Kevin Little speaks to American Osteopathic Association physician members on Physician Employment Agreements.
New Medicare Rules Strengthen Regulatory Oversight of Medicare Providers and Increase CMS’ Ability to Remove Providers from Medicare
Earlier this month, the Centers for Medicare and Medicaid Services (CMS) announced implementation of a Final Rule intended to increase oversight of Medicare providers and enable recoveries from those health care providers that commit fraud and violate Medicare rules. According to the press release, Marilyn Tavenner, the CMS Administrator, stated that the new rules “are common-sense safeguards to preserve Medicare for generations to come” and that “[t]he Administration is committed to using all appropriate tools as part of its comprehensive program integrity strategy shaped by the Affordable Care Act [ACA].”
Georgia Medicare Fraud Law Firm
Our Atlanta and Augusta, Georgia health care law firm has reviewed the Final Rule. The Final Rule’s new provisions are intended to preclude doctors and other health care providers with unpaid Medicare debt from re-entering the Medicare program, remove health care providers who engage in abusive Medicare billing, and authorize other provisions that will save more than $327 million annually. The Final Rule makes certain changes to the provider enrollment provisions of 42 CFR part 424, subpart P.
CMS has removed about 25,000 health care providers from the Medicare program. The new rules are designed to “stop bad actors from coming back in as we continue to protect our patients,” according to Ms. Tavenner. Under the ACA, CMS has increased ability to fight Medicare fraud, waste and abuse. CMS believes that removing providers from Medicare has a substantial positive impact on savings, contending that such removals have prevented $81 million in payments from being made.
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HHS 2015 Quality Improvement Awards for FQHC recipients: HHS Awards $36.3 Million in Affordable Care Act Funding for FQHCs and Other Health Centers
On December 9, 2014, the U.S. Department of Health & Human Services (HHS) announced substantial financial awards for numerous Federally Qualified Health Centers (FQHCs) and other health centers nationwide. Our Atlanta, Georgia business and health care law firm represents FQHCs and health centers. We learned from HHS’ press release that it awarded $36.3 million in Affordable Care Act funding for the purpose of rewarding and expanding the quality of care in FQHCs.
FQHCs and other HRSA-supported health centers are designed to provide comprehensive, high quality primary care services to the medically underserved communities of the United States. These health centers are sometimes referred to as “safety net providers.” FQHCs are community-based facilities that serve populations with less access to health care. Grant-supported FQHCs are public or private non-profit healthcare entities that meet particular qualifications under Section 330 of the Public Health Services Act. Non-grant-supported health centers, also referred to as “look-alikes,” are healthcare entities that HRSA and the Centers for Medicare and Medicaid Services have determined meet the definition of “health center” under Section 330 of the Public Health Services Act, but do not receive grant funding under Section 330.
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Physician Practice: The 2014 Physicians Compensation Survey
Physician compensation as a whole has continued to stagnate during 2014, according to Physician Practice’s 2014 Physician Compensation Survey. As compensation models morph and develop with the new emphasis upon value-based care, it remains to be seen how physician compensation will change in the coming years. This very important healthcare industry issue affects all of us. It also involves interesting irony in the enactment and implementation of the Affordable Care Act, touted by proponents as geared to improve patient “access” to health care (or “coverage” under an insurance plan), yet perpetuating (according to the analysis of some opponents) pressures that contribute to the current primary care physician shortage by increasing the administrative frustrations of practicing medicine and creating strong downward pressure on reimbursement.
Atlanta/Augusta Georgia Business and Health Care Law Firm
The challenging business and regulatory environment for doctors continues to drive physician consideration of employment by hospital systems. A recent report by Merritt Hawkins found that over 90% of new physician job openings will “feature employment by hospitals, medical groups, community health centers or other healthcare facilities” which “signal[s] the continued decline of physician private practice. Many physicians, though still preferring independence (see our blog November 25, 2014 post), continue to perceive employment opportunities as a way to reduce financial risks and soften the harsh requirements of a complex, regulatory business environment for the delivery of their services.
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Physician Practices: The Independent Physician Outlook Survey
The recently released 2015 Independent Physician Outlook Survey, entitled “Threats to Independence,” explores the state of independence in the medical field from the physician perspective. The survey covers an array of topics and was conducted and prepared by ProCare Systems, a medical practice management consultant company. The healthcare industry is the focus of our Atlanta/Augusta, Georgia business law firm.
In many business industries, the choice to be big versus small involves consideration of competing pros and cons. The healthcare industry is no exception. Physicians, as highly educated professionals, tend to be independent by nature and prefer to call their own shots. Yet the current regulatory and business environment for physicians makes independence more challenging than ever for many doctors. For some time, the healthcare industry has seen a trend toward value- and outcomes-based healthcare delivery models with many new administrative challenges and continuing downward pressures on reimbursement, necessarily involving many changes for physicians. The economic and regulatory pressures of healthcare reform are perpetuating frustration and financial strain for physician practices, pushing many doctors toward employment by larger health care systems. However, the ProCare report also shows that most doctors nonetheless continue to prefer independence and that many opportunities to reclaim independence will exist for smaller physician practices with agility and a greater ability to be innovative and efficient in the evolving regulatory environment.
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Health Care Fraud Report: DOJ Obtains $389M From DaVita Healthcare to Settle Medical Fraud Allegations
The Department of Justice (DOJ) announced on October 22, 2014 a resolution of claims that DaVita Healthcare Partners, Inc., a provider of dialysis services, engaged in a referral and kickback scheme that violated the False Claims Act (FCA). The DOJ announced that DaVita has agreed to pay $350 million to settle the government’s case. The Government’s case was not proven and was only alleged. Liability was not determined prior to the settlement and DaVita has not been shown to have engaged in wrong doing. Our Atlanta and Augusta, Georgia business and health care law firm represents health care providers and businesses and helps them avoid legal pitfalls.
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Blowing the Whistle in Court
The vast majority of physicians and other health care providers endeavor to provide services and bill for them in an ethical, legal manner. Trust is at the core of the federal government’s provider reimbursement scheme under Medicare and other federal health programs. The federal government relies upon health care providers submitting accurate and truthful claims. The fact that some health care providers have exploited federal health programs for illegal economic gain has resulted in laws intended to combat fraud and abuse, improve patient care and protect tax payer money. Currently, there is a strong push in federal law enforcement to aggressively enforce federal fraud and abuse laws.1
The Federal False Claims Act (FCA)2 makes it illegal for health care providers to submit claims for payment to Medicare that the provider knows, or should know, are false or fraudulent. The FCA contains a whistleblower provision that authorizes a private citizen or “relator” to file a lawsuit on behalf of the federal government, and entitles relators to a percentage of any recovery. FCA whistleblower cases often assert violations of other federal fraud and abuse laws, such as the Anti-Kickback Statute (AKS),3 the Physician Self-Referral Law (Stark Law),4 the Exclusion Authorities,5 and the Civil Monetary Penalties Law (CMPL).6
For relators, “blowing the whistle” becomes more than an abstract notion when it comes time to “plead,” or state, the claim in court. Assuming a claim has legal merit, getting it right in court is what determines success or failure. Following the law in reporting alleged wrongdoing is essential, including procedural law dictating how to properly plead a case. Rule 9(b) of the Federal Rules of Civil Procedure requires that “[t]he whistle must be blown not only loudly, but with Rule 9(b) particularity in the Complaint before the courts will listen.”7 The concept of “particularity” is important to a federal whistleblower’s opportunity for success. This means is that a whistleblower complaint must state “facts as to time, place, and substance” of the alleged wrongdoing, and that “an actual false claim for payment [was] made to the Government.”8
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Michigan Bill Would Benefit Direct Primary Care Doctors
A Michigan legislator’s bill, SB 1033, sponsored by Senator Patrick Colbeck, would benefit direct primary care doctors in that State, and the idea may warrant consideration in other States. The purpose of the bill is to provide physicians who convert their practice to a direct primary care model with the assurance that their medical practice will not be treated as an insurer regulated under state insurance regulations.
Atlanta and Augusta, Georgia Physician Practice Law Firm
Among other legal hurdles some physicians may face in developing a direct primary (or concierge) care practice model is avoiding the creation of an insurance product. This can be a central legal issue for such practices. A distinguishing feature of the direct primary care model is that the patient, sometimes referred to as a “member” or “enrollee,” receives medical care without paying anything other than a predetermined periodic fee, sometimes referred to as a “medical retainer.” The theory behind the insurance issue is that by accepting a set, predetermined fee in advance of the medical services, the physician or medical practice is, in effect, underwriting an insurance risk. The consequences of a state insurance regulator determining that a medical practice is operating as an insurance company can be severe.
Senator Colbeck’s bill is intended to avoid such problems in Michigan. The bill provides, in part, as follows:
(1) A medical retainer agreement is not insurance and is not subject to this act. Entering into a medical retainer agreement is not the business of insurance and is not subject to this act.
(2) A health care provider or agent of a health care provider is not required to obtain a certificate of authority or license under this act to market, sell, or offer to sell a medical retainer agreement.
(3) To be considered a medical retainer agreement for the purposes of this section, the agreement must meet all of the following requirements:(a) Be in writing.
(b) Be signed by the health care provider or agent of the health care provider and the individual patient or his or her legal representative.
(c) Allow either party to terminate the agreement on written notice to the other party.
(d) Describe the specific routine health care services that are included in the agreement.
(e) Specify the fee for the agreement.
(f) Specify the period of time under the agreement.
(g) Prominently state in writing that the agreement is not health insurance.
(h) Prohibit the health care provider, but not the patient, from billing an insurer or other third party payer for the services provided under the agreement.
Physician Practices: Recent Survey Reviews the Effects of Expanded Patient Access
A well-intended objective of the Affordable Care Act (ACA) is to improve patient access to doctors. Sometimes this objective is artfully stated as “better” access to care, rather than “increased” access to care, perhaps to acknowledge the reality that as more patients become insured via the ACA, there may actually be less access to physicians. “Better” access may therefore be an argument that, even as an existing physician shortage worsens, new alternatives under the ACA nonetheless improve access to care for the population as a whole. For sure, millions of Americans have enrolled in new insurance coverage via the ACA health insurance exchanges. In any event, whether it will be easier for most Americans to actually see a doctor remains to be seen according to a recent national survey.
The survey, by The Physicians Foundation, concluded that patients are likely to face increased difficulties in finding true access to care if current health care reform trends continue. More than 20,000 doctors nationwide were surveyed by the Foundation, and its findings are detailed and compelling. Among other things, the survey indicates that: 81 percent of doctors believe they are over-extended or at full capacity; only 19 percent of doctors think they have time to see additional patients; and 44 percent of doctors are now planning steps that would reduce patient access to their services (e.g., cutting back on patients seen, retiring, going part-time, closing their practice).
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September 18, 2014. Kevin Little speaks to physicians. Update on Physician Employment Agreements. InHealth Consulting & Educational Services National Tele-Class Series.
Kevin Little speaks to physicians. Update on Physician Employment Agreements. InHealth Consulting & Educational Services National Tele-Class Series.