health law update - michigan center for rural health cah conference... · health law update...

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2016 Michigan Critical Access Hospital Conference

Presented byBrian F. Bauer | 248.457.7821 | [email protected]

Health Law Update November 11, 2016

Overview Oversight of Provider‐Based Facilities

MACRA/MIPS

Review

Pick Your Pace

Physician Contracts

Section 1557 Compliance

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Provider-Based Issues• Montana Denial

– Hospital leased space to visiting specialists in two clinic locations – one in the hospital proper & the second was across the street

– Sites included both pb’d clinic operations staffed by employed physicians and space used by visiting specialists under part‐time leases

– CMS denied pb’d status and notified the hospital that it will recoup the provider‐based differential over the 18‐month period since the attestation was filed ‐ approximately $1.5 million

– Denied for sharing of space and the public awareness requirement ‐ the public would not be able to differentiate between hospital and freestanding services

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Provider-Based Issues• Montana Denial

– Common scenario for visiting specialists – especially in rural hospitals and CAHs

– Typically, leases are periodic and provide physicians with use of exam rooms in hospital outpatient departments or MOB

– When structured as a lease, the visiting specialist pays rent to the hospital and bills for the services globally on a CMS Form 1500 using POS code 11 (office)

– CMS's denying these arrangements based on the “exclusivity concept”

• State Operations Manual § 2026 and the CoP requirement that a hospital or a department be a "singular unit" dedicated in its entirety to hospital purposes and the treatment of hospital patients.

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Provider-Based Issues• Mixed Use

– When reviewing these mixed‐use locations, CMS:• Expects to see separate and distinct space for the provider‐based services – including separate and distinct waiting rooms, entrances, signage, etc.

• Focuses on the public awareness, life safety code and separate and distinct space.

• Have seen denials based on mixed‐use alone.

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Provider-Based Issues

• OIG Report – June 2016

– Purpose of the Study:

• to ensure that only facilities that met provider‐based requirements were receiving higher payments

• Provider‐based status results in higher payments by CMS & beneficiaries

• OIG has previously identified vulnerabilities with provider‐based designation and payment

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Provider-Based Issues

• OIG Report – June 2016

– Study Method:

• Collected and analyzed supporting documentation from 50 hospitals with off‐campus provider‐based facilities

• Collected information from CMS to determine whether CMS has the ability to oversee and review provider‐based billing and attestations

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Provider-Based Issues• OIG Report – June 2016

– Findings:

• CMS does not determine whether all provider‐based facilities meet the requirements for receiving higher payments

• Not all hospitals attest for all their facilities

• CMS cannot identify all on‐ and off‐campus provider‐based billing in its aggregate claims data

• More than 75% of the hospitals reviewed, that had not voluntarily attested, failed to meet at least one provider‐based requirement

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Provider-Based Issues• OIG Report – June 2016

– Recommendations:

• Eliminate provider‐based designation or equalize the payment, or

• implement systems to monitor provider‐based billing

• require hospitals to submit attestations for all provider based facilities

• ensure regional offices and MACs apply provider‐based requirements appropriately when conducting attestation reviews, and

• take appropriate action against hospitals when the provider‐based facilities do not meet the requirements.

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MIPS Basics

• Who is covered by MIPS

– “Eligible clinicians” include all:

• Physicians

• Physician Assistants

• Nurse Practitioners

• Clinical Nurse Specialists

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MIPS Basics

• Who is covered by MIPS (continued)

– except, clinicians that

• are newly enrolled in Medicare

• bill $30,000 or less in Medicare Part B charges (PFS) or provide care for 100 or less Medicare (Part B) beneficiaries

• are significantly participating in an Advanced APM (a QP or partial QP)

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MIPS Basics

• MIPS performance period is the calendar year 2 years prior to the payment adjustment year

– 2017 is the performance period for the 2019 payment adjustment

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MIPS Basics

• CMS is required to:

– Develop a methodology for assessing provider performance

– Use the methodology to calculate a composite performance score for each provider (0‐100)

– Use the composite performance score to calculate payment for the provider

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MIPS Basics

• The Performance Categories include:

– Quality (50% of total score 30% in 2021)

– Resource Use (10% of total score 30% in 2021)

– Clinical Practice Improvement Activities or CPIA (15% of total score)

– Advancing Care Information or ACI (25% of total score)

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MIPS Basics

• Quality Category

– Submit data on at least 6 measures

• at least 1 cross‐cutting measure and

• at least 1 outcome measure

– Can use either general measure list or specialty measure list

– CHAPS survey counts as one quality measure and one cross‐cutting measure

– Measures are scored between 0‐10 points based on performance against benchmarks

• clinician failing to report on a measure receives 0

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MIPS Basics

• Quality Category (continued)

– Bonus points

• 2 bonus points for additional outcome and patient experience measures

• 1 bonus point for additional high priority measures and for each measure submitted with end‐to‐end electronic reporting

– In addition, CMS uses claims data to calculate 2 (for 1‐9 clinicians) or 3 (10 or more clinicians) population measures

• total of 80‐90 points

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MIPS Basics

• CPIA Category

– Clinicians and groups receive points based on:

• PCMH participation – full score

• APM participation – 50%

• CPIA reported by the clinician/group – the number of activities x the points for each activity

– must be performed for at least 90 days during performance period

• Small practices and practices located in rural areas and HPSAs only have to perform 2 activities (of any weight) to receive the full 60 points

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MIPS Basics

• Advancing Care Information (ACI) Category

– Requires the use of certified EHR

– Overall score is the sum of the base score and the performance score, and bonus point for using data registry

– Base score – earn points by providing data on the objectives and measures

• possible 50 points

– Performance score by reporting on the eight measures

• possible 80 points

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MIPS Basics

• Advancing Care Information (ACI) Category (continued)

– Clinician or group that earns 100 or more points earns the full 25 points for this category

– No (0) points for this category if clinician or group does not achieve Protect Patient Health Information objective

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MIPS Basics

• Resource Use Category

– Each cost measure is worth 10 points

– Must see a minimum of 20 patients in a cost measure for that measure to be scored for that clinician

– the score for this category is the average score for all the measures scored for that clinician

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MIPS Basics

• Calculating Composite Performance Score

– CMS applies the category weight to each category score and totals the scores

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MIPS Basics

• Payment Adjustment

– Performance threshold is set at a level where approximately half of the MIPS clinicians are above the threshold and half are below

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MIPS Basics

• Providers with composite performance scores at or above the performance threshold will receive a zero or positive payment adjustment

– Providers with higher scores will receive a higher payment

• Providers with composite performance scores below the performance threshold will receive a negative payment adjustment

– Providers with lower scores will receive a greater negativeadjustment

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MIPS Basics

• Applicable Positive/Negative Adjustment Factor

– 2019: 4%

– 2020: 5%

– 2021: 7%

– 2022 (and subsequent years): 9%

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MIPS Basics

• Public Reporting

– For each program year, CMS will report on a public website, each clinician’s and each group’s performance under MIPS

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Advanced APMs and Other Options• Clinicians whose participation in Advanced APM is significant are exempt

from MIPS adjustment and receive a 5% Medicare incentive payment

• To be an Advanced APM, the APM must:

– Require at least 50% of the clinicians to use certified EHR technology to document and communicate clinical care information in the first year and 75% in the second year

– Base payments on quality measures similar to those used in the MIPS quality category

– Require participants to bear financial risk

• withholds• reduced payments• required payments

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Advanced APMs and Other Options• To be a Qualifying APM Participant (QP) and thus be exempt from

MIPS adjustment and receive incentive payment, the clinician must have:

– met or exceeded the threshold payment amount; or

– met or exceeded the threshold patient count amount

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Pick Your Pace

• Four Options:

– Option 1: Voluntary Exclusion (No Participation)

QPP is not mandatory, and MIPS eligible clinicians may voluntarily elect to not participate in MIPS for 2017. Selecting this Option will result in a four percent negative payment adjustment in 2019 to the MIPS eligible clinician's Medicare Part B reimbursement.

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Pick Your Pace

• Four Options:

– Option 2: Test Data Submission

This Option allows a MIPS eligible clinician to submit a minimum amount of 2017 data in order to avoid the four percent negative payment adjustment in 2019. The MIPS eligible clinician can elect to report 2017 data on one measure from the quality performance category, one activity in the improvement activities performance category or the required measures for the "base score" in the advancing care information performance category. Unlike Option 3 below, this submission does not require data to be reported for a minimum number of days during 2017.

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Pick Your Pace

• Four Options:

– Option 3: Partial Data Submission

– MIPS eligible clinicians can submit a minimum amount of 2017 data to CMS to avoid a negative payment adjustment in 2019 and could possibly receive a positive MIPS payment adjustment. Under this Option, a MIPS eligible clinician needs to submit data, for at least a full 90 consecutive day period, for more than one quality measure, more than one improvement activity or more than the required measures for the "base score" in the advancing care information performance category. This Option is different than Option 2 because it requires a MIPS eligible clinician to submit data on more than just one measure and also requires the clinician to submit data covering at least a 90 consecutive day period during 2017.

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Pick Your Pace

• Four Options:

– Option 4: Full Data Submission

– To maximize the prospects of obtaining a higher positive adjustment in 2019, a MIPS eligible clinician may elect to fully participate in MIPS for 2017. For full participation, a MIPS eligible clinician needs only to submit data on each of the required MIPS performance categories for a minimum period of 90 consecutive days during 2017. Under this Option, whether a MIPS eligible clinician receives a positive, negative or neutral payment adjustment in 2019 will depend on the clinician's performance from scores received in three of the four MIPS performance categories: (1) quality; (2) improvement activities; and (3) advancing care information. During 2017, the fourth performance category on cost will be weighted to zero.

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Physician Contracts

• it is time to:

– Review your physician contracts;

– Rethink your physician contracts; and

– Revise your physician contracts

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• On May 13, 2016, the Office of Civil Rights ("OCR") of the Department of Health and Human Services ("HHS") issued a final rule ("Final Rule") implementing Section 1557 of the Patient Protection and Affordable Care Act ("ACA"). The rule became effective on July 18, 2016.

– Failure to comply can result in loss of funding, and those who believe they experienced prohibited discrimination have the right to sue either individually or as part of a class action.

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Section 1557 Compliance• Section 1557 of the ACA provides that an individual shall not, on the basis

of race, color, national origin, sex, age or disability be excluded from participation in, denied the benefits of or subjected to discrimination under any health program or activity that receives federal financial assistance. The Final Rule implements Section 1557 and applies to the following entities:

– All health programs and activities that receive federal financial assistance through HHS, including Medicaid, Medicare and the Children's Health Insurance Program ("CHIP");

– All programs receiving meaningful use payments, advance premium tax credits and federal funding for clinical research…

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Section 1557 Compliance• In the past, discrimination regulations enforced by OCR barred

discrimination based on race, color, national origin, disability or age. In the Final Rule, HHS extended discrimination protection to sex discrimination. The prohibition of sex discrimination protects individuals from discrimination based on the following factors:

– An individual's sex;

– Pregnancy, childbirth and related medical conditions;

– Gender identity; and

– Sex stereotyping, including the stereotype that an individual must identify as either male or female.

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• Under the prohibition of sex discrimination:

– Individuals cannot be denied health care or health coverage based on their sex, including their gender identity and stereotyping;

– Women must be treated equally with men in the health care they receive and the insurance they obtain;

– Categorical coverage exclusions or limitations for all health care services related to gender transition are discriminatory;

– Individuals must be treated consistent with their gender identity, including in access to facilities;

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• Under the prohibition of sex discrimination:

– Providers may not deny or limit treatment for any health services that are ordinarily or exclusively available to individuals of one gender based on the fact that a person seeking such services identifies as belonging to another gender, provided that the service is necessary or appropriate; and

– Sex‐specific health programs or activities are permissible only if the entity can demonstrate an exceedingly persuasive justification, that is, that the sex‐specific health program or activity is substantially related to the achievement of an important health‐related or scientific objective.

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• Compliance and Required Notices:

– Covered Providers must provide notice to beneficiaries and the public stating that the Covered Provider does not discriminate under Section 1557 and how to file a discrimination complaint with OCR.

– Such notices must be displayed in a conspicuous physical location, be posted on the Covered Provider's website and be included in all significant publications and communications targeted at enrollees, applicants and members of the public.

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• Compliance and Required Notices:

– Additionally, Covered Providers with more than 15 employees must designate an employee responsible for compliance and adopt a grievance procedure.

– The first round of notice requirements must be compliant within 90 days. Covered Providers are required to file an Assurance of Compliance with OCR.

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• Meaningful Access for Individuals with Limited English Proficiency:

– An individual with LEP is a person whose primary language for communication is not English and who has a limited ability to read, write, speak or understand English.

– The Final Rule specifies that the prohibition on national origin discrimination requires Covered Providers to take reasonable steps to provide meaningful access to individuals with LEP who are eligible to be served or likely to be encountered within the Covered Provider's health programs or activities.

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• Information and Access to Services

– Notice Requirement. Covered Providers are required to post notices that specify:

– The Covered Provider does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs and activities;

– The Covered Provider makes available auxiliary aids and services, including qualified interpreters and information in alternative formats for individuals with disabilities, free of charge and in a timely manner;

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– The Covered Provider makes available language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner when necessary;

– How to obtain the aids and services above;

– Identification of and contact information for the individual handling grievances;

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– The availability of a grievance procedure and how to file a grievance; and

– How to file an OCR discrimination complaint.

– In addition to the notice, Covered Providers must also post taglines that alert individuals with LEP to the availability of language assistance services. The Final Rule requires the taglines, which provide information on accessing language services, to be posted in at least the top 15 non‐English languages spoken in the state in which the Covered Provider is located or does business. 44



• The notice and taglines should be posted in (i) significant publications and communications; (ii) physical locations where the entity interacts with the public; and (iii) on the Covered Provider's website accessible from the homepage. For small‐sized significant communications, the Final Rule requires posting of nondiscrimination statements and taglines in at least the top two non‐English languages spoken by individuals with limited English proficiency in the state.

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• Language Assistance Services.

– Covered Providers may provide language assistance services through the use of "qualified bilingual/multilingual staff" or "qualified interpreters."

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• Language Assistance Services. • Qualified Bilingual/Multilingual Staff. The Final Rule defines "qualified

bilingual/multilingual staff" as a member of the Covered Provider's workforce who (i) has been designated to provide oral language assistance as part of the individual's job responsibilities; (ii) has demonstrated he/she is proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized medical vocabulary or terminology; and (iii) is able to effectively, accurately and impartially communicate directly with individuals with LEP in their primary language.

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– Qualified Interpreter for an Individual with Limited English Proficiency. A "qualified interpreter" for an individual with LEP means an interpreter who (either remotely or on site) (i) adheres to generally accepted translator ethics, including confidentiality; (ii) has demonstrated proficiency in writing and understanding both written English and at least one other written language; and (iii) is able to translate effectively, accurately and impartially to and from such language and English using any necessary specialized vocabulary or terminology.

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– Ad Hoc Interpreters. The use of incompetent or ad hoc interpreters, such as family members, friends and children, can have negative implications because complicated medical terminology may be lost in translation. Covered Providers are prohibited from requiring an individual with LEP to provide his or her own interpreter. There are limited situations in which a Covered Provider may rely on an adult accompanying an individual with LEP to interpret, and Covered Providers are prohibited from relying on minor children to interpret or facilitate communication except in the event of an emergency.

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• Language Assistance Services. Other Considerations. Language assistance services must be provided free of charge, be accurate and timely and protect the privacy and independence of the individual with LEP. There is no definition for "timely"; rather, a determination of whether language assistance services are timely will depend on the specific circumstances of each case. In the proposed rule, it was noted that OCR expects that most entities will, at a minimum, have the capacity to provide individuals with LEP with qualified interpreters remotely, given the widespread commercial availability of relatively low‐cost language assistance services such as remote oral interpretation via telephone.

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Brian F. Bauer 248.457.7821

[email protected]

Anchorage | Dallas | Denver | Detroit | Indianapolis | Louisville | Milwaukee | Philadelphia | Seattle | Washington, D.C.

This presentation is solely for educational purposes and the matters presented herein do not constitute legal advice with respect to your particular situation.

health law update - michigan center for rural health cah conference... · health law update...

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