Physician-Owned Hospital Self-Disclosures0

The following Health Law E-Bulletin was published by the Business Law Section of the California State Bar on March 27, 2015.

The following summarizes recent instructions from the Centers for Medicare & Medicaid Services (“CMS”) for disclosures of noncompliance arising solely from a violation of 42 C.F.R. § 411.362(b)(3)(ii)(C) (physician-owned hospitals: website and advertising disclosures).

As part of the Affordable Care Act, Section 6001, physician-owned hospitals and rural providers must disclose on any public website for the hospital, and in any public advertising, that the hospital is owned or has physician investors. See 42 C.F.R. § 362(b)(3)(ii)(C). CMS has determined that for providers to comply with the requirements in section IV.B of the CMS Voluntary Self-Referral Disclosure Protocol (OMB Control No.: 0938-1106), physician-owned hospitals disclosing non-compliance with this very specific part of the regulation need only provide the following information:

  • Name and address of hospital
  • Hospital’s CMS Certification Number(s) (CCN), national provider identification number(s) (NPI), and tax identification number(s) (TIN)
  • Hospital’s contact person/representative for the disclosure
  • Names and NPI numbers of all physicians who were owners/investors during the period(s) of noncompliance identified below.
  • Period(s) of noncompliance: For the period beginning on September 23, 2011, identify the months during which the hospital had at least one noncompliance. The hospital can provide a date range to satisfy this requirement.
  • Provide the requested certifications

The complete instructions appear online here. Other disclosures, including those that include website and advertising concerns, must follow the Voluntary Self-Referral Disclosure Protocol.

CMS Quality Measures0

iStock_000016711099Small-300x225This Health Law e-Bulletin, published on March 20, 2015, summarizes the 2015 National Impact Assessment of CMS Quality Measures Report (the “2015 Impact Report”) (as mandated by section 3014(b), as amended by section 10304, of the Affordable Care Act (the “ACA”)).

What if one day the Internal Revenue Service (“IRS”) changed the ways in which the Federal Government taxed individuals? For example, rather than assessing tax liability on the basis of income, what if the IRS assessed taxes on the basis of an individual’s contribution to society, or on his or her general demeanor or overall perception as “good” or “bad”? Under the ACA, Medicare has started to transform in such an historical manner, reimbursing hospitals now (and physicians soon) on the basis of performance, efficiency, and patient satisfaction, gradually replacing the previous system that structured reimbursement on the costs involved in the delivery of health care. The 2015 Impact Report represents the second assessment by CMS since the ACA became the law in 2010, this time focusing on 25 CMS reporting programs and nearly 700 quality measures (using data from 2006 to 2013).

The ACA mandated a push toward high-quality, evidence-based care for patients, with top priorities including (1) making care safer, (2) ensuring that each person and family are engaged, (3) promoting effective communication and coordination of care, (4) promoting the most effective prevention and treatment practices, (5) working with communities to promote wide use of best practices to enable healthy living and (6) making quality care affordable. The 2015 Impact Report provides a 262-page scorecard for those who may be interested in the ACA’s success during its first few years.

CMS is committed to quality measurement as it transforms the very nature of modern American health care. The 2015 Impact Report illustrates how providers, private payers, and communities can work together to achieve the greatest impact on quality. As stated in the 2015 Impact Report: “Everyone receiving healthcare in the nation is likely to benefit from CMS programs and initiatives, as healthcare professionals engage in delivery system reform to achieve better care for patients, better health for the U.S. population and lower costs through quality improvement.” The complete 2015 Impact Report can be found here.

OIG Report on Medicare and CAHs0

The following E-Bulletin discussing a recent OIG Report on Medicare and CAHs was published on March 18, 2015, by the State Bar of California, Business Law Section’s Health Law Committee.

iStock_000009499779SmallThe following summarizes a recent report by the Office of Inspector General (OIG) that found Medicare could have saved billions over a 6-year period at Critical Access Hospitals if swing-bed services were reimbursed using the skilled nursing facility prospective payment system rate.

To ensure that beneficiaries in rural areas have access to a range of hospital services, Congress established the Rural Flexibility Program, which created Critical Access Hospitals (CAHs). CAHs have broad latitude in the types of inpatient and outpatient services they provide, including “swing-bed” services, which are the equivalent of services performed at a skilled nursing facility (SNF). Medicare reimburses CAHs at 101 percent of their reasonable costs for providing services to beneficiaries rather than at rates set by Medicare’s prospective payment system (PPS) or Medicare’s fee schedules.

For a hospital to be designated as a CAH, it must meet certain Conditions of Participation (CoPs). Some of these CoP requirements include: (1) being located in a rural area; (2) either being at a certain distance from other hospitals or being grandfathered as a State-designated necessary provider; (3) having 25 or fewer beds used for inpatient care or swing-bed services; and (4) having an annual average length of stay for a patient that does not exceed 96 hours.Read more →

Cadillac Tax Coming Soon0

This E-Bulletin was first published by the Business Law Section of the California State Bar on March 2, 2015.

iStock_000004290636LargeAdded to the Internal Revenue Code (“IRC”) by the Affordable Care Act (“ACA”), Section 4980I begins after December 17, 2017, and the new regulation imposes a 40 percent excise tax (the “Cadillac Tax”) on employer-sponsored coverage that has an aggregate cost in excess of a statutory dollar limit (revised annually). The excise tax applies to “the excess, if any, of the aggregate cost of the applicable coverage of the employee for the month over the applicable dollars limit for the employee for the month.” Under Section 4980I(d)(3), the term “employee” includes “a former employee, surviving spouse, or other primary insured individual.” The 2018-baseline dollar limit per-employee in 2018 for self-only coverage is $10,200 and for other-than-self-only coverage is $27,500. [§ 4980I(b)(3)(C)]

Other adjustments to increase the applicable dollar limits include a “health cost adjustment percentage,” such as cost-of-living adjustment, agent and gender adjustments, if applicable, an adjustment for a “qualified retiree” or for someone “who participates in a plan sponsored by an employer the majority of whose employees covered by the plan are engaged in a high-risk profession or employed to repair or install electrical or telecommunication lines.” The entity obligated to pay the excise tax includes (1) the “health insurance issuer” under an insured plan, (2) “the employer” if the applicable coverage “consists of coverage under which the employer makes contributions to” an HAS or Archer MSA, and (3) “the person that administers the plan” in the case of any other applicable coverage. In each instance, the employer must prepare the calculations for the excise tax and notify the responsible entity.

Pursuant to Section 4980I(f)(10), the excise tax is not deductible for federal tax purposes. Certain types of coverage excluded from applicable coverage include accident or disability income insurance, liability insurance (such as automobile liability insurance), worker’ compensation insurance, dental and vision insurance (if provided under a separate policy) and credit-only insurance, among others.

The IRS has invited comments on the issues no later than May 15, 2015. Additional information can be found here.