Contracts and mo us what to use and when
- 1. 1/8/2020 1 www.compliantfqhc.com MOU’s and Contracts-What Do I Need to Know? COMPLIATRIC WEBINAR SERIES Presented by: Jennifer Genua-McDaniel jgenua@genuaconsulting.com Jennifer Genua-McDaniel jgenua@genuaconsulting.com 1 2
- 2. 1/8/2020 2 Presentation not intended to provide legal advice or legal counsel ◦ Seek legal counsel for review of contracts and MOU’s as needed ◦ State specific This presentation is not endorsed by Management Strategists Consulting Group (MSCG) This presentation is not endorsed by Health Resources Services Administration (HRSA) or Bureau of Primary Health Care (BPHC) Not employed by MSCG or BPHC Independent Consultant who is contracted to do Operational Site Visits (OSV)s and Technical Assistance (TA) Understanding contracts/MOU requirements required for health centers Utilizing best practices to improve contracts/MOUs 3 4
- 3. 1/8/2020 3 Two different types Contract-Legally enforceable agreement between two or more parties that creates an obligation to do a service ◦ Enforceable terms ◦ Outlined terms (who, what, where, when, how) MOU-Agreement between two or more parties establishes an important public statement of cooperation, but it does not constitute a legally enforceable obligation. ◦ May outline the terms of an agreement but state that each party’s responsibilities are only enforceable “in the event that the parties’ governing boards decide to enter a joint use agreement.” ◦ Define expectations and responsibilities of each party Key: Focus on whether entities intend to be legally bound by the terms of the agreement HRSA Form 5A Column Descriptors 5 6
- 4. 1/8/2020 4 Contracts/MOUs affect the following: ◦ Chapter 4- Required and Additional Services ◦ Chapter 5-Clinical Staffing ◦ Chapter 7-Coverage for Medical Emergencies during and after hours ◦ Chapter 8-Continuity of Care and Hospital Admitting ◦ Chapter 9-Sliding Fee Discount Program ◦ Chapter 11-Key Management Staff (as applicable) ◦ Chapter 12-Contracts and Subawards ◦ Chapter 13- Conflict of Interest ◦ Chapter 17-Board Authority (as applicable- subrecipients) Determine the need ◦ What can I provide in-house versus what do I need to out-source? ◦ Looking at your service area (duplication of services?) ◦ “Cost-efficient” versus “cost draining” Form 5A ◦ How to provide the service? 7 8
- 5. 1/8/2020 5 How to provide the service? ◦ Health Center Directly (W-2; NHSC) ◦ Health Center Pays (Contract Agreement, 1099) ◦ Health Center Refers (MOU/MOA, no money) Contract Hot Spots ◦ Locums Tenens ◦ Transportation ◦ After Hours ◦ Pharmacy ◦ Tele-health (dependent on mode of delivery) ◦ **Additional services listed on Form 5A, must follow HRSA requirements** Must have’s in a contract (HRSA Requirement) ◦ List of two parties (entities involved) ◦ List of services to be provided (description of services If its auxiliary/enabling services-list services (ex. nutrition) ◦ How the health center will pay for these services? Monthly? Quarterly, will there be an invoice? What is the amount? ◦ How will the service be documented in the patient’s record? Will there be a referral? Will the contractor send treatment plan? Will it be scanned in the system? Will the contractor use the health center’s EHR? Receipt of treatment plan? 9 10
- 6. 1/8/2020 6 ◦ Credentialing & Privileging Assure that contracted providers are credentialed and privileged to see patients Professional Qualifications ◦ “Referral Provider agrees to provide Health Center with assurances that, during the term of this referral agreement, it and, as applicable, its individual healthcare practitioners furnishing the Referral Services to health center patients are and will remain: 1) duly licensed, certified and/or otherwise qualified to provide services hereunder, with appropriate training, education and experience in their particular field; 2) appropriately credentialed and privileged; and 3) eligible to participate in federal health care programs including Medicaid and Medicare” 11 12
- 7. 1/8/2020 7 Site Visit Protocol (SVP), Sliding Fee Discount Program, Element i (Sliding Fee for Column II Services) ◦ Sliding Fee Discount Program (SFDP) Discounts are provided in a manner that meets all Health Center Program requirements (ex. health center applies its own sliding fee discount to amounts owed by eligible patients; contract contains specific sliding fee provisions; contracted services are provided by another health center which applies a sliding fee discount that meets structural requirements ◦ Structural Requirements (patients at or below 100% FPG Full Discount Nominal charge Less than what would be paid by patients in the first class above 100% of FPG Graduation levels between 100-200% of FPG Above 200% of FPG patients not eligible for sliding fee discount ◦ SVP-Sliding Fee Discount Program-Element i 13 14
- 8. 1/8/2020 8 ◦ Monitoring contractor performance? How will you ensure that the contract is being carried out? What documents will be requested? What happens if there is an issue with the service provided? How will it be addressed? ◦ Data reporting expectations and intervals? Will you receive a monthly/quarterly? What data will be provided to know the contract is going well? (ex. Referral tracking tool, invoices paid, number of treatment plans received back in a certain period) ◦ Provisions for record retention and access, audit and property management? Who owns the medical records? In your state how long do you have to keep the records who has access? ◦ List of two parties (entities involved) ◦ List of goods/services and activities to be provided ◦ A process for making, tracking, and managing referrals for these services with the referral provider(s) (ex. process for tracking whether patient presented at the referral provider or the outcomes of the referral visit) ◦ Documentation in the patient record of appropriate follow-up care and information that resulted from these referrals Is there an exchange of record information, are the results in the EHR? Appropriate documentation? 15 16
- 9. 1/8/2020 9 ◦ Credentialing & Privileging ◦ Assure that referring providers are credentialed and privileged to see patients Site Visit Protocol (SVP), Element J (Sliding Fee for Column III Services) 17 18
- 10. 1/8/2020 10 ◦ Sliding Fee Discount Program ◦ If the referral provider has their own “charity program” or sliding fee, attach it to the MOU/MOA E.g. hospitals, other specialty providers, surgery centers ◦ Monitoring contractor performance? How will you ensure that the contract is being carried out? What documents will be requested? What happens if there is an issue with the service provided? How will it be addressed? ◦ Data reporting expectations and intervals? Will you receive a monthly/quarterly? What data will be provided to know the contract is going well? (ex. Referral tracking tool, invoices paid, number of treatment plans received back in a certain period) ◦ Provisions for record retention and access, audit and property management? Who owns the medical records? How long do you have to keep the records who has access? 19 20
- 11. 1/8/2020 11 Exclusions/Debarment (Federal Programs, Medicare/Medicaid etc.) ◦ Unable to utilize federal dollars/program income to pay for services ◦ Clause in the contract that there would be notification/termination if entity is found on exclusion/debarment list from OIG ◦ https://exclusions.oig.hhs.gov/ Best practice: Search upon new contract and then quarterly? For all employees, contractors, vendors, agents etc. State specific as frequency Anti-Trust laws (confer with legal) ◦ Federal and State laws that regulate the way organizations conduct business Ensures competition exists in an open and fair way ◦ Important for health centers to understand when completing construction projects or purchasing items (Price Fixing, Competition in Marketplace, Anti-poaching agreements) Two FQHCS agree on prices to depress market and control it, so there is no competition and patients are unable to “shop” around Three FQHCs in the area decide not to poach staff or providers 21 22
- 12. 1/8/2020 12 Anti-Kickback & Anti-Stark laws (confer with legal) ◦ Prohibits the knowing and willful payment of "remuneration" to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients) ◦ Anti-Kickback (non-clinician) ◦ Anti-Stark (clinician which also includes dentists) Anti-Kickback & Anti-Stark laws (confer with legal) ◦ E.g. Jenn gets paid $10 per patient that she sends to her favorite FQHC For every CBC that Dr. Smith refers to lab company, Dr. Smith gets a paid trip to Bermuda Dr. Smith owns a private practice with 40% Commercial and 30% Medicare. FQHC tells Dr. Smith that they’ll pay a salary of $450,000 which is way over market salary for his specialty (Gerontologist/FP market $240,000) and he agrees to bring ALL patients with him 23 24
- 13. 1/8/2020 13 Evergreen Contracts ◦ Contracts or agreements that continue with no expiration Not a best practice Have term clauses if needed with specific “outs” Performance Unreasonable price increases Loss of funding Confidential Information ◦ Especially when dealing with patient records or sensitive records ◦ Do not want health center “business” all over town ◦ Ensure clause that contractor etc. will keep matters confidential, not disclose trade secrets ◦ Ensure clause of what will happen if confidentiality is broken (what are the consequences) 25 26
- 14. 1/8/2020 14 Confidential Information Conflict of Interest ◦ HRSA Program Requirement 27 28
- 15. 1/8/2020 15 Consult with legal counsel on all contractual/MOU legal language Standardize if possible so you’ll have all required information required by HRSA and other Federal/State laws Review contracts on a yearly basis and keep a record of when they expire, and if services change) Keep drafts/changes and number them, so you know what has changed Make sure addendums are clear. If addendums are added, provide the entire contract (including addendums to ensure compliance with site visits) Thoughts on this contract language? Does it meet the Sliding Fee Discount Program Language? What other considerations should be considered? 29 30
- 16. 1/8/2020 16 What is missing from this part of the contract? Are there any other considerations? 31 32
- 17. 1/8/2020 17 HRSA Form 5A Column Descriptors HRSA Program Compliance Manual Change Solutions-Contracts and MOUs OIG Compliance Jennifer Genua-McDaniel, BA (Hons), CHCEF jgenua@genuaconsulting.com 33 34