OIG advisory opinion provides cautionary story about use of hospital-employed NPs | Manatt, Phelps & Phillips, LLP | Jobi Cool

On December 19, 2022, the U.S. Division of Well being and Human Companies’ Workplace of Inspector Basic (OIG) issued an advisory opinion blessing the usage of hospital-based nurses (NPs) to carry out sure capabilities sometimes carried out by a affected person’s attending doctor. (settlement). Advisory opinion no. 22-20 (opinion) gives perception into the OIG’s views on a typical compliance concern that has confirmed difficult for hospitals and well being programs battling how you can most successfully make the most of NPs. Regardless of the favorable conclusion, the opinion highlights the possibly vital dangers of fraud and abuse related to permitting hospital-employed NPs to supply providers that profit or mitigate the legal responsibility of unbiased physicians.

Overview of the Settlement

The opinion issues an acute care hospital (hospital) that makes use of its employed NPs to help in offering sure care to sufferers of physicians who’ve elected to take part within the association. The settlement applies primarily to sufferers who’re hospitalized or underneath remark in two designated medical items, neither of which is a surgical unit or a particular care unit. In response to the hospital, the collaborating docs are largely major care docs. Every year, the hospital sends an academic letter to all physicians on its medical employees — each these employed by hospital associates and people in unbiased follow — informing them of the settlement. Physicians are usually not focused or chosen to take part within the Settlement primarily based on their quantity or worth of anticipated or previous referrals.

The duties carried out by NPs are fairly broad and in some instances would in any other case be carried out by attending physicians. Such duties embrace: (i) initiating care plans; (ii) implementation of applicable care protocols established by the hospital; iii) rounding; (iv) responding to laboratory or imaging research; (v) coping with speedy adjustments within the affected person’s situation; (vi) affected person and household schooling and help; (vii) teaching, educating and supporting nurses on the ward; viii) supervision and help of high quality enchancment tasks; and (ix) discharge planning. The hospital confirmed to the OIG that every one duties carried out by NPs are carried out in collaboration with the attending doctor, who should nonetheless make each day contact and preserve the identical stage of accountability for affected person care.

The hospital additionally confirmed that it prohibits physicians collaborating within the association from billing for NP providers. Physicians should carry out their very own affected person assessments and create their very own documentation in an effort to invoice third-party payers and can’t depend on NP documentation to take action. For this function, not one of the providers in query are thought of cut up or shared visits underneath Medicare pointers. Lastly, the hospital confirmed that it pays for all NP providers and doesn’t individually invoice any payer, together with federal well being care applications, for affected person care providers offered by NPs.

OIG’s rationale

First, the OIG discovered that the settlement concerned the federal anti-kickback statute (AKS) as a result of it concerned the hospital’s provision of remuneration within the type of NP providers to collaborating physicians, which may result in their referral to federal healthcare. enterprise program for the hospital. Though hospital-employed NPs don’t carry out any providers for which collaborating physicians can generate earnings, NPs carry out quite a lot of duties that physicians would in any other case be required to carry out as a part of their affected person care obligations. The OIG famous that the Settlement relieves collaborating physicians of the necessity to spend time and assets performing the capabilities assigned to the NP, probably releasing up that capability for the doctor to carry out different billable providers. The OIG emphasised that NP providers could be particularly worthwhile in instances the place a collaborating doctor can invoice Medicare for just one evaluation and administration service per day, no matter what number of occasions the affected person is seen.

After readily concluding that the Settlement resulted within the provision of rewards to the collaborating physicians, the OIG additional decided that the Settlement nonetheless offered a minimal danger of fraud and abuse underneath the AKS, and due to this fact the OIG wouldn’t impose administrative sanctions. Probably the most vital elements relied upon by the OIG embrace:

  • The settlement applies completely to 2 non-surgical, non-specialized items on one of many hospital’s campuses and consists of largely major care physicians. Importantly, the OIG particularly famous that it would attain a distinct conclusion if NP providers had been offered in surgical or specialty items, the place specialty physicians sometimes present extra profitable referrals.
  • The association is distinguished from “suspect preparations” by which hospitals permit their employed NPs to supply free providers on behalf of physicians, for which the physicians can then invoice third-party payers. Right here, NP procedures are carried out in cooperation with the attending doctor, who remains to be obliged to make each day rounds and in any other case actively participates within the care of the affected person. Taking part physicians are additionally solely allowed to invoice for providers if they’ve documentation to help work carried out in individual.
  • The deal seems unlikely to extend prices for federal well being care applications as a result of the hospital has licensed that it doesn’t invoice any payer for NP providers — though such providers would probably be individually reimbursed.
  • Having NPs obtainable on the 2 medical items in query may assist guarantee an enough stage of look after sufferers, most or all of whom require steady consideration all through the day and real-time responses to adjustments of their situation. Within the OIG’s view, providers carried out by NPs are adequately designed to permit sufferers to be evaluated extra shortly and effectively in order that they will obtain diagnoses and coverings as quickly as doable.

Sensible takeaway meals

Hospitals and well being programs ought to take this place into consideration when deciding how their employed superior follow suppliers (APPs) can be used inside hospital providers, notably when APPs work with unbiased physicians. It ought to be emphasised that the OIG’s favorable conclusion underneath the AKS relied on comparatively slender circumstances (ie, provision of non-billable NP providers to sufferers of major care physicians). The overview says that preparations that result in APP help for specialists — particularly cardiologists, orthopedists, crucial care physicians and others who’re ready to ship high-dollar procedures to the hospital — could also be underneath nearer scrutiny for fraud and abuse. opinion. The opinion additional emphasizes the significance of guaranteeing that the place hospital-employed APPs carry out providers for sufferers of an unbiased doctor, the physicians stay actively concerned in and materially answerable for the affected person’s care and are permitted to invoice just for their personally carried out and documented providers. .

Maybe probably the most notable facet of the opinion is the OIG’s sweeping conclusion that the efficiency of affected person care providers by NPs can qualify as “remuneration.” even when the doctor doesn’t invoice the NP’s work, just because it frees up the physician’s time to focus on different actions. The OIG has not taken a place on the Stark Legislation settlement and isn’t approved to take action. Nonetheless, the truth that APP providers of this nature can represent a reward has profound implications for technical compliance with Stark Legislation. That’s, if the supply of APP providers to a affected person by an unbiased doctor employed by a hospital had been to be deemed to create a doctor compensation association, that association must meet a legitimate Stark Legislation exception. This may be tough within the absence of a written settlement whereby the unbiased doctor pays the hospital a good market worth charge for an affordable allocation of APP time.

Because the acknowledged scope of follow and function of the APP care staff continues to broaden, and as APPs achieve the flexibility to follow independently in an rising variety of states, the enforcement dangers related to the usage of hospital-employed APPs will proceed to develop. Hospitals and well being programs ought to due to this fact rigorously consider how hospital-employed APPs are used inside their providers with this opinion in thoughts and implement a transparent delineation of duties to mitigate any potential dangers underneath the AKS and Stark Legislation. Hospitals also needs to make sure that dependable auditing and monitoring mechanisms are in place to keep away from any inadvertent “creeping” of the roles of hospital-employed APPs over time when such APPs work alongside unbiased physicians.

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