Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.
Change is coming. A repeal of the ACA, MACRA, and other vital issues will have to stay on a practice's radar in 2017.
The New Year is both a time of reflection and a time of change. Personal resolutions are made and goals are set. On a national level, any change due to an election is significant. This sentiment will ring true on Jan. 20 whenchange takes place both in the White House and in Congress. With change comes uncertainty. In light of this, here are five items that physicians, as well as other healthcare industry participants should watch in the coming year
1. The Affordable Care Act. Since its inception, various individuals and entities have been lobbying for its repeal. Most people agree that, like most laws, there are both positive and negative aspects of it. Given that one party will control both the White House, as well as both houses of Congress, there will undoubtedly be change to the ACA. What provisions remain and what will be repealed remains to be seen.
2. HIPAA/the HITECH Act. With the implementation and completion of the Phase II OCR Audits that took place in 2016, as well as the fines that were assessed by HHS, physicians should review their compliance efforts. The key areas that were the focus for violations in 2016 included inadequate policies and procedures; not undergoing an annual, comprehensive risk assessment; lack of training; sub-standard encryption; and outdated and/or incomplete business associate agreements. Physician practices should also be mindful of doing due diligence on any and all business associates.
3. Anti-kickback Statute. This law can lead to both criminal and civil penalties for physicians in relation to physicians receiving payments for referrals or medical device/pharmaceutical utilization. It is an increasing area of focus for both the U.S. Department of Health and Human Services and the U.S. Department of Justice (DOJ). Additionally, new safe harbors as well as language changes to the law, were the focus of the Final Rule, published in the Federal Register at the end of 2016.
4. Continued False Claims Act Enforcement. In December 2016, the DOJ announced that False Claims Act violations and the subsequent penalties generated nearly $4.7 billion in recoveries for the United States Government. While this figure includes more than just the healthcare sector, healthcare topped the list. The government has also made clear that the size of the practice does not matter.
5. MACRA. A game changer in terms of physician compensation. Even though the final rule to this law was released in late 2016, it's one providers should watch closely due to its ties to the ACA. Check the CMS and HHS websites for updates.
I am not speculating what parts of ACA and MACRA may or may not remain. Instead, I implore physicians to stay abreast of these issues because they are fundamental to their practices. Privacy, reimbursement and liability are not going away. Some aspects are more vulnerable to significant change than others. The most prudent approach that anyone can take in 2017 is watch for any proposed changes or enforcement announcements in relation to any of the five issues identified. Once changes are announced, respond by becoming compliant and implementing policies and procedures to make certain that billing submissions are accurate.