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Iowa Healthcare Law Blog

News & Updates on Legal, Policy, & Business Issues Facing the Health Care Industry in Iowa


Posted in Centers for Medicare and Medicaid Services-CMS, Electronic Health Records, Healthcare costs, MACRA - Medicare Access and CHIP Reauthorization Act

CMS proposed rule details Medicare’s new physician “Quality Payment Program”

Reporting under new measures slated to begin in 2017

The Centers for Medicare & Medicaid Services (CMS), the federal agency responsible for Medicare payment to physicians, released a proposed rule on April 27, 2016, setting forth key provisions of its Quality Payment Program for physicians, implementing key provisions in the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA repealed the Sustainable Growth Rate (SGR) formula for annually adjusting Medicare payment to the nation’s physicians, replacing the SGR with a value-based payment system to be developed by CMS consistent with MACRA’s directives. The proposed rule has been published in the May 9, 2016 Federal Register. Comments are due by June 27, 2016.

The proposed Quality Payment Program has two payment incentive tracks: 1) a Merit-based Incentive Payment System (MIPS) focused on successfully achieving quality measures, and 2) a payment incentive based on significant participation in an Advanced Alternative Payment Model (APM). Most physicians will be impacted by MIPS. Under the Quality Payment Program, “eligible professionals” now will be “eligible clinicians,” including physicians, physician assistants, nurse practitioners, clinical nurse specialists, and CRNAs as well as practice groups that include these clinicians.

MIPS consolidates components of Medicare’s Physician Quality Reporting System (PQRS), the Physician Value-based Payment Modifier (VM), and the Medicare Electronic Health Record (EHR) Incentive Program while maintaining a strong incentive focus on integrated use of certified EHR technology (CEHRT). Through MIPS, CMS proposes to pay eligible clinicians for providing high quality, efficient care through identified success in four (4) performance categories –

  1. Cost (10% of total score in year 1). Replaces the cost component of the VM, also known as Resource Use. The cost score would be based on Medicare claims, requiring no clinician reporting. This category uses over 40 episode-specific measures to account for differences among specialties. Clinicians must see a sufficient number of patients (generally at least 20) for a cost measure to be scored. If a clinician does not have enough patient volume in any cost measure, then a cost score will not be calculated; CMS will reweight the cost category to zero and adjust other MIPS category scores to make up the difference.
  2. Quality (50% of total score in year 1). Replaces PQRS and the quality component of the VM. Clinicians would select six reporting measures rather than nine (9) as currently required under PQRS. The rule proposes more than 200 measures to select from; more than 80% of the quality measures proposed are tailored to specialists. Clinicians may opt to report a specialty measure set specifically designed around certain conditions and specialty types. Using claims data, CMS also will calculate population measures, two for individual clinicians and small groups of 2-9 clinicians and three for groups of 10 clinicians or more.
  3. Clinical Practice Improvement Activities (15% of total score in year 1). Activities falling within this CPIA category include care coordination, beneficiary engagement, and patient safety. Eligible clinicians select activities that match their practice’s goals from a list of more than 90 options. Clinicians also are eligible to receive credit in this category for participation in APMs and Patient-Centered Medical Homes (PCMHs).
  4. Advancing Care Information (25% of total score in year 1). Replaces the Medicare EHR Meaningful Use program for physicians. Eligible clinicians would choose to report customizable measures that reflect how they use EHR technology in their practices. A clinician’s overall score in this category would be made up of a base score and a performance score. A base score is derived from clinician response to identifiable measures within six objectives: (i) Protect Patient Health Information; (ii) Patient Electronic Access; (iii) Coordination of Care through Patient Engagement; (iv) Electronic Prescribing; (v) Health Information Exchange; and (vi) Public Health and Clinical Data Registry Reporting. A performance score is derived from measures clinicians select from three of these objectives: Patient Electronic Access. Coordination of Care through Patient Engagement, and Health Information Exchange. Clinicians must achieve the Protect Patient Health Information objective, which requires a security risk analysis, to receive a performance score and must engage in immunization registry reporting under the Public Health/Registry reporting objective. Clinical Decision Support and Computerized Provider Order Entry reporting no longer will be required.

Medicare will begin measuring clinician reporting under MIPS in calendar year (CY) 2017, with payments based on those measures beginning in CY 2019. MACRA requires MIPS to be budget neutral. As such, clinicians’ MIPS scores will be used to compute positive, negative, or neutral payment adjustments. In CY 2019, negative adjustments can be no greater than 4% and positive adjustments can be up to 4%. These percentages increase to 5% in CY 2020, 7% in CY 2021, and 9% in CY 2022. MACRA also provides $500 million annually for exceptional performance bonuses in CY 2019-CY 2023, an amount not subject to budget neutrality. Under MACRA, CY 2019 is the last year for a 0.5% physician fee schedule increase.

A second incentive payment option for clinicians is participation in an Advanced APM. Clinicians successfully meeting Advanced APM criteria receive a 5% Medicare payment boost, need not report under MIPS, and cannot receive MIPS payment incentives. An Advanced APM must accept risk, must be a CMS Innovation Center model or a statutorily-required demonstration, must base clinician payment on quality measures, and must require use of certified EHR technology by at least 50% of its clinicians. PCMHs expanded under Innovation Center authority can qualify as APMs without taking on financial risk. Only clinicians who participate “to a significant extent” by receiving enough of their payments or seeing enough of their patients through an Advanced APM are eligible for the 5% payment incentive.

Many more details are set forth in the proposed rule. CMS summaries of the proposed rule are available, as is the proposed rule.

A closing note. CMS has been working in collaboration with America’s Health Insurance Plans (AHIP), major commercial payers, the National Quality Forum (NQF), and other stakeholders to promote multi-payer alignment on core measures for physician quality programs. In February 2016, the collaboration announced seven (7) sets of clinical quality measures in the areas of 1) ACOs, PCMHs, and primary care; 2) cardiology; 3) gastroenterology; 4) HIV and Hepatitis C; 5) medical oncology; 6) obstetrics and gynecology; and 7) orthopedics. Additional information regarding this public/private payer alignment effort can be found at Core Quality Measure Collaborative.


Posted in Medical Records, Mental Health, Release of Information

2016 Amendments Permit Disclosure for Care Coordination Only Under State Law

One of the more challenging aspects of medical records management are federal and state legalities around release of substance abuse and mental health patient information. This year, the Iowa General Assembly passed legislation, Senate File 2144, to permit disclosure of otherwise confidential behavioral health information under Iowa law for care coordination purposes. SF 2144 was signed by Governor Branstad on April 6 and became effective on that day.

SF 2144 first amends Iowa Code section 125.37, confidentiality of substance abuse treatment facility records, to permit disclosure of patient records for care coordination purposes “if not otherwise restricted by federal law or regulation.” In the same way, SF 2144 amends Iowa Code chapter 228, disclosure of mental health and psychological information, to permit disclosure of confidential mental health information for care coordination purposes “if not otherwise restricted by federal law or regulation.” Care coordination is defined by reference to Iowa Code section 135.154* as “the management of all aspects of a patient’s care to improve health care quality.”

Behavioral health providers are encouraged to remain cautious before disclosing sensitive substance abuse and mental health patient information within SF 2144’s broadly defined context of care coordination. To the extent that this new Iowa law conflicts with federal laws and regulations, federal law prevails. Too, permissible disclosures under SF 2144 must satisfy conditions, such as those set forth in section 228.2, governing permissible disclosures.

SF 2144 can be found at this link: https://www.legis.iowa.gov/legislation/BillBook?ga=%24selectedGa.generalAssemblyID&ba=SF2144.

*Note:  Upon transfer of the Iowa Health Information Network (IHIN) from the Iowa Department of Public Health to a nonprofit entity, SF 2144’s definitional references to section 135.154 will change to Iowa Code section 135D.2.

Iowa Supreme Court Crafts An Avenue Of Relief For Employers Who Fail To Notify Injured Workers That Medical Care Is No Longer Authorized

Posted in Workers' Compensation

Even so, employers are best protected in giving statutory notice and medical providers are best protected in assuring that continued care remains authorized.

Notification requirements imposed by Iowa’s workers’ compensation law upon employers authorizing care for an injured employee took center stage in a recent decision of the Iowa Supreme Court. In that case, Ramirez-Trujillo v Quality Egg, L.L.C., et. al. (No. 14-0640, filed April 15, 2016), an employee suffered back injuries from a slip and fall at work. The employer acknowledged the workplace injury and authorized care through a care provider selected by the employer. The employee received treatment for acute low back pain and muscle spasms until the authorized provider released the employee to return to full duty work without restrictions. Weeks later, however, the employee returned to the authorized care provider for additional treatment for acute low back pain and muscle spasms over a period of several months.

The employer claimed that this additional course of treatment was not related to the employee’s work injury and disavowed cost liability. The employee argued, however, that her continued care was causally-related to her workplace injury and, further, the employer remained liable in failing to provide her with notice that care was no longer authorized as required by Iowa’s workers’ compensation law. In particular, Iowa Code section 85.27(4) states in pertinent part:

For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. If the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that the employer is no longer authorizing all or any part of the care and the reason for the change in authorization. (All emphases added).

The employer conceded it had not given statutory notice but argued the employee should have known that care received several weeks later was not authorized.

The workers’ compensation commissioner found that the employee’s second round of care was not causally-related to her workplace injury but assigned cost liability to the employer for failing to give statutory notice. On appeal, the district court and the Iowa Court of Appeals agreed that the employee’s continued care was not causally-related to her workplace injury, but disagreed on the employer’s cost liability for failure to give statutory notice. The Supreme Court (“Court”) made no finding on whether the second course of care was related to the employee’s workplace injury, saying that an employee is not required to establish medical causation in challenging the employer’s failure to give section 85.27(4) notice.

The Court focused solely on the meaning and intent of section 85.27(4) and, in doing so, engaged in an exhaustive analysis of this statutory provision, concluding that section 85.27(4) means what it says. “[A]n employer who authorizes care is responsible for the cost of the care up to the time when the employer notifies the employee it is no longer authorizing the care.” Employers under this statute have the power to choose care and with that, the Court said, comes the responsibility to monitor care for the purpose of determining when further care will no longer be authorized.

However, the Court went on to say that section 85.27(4)’s notice obligation is not meant to permit “an employee to take advantage of an employer by seeking compensation after the fact for care the employee knew or should have known was not within the scope of the employer’s prior authorization.” As such, an employer who fails to give statutory notice nonetheless should be permitted to show, by a preponderance of the evidence, that the employee knew or reasonably should have known either that the care the employee received was unrelated to the employee’s claim for workers’ compensation benefits or the employer no longer authorized the care. The Court sent the case back to the workers’ compensation commissioner to make this evidentiary finding under the facts in this case.

One justice dissented, arguing that section 85.27(4)’s notice obligation is clear and unambiguous and employers are well-equipped to monitor care and give such notice when the employer deems it appropriate to no longer authorize that care. If the legislature had meant to give employers a second option of proof, it would have said so in the law. “With due respect, the clear language of the statute and its bright-line allocation of responsibility for care provided by authorized providers prior to notice of a change is far superior to (and far simpler than) the majority’s new unwieldy standard.”

This case, decided in April of 2016, was about disputed costs for care received from May 2010-April 2011, and liability for those costs is still not settled. If nothing else, employers are reminded by this case that the legislature meant business when it imposed section 85.27(4) workers’ compensation notice obligations upon them. Similarly, medical providers treating injured workers may want to assure as reasonably as they can that care provided to an injured worker continues to be authorized by the employer. As the old saw goes, time is money. Engaging in protracted evidentiary battles around liability is far from free.

Paul Drey Addresses Iowa Medical Society Conference

Posted in Iowa Medical Society

Brick Gentry’s president Paul Drey twice addresses the Iowa Medical Society (IMS) at its Annual Conference in Coralville, Iowa this month.

Protect Yourself: The Basics of Employment Contracts,” illuminates considerations for physician employment agreements. The program synopsis raises important questions:  “The work does not end once you verbally accept a position. But does the offer meet your needs? Will this contract limit your practice options in the future? Find out answers to these questions and more during this session.”

Paul Drey’s second presentation is in conjunction with Timothy Irhig, M.D., of UnityPoint Clinic – Trinity Palliative Medicine. “Legal and Ethical Issues Related to End-of-Life Care,” is summarized in the IMS program: “Carrying out the wishes of patients at the end of their lives is important. When a patient has an advanced directive, healthcare professionals need to know what the legal and ethical guidelines are regarding the decisions that were made prior to or early in their disease process. This session features information you need to care for your patients and protect yourself.”


Posted in Electronic Health Records, HIPAA, Medical Records, Release of Information

HIPAA AND FEES FOR MEDICAL RECORDS – Updated OCR guidance sets limits.

Physicians and other HIPAA covered entity providers are familiar with HIPAA’s rule on fees that may be charged when individuals request copies of their medical records. The federal Office of Civil Rights (OCR), the enforcement agency for the HIPAA Privacy Rule, recently released updated guidance directives on when fees may be imposed and limitations on costs that may be included in assessing such fees. Medical practices, especially those with separate HIPAA and non-HIPAA medical record fee schedules, may be surprised at what the OCR is now saying.

HIPAA Privacy Rule 164.524(c)(4) is at the center of the OCR’s guidance. According to that rule, individuals requesting a copy of their protected health information (PHI) may be charged a reasonable, cost-based fee that includes only (i) the cost of labor for copying the PHI, whether in paper or electronic format; (ii) supplies for creating the paper or electronic media consistent with the individual’s request; and (iii) postage if the individual has requested mailing. The rule also permits assessing a fee for costs in preparing an explanation or summary of the individual’s PHI when agreed to by the individual.

In its guidance, the OCR further clarifies appropriate costs that may be considered in setting a fee and those costs that may not. A fee may reflect labor costs incurred in creating and delivering an electronic or paper copy in the form and format requested or agreed upon by the individual after the requested PHI has been identified, retrieved, compiled/collated, and readied for copying. More specifically, the fee may consider labor costs incurred in –

  • Photocopying paper PHI;
  • Scanning paper PHI into an electronic format;
  • Converting electronic PHI in one format to the format requested by or agreed upon by the individual;
  • Transferring (e.g., uploading, downloading, attaching, burning) electronic PHI from the covered entity’s system to a web-based portal when the PHI is not already maintained in or accessible through the portal, portable media, e-mail, app, personal health record, or other manner of delivery of the PHI;
  • Creating and executing a mailing or e-mail with the requested PHI.

A fee may not take into account labor costs associated with verification, documentation, searching for, retrieving, segregating or otherwise preparing the PHI for copying; maintaining systems; or recouping capital for data access, storage, or infrastructure, even if such costs are authorized by State law.

Supply costs appropriately considered in setting a fee include paper toner for paper copies and CD or USB drives for electronic media as may have been requested or agreed upon by the individual. However, a covered entity may not require an individual to purchase portable media; rather, individuals have the right to have copies of their PHI mailed or e-mailed to them upon request.

Even if a covered entity’s fee takes into account only permissible costs, that fee also must be reasonable. While conventional wisdom might assume continued increases in legitimate medical record fee costs, the OCR believes advances in automation and technology predict decreasing labor costs and, in certain instances, even disappearance of such costs.

Additional points of clarification from the OCR include the following —

  • While a permissible fee may be charged to individuals requesting copies of their PHI, “covered entities should provide individuals who request access to their information with copies of their PHI free of charge,” particularly if the individual requesting access cannot afford the fee.
  • A covered entity may not charge a fee when individuals access their PHI through the covered entity’s certified EHR system. A covered entity, the OCR maintains, incurs no labor or supply costs when individuals access their PHI through an available View, Download, or Transmit function on a covered entity’s EHR system.
  • Individuals cannot be charged a fee to only inspect their PHI at the covered entity’s office.

The OCR emphasizes that covered entities must give individuals requesting copies of their PHI advance notice of fees that may be charged. In addition, covered entities should post on their web sites an approximate fee schedule for regular types of access requests and should be prepared, upon request, to provide a breakdown on factors that make up their fees. A covered entity may calculate their fees in three ways: actual costs, average costs, or flat fee for electronic copies; the OCR details how each of these calculations can be made.

The OCR specifically addresses fees that may be charged to third parties requesting an individual’s PHI as authorized by the individual. When individuals request that their copied PHI be sent to a named third party, the HIPAA fee rule applies and, the OCR says, “It doesn’t matter who the third party is.” Similarly, if a third party, on behalf and at the direction of an individual, forwards an individual’s request for release of the individual’s PHI to that third party, the HIPAA fee rule applies. On the other hand, if a third party initiates a request for an individual’s PHI on the third party’s behalf and with the individual’s authorization, then HIPAA’s fee limitations do not apply.

Even if State law specifies fees to be charged for medical records, covered entities are bound by the limitations of the HIPAA fee rule unless a covered entity can show that the State’s fee schedule is based on the same types of costs permitted by HIPAA and is reasonable. Iowa law specifies limitations on fees that may be assessed for medical records in two instances: 1) requests for medical records for workers’ compensation purposes, Iowa Administrative Code 876-8.9, and 2) release of medical records to a party adverse to the individual in litigation consistent with a patient waiver or court order whereby fees charged must be consistent with the workers’ compensation fee schedule or as otherwise specified, Iowa Code section 622.10(6). In each of these Iowa-defined situations, individuals authorize release of their medical records not as an exercise of their HIPAA individual rights of access but as required by law and regulation. Arguably, these are the type of third party releases to which the HIPAA fee rule does not apply. Medical practice believing otherwise, however, should then assure that their fee charges in these instances of Iowa law and regulation do not exceed amounts permitted by the HIPAA fee rule.

The OCR’s guidance on medical record fees is contained within a comprehensive release entitled, Individuals’ Right under HIPAA to Access their Health Information, 45 CFR 164.524, found at http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html. This practical resource includes specific OCR responses to many frequently asked questions (FAQs) on individual rights of access to PHI and fee charges. This OCR guidance document gives important insight into how this chief regulator reads these HIPAA rules. It is well worth the read.

Peeling Back the Apple Watch

Posted in Electronic Health Records, HIPAA
Apple Watch at Brick Gentry P.C.

Apple Watch at Brick Gentry P.C.

Apple Watch, HIPAA, and Mobile Healthcare Industry.

When one of our more tech savvy partners recently showed us his new Apple Watch, it instinctively raised questions as to how would HIPAA regulate its use. One possible answer is that the features of this new Apple Watch may be the linchpin to a whole new culture in the mobile health industry.

Time will determine the answer, but the new Apple Watch does possess interesting features that will impact the mobile health care industry. Along with the Apple Watch, the company offers the HealthKit app, which is an application that can be used by the Apple Watch and is designed to log one’s activity and health data, and the ResearchKit software, which launched in April 2015, Apple has also introduced interesting “tools” in the health care marketplace—for the consumer, the provider, and possibly, other vendors. So, in addition to changing the health care marketplace, the Apple Watch and other applications have opened the door to multiple legal issues that will need to be addressed.

We co-authored “Peeling Back the Apple Watch:  Do HIPAA and the Apple Watch Go Together?” which is published this fall in ABA Health eSource and in Chicago Medicine, We highlight the major role the Apple Watch could play in the development of the mobile healthcare industry, and its possible impact on the regulatory framework used to control patient privacy.

  • Opportunities for consumers
  • Opportunities for healthcare providers
  • Privacy, security and data vulnerability
  • Applicability of HIPAA
  • Applicability of the FTC
  • Patient Safety Concerns
  • Discoverability and evidentiary issues of e-data in court proceedings
  • Future Role of Wearable Devices in Mobile Health

View the full article:  Peeling Back the Apple Watch_ Health Law Section.

Medicare “Incident To” Billing – CY 2016 Clarifications

Posted in Centers for Medicare and Medicaid Services-CMS

The billing physician must be the supervising physician.

The final CY (calendar year) 2016 Medicare physician payment rule is out and published in the November 16, 2015 Federal Register. In that rule, CMS (Centers for Medicare & Medicaid Services) made two changes clarifying Medicare’s Part B “incident to” billing rule found at 42 CFR 410.26. The amended regulatory language becomes effective on January 1, 2016.

The first of the two incident to rule changes relates to auxiliary personnel. Physicians and certain “other practitioners” (clinical psychologists, physician assistants, nurse practitioners, clinical nurse specialists, certified nurse-midwives) may bill incident to for services and supplies provided by auxiliary personnel under their supervision. “Auxiliary personnel” means any individual acting under the supervision of a physician (or other practitioner) and can be employees, leased employees, or independent contractors. 42 CFR 410.26(a)(1). Auxiliary personnel must meet state law requirements, including licensure, for providing the service or supply. The final CY 2016 Medicare payment rule adds language specifying that auxiliary personnel must not be excluded from Medicare, Medicaid or any other Federal health program or had enrollment revoked at the time the incident to service or supply is provided. This new language clarifies what already is a Medicare billing requirement.

The second incident to rule change relates to supervision of auxiliary personnel. Only the physician (or other practitioner) who directly supervises the auxiliary personnel providing the service or supply can bill incident to for that service or supply. The physician (or other practitioner) providing direct supervision to auxiliary personnel can be, and very well may be, different from the physician (or other practitioner) treating the patient “more broadly.” Nonetheless, only the supervising physician (or other practitioner) is permitted to bill incident to for services and supplies provided by auxiliary personnel. 42 CFR 410(b)(7).

This revised regulatory language clarifies CMS’ longstanding but sometimes misunderstood position. In its comments to the final rule, CMS explains: “[B]illing practitioners should have a personal role in, and responsibility for, furnishing services for which they are billing and receiving payment as an incident to their own professional service.” In cases, then, where a beneficiary’s treating physician refers the beneficiary to another physician and where auxiliary personnel provide services to that beneficiary under the supervision of the second physician, only the second physician, not the referring physician, is authorized to bill incident to. The second physician’s billing number is reported on the claim form. Although the referring physician has a connection to the services, “we believe the physician or other practitioner directly supervising the incident to service assumes responsibility and accountability for the care of the patient that is provided by auxiliary personnel.”

Medicare’s expectations for “direct supervision” sometimes cause misunderstandings of their own. For purposes of incident to billing, “direct supervision” requires physician (or other practitioner) to be present in the office suite and immediately available to furnish assistance and direction to auxiliary personnel when providing the service or supply; direct supervision does not require the supervising practitioner’s presence in the same room. 42 CFR 410.32(b)(3)(ii). By way of note, only general supervision is required when services or supplies are provided by clinical staff incident to transitional care or chronic care management. 42 CFR 410(b)(7), 42 CFR 410.32(b)(3)(i).

In closing, in comments to its incident to rule changes, CMS noted stakeholder suggestions that it clarify by way of a CPT code listing those services that can or cannot be billed incident to. Medicare law dictates that only services and supplies of the kind commonly furnished in physicians’ offices without charge or included in a physician’s charge may be billed incident to; regulations provide additional specificity but not a listing of services appropriate for incident to billing. 42 CFR 410.26(a)(7), 42 USC 410.26(b)(1-4). CMS said it would take this suggestion under advisement in issuing future guidance on Medicare incident to billing.


Posted in Centers for Medicare and Medicaid Services-CMS, Medicaid

State plans must consider impact of provider rates on beneficiary access

US Supreme Court says providers cannot challenge Medicaid payment rates in a court of law

Physicians under Iowa’s Medicaid program consistently provide quality medical care to our State’s 560,000 Medicaid beneficiaries despite payment rates that, according to the Iowa Medical Society, are nearly the same as rates paid to physicians in 2000. IA Health Link requires Medicaid’s four contracted managed care organizations (MCOs) to pay physicians no less than the Medicaid fee-for-service rates in effect on July 1, 2015; Medicaid-enrolled providers who do not sign with an MCO suffer a 10% out-of-network reduction in payment rates. In 2016, physicians again will petition the Iowa General Assembly for a Medicaid rate increase, an ask that may be at odds with the substantial cost-savings goal of IA Health Link.

Exasperation with sluggish state and federal responses to Medicaid payment inadequacy has led to provider lawsuits over the years. Provider claims focus on that section of federal Medicaid law referred to by regulators as the “access requirement.” Each state’s Medicaid program, as part of its state plan, must “assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” 42 USC 1396a(a)(30)(A) [Emphasis added].

In March of this year, the U.S. Supreme Court dealt a harsh blow to provider lawsuits, ruling in a close 5-4 decision that providers cannot seek remedy through the courts against a state Medicaid program for inadequate payment rates. In Armstrong v. Exceptional Child Center, et. al., 575 US ___ (No. 14-15, decided March 31, 2015), habilitation service providers alleged that Idaho’s Medicaid payment rates violated Medicaid’s “access requirement” law. Lower federal courts ruled in favor of the providers. The Supreme Court, however, held that no private right of action existed to support Medicaid payment rate challenges by providers through the courts. Instead, the majority argued, the only avenue of redress Congress gave to providers was through the secretary of Health and Human Services (HHS) who must assure that each state Medicaid plan satisfies federal requirements. The “sheer complexity” of this “judgment-laden” statutory payment requirement, the Court said, speaks volumes in favor of exclusive enforcement through federal regulators best suited to manage it in a consistent manner. The dissenting justices disagreed, arguing that if Congress had intended to deny providers access to the courts, Congress would have said so in the Medicaid law.

In a final rule published in the November 2, 2015 Federal Register, the Centers for Medicare & Medicaid Services (CMS) requires each state Medicaid program, as part of its state plan, to develop an access monitoring review plan no later than July 1, 2016, to assure compliance with the statutory access requirement. The rule, CMS says, sets forth a framework “to make better informed, data-driven decisions” on, among other things, service rate structures and provider payment methodologies impacting beneficiary access. Because the Armstrong decision places enforcement accountability with HHS for state plan compliance with Medicaid’s access requirement, CMS says it must be more transparent in exercising data-driven judgment calls on payment adequacy affecting beneficiary access.

The final rule, 42 CFR 447.203(b), requires access monitoring review plans to include an analysis specifying data sources, methodologies, baselines, assumptions, trends and factors, and thresholds regarding sufficient access, each of which may vary by geographic location within a state. Further, the plan must consider, among other things, the availability of care through enrolled providers to Medicaid beneficiaries in each geographic area by provider type and site of service as well as actual or estimated levels of provider payment available from other payers, public and private, by provider type and site of service. The review plan and analysis must specify measures used by the state to analyze beneficiary access, such as time and distance standards; providers participating in Medicaid; providers accepting new Medicaid beneficiaries; service utilization patterns; and telehealth availability.

States are required to submit an access monitoring review analysis to CMS with any state plan amendment reducing provider payment rates or restructuring provider payment methodologies that could result in diminished access. In the event of no state plan payment rate amendment but, rather, stagnant rates over the course of many years, state Medicaid programs, nonetheless, are required to complete access analyses at least once every 3 years for, among other things, primary care services and physician specialist services.  CMS calls for additional comments and information to improve upon data and metrics identified in this final rule.

Most Iowa physicians are touched by Medicaid. In many Iowa communities, Medicaid patients are a significant percentage of the physician’s practice base. Adequate Medicaid payment rates fairly reflecting physician costs are important in assuring physician participation in Medicaid and in avoiding tough restrictions on the number of Medicaid patients they see. CMS’ new rule evidences greater regulatory focus on adequate Medicaid payment rates based on uniform, objective, data-driven criteria, bearing in mind, however, that payment rates are important only as they affect beneficiary access. While instinct influenced by a long history of inaction may make physicians justifiably suspicious about the ultimate value of this new rule, CMS has set in motion an avenue of oversight and remedy that physicians and other Medicaid providers should not ignore.

Iowa Medicaid Modernization Bid Winners Announced

Posted in Medicaid

On Monday, August 17, 2015, the Iowa Department of Human Services (DHS) issued a Notice of Intent to Award contracts to four (4) bidders to serve as contractors under the Iowa Medicaid Modernization initiative. Those selected are: Amerigroup Iowa, Inc.; AmeriHealth Caritas Iowa, Inc.; UnitedHealthcare Plan of the River Valley, Inc.; and Wellcare of Iowa, Inc.  DHS’ announcement stated that these four entities demonstrated abilities to manage care provided to Medicaid beneficiaries under this risk-based approach to Iowa’s Medicaid program. This new initiative has been named IA Health Link and is slated for implementation effective January 1, 2016.

Iowa Medicaid currently serves approximately 560,000 Iowans. DHS states that Iowa Medicaid program costs have grown 73 percent since 2003. “Starting January 1, these experienced MCOs [managed care organizations] are positioned to help us achieve savings at a time when there is an ever growing demand on our state’s medical assistance program,” DHS Director Chuck Palmer stated.

Information about the Iowa Medicaid Modernization initiative is available from DHS at http://dhs.iowa.gov/ime/about/initiatives/MedicaidModernization. To help prepare its physician members for this major transition, the Iowa Medical Society has developed a webinar and other educational resources available through its website at www.iowamedical.org.

Iowa Behavioral Health Association Hosts Jeanine Freeman & Paul Drey to Give HIPAA Training

Posted in Brick Gentry P.C., HIPAA, Mental Health

Iowa Behavioral Health Association Hosts Jeanine Freeman & Paul Drey

HIPAA presentations for IBHA by Paul Drey, Jeanine Freeman

Paul Drey, Jeanine Freeman present HIPAA education to Iowa Behavioral Health Association.


On July 23rd the Iowa Behavioral Health Association (IBHA), Iowa’s statewide association of substance use disorder agencies, addiction treatment programs and community mental health centers, hosted prominent health care attorneys Paul Drey and Jeanine Freeman of the Brick Gentry Law Firm to provide training on the Health Insurance Portability and Accountability Act (HIPAA).

This educational session centered around HIPAA requirements and regulations, new updates to the law, and its intersection with 42 CFR, the regulation governing substance use related health information.

Ms. Freeman and Mr. Drey answered questions from the audience, presented information and resources on compliance and best practices, and offered valuable insights from their own experiences. Participants clarified issues through lively discussion. Attendees left the session feeling confident and empowered in their understanding of HIPAA and its implementation and enforcement in their own organizations.

Upon generously contributing this photograph and information, Kelsey Clark, Interim Executive Director of the Iowa Behavioral Health Association, added, “IBHA very much appreciates Mr. Drey and Ms. Freeman providing this session and looks forward to future endeavors with these top notch legal experts.”

If your association or practice group could benefit from a customized presentation on healthcare law topics, we invite you to contact Paul Drey to discuss your needs and scheduling.  We appreciate the efforts of the healthcare community and stand ready to assist.