Replace and Repeal

Obamacare is dead! Long live Obamacare.

The Republican Party will control all branches of government in January, and has a stated purpose to repeal and replace Obamacare (properly the Affordable Care Act). 

Repealing Obamacare may not be as easy as  it sounds, and replacing it has many risks and uncertainties.

Both parties agree the system needs reform. That is about all they agree on.

Repeal:

Obamacare care is much more than a piece of legislation, it is now six years of regulation and innovation, and is intertwined through the health care system. There is no unpeeling of an apple.

There has been much to like about the intentions of Obamacare, even if the design and  implementation were  often wretched. The latest regulations on Medicare physician payment run to 2171 pages of  complex and convoluted regulatory excess.

Obamacare gets a good grade on intentions, but not so good on design or operations. Still, a full operational repeal is not possible, too many changes are ingrained into the system for a full.

Replace:

Timing is everything. I just finished reading House Speaker Paul Ryan's  A Better Way plan including the health care section. Whether or not Ryan is popular with his own membership, his health plan lays out the key ingredients of any GOP or conservative health reform plan. I am not impressed.

Leading the list are Health Savings Accounts (HSAs) and the interstate sale of health insurance policies, neither of which are likely to provide the salvation promised. 

Health care markets do not work like the markets  for buying a shirt,  a car or a head of lettuce. The HSA idea may be overrated as a tool of salvation, but good for the affluent.

The interstate sale of insurance policies saves money only if the insurers under price their products, and that can only happen for a few years before something bad happens. This is much like several of the ACA exchanges. I fear interstate sales will empower 1-800-Lousy-Policy companies, a consumer nightmare in the making.

The replace program promises cost savings through consumer choice, a profound misreading of how consumer find and use health care.

Like most GOP initiatives, the plan works well for the affluent and not  so well for anyone else. And when the GOP talks about “protecting Medicare,”  I know we are in trouble. The pro-life GOP will find a way to punish Medicaid recipients, count on it (and punish hospitals in the process).

Curiously, the GOP plan for patient protection  includes many features – wait for it – of Obamacare, just without the details. Lots of buzzwords though.

Perhaps I am a bit too cynical, but I think not. The Trump administration will be a wild ride on many counts, and not the least of it will be health care.

This is Gonna Get Interesting

The Republican Party won all three branches of the federal government yesterday, which means the "repeal and replace" program for Obamacare will begin in earnest in January.

This is going to be interesting. What do we do now? Stay tuned.

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.  ( https://www.ahcancal.org/Pages/Default.aspx) 

The lawsuit challenges regulations published in the new long-term care regulatory package (https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf).

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.

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).


https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf

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.

https://qpp.cms.gov/docs/CMS-5517-FC.pdf

https://qpp.cms.gov/education

______

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

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. [https://oig.hhs.gov/compliance/compliance-guidance/index.asp]

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

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.

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:

DHHS Small Practice Announcement

MACRA Physician Office Regulations

962 pages, 4 1/2 inches thick


                                                                       

                                                                           

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.

MMGMA Spring Conference Dropbox Link

Click on Link

MMGMA S2016 Dropbox Ealey

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.

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.

http://thebusinessofsmallbusiness.blogspot.com

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:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-10032.pdf


Federal Register website:

https://www.federalregister.gov/articles/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm

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.