Texas Society of Sleep Professionals The Sleep Profession After Health Care Reform October 5, 2013 Brandy Schnautz Mann Jackson Walker L.L.P. [email protected]

Texas Society of Sleep Professionals

The Sleep Profession After Health Care Reform

October 5, 2013

Brandy Schnautz MannJackson Walker [email protected]

Health Care Reform

• Patient Protection and Affordable Care Act– “PPACA,” “ACA,” or “Obamacare”– New federal laws and regulations– New compliance challenges for providers– Medicare reimbursement changes on the

horizon– Push for new provider arrangements

Health Care Reform

• PPACA, along with the accompanying Reconciliation Act, signed into law in March of 2010

• Upheld as constitutional by the U.S. Supreme Court on June 28, 2012

• Continuing efforts by opponents to repeal law or defund it

Goals

• Some goals of Health Care Reform – Universal coverage for Americans– Link reimbursement to outcomes– Lower cost of health care– New models for health care delivery

Universal Coverage• Intention to increase Medicaid enrollment

in states

• Creation of exchanges to allow purchase of insurance

• Federal subsidies for individuals to pay premiums– Tax credits to small business– Allowing adults may remain on parents’

insurance until age 26

Universal Coverage

• Implications– More Medicaid/CHIP recipients will be

accessing care– States can expand program to residents with

incomes up to 138% of federal poverty level– How many? Congress predicts enrollment to

grow by 7 million in 2014 to 12 million by 2020– But NOT in Texas

Universal Coverage

• Implications– More privately insured patients through

exchanges?• Exchanges opened October 1, 2013• Administration has not released figures• Some reports of enrollment in the single digits

nationwide• Not just how many enroll, but what kind of people

enroll will determine costs (e.g., young v. old, healthy v. sick)

Universal Coverage

• Implications in Texas– No expansion of Medicaid– Those who would have qualified if Medicaid

had expanded qualify for subsidies to purchase through exchange

Exchanges

• Three models for exchanges– State operated exchanges– Federally operated exchanges

• Default option• Texas

– Partnership exchanges between state and feds

Exchanges

• Current statistics (as of 09/30/13) – 18 states and D.C. will operate state-based

exchanges– 7 states will participate in partnership

exchanges– 26 states will use a federal exchange by

default• State still has role through insurance regulation

and state role in operating Medicaid• Texas

Focus on Outcomes

• New focus on patient-centered care, with plans to reward providers (primarily hospitals now) through higher reimbursement for:– Quality of care– Outcome of care– Patient safety– Efficiency of care

Focus on Outcomes

• But there is also a “stick,” such as:– CMS proposed rules and guidance to auditors

discourage short inpatient stays• These tend to maximize billing of Medicare Part A• Short stays are those that span less than two

midnights after admission, which CMS wants paid as outpatient under Part B

• But, long observation stays sometimes used by hospitals to counter readmission payment penalties

Focus on Outcomes

• Recent studies have shown that 2008 cut in payments for hospital-acquired infections did not affect infection rates– Cast doubt on policy of tying reimbursement

to quality improvement efforts

Fraud and Compliance

• Federal fraud and abuse laws and regulations amended by PPACA to decrease overpayments and fraudulent arrangements– False Claims Act– Self-disclosure – Program integrity– Compliance plans


• Federal anti-kickback statute– Federal health care programs (e.g., Medicare,

Medicaid)– Current law prohibits offer or receipt of

anything of value to induce purchase of health care services paid for by federal health care programs

• Safe harbors


• Federal anti-kickback statute– Anti-kickback statute expanded to provide

government with greater criminal and civil enforcement authority

– State of mind • Intent to violate the statute not required• Knowledge that practice illegal sufficient to

demonstrate violation


• Federal anti-kickback statute– Violation of statute is now a false claim

against the federal government in violation of the federal False Claims Act


• Stark– Prohibits physicians from referring a patient

for certain designed health services to an entity in which the physician (or close family member) has a financial interest

• Exceptions apply

– Unlike anti-kickback statute, intention to violate the law is not required


• Stark– Civil penalties (not criminal)– Violation of Stark law may result in an

overpayment


• Overpayments– New 60-day rule: providers must disclose and

return any overpayment within 60 days of the later of:

• The date the overpayment is “identified” or• The date a cost report is due, if applicable

or risk false claims liability


• Federal False Claims Act– A person who knowingly submits a false claim

to the federal government is liable for damages up to three times the amount of the false claim plus mandatory penalty amounts for each false claim

– Retaining an overpayment beyond the 60-day deadline now creates false claim liability


• Federal False Claims Act– qui tam actions– Allows private citizen (the “relator”) to bring

claim on behalf of the federal government and share in the recovery

– Health reform has revised definitions of “public disclosure” and “original source” to make it easier for relator to bring a case

Program Integrity

• Program Integrity in Medicare– Shift away from “pay and chase” model to

preventing improper payments– New measures allow for per-payment review

of claims in addition to post-payment• Automated data analysis to identify trends• Billing trends analyzed, outliers identified, etc.

Program Integrity

• Program Integrity in Medicare– Payment suspension based credible

allegation of fraud unless “good cause” exists not to (e.g., beneficiary access threatened)

– Initial period of 180 days with one-time 180-day extension to complete investigation

Program Integrity

• Program Integrity in Medicare– Enrollment moratoria on home health and

ambulance providers in specific geographic regions

– Provider screening heightened at enrollment• Connection with excluded providers

– ZPICs and RAC reviews continue

Program Integrity

• Revocation and deactivation of billing numbers– Revocation can result from non-compliance

with participation requirements, conduct• Must re-enroll

– Deactivation• No claims in 12 months• Failure to report changes or revalidate information

with CMS

Self-Disclosure

• Self-Disclosure of overpayments– OIG’s Self Disclosure Protocol – CMS’ Self-Referral Disclosure Protocol – Department of Justice

• Repayment to carrier without disclosure submission– Small amounts based on errors and

overpayments

Self-Disclosure

• Self-Disclosure of overpayments– OIG’s Self Disclosure Protocol

• Revised 2013• For CMP liability not simple overpayments

(minimum settlement amount $10,000 for non AKS violations, $50,000 for AKS violations)

• Must estimate damages• Use for reporting employee's excluded status• Suspends 60-day overpayment period

Self-Disclosure

• Self-Disclosure of overpayments– CMS’ Voluntary Self-Referral Disclosure

Protocol• New• For potential Stark violations• Must provide financial analysis of violation

disclosed• Suspends 60-day overpayment period

Self-Disclosure

• Self-Disclosure of overpayments– Department of Justice

• Has authority to resolve liability to the government under common law theories of payment by mistake or unjust enrichment

• May release provider from civil or administrative monetary claim under the False Claims Act


• Compliance plans are now a condition of enrollment for providers– Model plans by OIG available for some

provider types


• Compliance plan elements– Code of conduct and standards and

procedures– Oversight / compliance officer or committee– Education and training– Reporting mechanism


• Compliance plan elements (cont.)– Monitoring and auditing– Enforcement and discipline– Response and prevention

• If your plan doesn’t identify any issues, it’s probably not effective

• Plan should always be evolving

New Models

• Goal to encourage integration to cut costs

• “Accountable Care Organization” model– Still an evolving model– Composed of various providers – some

similarity to past models such as HMOs– Offer of increased reimbursement for meeting

performance measures• But also less popular threat of penalties for not

meeting measures

ACOs

• Two payment models– One-sided model allows providers have the

opportunity to share in any savings above 2% without any financial risk throughout the three years

– Two-sided model requires providers to assume some financial risk but allows them to share in any savings that occur (no 2% benchmark)

ACOs

• Quality measures– Patient / caregiver experience– Care coordination– Patient safety– Preventative health– At-risk population / frail elderly health

ACOs

• CMS reports results of Pioneer ACOs– 40% earned bonuses– Saved Medicare a gross $87.6 million (before

bonus distributions)– Cut growth in Medicare spending by 0.5%– However

• 9 of 32 members dropped out of program• No reporting on net gain / loss for participants

ACOs

• Obstacles– High start-up costs– High annual expenses– Integration issues – e.g., EHR compatibility– Patient behavior– Provider uncertainty

Health Reform and Sleep Providers

• Neither PPACA or regulations specifically target sleep profession or services– But CMS has shown willingness to target

specific groups and services – e.g., HHAs – Particularly true if CMS identifies patterns it

doesn’t like – e.g., increase in services, diagnoses; geographic trends

• No need to panic, but no provider group is immune from CMS scrutiny


• What to do now:– Develop a compliance plan and use it

• Don’t be afraid to uncover problems • Revisit it at least annually• Staff training


• What to do now:– Audit for overpayments and take action on

those identified• Seek legal counsel for anything other than minor

payment issues and before self-disclosing


• What to do now:– Beware the disgruntled employee

• More motivation than ever for qui tam relators• Person may be primarily motivated by desire to be

heard


• What to do now:– Do not ignore revalidation requests or other

communication from Medicare or Medicaid– Keep provider enrollment data up-to-date

• E.g., addresses, ownership structure changes


• What to do now:– Check staff, contractors, vendors, etc., for

exclusion from federal health care programs, felonies barring participation, etc.

– At beginning of relationship and periodically thereafter and keep documentation


• New patients?– Texans have access to federal exchange, so

there will be more potential patients with insurance

– No Medicaid expansion


• Join an ACO?– Jury is out on whether and how this model will

develop– Issue of business risk rather than legal

compliance• But note that participation in an ACO brings

additional legal challenges

Texas Society of Sleep Professionals

The Sleep Profession After Health Care Reform

October 5, 2013

Brandy Schnautz MannJackson Walker [email protected]

Documents

Texas Society of Sleep Professionals The Sleep Profession After Health Care Reform October 5, 2013 Brandy Schnautz Mann Jackson Walker L.L.P. [email protected]