- Am I required by the Patient Protection and Affordable Care Act (ACA) to have a compliance plan for my office?
- Yes. Section 6401(a) and (b) of the Patient Protection and Accountable Care Act (ACA) requires, as a condition of participation in Medicare and/or Medicaid, that all providers have a compliance program in place. The compliance programs must include "core elements" that are to be determined by the Office of Inspector General and the Secretary of HHS. Physicians must watch for rules that will define the core elements that must be in an effective compliance plan. In the meantime, review the model physician compliance guidance issued by the OIG as well as compliance plan information available on the OSMA Web site under Legal Standards and Guidelines. In general physician office compliance plans should include training on general compliance, proper coding and include regular internal audits to catch and correct coding errors.
July 27, 2010
- Does the ACA mandate that employers report the value of an employee’s health benefits on their W-2 form?
- Yes. This is what is posted on the IRS web site as of July 2012:
The Affordable Care Act requires employers to report the cost of coverage under an employer-sponsored group health plan on an employee's Form W-2, Wage and Tax Statement, in Box 12, using Code DD. Many employers are eligible for transition relief for tax-year 2012 and beyond, until the IRS issues final guidance for this reporting requirement.
The amount reported does not affect tax liability, as the value of the employer excludible contribution to health coverage continues to be excludible from an employee's income, and it is not taxable.
This reporting is for informational purposes only, to show employees the value of their health care benefits so they can be more informed consumers.
More information about the reporting can be found on Form W-2 Reporting of Employer-Sponsored Health Coverage.
- How does the ACA modifies Medicare's voluntary reporting program known as the Physician Quality Reporting Initiative (PQRI)?
- The ACA modifies Medicare's voluntary reporting program known as the Physician Quality Reporting System (PQRS). This program currently offers bonuses to physicians who report on designated quality measures.
The PQRS program is currently voluntary and pays a 1 percent bonus in 2011 and a 0.5 percent bonus in years 2012 through 2014. Participation in PQRS will continue to be voluntary in these years.
Following the practice now in place for hospitals, beginning in 2015, physician payments will be reduced if they do not successfully participate in the PQRS program. In 2015, the penalty will be 1.5 percent; in subsequent years, it will be 2 percent.
- How will changes to over-the-counter (OTC) drug coverage required under health care reform affect physicians and patients?
- In January 2011, as a result of the Patient Protection and Affordable Care Act and the IRS' clarification in IRS 2010-59, a prescription will be required for OTC medicines and drugs (other than insulin) in order to qualify as "medical care" for the purposes of employer sponsored health plans (including Health FSAs and HRAs) and Health Savings Accounts. The new rule is very clear: "...reimbursement for expenses incurred for a medicine or drug shall be treated as a reimbursement for medical expenses only if such medicine or drug is a prescribed drug (determined without regard to whether such drug is available without a prescription) or is insulin." This means items such as cough medicines, pain relievers, acid controllers, and diaper rash ointment will now require a doctor's prescription, or in some cases a letter of medical necessity, to be submitted along with the reimbursement request. Insulin and other OTC items, such as bandages, will continue to be eligible without a prescription.
This will be a big change for consumers who are used to using their HSA flexible spending accounts (FSA) to purchase over-the-counter (OTC) medications. This will also be a big change to physicians who may be inundated with questions from patients about the changes. Both physicians and patients may be confused as to whether a prescription should be issued for medications that were previously purchased OTC without a prescription.
The OSMA has compiled the following information to help ease the anticipated confusion surrounding the changes.
OTC medicines/drugs are FSA ineligible as of January 1, 2011, unless patients receives a prescription (or Letter of Medical Necessity) from medical practitioner, or if it's insulin. Some examples of these items include the following:
- Allergy & Sinus Products
- Antibiotic Products
- Anti-Itch & Insect Bite Products
- Baby Rash Ointments & Creams
- Cough, Cold, & Flu Products
- Pain Relievers
- Sleep Aids & Sedatives
OTC health-related supplies continue to be FSA eligible without the additional documents after Dec. 31, 2010. Some examples include the following:
- Bandages & First Aid Dressings
- Blood Pressure Kits
- Contact Lens Solution
- Diabetes Testing Supplies
- Hearing Aid Batteries
- Hot, Cold, & Steam Packs
- Splints, Supports, & Braces
Because many OTC medicines and drugs are FSA ineligible as of Jan. 1, 2011, if you feel that a patient needs an OTC medication as a course of treatment, you may have to write a prescription as required by the law, or provide the patient with a letter of medical necessity as required by the patient's FSA plan. At a minimum, the letter would need to state the patient's name, the name of the needed medication and the frequency in which it is needed. For example, if a patient requires a dose of acid reflux medication two times a day for 12 weeks, the letter would have to clearly state this. Be advised that different FSA plans might require additional information.
The IRS has put together an FAQ section on its website entitled, "Affordable Care Act: Questions and Answers on Over-the-Counter Medicines and Drugs." The information is accessible at here.
- If a patient calls in complaining of symptoms that I would normally suggest treating with an OTC Medication (ie cold medicine, laxative, etc) can I call in a prescription for an OTC medication without examining the patient?
- For an established patient, a physician may prescribe an OTC medication after a telephone "visit" with the patient - with the caveat that such a prescription must be in conformance with the minimal standards of care. For example, it would be unethical to call in a prescription for a patient that the physician has not seen for an extended period of time. Physicians should keep in mind that issuing a prescription is the practice of medicine, requiring an exercise of judgment as to whether a particular drug is appropriate for a particular patient. This presumes an examination of the patient and documentation of the need for the drug. You can be disciplined by the State Medical Board for:
a. Failure to maintain minimal standards applicable to the selection or administration of drugs or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease; and
b. Selling, giving away, personally furnishing, prescribing or administering drugs for uses other than legal and legitimate therapeutic purposes or a plea of guilty to, a judicial finding of guilt of or a judicial finding of eligibility for intervention in lieu of conviction of,
a violation of any federal or state law regulating the possession, distribution or use of any drug.
- Under the ACA, are small businesses eligible for a tax credit for providing health care to employees?
- Regarding the small business health care tax credit contained in the PPACA. The credit is designed to encourage both small businesses and small tax-exempt organizations to offer health insurance coverage to their employees for the first time or maintain coverage they already have.
You are considered a small employer and are eligible for all or part of the tax credit if you meet the following three requirements:
- You paid more than 50 percent
- You had fewer than 25 full-time equivalent employees (FTEs) for the tax year
- You paid average annual wages for the tax year of less than $50,000 per FTE
of the premium cost for each enrolled employee's health insurance coverage
The maximum credit goes to smaller employers, those with 10 or fewer FTEs, paying annual average wages of $25,000 or less. The credit is completely phased out for employers that have 25 or more FTEs or that pay average wages of $50,000 or more per year.
- What are the requirements for returning overpayments outlined in the ACA?
- The Fraud Enforcement and Recovery Act of 2009 (FERA) prohibits physicians from keeping Medicare or Medicaid funds known to have been paid in error. 31 USC sec. 3729(a)(1)(G). The Patient Protection and Accountable Care Act (ACA) now requires physicians (and other Medicare and Medicaid providers) to repay overpayments within 60 days. PPACA Section 6402(a) requires any person who has received an overpayment to report the overpayment, return it and provide the reason for the overpayment, to the payor within 60 days after the overpayment is "identified" or the date the next cost report is due, whichever is later. Overpayment is defined as "any funds that a person receives or retains...to which the person, after applicable reconciliation, is not entitled." In addition to being a False Claims Act violation, retaining a known overpayment also makes one liable for a civil monetary penalty. Physician practices should review their accounting procedures to be sure that reconciliations are prompt and that overpayments are identified and promptly returned.
July 27, 2010
- What can I do to prepare for the ACA's changes to the Physician Quality Reporting System (PQRS)?
- Because the bonus payments turn into a penalty in subsequent years, you should consider participating in PQRS now. To do so, you can elect to use a number of services that make it easier to participate, including OSMA preferred partner, PQRIwizard, www.osma.org/pqrs.
The PQRIwizard is a fast, convenient and cost-effective online tool to help collect and report quality measure data for the PQRS incentive payment program. You can collect the bonus between now and 2015 and by the time you get to 2015, you will be used to reporting and not have to take a penalty.
- What guidance is available regarding the small business health care tax credit found in the ACA?
- When it comes to taking advantage of this new small business tax credit, you should consult your tax professional in order to calculate how much it specifically affects you.
The IRS has also released a one-page form and instructions for employers to use to qualify for the new small business health care tax credit.
- What is the self-referral disclosure protocol for Stark violations outlined in the ACA?
- As required by the health care reform Act, HHS and the Office of Inspector General have published a voluntary self-referral disclosure protocol to be used by physicians to disclose to the government actual or potential violations of the physician self-referral (Stark) law. The protocol outlines the process that physicians and others must follow to disclose violations that includes a complete description of the violation as well as a complete legal and financial analysis of the potential or actual violation(s).
Of particular note, submitting an electronic disclosure under the protocol suspends another requirement to return potential overpayments within 60 days. This is significant because failure to return an overpayment within 60 days might subject the provider to False Claims Act violations. Under the protocol, the 60 day period is suspended until a settlement agreement is entered, the provider of services or supplier withdraws from the self disclosure protocol, or CMS removes the provider of services or supplier from the protocol. During the suspension period, providers are encouraged to put the funds that might be subject to repayment into an interest bearing escrow account.
Physicians should consider using the protocol to resolve overpayment liability exposure for conduct identified as being in violation of the self-referral law. One possible advantage of using the protocol is that CMS may consider reducing the amounts otherwise owed. Hopefully, CMS will exercise this flexibility if a violation is technical or procedural or less significant. CMS will consider various factors in deciding whether to reduce the overpayment amounts owed including: (1) the nature and extent of the improper or illegal practice; (2) the timeliness of the self-disclosure; (3) the cooperation in providing additional information related to the disclosure; (4) the litigation risk associated with the matter disclosed; and (5) the financial position of the disclosing party. While CMS may consider these factors in determining whether reduction in any amounts owed is appropriate, CMS has no obligation to reduce any amounts due and owing.
Due to the significant consequences of making a disclosure of potential or actual violations of the self-referral law, it is imperative that physicians make such disclosures after consulting with qualified legal counsel.
Review more information on the CMS Web page.
Sept. 27, 2010
- What preventive services must health plans provide to patients/beneficiaries with no patient cost-sharing under the ACA?
- Effective September 23, 2010, as a result of the Patient Protection and Affordable Care Act (ACA), newly issued health care plans must provide coverage for certain recommended preventive health care services at no cost sharing charge to the patient if the services are obtained from in-network providers. A new plan is any newly issued coverage - group or individual that begins on or after September 23, 2010. Existing coverage is not subject to the preventive services mandate, but existing plans may actually cover some or all preventive services.
See this HHS ACA FAQ for more information about how grandfathered plans are defined. To see what services are included go here. The prohibition on cost sharing includes co-payments, co-insurance and deductibles
September 23, 2010
- Where can I find more information from the OSMA on the health system reform law, the Affordable Care Act (ACA)?
- With nearly four dozen rules and regulations in the ACA going into effect Jan. 1, 2011, the OSMA has several resources to help members be ready for the impact of the law. In each issue of the OSMA's bi-monthly magazine, Ohio Medicine, a special section will be dedicated to the ACA. This information is available our website at www.osma.org/hsr. We are also informing members of action steps they can take regarding these regulations through our weekly newsletter, OSMA This Week . If you have any questions regarding the ACA, please contact the OSMA at firstname.lastname@example.org or (800) 766-6762.
- With the changes to over-the-counter (OTC) drug coverage required under health care reform, should I write a prescription for patients if my recommended course of treatment includes the use of non-eligible OTC medication?
- This is up to each individual provider. Some physicians are taking a hard-line approach, stating that they will not issue prescriptions for medication that can be purchased OTC. Other physicians state that if they recommend a course of treatment that includes a non- eligible OTC medication, they will write a prescription if the patient indicates that he/she would be financially burdened by purchasing the OTC medication.