Recent Media

Recent Media Dropbox link:

Dropbox link

Great Conference

Attended and spoke at the annual convocation of the American College of Health Care Administrators.     www.achca.org

For conference materials and updates please drop by Dropbox.  Dropbox Share

"Chaperone" Policy Template

There is a massive scandal raging at Michigan State University and widely across the national women's gymnastics program.

One physician, left largely unsupervised for decades, is alleged to have committed perhaps hundreds (or more) sexual assaults on innocent athletes, some of them minors.

We had policies for physician offices 25 years ago. Apparently not everyone was paying attention.

A draft chaperone policy can be found at our Dropbox link.
Updates will follow. 

This is NOT legal advice.

MGMA Dropbox Share Link

Ride the Tiger - Health Care Edition

President Harry S. Truman and country singer Buck Owens both used a familiar ancient idiom – when you grab hold of a tiger letting go is dangerous.

The Trump administration and the Republicans in Congress have learned the same lesson the hard way, they jumped on the health care tiger and now they do not know what to do.

Where are We At?

The Republicans in Congress have discovered some hard truths about health care.

U.S. health care is complicated.

The Affordable Care Act is complicated.

Health care economics is complicated.

Budget politics is complicated.

Writing new health care law is complicated.

Keeping promises is complicated.

Pleasing 325 million people, or even a slice of that population, is complicated.

So all of the chest thumping and hollering about “repeal and replace” has so far turned into hollow noise, because doing something of substance is a lot tougher than shouting slogans.

What They Don't Know

In six years I have not encountered a Republican, either face-to-face or through their media presence, who sounded as if they actually knew what is in Obamacare and why. I suppose such people exists.

It is all about the slogans.

“Death panels!” “Illegal mandates!” “Crushing tax burdens!”

The U.S. health care system was complicated before the Affordable Care Act, and the overwhelming complexity of ACA made it much worse. Add to this thousands of pages of Obama-era regulations and there is a lot to know about the current health care system.

This cannot be fixed with slogans.

The GOP Menu (maybe)

Conservative think tanks and the GOP have been circulating the same ideas for decades.

Health Savings Accounts – good for the affluent, not so good for anyone else

Interstate sales of health insurance – does absolutely nothing for consumers, except expose them to lousy insurance plans - but good for lousy insurance companies and salesmen

“Market based” consumer choices – as in buying oncology is like buying a cheeseburger

Dump ACA subsidies, replace with tax credits (subsidies!)

Special treatment for Big Pharma – yes, Congressmen are for sale (both parties)

Block grant Medicaid – give Medicaid policy to Sam Brownback and Paul Lepage - wow

Send poor people back to Emergency Departments (which hurts hospitals)

So What Am I Saying?

The GOP does not have a coherent plan to replace the Affordable Care Act and may never have such a plan. There will likely be a repeal, total or partial, but the replace will be difficult.

The GOP might eventually have a plan to make Rush Limbaugh, the Koch brothers, the Tea Party and Fox News happy, sort of. Even that may fail.

The GOP has been blaming ACA for higher consumer costs (higher deductibles and co-pays) , and may replace ACA with a plan with – you guessed it – higher deductibles and co-pays,, including for seniors.

Repeal and Replace, or Partial Repeal and Partial Replace, or Reform and Repair, or ?????

On Super Bowl Sunday President Trump told Fox News that “repeal and replace” could take up to a year. Huuuge!

A few days earlier Rep. Jim Jordan, on the far right wing of Congress, said the total and complete and quick repeal of ACA was the only viable strategy. Soon.

In the last ten days or so “repair” has become a popular word, often in a phrase such as “reform and repair.” This implies that not all of ACA would be repealed, some of it would be repealed and new features would be added as a repair.

Ask ten Republicans in Congress and get seven or eight different answers. There is also squabbling about whether health care should be done before tax reform. The House majority and the Senate majority have different ideas, and the Senate majority is pretty thin.

So, the GOP has painted itself into a corner. The GOP could recover, stranger things have happened in Washington, but as of early February consensus is not looking either quick or easy, which makes near term legislation unlikely.

Legislative strategy

IF, repeating IF the GOP can agree on a plan, the various pieces and parts must through the legislative process. Some parts could move through reconciliation, others through the standard legislative process. This could cause a problem in the Senate.

The Longer Term

House Speak Paul Ryan has promised to”fix” Medicare.

There are ways to fix Medicare, but Ryan apparently has no clue. There are serious reform efforts already in motion to move Medicare from the original fee-for-service model to a more sophisticated value-based model, the legislation passed by bipartisan votes.

His approach is to turn Medicare into a for-profit play pen for insurers and doing tremendous damage to senior citizens. Wow.

Believe It Or Not?!

President-elect Donald Trump has started inauguration week by promising to unveil a new replace plan for the GOP repeal-and-replace project.

Trump is now promising, or at least dancing around promising:

universal insurance coverage

better quality

lower premiums

lower deductibles

In other words, none of this is realistic in the slightest. Reality is no longer a concern.

The only way "inexpensive insurance” works is if it really “cheap insurance.” Also known as lousy insurance.

Reports have Congressional Republicans wondering where this came from and what it will look like. Not to mention, what it would cost? And how is it conservative?

Trump has at least one good idea, the Medicare and Medicaid programs should be able to negotiate fixed prices with Big Pharma. Problem is, Congressional Republicans are committed to protecting Big Pharma even if the taxpayers continue to be cheated.

Stay tuned.

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.

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.

Link:

Restraints article

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.

Wow.



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