Medicaid Update, Discount Cards, MACRA APMs, Telemedicine

Medicaid Update - For all the whispers of state Medicaid programs discussing DPC pilots, none have come to fruition yet.  Manatt offers an excellent Medicaid Expansion Recap article.  Readers will note the absence of any mention of DPC.

Pharmacy Discount Cards - Any veteran DPC physician would tell you that these items typically are not necessary because they do not actually lead to the most affordable prices for medications.  At any rate, they are popular in some areas - usually among "traditional" physicians.  Those groups had better watch out!  If you have not opted out of Medicare, handing out pharmacy discount cards could amount to False Claims Act or Antikickback liability!  Check out this article by Robert M. Wolin "Drug Manufacturer Discount Cards: Accept With Caution."  Oddly enough, when nonprofits design "charity" programs to reduce certain costs for beneficiaries of government programs the OIG does not view this as a problem.  

This quick update from Health Industry Washington Watch includes the following quote: "MACRA established the Physician-Focused Payment Model Technical Advisory Committee (PTAC) to provide recommendations to the Secretary of Health and Human Services on the criteria for physician-focused APMs, and to submit comments regarding whether specific proposals meet the criteria to be established by the Secretary. "  So readers might want to follow this group.  Hopefully they will view DPC as an APM (Advanced Payment Model).

For those that hope growth in telemedicine will encourage more DPC, check out this case summary from a group that is battling the Texas Medical Board "Antitrust: “Doctor, Doctor, Give Me the News.”

Malpractice, FCA, GME, HIPAA, More State Legislation

Malpractice & FCA Risk - To the educated physician, malpractice should not be your greatest legal fear.  Yearly malpractice payouts across the nation are hanging just shy of $4 Billion annually, but the "up and comer" is the False Claims Act - where payouts now total $3.5 Billion per year.  Provisions of the False Claims Act and the liability associated with Medicare RAC audits are more ominous than medical malpractice.  According to Lisa Noller RAC Audit use is expected to increase.  Remember that "pure" opted out DPC physicians that do not bill any government entities are free of any False Claims Act liability, and medical malpractice in the DPC setting is lower as well.

GME Funding Not Increasing - If you expect Medicare to continue providing more funding for graduate medical education (residency positions) - think again!  See Dr. Fitzhugh Mullan's NEJM article.  Maybe the formation of independently funded DPC residencies could help fill the gap?

HIPAA rules are changing, and not necessarily for the better.  Remember that the "P" stands for portability, not privacy.  As of Feb 5, 2016, HHS will permit "certain HIPAA covered entities to disclose to the National Instant Criminal Background System (NICS) certain personal health information (PHI) related to individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm."  This new rule is discussed both here and here.   Here is a great discussion of the importance of cybersecurity regarding medical records.

January state legislative sessions are off and running, and many more states are considering DPC Legislation:
- Wyoming
- Virginia
- Florida

HRA-Employer Conversation Resources, Vermont at it Again, Delayed "Cadillac Tax"

If you live in Vermont and are DPC oriented, you likely breathed a sign of relief when the state abandoned law it had passed to establish a single payor system as of 2017 (which would have made DPC in the state all but impossible).  Look out, because they are at it again!   One of these options is an all-payer model. Act 54 of 2015 directs the Agency of Administration and the Green Mountain Care Board to “jointly explore an all-payer model, which may be achieved through a waiver from the Centers for Medicare and Medicaid Services” (CMS).  Details can be found in this Vermont Legal Aid Guide and this Vermont Biz article by Erin Mansfield also offers some helpful info.  

The Consolidated Appropriations Act of 2016 was signed last week by President Obama.  Highlights include:
- The absence of any language making DPC membership fees a deductible HSA expense
- Delay the "Cadillac Tax" by two years (it now starts Jan 1, 2020) and for those that choose to pay it, the tax is now considered a deductible business expense
- Eliminates the medical device tax for 2016 and 2017
- Reduces federal revenue by $34 Billion

Health Reimbursement Accounts - I am routinely asked whether employer DPC offerings fall within this space.  Fellow physicians want a black and white answer, but unfortunately this clear cut answer does not exist.  I'm attempting to find the time to author a comprehensive piece discussing these issues, but in the likely event that does not happen, the simplest way I can refer to this situation is as follows: The HRA "issue" is mainly a hurdle for business owners that are both subject to the ACA requirement (i.e. have 50 or more employees) and want to pay for all or a portion of their employees DPC periodic fee WITHOUT offering those same employees any type of qualifying coverage.  Recent IRS notices do offer some guidance:
- IRS Notice 2015-87
- IRS Notice 2013-54
- IRS Notice 2015-17

Highlighting Excellent Blogs - I plan to do this more often.  For those out there looking for a greater understanding of the ACA's impact on employers - more specifically the health insurance mandate and how that might weigh on their decision to purchase DPC for their employees, please consider the following posts from the Employment Matters Blog, which did a 24 part series : I would recommend DPC oriented readers start with the following entries:
- Part 1
- Part 3 (The Basics)
- Part 5 (Reporting of Health Reimbursement Arrangements under Code § 6055)
- Part 6 (Reporting Group Health Plan Opt-Out Arrangements under Code § 6055)
- Part 8 ( Reporting Offers of Coverage “On Behalf of Another Entity”)
- Part 16 (Reporting for, and Clearing Up Confusion Over, Post-65 Retiree Health Reimbursement Arrangements)
- Part 20 (Reporting Affordability on Form 1095-C, Part II, Line 16 Using 2-Series Codes 2F, 2G, and 2H)

That's all for now.  Merry Christmas to all!  (Click the title of the post if you wish to comment, ask a question, or propose a future blog topic.)

Phil Eskew