BeckersASC2013Higgins

Report
I S HOPD AND CO -M ANAGEMENT R IGHT FOR YOUR C ENTER ?
VALUATION , L EGAL , & O THER C ONSIDERATIONS
O CTOBER 25, 2013
B U S I NE SS V A L U A T ION • P ROF E SSIONAL S E RV I C E S V A L U A T IONS • A S S E T A P P RA I SALS • R E A L E S T A TE • T RA NS A C TION A DV I S ORY • C ONS U L T I NG
D A L L A S • N A S H V I L LE
I NTRODUCTION
 Melissa Szabad
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Partner, McGuire Woods
•
Advises various types of healthcare providers, including ambulatory surgery centers, ambulatory
surgery center chains, and hospitals and health systems
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Experience includes general corporate matters, anti-kickback and Stark issues, self-referral,
corporate practice of medicine and fee-splitting prohibitions, HIPAA, certificate of need, licensure
requirements, and state and federal securities matters
 Alex Higgins
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Manager, Professional Service Agreements Division, VMG Health
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Published multiple times related to physician compensation and fair market value
− Compliance Today
− National Association of Certified Valuators and Analysts
− Becker’s Hospital Review
− ImagingBiz
•
Finance Committee participant for two large health system ACO/P4P Initiatives
Page | 2
I NTRODUCTION
Presentation Overview
Physician Alignment Trends, P4P Compensation, & HOPD Co-Management
Valuation Guidelines
Co-Management Agreement Structure
Legal Considerations
Page | 3
P4P
Growth in Physician Alignment
 Non-Economic Reasons
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Security - healthcare reform, changing reimbursement
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Quality of Life – older and younger physicians, on average, working less hours
 Economic Reasons
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Increased compensation: post-employment or contracted arrangement
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Better hospital-based reimbursement
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Replace potential loss of ancillary earnings
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Investment requirements for information technology
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Participate in risk-based contracting, ACOs, quality initiatives
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Recognize highest quality and most efficient providers
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Recognize improvement
 Many strategies for P4P – co-management most common mechanism in ASC/HOPD arranagement
Page | 4
P4P
Quality Incentives
 Measures of quality typically include:
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Efficiency
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Outcomes
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Patient experience
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Adherence to evidence based processes
 Goals:
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Create competition based on quality and efficiency
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Drive improvement
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Recognize highest quality providers
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Recognize improvement
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Improve transparency
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P4P
Proven Market for P4P – Latest & Greatest
 UnitedHealth Group – largest US Health insurer by sales
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Currently paying 21 different specialties based on quality
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Expected to save twice as much than he quality payments due to healthier patients
 WellPoint – largest US health insurer by membership
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Will increase primary care physician pay by 10%
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Additional cost savings bonus of 20% to 30% of savings achieved
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Total P4P increase could be as much as 50%
 Tennessee Surgical Quality Collaborative
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10 hospitals experienced significant improved surgical outcomes
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Millions in cost savings - $2.2 million per 10,000 surgery cases
Page | 6
P4P
Proven Market for P4P – Latest & Greatest
 Ohio Medicaid Program – P4P component included on contracts for 2013
 Medicare Shared Savings Program (MSSP) - January 2013, 106 newest ACOs to join this program,
bringing to the total number of Medicare ACOs to 259
 Bundled Payments for Care Improvement (BPCI) – January 2013, CMS officially launched one of its
biggest financial innovation programs under healthcare reform, more than 500 hospitals, health
systems and other providers have enrolled
 ACO Business News (publication)
 HQID Project
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P4P
Quality Payments Overview
 Massive surge in reporting initiatives – ASC initiatives started in October 2012
 Congress authorized value-based purchasing (VBP) program to replace the RHQDAPU program
• Performance incentives would be based on improving historical performance or attaining superior
outcomes compared with national benchmarks
• ACOs include similar guidelines
 Numerous third party payors provide quality payments to hospitals and physicians
 Federal, state and commercial payors
 C-Level executives’ compensation may be subject to a hospital’s quality outcomes
Page | 8
P4P
AND
ASC S
ASC Co-Management Environment
 In 2013, ASCs required to report on their use of the safe surgery checklist
 The data reported will be used to determine payments for 2014
 Common scenario where P4P initiatives are relevant in ASC environment
•
Hospital buys ASC converts to HOPD
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Hospital aligns with physician owners post-transaction to maintain and improve quality
through a co-management arrangement
Page | 9
P4P
AND
ASC S
Is HOPD and Co-Management Right for your Center?
1) Does the current owner(s) of the center want to sell their business?
2) Do the physicians want to remain independent?
3) Do the physicians want to work with the hospital (acquirer) to co-manage the center to
improve quality outcomes?
 Pros to HOPD & Co-Management:
• Remain independent
• Do not have to carry burden (or as large of burden) associated with IT infrastructure
• Participate in new payment models in the market
 Cons to HOPD & Co-Management:
• May have to commit to quality committee meetings
• May be required to track time
Page | 10
VALUATION G UIDELINES
Valuation Starting Point
Commercial Reasonableness – whose responsibility is it?
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Valuation firm / counsel / hospital leadership
Facility needs – check for overlap of services - numerous medical directors needed?
Operational assessment - patient population considered?
Financial alternatives – best option absent referrals?
Understand total hours - reasonable per week?
Compensation must be set at FMV
Agreement Terms must be understood and are often unclear at valuation stage, define:
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What services will be provided
How parties will be compensated
Valuation should match the agreement
No published standards for physician compensation valuations, appraisal firm should understand
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Healthcare regulations
Valuation principles - Fair Market Value
Data considerations
Tuomey case significance
Page | 11
VALUATION G UIDELINES
Fair Market Value Definition
 Based on the Anti-Kickback Statute, and other healthcare regulations and guidelines, any transaction
between hospitals and physicians must be at Fair Market Value.
 IRS definition - “the amount at which property would change hands between a willing seller and a
willing buyer when the former is not under any compulsion to buy and the latter is not under any
compulsion to sell and when both have reasonable knowledge of the relevant facts.”
 Rely upon generally accepted valuation theory – consider multiple valuation methodologies
 Provides a conclusion which should not reflect consideration for value or volume of referrals, some
industry observed suggestions from counsel:
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Offer equal P4P opportunities to all providers
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Do not tie P4P compensation to expected referrals
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Medical staff for at least a year
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C O -M ANAGEMENT I NTRODUCTION
Overview
Fixed Fee + Variable Fee = Co-Management Fee Structure
 Hospital and physicians enter into an agreement where physicians are jointly responsible with
hospital for managing a defined service line
 Various structures exist in the market
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Joint Ventures
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Contractual arrangements
 Payments contained in the agreement
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Will vary based on services outlined
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Should be linked to actual services and/or outcomes
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VALUATION G UIDELINES
Data Considerations & Challenges
 Co-management likely a combination of several valuations since several services are provided
 Multiple, objective surveys suggested
 Data should not reflect referral relationships
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Competing Hospitals – Extra Caution
 “Typical” management fee may not be comparable
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Understand services
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Understand personnel required to provide services
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C O -M ANAGEMENT
Fixed Fee
Fixed Fee + Variable Fee = Co-Management Fee Structure
 Time dedicated to meetings designed to improve the overall quality of care for a specific service line.
 Based on cost to engage a physician to provide similar services.
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Clinical and administrative survey data considered
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Hourly rate x meeting attendance hours
 May also include
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Medical Directorship
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Non-physician services
− Billing
− Management/administration
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Call coverage
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C O -M ANAGEMENT
Fixed Fee Considerations
 Physician service related payments are justified by need for clinical expertise
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Define duties
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Time and effort expended
 Non-physician services
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Hospital could benefit from experience of current administrative and/or billing staff
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Prevent training, extra costs for integration
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Challenge: maintain consistent policies/benefits
 The duties must not overlap with hospital staff
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C O -M ANAGEMENT
Variable Fee
Fixed Fee + Variable Fee = Co-Management Fee Structure
 Quality outcomes drive payments
 Improvement and superior outcomes may warrant incentive payment
 Valuation of fee typically requires understanding of:
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Historical outcomes
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Benchmarking data
 Understand who is responsible for developing and implementing the strategy
 Determine the appropriate market rates for improving and achieving superior quality care.
 Create payment tiers for incentives based on various outcomes
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R EGULATORY G UIDELINES
Quality Incentives
 Quality measures should be clearly and separately identified.
 Quality measures should utilize an objective methodology verifiable by credible medical evidence.
 Quality measures should be reasonably related to the hospital’s practice and consider patient
population.
 Do not consider the value or volume of referrals. Consider an incentive program offered to all
applicable providers.
 Incentive payments should consider the hospital’s historical baseline data and target levels
developed by national benchmarks.
 Thresholds should exist where no payment will accrue and should be updated annually based on
new baseline data.
 Hospitals should monitor the incentive program to protect against the increase in patient fees and
the reduction in patient care.
 Incentive payments should be set at FMV.
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S HARED S AVINGS PAYMENTS – F OR A NOTHER D ISCUSSION
A Few Notes
 Physicians assist in lowering cost of care and/or improve efficiencies.
 Third party monitoring suggested per regulatory guidance.
 Direct Cost Savings
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Share cost savings, for example: lower supply costs
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Simple to quantify
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Short-term
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L EGAL C ONSIDERATIONS – ASC C ONVERSION
TO
HOPD
Co-Management Agreement
 Fees: Annual fixed fee; incentive fee
 Anti-Kickback; Personal Services and Management Contracts Safe Harbor
 Stark Law; Personal Services Arrangements and Fair Market Value Exceptions
 False Claims Act
 Civil Monetary Policy
Page | 20
L EGAL C ONSIDERATIONS – ASC C ONVERSION
TO
HOPD
Co-Management Agreement
 Advisory Opinion No. 12-22: OIG would not impose sanctions under the civil monetary penalty law
or under the Anti-kickback Statute due to safeguards:
•
Fixed fee and incentive fees under that arrangement reflected fair market value supported by an
independent, third-party valuation. Substantial services to earn the fees.
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The fee paid to the physician group did not increase as a result of an increase in the number of
patients treated at or referred to the hospital; annual cap; no fluctuation based on the number of
patients treated.
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Fee distributed to physicians pro rata based upon the amount of ownership interest in the group
practice; not based upon individual participation under the arrangement.
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No (i) stinting on care of patients; (ii) increasing referrals to the hospital; (iii) cherry-picking
healthy patients with desirable insurance for treatment at the hospital; or (iv) accelerating patient
charges to earn the performance fee.
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L EGAL C ONSIDERATIONS – ASC C ONVERSION
TO
HOPD
Co-Management Agreement
 Advisory Opinion No. 12-22: OIG would not impose sanctions under the civil monetary penalty law
or under the Anti-kickback Statute due to safeguards (continued):
•
Independent utilization review body to review the cost-savings measures implemented under the
arrangement; employee satisfaction, patient satisfaction, and quality components of the
arrangement were monitored on multiple levels by a performance improvement committee, a
peer review committee, the medical executive committee, and the hospital’s board of directors.
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Flexibility in physician decision-making; no limits on physicians’ abilities to offer patient services
or have access to any supply or device that a physician considered clinically appropriate for
patient care; an independent, third-party utilization review body to analyze the clinical
appropriateness of procedures performed in the facility; cost-savings benchmarks based on the
“aggregated performance” of the physician group so that the earning the incentive fee was not
dependent upon meeting a specific standard for each particular patient.
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L EGAL C ONSIDERATIONS – ASC C ONVERSION
TO
HOPD
Co-Management Agreement
 Advisory Opinion No. 12-22: OIG would not impose sanctions under the civil monetary penalty law
or under the Anti-kickback Statute due to safeguards (continued):
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Detailed performance measures based on national standards, independent utilization reviews,
and employee and patient satisfaction measures.
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No incentive fee for failure to satisfy the baseline measure.
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Term limited to three years.
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Notice to patients.
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Q UESTIONS & D ISCUSSION
M ELISSA S ZABAD
PARTNER
MSZABAD @ MGCUIREWOODS . COM
312-750-3509
A LEX H IGGINS
M ANAGER
ALEXH @ VMGHEALTH . COM
214.369.4888

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