Americans in favor of end-of-life discussions, split on ACA

Americans overwhelmingly believe that Medicare should cover end-of-life advance planning discussions with physicians, although few have actually engaged in such discussions, according to a September 2015 Kaiser Family Foundation (KFF) poll. However, they remain split in their overall views of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), with 41 percent expressing favorable views and 45 percent expressing unfavorable views. Americans also differ as to their support of various, specific provisions. For example, although they tend to oppose certain ACA-imposed taxes, their views on these taxes are less firm than their views on other aspects of the law. The poll is the latest of KFF’s monthly health tracking polls, which survey Americans on their views of the U.S. health care system overall, and the ACA, in particular.

End-of-life care

In its July 15, 2015, physician fee schedule (PFS) proposed rule, CMS included provisions for Medicare coverage of advance care planning (ACP) discussions with physicians through the use of two new Current Procedural Terminology (CPT) codes (see Proposed rule, 80 FR 41686). The ACA originally encouraged such discussions, and CMS intended to include coverage for APT discussions as part of annual wellness visits, but the regulation was never implemented, as opponents raised discussions of “death panels” (see Medicare wellness coverage no longer includes advance care planning, Health Law Daily, January 11, 2011). According to the KFF poll, conducted from September 17 to September 23, 2015, 89 percent of respondents believed that doctors should engage in APT discussions and 81 percent believed that Medicare should cover such discussions. However, only 17 percent said they had actually engaged in APT discussions, including only 27 percent of seniors and 31 percent of people with debilitating disabilities or chronic conditions. Respondents were significantly more comfortable having APT discussion with spouses, with 83 percent claiming they would be “very comfortable” discussing APT with spouses, as opposed to 57 percent with physicians or other health care providers.


The public overall supported various ACA transparency provisions requiring insurance companies to make certain information publicly available. Eighty-four percent are in favor of the release of data on the availability of in-network doctors and hospitals, 83 percent would like to see data on how often claims are denied or appealed, 82 percent believe the public should know how quickly the company pays claims, and 73 percent think insurance companies should release data on what a typical person pays to see a doctor not in the plan network. Roughly 70 percent say they would be at least somewhat likely to use these types of information when seeking insurance.


Overall, respondents opposed the Cadillac and medical device taxes authorized by the ACA. Section 9001 of the ACA created the Cadillac tax, which imposes a tax beginning in 2018 on higher-cost employer-sponsored health plans. Only 37 percent of respondents had followed Cadillac tax news in the past month, but 60 percent opposed the tax. However, many were easily swayed by arguments for or against the tax. Twenty-seven percent of those who opposed the tax changed their minds to favor the tax after being told that it could lower health care costs, bringing overall support to 55 percent. Fifteen percent of those in favor of the tax switched to oppose the tax after being told that it would likely cause employees to pay more in out-of-pocket expenses.

Fifty-seven percent of respondents opposed the medical device tax imposed by ACA section 9009, which imposes a 2.3 percent excise tax on medical device manufacturers.

Kusserow on Compliance: Credit balances going to the top of the high risk list

Failing to reconcile credit balances and repaying overpayments has become a new and major threat to providers. Now these acts can be viewed as “reverse false claims” that could easily result in millions of dollars in penalties. The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) mandated the report and return of overpayments within 60 days of those payments being “identified;” failure to do so creates a reverse false claim.

Credit balances generally occur when the reimbursement that a provider receives for services provided to a beneficiary exceeds the charges billed, such as when a provider receives a duplicate payment for the same services from another third-party payer. It was unclear when the clock on when these balances should be returned started ticking, as neither Congress nor CMS identified when this period begins, leaving it to interpretation by providers. This room for interpretation ended in July of 2015 with a decision by a federal court in a qui tam case. In that matter, the providers were charged with failing to timely investigate and resolve a suspected problem of receiving overpayments. The court ruled that notice of potential violations was sufficient to start the 60-day clock. Holding otherwise would permit willful ignorance to delay the formation of an obligation to repay the government money that is due, the court noted.

A new report, issued by the Office of Inspector General (OIG) has shed some light on to what extent this exposes providers to liability. The OIG examined provider overpayments in Medicaid programs and found that failing to identify and return Medicaid overpayments was a continuing problem. The agency performed reviews in eight states to update prior work on Medicaid credit balances and the report was already in draft when the federal court issued its new ruling. The report found efforts in many states were inadequate to ensure that providers were remitting overpayments in a timely manner and called upon CMS to establish a national Medicaid credit balance reporting mechanism and require its regional offices to monitor reporting.

In a sample review of eight providers in each of the eight highlighted states (total of 64 providers), the OIG report estimated unrecovered overpayments of $24,984,165 (of which $16,833,392 was the federal share). This tiny sample suggests that overpayments received and not paid could be a very significant amount of money. The OIG found that providers did not identify, report, and return Medicaid overpayments because the states did not require that providers exercise reasonable diligence in reconciling patient records. In some cases, it noted that some providers did not reconcile some patient records for more than six years.

Implications of the recent court action and new OIG report

Compliance officers should see a large red flag raised when considering the OIG report and the recent federal court decision. Together, we now see that the courts have drawn a clear line of what constitutes failure to timely remit payments and the OIG has demonstrated an ability to identify unreported overpayments. As such, compliance officers should place this issue near the top of compliance high risk areas. It is advisable to immediately begin to ensure that credit balance management is subject to ongoing monitoring as well as ongoing auditing. Failing to report overpayments may trigger reverse false claims that can result in millions of dollars of liability.

Tips for compliance officers

  • Al Bassett, JD, former Deputy Inspector General and FBI executive with 15 years of health care compliance consulting experience, advises “compliance officers to examine the credit balance issue and ensure that all overpayments are being identified in a timely matter and reported to the executive leadership and the board to ensure they are acted upon and paid back in a timely manner.”
  • Jillian Bower of the Policy Resource Center stated that “the court decision increases the importance of having written guidance already in place to address potential overpayments, including policies for conducting investigations, disclosure, as well as protocols between the compliance officer and legal counsel in handling complaints. Without such written guidance, matters could bog down and run out the clock.”
  • Carrie Kusserow, a senior consultant with over a decade of specialized experience with hotlines, observed that “the recent court case came from a whistleblower, as such it is critical to have an effectively operated hotline to quickly capture any reports of overpayment issues to promptly investigate the matter within the short time frame allowed under the court’s ruling and failing to do so becomes a ticking time bomb under the 60-day rule.”
  • Jim Cottos, who has served as an Interim Compliance Officer for many organizations, along with his experience as former Chief Inspector for the HHS OIG, advised that “organizations must have available trained people to quickly investigate and resolve overpayment issues.”
  • Dr. Cornelia Dorfschmid, a nationally recognized expert on analyzing claims, stated “the biggest challenge with identification of overpayment amounts is to do too little for too long. Hesitation can quickly turn into unreasonable delay and non-compliance. The compliance officer should not let that happen. Getting help from independent and objective experts with the determination of claims accuracy and statistical extrapolation, as well as secondary effects, such as on physician productivity and FMV [fair market value] compensation in RVU [relative value units] based models, is a good idea. It will carry a lot more weight with the government than if internal staff does the work. External review work in these cases is best done under direction of legal counsel.”
  • Camella Boateng, a senior compliance consultant brought up “the old adage that says ‘an ounce of prevention is worth a pound of cure.’ It is far better to avoid making billing errors than dealing with the consequences of failing to do so. As such it is worth remembering advice from the OIG to provide specialized compliance annual training regarding applicable billing rules for those involved in claims processing.”



Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2015 Strategic Management Services, LLC. Published with permission.



CMS announces Enhanced MTM model, hopes to bring efficiency to Part D

The CMS Center for Medicare and Medicaid Innovation (CMMI) announced a model designed to test strategies to improve the use of medication among Medicare Part D beneficiaries. The new CMMI program—The Part D Enhanced Medication Therapy Management (Enhanced MTM) model—will attempt to more effectively use MTM, to improve health care outcomes and quality. According to the CMS announcement, enhanced MTM also has the potential to lower overall health care costs.


Section 3021 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) established the CMMI to test innovative health care payment and service delivery models. A primary goal of the CMMI was to improve the quality of care and reduce Medicare, Medicaid, and CHIP expenditures. The ACA appropriated $10 billion to support Innovation Center activities initiated from FY 2011 to FY 2019.

Enhanced MTM model

The new model will evaluate whether Medicare Prescription Drug Plans (PDPs) that are given additional incentives and flexibilities to innovate will be better able to meet the goals of the MTM programs. CMS wants to test whether changes to PDPs will help meet the MTM goals of: “(1)improving compliance with medication protocols, including high-cost drugs, ensuring that beneficiaries get the medications they need, and they are used properly; (2) reducing medication-related problems, such as duplicative or harmful prescription drugs, or suboptimal treatments; (3) increasing patients’ knowledge of their medications to better achieve their or their prescribers’ goals of therapy; and (4) improving communication among prescribers, pharmacists, caregivers and patients.”


The Enhanced MTM model will consist of a five-year performance period beginning on January 1, 2017. CMS plans to test the model in five regions: Region 7 (Virginia), Region 11 (Florida), Region 21 (Louisiana), Region 25 (Iowa, Minnesota, Montana, Nebraska, North Dakota, South Dakota, Wyoming), and Region 28 (Arizona). Eligible PDPs in each of those regions can apply to vary the intensity and types of MTM interventions they offer. CMS will waive certain MTM program requirements for participating plans during the model’s performance period. Participating plans will be expected to work closely with their network pharmacy providers and local prescribers to identify enrollees with “medication usage that has caused, or is likely to cause, adverse outcomes and/or significant non-drug program costs.” Plans will be expected to offer targeted assistance to those beneficiaries in order to optimize medication use.

To merge or not to merge, that was the question before a Senate subcommittee

The heads of two of the nation’s largest health insurance companies, Aetna and Anthem, provided testimony and fielded questions regarding their acquisition of other coverage providers, Humana and Cigna, respectively, and the effects that the acquisitions may have on the health insurance industry during a hearing before the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights. Other parties, including physicians, consumer representatives, and health competition policy experts, testified at the hearing arguing for or against the proposed acquisitions.

Proposed mergers

Earlier this year, Aetna announced its intention to purchase Humana for $37 billion. A few weeks later, Anthem also made an announcement regarding its proposal to acquire Cigna for $54 billion. Senator Mike Lee (R-Utah), Chairman of the Subcommittee on Antitrust, Competition Policy and Consumer Rights, noted in his opening comments that the proposed mergers involve four of the five largest health insurance providers in the country and that the relevant “antitrust inquiry” in review of these mergers is “whether the combination will lead to a market concentration that may substantially lessen competition.” Both deals are currently being reviewed by the Department of Justice (DOJ), according to Sen. Lee. If approved, he notes, the “big five” in the health insurance industry will be reduced to the “big three.”

Senator Lee also mentioned the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) is his opening remarks arguing that a discussion of the ACA’s role in current industry consolidation is “unavoidable.”

Medicare Advantage dimension

Since the companies that are parties to these proposed mergers comprise 52 percent of the market share for Medicare Advantage (MA), or Medicare Part C, plans, there will be a potential impact on the MA program and its beneficiaries if the acquisitions occur. The Kaiser Family Foundation previously found that the result of an Aetna and Humana merger would be one company that will provide coverage to 26 percent of all MA enrollees (see Many Medicare Advantage enrollees may see shifts in coverage providers, Health Law Daily, July 15, 2015).


Mark T. Bertolini, Chairman and CEO of Aetna, and Joseph Swedish, President and CEO of Anthem, both testified in support of the proposed mergers and ensured members of Congress that competition in the health insurance market would remain strong after the acquisitions were complete. Bertolini focused many of his comments and much of his written testimony on the MA program and confirmed that because “Medicare is tightly regulated to protect consumers,” competition in this realm would also remain. Bertolini noted that MA beneficiaries would still have “numerous choices” for plans, that competition in the Medicare program is vigorous, and that beneficiaries would still have tools at their disposal—such as the CMS star ratings—to compare plans.

Opponents and skeptics

Leemore S. Dafny, Ph.D. and Professor of Strategy and Director of the Health Enterprise Management at Northwestern University’s Kellogg School of Management, urged Congress to look at the assertions made by the proponents of the mergers through a retrospective lens. She explained, “economic research demonstrates that insurance industry consolidation in the past has not tended to improve the lot of consumers,” and that any assertions that the proposed acquisitions will not follow those trends because of the implementation of the ACA may be misleading. “I see no reason the evidence from the past should be discounted when evaluating current and future consolidation,” Dr. Dafny said.

During his testimony, Richard Pollack, President and CEO, of the American Hospital Association, argued that the acquisitions “could be a blow to millions of health care consumers, as well as the hospitals, doctors, and others who are working to improve quality and efficiency while making care more affordable to patients. The unprecedented level of consolidation these deals threaten could make health insurance more expensive and less accessible for consumers.” The AHA also recently sent a letter to the DOJ asking its Antitrust Division to closely scrutinize the proposed merger of these industry leaders (see AHA urges close review of Anthem-Cigna, Humana-Aetna deals, Health Law Daily, August 7, 2015).