UPMC/Highmark Continuity of Care Settlement

PBGH just recently sent out a client alert regarding UPMC/Highmark Continuity of Care Settlement as follows:  UPMC and Highmark have announced a settlement agreement that addresses the Consent Decrees’ Continuity of Care provision. This settlement will govern continuity of care beginning January 1, 2016 until the end of the Consent Decrees on June 30, 2019.

The settlement agreement provisions include:

  • The need for continuing course of treatment will be determined by the patient’s physician in consultation with the patient
  • In-network access is available for patients who were in a continuing course of treatment for a chronic or persistent condition in 2013, 2014, or 2015
  • All services reasonably related to treatment will be covered at in-network rates
  • UPMC will identify “continuity of care” claims for Highmark and provide appropriate documentation as requested by Highmark. If Highmark does not receive the information received within 10 days, the claim may be deemed out-of-network
  • Clinical review and claims submission to the Department of Health where there is an in-network claims dispute

SGR Fix Already Revised and Hospital Outpatient Department $$ Reduced

The ink was barely dry on the Medicare Physician Sustainable Growth Rate (SGR) fix, and it has already been changed.

One component of the SGR fix, which was just passed in April of this year, was freezing Medicare physician payments from 2019 through 2025, and then allowing a .75% increase for physicians participating in alternative payment programs.

The 2015 Budget Deal extends the payment freeze through 2026.  I have not seen the language of the Bill with respect to the promised .75% increase for participating in payment reform.

In addition, the Budget Deal reduces payments to Hospital Outpatient Departments (HOPD) to the Medicare physician payment rates if the physicians are located more than 250 yards from the hospital campus.

OIG Posts Advisory Opinion on Free Transportation Program

On October 21, 2015 the Department of Health and Human Services Office of Inspector General posted Advisory Opinion No. 15-13.  This Opinion relates to a request for Advisory Opinion about a plan to offer free van shuttle services to certain medical facilities in an integrated health system.  The Office of Inspector General (the “OIG”) concluded that although the proposed arrangement could potentially generate prohibited remuneration under the anti-kickback statute if the intent to induce referrals were present, the OIG would not impose administrative sanctions in connection with the proposed arrangement.  In its analysis, the OIG considered a number of factors including: (i) the service would not be determined in a manner related to the past or anticipated volume or value of federal healthcare program business; (ii) the service would not include air, luxury or ambulance level transportation; (iii) van drivers would not be paid on a per person or per patient transported basis; (iv) the longest shuttle circuit was approximately 18 miles and was therefore distinguishable from those arrangements which sought to “leap frog competitor facilities and recruit beneficiaries from beyond the offerors’ primary service areas”; (v) the program was not marketed or advertised to the general public; (vi) the cost of the program is not shifted onto Medicare, a state healthcare program, other payors, or individuals; (vii) the arrangement was unlikely to subsidize the practices of private physicians; and (viii) local public transportation in the area was limited.  While an advisory opinion cannot be relied upon by anyone other than the requesting party, these factors should certainly be given consideration should an entity of which to establish a free transportation program.


OCR Announces HIPAA Security Settlement with Cancer Care Group, P.C.

In September, 2015, OCR and HHS issued a press release announcing a Resolution Agreement with the Cancer Care Group, P.C., which included entry into the agreement, the adoption of a robust compliance plan, and the payment of a $750,000 penalty. The settlement arose out of an incident involving the theft of an employee laptop containing unencrypted PHI.

Providers and practitioners generally understand that HIPAA doesn’t require a guarantee of absolute privacy and security, but it absolutely requires good faith efforts to protect PHI. OCR emphasized that the most significant aspect of this situation was that CCG was a widespread non-compliance with the HIPAA security rule, because it had not conducted an enterprise risk analysis and it did not have written policies regarding hardware and removing hardware and electronic media containing PHI from its facilities, even though it was aware or should have been aware that this was a widespread practice.

As a reminder, please be aware that HHS and the Office of the National Coordinator for Health Information Technology (ONC) has published a security risk assessment tool.

Office of Inspector General Issues Policy Reminder on Information Blocking and the Federal Anti-Kickback Staute

The federal anti-kickback statute (42 USC § 1320a-7b(b), the “Statute”) prohibits individuals and entities from receiving or soliciting any remuneration for the referral of services reimbursable under any federal health care program. The Statute defines remuneration broadly to include kickbacks and rebates but also to include the purchasing or leasing of any products reimbursable under a federal health care program. Violators of the Statute can face civil monetary damages, program exclusion, criminal penalties, and liability under the False Claims Act.

To avoid liability under the Statute, businesses may choose to comply with certain exceptions referred to as “safe harbors” (42 CFR § 1001.952). One of these safe harbors relates to electronic health records and states that, under certain circumstances, “remuneration” under the Statute shall not include nonmonetary remuneration in the form of software, information technology, or training which is “necessary and used predominately to create, maintain, transmit, or receive electronic health records.”

To illustrate the importance of the safe harbor protections, the Department of Health and Human Services’ Office of the Inspector General (the “OIG”) has used the example of a hospital seeking to provide software to a physician practice. As a potential referral source for the hospital, this arrangement would violate the Statue and prevent the hospital from utilizing valuable software.

To remove barriers to the adoption of electronic health records while also reducing the risk that these arrangements will be used to reward the generation of federal health care business, the Statute imposes a number of requirements that must be met before the safe harbor protections are applied.

One such requirement relates to information blocking and prevents the donor from taking any action that would limit or restrict the use, compatibility, or interoperability of the items or services with other electronic systems. (42 CFR § 1001.952(y)(3)). As part of National Health IT Week, the OIG issued a policy reminder regarding how this information blocking may affect safe harbor exceptions.

The OIG takes the position that the donation of products with limited or restricted interoperability due to actions taken by the donor fail to meet the safe harbor requirements. For example, any arrangement in which the donor has restricted interoperability in an attempt to prevent a competitor from interfacing with a donated system, or charging these competitors high interface fees, would not meet the requirements for safe harbor protection.

Providers of software, information technology, and training services must take note of this policy reminder and ensure they take no actions that would restrict the interoperability or compatibility of their products and services with the products and services of others. Failure to comply with this requirement will preclude these providers from claiming safe harbor protections, thereby exposing them to liability under the Statute.
The full policy reminder can be found here: http://oig.hhs.gov/compliance/alerts/guidance/policy-reminder-100615.pdf

IRS Levy Against Medicare Payments Increases to 100% Effective October 16, 2015

The Internal Revenue Code was amended in April 2015 as part of the Medicare Access and CHIP Reauthorization Act of 2015 to increase allowable IRS levies against federal payments, such as Medicare receivables, from 30% to 100% effective October 16, 2015.

CMS has issued MLM Matters –  MLM number MM9285, to explain these changes.


Department of Justice Issues Guidance on Corporate Investigations and Executive Accountability

On September 9, 2015, Sally Quillar Yates, Deputy Attorney General of the Department of Justice (DOJ) issued a memo entitled “Individual Accountability for Corporate Wrongdoing” to address the issue of incentivizing executives, as individuals, to follow appropriate compliance protocols by emphasizing potential individual liability.

The memo stresses the importance and the difficulty of enforcing personal liability on corporations for criminal and civil violations. I believe this is especially appropriate to the “larger” entities and integrated delivery systems involved in healthcare, because private practice providers have always been more directly confronted with the personal liability issues.

The memo outlines six steps to be taken in the coordination of civil and criminal investigations, most of which you would assume would already occur. However, the memo enforces and emphasizes the importance of the process.

The six steps outlined in the memo can be reviewed in the attached link.

Blue Cross of Northeastern Pennsylvania Denied Peer Review Protection

The Pennsylvania Superior Court has decided the Pennsylvania Peer Review Protection Act does not apply to alleged peer review activity conducted by Blue Cross of Northeastern Pennsylvania, because Blue Cross is not a professional healthcare provider as defined in the Pennsylvania Peer Review Act.  Blue Cross argued it should have been protected because it’s activities were conducted by a peer review committee, but the Court pointed out that the “definition of peer review requires that it be initiated by a professional healthcare provider… and a review committee cannot be conducting peer review unless their review is being performed by a professional healthcare provider”.

The Opinion can be found at Anne Marie Venosh v. Jack Henzes, M.D., Cindy Anderson, PA-C, Scranton Orthopedic Specialists, P.C. and Moses Taylor Hospital.