Webinar gives tips on navigating physician peer review process

Hospitals and compliance officers should know the reporting requirements of the Health Care Quality Improvement Act (HCQIA) (42 U.S.C §11101 et seq.) and be “very strict” in complying with the four standards to obtain immunity from damages. In a Health Care Compliance Association webinar entitled, Physician Peer Review: 10 Steps to Navigating the Process, Theresamarie Mantese and Fatima M. Bolyea, health care attorneys at Mantese Honigman, PC, gave practical tips on dealing with the process of physician peer review.

Federal and state reporting requirements

HCQIA (42 U.S.C. §11133) requires health care entities to report the following “reportable events” to the applicable state board of medical examiners: (1) a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days; (2) the surrender of clinical privileges while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or in return for not conducting such an investigation or proceeding; or (3) in the case of a professional society, a professional review action by the professional society that adversely affects the membership of a physician in the society.

Mantese noted that it is important to know both federal and state requirements, since state requirements can be more stringent. For example, in Michigan reporting requirements are triggered when a disciplinary action affects a health professional’s privileges for more than 15 days.

Compliance officers must also clearly define “investigation” so that they know when reporting requirements are triggered. While the NPDB Guidebook defines “investigation” broadly, a general review of physicians for overall performance in relation to each other is not an investigation.

Immunity from damages

HCQIA (42 U.S.C. §11112(a)) provides that hospitals and other participants are immune from damages if the professional review action was taken: (1) in the reasonable belief that the action was in the furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures; and (4) in the reasonable belief that the action was warranted by the facts. Compliance officers should, said Mantese, be “very strict” is attempting to comply with these standards. She said the third prong is where the most litigation happens and one of physicians’ strongest arguments in challenging a professional review action.

HCQIA immunity applies to money damages only, not to equitable relief such as reinstatement or the striking of a report. Mantese said, however, that if immunity applies, a request for equitable relief usually fails, too.

Notices

Under 42 U.S.C. §11112(b), the hospital is required to give the physician notice of a proposed action. If the notice is deficient, the physician should challenge it. Mantese encouraged compliance officers to have a template of a notice to ensure that the fundamental features are included. She emphasized that each notice should be compliant, even if the same information is repeated across notices; several notices cannot be taken together to create completeness.

Hospital policies

The presenters emphasized the importance of adequate hospital policies and bylaws, including the appeal rights of physicians after a peer review hearing. For example, the bylaws are critical in determining what records the physician can obtain from the hospital. A fair hearing plan is also a good idea in case the physician claims that the hospital arbitrarily denied a request for documents. According to Mantese, hospitals should consider providing the physician with as much information as possible—the more information the physician has about an issue, the less likely he or she is to bring litigation, and the case is more likely to be dismissed if litigation does ensue.

Peer review hearing

If the physician requests a hearing on a timely basis, then a hearing must be held (as determined by the health care entity) before: (1) an arbitrator mutually acceptable to the physician and health care entity; (2) a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician; or (3) a panel of individuals who are appointed by the entity are not in direct competition with the physician involved. A panel usually consists of other physicians on staff at the hospital.

During the hearing, the physician has the following rights: (1) representation by an attorney; (2) a record of the proceedings; (3) the ability to call, examine, and cross-examine witnesses; (4) to present relevant evidence regardless of its admissibility in a court of law; and (5) the ability to submit a written statement at the close of the hearing.

A question that usually emerges is whether the panel members are in direct economic competition with the physician. If the physician raises this issue and the hospital has a number of people to serve on the panel, it should simply replace that person.

The presenters strongly recommended having a court reporter at the hearing. Because a common point of contention is which party will cover the costs, they recommended splitting the cost between the provider and the physician. Mantese also emphasized that hearing “exhibits are very, very important.” One person should maintain control of the exhibits during the hearing, and no one should leave until all are marked and accounted for.

Post-hearing

After the hearing the parties should submit a brief written statement with proposed findings of fact. Pursuant to HCQIA, upon completion of the hearing, the physician involved has the right to receive (1) the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations; and (2) a written decision of the health care entity, including a statement of the basis for the decision.

Results from patient-centered medical homes study ‘significant’

Little evidence exists supporting the case for patient-centered medical homes (PCMHs), leaving decision-makers’ opinions on their use mixed. A recent study, the paper for which appeared in the March issue of Health Affairs, looked at the findings from 11 major PCMH evaluations in eight states to provide estimates of PCMH impact on utilization, cost and quality. The results were “significant.”

What is a PCMH?

Also referred to as a primary care medical home, advanced primary care, or a healthcare home, the patient-centered medical home model aims to reduce spending and improve quality while emphasizing coordinated, patient-centered care. HHS’ Agency for Healthcare Research and Quality (AHRQ) provides five functions or attributes of a PCMH:

1. Comprehensive care: The PCMH must meet the needs of the large majority of a patient’s physical and mental health needs, i.e., prevention and wellness, acute care, and chronic care.
2. Patient-centered: Health care must be relationship-based with an orientation toward treating the whole person, supporting patients and their families managing and organizing their own care.
3. Coordinated care: Care must be coordinated across the broader health care system, encompassing specialty care, hospitals, home health care, and community services and supports, particularly important during transitions between sites of care.
4. Accessible services: A medical home must deliver shorter wait times for urgent needs, better in-person hours, around-the-clock access (telephone or electronic) access to a care team member, and alternative methods of communication.
5. Quality and safety: Medical homes must show a commitment to quality and quality improvement, use evidence-based medical and clinical decision-support tools to share decision-making with patients and families, engage in performance measurement and improvement, measuring and responding to patient experiences and satisfaction, and practice population health management.

The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) (P.L. 114-2) calls for “increased quality, efficiency, and clinical practice metrics that existing models such as the PCMH support,” according to letter to then-Acting Administrator of CMS, Andy Slavitt, when the American Academy of Family Physicians and other organizations requested that CMS affirm PCMHs as an eligible alternative payment model (APM). The study authors point to PCMHs being one of the APMs under MACRA, and specifically that MACRA’s Comprehensive Primary Care Initiative (CPCI) “will become a core feature of the Medicare payment system.”

Findings of the study

The study found that PCMH evaluations varied significantly across the 11 major evaluations studies. PCMH resulted in reduced spending (4.2 percent reduction) and improvements in breast cancer screening rates for high-needs patients (1.4 percent increase), lower use of specialist visits (1.5 percent reduction), and increased cervical screening for all patients (1.2 percent increase). The results of this study, combined with mixed results from earlier studies, the study authors note, show that how a PCMH is implemented is critical to achieving the desired impact on primary care. “PCMH initiatives are not ‘one size fits all.’”

The study authors note that while there are a wide variety of approaches to PCMH implementation today, under the CPCI, practices operating a PCMH will share a single payment models and other standard features, so there will be fewer differences. The study authors noted that “identification of the components of PCMHs likely to improve outcomes is critical to decisions about investing resources in primary care.”

Value-based purchasing may not be encouraging much improvement

To improve the Value-Based Purchasing (VBP) program CMS should address four concerns, according to a report by David Muhlestein, Ph.D., J.D., of Leavitt Partners. CMS should (1) empirically evaluate whether penalties are large enough to lead providers to make changes across the four domains; (2) structure quality measures so that only meaningful differences in performance lead to meaningful differences in payments; (3) decrease the measurement volatility by increasing the number of cases for each of the metrics and creating an alternative VBP program for low-case volume hospitals; and (4) consider urging Congress to reconsider combining the VBP program with the readmission and hospital-acquired conditions (HAC) reduction to better align measures across programs, the report recommended.

Background

The VBP program was implemented by CMS in 2013 under Section 3001 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-14) as one of three value-based programs for hospitals. The VBP program is different from its counterparts in that it is structured to be revenue neutral, allowing some hospitals to receive bonus payments while others receive penalties for inpatient payments. It also evaluates performance across four weighted domains: clinical process of care (10 percent), patient experience of care (25 percent), clinical outcomes (40 percent), and efficiency (25 percent).

Estimated impact on financial performance

For hospitals involved in the VBP program, an average of 35.4 of discharges are paid for by Medicare, and 46.1 percent of revenue comes from inpatient care. Because the VBP modifier only affects Medicare inpatient care, the modifier can only affect about one-sixth of hospital revenue. The report estimates that, for FY 2016, the VBP modifier will affect a hospital’s income with a maximum 0.35 percent decrease in total revenue or a maximum 0.8 percent increase in total revenue. However, the report estimates that only 4.9 percent of hospitals will see a penalty or bonus payment that exceeds 0.25 percent of net revenue. Of those hospitals, only 8.3 percent will be penalized.

Performance over time

Hospitals may improve their performance each year. The report shows that, between 2015 and 2016, 45 percent of hospitals received bonuses in both 2015 and 2016, while 30 percent were penalized both years. About 25 percent of hospitals made a change between the two categories, with 11 percent moving from bonus to penalty and 14 percent moving from penalty to bonus. The report also classified hospitals into quintiles based on their 2015 and 2016 performance and found a surprising amount of movement between the quintiles, with 40 percent moving up or down one quintile, 13 percent moving two quintiles, 4 percent moving three quintiles, and 1 percent moving four quintiles.

Policy implications

While the VBP program is intended to give incentives for hospitals to improve their quality of care, the relatively small financial incentives may not be sufficient enough to justify the high investment required to implement significant changes for many hospitals, especially considering that the potential for return is unknown. More work needs to be done, the report stated, to determine whether hospitals that had higher penalties improved more than those with smaller penalties or bonuses. To encourage improvement, the report suggested moving toward measures that have clear pathways for improvement, with such measures weighted higher than those with a more nebulous pathway toward improvement. To allow hospitals clearer performance benchmarks, the report also suggested limiting measures used in the program to those where there is a meaningful distribution of performance, limiting the number of potential scores in each category to those that are substantially different.

Volatility

High levels of volatility in VBP program results may indicate that the program is not adequately measuring true underlying quality and that program measures may be susceptible to random variation, as opposed to a hospital actually alternating between worsening and improving every year. Because smaller facilities tended to be more volatile, the report suggested creating an alternative program for those smaller hospitals to allow better monitoring of changes in quality.

Overlap with other Medicare initiatives

Measures within the VBP program, the Hospital Readmissions Reduction Program (HRRP) and the Hospital Acquired Conditions (HAC) reduction program are not fully coordinated, the report noted. Rather than administering separate programs, the report suggested urging Congress to combine the programs into one to better align all quality and performance measures across programs, allowing hospitals to be better-positioned to prioritize their efforts.