“Let’s Talk Compliance”: Hot Topics in Compliance

On January 19, 2024, as part of the 6th Annual “Let’s Talk Compliance” series, Foley partner Jana Kolarik and PYA principal Angie Caldwell welcomed Matt Vogelien, Division Corporate Responsibility Officer, Central Florida Division of AdventHealth, and Valerie Cloud, Chief Compliance Officer of Summa Health, to a panel discussion on compliance hot topics. The recording and slides from this session (and other sessions that were part of the series) can be found here.

The panelists focused on four discussion topics – (1) the health care landscape around artificial intelligence (AI), (2) practical recommendations for incorporating the Office of Inspector General (OIG) General Compliance Program Guidance (GCPG), (3) compliance considerations around advanced practice provider (APP) and physician collaboration, and (4) physician compensation challenges in analyzing physician productivity, subsidy arrangements, and call pay.

The following provides key insights from each of the four discussion topics.

(1) The Health Care Landscape Around AI.

• Vogelien and Cloud noted that as it relates to AI policy, governance, and controls, health care organizations are in various stages of maturity.
• Vogelien noted the AI health care landscape is moving fast, with rapid expansion of technology offerings, and he mentioned policy and governance frameworks coming from numerous sources. As one of AdventHealth’s clinical leaders put it, “We need to balance innovation with being responsible.” Vogelien emphasized the need to evaluate workflows that can be improved or problems that can be solved and then explore whether there is an AI tool to help achieve that goal, not just implementing the newest and coolest thing.
• Vogelien noted that the best first steps are to make sure AI is incorporated in your organization’s overall enterprise risk management framework and identify an interdisciplinary leadership group tasked with monitoring ongoing policy and regulatory developments, tracking AI strategy, activities, and tools, and shaping the organization’s AI governance and policy. This may include Legal, Compliance, IT, Risk, and Clinical leadership.
• Cloud agreed that the landscape of AI in health care is rapidly evolving, presenting both opportunities and challenges. Organizations must critically evaluate AI solutions to ensure alignment with their specific needs and understand the potential impact on workflows and patient care. While the integration of AI holds great promise, she noted that AI necessitates a thoughtful approach to navigating challenges related to privacy, ethics, patient safety, federal and state regulations, and education. Achieving the full potential of AI in improving patient outcomes and healthcare delivery requires a collaborative environment involving healthcare professionals, technology developers, and policymakers.
• Together, the panelists agreed that each organization’s approach to the incorporation of AI in its operation will vary in type, pace, and scope based on the size and needs of the organization. Governance surrounding such incorporation will be important for compliance as AI evolves.

(2) Practical Considerations for Incorporating the GCPG.

• Cloud discussed how it is crucial to recognize that the GCPG is not a one-size-fits-all solution or a one-stop-shop. Each organization should tailor its approach to align with its unique structure and specific risks. Flexibility and adaptability are key, as compliance frameworks require customization to address the intricacies of the organization’s compliance landscape.
• Cloud recommends sharing key elements with various committees and stakeholders, emphasizing the importance of continually evaluating and evolving your compliance program alongside the organization’s growth. It is particularly insightful to establish channels for feedback from employees and stakeholders regarding the effectiveness of the compliance program. This ensures that the compliance strategy remains responsive to the practical challenges and dynamics within the organization. Regular assessments of the compliance program are essential to identify areas for improvement and maintain alignment with the GCPG.
• Cloud also noted that fostering connections with other professionals can be beneficial – creating a network of professionals allows for engagement and the exchange of ideas, enabling continuous learning and improvement in compliance practices. This collaborative approach enhances the organization’s ability to stay informed about best practices, industry trends, and potential challenges, ultimately contributing to the overall effectiveness of the compliance program.
• Vogelien commented that the GCPG includes a number of helpful updates and recommendations that can inform an assessment of current state and considerations for compliance program improvements.
• In describing the GCPG, Vogelien heard a few compliance professionals say, “it’s really a lot of the same stuff in a different format.” Vogelien recommends not falling into that trap. There are many good GCPG summaries available at this point, but he recommends that any compliance officer read the guidance in its entirety and make notes of the things that stand out with specific consideration given to the program being evaluated. The result of this exercise is likely to be a page or two of notes and ideas.
• Vogelien further noted that when speaking about the topic of compliance program effectiveness or a new industry update such as the GCPG, he shares the concept of a compliance program effectiveness plan. It is a good practice to have a continuous improvement or strategic plan for your compliance program. There is no science to this, but it could be a three-year plan or a five-year plan. The idea is that a plan is organized around “the seven elements” of an effective compliance program. Based on specific government or industry guidance and regulatory changes, the current “maturity” level of a program, complianceresources and staffing, your organization can prioritize focus areas to implement, modify, or enhance over time. You might prioritize and focus on some areas highlighted by your risk assessment this year then enhance the compliance education program next year.
• The panelists referenced the key takeaways from “Let’s Talk Compliance” Session #1, and agreed it is important to evaluate how to customize the incorporation of the GCPG into an organization’s compliance work plan. Each organization’s focuses will be facts and circumstances specific.

(3) Compliance Considerations Around Advance Practice Provider (APP) and Physician Collaboration.

• Kolarik noted this hot topic continues to develop, with complex and ever-changing guidance for split-shared visit billing and potential Physician Self-Referral Law and Anti-Kickback Statute regulatory considerations.
• The panelists agreed that continuing education is key as physician and APP practice patterns change.
• Vogelien noted the importance of physician coding and revenue integrity experts and auditors. It is a best practice to proactively educate physician and APPs on various collaborative care models and current clinical documentation requirements. Education needs to be updated as guidance changes. Auditing such collaborative arrangements should also be part of your compliance work plan. If you do not have the internal resources or expertise to do this in-house, there are options out there and firms you can engage.
• Cloud commented that collaboration between APPs and physicians highlights the need for a thorough approach, focusing on professional awareness and educational efforts. Consistently conducting audits related to this collaboration to ensure adherence to compliance standards is a best practice.
• Cloud further remarked that successfully addressing compliance considerations in APP and physician collaboration requires a multifaceted strategy, including promoting professional awareness, implementing educational initiatives, and conducting regular audits – all of which are essential components of a strong compliance framework. By prioritizing continuous learning, transparent communication, and proactive monitoring, healthcare organizations can cultivate a collaborative environment. This not only ensures compliance with standards, but also enhances the delivery of high-quality patient care.
• Caldwell shared an APP Impact Case Study with attendees, demonstrating the underlying compensation plan impact of APP and physician collaboration.

(4) Physician Compensation Challenges in Analyzing Physician Productivity, Subsidy Arrangements, and Call Pay.

• Caldwell noted as pay for performance and value-based reimbursement continue to increase, analyzing physician productivity via metrics other than work relative value unit productivity will become more important in the future.
• Kolarik noted the complexity of subsidy arrangements, particularly related to ensuring the underlying provider compensation is fair market value and the expenses applied to the subsidy calculation are commercially reasonable.
• Cloud concurred with the insights shared by the panelists, and further commented that in the ongoing shift of the healthcare industry towards value-based reimbursement, it is important to adopt a nuanced and adaptable approach to physician compensation. To effectively tackle the challenges within this evolving landscape, healthcare organizations should broaden their metrics, embrace value-based models, and regularly reassess compensation structures. This proactive strategy enables organizations to navigate physician compensation challenges successfully, ensuring alignment with the dynamic trends shaping the industry.
• With regard to subsidies, Vogelien shared that reconciliations post-implementation are also important to ensure the agreement is implemented as intended, assumptions hold true, and fair market value is maintained.