6/15/2017. Preferred Provider Arrangements: Compliant Partnering to Enhance Quality of Care Annual Meeting

Transcription

1 Preferred Provider Arrangements: Compliant Partnering to Enhance Quality of Care 2017 Annual Meeting 2 1

2 Presented by: Lani M. Dornfeld, Esq. Member Brach Eichler L.L.C. Attorneys at Law 101 Eisenhower Parkway Roseland, NJ Cheryll A. Calderon, Esq. Associate Brach Eichler L.L.C. Attorneys at Law 101 Eisenhower Parkway Roseland, NJ ccalderon@bracheichler.com 4 2

3 Overview Changes in the Healthcare Landscape Overview of Preferred Provider Arrangements Legal and Regulatory Considerations Contractual Considerations 5 PART I: CHANGES IN THE HEALTHCARE LANDSCAPE 6 3

4 State of Healthcare in 2017 Current health care system is constantly changing and it s clear that changes will continue Current health care model moves away from rewarding volume and quantity of care and places emphasis on and rewards quality of care and quality outcomes Shift from traditional fee for service to valuebased care 7 Coordination is Key Shift to value-based model versus volumebased model means coordination among health care providers is key There must be a balance between quality of care and profitability Organizations must work together to provide high quality care and enhance patient outcomes 8 4

5 Compliance is Non-Negotiable Written agreements and partnerships, particularly in healthcare, are subject to various laws and regulations Organizations must be aware of these laws and regulations and remain compliant Make sure your partners are compliant too 9 Why Preferred Provider Arrangements? Allows for better coordination of care Increases efficiency Improves quality of care and enhances patient outcomes 10 5

6 PART II: PREFERRED PROVIDER ARRANGEMENTS 11 Forming Relationships Primary Referral Sources for HHA Providers Hospitals Physicians Physician Groups Other Home Health & Hospice Agencies 12 6

7 Benefits of Preferred Provider Arrangements Why hospitals look to create partnerships with HHA providers Helps to ensure quality of care for their patients Discharge to an agency whose quality, oversight, staff and track record are known to the hospital Better post-discharge outcomes Reduced hospital re-admission Better cost control 13 Attracting Partnerships Make your agency marketable to potential partners and other providers and referral sources Reputation is KEY! Focus on quality outcomes, and get the good word out! Data tracking track quality of care Patient survey tracking Medicare star ratings Good track record with accreditation and licensing bodies Establish and maintain good communications with patients and referral sources Participate in joint community outreach and education programs Willingness to create joint quality assurance and utilization control protocols Ability to provide an on-site nurse liaison (caution should be given that this will not induce referrals or result in taking on discharge planning obligations of the hospital) 14 7

8 Documenting Relationships To facilitate coordination, many hospitals are entering into preferred provider arrangements with HHA and hospice providers Written agreement that documents the preferred provider relationship, specifies the responsibilities of the parties and requires compliance with applicable laws and regulations Must ensure no infringement on patient choice Must ensure the hospital retains discharge planning responsibilities 15 Managing Relationships As with all arrangements between health care providers, there are ongoing obligations both parties must continuously fulfill Ongoing fulfillment of contractual duties and obligations Honoring contractual and legal limitations Monitoring for contractual and legal compliance 16 8

9 PART III: LEGAL AND REGULATORY CONSIDERATIONS 17 Medicare Hospital CoPs Discharge Planning Hospital must have in effect a discharge planning process that applies to all patients written policies Hospital must identify, at an early stage of hospitalization, all patients who are likely to suffer adverse consequences upon discharge if there is no adequate discharge planning Hospital must provide a discharge planning evaluation to those identified patients, other patients upon request of patient, person acting on patient s behalf, or physician 18 9

10 Medicare Hospital CoPs Discharge Planning RN, SW or other appropriate qualified personnel must develop, or supervise the development of, the discharge planning evaluation The discharge planning evaluation Must include an evaluation of the likelihood of a patient needing posthospital services and the availability of the services Must include an evaluation of the likelihood of the patient s capacity for self-care or care in the environment from which he entered the hospital Hospital personnel must complete the evaluation on a timely basis, to avoid unnecessary delays in discharge The hospital must arrange for the initial implementation of the patient s discharge plan 19 Medicare Hospital CoPs Discharge Planning The hospital must include in the discharge plan a list of HHAs or SNFs that are available to the patient, that are participating in the Medicare program, and that serve the geographic area (as defined by the HHA) in which the patient resides, or in the case of a SNF, in the geographic area requested by the patient HHAs must request to be listed by the hospital as available The list must be presented only to patients for whom home health care or post-hospital extended care services are indicated and appropriate as determined by the discharge planning evaluation 20 10

11 Medicare Hospital CoPs Discharge Planning Patient Freedom of Choice: The hospital must inform the patient or the patient s family of their freedom to choose among participating Medicare providers of post-hospital care services and must, when possible, respect patient and family preferences when they are expressed The hospital must not specify or otherwise limit the qualified providers that are available to the patient Disclosable Financial Interest: The discharge plan must identify any HHA or SNF to which the patient is referred in which the hospital has a disclosable financial interest Transfer or Referral: The hospital must transfer or refer patients, along with necessary medical information, to appropriate facilities, agencies or outpatient services, as needed, for follow-up or ancillary care 21 Medicare Hospital CoPs Discharge Planning But What About Hospice Care? Medicare Hospital CoPs for Discharge Planning Post-hospital care includes hospice care CoPs do not specifically require hospice providers to be place on a list, but also do not prohibit same The list must include HHAs and SNFs, but the regulation does not limit the list to only HHAs and SNFs The list must be provided to patients for home health care or posthospital extended care services as indicated and appropriate Hospitals must transfer or refer patients, along with necessary medical information, to appropriate facilities, agencies, or outpatient services, as needed, for follow-up or ancillary care 22 11

12 Stark Law Prohibits a physician from referring Medicare patients for certain designated health services to an entity with which the physician (or immediate family member) has a financial relationship, unless an exception applies Prohibits the designated health services entity from submitting claims to Medicare for those services resulting from a prohibited referral 23 Stark Law Referrals from a physician Designated health services No intent standard for overpayment (strict liability) Intent required for civil monetary penalties for knowing violations State Counterpart: Codey Law 24 12

13 Anti-Kickback Statute Prohibits offering, paying, soliciting or receiving anything of value to induce or reward referral or generate federal health care program business Includes referrals from anyone Any items or services Intent must be proven (knowing and willful) OIG Advisory Opinions: Offering free or below-market goods or services are suspect and can result in violations of the anti-kickback statute (e.g., providing free discharge planning services) 25 PART IV: CONTRACTUAL CONSIDERATIONS 26 13

14 How to Structure Agreements State Goals of Arrangement: Enhance ability of hospital to discharge patient at appropriate time Improve care coordination and quality and efficiency of care Improve patient experience Improve continuity of care and patient outcomes Reduce hospital re-admission Reduce costs of care etc. Avoid Anything that May be Construed as: Obligation to refer to preferred provider unless absence of another choice by patient Removal of or infringement on patient freedom of choice Patient steering Connecting payments or any form of financial incentive to the agreement (e.g, incentive to refer) Obligation of HHA or hospice to take on hospital s discharge planning obligations Cherry picking A kickback, rebate, bribe, etc. 27 How to Structure Agreements List of HHAs No limits on hospital s ability to include requesting HHAs on list Preferred provider may appear at top of list, in bold, etc. and preferred provider relationship may be disclosed to patients, but MUST have safeguards to avoid infringement on freedom of choice If the hospital and agency have a disclosable financial relationship, it must be on the list, including the relationship between the parties List must be presented to all patients who may benefit from HHA, SNF or hospice post-acute services 28 14

15 How to Structure Agreements Contents of list to be provided to patients, including list of available agency services Placement of agency on the list (top of list, bold, etc.) List presented neutrally, but referral to preferred provider in absence of another choice by patient/family Ability of agency to provide informational and marketing brochures for patients and families Collaboration requirements, including QA and UR Requirements on hospital to communicate preferred provider relationship to discharge planners, social work team, case management team, etc. Periodic communications to monitor care coordination, quality, outcomes, readmission rates, etc. 29 How to Structure Agreements Expectations and requirements of the parties Term, termination, miscellaneous provisions Legal compliance obligations Indemnifications 30 15

16 Monitoring for Compliance Periodic meetings to discuss QA, UR, outcomes, length of stay, readmission rates, etc. and ways to improve patient experience and care Periodic (quarterly or more often) review of relationship Periodic (at least annual) review of agreement Periodic monitoring to avoid fraud and abuse 31 Speaker Information: Lani M. Dornfeld, Esq. is a member of the Firm s Health Law Practice Group. Lani focuses much of her practice on handling regulatory, corporate, and transactional matters for her clients. She represents a variety of health care providers, including hospitals, long-term care facilities, home health agencies, hospices, physician and dental groups, and physicians, dentists, and other individual health care practitioners. Lani has extensive experience counseling clients on regulatory matters, including HIPAA compliance, OSHA compliance, and corporate compliance, and assists clients in the development and implementation of policies, procedures, and training required by these laws. She also assists clients in investigating and managing regulatory compliance issues, including privacy breach investigations and responses. In addition, Lani assists clients with fraud and abuse issues including Anti-Kickback Statute and Stark Law compliance, 501(c)(3) regulatory compliance, Medicare issues, professional licensure actions, bioethics and patient care issues, informed consent, and guardianships. Lani s years of experience also includes representing clients in purchase and sale transactions. She manages merger and acquisition transactions from start to finish, including due diligence, contract preparation and negotiation, and managing the closing and beyond. These transactions include sales and purchases of health care facilities, medical and dental practices, home health agencies, hospice agencies, and other health care businesses. Lani also prepares and negotiates buy-in and buy-out documents, employment agreements, shareholder agreements, operating agreements, and related corporate documents, and prepares documents related to corporate governance, including bylaws and conflicts of interest policies. Also a frequent lecturer and occasional adjunct professor, Lani speaks on a variety of health care topics, including HIPAA and privacy topics, corporate compliance, informed consent, and health care organizations. She also has written a number of articles on these and other health care topics

17 Speaker Information: Cheryll A. Calderon, Esq. is an Associate in Brach Eichler s Health Law Practice Group. Her practice is primarily focused on assisting clients with transactional, corporate, and regulatory matters. She specializes in compliance and regulatory issues, specifically those related to HIPAA, 42 CFR Part 2, Medicare and Medicaid rules, the Anti-Kickback Statute, and Stark Law. Cheryll also represents medical and dental providers and other healthcare businesses in various corporate and transactional matters, including the purchase and sale of healthcare businesses. Prior to joining Brach Eichler, Cheryll was a litigation attorney at a well-renowned plaintiff s firm where she focused on health care, product liability, and medical device and pharmaceutical litigation. In that capacity, she was involved in multiple state and multi-district litigations and became wellversed in obtaining and managing e-discovery. Cheryll obtained her Juris Doctor from Seton Hall School of Law and received a Bachelor of Arts degree in Political Science from Rutgers University. 33 Disclaimer: This presentation and outline are designed to provide accurate and authoritative information regarding the subject matter covered. This presentation and outline should not be construed as legal advice or as pertaining to specific, factual situations. If legal advice or other expert assistance is required, the services of a competent professional should be sought