My Birthday Should Be a Holiday

March 8th is a special day in the Smith family household. We celebrate two out of three birthdays on this day, mine and Katelin’s. Eric often jokes about how this makes things easier, as he only has to remember one date. In truth, trying to make the two most important people in your life feel equally special on the same day is a daunting task, particularly when one of them is a small child and the other is her mother.  He never disappointed either one of us.

Birthday with Kakey

Although Katelin has learned to appreciate our shared day, when she was a child, she did not give it much thought.  More often than not during her childhood,  we would have two completely separate birthday celebrations.  She was busy planning her own birthday party: who should she invite, where should it be, what would the theme be. You know you are doing something right as a parent if your child is allowed to be self-centered.

Now that she has learned to adult, she thinks it is great and has embraced the specialness of sharing her birthday with her mother.  We send each other birthday “gifs” and have at least one joint celebration. This year Eric booked us a Signature Escape at the Langham Hotel’s Chuan Spa: 5 Wu Xing Elements In-One.  It sounds heavenly and just what two busy women need to relax and unwind.

Our friends, family and acquaintances will usually exclaim “How neat” or “What a blessing” when they are told (or remember) that we share the same birthday.  So how rare is it? Ken Thompson, a researcher at Millsaps College in Jackson, Mississippi calculated the odds of a baby being born on the same day as the baby’s mother and father (this actually happened in 2016):

“There are lots of variables at play,” he said. “To make it as simple as possible, let’s say that the distribution of birthdays throughout the year is uniform, that people are equally likely to be born on any given day of the year. This isn’t necessarily a true assumption, but it makes the interpretation much easier. I don’t know what the true distribution would be — babies are not likely to be conceived uniformly throughout the year — and let’s ignore leap years, which brings another level of complexity.”

“Given these ideal situations, the probability that a person is born on any given day of the year is 1/365, regardless of the day. The probability of being born on Dec. 18 is 1/365 for the mother, the father, and the son.”

“The probability of three independent events would be the product of the three probabilities. Thus, the probability of mom born on Dec. 18 and the probability of dad born on Dec. 18 and the probability of their son being born on Dec. 18 is (1/365)(1/365)(1/365), which is 0.000000021.”

The odds Katelin would be born on my birthday are 1/365, since I have already been born, and my birthday is known to be March 8.  These odds are a lot better than claiming the Power Ball jackpot (1/292 million) or being struck by lightening some day this year (1/700,000), but it’s still a pretty special occurence.

March 8 is also International Women’s Day  How perfect is that? Women from all over the world celebrating their womanhood and empowerment on our special day.  International Women’s Day has been celebrated for over 100 years. It began as a women’s suffrage and workers’ rights movement, and is even credited with starting the Russian revolution. Although originally celebrated primarily in Socialist and Communist countries, the event has continued to grow and is now recognized in over 100 countries.  Afghanistan, Angola, Armenia, Azerbaijan, Belarus, Burkina Faso, Cambodia, China, Cuba, Georgia, Guinea-Bissau, Eritrea, Kazakhstan, Kyrgyzstan, Laos, Madagascar, Moldova, Mongolia, Nepal, Russia, Tajikistan, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam, and Zambia have declared March 8 an official non-working holiday.

The United States does not officially recognize March 8 as International Women’s Day, not even as a working holiday. Maxine Waters introduced a resolution in 1994, but the resolution did not get an up or down vote. It is time we fixed this oversight.

This year women were protesting all over the world on March 8, and more people were talking about it because of the #MeToo movement.  Those of us who thought the battle was won, are waking up to the realization that women have a long way to go to achieve equality and be fully empowered.  #MeToo has changed the nature of the conversation, but even more importantly, it has increased our awareness of where the lines are currently being drawn and where they should be drawn. Real and permanent progress will come when women have more than a token seat at the table, and have the power to ensure our perspective is heard and the issues we care about are addressed.

I believe my daughter’s generation will make this happen and in the future, our special day will be celebrated as International Women’s Day in the United States.  Why not make it a non-working holiday like those other countries.  We need a holiday in March!

My Personal News Feed

My primary source of news these days is my Twitter feed. I joined the site later than most, and avoided the temptation to follow my friends and family so I could keep track of what they are having for dinner. I mostly follow news sources, which means Twitter is like my own personal news feed. (Click the image below to follow me.)

I follow and click through to lots of articles on Vox and Politico. Two recent articles on these sites deal with an issue I discussed in a recent article for AHLA Connections: how should the changing U.S. demographics change how health care companies operate? The main point of my article was health care providers need to embrace cultural competence to be competitive in the future.  If we are going to design our health care systems to meet the needs of our patients, we need to be able to communicate with our patients and understand how their culture affects their health care needs.

Ezra Klein from Vox discusses how the changing U.S. demographics are changing the nation’s media business. The old media was dominated by white men, and the stories they told were those of interest to white men. The new media is more diverse and the stories that go viral on social media sites are those that touch on a reader’s core identity, including her race, ethnicity and sexual orientation:

The internet has set off an explosion of media outlets, so more kinds of stories are being tried. There’s a vast increase in reader data, so it’s clearer which stories get read. And audiences now have the power to send stories viral, so there’s more reward to writing about issues that affect people who may not already be part of your core audience. There are dark sides to the chase for viral traffic, of course, but on the whole, I think this is a pretty positive development in American journalism: it’s helping us realize we were systematically giving too little attention to stories that weren’t of interest to the kinds of people who dominated newsrooms.

Writing for Politico, Doug Sosnick argues the present day is a “hinge moment” due to the changing U.S. demographics and the 2016 presidential election will be a bridge from the past elections, when a majority of voters were white, to future elections when the full effects of the new demographics will emerge as a factor:

As we begin to settle in to a post-industrial, interconnected digital world in an emergent multi-ethnic society, the 2016 presidential campaign is likely to close out a long era in American politics—a shift that is going to change which voters matter and which states matter.

Sosnick concludes:

While the 2016 presidential election is likely to reflect the last remnants of this bygone era, the candidate running for president in 2016 who best understands how the country is changing and runs a campaign based on the America of the future rather than the America of the past is most likely to be our 45th president.

There are probably numerous other articles that make similar points. The smart money is on organizations that compete around the innovations required to adapt to the future U.S. demographics, not its past.

Importance of Cultural Competence in Health Care

Promoting diversity and inclusion in the health care setting is not just about reducing health care disparities. A number of health care systems, health plans, national associations, and states believe accounting for the diversity of patients and ensuring your board, clinicians, managers, and staff reflect, understand and address this diversity will improve health care outcomes, increase patient satisfaction, and increase market share.

Health care organizations must effectively interact with their patients who come from different cultural and linguistic backgrounds. To address the lack of clear guidance on how to account for diversity in providing services, the U.S. Department of Health and Human Services, Office of Minority Health developed the National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health and Health Care in 2000. The CLAS Standards were enhanced in 2013 after a public comment period, a systematic literature review and ongoing consultations with leaders and experts from the health care community. The enhanced CLAS Standards are designed to broaden the reach of cultural and linguistic competency at every point of contact in the health care continuum.

Although adherence to the CLAS standards is voluntary, health care organizations should expect accreditation agencies to evaluate their efforts to address these issues. For example, The Joint Commission has established accreditation standards that directly or indirectly measure an organization’s ability to provide culturally and linguistically appropriate services, particularly in the areas of improved communication, cultural competence, patient-centered care, and the provision of language-assistance efforts.

The New England Journal of Medicine is encouraging further research into the impacts of adopting the CLAS standards. Both scientific research and anecdotal information from adopters can help organizations weigh practice options and make business decisions.

Iowa Lawyer

I was admitted as an attorney in Iowa on December 20. Before that date, I could not hold myself out as an attorney authorized to practice law in Iowa. After December 20, I can claim that distinction.

Iowa requires that every attorney admitted to practice law be sworn in by a Justice of the Iowa Supreme Court, which is equivalent to the Court of Appeals in New York State. This means that 30 seconds after being admitted as an attorney in Iowa, I was shaking hands with a Justice from its highest court. Cool.

The three of us who were sworn in on December 20 had the honor and privilege of having Justice Brent R. Appel administer the oath. He took the time to explain why he thought the tradition of having Supreme Court Justices administer the oath had merit, and why it should continue. He stressed the importance of civility, public service and professionalism. Eric and Katelin bore witness to the ceremony and were duly impressed by his humility and sense of honor.

Below is the oath I swore to uphold.

I swear or affirm:

As an officer of the Court serving in the administration of justice, I will:

  • Support the Constitution of the United States and of the State of Iowa
  • Perform to the utmost of my abilities and education
  • Maintain the respect due to the Courts and my colleagues
  • Faithfully and ethically discharge the duties required of Iowa lawyers

As a zealous advocate and counselor for my clients, I will:

  • Strive to be worthy of trust and respect
  • Counsel clients to maintain only those disputes supported by law and the legal process
  • Use only those means that are consistent with justice
  • Maintain the confidences of my clients as required by law
  • Support the cause of the defenseless or oppressed, pro bono publico

As a member of the legal community, I will:

  • Strive to represent the legal profession as one of justice, honor, civility and service.

I hope I can live up to these high words.

Detroit Medical Center’s Settlement Agreement

Before it was acquired by Vanguard Health Systems, Detroit Medical Center (DMC) entered into a Settlement Agreement with the US Department of Justice (US DOJ) and the US Department of Health and Human Services, Office of the Inspector General (OIG) to resolve potential violations of federal law as a result of entering into improper financial relationships with referring physicians. DMC agreed to pay $30 million in exchange for a release from liability under the False Claims Act, the Civil Monetary Penalties Law (which authorizes civil penalties for violations of the anti-kickback statute), the Program Fraud Civil Remedies Act, and the civil money penalties under the Physician Self-Referral (Stark) Law.

DMC discovered the improper relationships through the due diligence process. The improper relationships included so-called “technical violations” of Stark, such as the failure to have a written agreement in place that met the requirements of a Stark exception. It also included more substantive violations that may have raised a colorable allegation of an anti-kickback violation, such as providing business courtesies to physicians and paying higher than fair market value compensation.

Although it attempted to use the new CMS Voluntary Self-Referral Disclosure Protocol, CMS encouraged the hospital to work through US DOJ after DMC advised that they wanted to settle the matter within four to six weeks so they could close on the acquisition.

It is interesting to note that CMS was not a party to the settlement agreement. Further, the agreement does not resolve DMC’s obligation to repay Medicare for any claims that it submitted in violation of the Stark law, only the civil penalties that would be assessed for such violations. Such repayments are required under 42 CFR §411.353(d), and arguably, the statute itself, although the statute addresses only the obligation to refund payments to individuals.

CMS is authorized to compromise the amount due and owing for violations of the Stark law, including the repayment obligation, when the provider makes a submission under the Self-Referral Disclosure Protocol. Hopefully, in the future, CMS will also exercise this authority if the provider enters into a settlement agreement with US DOJ or the OIG.

Medicare Hospital Value-Based Purchasing Program

The Centers for Medicare & Medicaid Services published a proposed rule on January 13, 2011 outlining the proposed Hospital Value-Based Purchasing Program(Hospital VBP Program) mandated by Section 3001(a) of the Patient Protection and Affordable Care Act (PPACA).

Although the Hospital VBP Program is not effective until October 1, 2012, Medicare hospitals must act now to ensure that they are eligible for incentive payments under the program as the initial performance period begins July 1, 2011.


CMS is required to establish a Hospital VBP Program that provides meaningful incentives to improve the quality of the care that Medicare hospitals provide. The program must be in place by Fiscal Year 2013 (October 1, 2012). The incentive payments are funded by a one percent reduction in hospital DRG payments beginning in Fiscal Year 2013.

CMS views the Hospital VBP program as a natural outgrowth to the collection of hospital quality data that was originally mandated in the Medicare Prescription Drug Improvement and Modernization Act of 2003, as modified by the Deficit Reduction Act of 2005. This program is known as the Medicare Hospital Inpatient Quality Reporting Program (Hospital IQR Program).

Proposed Measures

PPACA requires that the proposed measures for the Hospital VBP Program be measures that are currently used in the Hospital IQR Program. CMS has adopted 45 measures in the Hospital IQR program. Of these measures, 27 are chart-abstracted process of care measures that assess the quality of care furnished by hospitals in connection with treatment of acute myocardial infarction, heart failure, pneumonia, and surgical care improvement. Fifteen of the measures are claims-based measures that assess the quality of care furnished by hospitals as measured by 30-day mortality and 30-day readmission rates. Three of the measures are structural measures that assess hospital participation in cardiac surgery, stroke care, and nursing sensitive care systemic databases. The final measure is the Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) survey.

CMS may not select readmission measures or any measures that have been included in the Hospital IQR program for less than one year prior to the beginning of the performance period

Applying this criteria, there are twenty-nine initial eligible measures for the Fiscal Year 2013 Hospital VBP Program. Initially, CMS proposes to include only seventeen of these twenty-nine measures. It excluded measures that they consider to be “topped out,” meaning all but a few hospitals have achieved a similar high level of performance on them. They also excluded some measures that they intend to retire in the future.

CMS is proposing to add measures to the Hospital VBP Program in the future by implementing a “sub-regulatory process”. Under this process, CMS can add any measure to the Hospital VBP Program if that measure is adopted under the Hospital IQR Program and has been included on the Hospital Compare Website for at least one year. The performance period for new measures would start exactly one year after the date these measures are publicly posted on the Hospital Compare Website. There is some question whether this sub-regulatory process meets the requirements of the Administrative Procedures Act.

Proposed Performance Period

CMS is proposing a three quarter performance period from July 1, 2011 through March 31, 2012 for the clinical process of care and HCAHPS measures. The hospitals performance on these measures will be compared to a three quarter baseline period of July 1, 2009 through March 31, 2010. For the outcome, claims-based measures, CMS is proposing to use an eighteen month performance period from July 1, 2011 to December 31, 2012. The baseline period would be July 1, 2008 to December 31, 2009.

Proposed Performance Standards

PPACA requires that the performance standards include levels of achievement and improvement and must be established and announced not later than sixty days prior to the beginning of the performance period. CMS is proposing to set the achievement performance standard for each proposed measure at the median (50thpercentile) of hospital performance during the relevant baseline period (either July 1, 2009 through March 31, 2010 or July 1, 2008 to December 31, 2009). Hospitals would receive achievement points only if they exceed the achievement performance standard and could increase their achievement score if they receive a higher level of performance. The improvement standard would be based on each specific hospital’s performance on the measure during the performance period as compared to the baseline period.

Expected Impact on Payments

CMS anticipates that the percent increase in payments to a hospital participating in the Hospital VBP Program will range from 0.0236% for the lowest scoring hospital to 1.817% for the highest scoring hospital. This means that when the one percent reduction in hospital DRG payments is taken into account, roughly one-half of the participating hospitals will receive a net increase of payments and one-half will receive a net decrease in payments. No participating hospital will receive more than a net one percent increase or decrease in payments.

CMS Guidance on the Stark Self-Referral Disclosure Protocol

On November 19, 2010, the American Health Lawyers Association sponsored a Webinar entitled “The New Reality of Stark Self-Disclosures, What to Do and Not Do”.

The Presenters included Troy Barsky, Esq. and Roy Albert, Esq. from the Centers for Medicare and Medicaid Services. Mr. Barsky is the Director, Division of Technical Payment Policy and Mr. Albert is in the Financial Services Group, Office of Financial Management.

Mr. Barsky and Mr. Albert made the following points regarding the Stark Self-Referral Disclosure Protocol (SRDP):

• Prior to the enactment of Section 6409 of the Patient Protection and Affordable Care Act (PPACA), CMS was not authorized to reduce amounts due and owing as a result of a violation of the Stark statute. The inclusion of this provision in PPACA is essential to the Stark self-disclosure process because without this authority an entity has no incentive to self-disclose.
• CMS essentially adopted the approach taken by the HHS Office of Inspector General in accepting self-disclosures under the anti-kickback statute.
• The purpose of the SRDP is to resolve actual and potential violations of the law and not to provide a process to obtain an opinion on whether a particular factual situation constitutes a violation. Therefore, if a disclosure is made under the protocol, CMS will assume that it constitutes a violation. A submission that attempts to argue that a particular arrangement did not violate the statute will be rejected.
• If a submission is rejected, CMS will be entitled to reopen the claims submitted in violation of the statute from the date of the disclosure.
• CMS and OIG will know whether there are simultaneous disclosures of the same conduct. If a submission is made under the SRDP, CMS will assume it did not fall within the Department of Justice or OIG jurisdiction.
• The submission should not include protected health information (PHI). If the submitter believes it is necessary to include PHI, the information should be segregated and the submitter should let CMS know that PHI is included.
• Submissions must be made electronically. If the submission constitutes a large PDF file, the PDF files should be broken up into the cover memo and the exhibits.
• Submitters should expect a response immediately indicating the submission has been received. It is the receipt of this automated e-mail that stops the sixty day clock on the obligation to refund any over payments. CMS expects to review each submission within two to three weeks and advise whether the submission has been accepted, rejected or whether additional information is required. In most cases, CMS expects to request additional information.
• CMS is considering whether it needs to promulgate frequently asked questions on its website regarding the SRDP.
• CMS is not providing any specific guidance on how the submissions will be resolved. The only assurances they will provide are that they will strive to be reasonable and efficient and will evaluate each submission on a case by case basis.
• The financial analysis should include the total amount actually or potentially due and owing to CMS. This would include any payments made by Medicare fee for service for a designated health service that was furnished pursuant to a prohibited referral. The submission should be itemized by year. If the submitter is estimating the amount due and owing, the description of the methodology used should be provided.
• The Office of Financial Management (OFM) has the responsibility to determine whether the amount due and owing should be reduced.
• The SRDP discusses the factors that OFM will use to determine whether to reduce the amount due and owing. The most important factor is the nature and extent of the improper or illegal practice. Some of the sub-factors OFM will consider are whether the arrangement was commercially reasonable, whether the compensation paid was fair market value, whether the arrangement took volume or value of referrals into account, whether the entity has a history of program abuse, whether the payments were set in advance, whether the entity has a pre-existing compliance program and the strength of the program, the length and pervasiveness of non-compliance in relation to the size of the disclosing entity, and the steps taken to correct the problems causing the non-compliance. Ideally, the steps would be taken before the disclosure is submitted, but must come before settlement.
• The additional factors that OFM will consider are the timeliness of the self-disclosure, the cooperation in providing additional information, litigation risks and the financial position of the disclosing party. The definition of litigation risk is found at 42 CFR § 401.613. Under this Section, CMS may compromise a claim if it determines that it would be difficult to prevail in a case before a court of law as a result of the legal issues involved or inability of the parties to agree to the facts of the case. The amount that CMS accepts as a compromise under this provision will reflect; (i) the likelihood that CMS would have prevailed on the legal questions involved; (ii) whether and to what extent CMS would have obtained a full or partial recovery of judgment, depending on the availability of witnesses, or other evidentiary support for CMS’ claim; and (iii) the amount of court costs that would be assessed to CMS.
• CMS will also look at the financial position of disclosing entity. CMS expects to look at the ability to pay in only limited circumstances. It would be a factor if the disclosing entity argued that it could not pay the amount the amount of the penalty that CMS believed was appropriate to assess.
• Under Section 6409(c) of PPACA, CMS must submit a report to Congress no later than March 23, 2012, which addresses the implementation of the SRDP. The report shall include the number of health care providers/suppliers making disclosures; the amount collected pursuant to the SRDP; the types of violations reported under the SRDP and such other information as may be necessary to evaluate the impact of Section 6409 of the PPACA.
• CMS has not determined yet whether it will make settlements under the SRDP available to the public. The OIG has made settlement terms available to the public.
• CMS has received approximately thirty submissions, some prior to the date that the SRDP was promulgated. The size of the submission so far has varied from one or two violations to fifty to one hundred financial relationships. All of the proposed violations relate to compensation arrangements and not ownership interests. The potential violations disclosed include technical violations and lack of fair market value and commercial reasonableness.
• In the case of a technical violation where the parties continue to perform under an expired contact as an example, the starting point for the financial analysis is the total amount billed to Medicare fee for service for designated health services and not the total compensation paid under the arrangement. If CMS agrees that the violation is solely related to signature requirements and not a more substantive requirement, CMS expects to compromise the amount due and owing significantly. The analysis will begin, however with the overpayment amount.
• The SRDP only applies to Medicare payments and not to Medicaid payments, although the federal Stark law does apply to the federal government’s share of the Medicaid payments. If the payor is a Medicare Advantage Plan, there is an exception for such arrangements that should apply in those cases.