Contributor’s Corner: Even the Cat Has Lost Health Insurance!

Continuing Concerns for Both 2- and 4- Legged Creatures

Ok. Now that I have your attention, STOP LAUGHING! It’s not funny–but, true. Poor Milo is now uninsured. Several months ago, we received a notice that the health insurance pet policy that had been in effect for years was looking for a new underwriter, and the affordable policy would terminate on 10/31/16. Finally, a new policy was made available, at rates, which you guessed it, would be considerably higher with larger deductibles and less coverage. Not surprising, but true. The message: two- and four-legged creatures beware.

The decision to let that policy lapse wasn’t easily made; but economically, it didn’t make sense to purchase a policy that had a very low cost/benefit payoff. Of course, Milo wasn’t faced with paying a penalty on his taxes (LOL; we can’t even claim him as a dependent) for remaining uninsured, as you or I might possibly be subjected to, if we made the same decision. It was much more like passing on dental insurance. Unless you have it as a fringe benefit, the narrow networks, and limited benefit schedules makes the value proposition easy enough to pass on. In effect, being self-insured, while not desirable, is a viable option. However, for medical insurance, it’s a very different story.

Elections matter, and with some form of “repeal and/or replace” looming in the next Congress, millions of individuals will likely find themselves in Milo’s situation, except with more uncertainty and risks, as availability, benefits and costs are unpredictable at this point in time. For those that think it’s going to be as simple as ABC! Think again. The new Congress and Administration are soon going to realize that the denouement (I liked that word in high school when learning how the plot unraveled in a novel) will be complex and fraught with obstacles.

O, what tangled web we weave when first we practice to deceive![1]

Right now, there is much speculation about the outcomes, and it is far too soon to really know. Call me skeptical, but after the pundits and polls missed the outcome of the election, I’m not too sure that conventional wisdom still applies. For all we know, Obamacare may become Trumpcare. After all, we learned that packaging and showmanship works. It reminds me of local government after an election, all of the town signage is changed so that the same park or arena now has the new town leader’s name emblazoned on the sign, lest we forget it’s still the same park. Nothing has really changed, just the name. The decision-makers should remember: Will the “quality go in before the name goes on?”[2]

Perhaps that’s wishful thinking, but just imagine like the game, “Cat’s Cradle,” when you try to take the string off your partner’s hand for the fourth or fifth time by correctly and deftly interlocking your fingers about the string to transfer it from your partner’s hand to yours while making sure the integrity of the cradle is preserved. From “cradle to grave,” there is plenty to be concerned about.

For the Young at Heart

The “invincibles” may find themselves unburdened by the penalties that may be lifted for not having health insurance. But the gamble still exists: what will you do if accident or illness befalls you in spite of your youth? Will insurance companies be able to make policies available at competitive or affordable prices without the youthful demographic helping to even out the risk pool? For those without company provided healthcare, will the likely elimination or reduction of government subsidies force newly insured individuals to abandon their insurance after finally obtaining it. Maybe there’s hope, based on some reporting, for those 26 and younger still being carried on their parent’s policy

For Those in the Middle

But wait a minute-what if the parent had an exchange policy with a 26 or under child on the policy, and now the exchange is defunct, or no longer is supported, the entire family will be in need of insurance. The same will be true if exclusions or high risk premium pools are established for those with pre-existing conditions. And if lifetime benefit limits are reintroduced, given what we know today about the wonderful (but expensive) life-saving treatments and medications, it will give new meaning to the “sticker shock” millions will face as “open enrollment” periods will become a serious exercise to be called: “In search of….”

Crossing State Lines and Population Health

We generally associate the “state lines” argument with the anticipated competitive structure of premiums if insurance companies can sell their policies without geographic restrictions. It may also call into question in which state you live, and if there was adoption of the Medicaid expansion allowing many millions of individuals, previously above qualifying income levels, becoming eligible, and whether that too will change.

With all the emphasis on population health and treating patient outcomes, does the nation run the risk of losing ground it has just started to gain? I’ve never been a fan of the term “accountable care organizations.” When seeing the blue H, or MD after the name, there is the presumed quality and accountability associated with it. If what we now have today is better than what we had before, then the new Congress and the Administration will need to be “accountable” for whatever evolves as a result of its actions and/or inactions.

Don’t Mess with My Medicare

For those of us above a certain age, Medicare (whether “Regular” or “Advantage”) comes with a special “seal of approval” and certain safeguards. There may not be an appetite to change Medicare for those already on it, but it may not be necessarily true that it will be preserved “as we know it” for those approaching age 65 over a 5-10 year horizon. In today’s political landscape, it’s not clear that the “graying advocacy” of seniors will be strong enough to maintain this safeguard for all.


I wonder how many of us hope that when we wake-up we find this was all a dream.

One day, Gregor Samsa, a travelling salesman, wakes up to find himself transformed into a giant insect. Confused, he looks around his room which appeared normal. He decides to fall asleep again and forget what happened in the hope that everything will revert back to normal. He tries to roll over his right but discovers that he cannot due his new body he is stuck on his hard, convex back.[3]

Unfortunately, we are in a new reality. And it’s too early to forecast what will happen next. Change for the better will be good, and the current system can be improved. Change for “change’s” sake won’t do much except waste a lot of time and money, and cause needless anxiety. Milo’s just hoping that there’s water and food daily, and that his litter box is changed regularly, and that his visits to the vet are uneventful. For everybody else, pay your monthly premium, stay healthy and stay tuned.

Allan P. DeKaye, MBA, FHFMA, is President and CEO, DEKAYE Consulting, Inc., a revenue cycle healthcare firm. He is also a member of the Health Law Editorial Advisory Board for Wolters Kluwer Legal & Regulatory U.S. Mr. DeKaye is author/editor of The Patient Accounts Management Handbook. He is working on a second book, My Medical Bills Are Killing Me © What Americans Need to Know About Health Insurance.

[1] “Marmion,” by Walter Scott, 1808.

[2] Original slogan of Zenith Electronics

[3] Franz Kafka, Die Verwandlung (or The Transformation or Metamorphosis), 1915.


Copyright © 2016-2017 Allan P. DeKaye. All Rights Reserved. Reprinted with permission of the author.

High Anxiety: A Prescription for Compliance Officer Burnout from the Psychoneurotic Institute for the Very, Very Nervous

The Wolters Kluwer Legal and Regulatory Solutions U.S. Law & Health Blog periodically features posts from outside contributors who are members of our Advisory Board. Today’s post comes from Jeffery B. Miller, Esq.

High anxiety is nothing new. In the aptly named 1978 Mel Brooks classic, Dr. Richard H. Thorndyke, a renowned Harvard psychiatrist, takes over as the newest director of the PsychoNeurotic Institute for the Very, Very Nervous. Finding himself immersed in the company of some very strange colleagues, and some difficult and unsettling situations, Dr. Thorndyke struggles forward in his mission, eventually finding himself faced with saving the Institute, his reputation, and his own sanity. Sound familiar?

According a 2012 Health Care Compliance Association (HCCA) survey, 58 percent of compliance officers wake up in the middle of the night in states of high anxiety from job-related stress. Not surprisingly, the survey also indicated that 60 percent of compliance officers were considering resigning from their positions. In 2015, three years later, there is little indication that the environment for compliance officers has significantly improved. If anything, many compliance officers remain in state of high anxiety. While a 2014 PricewaterhouseCoopers (PwC) survey indicated that budgets and staffing for compliance functions have improved, compliance officers continue to consistently report high levels of stress. News reports show compliance officers taking extended leaves of absence to address stress-related issues, or quitting their positions altogether. The challenge for global compliance officers, with their extended breadth of responsibilities, is compounded. The Department of Justice’s (DOJ’s) recent movement towards individual accountability for legal violations, including for compliance officers, has exacerbated some situations.

There are many sources of stress that can result in high anxiety for compliance officers–keeping current on the plethora of laws, regulations and other legal requirements, challenging relationships with their business colleagues, insufficient authority in their organizations, and insufficient resources only to name a few. Ask almost any compliance officer and you will get a list of challenges and stress points. These sources of stress can not only hinder officers’ professional effectiveness and the success of their functions, but can weigh heavily on their personal lives, and even their health.

While there are no “magic pills” to help compliance officers address these challenges, there is a prescription for their problems–a prescription that can improve their programs, their companies, their relationships and their lives. This prescription is found, in part, in the fundamentals of how companies and their compliance officers view the role of the compliance function in their organizations. Experience shows that establishing and maintaining the right paradigm for compliance functions is essential to ensuring that compliance functions fully and appropriately integrate into their companies, and that responsibility and accountability follows. When authority, responsibility and accountability are aligned, and are supported by knowledge and expertise, organizations thrive. Combined with appropriate doses of objectivity, monitoring and reporting, and compliance functions thrive as well.

What are the root causes of compliance failures, and how did they become established in the organization? Who has the experience and expertise to best design and deliver day-to-day tasks help the company past these root causes, better ensuring business with integrity? When day-to-day tasks fail to prevent non-compliance, who should address them, and how should they be addressed? How can compliance functions use their expertise to support their organizations, and when should they use it? What are the incentives to support doing things correctly, are they aligned with company objectives, and are they effective?  This blog is the first in a series discussing a new paradigm for compliance programs; a paradigm that can help compliance officer achieve more effective and efficient compliance programs while improving their business relationships and getting more sleep. Look to early December for the next message!

Jeffrey B. Miller is an experienced attorney and compliance professional who has advised boards and led compliance functions in large and small companies across the health care spectrum and around the world. A recipient of the Yale School of Management, Millstein Center for Corporate Governance and Performance’s Rising Star of Corporate Governance Award, Jeff is an advisor, author and speaker on designing and operationalizing effective, efficient compliance programs, processes and procedures. Interested in getting help or learning more? Please contact Jeff at or through LinkedIn.

Contributor’s Corner: It’s All About the Money!

“An educated consumer is our best customer.”  That was the commercial tag line used by famed clothing retailer, Sy Syms.  However, for healthcare customers (aka: patients), knowledgeable consumers will find these two real-life scenarios over-the-top.

In Scenario #1, the patient has an approved PET/CT scan scheduled.  The day before the procedure, the patient receives a call from their insurance carrier advising them that they may want to consider having the procedure done at a different provider facility than the one where the test is to be performed.  The reason for changing facilities is summed up as follows:  “Did you know that the other facility is less expensive?”  That might have been okay as a public service announcement, but when the insurance company representative continued to press the patient to make the change, even offering to help have it rescheduled, the line between reason (okay maybe I should consider less expensive) and rights (don’t I have a right to choose my provider—especially since it was an in-network provider) seems to have been crossed.

This representative while arguing the virtue (and I mean arguing) of less costly really meant the insurance company would pay less to the second provider.  However, when asked about the out-of-pocket expense difference to the patient by choosing the alternate provider—the representative exclaimed they didn’t know.  In fact, the out-of-pocket expense would have been the same for either provider (in this particular case).  And if an out-of-network provider was chosen, it would have been in fact a larger patient expense; although one provided for as part of the coverage selection afforded by the choice of the plan.  What was missing from the representative’s telephone script was the fact that by choosing the original provider, the patient had selected the same provider where previous tests were already on file, and readily available to the ordering physician (who also was affiliated with the initial facility).  Perhaps not having that information was a HIPAA protection; but the entire episode lacked any concern for continuity of care, patient choice, or care management.

In Scenario #2, the patient was scheduled to have a second knee replacement procedure.  While listening to a commercial (Sy Syms would have been proud), the patient learns that the company was now advertising its new “30-year knee.”  The patient asks the orthopedist if the “30-year knee is being used,” and learns that a “15-20 year knee” was instead being used.   When asked about getting the “30-year knee,” the patient learns that the hospital refused to approve the more costly 30-year knee.  Which raises these questions: “So who’s getting the 30-year knee?  Was the decision based on the patient being too old—although not too old to be gladly admitted for surgery?  The patient is outraged, postpones the surgery, and writes a letter to the hospital’s Board chairman.  Even at age 65 (and still working and covered by a company insurance plan), why should the patient settle for a knee that might have to again be replaced at age 85, when the likelihood that they could well live beyond that and not have needed one until age 95 (perhaps less likely—but certainly sets the stage for a 85-95 year possibility)?

These two cases have a lot in common, and makes you wonder how many different assaults on an individual’s choice there will be.  I’m okay with an insurance carrier letting its patients know there are less expensive alternatives.  What the representative didn’t tell the patient is that their payment to the providers for the PET/CT scans noted above actually differed by only about $50.00, and of course was not even aware that the patient’s out-of-pocket cost was unaffected by the choice in provider (although if there was a coinsurance provision—the approved payment level would have mattered).  So who actually would have saved money in this case?  The answer:  the insurance carrier.

With regard to the knee, the patient really needed to know what type of knee the doctor was going to use in the first place (try thinking about putting a less expensive tire on your car).  It’s too bad the patient needed to learn of the difference from a commercial, but it’s been said that Gen X, Gen Y, etc., often get their news through social media.  In this case, it helped a senior know beforehand that another option was available.  The bottom line—is the bottom line.  And in both cases, it wasn’t so much the cost—but the profit margin associated with the procedure.  It gives new meaning to: Caveat emptor—let the buyer beware!

Allan DeKaye is the author/editor of The Patient Accounts Management Handbook (Aspen, 1997), and is presently developing a new book entitled: My Medical Bills are Killing Me©.  He is also a member of the WKLB Healthcare Editorial Advisory Board.

Contributor’s Corner: A Look At the OIG Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs

On May 8, 2013, a Special Advisory Bulletin (the “2013 Bulletin”) was issued by the Office of the Inspector general of Health and Human Services to provide guidance to the health care industry on the scope and frequency of screening employees and contractors to determine whether they are excluded persons. (Editor’s Note: We’ve reported on the Special Advisory by another contributor here).

The 2013 Bulletin answers many questions which were left unclear from the Special Advisory Bulletin issued by the OIG in September 1999 (the “1999 Bulletin”) which first described the effect of exclusion from participation in Federal health care programs and provided guidance to excluded persons as to the scope and effect of their exclusions and the activities that might result in a violation of their exclusions.

The 2013 Bulletin provides several clarifications based on questions that arose from the 1999 Bulletin. First, the 2013 Bulletin makes it clear that the prohibition on payment for items or services furnished by an excluded individual also includes items and services beyond direct patient care, including work with a hospital, nursing home, home health agency, or managed care entity. The prohibition would extend to such non-patient care activities as preparation of surgical trays or review of treatment plans, regardless of whether such services are separately billable or are included in a bundled payment.

According to the 2013 Bulletin, excluded persons are also prohibited from furnishing administrative and management services that are payable by the Federal health care programs even if the administrative and management services are not separately billable. Examples provided in the 2013 Bulletin include leadership roles such as chief executive officer, chief financial officer, general counsel, director of health information management, director of human resources, physician practice office manager, if the services are rendered at a provider that furnishes items or services payable by Federal health care programs. Additionally, other administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, unless wholly unrelated to Federal health care programs, would also fall under this prohibition.

The OIG goes even further in the 2013 Bulletin by clarifying that items and services furnished at the medical direction, or on the prescription of, an excluded person are also not payable when the person furnishing the items or services either knows or should know of the exclusion. This will particularly impact providers that furnish items and services on the basis of orders or prescriptions, such as laboratories, imaging centers, durable medical equipment suppliers, and pharmacies since. To avoid liability, providers are required to ensure, at the point of service, that the ordering or prescribing physician is not excluded.

The 2013 bulletin also serves as a reminder of the harsh repercussions for violation of the exclusion by an excluded person, including civil monetary penalties (“CMPs”) of $10,000 for each claimed item or service furnished during the period that the person was excluded, as well as an assessment of up to three times the amount claimed for each item or service. In addition, violation of any exclusion is grounds for OIG to deny reinstatement to Federal health care programs and can lead to criminal prosecutions or civil actions depending on the circumstances.

Providers that employ or enter into contracts with excluded persons to provide items or services payable by Federal health care programs can also be subject to CMPs of up to $10,000 for each item or service furnished by the excluded person for which Federal program payment is sought, as well as an assessment of up to three times the amount claimed, and program exclusion.

In order to assure that a provider is not hiring an excluded person, the OIG recommends that providers use the OIG-maintained List of Excluded Individuals/Entities database (“LEIE”), which is available on OIG’s web site here.  A provider may be able to reduce or eliminate its CMP liability if able to demonstrate that it reasonably relied on a check of the LEIE. Although there is no specific time frame required, the OIG recommends monthly checks of LEIE. As to which employees or contractors must be reviewed through the LEIE system, the OIG makes it clear that the risk of potential CMP liability is greatest for those persons that provide items or services integral to the provision of patient care because it is more likely that such items or services are payable by the Federal health care programs. For example, OIG recommends that providers screen nurses provided by staffing agencies, physician groups that contract with hospitals to provide emergency room coverage, and billing or coding contractors. Regardless of whether and by whom screening is performed, the provider is subject to overpayment liability for any items or services furnished by any excluded person for which the provider received Federal health care program reimbursement and may be subject to CMP liability if the provider does not ensure that an appropriate exclusion screening was performed.

Finally, the OIG’s 2013 Bulletin makes it clear that if no Federal health care programs pay, directly or indirectly, for the items or services being provided by an excluded individual, then a provider that participates in Federal health care programs can employ or contract with excluded individuals to provide such items or services. Additionally, a provider that employs or contracts with an excluded person to furnish items or services solely to non-Federal health care program beneficiaries would not be subject to CMP liability, as long as: (a) no claims are submitted to or payment is received from Federal health care programs for items or services that the excluded person provides; and (b) all such items or services relate solely to non-Federal health care program patients.

If providers do identify potential CMP liability on the basis of the employment of, contracting with, or arranging with an excluded person, the OIG’s Provider Self-Disclosure Protocol (SDP) is available to disclose and resolve the potential CMP liability.

Ericka L. Adler is a partner at the firm of Kamensky Rubinstein Hochman & Delott, LLP. Her primary practice focus is in the areas of regulatory and transactional health care law and she has substantial experience structuring sophisticated health care ventures and advising clients regarding compliance with federal and state health care laws and regulations. Ms. Adler lectures to and advises physicians, providers and other health care specialists nationally regarding regulatory health care issues, day to day practice management, physician contract matters and other business issues that impact healthcare. Ms. Adler has a J.D. and an LL.M in health care law from the Health Law Institute at the DePaul University College of Law. You can reach her at and can follow her on Twitter at @krhdhealthlaw.