists was more than $1.42 million.
See on home.modernphysician.com
Supreme Court Upholds FTC Disapproval of Hospital Merger
From Akerman’s Health Law Rx Blog:
POSTED BY MARSHALL R. BURACK ON FEBRUARY 21, 2013
In a decision issued on February 19, 2013, the U.S. Supreme Court upheld the Federal Trade Commission’s efforts to prohibit a hospital merger which would substantially reduce competition. Federal Trade Commission v. Phoebe Putney Health System, Inc. involved the acquisition by a public hospital in Georgia of the only other hospital in the county. The FTC alleged that the transaction would substantially reduce competition in the market for acute care hospital services and sought to prohibit the transaction as being in violation of Federal antitrust laws.The lower court dismissed the FTC’s claim, holding that, because the acquisition was effected pursuant to Georgia’s Hospital Authorities Law, the acquisition was immune from Federal antitrust law under the state action doctrine. Under the state action doctrine, certain anti-competitive actions taken or authorized by state government or an agency of state government are immune from Federal antitrust prosecution. The Georgia Hospital Authorities Law authorized political subdivisions of the state of Georgia to create hospital authorities as special purpose entities, with the power to acquire, lease and operate hospitals and other healthcare facilities. The hospital system successfully argued in the lower court that the power to acquire hospitals granted to it by the Hospital Authorities Law immunized the acquisition of the competing hospital from Federal antitrust law under the state action doctrine.
The Supreme Court reversed the holding of the lower court, ruling that the state action doctrine protects anti-competitive behavior taken or authorized by state government only if the anti-competitive actions are undertaken pursuant to a “clearly articulated and affirmatively expressed” state policy to displace competition. The Supreme Court found that, although the Georgia Hospital Authorities Law granted public hospital authorities the power to acquire hospitals, there was no evidence in the Law that the Georgia Legislature affirmatively contemplated granting hospital authorities the power to substantially reduce or displace competition for hospital services in a particular market.
From a healthcare policy perspective, the case demonstrates support for competition among providers as a positive value that should be protected, absent a very specific indication of state intent to limit competition. From a more general jurisprudential perspective, the case is a surprising example of the Roberts Court, in a unanimous decision, limiting the authority of the states and supporting and expanding Federal antitrust powers.
Actually, Mr. Brill, Fixing Healthcare Is Kinda Simple | Wired Science | Wired.com
When you need health care, you enter not a market but a con game in which you’re first a guarantor and source of profit, and second a patient. Wired Science blogger David Dobbs explains why the government needs to step up. See on www.wired.com
Patients have no clout in so-called market driven healthcare because of its fragmented delivery and billing systems. Having insurance further mystifies the process and hides the information necessary to make market decisions. Something like a patients union is needed to equalize the playing field. For now, Obamacare is all that patients have to give them some protection against the two Titans in healthcare who have all the market power.
Christensen, Flier and Vijayaraghavan: The Coming Failure of ‘Accountable Care’
In The Wall Street Journal, Clayton Christensen, Jeffrey Flier and Vineeta Vijayaraghavan say that the Affordable Care Act’s updated versions of HMOs are based on flawed assumptions about doctor and patient behavior. See on online.wsj.com
Beware the nay sayers. ACOs and other accountable care measures can only succeed if there IS a change in physician behavior. Changing the way healthcare is done in this country is the basis (and only workable basis) for meaningful improvement in healthcare while controlling costs at the same time. No one ever thought it would be easy or quick.
Can we learn something from America – Accountable Care Organisations
It has become de rigueur on the left to regard the US healthcare system as the very incarnation of evil and therefore a country from which nothing of value can be learned for improving our NHS. This might be about to change. There is now growing interest in the notion of the ‘Accountable Care Organisation’ (ACO) – or as it is tending to be termed over here, the Accountable Integrated Care System.
The Accountable Care Organisation concept is gathering pace in the US following the 2010 Patient Protection and Affordable Care Act, which included a pilot programme to explore ACO structures and processes. Under the new law, an ACO would agree to manage all of the healthcare needs of a minimum of 5,000 Medicare beneficiaries for at least three years. The ACO can gain extra money through sharing savings (with Medicare) resulting from collaborative efforts to provide care cost-effectively. Stringent governance conditions must be met, along with transparency and quality performance – Medicare ACOs will report on 33 different quality metrics.
In his recent ‘Green Paper’ speech on future Labour Party health policy, Andy Burnham spoke of the need for “one service co-ordinating all of one person’s needs“, with the district general hospital “evolving over time into an integrated care provider from home to hospital“. Indeed, he went on to say:
“If we look to the US the best providers are working on that highly integrated basis, co-ordinating physical, mental and social care from home to hospital. We have got to take the best of that approach and universalise it here.” See on www.sochealth.co.uk
From the Socialist Health Association of Scotland. I don’t want to think about the ramifications of having an important part of Obamacare endorsed by a socialist health organization. However, labels aside the ability to provide coordination of care in a private setting is a good thing, which is why ACOs are so critical to meaningful healthcare reform.
The New Imperative Of Patient Engagement For Hospitals And Health Systems
Currently, most hospitals and health systems focus on patient engagement because of their mission to deliver patient-centric care. These efforts are pursued despite the neutral or even negative economic consequences to these organizations, which operate within the fragmented, fee-for-service payment system. For example, care coordination attendant to patient engagement efforts will, at times, reduce demand for services and, thereby, reduce fee-for-service payments to providers.
As public and private sector health care purchasers shift payment models towards value and as demographic changes result in more chronically ill patients entering the health care system, patient engagement efforts will become increasingly important to the financial sustainability and clinical success of these hospitals and health systems.
New patient engagement efforts shift focus from the inpatient core of hospitals to ambulatory care settings and to the integration of care into the homes and communities of patients. To succeed at these efforts, organizations must build longitudinal partnerships with patients to drive ongoing management of chronic conditions and utilization of preventive care services to drive long-term quality and cost outcomes.
See more on healthaffairs.org
Recent Criminal and Civil Enforcement Actions
From Akerman’s Health Law Rx Blog:
POSTED BY JOSEPH W. N. RUGG ON FEBRUARY 15, 2013
In 2009, the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”) initiative was formed as a joint effort between the Departments of Justice and Health and Human Services, and combating health care fraud continues to be a major focus of federal and state authorities. The Office of Inspector General (“OIG”) publishes a list of the criminal and civil enforcement actions and the punishment that has been meted out to those convicted of some sort of healthcare fraud. Here are three examples from February listings where jail time or substantial fines or both have been imposed.
- On February 1, a 50-year-old pharmacist who owned and operated 26 pharmacies in the Detroit area was sentenced to 17 years in prison. The evidence presented at trial showed that during 2006 through 2011 the pharmacies had billed Medicare and Medicaid more than $57 million, at least 25% of which billings were fraudulent as being either medically unnecessary or never actually dispensed. Similar fraudulent activities occurred with respect to commercial insurance. The pharmacist’s business model was to pay kickbacks to physicians in exchange for writing prescriptions for expensive medications or for controlled substances without regard to medical necessity. In addition to the jail time, the defendant was required to repay Medicare and Medicaid $17.3 million and commercial insurers $1.5 million.
- On February 4, two patient recruiters for a Miami home healthcare company pleaded guilty for their participation in a $20 million home health Medicare fraud scheme. The recruiters admitted that during 2007 through 2009, they recruited patients for which the home health agency could bill Medicare, and the home health agency’s owners paid them kickbacks and bribes. Medicare was billed for home health care and therapy services that were either medically unnecessary or not provided. The recruiters face jail time and fines, and each of the two home health agency’s owners have already been sentenced to over 6 years in jail.
- On February 7, St. Joseph’s Medical Center, a hospital located in Towson, MD, agreed to pay $4.9 million in connection with its submission of false claims to Medicare, Medicaid, and other federal healthcare programs. The hospital stated that during 2007 through 2009 it admitted patients for short stays – typically one or two days – that were not warranted by the patient’s medical condition but which would result in larger insurance payments than was appropriate.
If you are aware of potentially fraudulent or even inadvertent noncompliant activities in your healthcare business, you need to seek assistance to fix those problems before they become the object of an investigation. Because former employees and business partners of healthcare providers are often the ones reporting the fraudulent activities to the authorities, problems cannot be ignored.
Since the the above blog was posted on the Akerman Health Law Rx Blog, the following was posted by the OIG:
Cardiologist admits taking cash kickbacks for patient referrals — According to a February 14, 2013 press release from the Office of the U.S. Attorney, District of New Jersey:
Shashi Agarwal, 60, of Edison, N.J., who has his own cardiology practice in East Orange, N.J., pleaded guilty before U.S. District Judge Claire C. Cecchi in Newark federal court to an Information charging him with one count of soliciting and receiving more than $100,000 in cash kickbacks in violation of the federal health care anti-kickback statute.
Agarwal is the 10th person to plead guilty in the government’s investigation into the scheme to pay cash to health care providers who referred patients to Orange Community MRI, LLC (Orange MRI) in Orange N.J., for diagnostic testing.
Akerman’s Health Law Rx Blog
I am pleased to announce my firm’s new health law blog, Health Law Rx Blog.
Akerman’s Health Law Rx Blog provides timely updates on the latest health law issues, keeping the firm’s clients, friends, and readers up to date on pertinent legal developments. Akerman attorneys regularly update the blog with changes in the law and other relevant news. As this is meant to be an interactive site, your comments and contributions are appreciated. I am one of the contributors, so I hope you will visit the blog often and participate in any discussions that interest you. I plan to shadow post articles from the blog that I think you will find interesting.
Content on Akerman’s Health Law Rx Blog is intended to inform you about legal developments, including recent decisions of various courts and administrative bodies. It should not be construed as legal advice or a legal opinion, and you should not act upon the information without seeking the advice of legal counsel.
With more than 550 lawyers and government affairs professionals and a network of 19 offices, Akerman is ranked among the top 100 law firms in the U.S. by The National Law Journal NLJ 250 (2012). The firm’s Healthcare Practice Group includes over twenty attorneys and professionals representing health systems, physicians, health insurers, and other clients in all aspects of healthcare law across Florida and throughout the United States.
Joseph Rugg's Health Law Blog 