Kate Taylor, Senior Manager, ECG Management Consultants, speaks with Holley Lutz, Partner, Dentons, and Bruce Toppin, Chief Legal Officer, North Mississippi Health Services, about the current legal landscape surrounding Advanced Practice Providers (APPs). They discuss industry imperatives for change with regards to APPs, the relationship between independent physicians and hospital-employed APPs, and the split/shared regulatory changes and the implications on the physician-APP relationship. Holley and Bruce spoke about this topic at AHLA’s 2023 Physicians and Hospitals Law Institute in Orlando, FL. Sponsored by ECG.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Kate Taylor, Senior Manager, ECG Management Consultants, speaks with Holley Lutz, Partner, Dentons, and Bruce Toppin, Chief Legal Officer, North Mississippi Health Services, about the current legal landscape surrounding Advanced Practice Providers (APPs). They discuss industry imperatives for change with regards to APPs, the relationship between independent physicians and hospital-employed APPs, and the split/shared regulatory changes and the implications on the physician-APP relationship. Holley and Bruce spoke about this topic at AHLA’s 2023 Physicians and Hospitals Law Institute in Orlando, FL. Sponsored by ECG.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for A H L A comes from E C G , which is a strategic healthcare focused consulting firm that delivers pragmatic solutions to the challenges facing the healthcare industry. A trusted advisor for 50 years. ECG offers a broad range of strategic, financial, operational, and technology related consulting services and builds multidisciplinary teams to meet each client's unique needs. For more information, visit www.echmc.com.
Speaker 2:My name is Kate Taylor, and I'm a senior manager with e ECG Management consultants. I'm affiliated with our Minneapolis office, but I'm actually based out of Knoxville, Tennessee Go Balls . I spend most of my time performing work in the area of provider compensation valuation and commercial reasonableness determinations. I've been doing this work for about 11 years , um, and I'm looking forward to, to tackling the topic we're gonna talk about today. Uh , today I'm joined by Holly Lutz , a healthcare partner at Dentons in Washington, dc and Bruce Toin , who's the Chief Legal Officer at North Mississippi Health Services in Mississippi. I'll let the two of them provide a broader introduction for themselves now, Holly.
Speaker 3:Sure. Great. Nice to be here. Um, so as Kate said, I'm , uh, at Dentons a law firm, Washington, dc . Uh, we have clients all over the country, and I've been focused extensively and sort of exclusively on healthcare law for almost 30 years that I've been in practice. Uh, with respect to today's topics, apps , we work extensively with hospitals, be it academic medical centers, community hospitals, really on a number of compliance issues. But I can say that a , uh, a growing , uh, amount of, we're spending a growing amount of time on apps in the hospital, and , um, what that means with respect to risks or, you know , regulatory risks with respect to the physicians and the likes. So, I'm excited to , um, to talk about this as well, Bruce .
Speaker 4:Yes, thank you. Uh, I, I'm the chief , uh, legal officer for North Mississippi Health Services in Tupelo, Mississippi. Um , birthplace of Elvis. And by the way , uh, hot Tadi , the Rev fans . Thank you
Speaker 3:Much.
Speaker 4:Thank you , <laugh> . And , uh, I've been here for 27 years , uh, doing this. I, I know a little bit about a lot being the chief legal officer. Uh, we have , uh, as a rural health system, our flagship hospital is 650 beds, which is quite large for a town of about 38,000. And we have , uh, six other hospitals and 39 clinics and assorted other , uh, facilities that we use to service our, our 27 counties that we serve in northeast Mississippi, as well as Alabama. So , um, well , I
Speaker 3:Didn't know y'all were that big.
Speaker 4:Yes. Uh, and a lot of it's very rural, as you know, Holly, having Yes, I did . Lived in Mississippi for, for a bit, so , um, well , I'm from
Speaker 3:Vicksburg, Mississippi, to be clear, <laugh> ,
Speaker 4:And it's, so, it's really , uh, apps are becoming more and more important to our health system into rural health in general.
Speaker 2:Thank you, Bruce. Thank you, Holly. I'm excited to, to pick both your brains today and then tee you with questions. Um, today we're gonna be discussing, as we might have alluded to just a few seconds ago, a few different elements all surrounding the very hot topic of advanced practice providers , uh, which of course includes nurse practitioners, physician assistants, CRNAs, certified nurse midwives. Uh, specifically we're gonna be covering three different areas on this subject. The first of which is gonna be industry imperatives for change with regards to, to apps . There's so much going on in our industry related to apps . So I think it's especially important that we, we start there first. Uh, second, we're gonna be covering the relationship between independent physicians and hospital employed apps. A subject I happen to know is very near and dear to Holly's heart. Um, and then we'll wrap up this session with some discussion on the split shared regulatory changes that will certainly have some implications on the physician a p p relationship going forward. So it goes without saying that we could spend well over an hour, well over an hour on each of these topics individually, but we're gonna do our very best to try and stay out of the weeds to some degree, and certainly welcome any additional discussion on these topics offline as well. So, with that, let's jump right in. Uh, what I'd like to do is start off with some conversation about what's going on in the industry , uh, related to apps, which I realize is a loaded question there, but obviously it's a lot, you know, from the valuation perspective, which is my perspective. I, I can tell you that what I'm seeing as a consultant is a lot of requests for FM v opinions for a p p compensation. We're also getting a lot of requests for a p p compensation redesign , uh, and this is being driven in large part by the physician staffing shortages that we're seeing in the market. Uh, so with that, I'd like to ask Bruce the first question for the podcast. Uh , Bruce, can you talk a little bit about what you're seeing at your organization with regards to increases in a p p usage and what might be driving that demand for your organization?
Speaker 4:Sure. Uh, I mean, the increase over the years has, has been dramatic. It's really accelerated, I think in the last decade. Uh, 20 plus years ago when I arrived here, I remember we would occasionally have a , uh, say a nurse practitioner come up for credentialing through our system, through our, our , our , particularly our flagship hospital. And the chief of staff looked at me across the table and, and was very upset that we were allowing nurse practitioners to practice here and said , we're not gonna have some jack leg attorney tell us what we're gonna do relative to non-physicians being at the hospital. And then about 15 years later, he was the biggest proponent for nurse practitioners. So , um, uh, everyone can change, right, ed , but what we're seeing is, first of all, if you look at a statistic, 47% of physicians are now over the age of 55, and the average age of physicians is 53. So that's what's driving it. In part now, perhaps because we had a little downturn in the economy in the last couple years, some people may be delaying retirement, but we're still seeing are retirement and also health issues affect older , uh, physicians. And so I think that's in part driving it. We're in a rural area, which makes it even more , uh, uh, acute in the need for it. It's hard to recruit to rural areas. Uh , although , uh, rural areas, at least from in K you may know this, and Holly you may know this from doing some analysis. Uh , rural areas actually tend to pay sometimes a little bit better than urban areas as far as , uh, the pay that goes to physicians plus the lower cost of living. But, so you have those , uh, combinations of decrease in ac uh, ability of physicians to recruit physicians, rural areas. We have shortages anyways , um, being able to provide access to care points. And we're also, our health system is moving more and more to value-based , uh, contracts. And those value-based contracts require management of patients. And so apps fit really nicely into that niche because they do a really good job and many times of managing the patients, spending time with the patients, making sure they're adhering to medication , uh, particularly for those old , older patients , uh, when you get into Medicare Advantage plans. And , uh, another factor , uh, that we're coming across also is , uh, younger physicians is the lifestyle choice. So some younger physicians, it's not just about how much I'm being paid, but how much time do I have off? Uh, I think that has led in part to the rise of hospitalists, and that has trickled down now to others , other specialists, and not wanting to take call at times. So we, we see , uh, nurse practitioners actually responding at first on behalf of physicians to call. Now physicians , uh, under <inaudible> are still obligated to fulfill their obligations, but nurse practitioners or PAs may take that, that initial call. So, lifestyle choices , um, you know , one good thing that's happening , uh, med schools , uh, there's been an increase , uh, in , in the number of females entering med school. Uh, and I think it's, it's roughly almost 50 50 now, varies by med school. So we're having more female physicians, which is a great thing. Uh, but from time to time, this is anecdotal, but in our system, we'll see females at a certain age for , uh, child during or childcare wanna step back a bit, maybe , uh, go from a full-time to, to a 0.75 or a 0.5 . And so that requires us to fill those gaps, and sometimes we have to fill them with, with nurse practitioners.
Speaker 2:Yeah, that's great insight. I, I , I liked your point on the , uh, lifestyle choices and the demographic changes, all of those things, you know, not just the physician shortages. I think we all hear that over and over again, but there's other things too that are, that are creating that as well. Um, continuing that topic. And to throw out another statistic , um, I wanted to, to get your reaction on it. Of course, those, those who are listening as well. Um, the projected job growth from 2021 to 2023 for physicians and surgeons is 3% . The projected job growth for nurse practitioners, nurse midwives and CRNAs is 40% . And the projected job growth for PAs or physician assistants is about 28%. And this is from the US Bureau of Labor Statistics Occupational Outlook Handbook. Um, that's a huge spread when I see those numbers right. And I know you, you probably get different statistics no matter where you're looking, but I think generally speaking, that matches what we see from evaluation perspective. Holly, in your experience, how are your clients reacting to that kind of statistic that, that kind of information out there? Yeah,
Speaker 3:I mean, it's a, it's a great question, and I don't know that there's a one size fits all reaction, right? Hospitals in more urban areas, you seem to be able to recruit more physicians may have , uh, you know, maybe able to garner more of that 3% growth than , you know, maybe somebody you know, in, in north Mississippi or Louisiana or you know, Idaho or somewhere. Um, and so, you know, maybe they have a little bit easier time, so they don't feel the pinch quite as much. That said, you pay physicians more than you pay a p p . So all hospitals are trying to figure out, you know, how to, how to deal with rising costs more and more states. I think I saw something today that were like the, I don't know if it's 27th , 37th, whatever state is now , uh, a p p like full practice authority for nurse practitioners. And so as , um, as that, you know, gets, gets to be maybe more accepted, I think , um, you know, even if urban, more urban hospitals or larger teaching hospitals are able to get physicians, they may switch, right? Um, some of our , um, I mean, not obviously full scale , but you know, where wheres are appropriate. Um, some of the hospitals, if it's in a , a more rural area , um, or just not as densely populated, or frankly, you're just like a two hospital system in a town with, you know, really mega systems. Um, it's really hard to get physicians , uh, they get recruited away. And so you really do need to rely on those apps. And so you're really glad that those, you know, numbers that you cited to are going up. Um, but it's, it's, to me, it's a little bit of an inflection point because ap the pandemic, right? A lot of programs kind of withered maybe that were, that were like congestive heart failure clinics or something that, you know, that kind of went away. And so a number of our clients were wor working with them on, you know, what, what services did you offer before? Right? Look at your finances and look at the community need and what did, what did you offer before? And can you restart that program? Do you need to restart that program? Maybe you need an a p p , not a physician, right? There's a physician overall. Um, you know, so I , I do think it's, the topic has got a lot more , uh, focus not only from compliance side, but from finance, right? And operation sites .
Speaker 2:I think there's definitely a , a ton of different avenues that this , uh, needs to be considered , um, from an operational perspective and , and a finance perspective, as you said. And piggy back on some of your commentary, Holly, from my valuation perspective, we are hearing from nearly every single one of our clients about the need for additional a p p support. I'm sure the same can be said for you. Um, many of our clients have actually sought input, and this goes back to the kind of a p p comp compensation redesign topic I mentioned earlier. But many of our clients have actually sought input on creative ways to recruit apps because they're really, everyone's recruiting against them, right? Everyone's recruiting at the same time. So , uh, Bruce, what is your organization doing to help attract apps to kind of meet this demand , um, that's out there right now?
Speaker 4:Yeah, that , that , that's a good question is Holly stated. I mean, part of it's a finance, there's, there's only , uh, so much money that payers will pay us, and we do have community obligations , uh, which is why, particularly for not-for-profit organizations like ours, we exist. So it's not just paying , uh, your salary. We, we are providing, for instance, a, a residency or fellowship, whatever you , whatever we wanna call it, per se , for nurse practitioners. We usually take 12 per cohort. And for the course of, of six months to a year, depending on what cohort they get put into, we'll go ahead and have training where they go through and rotate through. They may spend some time in cardiology somewhere, nephrology the hospital. So they get a broad base of training. Uh, with the growth of nurse practitioners in particular, we've seen a lot of programs that have been , uh, predominantly online. And even those that were not predominantly online, the pandemic , uh, put a lot of 'em online training, but we, we felt that they needed to have some additional training before they were ready to truly practice. And so that's attracted a lot who wanted to go through that. And we pay them. I mean, we pay them a salary to do it. It's not just something we have. We've also provided some tuition assistance for those who, who we have in our system who are already nurses and want to go through the program. And we think they're candidates. I go through our nurse practitioner program, we provide some tuition assistance , uh, or we actually, those who've been through and have incurred some debt, we provide some tuition reimbursement for what they paid. Uh, we also look at the flexibility of setting up, you know, if you don't wanna work full-time, well, maybe we can fit you into a less than full-time slot. Uh, although the number of , uh, mail apps is growing, there's still, they still tend to be more female. So we look at that and, and we've also been able to utilize, because of some of this flexibility , uh, we , like a lot of places , uh, we have telehealth now where we developed our own telehealth capability. And so we can have nurse practitioners who , uh, for different reasons can go ahead and handle the telehealth, but perhaps can't travel. And, and some of 'em may live from our flagship hospital, they may live 50 miles away, and, but yet they can provide some services, and we're moving toward , uh, a lot more telehealth even within the hospital, not just the clinic system. So we, we work with that as options , uh, kind of fit more into lifestyle or what can we provide that is not just cash, because we're gonna compete on cash. There's always somebody who's gonna come up with more money.
Speaker 2:Yeah. And then of course, you start to run into to fair market value issues as well at that point. And I think touching on your tuition , um, assistance comment, I, I did wanna , I thought , I think it's interesting because some of these recruitment strategies like relocation assistance, tuition reimbursement, you know, we've seen with physicians for years, and it's, it's now they're trickling down to the A P P . So I just think it's, I think it's an interesting trend to note. Um, Bruce, I also happen to know to remember from our prior conversations that you actually have a unique perspective. I , I think it'd be interesting for our audience to hear about, you have two sons, one's, one of which is an A P P , and one of which is an ob gyn physician . How are they reacting to this issue? Are they talking about it as, as much as I feel like you, Holly, and I are every day with our, with our jobs, what , what , what are their reactions to this?
Speaker 4:Yeah, it , it , it , it's unique and they give me a unique perspective on it. Um, the , my son who's the nurse practitioner, he actually, when he started , um, past year , graduated his program and started, it's up in Pennsylvania, and I won't say the name of the organization, but they actually offered him a signing bonus. Uh, and they offered to put him on , uh, uh, some incentive plan. And that is , uh, you know, very , uh, uh, attractive to him, allows him to go ahead and as he gets more custom and gets into the wvs, he's going to earn a little bit. I had to explain to him what wvs are, and now he gets it. And, and they also have a quality bonus that they share across their , he's a , he's at one clinic, it's kind of a part urgent care clinic part , uh, appointments and their quality measures that he will share if they meet the quality measures for the clinic at, at home , uh, I'm sorry, in the clinic. Uh , Marla son , who's the OB is just , uh, he's just finishing up this, this in the next few weeks, his residency. And then he starts a fellowship at the same place down in New Orleans , um, in a maternal fetal. And they recruited him already to go there, but they're, they're not really offering as much as far as , uh, it's an urban area. Uh, uh, uh, they're not on a percentage wise as far as the , uh, incentive pay. It's more of a straight pay. Uh, and what I learned from him, because our system for the first time just considered mid midwives. So he's at a program where they have staff physicians , uh, laborists or, or ob hospitalists , uh, fellows and residents and even medical students coming through, but they actually used midwives. And I guess to say that one down, it , it's auctioner. And I was , um, and I was the little shocked that they had that many involved in caring, but they had midwives and he shared with me because we had, they have a very protocol driven aspect of it. And he found, and he said that the midwives are extremely competent in dealing with non-com complex deliveries. And the protocol's driven, if the , if one complexity comes up, they need to move on and need to involve, whether it's a resident , uh, or, or , or a fellow or a staff. It's all driven. But they found , uh, he's found that they're very good at what they do and has no hesitancy in , in working with midwives.
Speaker 2:Yeah, that's, that's a great perspective. And I think effectively what I'd, what I'd take away from this too is that Bruce and his sons will always have something to talk about at the dinner table. That's
Speaker 3:Bruce .
Speaker 4:Okay .
Speaker 3:So it's just funny cuz I'm up here , DC Virginia, and have two kids and midwives were just, you know, until certain things happened , right? The midwives were gonna there to deliver that baby. I mean, it's really, it's, it's just, I mean, and my kids are 25 and 21 <laugh>, you know? So , um, it's just an in , it's just maybe that's sort of a re uh , a regional thing where maybe the, the prevalence of midwives, almost like a first chair, so to speak, are , you know, maybe different in different regions. I just thought that was interesting.
Speaker 4:Yeah, yeah . Uh , miss , uh, uh, Mississippi, the , there's only one region that really has a , uh, a higher percentage of midwives. It's a little bit down south Mississippi , um, little south of Hattiesburg, Holly . Uh , but now I think it's starting to grow because Mississippi is developing OB deserts. Yeah. Um, for multiple reasons. Uh , one could be , uh, so many qualify for Medicaid, so the Medicaid payments themselves , um, can, can affect that. Uh, there, there's some issues relative to the aging of physicians and there's also liability issues as our organization. Yes , sure . And , and , and as chief legal officer, I oversee outside council , uh, you know, you get an OB case and you have what will term bad baby , irrespective I if somebody did something wrong. Yeah . What's called life care plans. And the life care plans when projected out can be 40, $50 million. And our organization has the wherewithal both for our self , uh, retention plan as well as our excess insurance to cover that. But private obs, like, I , I can't take the risk of, of having that exposure. So , uh, that, that, that's one thing I think is driving us to, to look at and the shortage that we mentioned before. Uh, real quick , uh, uh, Kate , uh, interesting around the dinner table. So my wife , uh, complained about like a pain in her side and asked her son, the physician, and he looked at her and said, I'm an ob ask your son the nurse practitioner.
Speaker 2:That's funny but true because I mean, I know when I, whenever I go to the doctor, typically, you know, for , for nothing super serious, it's always a nurse practitioner that I , that I appear to be talking to. But , um, I think that's a great , uh, segue into our, into our second topic, the re the relationship between independent physicians and, and hospital employed apps . Holly, I listened to the, to the presentation you and Bruce gave at a recent A H L A conference. Really great. I loved it. Um, as you know, I already poked you with a hundred questions about it. Um, so I'm gonna ask you to do that again. Um, you spoke specifically in that presentation about some fraud and abuse risk , um, related to this relationship. Can you expand on those risks a little bit more for this audience?
Speaker 3:Sure, of course. And , um, that was for folks who cared , that was the A H L A , I think the physician hospital and health system in Orlando in January. And , um, it was great fun . And the A H L A as usual did a fabulous job. Um, yeah , so the fraud and abuse risks, you know, I think , um, I think the risk is really, or the sort of, the issues come up and it's really a , is a glass half full or half empty, right? Is it, is a hospital developing or have apps available because they wanna give something of value to physicians, right? Because it's, you know, do you have a physician saying, well, I'm not coming here until you have apps like the hospital down the street because it saves them time, you know, et cetera , et cetera . Um, or do you have a hospital, what I'll call a non-referral patient-centric reason for having , um, a p p support? What I'm talking about here is really inpatient service lines. I mean, they're used in the outpatient as well, but I think the , the inpatient is , um, sort of where my comments on this topic were focused. And so, you know, the risks are , uh, maybe you're offering it for a hospital-centric reason, but it's misconstrued, it's misunderstood, right? It's not, you don't have all the bells and whistles in the beginning to justify , um, you know, is there a quality metric you're solving for? Did you have bad outcomes in something? Um, did you have , um, you know, there's quality metrics, right? That there's studies that show , uh, you know, apps being in a , in hosp in patient service line, you know, will help patient satisfaction scores. You get clarification for labs and pain meds, right? You're a pain. Me and somebody on the floor is reacting to it and the surgeon's in a 12 hour surgery and, you know, let's get the patient care the best, you know, the best that you can. So , um, you know, I think the front abuse risk, obviously stark front abuse is criminal, stark is civil, but it's strict liability. So it's probably scarier <laugh> than the kickback. Um, you know, if the hospital , uh, has a kickback wise , right? Hospital offers physicians something of value , uh, knowingly to get them to refer Medicare, Medicaid, other federal healthcare program dollars , uh, to that hospital, that can be a criminal activity. Um, you know, but from a stark perspective, it's a lower standard of , you know, lower standard. But it's really all about what's the value. And, and I think as we'll talk a about this a little bit more, enforcement agencies, whistleblowers, skeptics, just have this knee jerk that it's, well, you wouldn't have them, but you just wanna make the physicians' life easier. And so that's, you know, that's the only reason you're providing them. And , um, you know, I think that, that the hospitals have to really be , um, mindful of how and why that program started or if it started before somebody gave it thought to, you know, pressure tested a little bit. Cuz at the bottom line is you gotta be offering, the hospitals have to be offering these services for the benefit of the hospital patients. And if there's some incidental benefit, which is always a, you know, a phrase you can drive a truck through, but you know, if the physicians like it, right? They just like it and they might come to you, well, okay, but, you know, because their patients are happier, right? They got out of the hospital faster, right? Maybe they're happier cuz you have better food, you know, I don't know. But, you know, if if it's for the hospital's benefit hospital patients, that's really the , the sweet spot. You need to, you know, avoid actually doing <laugh> or looking like you're offering , uh, these kind of services for the benefit of the independent community physicians.
Speaker 2:Yeah. And I wrote, I wrote down the quote that you said, mindful , um, of how and why the program is getting started. Yeah . Um, can , can you provide some more context around that in terms of some tangible things that, that these hospitals or organizations can be doing? It sounds like documentation is probably part of that. Um, can you expand on that a little bit more?
Speaker 3:Sure. I mean we , um, you know, we have kind of four kind of key questions or you know, questions to think about. If a client is thinking about this kind of program or a pressure test and they have a program up and running, is it still really serving its purpose? Is do or is still comfortable it's hospital needs . So, you know, as I said, sort of the first leadoff, is there hospital, you know, bonafide patient-centric reason? Is there a problem you're solving for , uh, does it, you know, enhance resources for identifying and social determinants of health? Is it, you know, w what is the rationale? Cause at the end of the day, the hospital is gonna be spending money on this and so why, right? And the why needs to be a hospital , uh, answer. Um, are the apps providing cer , you know , what are they providing, right? You got medical and surgical , um, you know, but uh, you know, are the apps that the mantras, are they doing something in addition to not in lieu of the physician? You know, you might have a physician who, you know, would otherwise round on the patient, but they're not going to because they leave that to the a p p. Um, are they providing, you know, services the physician's never gonna provide anyway, right? So it's obviously in addition to, right, this just isn't something that the physician's gonna provide. Um, and so you need to be really clear on what kind of things are providing also to make sure you stay within privilege , right? But within their , um, privileging , uh, issues , um, do the a p p support all physicians in that service line, right? It's, you don't wanna have, you know, 30 neurosurgeons or orthopods or whoever and, you know, apps only support two of them and they happen to be the largest referral sources , right? So , um Right .
Speaker 2:Favoring the higher highest producer. Right?
Speaker 3:Right. Exactly. Precisely. Yeah. Um, and is the physician still doing that? Which he or she needs to do, right? They're still the admitting or attending physician and it's a , I think it's collaborative practices between physicians and, you know, apps and, you know, it's just much more of a care collaboration , uh, approach I think now. But the front of use laws don't really, you know, get there. And there's just, as you can see with the ACOs and all these other things are just all these financial relationships that are actually good for delivering quality care. And it's frankly good to deliver it in a way that's less costly. People are outta the hospital faster, but you, you insert money and skepticism, you know, into the mix. And it's, it's, does somebody view the glasses half full or half empty? So we really encourage , um, folks to , uh, to really ask the right questions. And then there are some bells and whistles, right? Like, do you have a notice to your medical staff, you know, every, you know, annually or is there sort of a, you know, a blurb in one of the like medical staff, you know, newsletters or something. Remember these people are here to serve hospital patients and you know, we're great, they're quality people, but you can't bill for anything they do. Um, you know, you won't really know they're community docs. So you wanna be on record as saying, I never intended anybody, but you know, anybody, any physician to bill for that . I told them not to do it. They know why they're here. You know, do they doc , do the physicians, you know, document. So , um, setting it up right with those questions. But then, you know, is there an annual notice? Is there random haphazard documentation review, talk to your apps , right? Or do you , you know, cuz some of 'em you'll talk to and they say, so-and-so physician is not coming back to see their patients and I really feel like I'm practicing above my license, right? I mean, so there's a lot of reason to have those conversations, but I think those are some of the things you can think about on the front end and as you go.
Speaker 2:Absolutely. I think that's really important. I think it's important you hit it on this a little bit earlier, but it's important because of these enforcement actions. Right. Um, one of the things, Holly, you spoke about in your presentation, you , you covered I think a few of them , um, which I , I thought was really helpful for context. Do, do you feel like this is something that will continue to be a focus for the oig and why or why not?
Speaker 3:I do think it's gonna continue to be a focus , um, for a host of reasons. Um, you know, once a theory gets out there, you know, it tends to, to get some legs. So we've had some settlements and you know, we had a spattering of 'em in early, you know, 2013 or whatever. But there was, you know, one, I think a big one in one or two in 2021 in 21. And I'm, we're working on, I'm well aware of other cases. So I do think it's one of these things where people get smart in an area and the DOJ or later keep going. Um, it's also, and I won't get too much into the weeds here, but there was also an advisory opinion in December. So it's HHS o i g advisory opinion 22 dash 20 , which was a favorable opinion as to , um, medical use of apps in the medical side. But what that's highlighted is, ooh , but it's not on the surgical side. And as you know, as you know, we've talked before about how there's sort of special risks involved a p p service lines supporting surgeons cuz surgeons get paid, you know, typically one fee for pre-surgical post, you know, the actual surgery in post. And really what the key is, is in the post-op world, in the pain management world or surgeons rounding on their own patients or a p p is just doing everything and the doc's already been paid for it. So as that area just , um, continues to be murky as a advisory opinion, you know, highlighted and was a footnote, but it was a footnote. I took grant notice of which is, and by the way, this is not a surgical, you know, OIG advisory opinion. I think it's gonna have lex
Speaker 2:Yeah, those footnotes are important , uh, nine times up 10. Um , and I think that's a great point because what they're focusing on is a , is a real , these are , these enforcement actions are really telling way to see what the OIG is gonna focus their attention on. Um, and since you, you touched on it briefly, I think a good, another good segue here is the global surgical package. Um, I know I said briefly, which is hard to do, but for context from evaluation perspective, when we see a , a high producer that's compensated using any sort of work RVU compensation methodology and is using those hospital employed apps in their practice, one of the first questions we always ask in our data request is for our clients to describe that relationship, right? What's going on in that relationship? And obviously one of the things we're trying to understand here is the productivity implications and of course who's receiving the work RVU credit because that's gonna drive the compensation of the provider. Um, what are , can you walk us through your, your thoughts on, on that particular topic , uh, Holly as it relates to compensation and work attribution and things like that?
Speaker 3:Yeah , you mean with respect to sort of global surgical and how it , I , you know what? It's funny you say that. I was about to say, Hmm . So Kate, like, help me <laugh>, what's the technicality here? Um, you know, fair market value, y'all , y'all just have such a specialty and a skill. I mean, I just, it's, it's , um, it's fascinating to me. Um, you know, I I just think hospitals, you know , that , I just think it's really important for the evaluators to understand those relationships. Um, because, you know, if you're in one group practice, right? You, you've gotta , physicians need to bill , but then is it shared split? And I know we're gonna get there. So, you know, I do think it's a matter of understanding really how it works and how it's intended to work. Um, but how it all shakes out in valuations. Goodness, love you because that <laugh> that's a complicated thing.
Speaker 2:Well, it keeps me with a job. So that's, that's good to know. Um, but thank you for all that detail on this topic. It was, it was really important. I think the biggest takeaway here is, is that regardless of the perspective, legal consultant, healthcare executive , uh, you've gotta know what's actually happening. And sometimes actual discussions are needed to figure those, those things out. Um, so I'm gonna move into our last subject , um, which I think nearly everyone is talking about is, is the split shared regulatory changes. Um, obviously I think most people listening to this podcast are , are well aware of what these, what these changes , uh, are, are related to and that they're gonna take effect on , you know, effective January 1st, 2024. Uh, but this, this role requires provider organizations to bill for joint visits with physicians and apps with a greater distinction than they've ever had in the past. And these anticipated changes to, to split shared billing practices are gonna have impacts on financials, provider productivity and compensation care, team dynamics, et cetera. Um, Bruce, what is your organization talking about with regards? Because I, I have to imagine that your organization is talking about it every single day. What can you give us kind of a, a scope into what you guys are talking about related to
Speaker 4:This ? Sure. Uh , we're , we're , we're talking about how to, how to right size or realign , uh, the , the scope of the providers or what type of providers we have. Uh, I, I actually did a presentation to our senior leadership group to make sure they're all aware of it. And as we get to our, our budget year, we're in October start of our budget as they PPL plan for their budget to make sure that they have this in their budget because it, it can affect both the revenue coming in on the professional side and then also the cost of what we pay out too. So it's, it's not just the , the , uh, revenue that may potentially, depending how you set it up, go down or go up. It's what your costs or your costs go up or down relative to your revenue, which is a, a big issue. I think it's gonna hit. And we talked about the biggest area is hospitalists, cuz hospitalists have started to align themselves into a team model. And the team model , uh, has been with nurse practitioners into a lesser extent , PAs, but nurse practitioners going ahead and doing a lot of the workup in the physicians under the , uh, older existing rule I should say, will come in for that key component and allow that physician to bill , uh, uh, uh, for this , for what had occurred. Well, with the change coming in, it's not just that key component, but who spends the most time, I think nurse practitioners have historically probably spent more time with the patients than the physicians themselves. So that's gonna be a switch and it's gonna be a switch that are you going to go ahead and , uh, continue to use nurse practitioners? And, and one key is, are you gonna allow nurse practitioners to work to the top of their license? You don't wanna have nurse practitioners paying them nurse practitioners salaries be somewhat reduced to almost scribes at times. And you wanna make sure that the , uh, physicians are actually spending the most amount of time , uh, one skeptic besides saying, well, Medicare won't do this, they'll just kick the can down the road. And I said they could, but at some point it will probably happen because they see the rise in nurse practitioners. But , uh, the physician, W R V is probably going up or has gone up faster than the nurse practitioners, even though there's more nurse practitioners. That's what's I assume, driving it. Uh, but you don't wanna be the one, and Holly knows this better than I because she's involved in all these compliance risk issues , uh, responding to the US attorney or the oig and, and when they start going through an auditing your records, the EMRs are gonna be great. Mines mm-hmm . <affirmative> for , uh, like gold mines for the federal government to come in and start requesting the data that is on all these EMRs. It's just incredible the amount of information you can pull off of it. So we're looking at all those issues , um, in states that physicians , uh, I'm sorry, nurse practitioners have independent practice. They can go ahead and probably do more than, than they are doing now in states like ours in Mississippi, where you have to have a collaborative agreement with a physician. Uh, you could have physicians going ahead and saying, okay, I can't bill as much, but you're gonna have to pay me more money to supervise these nurse practitioners.
Speaker 2:Yeah , lots to think about. And I'm , I'm glad you mentioned that, Bruce, about the, maybe potentially the supervision stipend payments. Uh, you know, you referenced the , the shift in revenue and obviously potential shifts in work vus , um, that could very well require changes in, in compensation for, for both providers, both the apps and the physicians. Um, how has your organization been thinking about potentially tackling this , uh, potential adjustments to, to compensation for these providers?
Speaker 4:Yeah, so we really , uh, uh, uh, don't pay our nurse practitioners A W R V U incentive per se. You know, we, when they do bill, we do get that monies, but we're looking to adjust both WVU that are paid to physicians and maybe including a W R V U component for the nurse practitioners. So they, they understand that they should not be just scribes. They're not, they're not just , uh, uh, to cite , uh, someone during, I think I'm dating myself Watergate, I'm not a , they're not a potted plant. Uh, they actually have a role to lead . Now for us, one, one area is just not hospitalists. It's also the fact that we have a , um, critical access hospital that is primarily , uh, serviced by nurse practitioners and physicians only provide telehealth follow up or telehealth , uh, uh, supplementation. They'll go ahead and do the initial admission work on the initial admission of the patient and come in as requested. But it's nurse practitioners who are doing the bulk of that. And that is going to affect the model because I don't believe that the physicians coming in for a brief telehealth visit at this critical access hospital is going to be able to bill for that service. And so how's that gonna affect it ? Cuz the physicians getting around the , where Holly talked about , uh, are, are not ours. They're independent physicians. And so what compensation are they gonna request? And, and then what services can we provide getting into community need and assessment.
Speaker 2:Yeah, that's, that's a great point. Um, I'm, I'm gonna shift gears just a little bit, and Holly, this next question's for you. Obviously organizations are gonna have to develop a methodology for quickly and , and easily determining whether service should be billed under the physician or the a p p . Uh, what potential issues do you see coming, you know, down with how organizations document this information?
Speaker 3:You know, I foresee all sorts of chaos and handwringing and grumbling. Um, look, it , it's a challenge. Some hospitals or practice groups, frankly, or , you know, prac , uh, faculty practice plans are more prepared than others. They sort of planned for it. Then c m s kicked the can, and then I think they got so hopeful it wasn't gonna come back. And who knows what CMS is ultimately gonna do, but as of yet, it's, you know, 1, 1 20, 24 . Um, we're, we're working our way through it. I mean, it's, you know, even for , um, codes now services now that have start and stop times, right? I mean, forever we've not been able to get, you know, sometimes it's nursing documentation, physician documentation, right? Start and stop times . I mean, that's been sort of an age old documentation problem. Um, you know, you know, to Bruce's point, you know, with big data, right? Everything's about data. So is , you know, are there certain dropdowns, are there certain, you know, data fields, can you, you know, try to figure something out, you know, to pressure test your system. Um, and if you're not doing it right, make tweaks along the way, you know, it's, it's still a human intervention, right? I mean, somebody's still has to track time and I mean, unless you have folks key in and key out of an exam room or something , um, it's just gonna be really hard. Um, which I think was the drumbeat c m s herd . And while they try to give folks more time , um, and I have found too that, I mean , we're providing counsel on, you know, the risks, but it's really the , the clients are developing their system . They know their technology, right? They know their data, they know their people, they know their policies, but it's okay, we're trying this, but you know, this still isn't working. And is this a big deal? Is it not a big deal? Can we defend it? Do we have to do it better? So it's, it's a challenge, but I , I think this is something frankly that a lot of clients are hardwiring internally with mm-hmm . <affirmative> with council from us because it's just, they're just, each client is different,
Speaker 4:Right? And, and, and Holly , there there's , there's a lot of data out there. More than sometimes , uh, we appreciate until we go looking for it . Yeah. Uh , you know, I , and I've found some of the data that, that can be used to figure out what is being done, when it's being done, how it's being done. I learned from the requests we get in our medical malpractice lawsuits where they'll ask for the metadata. Yeah, for sure. Data . And the metadata will actually show what computer was logged in, at what time it was logged in, at what time it was logged out, who and where that computer was. Okay. And , and in some of our areas, not all, but some of our areas you actually have to badge into. Yeah . And you have the badge, you know , when they went in. Now you can't tell when they leave , but you can tell when they went in and , and so , uh, and it's not just the emr , but there are a lot of our systems where you can tell who was where and what they did and how long they did it. Well,
Speaker 3:The , the , I will tell you Bruce, the , the risk with that is that people think that, but like, what is it ? What if there's one laptop in a room and you're logged in mm-hmm . <affirmative> and you're NP and your physician go in and sometimes, you know, apps are now , well now I guess it'll be, you know, different because you gotta log in time. But, you know, we've, we've got some things going on, different kind of cases where we get into all that data. You know, you can tell who started the note, right? Oh, it wasn't a physician, the physician signed the note, you know, but , but it's hard with this metadata because unless you have each person who has a laptop that's chained to themselves with, nobody has their password and you're for sure that somebody on that laptop with that login is really that person, right? A lot of you shouldn't share passwords, but people do. So that's gonna be really hard cuz you're gonna have this data and it may not really show what happened. It may, but you know, that's, that's a , you know, a , a wrinkle I hadn't thought of. But I mean that, that is a wrinkle because it's just cuz it's, you know , it's on the internet, it must be true, right? Just because it's the data there doesn't necessarily mean that's how care was delivered. Uh, and so it's, you know, it's gonna be tricky,
Speaker 4:But it raises a rebuttable presumption.
Speaker 3:I agree. I totally agree with that. But yeah, I totally agree with that. Um, totally agree.
Speaker 4:It , it , it's , it's , it's hard. It's, it's opening new ground , uh, what's gonna happen and , and it , uh, depends in part one, what organizations I think do today to prepare for this and look at their own data and really try to get their arms around what the providers, what provider is, is providing care and how, what is the time they spend providing that care. Yeah. And then subsequently, as we find the government starting to investigate if they think there's abuses where they're going down and we'll all learn from that, what they're looking at and probably adjust accordingly.
Speaker 2:Yeah. And so what , what I'm hearing from the discussion E two are , are having, is one , there may be some data internally with the resources we have that can help us figure this out, but also need to have those continued discussions with your legal counsel , uh, to make sure that you're, you know, aware of those potential risk as well. Um, just one last closing point, just from the valuation perspective. One of the other potential effects of this regulatory change is of , of course, related to compensation. Um, but by changing the level of services that are personally performed with physicians versus apps , you know, there's potential to have increases and decreases in comp, which of course creates fair market value issues, but it goes without saying these changes are gonna impact nearly everyone, if not everyone in our industry. So , um, I do think our time is is just about up. Um, but I do wanna , Holly Bruce, do you have any closing comments you wanted to add before we , uh, wrap up this podcast? I wanted to give you a minute to do so if , if you did.
Speaker 3:I , I, I just would like to say thanks to y'all, it's been fun preparing thanks to a H L A for giving us an opportunity to keep talking about these issues that I sort of geek out on. So , um, you know, thanks for that, Bruce.
Speaker 4:And , and I , I , I would second that I'd like to , to thank you Kate and E C G A H L A for allowing Holly and I to have some fun , uh, doing this and appreciate working with Holly. Uh , I think this is just the , the tip of the iceberg. We're gonna see this constant change. Uh, and , and a lot of it's driven outside of healthcare itself. They're , they're just demographics at work and regulations at work.
Speaker 2:Okay . Thank you again, A H L A for allowing the three of us to be , uh, a part of this podcast. We've had a great time. Um, obviously A H L A is a , a wonderful organization and we're all , uh, grateful to be a part of .
Speaker 1:Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org .