Frier Levitt is at the forefront of the latest developments in the value based care space and understands the potential opportunities and pitfalls for the multiple and diverse stakeholders involved. We have extensive experience structuring novel arrangements among providers, manufacturers, payors and plan sponsors, and we have litigated groundbreaking cases in the Medicare Advantage risk adjustment space relating to alleged payor data mismanagement. We have also been successful in pressuring various payors to reassess shared savings payment determinations favorably on behalf of physician practices and ACOs through strategic and targeted pre-litigation negotiation tactics. Providers seeking innovative, sophisticated and unique approaches to evaluating new value based care opportunities or resolving ongoing value based care-related disputes should contact Frier Levitt’s experienced value based care team.
Background
In recent years, the transition from traditional fee-for-service and volume-based care to value based care has accelerated exponentially. Value based care payment models are diverse and constantly evolving, and each new model presents distinct legal challenges – negotiating reasonable and provider-friendly metrics in a given value based care contract, pressing payors for data and methodological transparency, ensuring compliance with emerging regulations and regulatory guidance within the space, and litigating, as needed, claims against commercial carriers, Medicare Advantage Organizations, and even Medicare (or Medicaid) itself, to vindicate a practice’s rights under a value based care agreement. Under these new metrics-driven payment models, data scientists and actuaries, along with experienced healthcare counsel, are essential allies for providers operating in the value based care space, as these disciplines are critical to intelligently addressing challenges at every level of the value based care contracting process. From assessing the feasibility/advisability of a particular calculation methodology in a new shared savings contract to assisting as experts in litigating a breach, Frier Levitt has built strategic relationships and developed a substantial track record of success.
Value Based Care Payment Models
Frier Levitt is equipped to advise providers in various sectors of healthcare in connection with a multitude of value based care payment models, including:
- Two-sided risk shared savings/risk arrangements, in both the managed
Medicare/Medicaid and commercial insurance spaces - Bundled payment arrangements
- Episodes of care, with or without downside risk
- Patient Centered Medical Homes
- Gainsharing agreements
- Global capitation payment models
What We Do
Establishing compliant legal framework for value based care-centric provider entities:
- Creation of accountable care organizations (ACOs) and independent physician associations (IPAs)
- Creation of clinically integrated networks (CINs)
- Creation of Organized Delivery Systems (ODSs)
- For more information, see Value Based Organizations: ACOs, IPAs and CINs
Structuring and establishing Value Based Enterprises (VBEs):
- Creation of value based arrangements that meet the requirements to qualify for the protection of the Stark Law’s VBE Exceptions and the Federal Anti-Kickback Statute’s VBE Safe Harbors
- For more information on the Stark Law’s VBE Exceptions and the Federal Anti-Kickback Statute’s Safe Harbors, see Value Based Enterprises
Negotiating value based care contracts that are fair and equitable for the provider:
- Negotiation of terms and conditions for new shared savings, bundled payment, and global capitated risk agreements with payors that contain payor data/methodological transparency, robust provider-side auditing rights of payor data, and fair and efficient dispute resolution procedures in connection with valuating shared savings/risk
- Direct negotiation with employers and other plan sponsors to create and tailor provider-side-favorable value based contracts
Keeping your practice compliant in light of value based care specific regulations and guidance
- Drafting standard operating procedures and providing compliance training to ensure a practice’s compliance with regulations, e.g., prohibiting receipt of payments in exchange for the reduction or limitation of medically necessary services when shared savings arrangements may incentivize such misconduct
- Evaluation of whether a practice is at “substantial financial risk” pursuant to Provider Incentive Plan regulations requiring stop-loss protection, and evaluation of existing stop-loss protection for legal sufficiency
Keeping payors honest
- Collaboration with data scientists and actuaries to determine payor compliance with value based care contract payment provisions (e.g., evaluating accuracy of payor-assigned patient risk scores in a globally capitated payment model, assessing the accuracy of a shared savings/risk determination)
- Pre-litigation dispute resolution with payors – both private and governmental – to leverage appropriate financial compensation in cases where payors underpay shared savings owed or have assessed too much shared risk against a provider
- Litigation for breach of value based care contracts against commercial carriers, Medicare Advantage Organizations, Managed Medicaid Organizations, State Medicaid Plans, and Medicare
Defending providers in white collar criminal and/or civil investigations or prosecutions matters arising out of a value based agreement
- Defending providers accused of False Claims Act violations (e.g., alleged risk adjustment upcoding)
- Defending providers accused of violating the Civil Monetary Penalties Law in connection with shared savings arrangements
- Defending providers sued by payors for breach of value based care contracts
Who We Represent?
- Hospitals
- Self-funded Health Plans
- Independent medical practices
- Hospital-based medical practices
- Private Equity-based medical practices
- Clinically Integrated Networks (CINs)
- Accountable Care Organizations (ACOs)
- Independent Physician Associations (IPAs)
- Patient Centered Medical Homes (PCMHs)
- Value Based Enterprises (VBEs)
- Provider vendors and consultants, such as healthcare data analytics firms, with provider gainsharing agreements
- Drug manufacturers
Value Based Care insights
Considerations for Manufacturers When Structuring Value-Based Agreements and Value-Based PricingFebruary 22, 2023
Medical Group Management Association (MGMA) 2023 Practice Management ConferenceJune 7, 2023