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Do we need the Stark and Anti-Kickback Laws? Yes, unfortunately. Here’s another reason why.

April 12, 2015 Leave a comment

Thank goodness that most of us do not have to scrutinize every business deal we do to make sure that it is fully compliant with self-referral and kickback prohibitions.  In the healthcare arena, compliance with these counter-intuitive and overly punitive restrictions adds much unreimbursable administrative costs to the delivery of healthcare. Hopefully, shifting payment from procedures to quality of care will reduce the artificial inducements to violate these restrictions.

And while I advocate the repeal of these outdated self-referral and kickback laws which have unfairly burdened physicians in this country for decades, there is always another example of why the laws are still needed.

Benchmark Reporter has this story today:

2 U.S. organizations have been fined with a whopping $48.5 million in charges of conducting unnecessary medical tests linked with doctors who are responsible for referring patients to them for commission. These scamming corporations are Health Diagnostics Laboratory (HDL) and Singulex, both are well-known cardiovascular disease screening labs.

The Benchmark story is based on the Thursday announcement from the Department of Justice.  According to the DOJ  announcement, this is what the Labs did:

As alleged in the lawsuits, HDL, Singulex and Berkeley induced physicians to refer patients to them for blood tests by paying them processing and handling fees of between $10 and $17 per referral and by routinely waiving patient co-pays and deductibles. In addition, HDL and Singulex allegedly conspired with BlueWave to offer these inducements on behalf of HDL and Singulex. As a result, physicians allegedly referred patients to HDL, Singulex and Berkeley for medically unnecessary tests, which were then billed to federal health care programs, including Medicare.

And a reminder of why kickbacks are bad (some people apparently need to be reminded):

“When health care companies pursue profits by paying kickbacks to doctors, they undermine a patient’s ability to trust that medical decisions are being made for scientific reasons, not financial ones,” said Acting U.S. Attorney Vincent H. Cohen Jr. of the District of Columbia. “Those kickbacks also harm the taxpayer because they drive up the cost of federal health care programs with medically unnecessary tests. This significant settlement shows our determination to work with whistleblowers and our federal partners to defend the integrity of the health care system from illegal agreements that hurt patients and taxpayers.”

If this were a blog about the Seven Deadly Sins, the key words might be Greed, Pride, Envy, and Sloth.

There is no easy way for physicians to make more money.  Working hard is not enough.  And the current state of financial health of  physicians in this country is appalling.

Nevertheless, there are  physicians who are good providers, who are devoted to their patients, and who follow the law.  I know this because I represent many of them. They resist the temptation from these Labs and others like them.  They spend a lot of money on attorneys and consultants to do things the right way.   When they see their colleagues benefit through illegal behavior, it is good that they also see them caught and punished.

Setting Value-Based Payment Goals — HHS Efforts to Improve U.S. Health Care — NEJM

February 1, 2015 Leave a comment

Setting Value-Based Payment Goals — HHS Efforts to Improve U.S. Health Care — NEJM

This article (reproduced in full below) in the New England Journal of Medicine, online January 26, 2015,  is by Sylva M. Burwell, Secretary of Health and Human Services.  It discusses the important concepts of efficiency, quality, waste, and rationing and their intersection with the delivery of healthcare.  References can be found at the online article.

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Now that the Affordable Care Act (ACA) has expanded health care coverage and made it affordable to many more Americans, we have the opportunity to shape the way care is delivered and improve the quality of care systemwide, while helping to reduce the growth of health care costs. Many efforts have already been initiated on these fronts, leveraging the ACA’s new tools. The Department of Health and Human Services (HHS) now intends to focus its energies on augmenting reform in three important and interdependent ways: using incentives to motivate higher-value care, by increasingly tying payment to value through alternative payment models; changing the way care is delivered through greater teamwork and integration, more effective coordination of providers across settings, and greater attention by providers to population health; and harnessing the power of information to improve care for patients.

As we work to build a health care system that delivers better care, that is smarter about how dollars are spent, and that makes people healthier, we are identifying metrics for managing and tracking our progress. A majority of Medicare fee-for-service payments already have a link to quality or value. Our goal is to have 85% of all Medicare fee-for-service payments tied to quality or value by 2016, and 90% by 2018. Perhaps even more important, our target is to have 30% of Medicare payments tied to quality or value through alternative payment models by the end of 2016, and 50% of payments by the end of 2018. Alternative payment models include accountable care organizations (ACOs) and bundled-payment arrangements under which health care providers are accountable for the quality and cost of the care they deliver to patients. This is the first time in the history of the program that explicit goals for alternative payment models and value-based payments have been set for Medicare. Changes assessed by these metrics will mark our progress in the near term, and we are engaging state Medicaid programs and private payers in efforts to make further progress toward value-based payment throughout the health care system. Through Healthy People 2020 and other initiatives, we will also track outcome measures that reflect changes in Americans’ health and health care.

To drive progress, we are focusing on three strategies. The first is incentives: a major thrust of our efforts is to create an environment in which hospitals, physicians, and other providers are rewarded for delivering high-quality health care and have the resources and flexibility they need to do so. The ACA creates a number of new institutions and payment arrangements intended to drive the health care system in this direction. These include alternative payment models such as ACOs, advanced primary care medical-home models, new models of bundling payments for episodes of care, and demonstration projects in integrated care for beneficiaries dually eligible for Medicare and Medicaid.

Looking ahead, we plan to develop and test new payment models for specialty care, starting with oncology care, and institute payments to providers for care coordination for patients with chronic conditions. Three years ago, Medicare made almost no payments through these alternative payment models,1 but today such payments represent approximately 20% of Medicare payments to providers, and as noted above, we aim to increase this percentage. As part of this work, we also recognize the need to continue to reach consensus on the quality measures used and address issues related to risk adjustment in these new models.

Second, improving the way care is delivered is central to our reform efforts. We have put in place policies to encourage greater integration within practice sites, greater coordination among providers, and greater attention to population health. Through the Partnership for Patients, we have engaged U.S. hospitals in learning networks to focus on high-priority risks to patient safety and have already seen significant improvement. There is now a national program to reduce hospital readmissions within 30 days after discharge, which encourages hospitals to improve transitional care and coordinate more effectively with ambulatory care providers. Readmission rates are decreasing nationwide.2 Through the Transforming Clinical Practice Initiative, we will invest up to $800 million in providing hands-on support to 150,000 physicians and other clinicians for developing the skills and tools needed to improve care delivery and transition to alternative payment models. New Medicaid health homes, patient-centered medical homes, and efforts to reorganize care for people eligible for both Medicare and Medicaid are all designed to foster greater integration and coordination.

Third, we aim to accelerate the availability of information to guide decision making. The Obama administration has led a major initiative in health information technology (IT), focusing on the adoption of electronic health records (EHRs) and their meaningful use as a central avenue for transforming care. The proportion of U.S. physicians using EHRs increased from 18% to 78% between 2001 and 2013, and 94% of hospitals now report use of certified EHRs.3 Ongoing efforts will advance interoperability through the alignment of health IT standards and practices with payment policy so that patients’ records are available when needed at the point of care to permit informed clinical decisions to be made in a timely fashion.  HHS has made a commitment to enhancing transparency in the health care market. For example, the Medicare website enables consumers to compare data on the costs and charges for hundreds of inpatient, outpatient, and physician services. Information is available on the quality of hospitals, physicians, nursing homes, and other providers, enabling consumers to make better-informed choices when selecting providers and health plans.

The ACA established the Patient-Centered Outcomes Research Institute (PCORI), dedicated to generating information that can guide doctors, other caregivers, and patients as they address important clinical decisions; PCORI is working with the Agency for Healthcare Research and Quality to disseminate this information. In the years ahead, the research findings from PCORI, disseminated in part through EHRs, can bring critical clinical information to providers and patients when they need it most, at the point of care.

Although we have much to celebrate regarding increased access and quality and reduced cost growth, much of the hard work of improving our health care system lies ahead of us. Care delivered in hospitals was much safer in 2013 than it was in 2010: there were 1.3 million fewer adverse events between 2011 and 2013 than there would have been if the rate of such events had remained unchanged, and an estimated 50,000 deaths were averted. Still, far too many hospitalized patients — nearly 1 in 10 — have adverse events while hospitalized, and many people do not receive care that they should receive, while others receive care that does not benefit them. Growth of health care spending is at historic lows: Medicare spending per beneficiary increased by approximately 2% per year from 2010 to 2014 — a rate far below both historical averages and the growth rate of the gross domestic product.4 Survey data show that more than 7 in 10 people who signed up for insurance in the new health insurance marketplace last year say the quality of their coverage is excellent or good.5 However, it will take additional effort to sustain and augment the positive changes we have seen so far.

We are dedicated to using incentives for higher-value care, fostering greater integration and coordination of care and attention to population health, and providing access to information that can enable clinicians and patients to make better-informed choices. We believe that, by working in partnership across the public and private sectors, we can accelerate these improvements and integrate them into the fabric of the U.S. health system.

CMS Leaves its Finger in the Dike by Extending its Temporary Moratoria on Enrollment

February 1, 2015 Leave a comment

On January 29, CMS announced last week that it would extend the “temporary moratoria on the enrollment of new ambulance suppliers and home health agencies (HHAs) in specific locations within designated metropolitan areas in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey to prevent and combat fraud, waste, and abuse.”  The Federal Register will publish this announcement on February 2, 2015.

The ACA allows the HHS Secretary to impose a temporary moratorium on the enrollment of new Medicare, Medicaid or CHIP providers and suppliers to prevent (or combat) fraud, abuse, or waste.  The moratorium is for six months and can be extended in 6-month increments.

The war on healthcare fraud is a lot like fighting roaches in Florida.  You can be very vigilant, keep a clean house, and use pesticide regularly, but there will always be roaches — bigger and stronger ones to replace the ones you kill.  Likewise, we spend lots of money and devote significant resources to fighting healthcare fraud, and no matter how many fraud mongers we put out of business, there are always more to take their places.

The dike has to many leaks.  One wonders how much more legitimate healthcare could be given if so much wasn’t siphoned off by bad guys, but is there a practical solution?

CMS launches database of manufacturer and GPO payments to physicians

October 3, 2014 Leave a comment

The following post will also be published today on the Akerman Health Rx blog.

The Affordable Care Act contains a provision known as the Physician Payments Sunshine Act, which requires the Centers for Medicare and Medicaid Services (“CMS”) to establish a national databank containing information on the financial relationships between physicians (which includes dentists, chiropractors, and other physician specialties) and teaching hospitals, applicable manufacturers, and group purchasing organizations (“GPOs”).  CMS launched its Open Payments website on September 30, 2014 , making its database available to the public.

The database is populated by information reported to CMS by applicable manufacturers and GPOs regarding their payments or other transfers of value to physicians and teaching hospitals.  It is important to note that this reported information specifically includes any ownership or investment interest that physicians (and their immediate family members) have in the manufacturers and GPOs.

CMS encourages physicians and teaching hospitals to register with the Open Payments website.  While registration is voluntary, the reported information is made available to registrants before being made public, and registrants are given an opportunity to dispute any reported information.  In fact, there is a mobile app (and other resources) that allows physicians, teaching hospitals, manufacturers, and GPOs to track provider and industry contact details, share information, and track payments and other transfers of value.

According to CMS and as reported, 4.4 Million payments valued at nearly $3.5 billion were made to 546,000 individual physicians and 1,360 teaching hospitals in the last five months of 2013.  The website will provide future reports on an annual basis.  Beginning in June 2015, it is expected to report twelve full months of data.

We know that the public, and in particular the press, will access the Open Payments database, and there will likely be a high level of misunderstanding and misinformation.  One cannot forget the feeding frenzy that arose when CMS released physician Medicare billing data  earlier this year.  Any physician who receives payments from a manufacturer or GPO would presumably want advance notice of any disclosure regarding payments to that physician.   Accordingly, any physician who does receive such payments should register on the Open Payments website and check the accuracy of all information reported about them, and be prepared to answer questions they may be asked.

12 Questions to Guide Physician Compensation Strategy

August 9, 2014 Leave a comment

From Healthcare Intelligence Network — essentially a sales promo for their book.  According to HIN, a successful physician compensation strategy includes organizational goals, governance, and physician engagement.  This is slanted from the healthcare organization viewpoint.

Nevertheless, still worth a look.

 


9 Measures of ACO Success

Via: Healthcare Intelligence Network

New OIG Special Fraud Alert Aimed at Laboratory Payments to Referring Physicians

July 13, 2014 Leave a comment

Two of  my partners, Michael Gennett and Elizabeth Hodge, and I authored the following post for Akerman’s Healthcare Blog:


 

On June 25, 2014, the U.S. Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert entitled “Laboratory Payments to Referring Physicians.” While the Alert breaks no new ground (see, e.g., its 1994 Special Fraud Alert), it demonstrates the OIG’s continuing concerns about clinical laboratories’ offering inducements to referring physicians.

The Alert provides an in-depth discussion of laboratories’ paying referring physicians for collecting specimens and paying physicians for submitting patient data to a registry or database. The Alert explains that physicians who prepare specimens for transfer from the office to a laboratory have a CPT code (99000) to bill Medicare for a nominal charge. Where laboratories are separately paying the same physician for specimen collection, the double billing is evidence to the OIG of an obvious intent to induce referrals. Similarly, with respect to physicians submitting patient data for a database, even if the project has legitimate underpinnings, it may still be illegal if an intent is to induce referral. The Alert contains a detailed list of characteristics of specimen processing and data registry arrangements that it finds suspect.

The OIG ‘s concerns are not lessened in referral arrangements that “carve out” Medicare and other federal programs and focus only on commercial insurance. The OIG takes the position that, because physicians refer to a limited number of labs, inducements with respect to commercial insurance are likely intended to induce Medicare referrals also. Equally important, inducements for commercial insurance referrals may violate applicable state laws (for example, Florida’s Patient Brokering law).

Physicians should review their financial arrangements with outside clinical labs. The question to be asked always is whether one of the reasons for the arrangement is to induce referrals of patients for lab services. Although the Alert focuses on specimen processing and data registry arrangements, that does not mean that other arrangements are OK. The fraud and abuse concerns set forth in the Alert extend to any arrangement that provides some sort of financial benefit to physicians with the intent to induce referrals of patients for lab services.

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Following publication of the Alert, the OIG published a study entitled “Questionable Billing for Medicare Part B Clinical Laboratory Services.” In the Study, the OIG found that “[a]lmost half of the labs that exceeded the thresholds for five or more measures of questionable billing—compared to 13 percent of all labs—were located in California and Florida, areas known to be vulnerable to Medicare fraud.” The OIG’s recommended that it “[r]eview the labs identified as having questionable billing and take appropriate action” and also “[r]eview existing program integrity strategies to determine whether these strategies are effectively identifying program vulnerabilities associated with lab services.” As a result, clinical labs and physicians should exercise great vigilance in reviewing their financial and referral relationships with each other to insure that they comply with applicable federal (and state) fraud and abuse and other healthcare laws.

Florida Cares About Healthcare … Not

September 20, 2013 Leave a comment

I have been very remiss about posting for the last several weeks.

Being a Floridian is very depressing.  Florida’s elected and administrative leaders have done everything they can to misinform Floridians about Obamacare, to keep the needy from accessing care, to prevent the uninsured from being able to purchase affordable health insurance, and to force healthcare providers to provide unreimbursed care.

Earlier today, Health News Florida reported on how politics over healthcare reform has become more important than either healthcare or meaningful reform.

  • The New York Times reported on Tuesday that “Gov. Rick Scott and the Republican-dominated [Florida] Legislature have made it more difficult for Floridians to obtain the cheapest insurance rates under the exchange and to get help from specially trained outreach counselors.”
  • The Miami Herald reported also on Tuesday that HHS Secretary Kathleen Sebelius, stated that Florida officials are “keeping information from people” in a political effort to foil the effort to enroll Floridians for health insurance.
  • Florida AG Pam Bondi and CFO Jeff Atwater have also joined in the campaign of misinformation and deceit.

The list of wasted Florida tax dollars and loss of Federal funding in trying to impede Obamacare was reported by Health News Florida earlier this week.  Florida’s list of shame includes the following:

  • Leading the court challenge on the constitutionality of Obamacare in 2010 soon after it was signed into law.   Attorney General Pam Bondi made it one of her high-profile issues, becoming a regular guest on Fox News to attack it.
  • After the Supreme Court ruled the law was constitutional, the Florida Legislature told state agencies not to implement it because lawmakers felt sure the Republican party Presidential candidate, Mitt Romney, would win the election in 2012 and repeal the law.
  • After Romney lost the election, governor and legislature pressured the agencies not to apply for grants related to the law; some agencies had to give back grants they had already been awarded.
  • The Legislature this year voted against Florida having its own electronic marketplace for health-plan shopping, even though the state had already spent five years and several million dollars building an online shopping site, Florida Health Choices, that has yet to be used.
  • After months of hearings and negotiations, the Florida Senate came up with a compromise plan on Medicaid expansion that would accomplish several things — reduce the number of uninsured Floridians by about 1 million by using federal funds,  save millions of state dollars now being spent on the uninsured, and continue privatization of the Medicaid program, already well under way.  But the House said no.
  • The Legislature voted to strip the Insurance Commissioner’s authority to regulate health premiums for two years.
  • Insurance Commissioner Kevin McCarty issued a report that predicted health premiums in Florida’s  individual market would soar 30 to 40 percent, thereby producing scandalous headlines. Later, others would note that the figure failed to make adjustments for the tax credits most of those shopping in that market would qualify for. He also failed to mention that the sector he was describing accounts for only 5 percent of policies.

It’s all really quite pathetic and disgusting.  It’s time to vote the bastards out.

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