AHLA's Speaking of Health Law

Stark and AKS Proposed Rules: Questions Answered

December 03, 2019 AHLA Podcasts
AHLA's Speaking of Health Law
Stark and AKS Proposed Rules: Questions Answered
Show Notes Transcript

Building on their enormously popular October webinar on the Stark and AKS proposed rules, Robert Homchick, Partner, Davis Wright Tremaine LLP, and Julie Kass, Principal, Baker Donelson Bearman Caldwell & Berkowitz PC talk with Mark Ryberg, Principal, SullivanCotter to answer important questions about the rules and dig deeper into issues such as distinctions between the CMS and OIG approach to certain definitions, what is a value-based purpose, and downside/upside risk definitions. From AHLA's Fraud and Abuse Practice Group. Sponsored by SullivanCotter.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

And Mark Ryberg, a principal in the physician workforce practice at Sullivan Coter, and I'll serve as the moderator for today's webinar. Sullivan Cotter provides industry expertise, regulatory insight, and market leading physician compensation data to help our clients mitigate risk through an array of comprehensive fair market value and commercial reason assessments and advisory support. We're proud to be sponsoring today's podcast. And with that, I'd like you to turn it over to our two panelists, Bob Ick from Davis Wright and Tremaine, and Julie Cast from Baker Donaldson. Robert, I'll turn it over to you to introduce yourself.

Speaker 2:

Uh, thank you, mark. I'm, uh, a regulatory healthcare regulatory lawyer at Davis Wright, uh, based in Seattle. My co-presenter, Julie Cas, is also a healthcare regulatory lawyer, uh, at, uh, baker Ober and based in Baltimore. Uh, we both have, I think, a, between us, a fair amount of experience, uh, in advising clients around the nuances of the Stark Lawn and a kickback statute, and, uh, participated in the webinar, um, a couple weeks ago with, uh, CMS and OIG around, uh, the Sprint regulations. What we're hoping to do today is cover kind of a range of topics, uh, that were raised as questions during that webinar and, uh, that otherwise have presented themselves to, uh, to us or to other people at, um, the American Health Lawyers Association. Um, Julie, do you have anything you wanna add as a preamble?

Speaker 3:

Uh, no, Bob, thanks. I think you've, you've covered it. We're gonna try and get to those issues where we think that there's some, some interesting things in the regs, uh, both as you said, from questions that came up on the webinar, as well as things that we've been informally batting around. So we'll bring that informal discussion to everybody listening to the podcast.

Speaker 2:

So we were going to start with, uh, looking at the value-based exceptions, value-based enterprise, and look at some of the distinctions between CMSs proposed Stark exceptions that focus in this area and the OIGs proposed safe harbors. Uh, the first issue I was gonna take is who is eligible? And, uh, both CMS and OIG proposals define a value-based participant as an individual or entity that engages in at least one value-based activity as a part of a value-based enterprise. As you might guess, each of those value-based, uh, terms has its own definition, but in the OIGs, um, safe harbor definition, certain folks are excluded from the definition of value-based participant. That includes pharmaceutical, pharmaceutical manufacturers, manufacturers, distributors, and suppliers of dme, prosthetics, orthotics, supplies, and laboratories, clinical laboratories. So those categories cannot be value-based, uh, participants under these safe harbor, but they can be value-based participants under the stark exception. So there's, uh, as we'll see, there's some notable distinctions between CMSs approach and the OIGs approach. Uh, in addition, the OIG is considering excluding pharmacy, pharmacy benefit managers, wholesalers, uh, distributors of pharmaceutical products and certain device manufacturers. Uh, cms you know, throws out some commentary on these issues, but as I said, um, uh, the baseline is CMS is sort of letting all players qualify as potential value-based participants, whereas, um, OIG is taking a more limited view.

Speaker 3:

And Bob, do you, do you, um, when, when we're looking at this, it seems to be sort of a theme of these two regulations together that CMS is, uh, or OIG is a little bit more conservative on purpose than CMS in some of these rules. Um, CMS saying, you know, we are a payment rule and OIG being a stop gap measure, um, I think this is one of those areas, um, you know, why do you think that OIG is really taking the position that they have to exclude these, these individuals, whereas CMS not so sure.

Speaker 2:

Well, I think you're right, that CMS took a more liberal view and it's a payment rule, and they're going to allow more on that initial threshold. Uh, no, and OIG views its role as well. You may get away with it under Stark. If we really see some abuse, some bad activity with the wrong intent, we're gonna retain our ability to intervene and stop the activity. So, uh, I think you put it once, we need to be comfortable being uncomfortable that you can fit within a stark exception. You can qualify as a value-based participant under Stark and still have potential exposure under the anti-kickback statute. Um, so the OIG views itself as the COP and CMS more as fit within the four corners of the stark exception. And you're good to go.

Speaker 3:

I, I think that's right, Bob. I think that's right. Um, with, with that in mind, and looking at just the differences between these two sets of value-based rules, um, clearly the OIG and CMS have talked to one another about them. They didn't create them in isolation from each other. They review each other's rules. Um, and clearly there are things that are the same. There are three rules that each has, you know, full risk, some kind of partial risk, and some kind of potentially no risk. Um, one is in descending order, the other is in ascending order. But then there are a lot of differences that are fairly meaningful and that folks might wanna comment on. The, the one thing that I wanna pick up in, in this part is really the difference of the proposed definitions in what I would say the medium category in these value-based rules, which is the, from the CMS side, what they call the meaningful downside financial risk exception. And on the OIG side, it's a substantial downside. Financial risk, like I said, you know, presumably they each have three, this one's in the middle. But I would, um, have people really look at these because the way you measure the risk in either of these is very different. It's not just the number 50% risk versus 60 or 80% risk, but really the way they calculate the, the risk. Um, and so while I think that the OIG and CMS have done a really good job of, of being coordinated in a lot of ways, this could cause some confusion. If you wanna meet both a stark exception and an anti-kickback safe harbor to have to, you're not full risk and you're not no risk, but you're somewhere in the middle, um, you know, folks are really gonna have to look at the way these are structured now that they need both of those, uh, requirements. Uh, meaningful downside risk to a physician from the stark side is, uh, the physician is responsible to pay an entity no less than 25% of the value of the remuneration under value-based arrangement, or is financially responsible to the entity on a prospective basis for the cost of all or defined set of patient care covered by the payer for each patient in the target population. Um, so you've got this 25% rule. It goes back to in, uh, physician incentive plan rules under the stark rules that are already there. But under the kickback statute, the substantial downside, financial risk has four different ways you can meet it. Um, there have to be, you know, there could be a shared savings with a repayment obligation to a payer of at least 40% of shared losses. Um, there can be a repayment obligation to the payer where there's an episode or a bundled payment of at least 20% of any loss. Um, and there's, you know, others, a prospectively paid population payment for a defined subset of the total cost of care of a target patient population. Um, you know, or if you don't have data evidence-based comparable expenditures, or they even give you a fourth way to come within substantial downside financial risk, a partially capitated payment from a payer for a set of items or services for a target patient population where that capitated payment is a discount of at least 60% of the total expected fee for service. So, four different ways to calculate it under oig a couple different ways under cms. So folks are gonna have to carefully pay attention to where they are, which they can meet, and know that they'll have to meet potentially different requirements to fit in both the Stark, um, and the kickback statute. And then the only other thing that I would add is both of them talk about downside financial risk. And I think it would be helpful when the final rules come out for CMS and OIG to really, um, comment on what downside risk is. Bob, you and I have talked a bunch about, right, if it's a bonus, if you have a cap and you can get a bonus if you do quality, is that downside risk? Because if you don't do those things, you don't get the bonus, or would the government consider that only upside risk? And why wouldn't you wanna count that,

Speaker 2:

Right? I I actually think this is an area where, um, some simplicity or, or simplification would be wonderful. Uh, this is too, this is too confusing for, you know, uh, for the average person to, to embrace. And I think oig, uh, in particular here, um, probably made this more complicated than it should be. Uh, at least that's my opinion on it. I think they were trying to think of the various ways in which risk could be assumed. Uh, and, uh, both because they've just, uh, uh, created a different standard from cms. And because they went into all these different variations on a theme, um, made it pretty, a pretty complicated, uh, uh, calculation. The other thing is, I think measure, you know, that, uh, the phy uh, the PIP regs, uh, physician incentive plan regs talk about the amount at risk where you look at total potential payment to a physician. And that should be the way that downside risk is measured. That as you, uh, put money at risk, whether it's in a bonus or whatever, that's downside risk. If you have the potential to earn a hundred dollars and you don't earn it because you fail, that's downside risk in, in my opinion, at least, I'd hope that's the direction that, uh, both of the agencies take.

Speaker 3:

And certainly they don't preclude that right now in the proposed rules. It's just not, but they don't clear how they would think about that at the end of the day.

Speaker 2:

Yeah, I agree. Um, I wanted to move on to the, what I call the third exception, uh, for under the value-based, uh, third, uh, exception safe harbor under cms. Uh, it's the, you know, a value-based arrangement that really has no, uh, risk sharing requirement or threshold. Um, cms, this is a pretty broad, uh, exception and allows for, uh, notably for payment of cash. You know, the hospital or other, um, uh, participants in a value-based enterprise can pay physicians for engaging in value-based activities. Uh, no fair market value requirement. Notably, uh, when you turn to the oig, it's really a care coordination and management, uh, safe harbor. And under that safe harbor, uh, it's limited to an in-kind exchange. So no, you know, you can't write a check. Um, but you can provide services between and among the various, um, uh, folks involved in the delivery of care.

Speaker 3:

And, and certainly I think this is one of those areas where they're showing the difference between, uh, what these two rules are about CMS being, again, as we talked about earlier, that payment rule and the OIG really being that stop gap, they're falling back on the same kind of rules they did on the EHR donation, where you have to, you can't, a, there's no, no cash involved. It all has to be an in-kind, uh, you know, you can be a hospital and put a person in the nursing home to track those patients that may be coming back to you to make sure that they're not readmitted. And then in addition to that, that nursing home would have to pay 15%. They have to have some stake in it, uh, to make sure it's real. So a real difference there. And in one of those places where you may feel comfortable that you get there on the, on the stark side, but what happens on, on a kickback kind of side, um, in other areas, I think you'd wanna be, you know, that there are things that Stark allows that, that the kickback statute just wouldn't, in its exception. One of, um, my favorite examples from these regs is in order to align a physician's practices with a protocol, the regs allow, and the, the exception, the example, allows the hospital to pay physicians$10 for each instance that they order a dual modality screening as opposed to a single modality screening during a two year period to look at the protocol. So that's actual cash that a hospital could pay to a physician to get up to speed with the protocol. But that's for ordering a test, right, for that referral, for that test. And certainly that's not covered under the kickback statute safe harbor. But no, I agree. It

Speaker 2:

Agree

Speaker 3:

It doesn't have a, a purpose.

Speaker 2:

Well, the oig, you know, in all of its value-based, um, exceptions, really is, uh, very focused on this concept of coordination and management of care. Uh, which it talks about being the deliberate organization of patient care activities and sharing information between two participants tailored to improving outcomes of the target patient population, so forth. And I, it is interesting how thematic the OIG is, particularly given that CMS seems to sort of ignore that standard. Uh, they don't really embrace it. Uh, and it's certainly, uh, it, it, there's no definition and it's not a theme within, uh, the either the cms, um, actual regulatory text or in the commentary for, uh, under the stark proposals, which is a distinction that I, I think is maybe noteworthy, but it, I find it a little, a little disconcerting that the two agencies, uh, seem to, to be focusing on different things when it comes to how they view what, what is, uh, you know, value-based.

Speaker 3:

Although the definitions are seemingly very similar in to, in that, in that aspect. Um, maybe we could move on now to another area where I know you and I have gotten a lot of questions when we're having payments to doctors, you know, we always look at what's the fair market value payment? How much should you compensate a physician? And Bob, I'm interested in your thoughts, uh, about can you pay additional compensation to an employed physician who's engaged in these value-based activities? If, if that would take it above what we would traditionally say is fair market value.

Speaker 2:

Uh, I, I think this is an area where, um, there's going to, uh, a lot of ink will be spilled, let's put it that way. It's noteworthy that none of the vbe exceptions include a fair market value requirements. Uh, and we talked about the rationale behind that, and I think that's appropriate, and I, I'm glad that the agencies, um, embrace that, uh, perspective. But we all know that stark and anti kickback aren't the only regulatory requirements where Vera market value is relevant. If you're a nonprofit or a state agency or somewhat, you still need to consider whether or not the arrangement is in, uh, between a physician or between other value-based participants. And the, uh, exempt or state entity is fair market value. So you can't just give it a back of the hand. The other thing is that I would con, uh, submit that, uh, the value-based activity changes the calculus. Um, the premise is that you're paying for value, you are paying for something different, something over and above just the delivery of the services. So my, I would, you know, question the premise of are you really above fair market value when you are paying a physician additional, um, sums or another end, uh, that, uh, for engaging the value-based activity and getting those value-based results. Um, note that the survey data, generally the salary survey data for physicians, MGMA and Sullivan Cutter and the, like, generally doesn't take into account value-based activities. So I think there's room to argue, but here, I'm gonna turn to Mark because at the end of the day, I'm a lawyer. I don't opine as to fair market value. I have to kind of know my way around a bit, but I'm gonna be turning to people like Mark and his firm, and I'm kind of curious what, um, what he has to say on this.

Speaker 1:

Thanks, Bob. Yeah, I might have to, I might have to disagree on, on one aspect of, of your recent commentary. Um, you know, as a firm, we have, we have generally taken a pretty active approach to try and, uh, compile and or collect these value-based payments and reflect those in the total cash compensation that we're reporting in the survey data. I would agree with you, um, you know, how successful we are in that regard. Um, it, it's a bit challenging because these pay practices are changing, they're changing pretty rapidly and, and folks compliance with, uh, survey submissions is a, a different issue altogether. But, but our intent is very much to be capturing that data. And as we see more emphasis put on these other value-based payments, we, we think it's going to be absolutely critical that we can speak to pay practices, you know, what proportion of total cash compensation is production driven, what proportion is coming in through some alternative value-based payment, um, mechanism. So we will be tracking that, we will be reporting it. And, and I do think you're correct in your original statement that I think this changes the calculus a bit. You know, we've, we've historically, um, uh, used fairly bright line standards firm to firm around what we consider to be fair market value. And we may apply those old, um, those old, that old rubric and find that total cash compensation inclusive of a new value-based payment made under one of these exceptions might push us outside of the traditional market norms. And I, I think the introduction of these new quality payments, I think your commentary about what are we really paying for these are, we're, we're paying relative to qualitative performance standards, and therefore it is potentially above and beyond, or it is a separate payment, recognizing a separate distinct service that in effect is not, uh, related to the volume or value of referrals, is a very advantageous fact. So what I think will end up happening is the, the, uh, firms out there that are doing these analyses will, will probably hedge on the conservative side and be including these payments in their fair market value analysis. But I do think we're, we're going to have a little more freedom and a little more flexibility in arguing that there are facts and circumstances that might take us outside of the traditional norms that we've used, um, when comparing physicians to market.

Speaker 3:

This is not gonna be your mother's wus any longer thank<laugh>. Correct.

Speaker 2:

Wait

Speaker 3:

To see what happens, but more changes to come. You know, one of the interesting things with all these, you know, new three new exceptions on either side is, you know, seemingly the CMS models that have come out previously from C M M I that have had waivers as well as the Medicare Shared Savings Program for ACOs that actually wave stark and kickback, et cetera, while those waivers may stay in place for the programs that are there, I think the idea is there's not gonna be these waivers anymore where we might not have had to think about these fair market value issues of how you pay compensation to positions. Cause the rules would've just been waived. It was, if you met those criteria, was fairly clear, you didn't need to consider that for starting kickback purposes anymore. You know, cms, uh, oig interestingly enough, has a, uh, safe harbor that says if you have a CMS sponsored model, uh, and meet very, uh, high level criteria, only a few, that the kickback statute wouldn't be implicated. So you get a safe harbor if you're in a CMS sponsored model. Interestingly enough, there is not the same, um, exception on the CMS Stark side, uh, commentary in the rule says, well, we don't really believe we need, uh, stark exception because you'd be able to fit in one of the three value based exceptions that we've just created. So fit in one of those, you don't need a fourth exception. Um, I don't know your opinion, Bob,

Speaker 2:

It seems, I know

Speaker 3:

If it's a CMS model for CMS to have created a parallel exception to the safe harbor for consistency and ease of those people that are already being governed by those rules in the CMS sponsored model, Bob.

Speaker 2:

Yeah, I think the, there is no way that these three value-based exceptions, uh, that CMS has proposed for Stark are equivalent to the waiver under the MSSP program, for example. That that is, is just completely different. And I think as CMS starts to experiment with different models in different contexts, it will find that these, um, the proposed exceptions are not flexible enough to allow, uh, participants to really do what they need to do under, uh, the various models. So I think that, uh, CMS should follow suit with OIG and say, if we've created a model, you're gonna have, uh, there, uh, and you follow the rules of that model, uh, that you're within an exception. So, uh, seems to me to be, um, a, um, a trap for the un wary perhaps, uh, under some of the, um, uh, the CMS models, um, where the, the stark exceptions will not be adequately flexible. So Julie, I do, I had a question for you about value-based purpose, um, which is, you know, defined by, similarly by both OIG and cms. Um, but let's say take a typical gain sharing program, uh, physician saves the hospital money on a DME implant or, you know, some sort of implant, uh, does that qualify as a value-based purpose?

Speaker 3:

So I would argue that, uh, those kinds of gain sharing plans should qualify as a value-based purpose. You know, you and I have had a lot of discussions on this because of the way it's actually defined in the regulation that specifically talks about cost savings for payers, uh, but doesn't really then say, or hospitals. And, uh, as we know, a lot of the gain sharing payments are savings that hospitals have from, you know, using certain protocols. But, and so that has created some lack of clarity there. But I would suggest that there are a couple of places in the preamble, including one that I think is pretty clear, uh, that talks about value-based arrangements including performance and quality standards, um, that relate to remuneration. And they give an example that says, for example, an arrangement, uh, to share the internal cost savings achieved. If a physician meaningfully participates in a HO hospital's quality and outcomes improvement program and reaches or exceeds predetermined benchmarks for their performance, that would be okay. That was given as a positive example of how this would work. And so I think it's interesting, while the regulation itself would seem to perhaps preclude payment where it's not, um, savings from a payer, but rather the hospital's getting that savings, this example that's in the preamble that talks specifically about what we would normally, uh, call in a, you know, short term we would call it gain sharing, um, seems to be contemplated by CMS in its regulation and given a stamp of approval, but perhaps something that they should make clear in the final rule,

Speaker 2:

It would certainly seem to be, uh, an appropriate clarification of the definition of value-based purpose in, in light of the commentary that you point out. Um, because I do think, think that the definition itself, um, is at best confusing on this point.

Speaker 3:

And if you look back over time, I mean, CMS generally hasn't, uh, had a negative reaction to gain sharing issues. They've tried to put out previous, um, proposed regulations. They've not come out with final, but it wasn't because they thought that they were so abusive. You don't have that language. It's, we didn't really think that we got it right. And we think that you could probably protect in different ways, gain sharing arrangements perhaps already in some of the current exceptions. So to me, CMS has never come out and said, we, we have issues with gain sharing because we think they're abusive, thus we don't want to protect them. Um, it's been,

Speaker 2:

I think that's

Speaker 3:

Right, contrary to that, and they've wanted to do it in some way. They just didn't have, they thought was the appropriate vehicle to or need to do a gain sharing exception. So to me, that background along with this preamble discussion, uh, leads me to believe that they really do intend to protect those things.

Speaker 2:

I think you're right. I hope you're right. Let's put it that way,<laugh>.

Speaker 3:

So Bob, if we transition slightly from the value-based exceptions and look at the other part of the rule that, uh, that CMS did at least, um, they tried to do some technical changes to, to some definitions, and one that sort of bridges the gap between value-based things and changing definitions is some commentary they have about changing the indirect exception and the, and how the risk sharing exception works in that, that I think creates potentially some confusion in their change with respect to how you use the risk sharing exception now, and whether you can, you know, couch it as part of the indirect compensation exception. Do you wanna talk a little bit about that success that we've been having?

Speaker 2:

It, it, I don't know if this was intentional or not, uh, bluntly, but, uh, one of the things they, that CMS has said sort of in commentary, but never really in the reg itself, is that once you have an indirect financial relationship with the three part test and everything else, uh, then the exceptions available are the indirect compensation exception and the global or service-based exception prepaid plan in office hands that sort, well, they now have proposed to put that in the regulatory tax. And this is a, uh, you know, a, uh, the sprint rules, you know, they made a, uh, a sort of big deal at the front that we have the risk sharing exception. We have these other exceptions under Stark, and nothing we're doing in this is designed to limit or take away anything from your ability to use those exceptions. But if it's true that the risk sharing exception can't be used for indirect arrangements, that's a significant limitation. And if you look at the language of the exception itself and the related commentary around the way managed care organization and everything else, and some of the other, uh, key terms are defined, it clearly contemplates indirect relationships and that the risk sharing exception would apply to those. So here's, um, you know, kind of my pitch to CMS to, you know, maybe clean this up, uh, that, you know, if you have an indirect relationship, you can still rely on the risk sharing exception as, um, uh, and that we didn't en intend to narrow it through this rulemaking.

Speaker 3:

I th I think that's right. Um, so as we progress, again, moving away from value-based even further, um, I think one of the, the most welcomed exceptions is exception Z I love the fact that the exception is exception Z, and this is for, um, the ability to pay a physician under the stark exceptions,$3,500 per year, um, with no writing, no signature, no set in advance. Obviously, it still has to be fair market value can't be based on the volume or value of referrals. It has to be commercially reasonable. But this opens up, um, a big area where there are technical, what we would, I would call a technical violation, um, where someone was paid for something, they did the service, it was meaningful, it was necessary. You didn't pay them too much, but you just didn't paper it. Um, and so I think the exception Z is gonna be a really great thing. Go ahead, Bob. I

Speaker 2:

Think, yeah, I'm sorry. Operationally, I think this is gonna be wonderful. You know, the, somebody, you know, the administrator on call realizes that they need, you know, coverage for some particular subspecialty, uh, for whatever reason they have, um, a shortage. They turn to member, their medical staff and say, yes, uh, you know, pay you$500. We really, we don't wanna go on diversion and we have a, a real need, uh, that sort of thing that happens in real time. The ability to get a writing, uh, together in time to make that happen is truly a challenge. And this creates the ability to, to deal with those. And moreover, you know, CMS in the commentary explicitly stated, it creates this sort of grace period when you start something and you jump the gun. Uh, where I'm, I start a relationship where a medical directorship, and I don't have the documentation in place, I haven't reduced it to writing, I don't have a signature and it goes on two or three months. Well, if over those two or three months I paid less than$3,500, uh,$3,500 or less, then I can paper it and the first three months fall under exception Z and the rest of the term can fall under fair market value arrangement exception, or one of the other exceptions that requires a writing, because I had time to get it in place. So I think this really will clear out what I would call the underbrush, you know, the, the silly, oh, we, it was fine. We were paying fair market value, we were doing the right thing, but we just didn't get our act together, um, from a, you know, sort of writing signature and, and, uh, process standpoint.

Speaker 3:

And I think Bob, what's interesting to me is they haven't limited this to emergency situations. I know I have clients that come and they actually have a writing and they have a group that was providing some service to the hospital, and then it was growing great, and they added another service. And then we sit there and we're like, well, is this additional service part of what you specified in the first contract? Or is it really additional and you're paying them additional money, which is what usually happens, but you didn't paper that next bit because it was just sort of organic that the next piece of the service came along and you didn't think to go back and actually paper that. And again, even though that wasn't an emergency situation, up to$3,500, you can pay that amount. So you catch it and you're like, well, how much did we pay so far? Okay, we paid, we paid$4,000, but wait a minute, it's been over four months. We take the 3,500 and you can do this. Now, in the preamble, it specifically says this, you know, you look at the 3,500, you put that aside and you start counting from the$3,501. And now they've also given you 90 days not just to get the signature, but to get a writing in place, which gives you$3,500 plus 90 days to actually then put pen to paper, get it done. Obviously you've had to have the amount already, but it's a, it really will, I think you put it well clear out that underbrush of things where there was really no risk. And I think that's what Stark is trying to do. In, in the preamble, they said they've had voluminous amounts of self-disclosure, most of which needed to be self-disclosed, and most of which had no risk of fraud of, or abuse. Right. And so I think that's really what these rules are trying to address in a, in a very good way.

Speaker 2:

Yeah, I, I agree with you, this combination of exception z the 90 day grace period for writing and signatures, there's a lot of flexibility built in there. And you can think of variations on a theme, on ways that you can, um, you know, use each of those elements. Uh, one question is, you know, the per physician or the$3,500, is it per physician or per group?

Speaker 3:

I don't think they specifically address that. I would advocate that it's per physician, um, not having it said per group, and that it's really each time you have a physician. Having said that, if your arrangement, the financial arrangement is between the group, that may be a different story. So probably more to come on that. Yeah.

Speaker 2:

Uh, the other thing I've heard people talk about is, you know, non-monetary compensation. We have a number of our clients who have their, uh, their compliance programs include a tracking mechanism. I don't think Ray, uh, exception z uh, should trigger that same sort of, uh, infrastructure. Seems to me that exception Z is if, if you know about an arrangement, go ahead and put it in writing because, you know, there, there's no sense just saying, well, it's only, you know, a hundred dollars a month, so, uh, we don't need anything as long as it's fair market value. Well, it may be true. I think you want to save that$3,500 for the ones where you need it. And when you are walking in and know that I'm gonna hire this guy, I'm gonna pay him a hundred,$200 a month to do X or Y, go ahead and put that in writing and don't, don't encourage, or you, I wouldn't, I wouldn't, uh, advise establishing any sort, sort of tracking system around this$3,500 per physician around the exception Z infrastructure.

Speaker 3:

Well, I agree with you that if you have the 90 days and you can set it out in writing, you absolutely should, should do that and save your$3,500 for where that writing exception is not available. I do think it could be helpful in some cases, if you have instances where it is, you know, you're paying a hundred dollars here, a thousand dollars there at the end of the day, there could be some circumstances where you have no idea how much you've paid the physician, and whether you've gone over that limit, because it doesn't have to be$3,500 for one particular kind of service over a year. You could have a dinner that wasn't covered, or you could have a whole bunch of different things, um, and you won't know how much, or you'll have to do a lot of historical digging. That may be difficult. I know some of my clients have difficulty going backwards to figure out, well, did we have a problem? Don't we have a problem? So it might be useful on the front end to set up if, if you're going to use that exception, right? You don't need a non, you know, a a z a$3,500 Z log per se. But if you find that you are going to use that exception that you somehow document it and keep track of it for however much of the$3,500 you've used,

Speaker 2:

That I agree with, I'm, um, that once you've, you know, you have taken advantage of it because, oh, I did this coverage agreement on an emergency basis, so I paid this guy a thousand dollars over the course of, you know, a few days and I didn't document it. Um, uh, so there, there's a thousand dollars in his Z account that makes sense to me. I just don't think that people should, um, should intentionally use this. I, I, it, um, save it for when you need it, is my advice. And if you know what's coming and have time, uh, and, uh, can take advantage of, uh, the other exceptions, definitely do it.

Speaker 3:

Absolutely agree. Absolutely. Well, I think our podcast time may be up. Um, I will turn it back to see if there's any final words. Um,

Speaker 1:

Julie, thanks. I greatly appreciate the time that, that you and Bob put into today's podcast and, and the, the tremendous insights that you've offered. I'm sure many questions will follow. Uh, but with that, we'll, we'll wrap it up and, uh, we'll, we'll talk again soon. Thank you.

Speaker 3:

Thank you.