View
218
Download
0
Category
Preview:
Citation preview
Health Care Consolidation and Human Nature: The
Role of the Fraud and Abuse Laws in a
Changing Health Care System
Joan H. KrauseUniversity of North Carolina
Consolidation and Integration: What Role For Law?
Relevant Fraud LawsMedicare & Medicaid Anti-Kickback Statute
Prohibits offer/payment of remuneration to induce the referral of patients, or the purchasing of items/services, payable by the federal health care programs
Ethics in Patient Referrals Act (“Stark Law”)Prohibits referral of Medicare/Medicaid patients for
designated health services to health care providers with which referring physician has financial relationship
Civil Monetary Penalties LawPrevents hospitals from paying physicians to reduce or
limit services (gainsharing) Prohibits offering of financial inducements to
beneficiaries
The AllegationsFraud laws limit financial relationships between
referral sources and referral seekersShift from volume-driven to value-driven paymentIn this new model, fraud laws prevent providers
from working together in more innovative, efficient, and patient-centered ways
Examples:MSSP -- Required ACO fraud and abuse waiversOlder:
HIPAA risk-sharing safe harbors Gainsharing debate
The RealityFraud laws written in
a very different eraLaws assume:
Disaggregated health care system with many independent providers
Little vertical or horizontal integration
Fee-for-service payment
Old models still salient
$$Patient
s/Service
s
Health Care Consolidation and Integration
Integration = Process of discrete health care providers coming together in (at least loosely) organized form to pursue coordinated, efficient, high-quality care
FormsFinancialStructuralOperational
Financial IntegrationIndividual success tied
to others in group, such as:Managed careMSSP
May exist alone or with other forms of integration
No specific payment mechanism required
May have little effect on potential for fraud
Structural IntegrationAssume that legal
organizational structure safeguards against fraudStark Law group
practice exceptionACA flexible with regard
to organizational modelMitigates risks for
individuals, but still potential for fraud by organization
Operational IntegrationOperation of entity is
coordinatedFinancesStructureDelivery of care
Important from patient perspective
Often missing in MCOsACA focus on
outcomes and patient satisfaction
“In health care, like in everything
else, the way we pay people affects the way they cheat.”*
*Pamela S. Bucy, Health Care Reform and Fraud by Health Care Providers, 38 VILL. L. REV. 1003, 1049 (1993)
Effect of Payment Model on Fraud
Fraud occurs in different ways under different payment systems, e.g.:FFS vs. capitationPPS shifted locus of fraud to outpatient settings
Fraud occurs in unexpected places and in unanticipated ways that may be worse for patients
Hybrid payment systems will be subject to multiple types of fraud, many of which we cannot anticipate
Human Nature?“Who cheats? Well, just about anyone if the stakes are right.... For every clever person who goes to the trouble of creating an incentive scheme, there is an army of people, clever and otherwise, who will inevitably spend even more time trying to beat it.”Levitt & Dubner, FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THE HIDDEN SIDE OF EVERYTHING 24-25 (2005)
Recommended