Health Industry Washington Watch

New Postings on the Reed Smith Health Industry Washington Watch Blog

Debra A. McCurdy — Tue, 14 May 2013 09:30:00 -0500

The Reed Smith Health Industry Washington Watch blog has been updated to report on recent health policy developments, including the following:

Regulatory Developments. CMS has published several major proposed rules that would update FY 2014 Medicare payment policy for acute inpatient hospitals and long-term care hospitals, skilled nursing facilities, inpatient rehabilitation facilities, and hospices. CMS also has published rules addressing rewards to Medicare fraud tipsters and provider enrollment rules, along with a notice on the ACA Early Retiree Reinsurance Program. HHS is considering HIPAA Privacy Rule amendments to allow reporting of mental health data to the National Instant Criminal Background Check System. The IRS has published regulations to implement certain ACA insurance premium tax credit and medical loss ratio provisions.
Other HHS Developments. Recent CMS policy announcements have addressed Independent Payment Advisory Board (IPAB) reductions, Quality Improvement Organization service areas, ordering and referring denial edits, hospital charge data, Physician Payment Sunshine Act implementation, sequestration guidance for state surveyors and Medicare Part C & D plans, gapfill payments for new molecular pathology codes, draft Medicaid Federal Upper Limit files, and potential Physician Quality Reporting System measures. HHS has released enhanced National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health Care, and it has highlighted enforcement efforts in this area. HHS has provided an update on the status of efforts to promote health information technology.
OIG Developments. The OIG has released an updated Provider Self-Disclosure Protocol and an updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs.
Legislative Developments. Current legislative efforts are focusing on drug distribution security and Medicare physician fee schedule reform, and recent Congressional hearings and markups have addressed a number of health policy issues.
Health Industry Events. Upcoming events include meetings/calls on the Data.Medicare.Gov data portal, the “Sunshine Act”/National Physician Payment Transparency Program, and HCPCS code applications.

Updated OIG Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs

Debra A. McCurdy — Tue, 14 May 2013 09:28:18 -0500

This post was written by Scot T. Hasselman and Susan A. Edwards.

The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) issued an updated “Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs ” (Updated Bulletin) on May 8, 2013, answering certain questions the OIG has received from providers and suppliers regarding exclusions and addressing other issues related to exclusions. The Updated Bulletin follows on a Special Advisory Bulletin regarding the same topic published by the OIG in September 1999. Since the OIG issued the 1999 Special Advisory Bulletin, Congress has enacted various statutory provisions that have strengthened the OIG’s authority to exclude individuals from federal health care programs and impose civil monetary penalties (CMPs) related to exclusion. The OIG states that in the development of the Updated Bulletin, it also relied on comments it received in response to a 2010 solicitation of comments on this topic.

The Updated Bulletin reflects a continuation of the OIG’s expansive view of the scope of the federal exclusion authorities, particularly relating to the prohibition against employing or contracting with excluded individuals and entities. The bulletin explains the statutory background of the exclusion and CMP authorities; describes the effect of exclusion; emphasizes the implications of violations of exclusion by an excluded individual and the implications for violating the prohibition against employment or contracting with an excluded individual for the furnishing of items or services paid for by a federal health care program; explains the scope of what conduct involving excluded individuals may lead to overpayment liability and CMPs; and provides guidance to providers and suppliers regarding how to screen for excluded individuals.

In the Updated Bulletin, the OIG clearly explains its broad interpretation of the prohibition on federal health care program payment for any items or services furnished by an excluded person or at the medical direction or on the prescription of an excluded person. The OIG points out that this prohibition applies to all methods of federal health care program payment. For example, as the OIG states in the Updated Bulletin, the prohibition would apply to an excluded nurse furnishing services to federal health care program beneficiaries in a hospital, even if the nurse’s services are not separately billed to a federal health care program. Further, the OIG makes clear that this prohibition would also apply to an individual who switches professions within the health care industry (e.g., if the OIG excluded an individual as a pharmacist, and that individual then trained to become a nurse, payment for any items or services furnished by the individual while performing the duties of a nurse would be prohibited). The OIG also explains that the prohibition would include items and services beyond direct patient care, such as the preparation of surgical trays, the review of treatment plans, and the order entry of prescriptions for pharmacy billing purposes. In addition, the Updated Bulletin explains that excluded persons may not furnish administrative or management services that are payable by federal health care programs. Moreover, an excluded individual serving in a leadership role, providing health information technology support, or facilitating human resources would violate the prohibition on payment.

In response to a question, the OIG’s Updated Bulletin addresses whether providers such as laboratories, pharmacies, and imaging centers are subject to liability if they furnish an item or service ordered by or prescribed by an excluded individual. The OIG asserts that such providers could be subject to liability and instructs that in order to avoid liability, such providers “should ensure, at the point of service, that the ordering or prescribing physician is not excluded.”

The OIG also explains that if an excluded individual owns more than a five percent ownership interest in a provider, that provider is potentially subject to permissive exclusion.

In a view that seems to exceed the scope of the applicable regulations, the Updated Bulletin explains that potential CMP liability for contracting with or employing an excluded individual could result even if the provider does not pay the excluded individual for his or her services. For example, the bulletin states that CMP liability could be triggered if a provider’s claim to a federal health care program includes any items or services furnished by an excluded health care professional who works at a hospital or nursing home as a volunteer. (Notably, the OIG broadly interpreted the prohibition for contracting with or employing an excluded individual in the 1999 Bulletin, but has not subjected its previous or current interpretation to notice and comment rulemaking.)

In a footnote, the OIG remarks that a hospital may reduce or eliminate its CMP liability if it can demonstrate that it reasonably relied on a staffing agency to conduct screenings of excluded individuals, and gives the example that such reliance may be demonstrated by contractual language showing that the staffing agency agreed to screen individuals and the hospital exercised due diligence to ensure the staffing agency met this obligation. The OIG later recommends that any provider that relies on contractors to perform exclusion screenings, such as a staffing agency, physician group, or third-party billing or coding company, validate that such contractor performs exclusion screenings by, for example, requesting and maintaining screening documentation from the contractor. Finally, the OIG emphasizes that regardless of whether a screening is performed, who performs a screening, and the relationship between the provider and the excluded individual (e.g., contractor, volunteer, employee), the provider would be liable for overpayments related to an excluded individual and may be subject to CMP liability.

Finally, the OIG provides guidance regarding screening individuals to determine whether a person is excluded from participation in the federal health care programs. In sum, the OIG recommends that providers check the List of Excluded Individuals and Entities (“LEIE”) prior to employing or contracting with persons and then “periodically” during the course of employment or a contract. While the OIG points out that there is no statutory or regulatory requirement to check the LEIE, it states that “screening employees and contractors each month best minimizes potential overpayment and CMP liability.” The Updated Bulletin also notes that CMS issued a State Medicaid Director Letter in 2009 that suggested states require providers to screen all employees and contractors monthly. The OIG also notes that it has received questions regarding whether the U.S. General Services Administration’s System for Award Management database or other sanctions databases should be used in addition to or instead of the LEIE to determine whether a provider has any sanctions against him or her. The OIG recommends that providers rely on the LEIE as the primary database for the purposes of exclusion screening.

CMS Proposes Medicare IPPS and LTCH PPS Rates/Policies for FY 2014

Debra A. McCurdy — Tue, 14 May 2013 08:56:35 -0500

On April 10, 2013, the Centers for Medicare & Medicaid Services (CMS) published its proposed rule updating Medicare inpatient prospective payment system (IPPS) and long-term acute care hospital prospective payment system (LTCH PPS) rates and policies for fiscal year (FY) 2014, which begins October 1, 2013. Comments on the proposed rule will be accepted until June 25, 2013. Highlights of the sweeping rule include the following:

The proposed rule would increase IPPS operating rates by 0.8% after accounting for all adjustments (if a hospital does not successfully participate in the Hospital Inpatient Quality Reporting (IQR) Program, this update is reduced by 2.0 percentage points). The 0.8% update reflects the hospital market basket of 2.5% reduced by a -0.4 percentage point multi-factor productivity adjustment and an additional -0.3 percentage point reduction in accordance with the Affordable Care Act (ACA). The rate is further decreased by 0.8% for a proposed documentation and coding recoupment adjustment required by the American Tax Relief Act of 2012 and by a 0.2% proposed adjustment to offset the cost of a proposal addressing its inpatient medical review criteria. Specifically, CMS proposes to clarify its medical review criteria to presume that Part A hospital inpatient status is appropriate if the beneficiary is admitted to the hospital pursuant to a physician order and receives care for at least two midnights. On the other hand, hospital inpatient admissions spanning less than two midnights will presumptively be inappropriate under Part A. Appropriate documentation could rebut the presumption.
The proposed rule includes a number of hospital quality initiatives. For instance, CMS is proposing to implement the ACA’s Hospital-Acquired Condition (HAC) Reduction Program. Under this provision, effective beginning in FY 2015, hospitals that rank among the lowest-performing 25% with regard to HACs will be paid 99% of the IPPS payment that otherwise would be made. The proposed rule addresses, among other things, the payment adjustment, measure selection, risk-adjustment and scoring methodology; performance scoring; public availability of hospital-specific performance information; and limitation of administrative and judicial review. CMS also proposes to update the Hospital Value-Based Purchasing (VBP) Program, which adjusts IPPS payments based on how well a hospital performs or improves performance on a set of quality measures. For FY 2014, CMS proposes increasing the applicable percent reduction to base operating DRG payment amounts to 1.25%, increasing the total estimated amount available for value-based incentive payments (approximately $1.1 billion), and adding new measures to the program. In addition, the proposed rule would expand the Hospital Readmissions Reduction Program, under which CMS currently assesses hospitals’ penalties using three readmissions measures (heart attack, heart failure, and pneumonia). The maximum payment reduction will increase from 1% to 2% in FY 2014, as mandated by the ACA. For FY 2014, CMS also proposes to add two new measures to calculate readmission penalties effective for FY 2015: readmissions for hip/knee arthroplasty and chronic obstructive pulmonary disease. CMS also proposes a revised methodology to take into account planned readmissions for the existing readmissions measures. The proposed rule also would revise IQR program measures.
CMS proposes to implement new cost centers for Implantable Devices, MRIs, CT scans, and cardiac catheterization for FY 2014, which would increase the total number of cost-to-charge ratios (CCRs) used to calculate the FY 2014 proposed relative weights from 15 to 19. The additional CCRs generally increase the relative weight values for surgical Medicare severity diagnosis related group (MS-DRGs) and decrease the relative weight values for medical MS-DRGs.
CMS proposes to implement an ACA provision revising how Medicare disproportionate share hospital (DSH) payments are paid. Under the proposed rule, hospitals will receive 25% of the payment they otherwise would receive, and the remaining 75% percent will be adjusted for decreases in the national rate of uninsured individuals and distributed to hospitals payments based on the hospital’s share of uncompensated care relative to all Medicare DSH hospitals.
The proposed rule also addresses, among many other things: MS-DRG classifications for certain procedures; applications for new technology add-on payments; direct graduate medical education and indirect medical education payments; and the rate-of-increase limits for certain hospitals excluded from the IPPS that are paid on a reasonable cost basis subject to these limits. In addition, CMS proposes to revise the conditions of participation (CoPs) for hospitals relating to the administration of vaccines by nursing staff, and the CoPs for critical access hospitals relating to the provision of acute care inpatient services.
With regard to the LTCH PPS, CMS proposes a 1.8% annual update for LTCHs, which would increase the standard federal rate to $40,622.06. The rule also includes a number of other LTCH PPS payment and policy provisions, including a proposal to allow the regulatory moratorium on the full application of the “25% Rule” to lapse, new quality measures, and solicitation of comments on patient criteria-based payment adjustments. Reed Smith has prepared a Client Alert with additional details on the LTCH PPS provisions.

CMS Issues FY 2014 Medicare SNF PPS Proposed Rule

Debra A. McCurdy — Tue, 14 May 2013 07:47:27 -0500

On May 6, 2013, CMS published a proposed rule to update Medicare skilled nursing facility PPS rates for FY 2014 and make other updates to SNF reimbursement policy. CMS estimates that the proposed rule would increase aggregate Medicare payments to SNFs in FY 2014 by $500 million, or 1.4%, compared to FY 2013. Specifically, SNF PPS rates would be updated to reflect a 2.3% market basket increase that is reduced by a 0.4 percentage point multifactor productivity adjustment required by the ACA, and that is further reduced by a proposed 0.5 percentage point forecast error correction. Specifically, CMS proposes a technical change in the methodology for determining whether to make a forecast error correction when the difference between the actual and projected market basket percentage change exceeds 0.5%. By modifying how CMS determines the forecast error when it rounds to 0.5%, this policy would result in a 0.5 percentage point reduction in the FY 2014 market basket update. CMS also proposes to rebase the SNF market basket to reflect FY 2010 data, rather than data from FY 2004, and to make changes to the components of the SNF market basket index. With regard to therapy services, CMS proposes to add an item to the Minimum Data Set (MDS) to record the number of distinct calendar days of therapy provided to a beneficiary by all rehabilitation disciplines over the 7-day look-back period, and to specify the number of calendar days of therapy required to qualify for the Medium Rehab (RM) and Low Rehab (RL) Category Resource Utilization Group (RUG). CMS will accept comments on the proposed rule until July 1, 2013.

OIG Publishes Updated Provider Self-Disclosure Protocol

Debra A. McCurdy — Mon, 13 May 2013 16:14:30 -0500

This post was written by Scot T. Hasselman and Susan A. Edwards.

The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) has issued a revised version of its Provider Self-Disclosure Protocol (Updated SDP), dated April 17, 2013, which established a process for health care providers to voluntarily identify, disclose, and resolve instances of potential fraud involving federal health care programs. Specifically, this protocol is intended to address: (1) conduct involving potential false billings; (2) conduct regarding excluded persons; (3) conduct involving potential violations of the Anti-Kickback Statute (AKS); and (4) conduct involving potential violations of the AKS and the Stark Law.

The Updated SDP provides guidance on how to investigate the conduct described above, quantify damages, and report such conduct to OIG to resolve the provider’s liability under OIG’s civil monetary penalty authorities. The document supersedes the previous OIG Provider Self-Disclosure Protocol issued in 1998 and three previous “Open Letters to Health Care Providers.” The OIG notes that over the past 15 years, it has resolved over 800 disclosures, resulting in recoveries of more than $280 million to federal health care programs. The Updated SDP reflects the OIG’s experience with the protocol since 1988, along with feedback it received from the public in response to a June 18, 2012 comment solicitation.

A summary of the Updated SDP, highlighting notable statements and requirements, is available in our Client Alert.

CMS Proposes Hospice Payment Policies for FY 2014

Debra A. McCurdy — Mon, 13 May 2013 13:49:56 -0500

CMS published a proposed rule on May 10, 2013 that would increase Medicare hospice reimbursement by 1.1% -- or $180 million -- in FY 2014. Specifically, CMS would update the hospice per diem rates by 1.8% (reflecting a 2.5% market basket increase that is reduced by 0.7 percentage points for adjustments mandated by the ACA), but this update is partially offset by a 0.7 percentage point cut resulting from the use of updated wage data and CMS’s continued phase-out of its wage index budget neutrality adjustment factor (as set forth in prior rulemaking).

The proposed rule also would clarify ICD–9–CM coding guidelines and CMS’s expectations for diagnosis reporting on hospice claims, especially regarding the use of nonspecific symptom diagnoses. CMS restates its expectation that hospice providers will “code the most definitive, contributory terminal illness in the principal diagnosis field with all other related conditions in the additional diagnoses fields for hospice claims reporting.” For instance, CMS clarifies that “debility” and “adult failure to thrive” would not be used as principal hospice diagnoses on the hospice claim form. CMS specifically solicits comments on its coding guideline clarifications.

CMS also proposes revisions to its hospice quality reporting requirements. By way of background, under the ACA, hospices that fail to meet quality reporting requirements will receive a 2 percentage point reduction to their market basket update beginning in FY 2014. In 2013, hospices began reporting data on two quality measures (a pain management measure and a structural measure on participation in a Quality Assessment and Performance Improvement Program) for the FY 2014 payment determination. Beginning with the 2016 payment determination, CMS is proposing to replace these two measures with a standardized patient-level data collection instrument called the Hospice Item Set (HIS). The proposed rule also discusses, among other things, CMS’s plans to require the use of a Hospice Experience of Care Survey beginning in 2015 for the FY 2017 payment determination, and its efforts to reform the hospice payment framework. Comments will be accepted until June 28, 2013.

CMS Proposes Updated FY 2014 Medicare Payments and Other Policies for IRFs

Debra A. McCurdy — Mon, 13 May 2013 13:49:07 -0500

CMS published a proposed rule on May 8, 2013 that would update Medicare inpatient rehabilitation facility (IRF) prospective payment system (PPS) rates for FY 2014. CMS proposes a 1.8% payment update for FY 2014, reflecting a 2.5% market basket increase factor, reduced by a 0.4% multi-factor productivity adjustment and an additional 0.3 percentage point reduction required by the ACA. The update would establish a standard payment conversion factor of $14,865 for discharges occurring in FY 2014, which is an increase from the FY 2013 standard payment conversion factor of $14,343. CMS also is proposing to update the outlier threshold, which would increase IRF PPS payments by an estimated 0.2%, for a total estimated increase of 2%. In addition, the proposed rule would revise and update quality measures and reporting requirements under the IRF quality reporting program. Beginning in FY 2014, CMS will apply a 2 percentage point reduction to the applicable market basket increase factor for IRFs that fail to comply with the quality data submission requirements. In the rule, CMS also proposes to revise the list of diagnosis codes that are used to determine presumptive compliance under the “60 percent rule” for a facility to be excluded from the IPPS and be paid under the IRF PPS. Under the proposed rule, CMS would remove from the “presumptive compliance” list certain non-specific diagnosis codes, arthritis diagnosis codes, unilateral upper extremity diagnosis, some congenital anomalies diagnosis codes, and other miscellaneous diagnosis codes. In addition, CMS proposes revisions to the conditions of payment for IRF units of acute care hospitals to specify a minimum number of hospital beds that the IPPS hospital must have to meet the regulatory standard for having an IRF unit. Under the rule, the institution of which the IRF unit is a part would be required to have at least 10 staffed and maintained hospital beds that are not excluded from the IPPS, or at least 1 staffed and maintained hospital bed for every 10 certified IRF beds, whichever number is greater. If the institution does not meet this threshold, CMS proposes that the IRF unit should instead be classified as an IRF hospital. CAHs that have IRF units would be excluded from these requirements because they already have specific bed size restrictions. The proposed rule also would, among other things: update the IRF facility-level adjustment factors; revise the Inpatient Rehabilitation Facility-Patient Assessment Instrument; and clarify various regulatory provisions. CMS will accept comments on the rule until July 1, 2013.

IRS Proposes Regulations to Implement Certain ACA Insurance Premium Tax Credit, Medical Loss Ratio Provisions

Debra A. McCurdy — Mon, 13 May 2013 13:47:03 -0500

On May 3, 2013, the Internal Revenue Service (IRS) published proposed regulations implementing the ACA’s health insurance premium tax credit, as amended by subsequent legislation. These proposed regulations affect individuals who enroll in qualified health plans through Affordable Insurance Exchanges (Exchanges) and claim the premium tax credit, and Exchanges that make qualified health plans available to individuals and employers. The proposed regulations also address determinations of whether health coverage under an eligible employer-sponsored plan provides minimum value. Comments and requests for a public hearing will be accepted until July 2, 2013. These regulations are proposed to apply for taxable years ending after December 31, 2013, and taxpayers may apply the proposed regulations for taxable years ending before January 1, 2015.

In separate document published May 13, 2013, the IRS proposed regulations that provide guidance to Blue Cross and Blue Shield organizations, and certain other health care organizations, on computing and applying the medical loss ratio added to the Internal Revenue Code by the ACA, applicable to tax years beginning after December 31, 2013). Comments on the regulations will be accepted until August 12, 2013, and a September 17, 2013 public hearing has been scheduled on the regulations.

CMS Requests Comments on QIO Service Areas

Debra A. McCurdy — Mon, 13 May 2013 13:38:46 -0500

CMS is requesting public comments on how to define service areas for Medicare Quality Improvement Organizations (QIOs). Specifically, CMS wants input on four potential options CMS may use to divide work among a varying number of QIO contractors into service areas that are focused on quality-improvement-related work only. CMS is also seeking “fresh new ideas” regarding other options for organizing QIO contractors. According to CMS, this review is triggered by the evolution of the field of health care quality improvement and changes in health delivery systems. Comments will be accepted until May 31, 2013.

CMS Releases Hospital Charge Data

Debra A. McCurdy — Mon, 13 May 2013 13:26:34 -0500

CMS has posted data on hospital charges associated with the 100 most common Medicare inpatient stays. In a fact sheet announcing the availability of the data, CMS highlighted the “significant variation in charges from hospital to hospital -- including those within the same community -- for inpatient services that may be provided in connection with a given inpatient stay.” For instance, a CMS fact sheet notes that the range in average inpatient charges for services associated with joint replacement (MS-DRG 470) range from $5,300 to $223,000.

CMS Sequestration Guidance for State Surveyors, Medicare Part C & D Plans

Debra A. McCurdy — Mon, 13 May 2013 12:57:46 -0500

CMS has issued guidance to state survey agencies explaining adjustments CMS is making to survey and certification operations to "accommodate sequestration with as little impact on the public as possible." The guidance discusses revisions in the frequency and timelines for various surveys and other survey changes in light of a 5% reduction to the FY 2013 survey and certification Medicare budget. CMS also issued a May 1, 2013 memo to Part C and D plans on sequestration, covering rules regarding reducing payments to contracted and non-contract providers, beneficiary liability under sequestration, coverage gap discount program payments, Part D risk corridor reconciliation, and Electronic Health Records (EHR) Incentive Program payments, among other topics. In a related development, President Obama has signed the sequestration order for FY 2014, as required by law, although the Obama Administration's proposed FY 2014 budget, if adopted, would replace sequestration.

CMS Announces Preliminary Gapfill Payments for New Molecular Pathology Codes

Debra A. McCurdy — Mon, 13 May 2013 12:47:07 -0500

On May 9, 2013, CMS announced a 60-day comment period on gapfill payment amounts for new molecular pathology codes under the Clinical Laboratory Fee Schedule (CLFS) for 2013 and 2014. The data includes Medicare Administrative Carrier (MAC) payment amounts and the MACs’ rationale for certain tests. CMS invites the public to submit specific cost, test methodology, and any other information relevant to the pricing review. CMS will post the final gapfill pricing decisions in September 2013, which will apply to payments for these test codes in 2013 and 2014. The public will have an additional 30 days to request reconsideration of decisions in the September file.

HHS Releases Enhanced National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health Care, Highlights Compliance Efforts

Debra A. McCurdy — Mon, 13 May 2013 12:42:00 -0500

HHS has released enhanced “National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care,” which is a series of guidelines to inform and facilitate practices related to culturally and linguistically appropriate health services. The 15 standards, which were developed by the HHS Office of Minority Health, comprehensively update earlier national standards released over a decade ago. The principal standard is for organizations to “provide effective, equitable, understandable, and respectful quality care and services that are responsive to diverse cultural health beliefs and practices, preferred languages, health literacy, and other communication needs.” In a related, development, the HHS Office for Civil Rights (OCR) has announced a national compliance review initiative, “Advancing Effective Communication in Critical Access Hospitals,” to support language access programs in these hospitals.

CMS Notice Prepares for Termination of Early Retiree Reinsurance Program

Debra A. McCurdy — Mon, 13 May 2013 04:40:35 -0500

The ACA established the Early Retiree Reinsurance Program (ERRP) as a temporary program to reimburse employer and union sponsors of participating employment-based plans for a portion of the cost of health benefits for early retirees and their spouses, surviving spouses, and dependents. CMS has published a notice that sets forth termination dates for several operational processes in preparation for the January 1, 2014 ERRP program sunset date. These operational processes include: the submission of changes to information in a plan sponsor’s ERRP application; the reporting of plan sponsor change of ownership; the submission of reimbursement requests; the reporting and correction of data inaccuracies; and the request for reopenings of reimbursement determinations. The notice is effective April 19, 2013.

CMS Accepting Suggestions for Potential PQRS Measures

Debra A. McCurdy — Mon, 13 May 2013 04:35:35 -0500

CMS is now accepting quality measure suggestions for potential inclusion in the Physician Quality Reporting System (PQRS) in future years. In particular, CMS is seeking outcome-based quality measures addressing measure and performance gaps, including clinical outcomes, patient-reported outcomes, care coordination, safety, appropriateness, efficiency, and patient experience and engagement. Measure suggestions will be accepted until July 1, 2013. In order to be considered, each measure must include all required supporting documentation.

HHS Update on HIT Activities

Debra A. McCurdy — Mon, 13 May 2013 04:33:38 -0500

CMS and ONC have posted a fact sheet that details progress HHS has made in promoting the growth of health information technology since the enactment of the Health Information Technology for Economic and Clinical Health (HITECH). The fact sheet addresses, among other things, statistics on participation in the Electronic Health Record Incentive Programs and electronic prescribing and information on HHS plans to accelerate health information exchange development.

Senate Finance Members Seek Physician Input on SGR Reform

Debra A. McCurdy — Sat, 11 May 2013 08:45:54 -0500

Following a similar initiative on the House side, leaders of the Senate Finance Committee are inviting provider input on Medicare physician payment system reform. Specifically, Chairman Max Baucus (D-MT) and Ranking Member Orrin Hatch (R-UT) are requesting information on: (1) what specific reforms should be made to the physician fee schedule to ensure that physician services are valued appropriately; (2) what specific policies should be implemented that could co-exist with the current physician payment system and would identify and reduce unnecessary utilization to improve health and reduce Medicare spending growth; and (3) within the current fee-for-service system, how can Medicare most effectively incentivize physician practices to undertake the structural, behavioral, and other changes needed to participate in alternative payment models? Additional information, including a full copy of letter from Senators Baucus and Hatch to the health care provider community, is available here. Responses are due by May 31, 2013. The panel also has scheduled a May 14 hearing on "Advancing Reform: Medicare Physicians Payments."

Congressional Health Policy Hearings & Markups

Debra A. McCurdy — Fri, 10 May 2013 05:36:44 -0500

On May 8, 2013, the House Energy and Commerce Subcommittee on Health approved by voice vote H.R. 1407, legislation to reauthorize and combine the Animal Drug User Fee Act and the Animal Generic Drug User Fee Act. TheEnergy and Commerce Committee also recently held hearings on: the Administration’s HHS budget proposal; the Center for Consumer Information and Insurance Oversight and implementation of the ACA; the lack of transparency and consumer driven market forces in U.S. health care system; and the impact of HIPAA on patient care and public safety. The House Ways and Means Health Subcommittee held a hearing on Medicare physician payment reform, and the Senate Finance Committee has scheduled a May 14 hearing on this topic. Other Senate panels also recently held hearings on health policy issues, including: a HELP Committee hearing on "Successful Primary Care Programs: Creating the Workforce We Need"’ a Homeland Security Committee hearing on “Oversight and Business Practices of Durable Medical Equipment Companies”; and a Special Committee on Aging hearing on "The National Plan to Address Alzheimer's Disease: Are We On Track to 2025?"

HHS Considering HIPAA Privacy Rule Amendments to Allow Reporting of Mental Health Data to National Instant Criminal Background Check System

Debra A. McCurdy — Wed, 08 May 2013 15:15:30 -0500

HHS is soliciting comments on whether to amend the HIPAA Privacy Rule to expressly permit covered entities holding information about the identities of individuals who are disqualified from possessing or receiving firearms on mental health grounds to disclose limited information to the National Instant Criminal Background Check System. Comments on the rule will be accepted until June 7, 2013. Additional information about the notice is available on Reed Smith’s Life Sciences Legal Update blog.

CMS Actuary Determines No IPAB Cuts Needed in 2015

Debra A. McCurdy — Wed, 08 May 2013 15:13:47 -0500

The ACA’s controversial Independent Payment Advisory Board (IPAB) is charged with submitting detailed proposals to Congress and the President to reduce Medicare per-capita spending if projected spending growth exceeds a specified target based initially on inflation and then growth in the economy. IPAB’s proposals will go into effect automatically unless Congress enacts alternative legislation to achieve the required savings (with certain exceptions). The ACA authorizes the IPAB’s first recommendations to be submitted by January 2014 for implementation in 2015 if the Medicare per capita target growth rate is exceeded. The CMS Office of the Actuary has just determined, however, that the Medicare spending target will not be triggered for 2015, and as a result IPAB savings proposals will not be needed for that year. Specifically, in an April 30, 2013 memo, the Actuary explained that because the projected 5-year Medicare per capita growth rate (1.15%) for the period of 2011 to 2015 does not exceed the Medicare per capita target growth rate (3.03%), there is no applicable savings target for 2015. Note that to date, no members have been appointed to the IPAB, and there have been repeated legislative attempts to repeal the IPAB provision (although the Obama Administration’s proposed FY 2014 budget would strengthen the IPAB by reducing the target rate of Medicare cost growth that triggers IPAB recommendations).