Dental GME Update: Current Challenges and Issues

1. Dental GME Update: Current Challenges and Issues Laura Loeb King & Spalding, LLP lloeb@kslaw.com 202/661-7836 ADEA Annual Session Dallas, Texas March 31, 2008

2. Overview • Update on Hindin Litigation  • HHS Administrative Decision on Effective Date Issue • CMS Recent Treatment of Didactic Training • Implementation of Proxy Formula for Faculty Costs • CMS Recognition of All Accredited Dental Programs • Ongoing Opportunities for New Programs • Future GME Advocacy

3. Hindin Litigation • Mid Oct. 2007, 26 universities and hospitals received copy of a complaint filed in the Eastern District of NY • Filed by Allen Hindin, as the relator (whistleblower), long serving member of ADA House of Delegates • Original complaint filed in Dec. 2000, but was under seal (not public) • In 2003, complaint was amended, still under seal

4. Hindin Litigation (cont’d) • Government sought and was granted 6 extensions of time to decide whether to intervene • On April 30, 2007, Judge denied government’s 7th request for an extension and case was unsealed and relator told to send copy of complaint to all defendants

5. Hindin Litigation (cont’d) • Substance of complaint • AEGD programs are not eligible for GME funding because the training doesn’t occur in a hospital • AEGD programs are not similar to GPR programs in nature of training, site of training, costs of program • To qualify for GME funding, program must be an accredited GPR program conducted by an accredited hospital

6. Hindin Litigation (cont’d) • Government’s decisionmaking whether to intervene • Government’s memorandum of law supporting its request for extensions tries to link Hindin allegations to OIG audits where OIG recommended that some hospitals pay back millions

7. Hindin Litigation (cont’d) • February 7, 2008 pre-motion conference with Judge Block in Eastern District of NY • Judge did not consider Hindin’s complaint to be frivolous • Judge gave Hindin 2 weeks to amend complaint yet again and government 2 weeks after that to determine whether to intervene

8. Hindin Litigation (cont’d) • Feb. 20th Hindin’s lawyer calls defendants’ lawyers to suggest that he would drop them from amended complaint if they agreed not to pursue him for fees and costs • Not all defendants agreed to not pursue him for fees and costs • Nevertheless, in the amended complaint filed on Feb 21st, all defendants were dropped except for Lutheran Medical Center

9. Hindin Litigation (cont’d) • Substance of second amended complaint similar to prior complaints • Still argues that AEGD programs aren’t eligible for GME funding because they are not hospital-based and costs are less than GPR programs • Also includes broad allegations regarding the incurring of all or substantially all the costs • Still no details or just wrong details

10. Hindin Litigation (cont’d) • Government requested 4 week extension on intervention decision • Even if case ultimately dismissed, universities/hospitals were forced to defend frivolous suit and hospitals become more anxious over these programs

11. Effective Date Issue • Some GME agreements between dental schools and hospitals were signed in the middle or towards the end of a hospital’s current fiscal year • But under the terms of the agreement, the effective date of the contract was the beginning of the current fiscal year • Hospitals, therefore, included the dental residents in their cost reports from the beginning of the fiscal year

12. Effective Date (cont’d) • CMS’ position was the agreements only effective from date they are signed • Hallmark Health System in Boston appealed this CMS position to the Provider Reimbursement Review Board (PRRB) • Nov. 1, 2007, PRRB ruled against the Hospital on the effective date issue and also broadly criticized dental programs being eligible for GME and said didactic time shouldn’t be counted

13. Didactic Issue • In 1999 letter, CMS stated that hospitals could count didactic time (seminars, conferences, etc.) in their D-GME and IME resident counts • Now CMS position is that didactic time is not related to patient care and therefore should not be counted • In hospital inpatient final rule for fiscal year 07, CMS created the one-day work rule

14. Didactic Issue (cont’d) • One-day work rule is that hospital can count didactic time unless entire work day is spent on didactic activities • However, some Medicare contractors are not honoring this rule and if they see detailed schedules with seminars taking up partial days, they are subtracting that time -- CMS says that contractors could have that interpretation

15. Proxy Formula for Faculty Costs • Hospitals must pay for resident stipends and benefits and faculty costs for supervisory teaching time • There have been ongoing issues regarding what are sufficient costs for supervisory teaching time • In April 2005, CMS in Q&A said that patient care time wasn’t supervisory teaching time • In final rule for long-term care hospitals for FY08, CMS created proxy formula for calculating faculty costs

16. Proxy Formula (cont’d) • Hospitals can either use time/effort reports to determine actual supervisory teaching time or can use this formula: • 3 hours/number of hours per week clinic open x average salary of dental faculty per AGMA survey ($165,599) x number of residents

17. Recognition of New Dental Programs • CMS has not formally recognized 3 CODA-accredited programs to be eligible for GME funding: • Oral & maxillofacial radiology • Dental anesthesiology • Oral medicine • CMS has said that local Medicare contractors could recognize programs though

18. New Dental Programs (cont’d) • CMS has been researching these 3 programs • CMS might discuss these programs in latest proposed rule for hospital inpatient issues due out in April/May • CMS has questioned why only oral & maxillofacial radiology (of the 3) has an ADA-recognized specialty board

19. Ongoing Opportunities • Despite all these challenges, new programs in which hospitals are incurring the required costs from the beginning of the program are receiving GME funding • Dental schools and hospitals must be aware of all the rules currently in play though • Hospitals must treat these programs as they do all other residencies though and subject them to the same rigorous review and documentation requirements

20. Future GME Advocacy? • We have been stymied in moving legislation to clarify and improve GME issues • Clarify that didactic time is related to patient care and should be counted • Eliminate 3-year rolling average • Post 2008 election might present opportunities however