Throughout the history of health care, payors and payees of Medicare/caid have existed in separate silos. In fact, the two have combated – the relationship has not always been stellar.
Looking into my crystal ball; however, all will not be as it is now [that’s clear as mud!].
Now, and in the upcoming years, there will be a massive shift to integrate payors and payees under the same roof. Competition drives this movement. So does the uncertainty in the health care market. This means that under one umbrella may be the providers and the paying entities.
Why is this a concern? First – Any healthcare entity that submits claims to the federal government, whether it be a provider or payor, must comply with the fraud and abuse statutes. As such, there is a potential to run afoul of federal and state regulations regulating the business of health care. Payors know their rules; providers know their rules…And those rules are dissimilar; and, at times, conflicting. The opportunity to screw up is endemic.
Second – With the new responsibilities mandated by the Yates Memo, these new relationships could create awkward situations in which the head of the payor department could have knowledge (or should have knowledge) of an [alleged] overpayment, but because of the politics at the company or self-interest in the preservation of his or her career, the head may not want to disclose such overpayment. With the 60-day rule, the head’s hesitation could cost the company.
The Affordable Care Act (ACA) reinvented health care in so many ways. Remember, the ACA is supposed to be self-funding. Taxes were not to increase due to its inception. Instead, health care providers fund the ACA through post payment and prepayment audits, ZPIC audits, CERTs, MFCU, MICs, RACs, and PERMs.
The ACA also made a whole new commercially-insured population subject to the False Claims Act. False statements are now being investigated in connection with Medical Loss Ratios, justifications for rate increases, risk corridor calculations, or risk adjustment submissions.
CMS imposes a duty to detect fraud, waste, and abuse (FWA). But what if you’re looking at your own partners?
The chart above depicts “old school” Medicare payment options for physicians and other health care providers. In our Brave New World, the arrows will be criss-crossed (applesauce), because when the payors and the payees merge, the reimbursements, the billing, and the regulatory supervision will be underneath the same roof. It’ll be the game of “chicken” taken to a whole new level…with prison and financial penalties for the loser.
Since 2011, kickback issues have exponentially grown. The Anti-Kickback Statute makes it a criminal offense for a provider to give “remuneration” to a physician in order to compensate the physician for past referrals or to induce future referrals of patients to the provider for items or services that are reimbursed, in whole or in part, by Medicare or Medicaid.
Imagine when payors and payees are owned by the same entity! Plus, the ACA amended the kickback statutes to eliminate the prong requiring actual knowledge or intent. Now you can be convicted of anti kickback issues without any actual knowledge it was ever occurring!!
Now we have the “one purpose test,” which holds that a payment or offer of remuneration violates the Anti-Kickback Statute so long as part of the purpose of a payment to a physician or other referral source by a provider or supplier is an inducement for past or future referrals. United States v. Borrasi, 2011 WL 1663373 (7th Cir. May 4, 2011).
There are statutory exceptions. But these exceptions differ depending on whether you are a payor or payee – see the potential criss-cross applesauce?
And, BTW, which types of health care services are bound by the anti kickback statutes?
- Clinical laboratory services;
- Physical therapy services;
- Occupation therapy services;
- Radiology services (including MRIs, Ultrasounds, and CAT scans);
- Radiation therapy and supplies;
- Durable medical equipment and supplies;
- Parenteral and enteral nutrients, equipment, and supplies;
- Prosthetics, orthotics, and prosthetic devices and supplies;
- Home health services;
- Outpatient prescription drugs; and
- Inpatient and outpatient hospital services.
Imagine a building. Inside is a primary care physician (PCP), a pediatrician, a home health agency, and a psychiatrist. Can the PCP refer to the home health agency? Can a hospital refer to a home care agency? What if one of the Board of Directors sit on both entities?
The keys to avoiding the anti kickback pitfalls is threefold: (1) fair market value (FMV); (2) arm’s length transactions; and (3) money cannot be germane to referrals.
However, there is no one acceptable way to determine FMV. Hire an objective appraiser. While hiring an objective appraiser does not establish accuracy, it can demonstrate a good faith attempt.
Number One Rule for Merging/Acquiring/Creating New Partnerships in our new Brave New World of health care?
Your attorney should be your new BFF!! (Unless she already is).
I am extremely excited to announce that our Gordon & Rees Raleigh health care team just keeps growing!! Remember, this is just the Raleigh health care team…firm wide, we are a health care team of 40-50 attorneys. Now that is a bench as deep as NCSU, UNC, and Duke’s basketball teams put together!
Robin was a partner at Smith Anderson for over two decades. In 2011, Robin was named Managing Partner of the Raleigh office of Nexsen Pruet, where the oversaw the growth of that office from 5 to 23 lawyers in less than two years. In January of 2013, Robin joined forces with his life-long friend, Paul C. Creech, Esq., to form a boutique health care law and litigation firm until Paul retired in 2015 due to medical reasons. Robin now joins us with renewed entrepreneurial spirit and vigor to make this Raleigh office of Gordon Rees a very special place to practice law and service clients.
Robin began his practice in health care litigation and morphed into a health care transactional attorney. He has bought and sold more physicians’ practices than Imelda Marco had shoes. He has created affordable care organizations (ACOs), has written physician policy manuals, and dealt with antitrust issues and e-discovery issues, including electronic medical records issues. When it comes to health care law, he is the Christopher Michael Langan without the sub-par childhood.
Personally, I have never had a mentor in the health care industry, and I believe that he can learn me a thing or two.
Robert transitioned to GR with me from Williams Mullen. He is absolutely brilliant with an analytical mind, which probably stems from his tax law background. Yes, he can answer tax questions for health care providers as well!
His expertise in numbers makes him exceptionally well-suited to argue against extrapolations, as he actually understands that independent variables are just variables that have become teenagers and want out of the house.
DeeDee comes to us from Williams Mullen, as well. Prior to WM, DeeDee worked as a senior consultant for more than six years at Ascendient Healthcare Advisors. DeeDee is also a smarty pants…she earned a Master of Public Health degree from the UNC School of Public Health as well as a J.D. from the UNC School of Law. You can’t have too many acronyms, right? She also has expertise in CON law.
That is our Raleigh health care team. Like I said, we have a wealth of knowledge nationwide with our healthcare team, and I would be remiss if I excluded a few of our super stars.
Our team is led by the brilliant Thomas Quinn out of the Denver office.
We also have a partner who is a registered nurse (RN), Linda Mullany, from the San Diego office.
And Joe DiCecco from the Houston office
And Thomas Chairs from the Pittsburg office.
And these are only a few attorneys that comprise our nationwide, talented health care team So, as you can see, I joined a rock star law firm with almost 700 attorneys in 35 offices nationwide. Gordon & Rees boasts the following statistics:
92% Trial Win Rate
10% Top Verdicts
Law360 California Powerhouse
Go-To Employment Law Firm
#71 Largest U.S. Law Firm
650 lawyers, 40 jurisdictions,
35 U.S. offices in 22 states
Top 10 Fastest-Growing Firm
We also ranked in the top 100 law firms for female attorneys, a ranking that I am especially proud of (sorry for ending a sentence with a preposition, but writing “of which I am especially proud” seemed way too pomp and circumstance).
I will make every effort going forward to NOT write blogs about how awesome my law firm is, but I had to just write one. So, please forgive me on this unabashed, shameless, self-serving blog. It will not happen again (I hope).
Look forward to my next blog…Administrative costs of the MCOs and our tax dollars hard at work.
And here is the legal disclaimer:
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