Part II – Accountable Care Organizations (ACO’s): The Role of Post-Acute Provider

By Elizabeth E. Hogue, Esq.

Section 302 of the Affordable Care Act (ACA) includes provisions related to Medicare payments to providers of services and suppliers that participate in Accountable Care Organizations (ACO’s).  Providers of services and suppliers who participate in ACO’s will continue to receive payments under Parts A and B of the Medicare Program, but will also be eligible for additional payments if they meet certain requirements related to quality of care and cost savings.  The Secretary of the U.S. Department of Health and Human Services is required to establish ACO’s no later then January 1, 2012.

Proposed regulations to implement these provisions were published in the Federal Register on April 7, 2011.  Comments regarding the proposed regulations must be received by the Centers for Medicare and Medicaid Services (CMS) no later than sixty days after the date of publication. This is the second in a series of articles about ACO’s.  The purpose of this article is to address the issue of the role of post-acute providers in ACO’s. As indicated above, ACO’s will share in cost savings if they meet performance standards for both quality of care and cost savings.  Post-acute providers may assist ACO’s to meet standards related to quality of care.

The Centers for Medicare and Medicaid Services (CMS) proposes to establish five “domains” related to quality of care.  These domains are:

1. Better care for individuals, including patient/caregiver experiences, care coordination and patient safety.
2. Better health for populations, including preventive health and at-risk population/frail elderly health.

Post-acute providers have specialized expertise with regard to care coordination, patient safety and at risk populations/frail elderly health. Specifically, there are sixty-five proposed measures for use in establishing quality performance standard that ACO’s must meet in order to share in savings.  Post acute providers may be especially helpful to ACO’s regarding the following performance measures:

Care Coordination/Transitions 
The rate of readmissions within 30 days of discharge from acute care hospitals for assigned or aligned ACO beneficiary populations. Post-discharge visits to physicians within 30 days. 

Ambulatory Sensitive Conditions Admissions: Diabetes, Short-term Complications (AHRQ Prevention Quality Indicator #1).  All discharges of age 18 years and older with ICD-9-CM principal diagnosis code for short-term complications (ketoacidosis, hyper- osmolarity, coma) per 100,000 population.

Ambulatory Sensitive Conditions: Congestive Heart Failure (AHRQ Prevention Quality Indicator #8).  All discharges of age 18 years and older with ICD-9-CM principal diagnosis code for CHF, per 100,000 population. Ambulatory Sensitive Conditions Admissions: Urinary Infections (AHRQ Prevention Quality Indicator #12). 

All discharges of age 18 years and older with ICD-9CM principal diagnosis code of urinary trace infection, per 100,000 population.

Preventive Health
Influenza Immunization: Percentage of patients aged 50 years and older who received an influenza immunization during the flu season (September through February).

At Risk Population/Frail Elderly Health
Falls: Screening for All Risk: Percentage of patients aged 65 years and older who were screened for fall risk at least once within 12 months. Monthly INR for Beneficiaries on Warfarin: Average percentage of monthly intervals in which Part D beneficiaries with claims for warfarin do not receive an INR test during the measurement period. 

Post-acute providers can certainly assist participants in ACO’s to meet the performance measures described above.  The crucial role of post-acute providers in meeting the above goals should be recognized and acknowledged by other types of providers.

Elizabeth E. Hogue is an attorney in private practice with extensive experience in health care.  Her clients are professional associations, physicians, managed care providers, and institutional health care providers, which includes hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.  © 2011 Elizabeth E. Hogue, Esq.  All rights reserved.   No portion of this material may be reproduced in any form without the advance written permission of the author.

Call Congress: Home Health Care Cuts

Congress is about to cut billions of dollars in funding for Medicare home health care services. Home health cuts and co-payments will have a devastating impact on millions of Americans, including some of the poorest and sickest Medicare beneficiaries. Such changes may also cause many patients to leave their homes and instead seek treatment in costly hospitals and nursing homes.

A Home Health Copayment:

• Would Disproportionately Impact Poor and Sick Seniors
• Would Shift Seniors to More Costly Settings
• Would Increase Medicare and Medicaid Costs
• Was Repealed by Congress in 1972 and Remains Unpopular Today 

Please Protect Seniors from a Home Health Copayment. Join the Partnership for Quality Home Healthcare and contact your U.S. Representative today.

Recent OIG Advisory May Also Apply to Vendor Fees

By Elizabeth E. Hogue, Esq.

On May 20, 2011, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, posted Advisory Opinion 11-06.  This Opinion makes it clear that post-acute providers that pay hospitals to participate in e-discharge planning systems likely violate the federal anti-kickback statute.  Hospitals utilizing such systems that require post-acute providers to “pay to play” also likely violate the federal anti-kickback statute.

Specifically, the OIG considered use of e-discharge planning systems by hospitals that are often encountered by post-acute providers.  In many instances, post acute providers are required to pay fees in order to receive referrals electronically through systems implemented by hospitals.  Providers who do not pay required fees receive notice of possible referrals via fax.  Consequently, post-acute providers who elect not to pay to participate in electronic discharge planning systems are significantly disadvantaged and may be effectively eliminated from any chance of receiving referrals because they are unable to communicate in a timely manner with hospital discharge planners regarding referrals.

Based upon the above, the OIG concluded that such arrangements likely violate the federal anti-kickback statute.  The OIG said that companies that provide e-discharge systems to hospitals would be soliciting and accepting, and post-acute providers would be paying remuneration in return for the arranging for the furnishing of post-acute care services by e-discharge planning companies of post-acute services for which payments would be made by federal health care programs.  The OIG went on to say that such arrangements do not qualify for protection under applicable safe harbors, including the safe harbor for referral services.  In addition, post-acute providers continue to be plagued by hospitals that claim that post-acute providers cannot enter hospitals and/or gain access to patients to coordinate post-acute services because they are “vendors.”   Hospitals may permit access by post-acute providers only if they comply with complex, inapplicable restrictions.  Still other hospitals require post-acute providers to pay fees in order to gain access to patients for the purpose of coordinating post-acute services.

On the contrary, post-acute providers; such as home health agencies, home medical equipment (HME) companies, hospices, and private duty home care agencies; are not vendors and should not be treated like vendors. They are, instead, fellow providers. Vendors are manufacturers and distributors of supplies and equipment that are utilized by hospitals on their premises.

Does the OIG Advisory Opinion described above also apply to vendor fees?

First, since post-acute providers are not vendors, the payments of fees to hospitals directly or to hospitals’ contractors who implement vendor checks may constitute impermissible kickbacks. In addition, it appears that the OIG Advisory Opinion described above may indeed apply to vendor fees.  The OIG’s main point is that post-acute providers cannot be required to pay fees in order to receive referrals, i.e. “pay to play.”  If providers who pay vendor fees received referrals, but providers who do not pay fees do not receive referrals or receive fewer referrals, such practices seem to be prohibited by the OIG.

While post-acute providers certainly understand that hospitals may want to “credential” their vendors, it is inappropriate to treat post-acute providers and vendors and require them to pay fees to qualify or be “credentialed.”  This practice seems to violate the OIG Advisory Opinion described above.

© 2011 Elizabeth E. Hogue, Esq.  All rights reserved.  No portion of this material may be reproduced in any form without the advance written permission of the author.

Survey Results: Home Health Face-to-Face Requirements

By Nick Dobrzelecki RN, BSN
Daymarck CEO

Since the start of Medicare’s home health face-to-face (F2F) requirement on April 1, 2011, agencies have encountered significant resistance from physicians in accurately and completely filling out the F2F documentation. The F2F encounter requirement must occur 90 days prior to the admission or 30 days after the admission. The documentation cannot be completed by any employee of the home health agency. The F2F documentation can be placed on the certification form or is an addendum to it but it must be separate and distinct. It must also include the following:

1. The patient's name;
2. Date of the encounter;
3. How the patient's clinical condition as seen during the encounter supports homebound status and the need for skilled services;
4. The physician's signature (original signature, a faxed copy, copy of original document with signature or electronic signature - but not stamped signature); and
5. Date of the physician's signature.

Agencies have been trying to educate and provide providers with as much help as is possible within the law. However, the regulation is very specific and constrains home health agencies from doing any of the work for the providers. Agencies can create forms but they cannot use check boxes or drop down boxes in electronic records. If the provider creates their own form, they can use these features although this is not clear as CMS continues to change their responses this issue. Issues such as stamp signatures continue to be an issue for some agencies (page 2, http://www.cms.gov/MLNMattersArticles/downloads/MM6698.pdf).

The National Association of Home Care and Hospice (NAHC) contracted Fabrizio, Ward & Associates to collect data from a survey conducted June 16-27, 2011 among physicians who prescribe home health care.  2,490 physicians from 49 states and DC responded to the survey (1,746 online, 744 by fax); the data has been weighted by region to reflect the actual distribution of the U.S. adult population.

Survey Results
View a PDF of the entire findings.

The vast majority of physicians surveyed disapprove of the new documentation/certification requirements for home health, saying it is a lot more burdensome and want it simplified. Most physicians surveyed believe fewer patients will be referred to home health as a result of the new rules, and that there will be significant negative health consequences to patients as a result. Most physicians surveyed favor reforms that would allow existing doctor orders to satisfy the certification requirements for home health, and do away with the written narrative. Half of physicians surveyed did not favor reforms that simplified the certification paperwork but still required a face-to-face visit.


Next Steps
Questions still linger who is going to monitor this requirement. It is not likely to be addressed by state survey agencies as F2F is not a Medicare condition of participation. It is a coverage and payment policy which may be monitored by a fiscal intermediary. With this issue not being answered, there are stories of agencies completing the documentation and then having the providers just sign off. This is in clear violation of the rules. When the rules allow hospital discharge planners to help complete the form for providers but home care liaisons cannot, the lines are clearly drawn. The only thing that can be done by the industry is to police its self. Violations can be reported to the HHS fraud hotline at http://oig.hhs.gov/fraud/report-fraud/index.asp.