While the False Claims Act (FCA) has been in existence for years, many providers do not know that the rule was extended in 2010. As part of the Affordable Care Act (ACA), Congress created the “60 Day Rule” and extended the False Claims Act liability to health care providers who fail to report and return overpayments within 60 days of identification if that overpayment came from a federal program (i.e., Medicare and Medicaid). United States ex rel. Kane et al. v. Healthfirst, Inc., et al (Case No. 1:11-cv-02325) (S.D.N.Y. August 3, 2015) is the first case in which the federal government intervened on an alleged violation of the 60 Day Rule. Continue reading
Category Archives: Valerie Shahriari
The Reality of the “Economic Realities Test”
By: Valerie Shahriari & Jacqueline Bain
Across the healthcare industry, providers and healthcare businesses are consistently faced with the decision of whether to employ or contract with their workers. Whether it’s a physician working with a group practice, or a marketer on behalf of a healthcare service, correctly structuring relationships between healthcare businesses and their workers is important. For tax reasons, many workers strongly prefer to enter into independent contractor relationships. However, simply calling oneself an independent contractor is not enough to solidify the relationship. Many times, workers who call themselves independent contractors are actually employees in the minds of the government. And sometimes, so-called “employees” with several part-time positions are actually viewed as independent contractors.
On July 15, 2015 the Administrator of the Department of Labor’s Wage and Hour Division (WHD) provided additional guidance regarding the application of the standards for determining who is an employee under the Fair Labor Standards Act (FLSA). The goal of the guidance is to help the regulated community in classifying workers and decreasing misclassification. The Administrator’s Interpretation reviews the pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA. The Administrator’s Interpretation then addresses each of the factors of the “economic realities test”.
According to the Administrator, when determining whether a worker is an employee or independent contractor, the application of the economic realities factors should be guided by the FLSA’s statutory directive that the scope of the employment is very broad. The FLSA’s definitions establish the scope of the employment relationship under the Act and provide the basis for distinguishing between employees and independent contractor.
The Supreme Court and Circuit Court of Appeals have developed a multi-factorial “economic realities” test to make the determination whether a worker is an employee or an independent contractor under the FLSA. The test focuses on whether the worker is economically dependent on the employer or in business for him or herself. The factors include: Continue reading
Managing Managed Care
While your healthcare business may be compliant with billing regulations and coding, this does not mean that your payer is compliant and has paid you correctly per your contract. Providers know that Fraud and Abuse has been one of the largest areas of focus for payers and the government over the past 20 years. Due to this attention, many healthcare businesses engage auditors to audit their compliance of claims quarterly or annually. However, in addition to compliance audits, a provider should be auditing their payer interaction to create a dynamic blueprint of denial management and payment recovery. The AMA states that a 5% denial rate for an average family practice equates to about $30,000 walking of the door. A good benchmark for payer compliance would be a denial rate of 5-10%. Often times, practices and healthcare businesses operate with a much higher rate, and even in the 20-30% range without even knowing it.
When auditing the payer interaction, several components should be included in the review including:
- Denial rate percentage
- Aging of claims paid for 30 day, 60 day, 90 day, over 120 day period as an Aggregate
- Aging of claims paid for 30 day, 60 day, 90 day, over 120 day period by each Payer
- Claims denied categorized by denial reason as an Aggregate for previous 12 months
- Claims denied categorized by denial reason by each Payer for previous 12 months
- Claims that have been appealed, the date submitted, the date of the outcome, the outcome by each Payer
- Claims not paid according to fee schedule as an Aggregate for previous 12 months
- Claims not paid according to fee schedule by each Payer for previous 12 months
Is an ACO Right for You? The Complete ACO Checklist for Providers
By: Valerie Shahriari
As the movement to value based arrangements continues many providers are considering joining an Accountable Care Organization (ACO). At the same time, regulators from the Federal Trade Commission (FTC) and the HHS Office of Inspector General (OIG) are signaling increased scrutiny of Accountable Care Organizations and other value based payment arrangements, especially those making creative use of the antitrust and fraud and abuse waivers in place for Medicare ACOs. A recent article states that claims of higher quality of care may help in defense of antitrust action. Tracking and organizing results that reflect efficiencies and quality improvements is obviously a must but before a provider even considers joining an ACO, the following questions must be asked and answered:
- What level of risk are you willing to assume?
- First know what level of risk you are willing to assume. For instance, are you comfortable assuming risk at all or do you want to enter this area more slowly and share in only the savings? A core challenge when converting to a value based, rather than fee for service system, is the lack of consistency in payment measures.
- What are your baseline metrics for the quality measures?
- The ACO will identify quality measures as part of the agreement. Currently there is a lack of a single set of metrics adopted by all payer sources. To negotiate your position, you must know your baseline and whether you can meet the benchmarks identified. Quality metrics can include for example, HEDIS measures, AHRQ measures, and CMS measures.
How to Get Managed Care Companies to Pay For Your Practice’s Improvements
Florida’s providers are buzzing with questions about value based care, asking why now? Is it a fad? Will it really ever be a widespread form of payment? Why does Florida seem farther behind the value based curve than other markets?
While there are more aggressive markets in other parts of the country, the bottom line is this: CMS changes are coming and they will not be stopped. The government has invested too much money to turn around at this point. Here are just a few examples of why:
- The CMS Value Based Program with hospitals is already implemented;
- Center for Medicare and Medicaid Innovation is piloting NUMEROUS programs covering many physician specialties
- CMS expanded the Medicare Shared Savings Program to 3 tracks.
- A new Merit-Based Incentive Payment for Physicians, Physician Assistants, Nurse Practitioners, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists will be apply to payments for services furnished in 2019.
The train has left the station. Providers will now shift from fee for service to value based payments with CMS. To be successful and still have a profitable business, clinical integration and quality improvements will need to be implemented to improve your practice whether you are hospital based or office based AND whether you are employed by a hospital or in private practice. These changes will be implemented for all of your patients as you will not distinguish in your level of service between patients with managed care as the payor rather than CMS. This essentially means that managed care payors will reap the benefits of these improvements in your practice. If you do not have a value based contract in place with the managed care payors they will not be sharing one dime with you. They will reap the benefits of your improvements AND keep the money! And by the time you get around to a managed care contract that is value based, the shared savings opportunities will be less than if you began those discussions now. Continue reading
How to Get Managed Care Companies to Pay for Your Practice’s Improvements
By: Valerie Shahriari, via Healthcare Reimbursement Blog
Florida’s providers are buzzing with questions about value based care, asking why now? Is it a fad? Will it really ever be a widespread form of payment? Why does Florida seem farther behind the value based curve than other markets?
While there are more aggressive markets in other parts of the country, the bottom line is this: CMS changes are coming and they will not be stopped. The government has invested too much money to turn around at this point. Here are just a few examples of why:
- The CMS Value Based Program with hospitals is already implemented;
- Center for Medicare and Medicaid Innovation is piloting NUMEROUS programs covering many physician specialties
- CMS expanded the Medicare Shared Savings Program to 3 tracks.
- A new Merit-Based Incentive Payment for Physicians, Physician Assistants, Nurse Practitioners, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists will be apply to payments for services furnished in 2019.
The train has left the station. Providers will now shift from fee for service to value based payments with CMS. To be successful and still have a profitable business, clinical integration and quality improvements will need to be implemented to improve your practice whether you are hospital based or office based AND whether you are employed by a hospital or in private practice. These changes will be implemented for all of your patients as you will not distinguish in your level of service between patients with managed care as the payor rather than CMS. This essentially means that managed care payors will reap the benefits of these improvements in your practice. If you do not have a value based contract in place with the managed care payors they will not be sharing one dime with you. They will reap the benefits of your improvements AND keep the money! And by the time you get around to a managed care contract that is value based, the shared savings opportunities will be less than if you began those discussions now. Continue reading
Provider Service Volume is No Longer King
As the shift from fee for service to value based payment develops, one thing is crystal clear: volume is no longer king. Prior to 2010, medical providers were being paid on the amount of services that they rendered. The more patients that they treated, the more money they made. That certainty has disappeared with value based compensation and outcomes are now driving the compensation. To be successful, a provider must learn to bend both the quality and cost curve. In short, providers must increase quality while decreasing costs.
When contemplating negotiating or entering into a value based contract, the first thing to consider is the amount of financial risk that your practice or healthcare business can take on. The four main types of financial payments are:
The best way to determine which payment model best suits your needs is to hire a qualified financial healthcare analyst who will be able to generate financial risk modeling. A provider will then have a common starting point to negotiate as well as a better understanding of the issues, risks, and potential cost savings involved. Continue reading
Value Based Payments Gaining Traction – CMMI Oncology Care Model
443 Providers sign up for the CMMI Oncology Care Model including numerous providers in Florida. The Oncology Care Model is a new payment model for physician practices administering chemotherapy. Practices receive reimbursement via an episode based payment model that incentivizes high quality coordinated care. Letters of Intent from payers (several of which are Florida payers) wishing to participate in the new model were submitted and Letters of Intent from providers wishing to participate were also submitted. A list of those payers and providers who submitted LOIs can be found at http://innovation.cms.gov/initiatives/Oncology-Care/ .
If you would like to learn more about value based payments for your practice, Attorney Valerie Shahriari is offering a free webinar on June 24, 2015. Registration is now open: “Preparing Your Practice for an Incentive Based Payment Structure”
Hospitals Respond to Governor’s Challenge…Are Hospitals Like Baseball?
Like a scene from the popular Netflix series, House of Cards, Governor Scott has requested that State agencies list critical services in light of a possible government shutdown over a battle of the budget. It is important to note that Floridians relying on Medicaid could be impacted and shifting their care from the Primary Care Doctors back to the Emergency Departments. Lawmakers will have a special session from June 1-20 with the goal of passing a budget.
In the meantime, hospitals have responded to Governor Scott’s challenge for profit sharing and likening healthcare to baseball. The Florida Hospital Association responded equating the profit sharing to an additional tax on hospitals. The Florida Hospital Association stated that hospitals already contribute roughly $1.3 billion to Medicaid as supported by a report commissioned by the State. Governor Scott also drew criticism from State Senator Don Gaetz in a talk radio interview where he likened the Governor’s profit sharing to government price controls.
Value Based Payments for Physicians
H.R.2 – Medicare Access and CHIP Reauthorization Act of 2015 was passed by the House on March 26, 2015 and the Senate on April 14, 2015. While the title of the law indicates one of the topics of the bill (removing the sustainable growth rate (SGR) methodology from the determination of annual conversion factors in the formula for payment for physician services), the title is not representative of a major change that could affect all physicians. Under the Medicare Access and CHIP Reauthorization Act of 2015, the Secretary of Health and Human Services is directed to consolidate components of the three specified existing performance incentive programs into a new Merit-based Incentive Payment (MIP) system under which physicians, physician assistants, nurse practitioners, clinical nurse specialists, and certified registered nurse anesthetists, would receive annual payment increases or decreases based upon their performance as measured by standards the Secretary shall establish according to specified criteria. Continue reading
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