Here s hoping you don t get this memo!

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Can you imagine getting a memo from your hospital s compliance officer telling you that you can t provide more than $300 per year of CME to a physician that refers Medicare/Medicaid patients to your organization, and that you have to have the commercial supporter cut the check directly to faculty?

Believe it or not, that memo did go out to an organization recently, according to Denver attorney Jim Miles, of Miles & Peters, PC. It was in reaction to the Stark II regs I wrote about last week.

Stark II, which is aimed at ridding the system of Medicare and Medicaid abuse and fraud caused by hospitals or other organizations that handle Medicare/Medicaid patients wooing their best referrers with perks, firmly places CME in the perk realm, much to the dismay and annoyance of providers I ve been speaking with. Up to $300 per year can be exempted from the rule, or so it appears in the vaguely worded document after that, you risk noncompliance. Maybe.

Miles says that it s all a tempest in a teapot and, basically, don t worry about it. Here s a boiled down version of his reasoning (some of it will make it into the article for the next issue of Medical Meetings, but there s never space to say it all, so I ll blog it instead):

  • CME is only mentioned in a few sentences of the preamble to the rule, out of the 100-plus pages of the Federal Register document, and is not mentioned in the rule itself.
  • The overall intent of Stark II is to make things less complicated, not more onerous, for physicians and the organizations they refer these patients to. Why would these few sentences go against that general philosophy?
  • The statements referring to CME are intentionally vague saying free CME "could" constitute remuneration to a physician, not that it "does." He says this is an important differentiation to legal eagles.
  • As long as you invite all physicians equally to your CME activities (all physicians with privileges, or all subspecialists with privileges, etc.), there s really no reason for anyone to think you re kicking back remuneration for good referrers.
  • The problem isn t with the system, or with the regs, but with the compliance officers and in-house council who saw the word "CME" and had a knee-jerk reaction. Since their job is to protect the entity as a whole, they are trending toward taking possible repercussions farther than they actually go.
  • Whoever wrote those sentences referencing CME probably had no idea how restrictive it would be to limit CME to less than $300 per year per physician. "The intent was just somebody in the government saying, I don t think you need to worry about CME being a benefit to physicians because you in the provider community can use this $300 exception. Whoever said that sitting in the Beltway most likely doesn t realize how many CME programs are given, or what they are worth," says Miles.
  • Bringing a case against a CME provider for going over $300 in education just isn t going to happen. "That would be a public relations nightmare for the government it s unreasonable, it s not what the government or Congress intended when they passed Stark. If the government were going to investigate this and trust me, they re not going to unless it s a boondoggle trip to Maui just be able to show that you invited all relevant physicians, whether they re good referrers or not." He also suggests that you keep a running ledger to track the value of CME, in this case, something as simple as the honoraria paid divided by the number of docs invited.
  • The government has to prove that you did something wrong they hold the burden of proof. No prosecutor in his right mind would take the case: "The CME provider treated all the doctors equally, they documented the value of the CME the docs could have received if they attended all the programs you re going to make a case out of that, that the hospital did something improper by educating its physicians on how to provide better quality care? It s ludicrous. I deal with these prosecutors all the time, and they go after the obvious targets," he says.
  • If the government really was concerned about a CME provider giving more than $300 worth of CME, they would have sent out a fraud alert. They have not done so.
  • "If you have a properly configured program already, you shouldn t have to worry about these few sentences in the preamble to Stark II."

    Sorry to go on so long about this, but I ve been immersed in Stark lately, and Miles perspective is by far the most optimistic I ve found so far, so I thought I d share.

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