Docs, You’ve Been Hacked. What’s Next?

HIPAABy: Jacqueline Bain

Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.

HIPAA is a federal law designed for safe disclosure of patient’s protected health information.  The news headlines showcase giant penalties for violations.  However, Florida health care providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act.  So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.

So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure?  Responses vary based on the situation presented, but below is a good jumping off point: Continue reading

Federation’s Model Telemedicine Policy is Well Timed

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Many health policy experts are betting on the expanded role of telemedicine as an essential cost-saving, quality (and access) enhancing tool.  Yet legal and policy issues have dogged the development of useful telemedicine guidelines, making it difficult to know what’s ok and what’s not.  What sort of licensure is required for physicians practicing telemedicine?  When is the physician “practicing medicine” vs. “merely consulting?”  When is a physician patient relationship established?  Is one even necessary?  The newly developed model policy developed by the Federation of State Medical Boards should help guide states in developing specific telemedicine standards.

Continue reading

ACO Challenges Are Formidable

Final-ACO-RulesHanging this nation’s cost cutting/quality enhancing hopes on Accountable Care Organizations (ACOs) is bound to be frustrating and disappointing.  The ACO model seriously lacks sufficient real world grounding and is no magic pill.  Things like resources, operational capability and alignment (of financial incentives and direction) seem to have been overlooked or undervalued.

The ACO model is based on one fundamental assumption:  an expanded role of primary care physicians can slow cost increases and ensure better coordination of care.  That assumption is flawed for two reasons:  first, there is a large and growing primary care shortage; and second, the financial incentives in healthcare have driven a system based on acute, episodic interactions, leading to enormously fragmented clinical training and care.

We not only have inadequate resources to drive change away from acute, fee for services based care, but rather we lack resources that drive wellness. As one physician with a large hospital system recently said:  “We physicians are not trained to provide healthcare.  We’re trained to intervene when things go bad.”  Asking healthcare professionals and facilities to drive a model based on outcomes and resource consumption is theoretically possible, but a remarkable leap of faith (and training) is required, given they have made their livings off of sick people for so long.  That’s not to say that changing financial incentives from acuity to wellness and outcomes won’t work.  It’s just going to require training and proof that the players can make money with the new mandates.

As far as operations go, those with the greatest access to management, capital, IT and such are also the most expensive—hospitals.  It makes sense that the core objective of healthcare reform is to “squeeze the toothpaste tube” backwards from hospital to specialist to primary care physicians, but it’s a great leap of faith to expect that hospitals will or even can control costs.  In a healthcare system where providers admittedly are rewarded for doing more with more expensive things, the sharp turn required by the new law will require more than just a new law.  With all the current hospital-driven physician acquisitions, the increasing role of hospitals on the ACO issue looks at times more like turf guarding than any real cost-saving, quality enhancing move.

At the end of the day, all players have to answer the question “Did they reduce cost and enhance quality?”  It seems convincing that moving away from the fee for service model will change behavior.  We just need to make sure (1) there are sufficient resources to implement the change, and (2) financial and clinical issues are well balanced.  Time will tell, but meanwhile the current irony is that the most expensive link in the chain is best situated to actually operationalize the ACO concept.

Alignment is critical.  Financial alignment will require the players to believe they can all thrive in the new ACO model, yet physicians are historically leery of any hospital driven system.  In fact, given that hospitals are driving the ACO bus at the moment, the biggest fear among physicians is that they will be left out.  Even among physician-driven ACOs, the tension between primary care physicians and specialists is intense.  How much of any savings will go to primaries vs. specialists is no less divisive than the issue of the hospital/physician split of the shared savings.

Even more critical is the apparent lack of consideration given to the need for patient participation.  Where is the financial incentive for healthy patient choices and the disincentive for unhealthy patient choices?  Moreover, in a culture where more is more, why would anyone want to receive care from an organization that gets more by giving less?  Given further the ability of patients to wander in and out of ACOs and yet charge their ACO with the costs of non-ACO providers (who arguably have no stake at all in reducing expenses), the forecast for patient alignment is gloomy, but their buy in is critical.  It is difficult to see where patients have any stake in this change and would even be inclined to choose to be served by an ACO.  Many noted theorists have drilled on the glaring lack of patient alignment.  Rama Juturu and recent Wall Street Journal editorialists/economist Clayton Christensen have been outspoken about the need to enlist patients in the drive from intervention to prevention.  Patients that flock to ACOs (or whatever) will only do so if they see what’s in it for them.  The only thing an ACO can sell is results, outcomes.  And that’s gonna take time to measure and to sell.

At the end of the day, the threat of ACOs (and any vehicle to control healthcare costs more effectively) isn’t that they won’t work.  It’s that cost concerns will outstrip clinical ones.  While it can be argued that the employment of physicians by traditionally adverse players (like hospitals) will likely reduce the tension between them, it is precisely that tension that has always held the threat of “money over quality” at bay.  What will happen as hospitals and other healthcare players employ more and more physicians?  One can only hope that it is not silence and that, as found in some well established systems in the Midwest and West, respect for the different and necessary roles of ensuring both quality and economic survival will balance out, regardless of the healthcare delivery model that emerges.

CMS Issues Final Rules Updating Medicaid & Medicare Payments For 2013 & 2014

Repost Via mondaq.com and Kristen A. Larremore & Sarah K. Baker — On November 1, 2012, the Centers for Medicare and Medicaid (“CMS”) issued three final rules, to be effective January 1, 2013, that implement a number of Medicare and Medicaid payment changes for 2013 and 2014.

Medicare and Medicaid Programs: Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Electronic Reporting Pilot; Inpatient Rehabilitation Facilities Quality Reporting Program; Revision to Quality Improvement Organization Regulations

The hospital outpatient prospective payment and ambulatory surgery center (“ASC”) final rule with comment period updates the payment policies and payment rates for services furnished to Medicare beneficiaries in hospital outpatient departments and ASCs. This final rule changes certain amounts and factors used to determine the payment rates for Medicare services paid under the Medicare hospital outpatient prospective payment system (“OPPS”) and the Medicare ASC payment system.

According to CMS estimates, payments to hospitals under the OPPS for 2013 will be approximately $48.1 billion (an increase of $4.6 billion compared to 2012) and payments to ASCs for 2013 will be approximately $4.07 billion.

OPPS payment rates are being increased for 2013 by an outpatient department fee schedule increase factor of 1.8 percent. Additionally, the final rule continues to implement the statutory 2.0 percent reduction in payments for hospitals failing to meet the hospital outpatient quality reporting requirements, by applying a reporting factor of 0.980 to the OPPS payments and copayments for all applicable services. The final rule further modifies OPPS payments by basing future determinations of relative payment weights on geometric mean costs rather than median costs (which has been utilized in determining OPPS payments since the inception of the OPPS).

Payment rates for ASCs are being increased for 2013 by 0.6 percent (less than the 1.3 percent update included in the proposed rule).

Additionally, this final rule updates and implements new requirements under the Hospital Outpatient Quality Reporting (“OQR”) Program, the ASC Quality Reporting (“ASCQR”) Program, and the Inpatient Rehabilitation Facility (“IRF”) Quality Reporting Program. The final rule also (1) continues the electronic reporting pilot for the Electronic Health Record (“EHR”) Incentive Program, as finalized for 2012 through 2013, and (2) revises the various regulations governing Quality Improvement Organizations (“QIOs”), including (a) granting QIOs the authority to send and receive secure transmissions of electronic versions of medical information, (b) providing more detailed and improved procedures for completing Medicare beneficiary complaint reviews and general quality-of-care reviews (including a new alternative dispute resolution process called “immediate advocacy”), (c) increasing information beneficiaries receive in response to QIO review activities, (d) conveying to beneficiaries the right to authorize the release of confidential information by QIOs, and (e) making other technical corrections.

In addition to the foregoing modifications and payment updates reflected in the final rule, the following briefly lists certain additional changes implemented therein:

  • Continuation of a 7.1 percent adjustment to OPPS payments to certain rural hospitals, including sole community hospitals and critical access hospitals (applicable to all services paid under the OPPS, excluding separately payable drugs and biological, devices paid under the pass-through payment policy, and items paid at charges reduced to cost);
  • Continuation of the cancer hospital payment adjustment with a target payment-to-cost ratio of 0.91 for determining the 2013 cancer hospital payment adjustment to be paid at cost report settlement (intended to cause cancer hospital payments to equal the weighted average payment-to-cost ratio for other OPPS hospitals);
  • Adjustment of payments to cover the marginal cost of hospital conversion to the use of non-highly enriched uranium (“non-HEU”) sources of radio-isotopes used in medical imaging (intended to reduce US reliance on reactors outside of the US);
  • Setting the payment for the acquisition and pharmacy overhead costs of separately payable drugs and biological that do not have pass-through status at the statutory default of average sales price plus 6 percent;
  • Clarification of the application of the supervision regulations to physical therapy, speech-language pathology, and occupational therapy services that are furnished in OPPS hospitals and critical access hospitals;
  • Updates to the Part A to Part B Rebilling Demonstration that is in effect for 2012 to extend it through 2014; this extension is designed to address increased length-of-stay times for outpatients receiving observation services as well as Medicare Part A to Part B rebilling policies when a hospital inpatient claim is denied because the inpatient admission was not medically necessary;
  • Revisions to regulations governing payments for new technology intraocular lenses (§§ 416.196(a0(2) and 416.195(a)(4)) with regard to labeling, requiring the inclusion of a claim of a specific clinical benefit therein and demonstration of evidence that the intraocular lenses result in a measurable, clinically meaningful, improved outcome; and
  • Adoption of measures for the Inpatient Rehabilitation Facility Quality Reporting Program that will affect annual prospective payment amounts for 2014 as well as the adoption of new pressure ulcer measures.

Medicaid Program; Payment for Services Furnished by Certain Primary Care Physicians and Charges for Vaccine Administration under the Vaccines for Children Program

The Medicaid final rule requires State Medicaid agencies to pay at least the Medicare rates in effect under the Medicare physician fee schedule rate in 2013 and 2014 or, if higher, the rate using the calendar year 2009 conversion factor for primary care services furnished by physicians practicing within the scope of practice of medicine or osteopathy with a specialty designation of family medicine, general internal medicine or pediatric medicine, or a subspecialty within those specialties (as recognized by the American Board of Medical Specialties, American Osteopathic Association, or the American Board of Physician Specialties). Physicians are required to self attest for purposes of inclusion as a “primary care physician” that they are either Board-certified in family medicine, general internal medicine, or pediatric medicine or a subspecialty related to those specialties; or that 60 percent of all Medicaid services billed by such physician or provided in a managed care environment are for the specified evaluation and management (“E&M”) and vaccine administration codes. This payment requirement applies to primary care services paid on a fee-for-service basis as well as those paid on a capitalized or other basis by Medicaid managed care plans.

However, the final rule also requires a 100 percent federal match for any increase in payment above the amounts due for such services under the applicable Medicaid State plan rate as of July 1, 2009, such that no additional costs accrue to states for payments above the rates in effect under the 2009 Medicaid State plan methodology. Accordingly, unless a state has reduced its Medicaid rates since 2009, it will be fully reimbursed by the federal government for any increased payments. In order to claim such enhanced federal match, states must be able to document the difference between the July 1, 2009, Medicaid rate and the applicable Medicare rate for specified providers that is claimable at the 100 percent matching rate. States are given flexibility in determining whether and how often to update rates to conform to changes in the Medicare Part B Fee Schedule, if the 2013 and 2014 rates are applicable, since such scheduled rates are subject to periodic adjustments or updates through the calendar year.

Primary care physicians are targeted by these payment changes in part due to their ability to perform the vital function of coordinating patient care, including specialty care, but also due to the need for a sufficient number of primary care physicians to be participating in the Medicaid program prior to the expansion of Medicaid eligibility in 2014. Primary care services are defined under the Patient Protection and Affordable Care Act (“ACA”) (Section 1902(jj)) to include certain specified procedure codes for E&M (codes 99201 through 99499, to the extent covered by the approved Medicaid State plan or included in a managed care contract) as well as certain vaccine administration codes. Additionally, the higher payment rates are applicable to services provided under the personal supervision of eligible physicians by all advanced practice clinicians. Physicians delivering primary care services in a Federally Qualified Health Center or Rural Health Clinic are not eligible for increased payments under this final rule due to the view that these physicians are already reimbursed at the appropriate rate under the Medicaid statute.

Additionally, the final rule updates the regional maximum fees that providers may charge for administration of pediatric vaccines to federally vaccine-eligible children under the Pediatric Immunization Distribution Program (more commonly known as the Vaccines for Children program) by adding 42 C.F.R. Part 441, Subpart L. Under this program, each state is required to establish a Vaccines for Children program under which certain specified groups of children are entitled to receive qualified pediatric immunizations without charge for the cost of the vaccine. This program permits providers to impose a fee for the administration of such a vaccine, as long as the fee does not exceed the costs of such administration, without permitting the provider the ability to deny administration of the vaccine due to the inability of the child’s parents or guardian to pay the administration fee.

The explicitly stated, expected, overall benefit from the Medicaid final rule is increased provider participation by primary care physicians, resulting in better access to primary and preventive health services by Medicaid beneficiaries. However, skeptics have questioned the ability of the final rule to generate such increased participation due to the fact that the increased rates are only in place for a 2-year period, 2013 and 2014. Currently under the final rule, states are required to collect and report data to CMS on the impact of the higher rates on physician participation. That data will assist Congress in determining whether or not to extend the provisions of the final rule beyond the end of 2014.

Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule, DME Face-to-Face Encounters, Elimination of the Requirement for Termination of Non-Random Prepayment Complex Medical Review and Other Revisions to Part B for CY 2013

In conjunction with implementing the foregoing Medicaid payment increases, CMS also released a Medicare final rule with comment period that includes a statutorily required 26.5 percent across-the-board reduction to Medicare payment rates for more than 1 million physicians and non-physician practitioners under the Balanced Budget Act of 1997’s Sustainable Growth Rate (“SGR”) methodology. While Congress has overridden the required reduction every year since 2003, currently no such action has been taken.

Additionally, the Medicare final rule establishes payment rates for 2013 for the physician fee schedule, payments for Part B drugs, and other Medicare Part B payment policies to ensure that the payment system is updated to reflect changes in medical practice and in the relative value of services. It also includes a new policy to pay a patient’s physician or practitioner to coordinate the patient’s care in the 30 days following a hospital or skilled-nursing-facility stay. The changes in care coordination payment and other changes in the rule are expected to increase payment to family practitioners by 7 percent, and other primary care practitioners between 3 and 5 percent, if Congress averts the statutorily required reduction in Medicare’s physician fee schedule.

The Medicare final rule also includes the implementation of the physician value-based payment modifier under the ACA. Under the ACA, this new system is required to apply to all doctors by the start of 2017, and is one of the trickiest and most politically loaded parts of Medicare’s effort to shift away from paying for the volume of services and toward the quality of care.

The value-based payment modifier is the percentage by which amounts paid to a physician group under the Medicare physician fee schedule are adjusted based upon a comparison of the quality of care furnished to cost of care. The payment modifier provides for differential payment starting in 2015, based on performance in the 2013 calendar year. CMS originally planned to apply the modifier to medical groups of 25 or more professionals; however, in the final rule CMS changed the plan to only include medical groups of 100 or more practitioners. This change was adopted to gain experience with the methodology and approach before expanding to smaller groups—which CMS emphasizes will occur in future rulemaking.

In general, physicians with higher quality and lower costs will be paid more, and those with lower quality and higher costs will be paid less. The final rule provides an option for these groups of physicians to choose how the value modifier is calculated based on whether they participate in the Physician Quality Reporting System (“PQRS”). The PQRS is a voluntary program that allows physicians and other healthcare professionals to report information to Medicare about the quality of care they provide to people with Medicare who have certain medical conditions. All of the quality measures for which groups of physicians are eligible to report under the PQRS starting in 2013 are used to calculate the value-based payment modifier to the extent the group submits such data. Note, however, that the final rule also makes minor changes to the PQRS. Additional quality measures for those not participating in the PQRS are composites of rates of potentially preventable hospital admissions or readmissions.

Among other changes, the final rule also implements provisions of the ACA by removing certain regulations regarding termination of non-random prepayment review. Medical review is the process performed by Medicare contractors to ensure that billed items or services are covered and are reasonable and necessary. As a result of this final rule, contractors are not required to terminate non-random prepayment medical review by a prescribed time, but instead must terminate each medical review when the provider or supplier has met all Medicare billing requirements as evidenced by an acceptable error rate as determined by the contractor.

Finally, the rule implements provisions of the ACA by establishing a face-to-face encounter with a beneficiary as a condition of payment for certain durable medical equipment items such as prosthetic devices, orthotics, and prosthetics. The encounter must occur during the six months prior to the written order for each item or during such reasonable timeframe as provided by the Secretary.

Overall, this Medicare final rule continues efforts by CMS to align quality reporting across programs to reduce burden and complexity, and emphasizes paying for the quality of care as opposed to volume of services provided.

From Intervention to Prevention

“Healthcare Reform,” “PPACA” and “ACOs” all have one certain thing in common:  cost-saving change.  Though debate swirls about politics, timing and the particulars of change, it seems clear that the changing demographics of our country (aging baby boomers) in our economic climate is not sustainable as is.  And it’s no surprise that a compensation system based on how much is done and how much it costs leads to greater expense.  An economic reward system that drives costs up as more and more people are set to join the ranks of the insured (through mandated health insurance and expanded Medicaid) simply underscores the timing of the change.  What does that mean for physicians?

Physicians are asking three key questions:

  1. Is there a future for small or solo practices?
  2. Is fee for service really gonna change?
  3. What can I do right now to adapt?

The Future of the Small Practice

The only solid answer is “less.”  It really depends on complex things like the demographics of where the doctor practices and the number of competitors close by.  That said, as change happens, the hardest hit will likely be the smaller practices, since they lack the personnel and financial resources to weather the change and to invest in adaptation.  Many small practices will likely experience change in such a way that the best they can hope for is to survive, rather than thrive.  Even worse, solo practitioners already know what it’s like to handle all the duties as a physician, keep track of business operations and keep the patients flowing into the practice.  Exhausting.  Without substantial support and resources, it’s just not realistic for most solos to expect to keep up.

Even larger practices are not often run like a business.  The professionals that generate the revenue often manage as well.  Moreover, most medical practices do not market or do any serious “back office” magic (revenue cycle management).  As such, change hits small practices especially hard.  Implementing even new EHR requirements can be consuming for a small practice.  How will it be as changes are made to reduce cost and improve quality?  How will it be when practices begin to see there is opportunity in change, that they may actually make more money in a risk based compensation environment?  Rougher.  Like a herd of buffalo when attacked, circling together is a good strategy.

That said, the vision has to be clear.  Why circle together?  Most medical practices are combining and growing to guard market share, not to manage costs or measure and demonstrate quality.  This is probably the biggest reason why we see larger practices in single specialties, not multi-specialty or primary/specialty based practices.  Most physicians that are adapting by joining larger practices are doing so for the same reason why buffalos circle together—the threat of change.  Though size alone is no panacea, larger practices are definitely in a better position to adapt.

Let’s face it:  few are running after change in healthcare right now.  Few see the opportunity and are leading the charge.  Most are waiting or are just setting the stage.  And most large practices are, at best, a good platform where change can be implemented and costs can be shared and spread among a larger pool.

Will There be a Change to Fee for Service Payment?

Yep.  Simple as that.  It’s already happening.  Bundled payments are in place, even in Florida.  Capitation is old hat for many now.

When?  Over time…  Not right away.  Even ACOs aspirants are selecting just one sided risk, testing the water as they see how well they do to reduce costs, improve quality and “earn” their right to bonus money.  Physicians that think fee for service will thrive for decades are kidding themselves, at least in the insured market.  Is there a basis for it in a “second tier” or concierge sort of environment?  Probably.

What Can I Do Right Now?

First, accept that we are approaching a new paradigm of healthcare delivery.  The current model of disease/injury crisis management has prepared no one for the move from intervention to prevention.  And yet, systems that are solidly based in wellness and prevention stand to profit most from the change we all face.

Second, look to shore up you business model.  That means:

  1. Look to join a larger practice that is committed to thriving in the future risk-based compensation scenario.  If the practice is there just to thrive in a fee for service environment and has no commitment to thriving in a risk based compensation model, keep looking;
  2. Market.  Most practices do not market at all, and yet consumers are selecting medical care in the most unlikely environment—the internet;
  3. Look at anything concierge-like.  Most of the public conversation centers around the insured market, mostly the Medicare Shared Savings Program (which has spawned the ACO concept).  What about the rest of the consumers?  As the insured market gets squeezed (remember that consumers are feeling the pressure too with heightened copays, deductibles and benefit limits), you can expect growth of the “second tier,” those who want more and are willing to pay for it;
  4. Build in wellness and prevention.  Not all practices lend themselves to wellness related services that can reduce healthcare costs, but those that do must look at ways to offer cost-saving, wellness and prevention-oriented services;
  5. Enlist the patients.  The concept of “partnering” with patients is strange, but consider the amount of savings and the enhancement of outcomes if physicians could incentivize healthy patient behavior.  Though absent from the public policy conversation, health care businesses that build in patient accountability stand to win big in a payment system that rewards clinical outcomes and cost savings.

Change is frightening.  Even “good” change is frightening.  Just look at all the upset stomach meds sold at airport kiosk counters.  Physicians have a terrific burden at this time.  They not only hold our health in their hands.  They are expected to have skills and time to help create a new environment in which care will be delivered.  Denying change in the healthcare sector is a waste of time and energy.  Looking for ways to thrive in it and even drive it is wise.

The Florida Healthcare Law Firm Goes National

Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at http://www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!

Supreme Court upholds Obama health care law

Via @USAToday

The Supreme Court upheld President Obama’s health care law today in a splintered, complex opinion that gives Obama a major election-year victory.

Basically. the justices said that the individual mandate — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax.

Chief Justice John Roberts — a conservative appointed by President George W. Bush — provided the key vote to preserve the landmark health care law, which figures to be a major issue in Obama’s re-election bid against Republican opponent Mitt Romney.

The government had argued that Congress had the authority to pass the individual mandate as part of its power to regulate interstate commerce; the court disagreed with that analysis, but preserved the mandate because the fine amounts to a tax that is within Congress’ constitutional taxing powers.

The announcement will have a major impact on the nation’s health care system, the actions of both federal and state governments, and the course of the November presidential and congressional elections.

A key question for the high court: The law’s individual mandate, the requirement that nearly all Americans buy health insurance, or pay a penalty.

Critics call the requirement an unconstitutional overreach by Congress and the Obama administration; supporters say it is necessary to finance the health care plan, and well within the government’s powers under the Commerce Clause of the U.S. Constitution.

While the individual mandate remained 18 months away from implementation, many other provisions already have gone into effect, such as free wellness exams for seniors and allowing children up to age 26 to remain on their parents’ health insurance policies. Some of those provisions are likely to be retained by some insurance companies.

Other impacts will sort themselves out, once the court rules:

— Health care millions of Americans will be affected – coverage for some, premiums for others. Doctors, hospitals, drug makers, insurers, and employers large and small all will feel the impact.

— States — some of which have moved ahead with the health care overhaul while others have held back — now have decisions to make. A deeply divided Congress could decide to re-enter the debate with legislation.

— The presidential race between Obama and Republican challenger Mitt Romney is sure to feel the repercussions. Obama’s health care law has proven to be slightly more unpopular than popular among Americans.

Full Story Here: http://content.usatoday.com/communities/theoval/post/2012/06/Supreme-Court-rules-on-Obama-health-care-plan-718037/1#.T-xqPhd5F9E