CMS chief predicts short-term changes to Stark, EMTALA
Long-range regulatory efforts include plans to facilitate voluntary disclosure
Health care providers can expect significant reforms — both long-term and short-term — in the area of compliance, says Tom Scully, administrator of the Centers for Medicare & Medicaid Services (CMS). In the short term, that means overhauling the Stark anti-self-referral laws and the Emergency Medical Treatment and Active Labor Act (EMTALA). In the long term, it could mean fundamental changes in the way CMS approaches its health care anti-fraud efforts.
"There is another Stark II regulation in the works," Scully told attendees at the recent National Congress on Health Care Compliance in Washington, DC. "I think you are going to see another fine-tuning of Stark certainly within two months."
CMS spokesman Peter Ashkenav says that "fine-tuning" will include changes to the already-published portion of the "final" Stark II regulation, along with the portion of the regulation yet to be finalized.
"There are a lot of problems with Stark," Scully concedes. "There is a lot of confusion out there about whether you can pay for coffee with physicians."
Even though the rule is a CMS regulation, some of the Health and Human Services (HHS)’ Office of Inspector General (IG) staff also are heavily involved in crafting it, Scully adds. "I was happy to find out when I asked my staff about trying to fine-tune Stark that the IG was already well along and that their approach to it is pretty sound," he reports.
Scully says he also is committed to spending a lot of time trying to fix "the enormous amount of perverse behavior" created by EMTALA.
"I am committed to doing something on that by the summer," he asserts. "There are a lot of crazy things about EMTALA, including hospitals paying physicians to be on-call at $2,000 a week and a lot of other crazy things that are going on that are unintended outcomes of EMTALA."
That does not mean the agency plans to scrap it, he warns. "Until we find a way to provide broader coverage to more people," he says, "EMTALA is just a reality as a way to make sure that people have access to health care in this country."
Scully says CMS also plans to encourage more positive reinforcement for voluntary compliance programs. In fact, he already has talked to HHS Secretary Tommy Thompson about trying to create a third-party ombudsman at HHS.
The notion is that if health care providers have a sound compliance structure and self-disclose any billing errors, the ombudsman could facilitate the return of overpayments without the treble damages that flow from False Claims Act cases.
"There has to be some positive reinforcement," argues Scully, who represented for-profit hospitals before moving to CMS earlier this year. "That is something the secretary is thinking about, and I think you will probably see some progress on that in the next six months."
"I look at this as a time of restoring balance," explains Scully. "Once you get inside the government, you realize how few claims we actually review and how little we actually look at."
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