Employment and Telemedicine Arrangements Between Hospitals and Practitioners: Compliance, Contractual, Reimbursement and Medical Staff Considerations
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Employment and Telemedicine Arrangements Between Hospitals and Practitioners: Compliance, Contractual, Reimbursement and Medical Staff Considerations
- 1. Employment and Telemedicine Arrangements Between Hospitals and Practitioners: Compliance, Contractual, Reimbursement and Medical Staff Considerations American College of Healthcare Executives Webinar: December, 12 2019 Presented by Sarah Coyne
- 2. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation. Hospitals Employing Practitioners
- 3. Basic Physician Employment Requirements (Stark/AKS) • Fair market value. • Commercially reasonable even in the absence of referrals. • Does not vary with the volume or value of referrals except that personally performed services may be compensated with a productivity bonus. • Identifies specific services (not a sham). • NEED NOT BE IN WRITING .... But probably should be – more to come on what it should include.
- 4. 2016 Stark Statutory Changes (Regs in 2019) • Hospitals, Federally Qualified Health Clinics and Rural Health Clinics may provide financial assistance to physicians/ groups to employ non-physician practitioners (with caveats). • Certain time block arrangements for shared equipment that were prohibited may involve payments from hospitals to physicians or vice versa (with caveats). • “Takes into account” will be used instead of “based on” the volume or value of referrals – takes away an attenuated legal argument. • “In writing” can mean an assembly of documents, emails. • A few other things.
- 5. Stark Law - Advanced Practice Clinicians •As of 2016, hospitals may give subsidies to physician practices to recruit APCs (PA, NP, CNM, CSW, psychologists). •Capped at 50% of the APC's compensation with certain limits. •Limited to the first two years of the APC's employment – which could incentivize front loading of the compensation and benefits. •Certain other requirements – similar to physicians (writing, not conditioned on referrals, etc.).
- 6. PROPOSED Stark/ AKS Revisions (1 of 2 ) •New rules to Stark and AKS proposed October 9, 2019. •Goal: allow hospitals and physicians to enter into value based (rather than volume based) arrangements without all the legal barriers. •For example: • Sharing of data analytics between providers. • Hospitals providing post-hospital care and monitoring quality metrics after discharge.
- 7. PROPOSED Stark/ AKS Revisions (2 of 2) •Relaxing the restriction on certain gifts to patients (e.g. smart pill boxes to help them remember to take their meds or providing a home health aide to teach them how to use it). •Donation of cybersecurity software by hospitals to doctors.
- 8. Physician Employment Agreements (1 of 3) •Although not required, an employment agreement is a guidebook for managing a relationship with a lot of internal tension. So if you are going to have one, try to include: • Specific obligations (hours, location, on-call, administrative duties). • Compensation including any quality bonus or stipend for supervision of non-physicians. • Agreement to meaningfully use electronic medical record.
- 9. Physician Employment Agreements (2 of 3) •Agreement to participate in peer review process as necessary to ensure quality and safety. (Example: FPPE to determine certain surgical skills are current). •Agreement to undertake education and training as necessary to keep skills current. •Confidentiality of information – not just patient but hospital business information. •Nonsolicitation of staff if the employment terminates.
- 10. Physician Employment Agreements (3 of 3) •Agreement to be bound by provider-payor agreements where required by those agreements. •Assigning rights for professional billing to any payor. •Noncompete – (Wisconsin tends not to like them – geographic radius must reflect the market, one year is ideal – these are not hard and fast rules). •Termination clause – include parameters for termination without cause.
- 11. General Legal Considerations – Employing APCs •Scope of practice •Admitting privileges •Membership on medical staff •Hearing rights
- 12. APCs Who Have Prescribing Authority •APCs with prescribing authority under state law may prescribe medications within their area of education, training, and experience. •In Wisconsin APNPs may not prescribe: • Schedule I controlled substances. • Schedule II Amphetamines and sympathomimetic drugs or compounds with some exceptions. • Anabolic steroids for the purpose of enhancing athletic performance or other non-medical purpose.
- 13. CMS - 4 Types of Advance Practice Nurses •A professional licensed RN can be one of four roles: 1. CRNA 2. CNM 3. NP 4. CNS •All practice in collaboration with a physician. •Varying scopes of practice – lots of room for disagreement in where the scope of each starts and ends.
- 14. Collaboration Generally •CMS tends to defer to state regulations to define scope of practice although there are payment rules requiring collaboration with a physician. •Wisconsin law and CMS (to get paid) require that APNPs, CNMs, CRNAs must work in collaboration with a physician.
- 15. Collaboration - APNPs • Must be DOCUMENTED – need not be an agreement. • Are agreements overkill? • Are agreements the gold standard? • Do agreements increase physician liability exposure? • For APNPs, the rule changed in 2016 to clarify that the burden of documentation is on the APNP, not the physician. • CMS also places the burden on the nurse. • For psych APNPs e.g. in Distinct Part Units – the burden of physician collaboration is overwhelming given the shortage of psychiatrists.
- 16. Collaboration - CNMs •A certified nurse midwife practices in collaboration with a physician. •Must have a collaborative AGREEMENT with a physician with post-graduate training in obstetrics. •Need not be an OB/ GYN – can be a family practitioner with graduate training in obstetrics.
- 17. Supervision - PAs •All physician assistants must work under the supervision of a physician. •The physician assistant is able to perform without much in the way of cosignature – must have an annual meeting with the supervising physician regarding prescribing.
- 18. APCs - Privileges •APCs must be credentialed and have privileges to practice in the hospital. •The credentialing process may be (but is not required to be) as rigorous as it is for physicians. •The due process requirements for physicians (for the hospital to have immunity under HCQIA) are not necessary for APCs.
- 19. APCs - Medical Staff Membership •APCs may be members of the medical staff but are not required to be. •Wisconsin law (Wis. Stat. s. 50.36) allows "hospital staff membership" for "any practitioner" acting within the scope of practice. •Critical Access Hospitals (CAHs) have discretion, PPS hospitals are explicitly permitted to allow non-physicians on the medical staff under the Medicare Conditions of Participation (COPs).
- 20. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation. Telemedicine Arrangements
- 21. Originating Site •Originating Site = the site at which the patient is located at the time the service is provided: • Hospitals and CAHs • Offices/clinics (including RHCs) • Skilled nursing facilities • Additional Medicare-approved sites: • Federally Qualified Health Centers • Renal Dialysis Centers/Facilities • Community Mental Health Centers • Homes of beneficiaries getting home dialysis for End-Stage Renal Disease • Mobile Stroke Units
- 22. Distant Site •Distant Site = the site at which the distant site practitioner providing the professional service is located. • Medicare – participating Hospital or CAH •Distant Site Telemedicine Entity (DSTE) = a distant site that provides telemedicine services but is not a Medicare- participating hospital.
- 23. Credentialing •Practitioners must be licensed, or hold a license recognized by, the state where the originating site is located. • In Wisconsin, this can be done several ways: • Traditional licensing procedure • Interstate Medical Licensure Compact • Nurse Licensure Compact
- 24. Credentialing by Proxy •Two Levels of Reliance: 1. Reliance on Distant Site's credentialing and privileging information • Only available for Joint Commission-Accredited institutions 2. Reliance on Distant site's credentialing and privileging decision • Available for Joint Commission-Accredited or CMS institutions
- 25. Credentialing by Proxy: Written Agreement •If a hospital relies on the distant site's credentialing or privileging decisions, there must be a detailed written agreement that defines the requirements.
- 26. Credentialing by Proxy: Written Agreement •Written agreement must state: • Distant Site/DSTE is a contractor of the hospital. • Distant Site/DSTE furnishes services in a manner that permits the Originating Site to be in compliance with Medicare Conditions of Participation. • Distant Site/DSTE credentialing and privileging processes must meet the Medicare Conditions of Participations.
- 27. Credentialing by Proxy: Requirements •Distant Site must be Medicare- participating hospital or CAH • Does not apply to DSTEs •Distant Site must provide Originating Site with a list of practitioner's privileges at the Distant Site • Practitioner must be privileged at the Distant Site for the services to be provided via telemedicine
- 28. Credentialing by Proxy: Requirements •Originating Site must conduct internal review of practitioner's performance. •Originating Site must provide Distant Site with results of the internal review. • At a minimum, must include: • All adverse events that occur as a result of telemedicine services. • All complaints the originating site has received about the practitioner.
- 29. Telemedicine Reimbursement - Wisconsin •Must be a covered service by an eligible provider type occurring at eligible locations. •Mode of providing service must be live video of sufficient quality to be similar to an in-person visit. •No reimbursement for store and forward or other types of telemedicine service.
- 30. Telemedicine Reimbursement - Wisconsin •A telemedicine covered service does not include all services covered by Medicaid. •Specific codes in categories including: • Initial inpatient consults • Health and behavioral assessments • Crisis intervention • Audiology • Variety of outpatient services, including certain substance abuse services
- 31. Telemedicine Reimbursement - Wisconsin •Services must be performed by an eligible provider to be reimburseable; eligible providers include: • Physicians • Nurse practitioners • Certified nurse anesthetics • Physician assistants • Psychiatrists
- 32. Telemedicine Reimbursement - Wisconsin •The location also affects the available reimbursement – hospitals, provider offices and clinics, SNFs, federally qualified health centers, rural health centers. •Reimbursement for Originating Site facility fees AND Distant Site Providers' service: • Must be documentation that patient is present at the Originating Site to be reimbursed for facility fees. • Must be clear from documentation which services were provided by Originating Site and which services were performed by the Distant Site Provider.
- 33. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation. Corrective Action Issues
- 34. Corrective Action – What Is It? • Corrective action is a medical staff term meaning the evaluation of a physician's clinical privileges or medical staff membership as part of a professional review action. • Usually it is a separate section of the medical staff bylaws – it is in everyone's best interest (medical staff and hospital administration) to have this well drafted to delineate the process and correlate with HCQIA immunity. • Goes through the MEC, potentially a medical staff hearing, and ultimate the Board.
- 35. Employment vs. Medical Staff • Employment and medical staff membership/ privileges must be understood by all relevant hospital staff as two different things. • With any disciplinary or clinical quality problem with an employed physician, there is a fork in the road. • If there is an employment performance improvement plan – keep it in the employment arena so that it doesn't constitute a restriction on privileges. • There may be naturally developing tensions between employed and independent medical staff.
- 36. Involvement of Human Resources • Human Resources is often the first to learn of a problem with a medical staff member who is employed. • There should be a process and expectation that the medical staff leadership will be made aware of such a problem and that a conscious decision will be made to go through employment versus corrective action.
- 37. Involvement of Hospital Administration • Many hospitals have the CEO as an ex officio non-voting member of the MEC. • Most of the time, the CEO is in attendance during the corrective action process and medical staff hearing, and is the liaison to the board. • Medical staff may push back on administrative involvement and feel it is interfering. • In the end, corrective action is a medical staff process – it is fine for administration to be aware and in attendance.
- 38. Summary Suspension • The CEO is usually empowered under the medical staff bylaws to summarily suspend a physician's privileges when there is a concern for patient safety or disruption of hospital operations. • If the summary suspension lasts more than 14 days, the physician has the right to request a hearing. • If the summary suspension lasts more than 30 days, the physician is reported to the NPDB. • It is difficult when the medical staff bylaws go beyond these legal timelines (e.g. allowing a hearing immediately if summarily suspended).
- 39. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation. ANY QUESTIONS? Sarah Coyne (608) 283-2435 sarah.coyne@quarles.com
Notas del editor
- As the health care reimbursement and regulatory environment continues to move toward value-based care, clinical integration, collaborative and innovative efforts, hospitals are increasingly arranging for services by telemedicine as well as directly employing practitioners (physicians as well as advanced practice clinicians). These arrangements commonly can raise a host of issues including compliance implications and may involve structural changes to the medical staff (and thus also to the medical staff bylaws). This presentation will provide a clear practical approach for handling the trickiest thorniest aspects of employment and telemedicine arrangements between hospitals and practitioners. Learning Objectives Understand the current and predicted legal parameters applicable to hospital employment of physicians and advanced practice clinicians. Understand the challenges posed by telemedicine arrangements and potential solutions. Understand the potential implications for the medical staff and the bylaws, including an algorithm for deciding whether a demonstrated problem with competence or conduct by an employed practitioner should be handled via employment or medical staff process. Learn practical tips about the “Dos” and “Don’ts” of employment agreements.
- s of January 1, 2016, a new Stark Law exception allows hospitals to give subsidies to physician practices for the recruitment of non-physician practitioners (“NPPs”). In the Phase III Stark Law regulations, the Centers for Medicare and Medicaid Services (“CMS”) declined to expand the Stark Law exceptions to include NPP recruitment. So what changed, and will this new NPP exception be a welcome gift or a Pandora’s Box for hospitals? In the new regulations, CMS cited “significant changes” in the nation’s healthcare system, predicting “alarming” shortages of primary care practitioners and an increased demand for NPPs. CMS attributed the increased demand to the healthcare initiatives of the Affordable Care Act and to a growing and aging population. CMS identified a similar increase in the demand for mental health services, noting that 1 in 5 adults suffer from mental illness or substance abuse, but less than half of these adults receive mental health services. In order to promote increased access to these services, CMS approved an NPP recruitment exception that now allows subsidies for physician assistants, nurse practitioners, certified nurse mid-wives, clinical social workers and psychologists. On the surface, the new NPP Stark Law exception seems to be a good thing, providing the hospital with an additional tool in its recruitment toolbox for attracting new practitioners to the hospitals’ service area. However, before using this new tool, hospitals should read the instruction manual closely, and understand the potential hazards. First, NPP subsidies are sure to attract a great deal of attention from many primary care practices in the hospital’s service area. Once the hospital offers a subsidy to assist one physician practice, the hospital can expect that many more physicians will want equal treatment. Indeed, although CMS limited the new Stark Law exception to primary care and mental health services, it left the door open to adding other specialties based on future needs. In doing so, hospitals can anticipate further expansion of NPP subsidies to other specialties along with more subsidy requests by physicians. Secondly, the subsidy formula approved by CMS raises some concerns. In the interests of simplicity, CMS declined to adopt an income guarantee or incremental cost methodology as used for physician recruitment. Instead, CMS chose a simpler, “bright-line approach” that caps the subsidy at 50% of the NPP’s actual compensation (including salary, signing bonus and non-cash benefits). Although CMS chose a “bright-line approach” for capping the subsidy, it did not set clear boundaries for establishing the NPP’s total compensation, including specific limits on signing bonuses or non-cash benefits, which may include health insurance, paid leave, relocation expenses, etc. In fact, the total amount of the NPP’s compensation is limited only by “fair market value,” which for some markets may exceed $150,000 annually. So in the end, what was proposed initially to be a small NPP subsidy program for physician practices, may prove to be costly for hospitals. Thirdly, although the subsidy is limited to the first two years of the NPP’s employment, CMS waived the requirement that the compensation arrangement be “set in advance,” allowing physicians to adjust an NPP’s compensation (or hours) on an annual or more frequent basis. As a result, there is nothing to prevent the physician practice from front-end loading the NPP’s compensation/benefits in the early years. Indeed, there is no limit on the revenues that a practice can generate from hiring/engaging the NPP during this time, including billing for services rendered by the NPP directly or incident-to the physician. To protect against the potential abuse and inequities of NPP subsidy arrangements, hospitals should consider setting dollar limits or caps on subsidy amounts, and then gradually increasing this cap for all similarly-situated physicians as the demand for NPPs grows. Finally, in order to be eligible for the subsidy, a physician practice must meet many of the same requirements that apply to physician recruitment arrangements (e.g., the arrangement must be set out in writing, not conditioned on referrals, etc.). However, CMS clarified that the NPP exception is separate and apart from physician recruitment and has its own requirements. As such, the NPP subsidy is available only once every three years to the same physician practice, and it can be used only to recruit an NPP who has remained outside of the hospital’s service area for at least one year. Nevertheless, CMS recognized that there still is room for physicians to “game” the system, by cycling or swapping NPPs with outside practices etc., and there is nothing to prevent a physician practice from terminating an NPP after three years and then requesting a new NPP subsidy from the hospital. CMS has warned about, and hospitals should guard against, physician abuses that potentially shift the costs of their NPP staffing to the hospital on a permanent or continual basis. Again, hospitals should establish their own NPP subsidy limitations and guidelines before initiating NPP recruitment programs. In fact, hospitals should consider whether the NPP exception is even necessary, since as CMS acknowledged, the Stark Law applies only to compensation arrangements that involve the referral of certain designated health services by “physicians,” not NPPs. CMS stated that NPP subsidies do not implicate the Stark Law unless the NPP compensation arrangement serves as a “conduit” for prohibited physician referrals. Still, CMS has expressly indicated that all NPP subsidy arrangements, regardless of how structured, will be scrutinized for compliance under both the Stark Law and the Anti-Kickback Statute for potential abuses. Given that CMS has provided a specific Stark Law exception for structuring NPP recruitment arrangements, hospitals are advised to utilize this framework for structuring their own NPP subsidy programs. At the same time, hospitals must remain on guard against possible physician abuse and establish their own guidelines to assure that NPP subsidy programs are implemented fairly for all physician practices at a reasonable cost. If you have questions concerning the new Stark Law exception for NPP recruitment, please call Chris Churchill, Partner and Chair of Barley Snyder’s Health Law Group, at 717-399-1571, or contact him at cchurchill@barley.com. i 45 C.F.R. § 411.357(x); 80 Fed. Reg. 70885, 71301 (November 16, 2015). ii 80 Fed. Reg. 71301, 71306.
- Wis. Admin Code N 8.10
- Defer to state regulations: 42 CFR 482.12(c)(1) "patients are admitted to the hospital only on the recommendation of a licensed practitioner permitted by the state to admit patients to the hospital." Collaboration Requirement: Wis. Admin Code N 8.10
- PA Supervision: Wis. Med 8.07
- Wis. Stat. 50.36 (3)(am) (allowing admission to hospital staff to any practitioner so long as it is within that practitioner's scope of practice). Medicare Conditions of Participation, in accordance with state requirements and medical staff bylaws: Expressly allow for extension of medical staff membership to advanced practice clinicians in PPS Hospitals Require CAH governing bodies to determine eligibility for medical staff membership
- Wis. Admin. Code Med 24.04 Wis. Stat. 448.980 - IMLC Wis. Stat. 441.51 – NLC The compacts are designed to expedite licensing for people who practice in multiple states IMLC is currently an agreement between 29 states, with legislature pending in several others NLC is active in 31 states, with legislature pending in several others
- Wis. Admin. Code Med. Ch. 24 Full medical staff bylaws credentialing and privileging process would require the hospital to follow its normal procedures to privilege and credential the distant site provider CMS statutes doesn't provide a process for credentialing using only the information from the distant site, only the decision
- Wis. Admin. Code Med. Ch. 24 The requirements vary slightly based on whether the originating site is a hospital or a CAH and whether the distant site is a hospital or DSTE; the requirements listed are CoPs governing appointment of medical staff: 482.12(a)(1)-(7) for hospitals, 485.616(c)(1)(i)-(vii) for CAHs
- Wis. Admin. Code Med. Ch. 24 The requirements vary slightly based on whether the originating site is a hospital or a CAH and whether the distant site is a hospital or DSTE; the requirements listed are CoPs governing appointment of medical staff: 482.12(a)(1)-(7) for hospitals, 485.616(c)(1)(i)-(vii) for CAHs (these include determining which categories of practitioners are eligible candidates for appointment to staff, appointing members of staff after considering recommendations fo the existing members, assuring that the medical staff has bylaws, approving the bylaws, ensuring that the medical staff is accountable to the governing body for the quality of patient care, ensuring that criteria for selection are individual character, competence, training, experience, and judgment, and ensuring that appointment is not dependent on certification, fellowship, or membership in a specialty body or society)
- Wis. Admin. Code Med. Ch. 24
- Wis. Admin. Code Med. Ch. 24