THE AFFORDABLE CARE ACT SURVIVED, BUT WILL PHYSICIANS?

By: Michael J. Schoppmann, Esq.

The U.S. Supreme Court, in reviewing appeals as to the constitutionality of the Affordable Care Act (ACA), with a 5 to 4 Decision and Chief Justice Roberts breaking with dissenters, has left the ACA intact, for now.  The foundational requirement that most citizens buy health insurance or pay a fine was held to be a tax permitted by the Constitution, and not decided under the Commerce Clause.  As all provisions hinging upon the mandate remain intact, the focus should now shift to – what will the ACA mean to physicians? 
 
Some key surviving insurance provisions:
  • Insurers cannot deny coverage based on pre-existing condition,  
  • Annual or lifetime coverage limits are barred,  
  • Dependent coverage is now mandated to age 26, 
  • Preventive services must be provided without cost-sharing.  

In addition, the ACA provides that insurers must also now meet medical loss ratio limits, maintain quality reporting requirements, coordinate with health insurance exchanges, meet employee enrollment/coverage requirements, include prescription drug benefit expansion, provide funds for recruitment/training/retaining of healthcare work force, and empower Accountable Care Organizations and the Medicare Shared Savings Plan. 

However, the ACA’s Medicaid expansion provision was limited by the Supreme Court. Originally, the ACA would have forced states to expand Medicaid or face the loss of all of their Medicaid federal dollars.  The ACA is now limited to acting on the potential loss of funds only for the newly eligible poor.  

So, what does the ruling mean for physicians? While expanded insurance coverage should equate to additional patients, the “reimbursement” system remains profoundly broken.  The ACA did not fix the reimbursement formula and the “hidden” provisions affecting physicians will continue, unless and until Congress acts to repeal.

Some of the ACA’s provisions that the public and the average practicing physician doesn’t hear about:  

  • Failure to comply could result in severe sanctions,
  • Increased funding for health care fraud and abuse enforcement, 
  • Expansion of civil monetary penalties,  
  • Claims for services from an Anti-Kickback Statute violation now equate to false claims, 
  • Lower triggers for application of federal False Claims Act,  
  • Modified “knowing and willful” requirement under Anti-Kickback Statute,  
  • No need to prove actual knowledge of Anti-Kickback Statue, nor specific intent,
  • CMS can suspend provider pending investigation of “credible allegation of fraud”,
  • Increased scrutiny of Medicare enrollment applications,
  • CMS can exclude for knowing false statement or omission on the application,
  • Overpayments must be refunded within 60 days or face False Claims Act liability.  
 
The hard reality of the ACA ruling is that the regulatory burden on physicians will continue to accelerate, building an exponential growth curve of unprecedented scrutiny.  To survive, physicians must actively and aggressively embrace a new concept – Prospective Compliance.  It is no longer advisable, acceptable or survivable to focus exclusively on patient care.  Physicians and medical practices must become multi-dimensional – caring for patients while also remaining compliant with law, regulation and contract. 

Post ACA, Prospective Compliance means that physicians and practices must permit (if not dedicate) staff time and focus on issues beginning with proper credentialing, progressing through periodic snapshot audits and risk self-assessments, building toward a compliant medical practice. However, what the ACA foretells is that every physician, every practice must become Prospectively Compliant now, not after an investigation or action commences. Under the ACA, the risks and requirements lie not only with issues of fraud or abuse. The ability of any physician and/or practice to be compensated, compensated on a timely basis and rewarded under a “pay for performance” system will be dictated by the level of compliance held by the physician and the medical practice. While mandatory compliance plans presently exist only in the arena of Medicaid, they are certain to become an integral part of health care ”reform”.

In conclusion, to survive the aftermath of the ACA ruling, physicians must view it as an awakening. While an awakening of the giant known also as government oversight, it must also be an awakening to every physician that the need for Prospective Compliance is no longer a political question, a legal dispute or an option.    


Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals, www.DrLaw.com, is solely devoted to the representation and defense of physicians and other health care professionals. The author of this article may be contacted at 1‐800‐445‐0954 or via email at info@drlaw.com.