Strategic Physician Alignment Compliance Considerations Cori Casey - - PDF document

7/10/2012 1

Strategic Physician Alignment Compliance Considerations

Cori Casey Turner, Partner cori.turner@huschblackwell.com Kathryn R. Mihalevich, Partner kate.mihalevich@huschblackwell.com

Welcome!

Cori Turner Kate Mihalevich

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Reminder: Non-Medicare ACOs

ACO Medicare Waivers Do Not Apply to Non-Medicare ACO Models

• Fraud and abuse laws:
• Stark
• Anti-Kickback
• Civil Monetary Penalties Law
• Beneficiary Inducement
• Gainsharing
• Internal Revenue Code restrictions related to tax-exempt organizations
• Anti-trust restrictions

Compliance Implications

Unique Compliance Issues Are Often Overlooked

• Identify and assess pre-transaction
• Not as commonly discussed in the industry; BUT do not result in

less liability

Address in Implementation Phase

• Due diligence process
• Audit considerations
• Operationalization considerations

Follow-up Review & Monitoring

• Audit and monitoring considerations

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Title

Auditing & Monitoring

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Compliance Implications: Compensation Considerations

Personally Performed Services

• Stark Law requirement for employment relationships
• Limitation on credit for midlevel providers and ancillary services
• Increased risk with productivity-based compensation models
• Midlevel services vs. physician services
• Ancillary services inadvertently included
• Operational/ Audit considerations:
• Semi-annual audits to identify ancillary credit concerns
• Clear, defined process up front to address incident-to/ midlevel services – run

sample calculations

• Set physician expectations up front
• Ensure contractual language is appropriate and reflects reality

Applies to: traditional physician employment arrangements

Compliance Implications: Compensation Considerations (Continued)

Supervision of Midlevel Providers (MLPs)

• Appropriate to pay for personally performed supervision (employment)
• Not paying for the work performed by the MLPs; paying for the physician’s

supervision of the MLPs

• Consider state law supervision requirements
• State law may limit the number of MLPs supervised
• Consider impact on physician’s practice
• Operational/ Audit Considerations:
• Review state law and implement appropriate policies
• Educate providers regarding supervision rules
• Track compliance: semi-annual & random audits

Applies to: Contractual models, employment, pseudo-employment

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Compliance Implications: Compensation Considerations (Continued)

Quality Payments

• Great in theory, difficult to operationalize
• Define meaningful quality metrics – legitimate criteria
• Participation vs. Results
• Ensure appropriate measurement tools (consistent and accurate)
• Fair market value implications
• Operational/ Audit Considerations
• Enlist the assistance of a physician “champion”
• Define plan and prioritize implementation (e.g., roll out by specialty)
• Finalize and test quality program prior to implementation
• Run sample reports at 3,6 or 9 months to determine if the data is being properly

captured

• Develop “stacking” valuation procedure / process

Applies to: all integration models

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Compliance Considerations: Coding & Documentation Practices

Far Reaching

• Compliance
• Revenue Opportunities
• Liability

Increased Risk Under New Integration Models Operational/ Audit Considerations

• Billing Party
• Implement audit process
• Educate practitioners regarding processes

(authentication, etc.)

• Consider contractual provision addressing compliance

with coding and documentation requirements

• Reassigning Party
• Understand the billing process and reserve a contractual

right to audit billing performance

• Consider contractual provision regarding compliance with

billing requirements

Applies to: all integration models

Compliance Implications: Contractual Payments

Satisfying Contract Requirements –Payment Provisions

• Perhaps one of the biggest compliance risk areas because it is the most

commonly overlooked

• “Technical” Stark violations
• Inadvertent errors can create substantial liability
• Accounting department payment practices / processes
• Clerical mistakes
• Poor communication between hospital departments responsible for payment

and execution of contractual terms

• Reconciliation paragraph
• If payment error is discovered, the parties may reconcile error within stated

timeframes.

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Compliance Implications: Contractual Payments (Continued)

• Operational/ Audit considerations:
• Educate applicable personnel regarding legal requirements and

consequences

• Consider implementing payment approval process/ checks and balances
• Audit physician contract payments

Applies to: all integration models

Compliance Implications: Joint Marketing Activities

Joint Marketing Pitfalls

• Relates to collaborative relationships among providers
• Costs for joint marketing activities should be appropriately allocated
• Consider allocation based on content dedicated to each party
• Thoughtful, documented approach
• Operational/ Audit Considerations:
• Communicate expectations and limitations
• Educate marketing departments/related personnel
• Consider approval policy (monetary threshold)
• Set specific guidelines for use of logos and references to the parties

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Compliance Implications: Gainsharing

• May not directly or indirectly, induce a physician to reduce or limit

services to Medicare or Medicaid beneficiaries under the physician’s direct care

• Civil Monetary Penalty liability for both parties up to $2,000 per patient

covered by the payments

• Waiver may exist for Medicare ACOs where certain requirements are

met

• Implement safeguards noted in past OIG Advisory Opinions

(transparency, physician payments tied to verifiable cost savings, applied irrespective of payor status, clinical safeguards to prevent inappropriate reductions in patient care) Applies to: Risk Sharing / Gainsharing Arrangements Practical Suggestion: Focus Your Resources

Focus Y

• ur Resources
• Utilize internal resources as much

as possible

• Map the gaps/risk analysis
• Communicate with senior leadership

regarding resource shortfalls

• Acknowledge outside resources are

available and may be necessary/ more efficient

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QUESTIONS?