MACRA NEW RULE – THE END OF FEE FOR SERVICE?

Last week, HHS unveiled its proposed rule to implement MACRA (Medicare Access and Chip Reauthorization Act of 2015). Under the proposed rule, there will be two methods of complying with MACRA. The first is a Merit-based Incentive Payment System (MIPS). This is, in essence, the rollup of the existing fee for service value-based payment models that have been in existence. MIPS is intended as a replacement and it allows providers to choose its incentive payment measures or performance categories based upon each providers specialty.

The other system, the advanced alternative payment models (APM), is a separate system for comprehensive primary care plus, ACOs and other systems moving away from fee for service. MACRA, separates traditional fee for service from all of the value payment methodologies. It not only separates them for reporting purposes, but starting in 2019, there will be a significant difference in payments. From 2019-2024 base payments MIPS will be frozen, while APM payments may increase by five (5%) percent annually.

• MIPS participants can earn a four (4%) percent increase that could increase to nine (9%) percent by 2022 depending on physician ratings and participation in the quality categories. The intent is obviously that higher quality performers will be paid a disproportionate amount, and in theory, could obtain a greater market share, while lower quality performers will suffer.
• What to look for going forward? It is rare that a proposed rule is exactly in the same form as a final rule, but one can expect that this accurately describes the proposed new MIPS and APM systems. One can also expect that non-Medicare/Medicaid payors will adopt or increase utilization of similar formulas to continue to drive patients and reimbursement to performers with higher perceived quality and value.
• Finally, it appears that you must continue using PQRS through at least to 2019, and likely to 2024. While the MIPS system will ultimately supersede PQRS, MIPS doesn’t appear ready at this moment to eliminate PQRS reporting or its costs.

DO TELL

One of the more frequent calls I receive from healthcare providers involves questions about sharing patient information with the patient’s family or friends. These calls often involve situations where a patient is either unconscious or unaware, or involve situations where the patient is not present when the question about a patient’s health information arises.

OCR has posted on the HHS website an excellent summary of questions and answers about this issue. Some of the points made there are worth repeating:

• When patient is present and aware, a healthcare provider can discuss the patient’s health with a family member or friend if the patient agrees or, when given the opportunity, does not object.
• When the patient is not present or is unaware, a healthcare provider may still share patient health information with family or friends if the provider determines, based upon professional judgment that it is in the best interest of the patient.
• No, a provider does not necessarily need to have a written consent from the patient to share health information with family or friends. However, the provider may wish to note in the patients file the encounter with the family member or friend and why the healthcare provider thought it was ok to provide that information.
• Can you discuss a patient’s health information over the phone? Yes. The same rules discussed above also apply, whether it is in person or over the phone.

The first key is that HIPAA does not automatically prevent healthcare providers from discussing a patient’s health with family members or friends. The second key is that the provider must use some judgment in doing so and determining that there is a reasonable belief that the patient would want you to share information with a family member or friend.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.