“A ten percent tax on tanning salons?” the confused client asked. “Is that health reform?” he questioned again. “Are you asking or complaining?” the lawyer responded.

 And, so the conversations go around the country as the health care industry begins what will be years of work analyzing and figuring out how to respond to the Patient Protection and Affordable Care Act (the “Reform Law” or Public Law 111-148) and its amendments contained in a reconciliation bill called the Health Care and Education Reconciliation Act (the “Reconciliation Law” or Public Law 111-152).

 The bulk of the new laws address changes to the health insurance industry with the dual goals of getting most Americans covered under some type of health insurance policy, and then paying for the cost of expanding such coverage to the roughly 15% of those without insurance currently. In plain financial terms, the expected cost will be about $100 billion annually.

 The process was not graceful, and the use of two bills, one to amend the other, was a disservice to the historic significance of the effort. Until codified, the general public will be forced to painstakingly cross-reference the bills over and over to see what is coming down the road. But, no matter your political feelings and because the context almost is collectively forgotten, health reform is here, and it is only the beginning. So what to do?

 Well, begin with figuring out what is coming and in what order. There are hundreds of changes including: new deadlines, new reporting requirements, new penalties, and new taxes. Of course, there will be amendments along the way too in the coming years, and new regulations, pages and pages of regulations. If you think the lawyers are happy, you probably are right.

 So for today, and this note, what is coming immediately for some health care providers? This is by no means an analysis of the bills. Hopefully, the provider trade associations will begin rolling detailed analyses out soon. These are just a couple of highlights to start, and ones which might present some risk for providers, right now, today.

 Effective January 1, 2010 (yes, oddly retroactive), physicians who own imaging services (i.e., magnetic resonance imaging, computed tomography, or positron emission tomography) pursuant to the in-office ancillary services exception to the Stark Law, and who refer Medicare patients for those services, must provide written notice to such patients at the time of referral that: (a) informs them the services may be obtained from another supplier; and (b) provides them a list of suppliers who furnish such services in the area where they reside. This requirement is set forth in Section 6003 of the Reform Law. One has to wonder if the effective date simply is a drafting error left over from when Congress thought the original reform bill would pass in 2009. A best guess says that this notice requirement likely will be expanded by the Department of Health and Human Services through rulemaking to include other ancillary services. The risk for not providing notice is a possible technical violation of Stark (e.g., denial of reimbursement, civil penalties, etc.). New rule of thumb (at least for Medicare patients)? If you own the imaging machine, just let patients know about that and offer them a choice.

 Effective March 23, 2010, providers must return overpayments from Medicare or Medicaid within sixty (60) days of being identified along with a reason for the overpayments. This requirement is set forth in Section 6402 of the Reform Law. The legal question that still remains is what does “identified” mean. While the return of overpayments logically has been considered an obligation for providers, it is the risk created by the new sixty-day deadline that could turn innocent billing mistakes into more serious and costly “false claims.” Why is this significant? Well, as an example, if your organization conducts retrospective internal audits (i.e., audits on claims after they have been paid), and those audits detect federal program overpayments, you will no longer be able to sit on the results for weeks and weeks. If refunds need to be made, they need to be made quickly and, if reasonable to do so, made through the carrier’s refund process. For simple annual educational audits, if feasible, providers may want to reconsider doing retrospective audits in favor of prospective audits (i.e., audits on claims after they have been coded but before they are submitted for payment). The distinction between the two types of routine audits has become far more important now because the risk of liability associated with delaying a refund of an identified overpayment has increased. So, new rule of thumb, be very careful with audits and overpayments.

 In closing, those are just a couple of timely highlights. If you were wondering, yes, there really is a new tax on indoor tanning services (see Section 10907 of the Reform Law). Apparently, the Botox lobby effectively avoided a similar tax. And, so it goes.