PYA and Foley & Lardner hosted the fifth annual “Let’s Talk Compliance” 2-Day Virtual Conference on January 19 and 20, 2023. Panelists included Foley & Lardner attorneys and PYA experts. The event was hosted by Foley Partner, Jana Kolarik and PYA Tampa Office Managing Principal, Angie Caldwell. Below are a few major takeaways from the conference as well as links to bios and contact information for the subject matter experts involved.
Please reach out to us if you have any questions.
Session #1: State of the Healthcare Industry Effective Compliance Plans and Enforcement Trends
In their discussion of compliance program effectiveness and enforcement, attorneys Kolarik and Waltz and Ms. Sumner emphasized that compliance program assessments should occur annually.
They recommended the review of recently released Department of Health and Human Services (DHHS) Office of Inspector General’s corporate integrity agreements (CIAs) for changes related to oversight and involvement from the Compliance Committee (engaged participation in the risk assessment process and composition), as well as an assessment of the compliance officers’ duties especially when the compliance officer is wearing multiple hats, which should include an evaluation of whether the compliance officer is performing duties that would appear to be conflicted. For example, is the compliance officer serving in a role (clinical leadership) that they audit/monitor as part of their compliance officer responsibilities? Compliance officers who serve in a various capacities should outline their roles and responsibilities under each “hat” and discuss guardrails with their compliance committee.
Another recommendation was to review the recently released memorandum from the DOJ “Further Revisions to Corporate Criminal Enforcement Policies…” (Sept. 2022) and evaluate the key concepts contained therein, including sufficiency of root cause analysis for issues identified, the implementation of compensation clawbacks, timely self-disclosure, and management restructuring, if needed.
Session #2: Challenges of Interoperability and the Information Blocking Rule
In their presentation, attorney Hennessy and Mr. Mathis explained that all health care providers – not just federal program participants – need to ensure they are complying with the federal information blocking rules.
If a health care provider engages in business, technical, and organizational practices that the health care provider knows are unreasonable and likely to interfere with, prevent or materially discourage the access, exchange, or use of electronic health information, the provider is at risk of running afoul of the information blocking rules.
Providers need to assess their practices against the eight exceptions to the information blocking rules, and in many cases, document their practices and policies in writing.
Session #3: No Surprises Act
Attorney Shalom and Mr. Paskowski explained that although the No Surprises Act’s (NSA’s) Independent Dispute Resolution (IDR) process has now been in effect for one year, there are still many processes that will need attention:
- Centers for Medicare & Medicaid Services (CMS) will need to continue to monitor the process and issue additional guidance that aligns with the spirit of the NSA.
- Payers need to be compliant with the disclosure requirements, including the qualifying payment amounts (QPA) and how they are computed.
- Providers need to have a clear understanding of the QPA, and how they align with their current rates.
- Once IDR decisions are issued, the parties need to administer the decision timely.
The IDR process can take a minimum of six months to get a decision, then additional months thereafter to collect if the provider prevails. When deciding whether to file an IDR case, the probability of winning the IDR case and the cash flow impact should be considered. To that end, the IDR process can have a profound impact on a provider’s accounts receivable. Further, as payers continue to lower their payments for out-of-network services, providers’ cash flow have been and will be impacted.
Session #4: Compliance Matters in Behavioral Health
Attorney Levine and Ms. Bowman noted that the COVID-19 public health emergency (PHE) contributed to the increased demand for behavioral health services, which has brought to light concerns regarding access to these important services. Stakeholders, including CMS, have sought to address these concerns by expanding access to behavioral health services, as outlined in CMS’s 2022 Behavioral Health Strategy.
For example, effective January 1, 2023, CMS’s 2023 Physician Fee Schedule (PFS) Final Rule relaxed the “incident to” supervision standard for behavioral health services from “direct supervision” to “general supervision”. Unlike “direct supervision”, which requires the physician or supervising practitioner to be present in the office suite and to be immediately available, “general supervision” does not require the physician’s physical presence during the performance of the service. This is a permanent change (codified under 42 C.F.R. section 410.26(b)(5)). So even after the COVID-19 PHE ends, behavioral health services can be furnished under the “general supervision” of the physician or supervising practitioner when these services are provided by auxiliary personnel “incident to” the services of a physician or supervising practitioner.
In addition, the Consolidated Appropriations Act of 2023 (CAA 2023) expanded the pool of eligible behavioral health providers by creating a separate benefit category for licensed marriage and family therapists (LMFTs) and licensed mental health counselors (LMHCs) / licensed professional counselors (LPCs). Starting in 2024, Medicare Part B will cover eligible services provided by LMFTs and LPCs/LMHCs.
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Be sure to also check out the following Let’s Talk Compliance additional resources from last year’s events:
- 2022 “Let’s Talk Compliance” Conference
- “Let’s Talk Compliance”: Start Law Changes and Impact on Physician Compensation – Part 2
- “Let’s Talk Compliance”: Recent Regulatory Changes Require Fresh Look at Physician Compensation – Part 1
- Regulatory Compliance & Physician Compensation Arrangements, Part II
- Regulatory Compliance & Physician Compensation Arrangements
We are working on developing future Let’s Talk Compliance events, so stay tuned for dates and details!