Archive for August, 2012

Are We Fighting the Right Health Care Battle?

This article first appeared in Becker’s Hospital Review on August 30, 2012.

Though the United States Supreme Court may have finally put to rest any constitutional disagreements over the Affordable Care Act (ACA), the debate over health care is far from settled.  Finding critics of the landmark decision is as easy as surveying the Court itself, since each of the eight remaining justices took issue in one way or another with the majority opinion set forth by Chief Justice John Roberts.

It therefore comes as no surprise that the aftereffects of the Court’s 5-4 split have already trickled down through nearly every aspect of federal and state politics, providing more than 100 pages of partisan fodder that will ensure both sides have an ample supply of rhetoric to flame this debate for years to come. For this reason, now is the time to ask ourselves if the nation is focusing on the wrong questions. If so, the answers over which we now debate are of little value. Continue reading →

CMS Adopts New Standards, Sets Additional NPI Requirements and Extends the ICD-10 Deadline

The Centers for Medicare & Medicaid Services (CMS) issued its Final Rule on August 24, 2012, to accomplish the following:

  • Adopting a standard for a unique health plan identifier.
  • Expanding the National Provider Identifier Requirements.
  • Setting the final deadline for compliance with the International Classification of Diseases, 10th Edition (ICD-10-CM and ICD-10-PCS) Medical Data Code Sets. Continue reading →

CMS Issues Final Rules for EHR Incentive Programs, Stage Two


In 1996 the Federal government took on increased regulatory responsibility with the passage of the Health Insurance Portability and Accountability Act (HIPAA).

This multifaceted bill was broad in its jurisdiction over  both Medicare and American health care in general, as it sought to provide new Federal rules improving continuity  or “portability” of coverage in the large group, small group, and individual health insurance markets, while reinforcing the need to protect the privacy of patient health records.

Combining a group of disparate issues, Title I of HIPAA amended the Public Health Service Act, the Employee Retirement Income Security Act of 1974 (ERISA), and the Internal Revenue Code of 1986. In doing so, HIPAA strove to regulate the availability and scope of group health plans and many individual health insurance policies, including the protection of health coverage for workers and their families who have lost or changed jobs. Further provisions also limited a group health plan’s ability to restrict coverage for preexisting conditions. Continue reading →

Federal Grants Move Affordable Insurance Exchanges Forward

Beginning in 2014, individuals and small businesses will be able to purchase private health insurance through competitive marketplaces called Affordable Insurance Exchanges, or ‘‘Exchanges.’’  Recently, the U.S. Department of Health and Human Services (HHS) developed a few flexible programs that offer different Exchange models, as well as some additional options within each program.

The Federal Government also provides Exchange Establishment grants to States that are making progress in establishing Exchanges. States can decide when to apply for grant funding as needed, opting for multi-year funding (level two establishment grants) or yearly funding (level one establishment grants).

The program affords States several options for grant funding, a necessary component to the program as each State’s insurance market needs may be considerably different. Presently, forty-nine States and the District of Columbia received up to $1 million in Exchange Planning Grants. Four territories received similar grants in March 2011. These funds were used to conduct Exchange feasibility studies and community forums. Six states and a multi-state consortium led by the University of Massachusetts Medical School received over $241 million in Early Innovator grants to develop model Exchange IT systems. Early Innovator states pledge that their Exchange technology is reusable and transferable to other States. Additional information in the HHS Press Release appears here.  An interactive state map providing details about the different Exchange programs can be found here.

Update on Physician-Owned Hospitals after the Fifth Circuit Decision

In the 2010 Affordable Care Act, Section 6001 added new regulatory restrictions and requirements for physician-owned hospitals. See 42 U.S.C. § 1395nn(i).

“Physician-owned hospital” means any hospital “in which a physician, or the immediate family member of a physician, has an ownership or investment interest.  The ownership or investment interest may exist through equity, debt or other means, and includes the interest in an entity that holds an ownership or investment interest in the hospital.”  See 42 C.F.R. § 489.3.

Federal regulations previously provided for the “whole hospital” exception to the Stark Laws. This particular safe harbor required that the referring physician/owner: (1) have a financial interest in the whole hospital, and not just a specific part; (2) be authorized to perform services at the hospital; and (3) be expected to actually perform the agreed upon services.  The requirements of Section 6001 substantially modified this exception.  See 42 C.F.R. § 411.362.

Under the Affordable Care Act, the whole hospital exception applies only to physician-owned hospitals that had physician ownership as of March 23, 2010, and had obtained a Medicare provider number by the end of 2010. Continue reading →

An Introduction to Health Care Fraud and Abuse

In health care, the primary body of law under which liability may arise is generally the Federal False Claims Act (“FCA”).[1]

Dating back to the American Civil War, the FCA has over time become the “primary litigative tool for combating fraud” for both federal and state governments. At its core, the FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” (See 31 U.S.C. § 3729(a)(1)(A).)

In 1965, the United States unveiled its Medicare system, and only seven years later Congress passed the first of many laws focusing on Medicare reform, including:

  • The Social Security Amendments of 1972, Pub. L. No. 92-603: These laws tried to gently regulate Medicare provider fraud and abuse, as well as over utilization and unnecessary referrals. Continue reading →

Flexibility for Affordable Insurance Exchanges

Beginning in 2014, individuals and small businesses will be able to purchase private health insurance through competitive marketplaces called Affordable Insurance Exchanges, or ‘‘Exchanges.’’ With this looming deadline approaching fast, the U.S. Department of Health and Human Services (HHS) has developed a few flexible programs that offer different Exchange models, as well as some additional options within each program.

State-Based Exchanges:  Although States operate this option, the federal government can oversee certain activities such as:

  • Premium tax credit and cost sharing education determination;
  • Exemptions
  • Risk adjustment programs
  • Reinsurance programs

State Partnership Exchanges:  In this example, States operate activities for plan management and consumer assistance, and the States may elect to perform, or have the option to rely upon federal resources, for reinsurance programs and Medicaid/CHIP eligibility, assessment or determination.

Federally-Facilitated Exchange:  While HHS operates a State Exchanges, States have the option to oversee the reinsurance programs and Medicaid/CHIP eligibility, assessment or determination.  States can also let the federal government oversee these functions.

Additional information is available in a recent publication entitled “Blueprint for Approval of Affordable State-based and State Partnership Insurance Exchanges.”

Making Sense of Medicare’s Observation Regulations, One Hospital Bed at a Time

On August 1, 2012, the Centers for Medicare & Medicaid Services (CMS) published the Final Rule for Medicare’s Hospital Inpatient Prospective Payment Systems (IPPS) (the Final Rule).

Effective Fiscal Year (FY) 2013 (October 1, 2012), the Final Rule covers the entire scope of the IPPS for acute care hospitals, long-term care hospitals, resident caps for graduate medical education (GME) payment, hospital readmission reduction program, the value based purchasing program, as well as other parts of Medicare.

The Final Rule specifically modified the way CMS approaches labor and delivery beds in the calculation of Medicare disproportionate share (DSH) payment adjustments and indirect medical education (IME). Continue reading →

Medicare’s Hospital Readmissions Reduction Program

Starting October 1, 2012, the Hospital Readmissions Reduction Program (HRRP) reduces a hospital’s base operating Medicare diagnosis-related group (DRG) payments with respect to readmissions for three conditions, including: (1) acute myocardial infarction (ACI); (2) heart failure (HF); and (3) pneumonia (PN).

Section 1886(q) of the Social Security Act (the Act) and section 3025 of the Affordable Care Act (ACA) provide the statutory authority for this non-budget neutral program. The Centers for Medicare & Medicaid Services (CMS) predict that the HRRP will decrease payments to hospitals by as much as 0.3 percent (approximately $280 million) in FY 2013. Continue reading →

The Modern Day Compliance Program

On September 27, 2012, Craig Garner and Andrew Woodward will be leading HCCA’s Web Conference entitled The Modern Day Compliance Program: Bridging the Gap Between Integrity and Performance.

Information for participants will include how to:

  • Identify the impending changes to the core of our nation’s health care structure as a result of the shift toward performance-based initiatives.
  • Become familiar with both safe harbors and potentially costly provisions monitoring fraud and waste, including Stark laws, anti-kickback statutes, RACS, MACs, MICs and ZPICS.
  • Demonstrate the positive effect on your bottom line through understanding the benefits of a well-executed compliance program.

Additional information, including how to register, can be found here.



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