MCO model plan puts physicians on the hot seat
Worried about liability risks, MCOs are likely to further scrutinize physician behavior
As much as the managed care industry might complain about the sweeping new Medicare+Choice compliance guidance, issued last week by the Department of Health and Human Services Office of Inspector General (OIG), the real victims could end up being physician practices, some experts say.
Called the OIG’s most important model plan to date by Mac Thornton, the OIG’s chief counsel, the Medicare+Choice guidance is likely to have "a major impact" on how managed care organizations (MCOs) deal with physicians, hospitals, and other health care providers, Thornton says.
That’s because language in the plan and its supporting documents strongly hints that the OIG will hold MCOs responsible for any liability created during the course of providing benefits or services to members, says Mark Waxman, JD, an attorney with Foley & Lardner in Washington, DC.
"There’s a suggestion that the plan is strictly liable for whatever happens, including fraud and abuse committed by its providers," Waxman says. The problem with holding MCOs so strictly accountable is that it creates an incentive for MCOs to gain tighter control over the providers with whom they’re affiliated.
"If I’m an MCO and I’m going to get sanctioned for what my doctors do, I’m going to pay a lot closer attention to them and take a stronger role in what they’re doing," he says.
That role could mean anything from dictating to providers how they should deal with subcontractors to how they should collect and report quality data. For example, Waxman cites a recent case in which an MCO was required to pay back a significant sum to the government because it hadn’t properly reported the status of institutionalized Medicare beneficiaries.
"If an MCO has fully capitated a physician group to cover the risk of skilled nursing care, then it needs to make sure the physician group is giving it accurate reports through the group’s encounter system," Waxman says.
MCOs are particularly concerned that the model plan deals with patient dumping, an issue they contend had little to do with them. "The plans are sort of getting it from both sides," Waxman says. "On one hand, everyone says they’re not supposed to practice medicine. On the other hand, the OIG says plans ought to be sanctioned if there’s a violation of the anti-dumping rules. I don’t know how you do both things."
Don White, a spokesman for the Washington, DC-based American Association of Health Plans (AAHP), says it’s industry policy for health plans to pay for screening and stabilization services in any hospital emergency room. "Therefore, there is no excuse that the hospital [or a physician] can use in saying that the plan won’t pay," he says. The AAHP is currently reserving all other comment regarding the plan until its members have had an opportunity to voice their concerns.
Because of MCOs’ greater liability risk, Waxman believes many will go so far as to require the practices with whom they contract to institute a compliance plan. The OIG’s guidance already recommends that MCOs give all their affiliated providers a copy of the MCO’s compliance plan and include them in educational sessions — a step which could be prohibitively expensive for smaller plans.
Other areas of concern in the model plan include:
Marketing materials and personnel. According to the model plan, MCOs should never put physicians in the position of being marketers for the plan. "But it doesn’t say it can’t put literature in a physician’s office, or that a physician can’t tell someone that he or she is affiliated with a certain plan," Waxman says.
Underutilization and quality of care. Thornton says the OIG has a "serious concern" about MCOs that inappropriately withhold care. The agency will likely pay particular attention to "gag rules" and physician incentive plans (PIPs).
The model plan is supposed to offer guidance to MCOs that provide care to Medicare beneficiaries enrolled in Medicare+Choice coordinated care plans. The Health Care Financing Administration already requires these plans to have a compliance program in place but gives them broad discretion in how to meet those requirements. The OIG’s plan provides a more specific level of guidance.
The final version of the model plan will be released by late summer or early fall.
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