Loosening Up Stark and Anti-Kickback Laws: What Would It Look Like?

https://mailchi.mp/burroughshealthcare/pc9ctbv4ft-1611881?e=7d3f834d2f

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The Department of Health and Human Services under the Trump administration has taken a deregulatory approach toward healthcare delivery. Its efforts on the payer side includes expanding the availability of individual health insurance policies that don’t conform to the rules of the Affordable Care Act, and more recently liberalizing the use of tax credits to purchase them.

However, the HHS has made one of its boldest proposals on the provider side. Over the summer, the Centers for Medicare & Medicaid Services issued a request for information (RFI) regarding potentially loosening up the Stark and anti-kickback laws.

Originally signed into law in 1972, the Anti-Kickback Statute barred any sort of renumeration to a provider to induce the referral of a patient. The Stark Law, enacted in 1990, bars doctors from referring Medicare or Medicaid patients to any ‘designated facility’ in which they have any form of a financial relationship. Both laws have been updated – and strengthened – numerous times in the intervening years. The HHS’ proposed changes would signal a shift away from how those laws are interpreted.

According to Mark Hardiman, partner with the Nelson Hardiman healthcare law firm in Los Angeles, the move represents a desire by HHS “to move all payments away from fee-for-service and make the providers at risk on both the upside and downside.”

Although the proportion of fee-for-service payments made to Medicare providers has shrunk in recent years, it still comprises the majority. A total of $392 billion in Medicare fee-for-service payments were made in 2017, according to the Kaiser Family Foundation, 56 percent of all payments made from the program. Although that’s down from 70 percent of all Medicare payments made a decade prior, the continuing aging of the Baby Boomer population and healthcare cost inflation is putting pressure on CMS and HHS to find ways to continue to pare back costs. Coordinated care initiatives such as accountable care organizations comprise just a small fraction of all Medicare payments, and many providers are balking about taking on too much downside financial risk when forming accountable care organizations.

 According to HHS, the intent is to make it easier for providers to implement value-based care initiatives. “Removing unnecessary government obstacles to care coordination is a key priority for this administration,” said HHS Deputy Secretary Eric Hargan of the rationale behind the regulatory review. “We need to change the healthcare system so that it puts value and results at the forefront of care, and coordinated care plays a vital role in this transformation.”

Nonetheless, the hospital sector has been generally supportive of regulatory changes. In testimony to a U.S. House Ways and Means subcommittee over the summer, Michael Lappin, chief integration officer at Advocate Aurora Health, observed that strict liability rules discourage value-based arrangements.

So, what would the healthcare delivery environment resemble with looser regulations governing both laws?

   According to Hardiman, the changes HHS is seeking to the regulations are far from sweeping.
“They are really on the margins, and they are not signaling a fundamental shift in the enforcement of the Stark and  Anti-Kickback Law,” he said. 

Why would there not be a major regulatory unraveling? Hardiman notes that doing so would create chaos in healthcare delivery. Moreover, qui tam(whistleblower) lawsuits in healthcare have become a major source of income for attorneys, and they would object to too much of an unwinding. Data from the non-profit watchdog organization Taxpayers Against Fraud bears that out: Of the more than $3.7 billion in False Claims Act settlements reached in 2017, $2.4 billion involved litigation involving healthcare enterprises. It was the eighth consecutive year that healthcare case settlements topped $2 billion. Hardiman also noted that more and more litigation is being settled for large sums even when the U.S. Justice Department declines to intervene in a case.

Hardiman believes that if the regs are loosened, they would likeliest be in the form of a “series of fraud and abuse waivers.” They would cover initiatives such as managed care ventures or ACOs, making it easier for hospitals and physicians to collaborate on care coordination, as well create models to more equitably share expenses and profits and encourage cross-referrals.

“You are going to see a much more comprehensive definition as to what types of risk-sharing arrangements will not be reviewed as renumeration under the kickback statute,” Hardiman said. “I wouldn’t be surprised to see safe harbors around Medicare Advantages, ACOs, and participants in other innovative risk-sharing arrangements.”

Individual physicians and medical groups may also have the opportunity to pay inducements to patients to lose weight or engage in another health-enhancing activity – something they are currently barred from doing under most circumstances.

“Everybody knows we’re heading toward a value-based coordinated care model,” Hardiman said. “And promoting and incentivizing it is still a risky business. You want at least some practical guideposts.” 

 

ARE YOU WORKING WITH PEOPLE OR THROUGH PEOPLE?

Are You Working With People or Through People?

Image result for ARE YOU WORKING WITH PEOPLE OR THROUGH PEOPLE?

One of the mentors I feel very fortunate to have had in my life was the late Richard Neustadt, a founding professor of the Kennedy School of Government at Harvard and author of the classic book Presidential Power. When I was a student at the Kennedy School in the mid-80’s, I had Dr. Neustadt for a couple of classes, got to work with him on some special projects and was part of a group of students he’d occasionally have over to his house to teach us about the subtleties of scotch whiskey.

There are a lot of insights that Dick Neustadt is remembered for but the one that is probably the most cited is that, in spite of the awesome resources at his (and, someday soon, her) command, the true power of the President of the United States is the power to persuade. To really be effective in accomplishing their agenda, the President must influence different stakeholders and constituencies to work with him or her.

Note the key preposition in that last sentence. It’s with. As an executive I was talking with recently reminded me, great leaders work with people, not through people. You may, at first, think that the dichotomy between with and through is a distinction without a difference. Not so fast, my friend. Let’s dig a little deeper on the difference between these two prepositions, with and through, and the impact they have on effective leadership.

We can start with definitions. The primary definition of with is “accompanied by.” The primary definition of through is “moving in one side and out of the other side of.” Maybe I could end this post right here. If you’re the colleague, the follower or some other stakeholder, would you rather be accompanied by or moved through one side and out the other? My guess is that for most people the answer is self-evident. You’d rather be accompanied. That’s likely at the essence of the power of persuasion that Dr. Neustadt wrote and talked about.

So, what are other markers of a leader who works with people instead of through people?

As the executive I was recently talking with told me, when you’re working with people, you start with respect for your colleagues. Unless proven otherwise, you assume that they, like you, are acting in the similar best interests of the enterprise. You assume that they’re highly motivated and qualified until proven otherwise.

You also have a focus on what they need as much as on what you need. If you only come in with what you need and what you have right and everyone else has wrong, over the long run you lose your effectiveness.

When you don’t have total control, you have to have influence.  Influence – the power to persuade – takes root when you work with people rather than through them.

Kaiser Permanente just invested in a housing complex. Here’s what it’s doing with it

https://www.fiercehealthcare.com/hospitals-health-systems/kaiser-permanente-aims-to-address-homelessness-by-investing-affordable?mkt_tok=eyJpIjoiTlRnM1lUZGhNV1kzWXpjeSIsInQiOiI5UFUwa2VZSFwvMU0rSjZjcys5ZDdlWXB2dll2SlBPNTFXcVVvd3Y3ODA3S0hSMFZxZFVtbUd6TDV4bU9qSVpmTEljSUZOc3JsbWRmT3g1dGplaVhuSXJtYWhXUUtiSUlHNTRnTk1sU2VuSVdCYUF2SnZlbU03M1wvVks4N0U3TVJJIn0%3D&mrkid=959610&utm_medium=nl&utm_source=internal

Kaiser Permanente

Kaiser Permanente has gotten into the business of housing.

The health system announced in May that it would put $200 million toward initiatives targeting housing insecurity and homelessness in the communities it serves. On Tuesday night, it announced the first investment is the $5.2 million purchase of an affordable housing complex in Oakland, California, through a fund in partnership with Enterprise Community Partners and the East Bay Asian Local Development Corporation.

The 41-unit building is in an Oakland neighborhood “on the brink of gentrification” which puts the existing residents at risk for displacement. By purchasing the building, it will be blocked from redevelopment that prices out the existing residents, preventing displacement, Kaiser Permanente CEO Bernard Tyson said at a press event on Tuesday.

Preserving buildings like this is a “key component to addressing the national homelessness crisis,” he said. “We know that preserving affordable housing is more effective than building new units.”

It’s part of a comprehensive strategy, officials said, to invest in addressing the economic, social and environmental conditions that ultimately affect the health of their patients.

Kaiser also announced it is “adopting” 500 homeless individuals in the city, Tyson said. He said that several of the system’s employees focused for 12 weeks to expedite a strategy to partner with community groups to house older homeless patients with chronic conditions.

All 500 people identified by the system have at least one chronic condition. The system is working with local groups to secure housing and other needed services for this group.

The plans unveiled by the system on Tuesday also expand beyond Oakland and the Bay Area, where Kaiser is headquartered. On top of the two initiatives focused in that region, Kaiser and Enterprise are teaming up to launch a $100 million loan fund to create or maintain affordable housing units in all of the communities Kaiser Permanente serves. 

Tyson said the health system will make future announcements about specific plans under that fund. Tackling this issue, he said, “ties into who we are and what we’re about as Kaiser Permanente.”

“This is the beginning of us being in traffic and backing our talk that we want to help to make a difference in Oakland, in the Bay Area, in this great country,” Tyson said.

 

 

 

Trump wants to bypass Congress on Medicaid plan

https://www.politico.com/story/2019/01/11/trump-bypass-congress-medicaid-plan-1078885?utm_source=Sailthru&utm_medium=email&utm_campaign=Newsletter%20Weekly%20Roundup:%20Healthcare%20Dive%2001-19-2019&utm_term=Healthcare%20Dive%20Weekender

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Block grants for states would achieve conservative dream on health program for poor.

The Trump administration is quietly devising a plan bypassing Congress to give block grants to states for Medicaid, achieving a longstanding conservative dream of reining in spending on the health care safety net for the poor.

Three administration sources say the Trump administration is drawing up guidelines on what could be a major overhaul of Medicaid in some states. Instead of the traditional open-ended entitlement, states would get spending limits, along with more flexibility to run the low-income health program that serves nearly 75 million Americans, from poor children, to disabled people, to impoverished seniors in nursing homes.

Capping spending could mean fewer low-income people getting covered, or state-designated cutbacks in health benefits — although proponents of block grants argue that states would be able to spend the money smarter with fewer federal strings attached.

Aware of the political sensitivity, the administration has been deliberating and refining the plan for weeks, hoping to advance an idea that Republicans since the Reagan era have unsuccessfully championed in Congress against stiff opposition from Democrats and patient advocates. During the Obamacare repeal debate in 2017, Republican proposals to cap and shrink federal Medicaid spending helped galvanize public opposition, with projections showing millions would be forced off coverage.

In addition to potential legal obstacles presented by moving forward without Congress, the administration effort could face strong opposition from newly empowered House Democrats who’ve vowed to investigate the administration’s health care moves.

“Hell no,” Sen. Bob Casey (D-Pa.) wrote on Twitter on Friday evening, vowing to oppose the administration’s block grant plan “through legislation, in the courts, holding up Administration nominees, literally every means that a U.S. Senator has.”

The administration’s plan remains a work in progress, and sources said the scope is still unclear. It’s not yet known whether CMS would encourage states to seek strict block grants or softer spending caps, or if new limits could apply to all Medicaid populations — including nursing home patients — or just a smaller subset like working-age adults.

A spokesperson for CMS did not comment on the administration’s plans but indicated support for the concept of block grants.

“We believe strongly in the important role that states play in fostering innovation in program design and financing,” the spokesperson said. “We also believe that only when states are held accountable to a defined budget — can the federal government finally end our practice of micromanaging every administrative process.”

Republicans have sought to rein in Medicaid spending, especially as enrollment swelled under Obamacare’s expansion of the program to millions of low-income adults in recent years. CMS Administrator Seema Verma has warned increased spending on the Medicaid expansion population could force cutbacks on sicker, lower-income patients who rely on the program.

The administration wants to let states use waivers to reshape their Medicaid programs, but the effort could face legal challenges in the courts. Waivers approved by the Trump administration to allow the first-ever Medicaid work requirements for some enrollees, for example, are already being challenged in two states.

Also complicating the administration’s push: the newfound popularity of Medicaid, which has grown to cover about one in five Americans. Voters in three GOP-led states in November approved ballot measures to expand Medicaid, which has been adopted by about two-thirds of states. Newly elected Democratic governors in Kansas and Wisconsin are pushing their Republican-led legislatures to expand Medicaid this year.

Verma has been trying to insert block grant language into federal guidance for months but has encountered heave scrutiny from agency lawyers, two CMS staffers said. She mentioned interest in using her agency’s authority to pursue block grants during a meeting with state Medicaid directors in the fall but did not provide details, said two individuals who attended.

There is some precedent for the federal government capping its spending on the entitlement program. Former President George W. Bush’s health department approved Medicaid spending caps in Rhode Island and Vermont that would have made the states responsible for all costs over defined limits. However, those spending caps were set so high there was never really any risk of the states blowing through them.

In recent years, governors have complained about the rising costs of Medicaid, which is eating up a bigger share of their budgets. States jointly finance the program with the federal government, which on average covers 60 percent of the cost – though the federal government typically shoulders more of the burden in poorer states. The federal government covers a much higher share of the cost for Medicaid enrollees covered by the Obamacare expansion.

An official from a conservative state, speaking on background to discuss an effort not yet public, said states would consider a block grant as long as the federal government’s guidance isn’t overly prescriptive.

CMS is hoping to make an announcement early this year, but it could be further delayed by legal review, which has already been slowed by the prolonged government shutdown.

Some conservative experts said the administration’s plans ultimately may be limited by Medicaid statute, which requires the federal government to match state costs. However, they say the federal government can still try to stem costs by approving program caps.

“There’s no direct provision of authority to waive the way that the federal government pays the states,” said Joe Antos of the American Enterprise Institute, a right-leaning think tank. “However, that doesn’t mean that you can’t try to have some of the effects that people that like block grants would like to see, in terms of encouraging states to be more prudent with the ways they spend the money.”

 

 

 

Payer, provider trends to watch in 2019

https://www.healthcaredive.com/news/payer-provider-trends-to-watch-in-2019/545612/

Ripple effects from 2018 will continue well into the new year as players deal with some massive policy and business shifts.