A panel of industry thought leaders met on February 2nd to discuss how best to monitor and complete internal audits of referral contracts during the Navigate Contracting Amid Health Care Fraud Regulations webcast hosted by Moss Adams. The discussion was moderated by Lawrence Vernaglia, Partner and member of the Heath Care Industry Team at Foley & Lardner LLP, and included panelists Lori Laubach (Partner at Moss Adams); Calvin Swartley (Managing Director at Moss Adams); and Jim Passey (VP, Chief Audit & Compliance Officer at HonorHealth). Below are a few major takeaways from the discussion.
The program focused on advice for health care providers around auditing arrangements with referral sources – particularly physicians. The discussion, led by Lori Laubach, addressed both core practical recommendations for carrying out a successful audit and important updates to two major regulatory structures published on December 2, 2020: the Physician Self-Referral (Stark) exceptions and the Anti-Kickback Statute (AKS) safe harbors. While there are a number of important new changes to these regulations, which Foley covered in a recorded webinar earlier in January, the auditing discussion also highlighted two updates from the new regulations—a new Stark exception for Limited Remuneration to a Physician (42 C.F.R. §411.357(z)) and a significant change to the Anti-Kickback Personal Services and Management Contracts Safe Harbor (42 C.F.R. §1001.952(d)(1)).
Additionally, Mr. Vernaglia touched on COVID “blanket” waivers regarding physician financial relationships and mentioned that, while CMS issued extremely helpful guidance for providers at the beginning of the pandemic, if organizations meet the Stark blanket waivers, they will also be protected from AKS risk under a policy statement from the Office of the Inspector General of the U.S, Department of Health & Human Services. “If you’re auditing transactions during the public health emergency, or arising thereafter, measure twice to see if you met the waivers,” Vernaglia advised.
The discussion then focused on fair market value considerations, presented by Calvin Swartley. Most notably, Swartley reviewed the revised definitions of the “big three”: Fair Market Value, Volume or Value, and Commercial Reasonableness as they related to the new rules:
Finally, the panel shifted to some insightful advice from Jim Passey of HonorHealth. Passey stressed that with regards to the auditing scope it is important to create a list of audit attributes based on the legal requirements for physician arrangements, noting that an incorrect scope can cause organizations to have to redo work or restart the audit entirely. Some questions Passey posed for defining audit scope included how many payments is your organization choosing to audit? How should organizations choose which payments to sample? Judgmental or random samples (more representative across units) or universal (all payments in a particular category)? What is the time frame? This decision can be based on how many physician payments are made—if a limited number of payments is in the universe, going back a year isn’t a bad idea, but if your organization is making hundreds of payments a month, only auditing a quarter may suffice.
To listen to some of the case studies and auditing process discussed during the session, you can register on the webinar page, and a link to the recording will be sent to you directly. You can download a copy of the presentation slides form there.
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