Presented by D. Scott Jones, CHC Richard E. Moses, …...5/30/2014 1 Presented by Legal Risks of Non-Physician Clinicians, Practice Guidelines, & Quality Under PPACA D. Scott Jones,

5/30/2014

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Presented by

Legal Risks of Non-Physician Clinicians,

Practice Guidelines, & Quality

Under PPACA

D. Scott Jones, CHC

Richard E. Moses, D.O., J.D.

w w w . hpix-ins . c o m

Speakers’ Disclaimer

● Richard E. Moses, DO, JD and D. Scott Jones, CHC do not

have any financial conflicts to disclose.

● This presentation is not meant to offer medical, legal

accounting, regulatory compliance or reimbursement

advice and is not intended to establish a standard of care.

Please consult professionals in these areas if you have

related concerns.

● The speakers are not promoting any service or product.

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Presentation Goals

● Understand the changing health care system under PPACA

● Review the expanding role and risks faced with non-

physician clinicians (NPCs) under PPACA

● Discuss the evolving compliance and quality risks associated

with Clinical Practice Guidelines (CPGs)

● Review the quality demands and reporting requirements of

PPACA

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INTRODUCTION

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INTRODUCTION

● Background

● Identify the current demands on the Health Care

system

● Non-physician Clinicians (“Midlevel Providers”)

● Guidelines: Risks & Reimbursement

● Quality Reporting Measures Under PPACA

● Summary & Conclusions

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BACKGROUND

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Health Care Reform

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President Obama Signs PPACA

March 23, 2010


Health Care Reform

● Health Care Reform Goals

� Improve Access

� Universal Coverage

� Increase quality reporting to include outcomes

� Increase integration of care through partnerships

of physician networks and hospitals

� Cost control and cost reduction

Source: Physician Compliance Network 8

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Health Care Reform● Patient Protection and Affordable Care Act (PPACA 2010)

amended by the Health Care and Education Affordability

Reconciliation Act (HCERA 2012)

� Quality and Cost Payment (Title III, §§ 3002, 3003, 3007) – Adjusts

physician payments based on quality and cost through a value-

based modifier, beginning January 1, 2015

� PQRS – possible penalties for not reporting beginning in 2015 up to

2% of the prevailing fee schedule

� Fee-for-service → value based reimbursement (“quality”)

9www.physiciansfoundation.org/uploads/default/Physicians_Foundation_2012_Biennial_Survey.pdf

www.ncsl.org/documents/health/ppaca-consolidated.pdf


Health Care Reform● Fee-for-service → Value-based/Quality-based

reimbursement system

� Goal is to reward doctors & hospitals for improving quality of care

● Subsequent trends:

� Outcome-based payments

� Lower demand for hospitals

� Increased number of insured patients

� Improving patient experience

� Hospital competition on outcomes and total value

� Increased physician employment by health systems

10Health Affairs October 11, 2012

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DEMANDS:

THE CHANGING

HEALTH CARE SYSTEM

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Demands on the System• Increase from 260.2 Million Americans with health

insurance to 292.6 Million under PPACA

� US Census Bureau 2012 Current Population Survey, Annual

Social and Economic Supplement

• 32 Million Americans may acquire new health

insurance with PPACA

• U.S. physician workload expected to increase by 29%

from 2005-2025

• Over 60% of physicians are health system employees12

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Demands on the System

● Association of American Medical Colleges (AAMC) Center

for Workforce Study on Physician Shortage :

� 2015 → 63,000 physicians

� 2020 → 91,500 physicians

� 2025 → 130,600 physicians

● Primary care faces greatest physician shortage

13www.aamc.org/newsroom/newsreleases/2010/150570/100930.html


DEMANDS: Major Intersection

● What this means to Physicians & Compliance

Officers….

� Congress is focused on reducing “unnecessary” medical costs

� Decrease utilization of services

� Decrease reimbursement

� Combat & prevent health care fraud

� Over 70% of health care executives surveyed believed that

physicians performed inappropriate procedures for

monetary benefit

14Source: Physician Compliance Network

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Non-Physician Clinicians

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Nomenclature● Nonphysician Clinician (NPC) = Physician Extender =

Midlevel Provider

● Number & Use of NPCs �� Increasing

� Nurse Practitioner (CRNP)

� Physician Assistant (PA)

� Others

�CRNA → CerGfied Registered Nurse AnestheGst

� CRNM→ Nurse Midwives

Gore C. J Legal Med 2000;21:125-142. 16

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Arguments to Expand NPC Duties

• Competent to diagnose & treat @ physician level

• Delegation of routine tasks allows physician to deliver

higher quality of care

• Physician may attend to more serious patient health

care concerns

• NPCs deliver less expensive treatment

• NPCs improve access in underserved areas

• Solution to physician shortage Walsh JH. Gastroenterology 2000;188:459-60.

Druss BG, et al. New Engl J Med 2003;348:130-7. 17


Physician Liability for NPCs

Physician Liability (Vicarious)

● Lack of adequate supervision

● Untimely referral to consultant

● Failure to properly diagnose

● Inadequate examination

● Negligent misrepresentation

● Violation of health care fraud

laws

Legal Theories

● Vicarious liability

● Negligent supervision

● Negligent hiring/negligent

selection

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Moses RE, Feld AD. Am J Gastroenterol 2007;102:6-9.

Moses RE, Jones DS. JHCC 2011;12:51-56,75. (March-April)

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NPCs Current Trend

● Skirmishes across the nation re: roles NPCs should play in

medical care (NB: Physician shortage & Increased insured)

● NPCs taking on duties once solely performed by physicians

� Mini Clinics (Pharmacies)

� VHA proposal to allow NPs to practice throughout the system

without physician supervision

● State Scope-of-Practice Rules differ widely on autonomy

● Nurse-anesthetists (CRNAs) battle for autonomy

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Nurse Practitioner

Supervision Environment

20http://www.aanp.org/images/documents/state-leg-reg/stateregulatorymap.pdf

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AVOID LIABILITY• Hire qualified NPC

• Know state rules

• Properly train NPC

• Check all credentials

• Check all references

• Properly supervise

• Follow state supervision

requirements

• Review work regularly

• Encourage interaction

• Proper NPC intro

• Set high standards of care

for NPC

• Make sure procedures are

followed

• Stress documentation

Moses RE, Jones DS. JHCC 2011;12:51-56,75. (March-April)

Moses RE, Feld AD. Am J Gastroenterol 2007;102:6-9.21


GUIDELINES:

RISKS

&

REIMBURSEMENT22

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New Nomenclature

• Community Based Standard/Standard of Care

• Clinical Practice Guidelines = CPG

• Evidence Based Medicine = EBM

Williams, C. 61 Wash & Lee L. Rev. 179 (2004)

Leape, L. et al. 288 JAMA 501 (2002) 23


Clinical Practice Guidelines

Institute of Medicine, TO ERR IS HUMAN: BUILDING A SAFER HEALTH CARE SYSTEM (1999)

Barry Furrow, et al., HEALTH LAW 267 (2nd ed. 2000)

Finder J. Health Matrix: Journal of Law-Medicine 2000;10:67-115

• Institute of Medicine (IOM)

• CPGs Defined:

� “Systematically developed statements to assist the

practitioner with patient decisions about appropriate

health care for specific clinical circumstances.”

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CPGs in Medical Malpractice Cases

• Already affecting settlement patterns according to survey of malpractice lawyers1

• Plaintiffs have used guidelines to their advantage2

• ACOG Guidelines used the most!

• EXPERT TESTIMONY STILL NEEDED!

1. A. Hyams, D. Shapiro, T. Brennan. 21 J.Health Pol., Pol’cy & Law (1996)

2. See, e.g., Miles v. Tabor, 443 N.E.2d 1302 (Mass.1982); Basten v. U.S., 848 F.Supp. 962 (M.D.Ala.1994) 25


INTERSECTION: Compliance, Quality, Fraud, & Malpractice

• OIG Work Plan 2014

• PPACA & Quality

• Government Accountability Office (GAO)

� “…beneficiaries…who receive health care from providers who

adhere to PPACA…may receive higher quality of

care…Conversely, those who receive care from providers who

fail to do so may receive lower quality of care.”

26www.gao.gov/assests/590/589657.pdf

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INTERSECTION: Compliance, Quality, Fraud, & Malpractice

• General Accounting Office (GAO)

� “…it is possible that, if these (PPACA) standards

and guidelines become accepted medical practice,

they could impact the standard of care against

which provider conduct is assessed in medical

malpractice litigation.”

27www.gao.gov/assests/590/589657.pdf


CPG: Quality & Reimbursement• Measures collected under PQRS → “Quality Measures”

• Assessment of patient health outcomes & functional

status of patients

• Assessment of continuity & coordination of care & care

transitions

• Assessment of efficiency

• Assessment of patient experience & patient, caregiver, &

family engagement

• Assessment of safety, effectiveness, & timeliness of care

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QUALITY REPORTING

MEASURES

UNDER PPACA

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Hospital Value-Based Purchasing

• PPACA Title III, Subtitle A: Transforming the Health Care

Delivery System

� Incentive Payments to Hospitals meeting performance standards in

� MI, Heart Failure, Pneumonia, Surgery, Infections, Pulmonary Embolism

and DVT Prophylaxis, Stroke

� ED, Readmissions, Children’s Asthma

� Performance Scores increase/decrease DRG payments

� Incentives up to 2% of the Medicare FS by 2017

� Data and Scores on Hospital Compare Internet Site

� GAO reports October 2015 and January 2016

30http://www.medicare.gov/hospitalcompare

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Hospital Acquired Conditions

Payment Reductions

• PPACA Section 3008

� FS Payments for Hospital Acquired Conditions will equal 99%

of the FS

� The Secretary will determine a list of “hospital acquired

conditions”

� Confidential reports to hospitals tracking conditions

� This program will be expanded to all other types of providers

� Possible CMS reports on Hospital Compare Internet Site

� Effective FY 201531

www.medicare.gov/hospitalcompare


Long Term Care, Rehabilitation, Hospice,

PPS Exempt Cancer Hospitals, SNF, HHA

• PPACA Sections 3304-3006

• Quality Reports required 2014 for all types of facilities

• CMS “Compare” Internet sites to post data

• Reduction in the “increase factor” of payments, up to 2%

• Increase Factor can = 0%, resulting in a 2% reduction

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Integrated Care Demonstration Project

• PPACA Section 2704

• Project continues through December 31, 2016

• Goal: Establish bundled payments for services and

providers involving an episode of care and hospitalization

• Severity of illness adjusted payment

• Data collection monitors outcome, cost, quality

• Report to Congress: December 31, 2017

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Physician Compare Website

• Website required by Affordable Care Act

� § 10331(a)(1)

• Provides information regarding

� Physicians enrolled in Medicare Program

� Other eligible professionals participating in PQRS

• Information is publically displayed

34www.medicare.gov/physiciancompare

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• PPACA Section 10331(a)(1)

� PQRS Measures Reported

� Assessment of Patient Health Outcomes

� Assessment of continuity and coordination of care

� Assessment of efficiency and cost

� Assessment of patient experience

� Assessment of safety, effectiveness, and timeliness of care

� 2014: User Interface; reports published online

� January 1, 2015: CMS Report to Congress

35www.medicare.gov/physiciancompare


PPACA Section 10331(a)(2): CG-CAHPS

• Clinician and Group Consumer Assessment of Health Care

Providers and Systems (CG-CAHPS)

� Patient surveys begin 2014…individual physician surveys by 2015

� Timely care, appointments, information

� How well doctors communicate

� Patient ratings of doctors

� Health promotion and education

� Shared decision making

� Health status/functional status as a result of care rendered

• “Certified Survey Vendor” created

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PPACA Rule CMS-1600-P

Quality Reporting Measures• Physician Quality Reporting System (PQRS) 2014:

� 9 Measures must be reported

� 3 from National Quality Strategy domains

� For 50% of the entire Medicare-eligible patient population

• Effect of not reporting PQRS occurs in 2016

• Failure to report a selection of the measures = up to 2% reduction

in prevailing Medicare Fee Schedule

• Qualified Clinical Data Registries created for sub-specialists

dealing with specific diagnoses, conditions (§ 1848(m)(3)(E)(ii))

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• CMS must allow physicians & other professionals to

have reasonable opportunity to review their results

before posting

� 30 day preview period for all measurement data

• CMS will provide details of review process

� www.cms.gov

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Value Based Modifier

• How quality data reported under PQRS equals modification to

payments under the Fee Schedule

• VBM System use begins 2015; full implementation 2017

• Physician groups of 10 or more must report beginning 2016;

expect all physicians to report by 2017

• Quality tier system results in Fee Schedule reductions of up to 2%

• QRUR (Quality and Resource Use Reports) will report how the

value based modifier will impact individual physician

reimbursement, beginning 2014

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National Strategy for Quality Improvement

in Health Care

• PPACA Part S, Subpart I, Section 399HH(2)(B)(i-iii)

• Establishes Priorities that will:

� Have the greatest potential for improving health outcomes,

efficiency, and patient-centeredness…

� Identify areas…that have the potential for rapid improvement in

the quality and efficiency of patient care…

� Address gaps in quality…

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National Strategy for Quality Improvement

• HHS Annual Report to Congress, 2012

• “Key Measures and Long Term Goals”

� “…reducing the harm caused in the delivery of care…reduce harm

from inappropriate or unnecessary care….”

� CDC: 5% of hospital patients acquire health care associated

infections

� 145 Health Care Acquired Conditions (HACs) occur per 1,000

admissions

� AHRQ: Hospital Readmissions occur at a rate of 14.4%

� Compliance Officers are now Quality Officers

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Medicare Billing Data

● CMS has released billing data for all doctors, nationally, under the

Medicare program

● Data includes amounts billed, and totals billed to the federal payment

system

● Data showed the nation’s top Medicare billers: Washington Post

� Peter Whoroskey, Dan Keating, & Lena H. Sun

● “The government insurance program for older people paid nearly 4,000

physicians in excess of $1 million each in 2012 according to new data.

Those figures do not include what the doctors billed private insurance

firms.” April 9, 2014

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CONCLUSIONS &

SUMMARY

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D. Scott Jones, CHC ● Senior VP Claims, Risk Management &

Corporate Compliance – HPIX

● Leads a team managing over 700 malpractice claims

● Compliance, Risk and Claims for 3600 providers

● Former medical practice & hospital administrator

● Board Certified Healthcare Compliance Officer (CHC)

● Author, 12 nationally published books and over 50 articles on quality,

practice management, and regulatory compliance

● Frequent speaker to state, regional and national organizations

● Over 1000 risk assessment service visits to healthcare organizations

nationwide

● [email protected] (904) 294.563344

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Richard E. Moses, D.O., J.D.

● Practicing Gastroenterologist for over 30 years

● Board Certified:

� Gastroenterology

� Internal Medicine

� Forensic Medicine

● Adjunct Assistant Clinical Professor, Temple University School of Medicine

● Adjunct Professor of Law, Temple University Beasley School of Law

● Physician Advisor Healthcare Providers Insurance Exchange

● National Speaker, Author and Consultant on Medical, Risk and

Compliance issues

● [email protected]


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Presented byHealth Care Compliance AssociationDelaware Valley Regional Annual Conference

Philadelphia, PA

June 6, 2014

Thank You

Documents

Presented by D. Scott Jones, CHC Richard E. Moses, …...5/30/2014 1 Presented by Legal Risks of Non-Physician Clinicians, Practice Guidelines, & Quality Under PPACA D. Scott Jones,