Sonnenschein Sonnenschein Nath & Rosenthal LLP AHA CONFERENCE CALL SERIES Medicare Advantage Session 3: Regulatory Issues Affecting Providers

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 2 Introduction Medicare Advantage (MA) regulations affect providers directly and by way of contract indirectly. MA program gives MA organizations and their contracted providers broad discretion in negotiating and setting the terms and conditions of their economic and operational relationship. –But, there remain specific contract provisions that must be included in (or excluded from) written agreements between MA organizations and their providers. –MA organizations are required to have policies and procedures which comply with MA regulations. By contract, MA regulations are extended to providers.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 3 Goals of Todays Presentation To assist hospitals to: –understand regulations governing relationship between MA organizations and physicians and other providers; –distinguish between contract terms that are required by regulation and terms that are open to negotiations; and –identify topics worthy of negotiation/clarification in relationship with MA organizations.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 4 You Cant Rely of State Laws Remember: –Congress has preempted almost all state laws and regulations in connection with the Medicare Advantage program. –State laws that wont apply include: prompt payment, minimum benefits, marketing requirements, and appeal rights and procedures. –Be sure these issues are addressed in your contract!

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 5 Relationship between the MA Organization and Physicians – Medical Policies Regulations require physician involvement in MA organization policy making. –Formal procedures must involve network physicians in the development of: medical policies, quality improvement programs, and utilization management guidelines. –Practice and utilization management guidelines must: be based on reasonable medical evidence or a consensus of professionals in the field, consider the needs of enrollees, and be reviewed and updated regularly.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 6 Provider Evaluation and Selection MA organizations must develop written policies and procedures governing evaluation and selection of providers Written policies for physicians and other health care professionals must conform with MA credentialing and recredentialing rules and anti-discrimination rules. –Standards should be reviewed by clinical peers through a credentialing committee.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 7 Relationship between the MA Organization and Physicians – Network Participation Most MA plans must establish written rules and procedures for physician participation in the plans network. –Written notice must be furnished regarding: payment, credentialing, participation decisions, material changes in rules, participation decisions adverse to physicians, and process for appealing adverse participation decisions. –There are special rules for termination or suspension of physician contracts. Written notice required stating: –reason for the action and –right to appeal.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 8 MA Organization and Health Care Professionals – Non-Interference with Advice MA organizations may not prohibit or restrict a health care professional from advising or advocating on behalf of an MA enrollee about: –enrollees health status, medical care, or treatment options, –risks, benefits, and consequences of treatment or non- treatment, or –opportunity for the enrollee to refuse treatment or express preferences about future treatment decision. Health care professionals are required to provide the enrollee with information regarding treatment options. Health care professionals are required to ensure that enrollees with disabilities receive effective communications in making treatment decisions.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 9 MA Organization and Health Care Professionals – Anti-discrimination Rules MA organizations are generally free to select network health care professionals consistent with their policies and procedures on: –selection, –credentialing and qualification, and –plan access requirements. An MA organization may not discriminate against any clinician acting within the scope of his/her licensure. An MA organization may generally: –refuse participation for health professionals where its network is sufficient to meet enrollee needs, –use different reimbursements levels for different specialties or practitioners, and –Implement quality and cost control measures.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 10 Eligibility to be a Network Provider Excluded providers –MA organizations are prohibited from contracting with or employing individuals or entities excluded from Medicare participation. A hospital should expect to: –represent and warrant that it is not excluded (and does not employ excluded individuals or entities), and –give notice if it (or one of its employees or contractors) is excluded. –MA organizations may not pay excluded providers (including excluded hospitals), except in limited circumstances. Opt Out physicians and practitioners –MA organizations may not pay a physician or practitioner who has opted out of the Medicare program. –Exception for emergency and urgently needed services.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 11 Eligibility to be a Network Provider MA organizations must review the qualifications of physicians and other professionals who wish to be directly employed or who want to participate in the MA organizations network. For institutional providers, the MA organization must determine that the provider: –has a signed a participation agreement with CMS, –is licensed to operate in the state and is in compliance with state and federal requirements, and –has been reviewed and approved by an accrediting body (i.e., JCAHO) or meets the MA organizations own standards. Supporting documentation must be obtained/reviewed by MA organization at least once every 3 years. MA provider contracts must require institutional providers to notify MA organization of any change in Medicare approval, licensure, or accreditation status.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 12 Quality Improvement Programs All MA coordinated care plans are required to have a Quality Improvement (QI) plan which: –includes a chronic care improvement program (CCIP), –conducts QI projects to improve outcomes and satisfaction, and –encourages providers to participate in CMS QI initiatives. All MA organizations must have systems that collect, analyze and report data needed to implement the organizations QI program. –Data must be reliable and complete and must be available to CMS

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 13 Quality Improvement Programs CCIP program must be able to: –identify enrollees with severe chronic conditions that would benefit from the program, and –monitor the enrollees who participate in the program. QI Projects –Focus on specific clinical and non-clinical areas and measure performance, systemically intervene, such as through establishment of performance guidelines, improve performance, and Follow-up on the effectiveness of the intervention.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 14 Quality Improvement Programs Regional Plans and Local PPOs must: –measure performance based on standard CMS measures, –evaluate the continuity and coordination of care, and –base written utilization review protocols, if used, on current standards. Providers and QI projects –Providers likely to be asked for data –MA organization may seek substantial collaboration –Best to address these issues in the contract with the MA plan.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 15 Provider Contracting MA regulations require contracts with providers to contain certain provisions, including: –HHS and Controller General right to inspect, evaluate and audit providers contracts, books, documents, and records regarding the MA contract –Enrollee hold harmless provision (stating provider will not hold an enrollee liable for payment of fees that are the obligation of the MA plan). –Delegation of functions consistent with certain requirements (e.g., in writing, specifying delegated functions, and stating provider will comply with all applicable Medicare laws, regulations and CMS instruction). –Providers must safeguard an enrollees privacy and the accuracy of medical records. –A prompt payment provision agreed upon by both parties (provision does not need to mirror original Medicare program prompt payment timelines).

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 16 Provider Contracting Among the requirements in an MA plans contract with a provider is compliance with the plans policies and procedures. MA policies and procedures must include the following: –providers may not discriminate on the basis of health status. –services must be available 24/7, when medically necessary. –services must be provided in a culturally competent manner. –providers must document when enrollee has executed an Advance Directive. –providers must certify completeness and truthfulness of all encounter data submitted to an MA organization.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 17 Provider Contracting Suggested Areas to Address through Contract –Payment terms Negotiate rates (factor in reimbursement for add- ons), Seek additional payments if Regional PPO gets stabilization fund monies, Standard contract terms (e.g., termination, indemnification); –Prompt payment and penalties for slow payment; –MA organization audit rights (frequency, advance notice, reimbursement of hospital costs); –Provider appeal procedures and rights (objective third party review of payment denials); –Reimbursement for administrative costs (e.g., costs associated with issuing NODMAR);

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 18 Provider Contracting Suggested Areas to Address through Contract (cont.) –Hospital not required to pay for continuation benefits if MA Organization goes insolvent; –What happens if MA program rule/policies and procedures change with cost implications for providers –MA organization/hospital obligations in connection with beneficiary grievance and appeal process; –Clarify/Determine MA Expectations (Negotiate Appropriate Payment): Medicare secondary payer requirements (if any); QI related responsibilities; Data reporting obligations; Marketing activities.

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 19 AHAs Medicare Advantage Teleconference Series Session 1: Background and Fundamentals –Tuesday, September 20, 4 pm EST –Thursday, September 22, 4 pm EST Session 2: Payment Issues for Providers –Wednesday, September 28, 4 pm EST –Monday, October 3, 4 pm EST Session 3: Regulatory Issues for Providers –Tuesday, October 11, 4 pm EST –Friday, October 14, 3 pm EST Special Session: Issues Unique to Small or Rural Providers –Friday, October 21, 3 pm EST –Monday, October 24, 2 pm EST

Sonnenschein Sonnenschein Nath & Rosenthal LLP © American Hospital Association 20 Contact info: AHAs Medicare WebPage: This page will provide access to resources on many Medicare issues, including Medicare Advantage, Medicare Part D drug coverage, and Medicare Interactive. Ellen Pryga, Director, Policy –American Hospital Association – Bruce Merlin Fried, Esq. –Sonnenschein – Janice Ziegler, Esq. –Sonnenschein –