No. MUPs, MUAs and HPSAs are not a new race of sorcerers in the latest Harry Potter novel. They are health shortage designations made by the Department of Health and Human Services, that entitle the areas so designated to receive a wide range of federal subsidies and other supports.
They are acronyms for Medically Underserved Populations, Medically Underserved Areas and Health Professional Shortage Areas. The Office of Inspector General of Centers for Medicare and Medicaid Services (" CMS") recently developed a safe harbor under the federal Anti-kickback Statute that provides cover for Hospitals that pay insurance companies to provide medical practice insurance to independent obstetric and gynecology physicians practicing in locations where it is difficult to entice and retain physicians and where malpractice premiums have been growing exponentially. See 42 C.F.R. 1001.952(o).
The safe harbor provides that the proscribed "remuneration" does not include payments made by a hospital or other entity to another entity that is providing malpractice insurance to a practitioner, including a certified nurse midwife, who engages in obstetrics as a routine part of his or her medical practice in a primary care HPSA. A HPSA or Health Professional Shortage Area is a designation that takes into consideration the number of primary care providers, including family practitioners, GPs, Obstetricians, pediatrician and geriatricians per 3500 people in a so called "rational area for the delivery of primary care."
This is a voluntary designation that must be applied for and qualification is administratively determined. Over twenty percent of the U.S. population presently lives in designated HPSAs. Designations are reviewed every three years and there are two principal types of HPSA designations, Geographic HPSAs and Population HPSAs. Geographic HPSAs are determined based upon shortages affecting the total population of a given area. Population HPSAs are determined based upon the designation of specific underserved populations of a given area where access in unavailable, like populations of migrant workers.
Assuming your target OB is routinely practicing in a designated HPSA, the fun then begins. In an abundance of caution, the OIG designates 7 additional criteria to be met so that some hospital or physician doesn't start playing games in a HPSA. First, there must be a written agreement setting out the payments. Second, the practitioner must certify that the for the initial coverage period of one year that the practitioner has a reasonable basis for believing that 75% of the practitioner's obstetric patients treated under the cover of the malpractice insurance will reside in a HPSA or a MUA or be part of a MUP. What are MUAs or MUPs?
They are Medically Underserved Areas or Medically Underserved Populations that have a different administrative process for designation. MUAs are determined based upon weighted arithmetical calculations primarily focused on four variables. 1) The ratio of primary care doctors per 1000 people; 2) the infant mortality rate; 3) the percent of the population below the poverty level; and, 4) the percent of the population over age 65. MUPs are determinated using the same basic data with a concentration of specific population groups.
Third, there must be no requirement that the practitioner make referrals or otherwise generate business for entity providing the insurance. (The OIG apparently thinks there must be a lot of competition for the business in HPSAs, MUAs and MUPs.)
Fourth, the practitioner must not be restricted from establsihing staff privileges at or referring any service to any other entity. (Lots of these gravitate to HPSAs)
Fifth, the amount of payment for malpractice premiums must not very based on volume of referrals. (That would be an unusual malpractice policy)
Sixth, the practitioner must not discriminate against obstetrical patients receiving federal health care benefits. (These are usually the only people being treated in HPSAs)
Seventh, the insurance must be bona fide and calculated on a bona fide assessment of the liability risk. (What if the insurance company is overcharging-do you blow the safe harbor?) Further, if the practitioner only practices obstetrics part time, payment can only be made for the part allocable to the obstetrics practice actually within the HPSA.
Now what could be simpler? If you are also worried about compliance with the Stark Regulations, not to worry. In a rare show of consistancy, the Stark regulators will be just delighted if you comply with the Anti-kickback safe harbor for obstetrican malpractice insurance subsidies as they have adopted it in whole cloth as a Stark exception. 42 C.F.R. 411.357(r)
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