AHLA. David A. DeSimone Vice President and General Counsel AtlantiCare Egg Harbor Township, NJ

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1 AHLA HH. Achieving Patient Centered Medical Home (PCMH) and Meaningful Use (MU) Status How to Transform the Physician Practice in Light of Health Reform David A. DeSimone Vice President and General Counsel AtlantiCare Egg Harbor Township, NJ John R. Washlick Buchanan Ingersoll & Rooney PC Philadelphia, PA Deborah Weinstein The Medwin Group LLC Kinnelon, NJ Physicians and Hospitals Law Institute February 5-7, 2014

2 Achieving PCMH and MU Status: Physician Practice Transformation February 6 and 7, David De Simone, Esq. John Washlick, Esq. Deborah Weinstein, CPA, PCMH CCE 2 Transforming Healthcare thru Reform 360 Medicare Shared Savings ACOs based on: Patient Centered Medical Homes (PCMHs) Quality Metrics 2 Recurrent Themes Shaping Changes in Medicine: Primary Care Physicians Key to PCMH Key to Referrals leading to Hospital Acquisitions Health Information Technology Meaningful Use via Data Capture thru Electronic Health Records (EHR) Data Analytics sorts Quality Metrics from EHR 1

3 3 PCMH Structure What type of entity? Governance Equity v. Participating Allocation of profits and savings Scope of services Exclusivity Laws and Regulations 4 PCMH Structure Laws & Regs. Stark Anti-Kickback Statute Civil Monetary Penalties Antitrust Tax State Laws 2

4 5 Stark Law Prohibits (i) physician from making (ii) referral to an (iii) entity that he/she or an immediate family member has a (iv)financial interest for certain (v) designated health services that may be reimbursed by (vi) Medicare (or Medicaid), unless exception applies All six elements must be met Strict Liability Entity Performing DHS or Billing DHS 6 Stark Law Designated Health Service ( DHS ) Clinical laboratory services PT/OT/SLP Radiology & certain other imaging services Radiation therapy services DME and home health Parenteral and enteral nutrients, etc. Prosthetics, orthotics, prosthetic devices Outpatient prescription drugs Inpatient and outpatient hospital services 3

5 7 Applicable Stark Law Exceptions Personal Services Indirect Compensation Bona Fide Employment Electronic Health Records 8 Applicable Stark Law Exceptions Personal Services Writing setting forth covered services Period of at least one-year Aggregate services reasonable and necessary Compensation set in advance and FMV Does not take into consideration value or volume of referrals 4

6 9 Applicable Stark Law Exceptions Indirect Compensation Indirect compensation? Unbroken chain of financial relationship between physician and DHS entity Indirect compensation exception Stand-in-the-Shoes Rule If only entity between physician and DHS entity is a physician organization, physician will be deemed to have a direct financial relationship 10 Applicable Stark Law Exceptions Bona Fide Employment Same as IRS determination Compensation must be FMV Commercially reasonable 5

7 11 Applicable Stark Law Exceptions Donated EHR support services Written Agreement Class of donors Appropriate Scope of Items and Services No patient restrictions Eligibility NOT based on referrals NO conditions on receipt by physician 12 Anti-Kickback Statute Prohibits the knowing and willful offering (or receiving) remuneration to another person if such payment is intended to induce referrals for furnishing healthcare services, or the purchase, order or lease of items covered by a Federal Health Plan. Intent driven statute v. Stark (strict liability) 6

8 13 Anti-Kickback Statute Applicable Safe Harbors Personal Services and Management Contracts Similar to Stark Bona Fide Employment Similar to Stark EHR Similar to Stark 14 Civil Monetary Penalties May be imposed: Payments be hospital to physician to reduce or limit services Offering remuneration to beneficiary intended to influence individual to order or receive items or services payable (in whole or in part)by Federal Health Care program 7

9 15 Other Antitrust Federal Income Tax Laws (e.g., 501(c)(3)) State Law HIPAA Corporate Practice of Medicine 16 Meaningful Use (MU) Stage 1 - CMS challenges providers and hospitals to start using their systems in a meaningful way and to start collecting data. Stage 2 - CMS challenges providers and hospitals to advance their thinking with regard to data collection and looking at clinical processes and measuring outcomes. Among other criteria, Stage 2 supports ways to improve patient care through enhanced clinical decision support, care coordination, and patient engagement. Stage 3 CMS continues to challenge providers and hospitals to improve their clinical processes to advance the study of outcomes. 8

10 17 MU Basics Enter Patient Data demographics social and medical histories Populate Lab Data in the patient record as structured data Enter Preventive Tests and Immunizations Stage 1 MU measures imbedded in the 2011 PCMH standards. Stage 2 MU measures align with 2014 PCMH Standards and Guidelines Patient Centered Medical Homes (PCMH) Model of Care Co-founded by American Academy of Family Physicians ( AAFP ), American College of Physicians ( ACP ) and American Osteopathic Association ( AOA ) Adopted by the National Committee for Quality Assurance Encompasses The Joint Principles : Personal physician Physician directed medical practice Whole person orientation Care coordination Quality and Safety Enhanced Access Payment Reform 18 9

11 19 PCMH Basics Medical Home Accreditation: National Committee of Quality Assurance (NCQA) Gold-standard Transform medical practices by utilizing the Joint Principles to deliver the Triple Aim : Cost Quality Outcomes 20 NCQA PCMH Recognition 2008: 214 clinicians in 28 practices September 2013: over 6,000 practices and almost 30,000 recognized clinicians in 49 states Each month, more than 150 practices apply for recognition; Approx. 400,000 primary care providers in the country and are eligible to participate in the program 10

12 21 PCMH: Road to NCQA Recognition PCMH standards and Guidelines include: 6 Standards, 27 elements and 147 factors. For each of the 147 factors, which are a series of yes or no questions, the practice/provider has to provide some sort of proof or documentation that supports each of the Yes answers. For example, in standard 1A1: Providing Same Day Appointments, the practice will have to: Write a policy to describe the how and why the practice has same day appointments; Demonstrate how the practice monitors and tracks their same day appointments, via log or report; See the following examples: 22 The Path to PCMH Implementation Change from Reactive to Proactive Team based approach to care Population health management Patient engagement 11

13 23 PCMH1A: Access During Office Hours Documentation requirements: 1. Provide same-day appointments policy/log 2. Provide timely advice by telephone policy/log 3. Provide timely advice by electronic message policy/log 4. Document clinical advice policy/3 examples PCMH 1A1- Policy Examples 24 12

14 PCMH 1A1- Policy Examples PCMH 1A1 - Same Day Log 13

15 Example of a EHR Screenshot 27 PCMH 1A1 - Same Day Log Scoring 28 3 levels of NCQA Recognition provided by NCQA: Level 1 35 Points demonstrates a deferential attitude but non-believer, may be a paper-based practice, and/or a practice going through the motions to secure recognition for recognition sake. Level 2 60 points What happened to the level 2 s? Level 3 85 points practice or provider has dramatically embraced the PCMH culture. (some would say they drank the Kool-Aid ) 14

16 29 Best Practices Team approach to care Proactive outreach Barriers to medical care Patient engagement The Patient-Centered Medical Home s Impact of Cost & Quality: An Annual Update of the Evidence Published January 2014) Summarized findings from PCMH demonstrations and concluded that findings from PCMH demonstrations show success in increasing the quality of care and in reducing cost of care on some measure. 30 Beneficial Uses of PCMH and MU The Obvious - MU Compensation : Up to $44,000 over 5 years 2015 and Beyond: Medicare Decrease 1-5% Not so Obvious: Updated Comp. Models Engaged Care Employee Benefits Narrow Networks Risk Based Payments 15

17 31 Specific Examples National Demonstration Project June 2006 American Academy of Family Physicians17 BCBS Pediatric Demo Focus on improving care coordination and quality outcomes Outcomes-based payments Medical Home Chapter Champions Program best practices and advocacy related to the implementation of the National Heart, Lung, and Blood Institute (NHLBI) asthma guidelines within the medical home framework 32 Unique Uses Insurance Purchasing Alliance: Discounted Malpractice for Independent Physicians Better Risk = Increased Quality via ACO PCMH and MU are backbones to Quality Efforts Range from 10 to 35% Off depending on Specialty 16