Wednesday, October 19, 2016

Quick draw litigation

The American Health Care Association has filed suit again the federal government, challenging the prohibition of coerced arbitration agreements in long-term care admissions.

The lawsuit challenges regulations published in the new long-term care regulatory package (

Providers use the arbitration to protect themselves against malpractice and business practices litigation. Providers think the malpractice system is a holy mess (which it is).

Consumer advocates think arbitration is an attempt to deny due process to residents and families (which it is).

U.S. businesses have increased the use of arbitration to avoid the courthouse and to deny due process to customers, employees, patients, etc. The push back is coming from the federal government.

Monday, October 17, 2016

Regulators Gone Wild

Long-term care:

Two weeks ago DHHS-CMS issued long-awaited updates on nursing home regulations.

The package, 700+ pages, is largely updates and clarifications, plus the new compliance standards (which were due March 23, 2013).

Physician Medicare Reimbursement:

Last week the new regulations on physician reimbursement dropped, all 2, 398 pages. Gasp.

The regulations begin a phase-in of the MACRA reimbursement system, replacing the failed SGR.  

In brief the system will evolve from a failed fee-for-service system to a value-based system. Essentially this is a good idea - if it can be implemented.

The feds have already admitted that small and rural physician practices are in a bad spot, and there are phase-in rules.

Much heavy lifting. Stay tuned.


DHHS-CMS  = Department of Health and Human Services, Centers for Medicare and Medicaid Services

MACRA = Medicare Access and CHIP Reauthorization Act of 2015

SGR = sustainable growth rate

Saturday, October 8, 2016

LTCF Mandatory Compliance

The Patient Protection and Affordable Care Act (PPACA or ACA or Obamacare) contained a requirement that long-term care facilities have a compliance program by October 23, 2013.

The regulations were not ready on time.

The regulations were finally dropped into the massive regulations package to be published on October 4, 2016. [Code of Federal Regulations 42.483.35]

If a facility does not have a compliance plan, it should not wait more than a year to comply. In a highly regulated environment enforced by numerous criminal laws and civil sanctions a compliance program has really been necessary all along.

The heart of a compliance program is billing integrity, when you ask the government for a check you certify the billing is accurate. Facilities are subject to the false claims act and the anti-kickback statute plus other civil and criminal penalties.
Billing integrity is not the end of a compliance program. 

Given the massive regulatory program facing LTCFs the program must be broader.

The regulations delineate a minimal standard as well as a standard for groups with five or more facilities. Facilities are free to exceed the minimum expectations and a more robust program is advised.

Is a compliance program more expense and work with no benefit? No, it should be much more. A compliance plan can prevent government sanctions and can also serve as a performance audit for numerous aspects of your operations

The “self-survey” used by many facilities are a preliminary approach to the state survey which is a type of performance audit that ties nicely to a compliance program.

Where to obtain guidance on a compliance program? The DHHS, Office of Inspector General offers direction for some, in the form of a series of guidance documents. []

We can provide consulting and written direction on successful compliance programs.

Saturday, September 24, 2016

Uncoordinated Care

My wife recently retired from a distinguished career as an RN, and I have been alleged to know a little bit about health care.

So, like the proverbial doctor at a cocktail party, we get asked about health care issues and health services. We gladly give the best advice and best referrals we can.

We are also are the recipients of a great deal of venting about problems in the health system. Lots of venting. And lots of venting about the failure of the system to be even a little coordinated.

Some of the venting is shocking. The lack of coordination in oncology care in some systems is almost scandalous. But oncology is not alone.

The era of hospital employed physicians is clearly causing some problems.

Patient: “When will I see my doctor, Dr. Smith?”

Nurse: “You won't see Dr. Smith until you are discharged, here you will see the hospital doctors.

Patient: Well, who is that?

Nurse: “ Dr. Jones will be your cardiologist, except on weekends when it will be Dr. Brown, but after 8:00 pm it will be the cardiologist on call. Dr. Clooney is your hematologist and Dr. Pitt is your gerontologist, except of course for after 8:00 pm and weekends and their day off.”

Patient (slowly): “Oh... my... God.”

And we wonder why patients are confused? Are we close to violating informed consent standards with this parade of physicians?

Surgery patients are a little luckier, at least they know who is in charge of the parade, usually.

And it can be worse after the discharge. Something even worse happens when patients are referred to physicians willy-nilly, and after the fact discover the physician is out of network. How do they find out, usually when a huge bill comes in the mail three weeks later.

So who is to blame for this? Everybody and nobody.

The health care system has been evolving rapidly since 2010, and most providers are trying to evolve and accommodate the change.

The September 2016 edition of the Annals of Internal Medicine gives us a grim report – the employment of physicians by hospitals has not improved care. The alleged benefits of better coordinated care, well, are not benefits so far.

Saturday, June 25, 2016

The Feds "Help" Small Physician Practices

The Affordable Care Act (Obamacare) has been very bad for small practices and especially small rural practices, thus the mad rush to integrate with hospitals and networks.

The recent publication of the MACRA regulations, a massive and complex pile of over-regulation, has put small and small/rural practices in even greater jeopardy.

Apparently DHHS realizes this problem, because a new program spending $100 million over five years will attempt to fix mitigate the damages.

(Small is 15 clinicians or fewer, which presumably eliminates many practices in integrated settings.)

The most remarkable use of the money is “..... the funding would support small practices by helping them think ...” presumably about the mess created by ACA and MACRA and how to survive.

In order to survive small practices are going to need very very sophisticated management and very sophisticated EMR and data analytic capabilities. How will that happen?

Link to announcement:

Friday, June 10, 2016

MACRA Physician Office Regulations

962 pages, 4 1/2 inches thick



Thursday, May 19, 2016

Brief Commentary of New Overtime Regulations

More detailed commentary to follow.

Brief Commentary on Overtime   (Dropbox link)

And do not forget, health care has some special rules, more on that later.

Monday, May 9, 2016

MMGMA Spring Conference Dropbox Link

Click on Link

I will adding new spreadsheets over the next few weeks.

I will also be updating the MACRA memo and will probably add a piece on the new overtime rules.

Later this summer, likely a piece on physician compensation issues.

Enjoy! Comments welcome.

Saturday, May 7, 2016

New Overtime Regulations

It is likely the Obama administration will publish new overtime regulations in May.

You will have sixty days to react and update your human resources functions.

Watch this site and our related site for detailed analysis.

Bureaucrats Gone Wild

This week CMS released a proposed rule on physician practice reimbursement, a 962 page monster document. Short headline, every physician practice will eventually have to sign on to MIPS or find some form of APM.

MIPS will be a combination of three previous failed programs - PQRS, value based modifier and the rule-from-hell EMR meaningful use. How's that going to work?

APM has several variations the most common being ACOs.

Any choice you make will exponentially increase your administrative work and the chance of full compliance is slim and none. Effectively physicians will be under intense pressure to ration hospital care.

The next three years are going to be a thrill ride.

PDF version:

Federal Register website:

Thursday, March 3, 2016

Reasonable and Necessary

“Reasonable and necessary” is a key principle in Medicare and Medicaid reimbursement.

“Reasonable and necessary” is a phrase used constantly by providers and the government.

“Reasonable and necessary” has never been fully defined, other than “you should know, ok?”

The federal government is using this standard to bring false claims and anti-kickback cases against providers.

More commentary will follow.

Saturday, December 5, 2015

Health Care Compliance Association

The Health Care Compliance Association represents professionals working in the roles of compliance officers and allied personnel. They perform a critical role in assuring the accuracy and integrity of health care quality and the health care revenue cycle.

Compliance Today is the main journal publication of the HCCA.

Tom Ealey co-authored an article in the December issue.


Restraints article

Sunday, November 29, 2015

Naughty, Naughty Hospitals

Every major health care conference I attend there are compliance seminars. Sometimes I listen, sometimes I teach the seminar. No serious person in health care has not attended a compliance seminar. Right?

So, does everybody sleep through the compliance programs, or just some executives and some physicians?

The recent Adventist and the Broward Hospital settlements should put fear in the hearts of hospitals employing physicians and also in the physicians themselves.

The two organizations have settled whistleblower qui tam cases with the federal government for more than $200 million with legal fees, [  1  ] both for structuring physician contracts to pay more than fair market value and to reward referrals.

The Broward case started with the Stark statute and bootstrapped onto the anti-kickback and false claims act. The Adventist case started with the Stark statute and hopped onto the false claims act. Adventist was also hit with upcoding and unbundling Medicare charges.

So what was happening?

The physicians were paid more than fair market value, comparing their salaries to local salaries and MGMA salary study numbers. Way more.

The physicians were paid more than the profits-before-compensation from their practices.

Some of the physicians were paid salaries and benefits higher than their entire cash collections!  Never mind operating expenses.

After physician compensation the practices were losing massive amounts of money – made up to the parent hospital with revenue the hospital generated by physician referrals.


[1]  settlements were Broward = $69.5 million, Adventist = $118.7 million

Monday, November 16, 2015

More Rules, More Regulations

The current nursing home surveyors' manual is more than 700 pages.

Apparently, that is not enough.

The Obama administration has draft a new set of regulations covering a wide range of topics. A few may be helpful, many not so much.

The administration thinks it may take up to a year to get the regulations in place.

Stay tuned.

The IRS Muddle

Take one very complex health care law and mix it with the complexity and confusion of the Internal Revenue Service, and what do you get?

Monday, September 21, 2015

Get ready, get set,.................?

October 1st marks the transition to ICD-10. We will roll from using about 13,000 ICD-9 codes to using 68000 ICD-10 codes.

Why? Well, the Europeans do it and ya know they are so much more sophisticated than we are.

Layered on top of a less than successful EMR roll out, this has the potential to be a first rate disaster.

Physician offices will be allowed a year of grace, which may or may not work any better than a cold turkey transition.

For physician offices, the standard will be "close counts." Amazing.

We will be watching this carefully.