Healthcare

Hiring is tough. Under normal circumstances, it’s challenging to staff your facility with reliable and high-quality caregivers. Not only are executive and financial leaders managing significant labor shortages, they may also find themselves wading through a labor pool that still hasn’t settled in the wake of the COVID-19 pandemic. Adding to this complexity, the 2021 changes to Stark and Anti-Kickback laws make it difficult to balance the demands of physician salary requirements, the federal government, and your own facility’s budget.

UPDATED August 11, 2020

In recent years, the use of care management services to provide better patient outcomes has gained momentum. Contributing to this momentum is a desire to generate greater transparency around patient behaviors in Post-Acute Care settings. This setting was the first focus area for the creation of care management services.

When considering Stark Law exceptions for vetting financial arrangements with physicians, we often witness a tendency to focus primarily on Fair Market Value (FMV). This is rightly so, as ensuring physician contracts comply with FMV is a critical part of risk management.

Determining fair market value (FMV) compensation in a healthcare setting generally requires the use of multiple, objective data points and an understanding of how to apply that information given the unique facts and circumstances of the subject arrangement relative to the overall market.

Understanding what the government considers as support for FMV, and what it does not, is critical to selecting and enacting policies and procedures for establishing FMV physician compensation.

As value-based payment models gain traction, healthcare organizations are feeling pressure to control costs and improve the quality of patient care, all at a time when the supply of physicians is falling short of demand.

Competition for physicians is already heated. It’s about to get scorching. Demand is on a trajectory to drastically outpace supply, with a projected shortage of up to 120,000 physicians by 2030, according to the Association of American Medical Colleges.

After scaling back its two mandatory bundled payment programs last year, CMS recently signaled that the value-based payment train remains on track for the current administration.

Bundled Payments for Care Improvement Advanced (BPCI-A) opened to applicants on January 11. With the application deadline of March 12, 2018, just around the corner, the pressure is on to decide whether your hospital or physician group practice is going to participate.

The most astute executives in health systems are rightfully concerned about compliance risks in physician contracting. Among these risks are that a transaction or an arrangement between a hospital and a physician are consistent with fair market value (FMV) and are commercially reasonable (CR) as those terms are defined in the healthcare regulatory context.

Recent DOJ settlements provide clear evidence of the position of qui tam relators, prosecutors, and government experts that hospital losses on physician practices are clearly targeted. For example, in U.S. ex rel. Parikh v. Citizens [No. 6:10-cv-00064 (S.D. Tex.)], the court denied the defendant hospital’s motion to dismiss in part because of an inference between the plaintiff’s allegations of practice losses and improper remuneration to induce referrals.

Government and commercial insurers are transforming payment models from fee-for-service (FFS) to arrangements that include incentives for quality, outcomes, improved patient satisfaction, and reduced cost. In the FFS environment, hospitals, physicians, and other providers have been subjected to insignificant financial risk relative to the risk borne by payers; however, with time, transformed payment arrangements have encouraged, if not required, more providers to assume downside risk. Why? One reason is to hold providers accountable for the cost and quality of care. The table below by The Commonwealth Fund summarizes this need by showing where the United States ranks relative to other industrialized nations in health outcomes and risk factors:

Currently, one of the more perplexing issues around fair market value physician compensation relates to designing comp models that effectively reward physicians for quality and cost savings in a market that is still driven by fee for service (FFS) reimbursement. Compliance-minded hospitals are understandably concerned about adopting (seemingly aggressive) models that stack quality payments on top of existing FFS models, particularly if total compensation exceeds what is commonly considered outside the upper range of FMV. Unfortunately, what those models should look like, especially what resulting (compliant) physician compensation should come from those models, represents somewhat unchartered waters.