By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Diversified Service Options (DSO) acquired Highmark Medicare Services (Highmark) on January 1, 2012. DSO is a holding company and a wholly-owned subsidiary of Blue Cross and Blue Shield of Florida, Inc. (BCBS Florida). Highmark had the contract with the Centers for Medicare & Medicaid Services (CMS) to be the Medicare Administrative Contractor (MAC), formerly known as a "Carrier" or "Fiscal Intermediary," for Jurisdiction 12, which includes Delaware, New Jersey, Pennsylvania, Maryland and Washington, D.C. For Part B services, Jurisdiction 12 also includes the counties of Arlington and Fairfax in Virginia and the city of Alexandria in Virginia.
As of March 1, 2012, Highmark changed its name to Novitas Solutions, Inc. (Novitas). Novitas has now assumed the duties of Highmark as the Part A and B Medicare Administrative Contractor (MAC) for Jurisdiction 12.
Additionally, Novitas will now serve as the Part A and B MAC for Jurisdiction H, which includes Arkansas, Colorado, Louisiana, Mississippi, New Mexico, Oklahoma, Texas and the Indian Health Service (IHS).
First Coast Service Options, Inc. (First Coast), is also a wholly-owned subsidiary of Blue Cross and Blue Shield of Florida, Inc. First Coast is the current MAC for Jurisdiction 9, which includes Florida. Although plans for a merger between First Coast and Novitas are not known at this time, it is speculated that such an arrangement may occur in the future.
Sources Include:
Blue Cross Blue Shield of Florida, Inc. Press Release, "Diversified Service Options of Florida to Acquire Highmark Medicare Services: Will Expand Medicare Operations" (Dec. 8, 2011).
Healthcare Data Management, "What Happened to Highmark Medicare Services?" (Mar. 16, 2012). From: http://www.healthcarebiller.com/2012/03/16/what-happened-to-highmark-medicare-services/
Novitas Solutions, Inc. Press Release, "Highmark Medicare Services Inc. Changes Name to Novitas Solutions, Inc." (Apr. 10, 2012). From: https://www.novitas-solutions.com/parta/info-alerts.html
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.thehealthlawfirm.com/ The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Wednesday, April 25, 2012
Monday, April 23, 2012
"Cert Audits" Added to Medicare Audit Contractor Alphabet
The Medicare Comprehensive Error Rate Testing program audit or CERT audit is one of the newest acronyms we have encountered in the Medicare Program's audit process. It could be that we just haven't had clients who had problems with this in the past, as we have seen plenty of Zone Program Integrity Contractor (ZPIC) audits, Medicare Administrative Contractor (MAC) audits and actions, Medicaid Fraud Control Unit (MFCU) audits, etc. However, we did have a client recently who was being audited by a CERT contractor and we assisted in resolving document discrepancies.
The Centers for Medicare & Medicaid Services (CMS) created the Comprehensive Error Rate Testing (CERT) program to measure the paid claims error rate for Medicare claims submitted to Medicare administrative contractors, carriers, durable medical equipment regional carriers, and fiscal intermediaries (now Medicare Administrative Contractors or MACs) . CMS receives in excess of two billion claims annually. The CERT program randomly selects approximately 120,000 of these claims for review to determine whether the claims were properly paid.
Statistical samples are selected and the CERT documentation contractor (CDC) submits documentation requests to those providers who submitted affected claims. Once the requested documentation has been received, the information is forwarded to the "CERT review contractor" (or CRC) for review. The CRC will review the claims and supporting documentation to measure compliance with Medicare coverage, coding and billing rules.
As with many audits, it seems like the most common problems being detected have to do with medical records errors, such as the documentation not supporting the code billed, absence of signatures on medical record entries, wrong dates of service, absence of medical record documentation, illegible records, wrong provider being billed for, etc.
We have been pleasantly surprised, however, when our personal phone calls to CDC and the CRC have been answered and actual accurate information provided, as well as letters and documents we provided being promptly acknowledged. Like with any other audit, however, we urge those being audited to seek the advice of an experienced health law attorney who may be able to assist in heading off and avoiding a more serious investigation or a large repayment demand eventually resulting.
For more info see: http://www.cms.gov/MLNProducts/downloads/MCRP_Booklet.pdf
or visit our website at: http://www.thehealthlawfirm.com/.
The Centers for Medicare & Medicaid Services (CMS) created the Comprehensive Error Rate Testing (CERT) program to measure the paid claims error rate for Medicare claims submitted to Medicare administrative contractors, carriers, durable medical equipment regional carriers, and fiscal intermediaries (now Medicare Administrative Contractors or MACs) . CMS receives in excess of two billion claims annually. The CERT program randomly selects approximately 120,000 of these claims for review to determine whether the claims were properly paid.
Statistical samples are selected and the CERT documentation contractor (CDC) submits documentation requests to those providers who submitted affected claims. Once the requested documentation has been received, the information is forwarded to the "CERT review contractor" (or CRC) for review. The CRC will review the claims and supporting documentation to measure compliance with Medicare coverage, coding and billing rules.
As with many audits, it seems like the most common problems being detected have to do with medical records errors, such as the documentation not supporting the code billed, absence of signatures on medical record entries, wrong dates of service, absence of medical record documentation, illegible records, wrong provider being billed for, etc.
We have been pleasantly surprised, however, when our personal phone calls to CDC and the CRC have been answered and actual accurate information provided, as well as letters and documents we provided being promptly acknowledged. Like with any other audit, however, we urge those being audited to seek the advice of an experienced health law attorney who may be able to assist in heading off and avoiding a more serious investigation or a large repayment demand eventually resulting.
For more info see: http://www.cms.gov/MLNProducts/downloads/MCRP_Booklet.pdf
or visit our website at: http://www.thehealthlawfirm.com/.
Wednesday, April 18, 2012
Differences Among a Home Health Agency, a Nurse Registry and a Homemaker and Companion Services Provider in Florida
The differences among a Home Health Agency, a Nurse Registry and a Homemaker and Companion Services Provider in Florida can be found in distinctions in the licensure requirements, the insurance requirements and the types of services that can be provided. The owners and operators of such businesses must should be aware of these. Diligence must be taken to ensure that employees of one type of provider do not deliver services to clients/patients that are not authorized by the company's license.
When applying for a license for any of these types of organizations, care must be taken to list all of the services that the organization will actually be delivering.
Home Health Agencies
Home Health Agencies (HHAs) are generally able to provide hands-on services to clients/patients. Among the services they may provide are:
Homemaker
Companion
Home Health Aide
Certified Nursing Assistant (CNA)
(Note: Some home health agencies only provide the above services.)
Nursing (LPN, RN)
Therapy: Physical (PT), Speech (ST), Occupational (OT)
Home Medical Equipment
Social Work
Dietetics & Nutrition
(Therapy, social work, dietetics & nutrition are generally not provided by licensed only HHAs, except for those that are in the process of getting certified for Medicare or Medicaid.)
Home Health Agencies are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-8, Florida Administrative Code (F.A.C.). The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).
Nurse Registries
When applying for a license for any of these types of organizations, care must be taken to list all of the services that the organization will actually be delivering.
Home Health Agencies
Home Health Agencies (HHAs) are generally able to provide hands-on services to clients/patients. Among the services they may provide are:
Homemaker
Companion
Home Health Aide
Certified Nursing Assistant (CNA)
(Note: Some home health agencies only provide the above services.)
Nursing (LPN, RN)
Therapy: Physical (PT), Speech (ST), Occupational (OT)
Home Medical Equipment
Social Work
Dietetics & Nutrition
(Therapy, social work, dietetics & nutrition are generally not provided by licensed only HHAs, except for those that are in the process of getting certified for Medicare or Medicaid.)
Home Health Agencies are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-8, Florida Administrative Code (F.A.C.). The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).
Nurse Registries
Nurse Registries generally act as the intermediaries in locating and obtaining contracts between clients/patients and health providers such as nurses. Nurse Registries only have independent contractors.
Among the services that may be provided by the independent contractors of a Nurse Registry are:
Homemaker
Companion
Home Health Aide
Certified Nursing Assistant (CNA)
Nursing (LPN, RN)
(Note: Some Nurse Registries do not provide nurses)
Nurse Registries are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-18, Florida Administrative Code (F.A.C.). The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).
Homemaker and Companion Services Organizations
A Homemaker and Companion Services Organization may not provide any hands-on personal care or treatment of a client. For example, its employees may not bathe the client, changes bandages, or provide any hands on medical or nursing treatments
Among the services they are authorized to provide are:
Homemaker Services
Companion Services
Homemaker and Companion Services Organization are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-8, Florida Administrative Code (F.A.C.). (specifically 59A-8.025), F.A.C. The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).
All of the foregoing are licensed and regulated by the Home Care Unit of the Agency for Health Care Administration (AHCA) in Tallahassee. It can be located at:
Agency for Health Care Administration
Bureau of Long Term Care Services
Home Care Unit
2727 Mahan Drive - Mail Stop #34
Tallahassee, FL 32308
Phone: (850) 412-4403 Phone
Fax: (850) 922-5374 Fax
Monday, April 16, 2012
Meyers Case Set the Standard for Later Court Cases Ruling Against Disruptive Physicians
One of the most important cases for physicians with hospital privileges to be aware of is Meyers v. Columbia/HCA Healthcare Corp., which was finally decided in 2003. In ruling on disruptive physician cases, courts almost always rely on Meyers, and it has been cited repeatedly in other disruptive physician cases to justify a hospital or medical staff's peer review actions disciplining the physician.
In this case, Dr. Meyers, an orthopedic surgeon, received provisional medical staff privileges at a hospital. A year later, the credentials committee at his hospital, comprised of three board members, re-evaluated Dr. Meyers for advancement to active staff privileges. He was denied active staff privileges by the committee for reasons that included his alleged temper tantrums, condescending remarks towards women, refusal to speak to a member of his surgical team during surgical procedures, and several instances of throwing a scalpel during surgical procedures.
Dr. Meyers was granted a hearing by the hospital. The hospital's bylaws provided for a fair hearing committee comprised of three members of the medical staff, who would have been Dr. Meyers' peers. However, the fair hearing committee in Dr. Meyers' case was different. It was comprised of a retired judge, an attorney, a bank president, an industrialist and a dentist. The fair hearing committee met eleven times and 35 witnesses testified during the course of the hearing. After the hearing, the fair hearing committee recommended not appointing Dr. Meyers. It cited his failure to meet the hospital's ethical standards, as well as his inability to work cooperatively with others. This recommendation was adopted by the hospital's governing board.
Dr. Meyers sued the hospital and the fair hearing participants. His claims included breach of contract, antitrust, violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), tortious interference, and defamation.
The hospital moved for a summary judgment, claiming immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity if a professional review action is taken under a combination of four circumstances: (1) in the reasonable belief that the action would further quality healthcare; (2) after a reasonable investigation; (3) with adequate notice and hearing procedures; and (4) the reasonable belief that the action was warranted by the facts and the process.
The trial court granted summary judgment in favor of the hospital and the hearing panel's members. The court's analysis of the summary judgment standard in the Meyers case for HCQIA has been relied upon regularly since this. Meyers indicated that the professional review actions that were followed satisfied the HCQIA's immunity requirements. The district court's action was later affirmed on appeal by the Sixth Circuit.
Because of Meyers, physicians have a much higher standard to overcome, in order to get a similar case before a jury. The physician must demonstrate 1) that a genuine issue of fact exists and 2) that a reasonable jury, viewing the facts in the best light for the plaintiff, might conclude that he has shown by a preponderance of the evidence that the actions of the hospital and committee are outside the scope of HCQIA.
In both Meyers and in subsequent cases, physicians have attempted to challenge this summary judgment standard by various legal arguments. One used is that the action taken against the physician was not "fair" because the hearing committee did not include a physician of the same specialty. Another is that the hearing panel did not include a physician, a "peer." Therefore how could it truly be "peer review."
In Meyers, both the Sixth Circuit and the district court looked to the hospital's medical staff bylaws which stated that medical staff members (other physicians) would be appointed to the fair hearing committee only "when feasible." The hospital presented evidence that no medical staff member could serve on the committee at the time when the hearing was scheduled in Dr. Meyers' case. Furthermore, the district court stated that the bylaws of a hospital concerning peer review actions are inconsequential, as long as the HCQIA's fair hearing requirements are met. In the HCQIA, there is no requirement that a physician must serve on a fair hearing committee.
Meyers also provided grounds for justifying professional review actions based a physician's "general behavior and ethical conduct." Disruptive behavior is also enough to justify suspension or termination of privileges, because, according to the district court, "Quality patient care demands that doctors possess at least a reasonable ability to work with others."
Although the Meyers case has been the precedent for disruptive physician cases since 2003, physicians must also be aware of The Joint Commission's standard on disruptive behavior, issued in 2008. This standard affirms that disruptive behavior is enough to justify a hospital's action against a physician, including termination. Physicians can now expect to see even more actions initiated by hospitals and their staffs against any physician deemed uncooperative or disruptive. You can read The Joint Commission's sentinel alert on disruptive behavior here.
If you find yourself at the center of a peer review hearing due to reasons of disruptive behavior, make sure that you contact an experienced healthcare attorney to help you navigate the peer review process. Visit our website at www.TheHealthLawFirm.com for more information.
In this case, Dr. Meyers, an orthopedic surgeon, received provisional medical staff privileges at a hospital. A year later, the credentials committee at his hospital, comprised of three board members, re-evaluated Dr. Meyers for advancement to active staff privileges. He was denied active staff privileges by the committee for reasons that included his alleged temper tantrums, condescending remarks towards women, refusal to speak to a member of his surgical team during surgical procedures, and several instances of throwing a scalpel during surgical procedures.
Dr. Meyers was granted a hearing by the hospital. The hospital's bylaws provided for a fair hearing committee comprised of three members of the medical staff, who would have been Dr. Meyers' peers. However, the fair hearing committee in Dr. Meyers' case was different. It was comprised of a retired judge, an attorney, a bank president, an industrialist and a dentist. The fair hearing committee met eleven times and 35 witnesses testified during the course of the hearing. After the hearing, the fair hearing committee recommended not appointing Dr. Meyers. It cited his failure to meet the hospital's ethical standards, as well as his inability to work cooperatively with others. This recommendation was adopted by the hospital's governing board.
Dr. Meyers sued the hospital and the fair hearing participants. His claims included breach of contract, antitrust, violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), tortious interference, and defamation.
The hospital moved for a summary judgment, claiming immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity if a professional review action is taken under a combination of four circumstances: (1) in the reasonable belief that the action would further quality healthcare; (2) after a reasonable investigation; (3) with adequate notice and hearing procedures; and (4) the reasonable belief that the action was warranted by the facts and the process.
The trial court granted summary judgment in favor of the hospital and the hearing panel's members. The court's analysis of the summary judgment standard in the Meyers case for HCQIA has been relied upon regularly since this. Meyers indicated that the professional review actions that were followed satisfied the HCQIA's immunity requirements. The district court's action was later affirmed on appeal by the Sixth Circuit.
Because of Meyers, physicians have a much higher standard to overcome, in order to get a similar case before a jury. The physician must demonstrate 1) that a genuine issue of fact exists and 2) that a reasonable jury, viewing the facts in the best light for the plaintiff, might conclude that he has shown by a preponderance of the evidence that the actions of the hospital and committee are outside the scope of HCQIA.
In both Meyers and in subsequent cases, physicians have attempted to challenge this summary judgment standard by various legal arguments. One used is that the action taken against the physician was not "fair" because the hearing committee did not include a physician of the same specialty. Another is that the hearing panel did not include a physician, a "peer." Therefore how could it truly be "peer review."
In Meyers, both the Sixth Circuit and the district court looked to the hospital's medical staff bylaws which stated that medical staff members (other physicians) would be appointed to the fair hearing committee only "when feasible." The hospital presented evidence that no medical staff member could serve on the committee at the time when the hearing was scheduled in Dr. Meyers' case. Furthermore, the district court stated that the bylaws of a hospital concerning peer review actions are inconsequential, as long as the HCQIA's fair hearing requirements are met. In the HCQIA, there is no requirement that a physician must serve on a fair hearing committee.
Meyers also provided grounds for justifying professional review actions based a physician's "general behavior and ethical conduct." Disruptive behavior is also enough to justify suspension or termination of privileges, because, according to the district court, "Quality patient care demands that doctors possess at least a reasonable ability to work with others."
Although the Meyers case has been the precedent for disruptive physician cases since 2003, physicians must also be aware of The Joint Commission's standard on disruptive behavior, issued in 2008. This standard affirms that disruptive behavior is enough to justify a hospital's action against a physician, including termination. Physicians can now expect to see even more actions initiated by hospitals and their staffs against any physician deemed uncooperative or disruptive. You can read The Joint Commission's sentinel alert on disruptive behavior here.
If you find yourself at the center of a peer review hearing due to reasons of disruptive behavior, make sure that you contact an experienced healthcare attorney to help you navigate the peer review process. Visit our website at www.TheHealthLawFirm.com for more information.
Friday, April 13, 2012
Medicare Prohibits Waiver of Co-pays and Deductibles; Professional Courtesy Deemed 'Unlawful'
The heavily regulated health care environment of today makes it difficult to practice the time-honored tradition of professional courtesy. Professional courtesy originally referred to the provision of health care to physician colleagues or their families free of charge or at a reduced rate. Many argue, rightfully so, that the Hippocratic Oath even requires this for the patient who is a physician and his or her family. More recently the scope of professional courtesy has been extended to include patients who may face financial hardship, and physicians commonly forgive or waive co-payments to facilitate patient access to necessary medical care.
Because of the government's aggressive approach to ensure that all claims are billed correctly, the once common practice of professional courtesy is now considered illegal. According to the Department of Health and Human Services (HHS), Office of Inspector General (OIG), "It is unlawful to routinely waive co-payments, deductibles, coinsurances or other patient responsibility payments." (67 Fed. Reg. 72,896 (Dec. 9, 2002)). This applies to health care and services paid by Medicare, TRICARE/CHAMPUS, and any other program paid partially or in full with federal funds. It also includes professional courtesy, as well as "take what insurance pays" (TWIP) policies.
Although we know of no prior instance of the OIG or Department of Justice prosecuting a physician’s extension of professional courtesy, arrangements for free or discounted care implicate fraud and abuse laws, including the Federal False Claims Act, and the Federal Anti-Kickback Statute. There have also been private insurance fraud actions based on illegally waiving co-pays and providing discounts that were not extended to the insurer, as well as Federal actions for these violations and using waivers and discounts to induce Medicare patients to use other health care services.
Physicians must be extra cautious in bestowing professional courtesy, including discounts and waivers, so that they are not punished for genuinely good deeds. While there may be situations where it is defensible to not charge for services to health care professionals, the physician should assure that this professional courtesy is not linked to referrals, either in reality or in appearance.
Waiving Co-Pays
Some physicians commonly reduce the cost of care for patients by waiving the co-pay. However, waiving a co-payment has been interpreted as a fraudulent misrepresentation of physician charges against all types of payers. For example, under traditional Medicare, physicians are paid eighty percent (80%) of the "allowable amount" or the "actual charge," whichever is less. In the instance where Medicare allows $100, the program pays $80 and the co-payment amount is $20. By the physician accepting "what insurance pays" as the only payment, this is viewed as the physician's having an actual charge of $80, so the resulting payment from Medicare should be only $64. Therefore, by Medicare's rules. the physician has overcharged Medicare.
Discounts
In the health care industry, a discount is a reduction in the normal charge based on a specific amount of money or a percentage of the charge. To comply with government and insurance policies, the discount must apply to the total bill, not just the part that is paid by the patient. For example, if a patient owes a 20% co-pay on a $25 charge ($5) and the physician applies a discount of $5, then the patient must pay $4 and the insurance company will pay $16.
In addition, private insurance plans and some federal programs have a "most favored nation" clause in their contracts with physicians. This entitles the plan to pay the lowest charge the physician bills to anyone. Any pattern of discounts could result in a reduction in the physician’s allowable reimbursement schedule to the discounted amount.
"Kickbacks" and Inducements to Refer Patients
The federal government and some states have specific laws governing financial transactions between health care providers, including the Medicare Fraud and Abuse laws and the Stark I and Stark II. These laws prohibit any incentives that influence physicians to refer patients. For example, a physician who only extended professional courtesy to other health care providers who referred him or her patients would violate the law.
These laws have been interpreted very broadly by the courts. Any payment or inducement that might have a tendency to affect referral decisions is prohibited, even if it has other valid purposes. Professional courtesy based on being on the same hospital staff would raise the same issues, although the link to referrals is more tenuous. Giving professional courtesy to all physicians without conditions would be more defensible, but if the government could show that a disproportionate number of physicians receiving the courtesy were also referring physicians, the court would probably rule that this was a prohibited inducement.
Penalties
In the past, if physicians violated the terms of their contracts with private insurers, the insurer could refuse to pay the claim and/or deselect the physician from the plan. The insurer could also sue the physician for fraud. However, under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)\ it is now a federal crime to defraud private insurance companies. Violations can result in fines and criminal prosecution.
The federal government can also refuse to pay the claim and can ban the physician from participation in Medicare and Medicaid. In addition, when the physician files a claim for services that were provided in ways that violate the federal regulations, that claim violates the False Claims Act (FCA). Violations of the FCA are punishable by a $5000 per claim fine and imprisonment.
For more information on waiving co-pays and deductibles, health care discounts, professional courtesy and other billing issues, please visit our website at www.TheHealthLawFirm.com.
Because of the government's aggressive approach to ensure that all claims are billed correctly, the once common practice of professional courtesy is now considered illegal. According to the Department of Health and Human Services (HHS), Office of Inspector General (OIG), "It is unlawful to routinely waive co-payments, deductibles, coinsurances or other patient responsibility payments." (67 Fed. Reg. 72,896 (Dec. 9, 2002)). This applies to health care and services paid by Medicare, TRICARE/CHAMPUS, and any other program paid partially or in full with federal funds. It also includes professional courtesy, as well as "take what insurance pays" (TWIP) policies.
Although we know of no prior instance of the OIG or Department of Justice prosecuting a physician’s extension of professional courtesy, arrangements for free or discounted care implicate fraud and abuse laws, including the Federal False Claims Act, and the Federal Anti-Kickback Statute. There have also been private insurance fraud actions based on illegally waiving co-pays and providing discounts that were not extended to the insurer, as well as Federal actions for these violations and using waivers and discounts to induce Medicare patients to use other health care services.
Physicians must be extra cautious in bestowing professional courtesy, including discounts and waivers, so that they are not punished for genuinely good deeds. While there may be situations where it is defensible to not charge for services to health care professionals, the physician should assure that this professional courtesy is not linked to referrals, either in reality or in appearance.
Waiving Co-Pays
Some physicians commonly reduce the cost of care for patients by waiving the co-pay. However, waiving a co-payment has been interpreted as a fraudulent misrepresentation of physician charges against all types of payers. For example, under traditional Medicare, physicians are paid eighty percent (80%) of the "allowable amount" or the "actual charge," whichever is less. In the instance where Medicare allows $100, the program pays $80 and the co-payment amount is $20. By the physician accepting "what insurance pays" as the only payment, this is viewed as the physician's having an actual charge of $80, so the resulting payment from Medicare should be only $64. Therefore, by Medicare's rules. the physician has overcharged Medicare.
Discounts
In the health care industry, a discount is a reduction in the normal charge based on a specific amount of money or a percentage of the charge. To comply with government and insurance policies, the discount must apply to the total bill, not just the part that is paid by the patient. For example, if a patient owes a 20% co-pay on a $25 charge ($5) and the physician applies a discount of $5, then the patient must pay $4 and the insurance company will pay $16.
In addition, private insurance plans and some federal programs have a "most favored nation" clause in their contracts with physicians. This entitles the plan to pay the lowest charge the physician bills to anyone. Any pattern of discounts could result in a reduction in the physician’s allowable reimbursement schedule to the discounted amount.
"Kickbacks" and Inducements to Refer Patients
The federal government and some states have specific laws governing financial transactions between health care providers, including the Medicare Fraud and Abuse laws and the Stark I and Stark II. These laws prohibit any incentives that influence physicians to refer patients. For example, a physician who only extended professional courtesy to other health care providers who referred him or her patients would violate the law.
These laws have been interpreted very broadly by the courts. Any payment or inducement that might have a tendency to affect referral decisions is prohibited, even if it has other valid purposes. Professional courtesy based on being on the same hospital staff would raise the same issues, although the link to referrals is more tenuous. Giving professional courtesy to all physicians without conditions would be more defensible, but if the government could show that a disproportionate number of physicians receiving the courtesy were also referring physicians, the court would probably rule that this was a prohibited inducement.
Penalties
In the past, if physicians violated the terms of their contracts with private insurers, the insurer could refuse to pay the claim and/or deselect the physician from the plan. The insurer could also sue the physician for fraud. However, under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)\ it is now a federal crime to defraud private insurance companies. Violations can result in fines and criminal prosecution.
The federal government can also refuse to pay the claim and can ban the physician from participation in Medicare and Medicaid. In addition, when the physician files a claim for services that were provided in ways that violate the federal regulations, that claim violates the False Claims Act (FCA). Violations of the FCA are punishable by a $5000 per claim fine and imprisonment.
For more information on waiving co-pays and deductibles, health care discounts, professional courtesy and other billing issues, please visit our website at www.TheHealthLawFirm.com.
Monday, April 9, 2012
Florida Pain Clinics Continue to be Targeted by Law Enforcement
Pain clinics in Florida began to feel the pressure of becoming law enforcement's newest target about one year ago. This was based in part on televison "magazine" shows and investigative reporters' shows and articles publicizing many abuses by patients who were "doctor shopping" and physicians who were allegedly "over-prescribing."
More regulations were enacted. Lawmakers began to approve severe penalties for doctors accused of over-prescribing, including prison sentences. Most physicians were banned from dispensing drugs in their offices. A Florida drug "strike team" was created whose mission was to eliminate any pain clinics that were found to be suspicious. The Florida Surgeon General and the Board of Medicine made announcements about the "crackdown" on "over-prescribing."
Since the implementation of the new pain management and prescribing laws, the Florida strike force has made thousands of arrests and seized millions of pills in an effort to curb alleged over-prescribing and prescription drug abuse, according to the Orlando Sentinel.
After a year of strict regulations and punishments for Florida's pain management physicians, pain clinics, pharmacists and pharmacies, the state is continuing to attack the pain management profession. While the planned measures aren't as harsh as those that began a year ago, such as installing prescription drop boxes at police stations, they continue to place a stigma on the practice of pain management - a medical subspecialty with the purpose of alleviating the pain of suffering patients.
In addition, patients with true medical need for prescription pain medications are finding it increasingly difficult to even locate a physician to treat them, given the stigma and the possibility of arrest and prosecution. Medical ethicists have commented on this problem, an issue that will become increasingly problematic for the foreseeable future.
If you work in the pain management industry (physician, pharmacist, pain clinic, pharmacy, etc.) and feel that your medical license, pharmacy license, or business is at risk or is under investigation by the Drug Enforcement Administration (DEA) or Florida Department of Health (DOH), please visit our website at www.TheHealthLawFirm.com for more information about this.
More regulations were enacted. Lawmakers began to approve severe penalties for doctors accused of over-prescribing, including prison sentences. Most physicians were banned from dispensing drugs in their offices. A Florida drug "strike team" was created whose mission was to eliminate any pain clinics that were found to be suspicious. The Florida Surgeon General and the Board of Medicine made announcements about the "crackdown" on "over-prescribing."
Since the implementation of the new pain management and prescribing laws, the Florida strike force has made thousands of arrests and seized millions of pills in an effort to curb alleged over-prescribing and prescription drug abuse, according to the Orlando Sentinel.
After a year of strict regulations and punishments for Florida's pain management physicians, pain clinics, pharmacists and pharmacies, the state is continuing to attack the pain management profession. While the planned measures aren't as harsh as those that began a year ago, such as installing prescription drop boxes at police stations, they continue to place a stigma on the practice of pain management - a medical subspecialty with the purpose of alleviating the pain of suffering patients.
In addition, patients with true medical need for prescription pain medications are finding it increasingly difficult to even locate a physician to treat them, given the stigma and the possibility of arrest and prosecution. Medical ethicists have commented on this problem, an issue that will become increasingly problematic for the foreseeable future.
If you work in the pain management industry (physician, pharmacist, pain clinic, pharmacy, etc.) and feel that your medical license, pharmacy license, or business is at risk or is under investigation by the Drug Enforcement Administration (DEA) or Florida Department of Health (DOH), please visit our website at www.TheHealthLawFirm.com for more information about this.
Monday, March 19, 2012
What You Should Know About Medicaid Audits
The Agency for Health Care Administration (AHCA), Office of Inspector General, Bureau of Medicaid Program Integrity, is the Florida agency responsible for routine audits of Medicaid health care providers to ensure that the Medicaid Program was properly billed for services. Health care professionals receiving the greatest amounts of Medicaid payments are also the ones most likely to be audited. These include pediatricians, Ob/Gyns, family practice physicians and dentists. The Medicaid audit usually requests information in a questionnaire that the medical practice is required to complete, as well as a request for copies of medical records (including x-rays and other diagnostic studies) on the list of Medicaid patients selected for the audit.
If AHCA determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. The amount of the repayment to the Medicaid Program can be considerably greater than (30 to 100 times as much as) the actual amount of overpayment disclosed by the sample of records audited. Additionally, fines and penalties can be added by the Medicaid Program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.
Tips for Your Medical Practice:
There are ways to manage your practice that will help you in the event that you are selected for a Medicaid Audit.
The Medicaid Audit:
If you are being audited, AHCA will send you a letter notifying you of the audit. AHCA will also supply you with a list of patients to be sampled a standard sample will include a list of anywhere from 30 to 150 patient names, depending on the size of the practice. Regular audits routinely request 30 to 50 patient records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a "Certification of Completeness of Records" form to complete and return with the copies of the patient records. (Please note: this will be used against you in the future if you attempt to add to or supplement the copies of the records you provided).
It is crucial that you retain the services of an expert consultant or experienced health care attorney in correctly and accurately completing the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.
If AHCA determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. The amount of the repayment to the Medicaid Program can be considerably greater than (30 to 100 times as much as) the actual amount of overpayment disclosed by the sample of records audited. Additionally, fines and penalties can be added by the Medicaid Program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.
Tips for Your Medical Practice:
There are ways to manage your practice that will help you in the event that you are selected for a Medicaid Audit.
- Every patient record entry should be clearly dated and signed or initialed by the provider. Make sure this is always done.
- When documenting in the patient's record, make sure that you document exactly what services were needed and completed in order to support what was billed to Medicaid.
- Communicate with the person responsible for your billing so that the actual services provided are billed for. Do not bill in advance for anticipated services needed as indicated in the appointment calendar or on a treatment plan.
- Keep the patient records organized and ready for copying if necessary. Use only one sided documents and securely fasten small forms (prescriptions, telephone memos, small sticky notes) onto 8-1/2" by 11" paper. Scan all such documents into the patient record if using an electronic health record (EHR).
- Services provided by a physician who is not enrolled in the Medicaid Program to a Medicaid patient may not be billed to or paid by the Medicaid Program. Therefore, never allow any other physician associated with your practice who is not enrolled as a Medicaid provider to provide services to Medicaid patients. Do not allow a new physician coming in to your practice to treat Medicaid patients until he or she actually has received his or her Medicaid provider number. The group may not bill for the services nor may another physician bill for the services.
- Ensure that all health care professionals' licenses and permits are kept up to date. Ensure that all x-ray, clinical, lab and diagnostic equipment is permitted and kept up to date. Ensure that any CLIA license or exemption certificate is correct and kept up to date. Services billed by unlicensed personnel or services provided by improperly licensed facilities may not be paid by the Medicaid Program.
- Use only standard abbreviations in your medical records, documentation, orders, and reports. While an abbreviation may seem common to you or your practice, if it is not a universally accepted abbreviation, the auditors may not recognize it.
- Make sure all records are timely made, accurate and legible. Safeguard them and never let the original leave your office. Illegible records are treated as a non-record, and payment completely disallowed for an illegible note or order. A missing record, x-ray or chart entry will result in a complete repayment being directed for those services.
The Medicaid Audit:
If you are being audited, AHCA will send you a letter notifying you of the audit. AHCA will also supply you with a list of patients to be sampled a standard sample will include a list of anywhere from 30 to 150 patient names, depending on the size of the practice. Regular audits routinely request 30 to 50 patient records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a "Certification of Completeness of Records" form to complete and return with the copies of the patient records. (Please note: this will be used against you in the future if you attempt to add to or supplement the copies of the records you provided).
It is crucial that you retain the services of an expert consultant or experienced health care attorney in correctly and accurately completing the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.
- When receiving a notice of a Medicaid audit, time is of the essence. Be sure to calendar the date that the records need to be in the AHCA office and have the records there by that date. Note: the due date is not the last date on which you can mail the records but rather is the date that the records must be received at AHCA.
- Obtain and review a copy of the claims you submitted and what Medicaid has paid on each of the patients being audited. This information can be found in the Medicaid portal, in your billing system, or in the Explanation of Benefits. Compare this information to the medical records to see if any issues may arise when AHCA reviews the records. (Keep this for your use, do not provide it as part of the audit records).
- Provide a complete copy of the entire record, not just the parts from the period of time covered by the audit. Remember that other physician records obtained as history, including reports and consultations should be included. Consent forms, medical history questionnaires, histories, physicals, and other physicians' orders, may be a crucial part of the record.
- If you suspect that an issue may arise with a particular patient, prepare a separate explanation to submit with the patient's file. AHCA will have an expert review the records, so an explanation in advance will help the expert to assess if there is in fact an issue. Any explanatory notes or other explanations should be clearly labeled as such and dated as of the date actually prepared, so there is no confusion as to whether or not it was part of the original record.
- If your practice involves taking x-rays or using other diagnostic studies, these procedures are part of the patient's record. If the x-rays are digital, they can be submitted on a compact disc. Be sure to include the number of x-rays on the compact discs in the Certification of Completeness of Records.
- Complete the Medicaid Provider Questionnaire in its entirety to send with the patient records. Do not leave any section blank. Use "not applicable" or "none" if necessary. Attach all required documents. Consult with an experienced health law attorney to assist in completing the form.
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