Health Care Compliance Watch

Providing Midwifery Services As Part of Your Obstetrics Practice: Benefits and Compliance Considerations

Ilana Sable — Fri, 30 Dec 2011 10:09:06 -0500

Obstetrics practices located in New Jersey and New York can increase revenue and efficiently allocate a substantial portion of their daily patient care by incorporating the services of certified midwives and/or certified nurse-midwives into their practices. Generally speaking, midwives are certified to attend to low risk pregnancies, attend during childbirth and to provide post partum care. Certified nurse-midwives may prescribe certain drugs, as authorized by the licensor-states and as outlined in their governing collaboration and/or affiliation agreements with a supervising physician.

In New Jersey, in order to provide patient care, “certified midwives” are required to enter into a written affiliation agreement with a New Jersey licensed physician who holds hospital privileges in operative obstetrics/gynecology. The affiliation agreement must set forth clinical guidelines that will outline the certified midwife’s scope of practice.

In New York, “licensed midwives” are required to establish and maintain a collaborative relationship with (i) a licensed physician who is board certified as an obstetrician-gynecologist by a national certifying body, (ii) a licensed physician who practices obstetrics or (iii) a hospital that provides obstetrics through a licensed physician having obstetrical privileges at such institution. The collaborative relationship must provide for consultation, collaborative management and referral to address the health status and risks of his or her patients and must include plans for emergency medical gynecological and/or obstetrical coverage.

As with other non-physician practitioners (“NPPs”), obstetrics practices can issue medical bills to commercial payors, Medicare and/or Medicaid for services provided by certified midwives and certified nurse-midwives. Depending on the method by which the midwife services are billed to the insurance carrier (i.e., using the name and national provider identifier (“NPI”) number of the midwife versus the name and NPI of the supervising physician’s as “incident to” the services provided by the physician) the midwife services, on average, will be reimbursed at a rate similar to that which would be paid if the services where performed by a physician.

The “midwife” license is only offered in a small number of states (New Jersey and New York offer the midwife license). Because these services are payable and reimbursable by insurance carriers and they offer obstetric practices the opportunity to treat patients in an efficient, cost effective, manner without actively utilizing the time and supervising physician(s).

New Jersey "Health Care Professional Responsibility and Reporting Enhancement Act" Provides Immunity for Entity-to-Entity Employee Reference Requests

Ilana Sable — Mon, 26 Dec 2011 16:08:54 -0500

A persistent concern for many health care entity-employers (“Entity-Employers”) is retaliation from a disgruntled former employee after the Entity-Employer responds to a “reference request” with negative, albeit truthful, information about the former employee. Often times, the Entity-Employer will choose not to respond to the reference request or will omit key information found in the former employees personnel file in the hopes of avoiding future conflict or retaliation (usually in the form of a lawsuit). However, the State of New Jersey found any failure to report on the part of Entity-Employer to be a danger to patient safety and welfare and, accordingly, enacted the Health Care Professional Responsibility and Reporting Act (“HCPRREA”) in response.

In New Jersey, pursuant to the HCPRREA, Entity-Employers are prohibited from, among other things, withholding certain information about current or former employees from other health care entities that request information. Entity-Employers are further provided with immunity from civil liability for reporting employment related information to another health care entity.

In Senisch v. Carlino, et. al., 2011 N.J. Super. Lexis 211 (Decided December 1, 2011 Superior Court of New Jersey, Appellate Division), the Appellate Division upheld a finding that, pursuant to HCPRREA and related case law, Entity-Employers are immunized from civil liability for reporting to another health care entity if said reporting complies with the HCPRREA’s provisions.

In Senisch, Plaintiff was a physician assistant formerly employed by Defendant Deborah Heart and Lung Center (the “Cardiology Center”). Plaintiff had been terminated from his employment with the Cardiology Center because of stated deficiencies in his performance. When Plaintiff attempted to obtain different employment the new employer sought a reference from the Cardiology Center. The Cardiology Center responded to the request with negative information from the personnel file of Plaintiff.

The Appellate Division affirmed the trial court’s findings and held that:

[The HCPRREA] … prohibits health care entities from withholding certain information about current or former employees from other health care entities that request the information. The relevant parts of the Act state:

a. A health care entity, upon the inquiry of another health care entity, shall truthfully:

. . . .

(2) provide information about a current or former employee's job performance as it relates to patient care, as provided in this section, and, in the case of a former employee, the reason for the employee's separation.

. . . .

c. A health care entity, or any employee designated by the entity, which, pursuant to this section, provides information in good faith and without malice to another health care entity concerning a health care professional, including information about a current or former employee's job performance as it relates to patient care, is not liable for civil damages in any cause of action arising out of the provision or reporting of the information.

Accordingly, the Appellate Division concluded that the Defendants could not be held liable in a civil lawsuit for responding to a reference request with negative information from the personnel file of Plaintiff.

Circumventing Exclusion from Insurance Carrier Networks: A Formula for the Fraudulent Practice of Medicine

Ilana Sable — Sun, 11 Dec 2011 13:07:06 -0500

Health care providers who have been excluded from participation with certain insurance carriers often approach me for guidance concerning their options (if any) for continuing their existing relationships - and possibly treatment – with patients who are insured by the “excluding” insurance carrier. While the reasons for “exclusion” are quite varied and have differing degrees of severity (depending on the particular insurance carrier and type of exclusion that is involved), in almost all cases, exclusion from network participation means that the excluded provider cannot treat patients insured by the excluding insurance carrier, whether directly or indirectly. Provider arrangements made to circumvent exclusion may, among other things, be deemed the “fraudulent practice of medicine” and may carry serious, permanent, consequences for both the excluded provider and any provider assisting the excluded provider with the circumvention.

In the Matter of Josifidis v. Daines, 2011 NY Slip Op 7891 (decided November 10, 2011, Appellate Division, Third Department) the Third Department confirmed a determination of the Hearing Committee of the New York State Board for Professional Medical Conduct (the “Committee”) which, among other things, revoked the medical license of Petitioner Harry Josifidis (the “Excluded Provider”) for the fraudulent practice of medicine. In doing so, the Third Department confirmed the Committee’s finding that the Excluded provider circumvented “his exclusion from insurers’ networks by using another physician’s name.”

The relevant facts underlying the Third Department’s decision are as follows:

“[The Excluded Provider] was excluded by certain health insurers from being reimbursed as an in-network provider for treatment rendered to their insureds as the result of a prior disciplinary action. [The Excluded Provider] thereafter entered into an agreement with another physician (hereinafter the other physician) by which the other physician’s name appeared on claims submitted to the insurers for [the Excluded Provider’s] treatment of in-network patients.

The Excluded Provider, in an effort to “explain” the legality of the circumvention arrangement, argued that “he relied on the other physician’s representations that their arrangement was ‘lawful and appropriate’” and that “he entered the agreement to provide his patients with continuity of care rather than for profit.”

The Third Department concluded that “[s]ubstantial evidence in the record shows that [the Excluded Provider] repeatedly submitted bills in the other physician’s name for services he had provided in order to receive payment from insurers who had specifically excluded him from being reimbursed for such services…. Accordingly, [the Third Department found] that the Committee properly rejected [the Excluded Provider’s] explanation and substantial evidence in the record supports its determination.”

Five Levels of Appeal Available for Medicare RAC Overpayment Determinations

Ilana Sable — Wed, 02 Nov 2011 09:42:25 -0500

Providers, physicians and other suppliers who receive unfavorable overpayment determinations by Medicare Recovery Audit Contactors (“RACs”) for services and supplies provided to Medicare beneficiaries under Part A and Part B have up to five levels of appeal available to them. This process is exactly the same for all providers, physicians and suppliers who want to appeal a Medicare claim decision. The five levels of appeal are as follows:

1. Redetermination is performed by the claims processing contractor

2. Reconsideration is performed by the Qualified Independent Contractor (QIC)

3. Administrative Law Judge (“ALJ”) Hearing

4. Appeals Council Review

5. Final Judicial Review (Federal District Court Review)

First Level of Appeal: Redetermination

A redetermination is an examination of a claim by Medicare processing contractor personnel (i.e. Fiscal Intermediary; Medicare Administrative Contractor) who are different from the personnel who made the initial determination. The appellant (the individual filing the appeal) has 120 days from the date of receipt of the initial claim determination to file an appeal. A minimum monetary threshold is not required to request a redetermination.

Second Level of Appeal: Reconsideration

A party to the redetermination may request a reconsideration if dissatisfied with the redetermination. A Qualified Independent Contractor (“QIC”) will conduct the reconsideration. The QIC reconsideration process allows for an independent review of medical necessity issues by a panel of physicians or other health care professionals. A minimum monetary threshold is not required to request a reconsideration.

Third Level of Appeal: Administrative Law Judge Hearing

If at least $130.00 remains in controversy following the QIC’s decision, a party to the reconsideration may request an Administrative Law Judge (“ALJ”) hearing within 60 days of receipt of the reconsideration. Appellants must also send notice of the ALJ hearing request to all parties to the QIC reconsideration and verify this on the hearing request form or in the written request. The amount in controversy threshold for as of 2010 is $130.

Fourth Level of Appeal: Appeals Council Review

If a party to the ALJ hearing is dissatisfied with the ALJ’s decision, the party may request a review by the Appeals Council. There are no requirements regarding the amount of money in controversy. The request for Appeals Council review must be submitted in writing within 60 days of receipt of the ALJ’s decision, and must specify the issues and findings that are being contested.

Fifth Level of Appeal: Judicial Review in U.S. District Court

If at least $1,300.00 or more is still in controversy following the Appeals Council’s decision, a party to the decision may request judicial review before a U.S. District Court Judge. The appellant must file the request for review within 60 days of receipt of the Appeals Council’s decision. The amount in controversy required to request judicial review is increased annually by the percentage increase in the medical care component of the consumer price index for all urban consumers. The amount in controversy threshold for 2011 is $1,300.

For more information about the Medicare Appeals process, please see the Medicare Appeals Process brochure (pdf) issued by the Department of Health and Human Services, Centers for Medicare and Medicaid Services.

Employing Non-Physician Practitioners: Benefits and Compliance Considerations

Ilana Sable — Mon, 17 Oct 2011 07:57:48 -0500

Traditionally, it was only “doctors” that provided medical care to patients – likely with the help of some sort of unlicensed assistant – and doctors would, therefore, limit their billing (and revenue) to the services that they, individually, provided. In recent years licensed and/or certified non-physician practitioners (“NPP’s”) have begun to provide an increasing amount and variety of medical care to patients and, accordingly, increase the amount of reimbursement and revenue to health care practices that utilize the services of an NPP.

The regulations and statutes regarding NNP education, scope of practice, supervision and training are primarily based on state laws and, in many ways, differ from state to state. The designation and variety of NPP’s also vary from state to state, but, generally speaking, NPP’s can be categorized as follows:

Advanced Practice Nurse
Certified Registered Nurse Anesthetist
Clinical Nurse Specialist
Clinical Psychologist
Clinical Social Worker
Nurse Midwife
Nurse Practitioner
Occupational Therapist
Physician Assistant
Physical Therapist
Speech Pathologist
Surgery Assistant

Billing and Reimbursement for Non-Physician Practitioner Services

Reimbursement received by health care practices for services provided by NPP’s varies substantially among federal, state and commercial payors, and should be thoroughly evaluated prior to submission of medical bills. For instance, Medicare will reimburse for services provided by certain NPP’s in private physician practices when:

(1) The bill for NPP services is submitted using the NPP’s own name and national provider identifier (“NPI”) number. The NPP is reimbursed at eighty-five (85%) percent of the Medicare physician fee schedule.

(2) The bill for NPP services is submitted using the supervising physician’s NPI as “incident to” the services provided by the physician. The NPP’s services will be reimbursed at One Hundred (100%) percent of the Medicare physician fee schedule. Further, if covered NPP services are furnished, then services and supplies furnished incident to the NPP’s services may also be covered.

In order for a health care practice to submit a bill to Medicare for NPP services provided “incident to” the services of the supervising physician, the following criteria must be met:

(a) The NPP services must be performed under the direct supervision of the physician as an integral part of the physician’s personal in-office service (this does not mean that each occasion of an incidental service performed by a NPP must always be the occasion of a service actually rendered by the physician.

(b) There must be a direct, personal, professional service furnished by the physician to initiate the course of treatment of which the service being performed by the NPP is an incidental part, and there must be subsequent services by the physician of a frequency that reflects the physician’s continuing active participation in and management of the course of treatment;

(c) The supervising physician must be physically present in the same office suite and be immediately available to render assistance if that becomes necessary;

(d) Also, a physician might render a physician’s service that can be covered even though another service furnished by a NPP as incident to the physician’s service might not be covered.

In practice, this translates to the following criteria:

(1) The supervising physician initially sees the patient (or sees the patient at a previous visit) and initiates the plan of care that the NPP is carrying out.

(2)The supervising physician remains involved in the patient’s care and continuously documents this involvement in the patient’s medical record.

(3)The NPP is an employee and/or independent contractor associated with the physician practice.

(4)The supervising physician (or another physician of the physician practice) must be in the medical office at all times that the NPP provides services and must be immediately available to intervene in the patient’s care if medically necessary.

Commercial payors, on the other hand, are free to set their own policies and guidelines for credentialing NPP’s and providing reimbursement for their services. Some commercial payors are willing to credential NPP’s and allow NPP services to be reimbursed using the NPP’s own provider number or instruct physician practices to bill for services provided by the NPP under the supervising physician’s provider number as “incident to” the services provided by the supervising physician. Other commercial payors simply refuse to reimburse for services provided by an NPP altogether. It is also important to note that a health care practice may be able to negotiate the reimbursement rate provided by certain commercial carriers for services provided by NPP’s.

Additionally, federal, state and commercial payors each have unique restrictions and guidelines concerning an NPP’s ability to examine and treat new patients, patients with new or worsening conditions, and so forth. Accordingly, health care practices should always request and keep on file each payor’s written policy concerning qualification, billing, coding and reimbursement of NPP services.

What Are The Benefits Of Using A Third Party Medical Billing Company?

Ilana Sable — Mon, 03 Oct 2011 05:45:05 -0500

Over the past few years health care providers have reported an increasing surge in the outsourcing of medical billing and collections to third party medical billing companies. The outsourcing surge stems from a number of factors, most of which are focused on increasing revenue and surviving payor scrutiny.

First, health care providers rely on medical billing companies to assist them with processing claims in accordance with applicable rules, regulations, laws and statutes (“health care laws”). With the increasing complexity of the health care industry, the demand for familiarity with health care laws can be overwhelming for health care providers and will often require the education, knowledge and skill of an independent professional.

Second, health care providers are increasingly consulting with medical billing companies to provide them with timely and accurate advice regarding reimbursement matters and overall business decisions. Medical billing companies normally support a variety of providers and organizations with different specialties and, therefore, have a unique insight to reimbursement issues, as well as diagnosis and procedure code utilization and optimization. The critical component is a medical billing company’s ability to conduct practice-to-practice comparisons and data mining of coding, billing and collection patterns.

Third, medical billing companies normally have professionals dedicated to specific specialist and/or process areas, thereby increasing employee efficiency, skill and knowledge within the assigned area. For instance, professionals skilled in collecting unpaid cardiology claims will have the benefit of uncovering and monitoring payor patterns of rejection and denial, and will have the insight to determine which coverage determinations are worth fighting or which coding practices to alter.

Fourth, in most cases a medical billing company will consistently provide clients with customized practice reports and analytics that offer an in depth look at key metrics an allow the provider to make informed, strategic, decisions concerning billing, coding and collections. While most of this data and analysis can be conducted in-house, is often underutilized or overlooked altogether with small physician practices.

Finally, another issue that small physician practices face with in-house medical billing is hiring, training and maintaining an adequate medical billing staff. Normally, small physician practices allocate one to two designated staff members for medical billing and collection purposes and suffer the consequences of insufficient and inefficient staff in the form of timely filing issues, timely appeal issues, lack of follow up and collections, contractual allowances and, ultimately, write offs.

It is important to note that third party medical billing companies significantly vary in terms of the type of services provided and the manner in which these services are provided for their respective clients. For example, some medical billing companies provide coding services for their clients, while others only process pre-arranged Superbills that have already been coded by the provider. Additionally some medical billing companies offer a spectrum of management services, including patient intake support, accounts receivable management and debt collections.

The main question to consider when determining whether to use an in-house medical billing professional or to outsource to a outside medical billing company is “what are you coding and billing, and why?” If the answer to this simple question is not supported by customized practice reports and analytics, strategic and informed, decisions concerning the coding, billing and collections choices made for each patient, and driven by the voluminous rules, regulations and statutes affecting health care practice, then the answer is flawed and is likely costing the practice critical revenue.

Appearance Enhancement and Weight Loss Franchises: Is Your Franchise System Practicing Medicine?

Ilana Sable — Wed, 31 Aug 2011 08:35:52 -0500

Appearance enhancement and weight loss businesses that involve licensed professionals or that require a specialized business license will face complicated regulatory considerations when franchising their business. These regulatory considerations are heightened in states with strong corporate practice of medicine statutes in that the products, procedures and/or services offered by these franchise concepts may implicate what, in certain instances, may be considered the practice of “medicine.”

Is your franchise concept unlawfully practicing medicine or implicating applicable health care related regulations and/or statutes?

If you are starting an appearance enhancement or weight loss franchise, or would like to evaluate your existing concept, you must conduct a comprehensive review with a focus on the following issues:

1. Corporate Practice of Medicine and Anti-Fee Splitting Statute. In many states, professional health care related services can only be offered by licensed health care professionals or authorized professional health care organizations. Similarly, certain federal and state regulations and statutes further mandate that licensed health care professionals and professional health care organization cannot share the fees that they earn for providing professional services with any individual or organization other than members of their own professional organization.

2. Implication of Stark Laws and Prohibited Self-Referrals. The Stark laws and anti self-referral statues prohibit, with varying degrees, medical practices and/or facilities from submitting - and Federal and/or state regulated health care programs from paying - any claims for certain designated health service if the referral of the designated health service comes from a physician with whom the medical practice and/or facility has a prohibited financial relationship. Depending on the services being offered by the appearance enhancement center, the Stark laws or anti self-referral statutes can be violated depending on the business arrangements developed for the concept.

3. Implication of Anti-Kickback Statutes. Depending on the structure of the arrangement, certain joint ventures, service agreements and/or management arrangements raise a number of compliance concerns and, in many situations, can implicate both the federal and state-specific anti-kickback statutes. Accordingly, once the full appearance enhancement or weight loss concept is outlined, it is important to evaluate the proposed business arrangement in light of these, among other, federal and state-specific regulatory and compliance concerns to determine whether the desired regulatory balance can be reached and maintained.

For more information concerning the franchising of your health care related concept, please contact Ms. Ilana Sable or visit www.hccwlaw.com.

For additional information concerning setting up a franchise the following article is recommended:

How to Franchise Your Business

Four Steps that Health Care Providers Must Take When Employing or Contracting With Employees, Physicians, Vendors and Other Affiliated Parties

Ilana Sable — Fri, 29 Jul 2011 10:32:46 -0500

Health care providers participating in governmental health care programs, including Medicare or Medicaid, must confirm, when employing or contracting with a physician, employee, vendor or other affiliated party, that the individual or entity is not excluded from participation in any governmental health care program.

The U.S. Department of Health and Human Services Office of Inspector General (“OIG”)has the authority to impose civil monetary penalties against any health care provider that employs or contracts with an individual or entity that the provider knows or should know is excluded from participating in any federal health care program, including Medicare. Furthermore, most state governments also impose sanctions against health care providers that employ or contract with individuals or entities that are excluded, on either the federal or state level (or both), from participating in governmental health care programs.

Accordingly, health care providers must, prior to employing or contracting with any individuals or entities and periodically during the term of the employment or contract, confirm whether the individual or entity is excluded, debarred or suspended from participating in any federal or state-specific health care program.

Health care providers can use the following four steps to conduct their participation investigations when employing and/or contracting with individuals or entities:

1. Initial Review. When conducting your initial review, it is critical that the proposed employee or contractor be reviewed on both a federal and state-specific level.

a. Federal Review. The following websites contain information concerning individuals and entities excluded from federal health care programs and are excluded from receiving federal contracts, certain subcontracts, and certain federal financial and nonfinancial assistance and benefits:

· http://oig.hhs.gov/exclusions/exclusions_list.asp

· https://www.epls.gov/epls/search.do

· http://www.treasury.gov/resource-center/sanctions/SDNList/Pages/default.aspx

To obtain the most comprehensive review result, a full criminal background check should be conducted and should incorporate a criminal background review in all fifty states.

b. State-Specific Review. Each state has its own review regulations concerning provider exclusion, debarment, termination and/or suspension. In the State of New York, health care providers are obligated to conduct participation reviews on a monthly basis and, in addition to conducting the federal reviews, New York State based reviews should, at a minimum, focus on the following lists:

· http://www.omig.ny.gov/data/content/view/72/52/

· http://www.op.nysed.gov/opd/rasearch.htm

· http://www.health.ny.gov/professionals/doctors/conduct/

· http://www.op.nysed.gov/opsearches.htm

· http://www.nydoctorprofile.com/welcome.jsp

For a listing of state-specific Medicaid sanction lists, please see: http://www.omig.ny.gov/data/images/stories//state_sanc_url_list.pdf

2. Demand Representations from the Employee or Contractor. Health care providers can ask on employment and/or vendor applications whether the individual or entity is now or has in the past been excluded, debarred or suspended from participating in any federal or state health care program.

3. Document Every Step of the Participation Review Process. Make sure to print the results of each participation review (including the search parameters and results of each individual website that is visited) that you conduct and that you retain in the individual employee/contractor file the results of each exclusion review.

4. Incorporate the Participation Review Plan Into the Organizations Compliance Program. As with any other compliance obligations imposed on a health care provider, it is important to streamline the participation review process by incorporating a set of written guidelines that employees and compliance personnel will follow into the organizations comprehensive compliance program. For more inforamation about comprehensive compliance programs for all health care practices and facilities, please visit the following website.

New Jersey Bill Proposes Debilitating Blow to Single-Room Surgical Centers

Ilana Sable — Fri, 24 Jun 2011 08:45:04 -0500

Daniel Cook of Outpatient Surgery Magazine recently reported on a pending New Jersey State bill that may effectually close many single-room surgery centers in the State of New Jersey. On May 26, 2011, the New Jersey State Senate introduced an amended bill that proposes to increase regulation and taxation to single-room surgery centers and, most critically, requires all surgery centers to be licensed by the New Jersey Department of Health and Senior Services regardless of their size. Licensure would be contingent upon the surgery center's fulfillment of certain design standards and, in many cases, will require complicated re-designs of certain single-room surgery centers that existing locations cannot support.

For more information on the amended bill see Mr. Cook’s full report in Outpatient Surgery Magazine.

"Corporate Practice of Medicine" Regulations Require Health Care Practices and Facilities to Thoroughly Craft and Evaluate Professional Service Arrangements

Ilana Sable — Thu, 16 Jun 2011 08:02:27 -0500

For health care practices and facilities, employing and/or “partnering” with physicians and other licensed health care professionals is a necessary part of doing business. The profitable advantages and increased revenue that come with offering the services of a licensed health care professional often drive health care practices and facilities to find creative methods for proffering these service arrangements. However, depending on the state within which the health care practice of facility sits, many service arrangements implicate “corporate practice of medicine” regulations and must be thoroughly crafted and evaluated to avoid regulatory violations.

Most states have laws and regulations that prohibit – in varying degrees - the “corporate practice of medicine” by certain business entities and unlicensed individuals making it extremely important to fully evaluate the regulatory implications and validity of the proposed corporate structure or partnership. Moreover, while largely dependent on the state within which the health care practice or facility is located, there also exist statutory “exemptions” to the “corporate practice of medicine” and various methods for organizing and structuring a health care practice or facility in order to lawfully employ and/or partner with a physician or other licensed health care professionals.

In the State of New York, individual practitioners, professional partnerships, professional corporations, professional limited liability companies and professional service corporations (where all shareholders are licensees of one profession and whose members practice only that profession) are all authorized to offer professional services. Additionally, several statutory exemptions exist for hospitals and other health care “facilities” allowing these licensed/accredited organizations – often owned and/or managed by unlicensed health care professionals - to offer the services of physicians and other licensed health care professionals.

Most states also maintain “fee-splitting” or profit sharing regulations which mandate that licensed health care professionals or professional firms cannot share with other than members of their own professional firm the fees earned for providing professional services. The fee-splitting regulations normally coincide with the individual state’s corporate practice of medicine regulations and have similar degrees of prohibition.

For more information on the corporate practice of medicine laws and regulations in New Jersey and New York, please visit www.hccwlaw.com.

Compliance Considerations for Accredited Office-Based Surgery Practices When Hiring Employees and Contractors

Ilana Sable — Tue, 22 Mar 2011 08:14:14 -0500

For New York State accredited office-based surgery practices (“OBS”), the terms of continued accreditation (varying with an OBS’ specific accrediting agency) often come with strict requirements and guidelines concerning the hiring and retention of employees and independent contractors. Most unexpected (and often overlooked by OBS employers) are the requirements and guidelines that reach far beyond the customary licensure and/or certification requirements and expand into areas that an OBS employer might consider (understandably) to be “private business decisions” or “matters of professional judgment.” It is in these outlying areas that OBS employers must be well versed in order to avoid inadvertent compliance breaches.

When hiring new employees and/or independent contractors, OBS employers must review their accreditation manuals with a specific focus on the following categories of employees and/or contractors:

(a) Registered Nurses: when hiring Registered Nurses, OBS employers must confirm, among other things, (i) instances of treatment requiring the presence of a Registered Nurse(s) (including pre and post operative care), (ii) licensure, continuing education and liability insurance requirements, (iii) requirements concerning maintenance of medical records and supporting documentation and (iv) reporting requirements concerning adverse events;

(b) Physicians’ Assistants and/or Specialists’ Assistants: with regard to Physicians’ Assistants and/or Specialists’ Assistants, special attention must be give to rules and regulations concerning (i) the presence and/or supervision of a physician at the OBS facility, (ii) availability of and/or access to a physicians upon request of the patient, (iii) maintenance of medical record, auditing and quality control initiatives, (iv) licensure, continuing education and liability insurance and (v) reporting requirements concerning adverse events;

(c) Anesthesiologists: in addition to the state and federal laws concerning and/or affecting financial and work relationships among physicians (i.e., Stark Laws, Anti-Kickback Statutes, False Claims Act), OBS employers must review all rules and regulations concerning: (i) the Anesthesiologist’s access and availability to patients, (ii) pre and post operative care directives, (iii) directives concerning maintenance and support of Anesthesia equipment, medication and/or supplies, (iv) maintenance of medical records, auditing and quality control initiatives, (v) board certification, licensure, continuing education, and liability insurance and (vi) reporting requirements concerning adverse events;

It is important to note that most of these “employment requirements” can be outlined as conditions of employment in an employment contract or independent contractor agreement between the OBS employer and the employee/contractor. Documenting and outlining relevant accreditation-mandated employment requirements, in addition to clarifying the potential employee/contractor’s responsibilities and obligations, demonstrates a good faith effort to comply with all applicable accreditation mandates and delegates applicable accountability.

Most Wanted Health Care Fugitives List is HHS OIG's Latest Attempt at Social Outreach and Fraud Prevention

Ilana Sable — Mon, 07 Feb 2011 08:38:29 -0500

With hundreds of millions of dollars lost to health care related fraud and abuse, the Office of Inspector General (“OIG)” of the Department of Health & Human Services (“HHS”) launched its first ever “Most Wanted Fugitives List” this month. Of the 170 fugitives that the OIG is currently seeking on charges related to health care fraud and abuse, it is reported that the 10 individuals on the Most Wanted list make up the lion’s share of the amount lost - allegedly defrauding taxpayers of more than $124 million.

The Most Wanted list is the latest of several social outreach tools recently implemented by the HHS OIG and various other government agencies to aim at the end-consumer – namely, the tax payer, the recipient of government sponsored health care and/or the provider of services - in an effort to foster consumer involvement, fraud prevention and accountability.

Factors to Consider When Purchasing Medical Equipment for Your Health Care Practice

Ilana Sable — Sun, 07 Nov 2010 19:27:06 -0500

Purchasing a piece of medical equipment is often the largest single-item expense for a health care practice and must be treated as any other critical business decision. The practice’s due diligence investigation must include independent research as to the quality and function of the equipment, a targeted cost-benefit analysis and a thorough review of the lines of business that the practice intends to offer with the new equipment. Unfortunately, practices tend to rely on the “pitch” and representations of the sales rep presenting the equipment and often lose track of the analysis that must be conducted.

Over the past few months I have been meeting with an increasing number of practitioners that, after entering a lease and/or finance for a very expensive piece of medical equipment, find that their practice (a) does not have a sufficient patient base to test/treat with the equipment, (b) has a sufficient patient base to test/treat with the equipment but the testing/treatments do not bring in enough revenue to support the cost of the equipment, (c) need additional equipment, software, and/or professionals to use the new equipment and/or (d) are not being reimbursed by insurance carriers for the testing/treatments. Many practitioners note that the sales reps who originally presented the equipment made certain misrepresentation and/or omitted certain information which later led to the practices inability to recover the expected revenue (i.e. “the rep did not tell me that I needed to buy the software for the equipment separately” or “I did not know that the manufacturer was distributing coupons which I would be obligated to honor.” Most of these practitioners find themselves before a court where the signed contract reigns supreme.

For these reasons, it is always important to approach any medical equipment purchase with the following questions in mind:

Is the testing/treatment indicated by the machine a “covered” procedure by major insurance carriers? In particular, practices will need to determine whether carriers readily reimburse for the testing/treatment implicated by the machine and what the average rate of reimbursement is.
Is the testing/treatment implicated by the machine considered “experimental” by major insurance carriers for the purposes intended by the practice and what is the “medical necessity” threshold for performing the testing and/or treatment? In most cases, procedures considered “experimental” by the insurance carrier are not payable without prior authorizations, if at all. Moreover, practices will need to determine how common the intended testing/treatment is and what population of patients are authorized to receive the testing/treatment in the ordinary course of business.
What CPT codes and/or diagnosis codes are implicated for the equipment? In particular, practices will need to find out whether the intended CPT codes are considered exploratory "test" codes and what diagnosis codes support the intended CPT codes.
What amount of tests/treatments must be performed per month to cover the monthly expense associates with the equipment and whether the practice's current patient base requires that amount of testing/treatment? This information is necessary to budget for the new medical equipment.
Did the manufacturer/distributor of the equipment issue any rebates and/or coupons to end-users that the practice will be obligated to honor? If possible, the practice must try to narrow down the manufacturers/distributors prior and future incentives to end-users and incorporate the manufacturers/distributor representations into the written agreement.
Is there any additional software, training and/or components that the practice will need to purchase prior to or after using the equipment? Will the manufacturer/distributor provide software/hardware updates when available? Again, the practice can negotiate these issues and memorialize them in the written agreement.

CMS Using Three New Tools for Social Outreach: Can YouTube be the Answer?

Ilana Sable — Mon, 18 Oct 2010 09:11:44 -0500

The Centers for Medicare and Medicaid Services ("CMS") have launched a series of outreach tools and social networking initiatives in an effort to effectively educate and update providers on the constantly changing rules, regulation and coverage activities affecting their practices. Below are three new informational tools that providers are encouraged to access and follow:

(1) CMS YouTube Channel. While geared toward both beneficiaries and providers, the CMS You Tube channel features a catalog of educational videos on an array of healthcare-related topics, including Recovery Audit Contractors and Process Based Quality Improvements. The YouTube Channel is a recommended for providers looking to access basic information on key media issues.

(2) Medicare Quarterly Provider Compliance Newsletter. The quarterly newsletter is intended to help physicians, providers, suppliers and their billing staffs understand how to avoid certain billing errors and other improper coverage activities when dealing with the Medicare Fee-For-Service program. You can find Volume 1, Issue 1 here (pdf).

(3) MLN Matters Articles. MLN Matters are national articles designed to inform the physician, provider, and supplier community about the latest changes to the Medicare program and are prepared in consultation with clinicians, billing experts, and CMS subject matter experts. The MLN Matters Articles provide ready access to Medicare coverage and reimbursement rules in brief, accurate and easy to understand format and explain critical and up-to-date provider information in an effort to reduce the amount of time that providers need to incorporate these changes into their Medicare-related business functions.

The Conversion to ICD-10, the "Y2K Bug" and an Apocalypse: A Case for Human Hysteria

Ilana Sable — Mon, 04 Oct 2010 09:00:00 -0500

For the past few weeks, my inbox has been flooded with a wave of literature focused on the upcoming conversion to the ICD-10 coding system. In almost every instance, the subject line has an extremely serious message such as “don’t be left behind” or “avoid delays in claims processing.” While I am typically an advocate for preparation and being a “go to” person, I do not see the benefit in a health care practice’s extremely early study and implementation of the ICD-10 coding system. The CMS mandated conversion date is three years away (currently set for October 1, 2013) and the entire health care industry currently uses ICD-9.

To date claims processors, insurance carriers, billing and coding programs, electronic health records systems - not to mention Medicare and Medicaid - have not yet converted to ICD-10 and are not prepared to support, receive and/or process medical bills coded to ICD-10. Furthermore, a health care practice will be hard-pressed to find a billing and coding program or an EHR system that fully supports ICD-10.

The alarm surrounding the conversion to ICD-10 is reminiscent of the alarm surrounding the health care industry’s conversion to electronic claims processing a few years back. The similarity exists in that whether or not a practice is ready to implement a new system, namely, electronic claims processing or ICD-10 coding, the practice’s unilateral implementation is useless until processors, carriers and payors are ready to interface with the new system. The lesson learned is that the health care industry, as a whole, needs to jump on board with this type of massive system overhaul. Once the industry is ready for conversion, there will be a plethora of information, training, demonstrations and hassle for the taking.

For more information on the implementation date, logistics and so forth, see the dedicated ICD-10 page on the CMS website.

The Largest Takedown in Medicare Strike Force History and Your Health Care Practice: The Next Layer of Compliance Guidance

Ilana Sable — Mon, 20 Sep 2010 05:59:10 -0500

In the largest federal health care takedown in the history of the Medicare Fraud Strike Force, ninety-four people throughout Baton Rouge, Brooklyn, Detroit, Houston and Miami were charged for their alleged participation in schemes to collectively submit more than $251 million in false claims to the Medicare program

The charges stemmed from various Medicare fraud-related offenses, including conspiracy to defraud the Medicare program, criminal false claims, violations of the anti-kickback statute and money laundering. The false claims identified and targeted by the Medicare Fraud Strike Force directly mirror the “issues under review” identified by Medicare’s Recovery Audit Contractors (“RACs”), including the RAC for Region A (covering New York and New Jersey). Practices looking to identify procedures and/or services that are being targeted by auditors, investigators and/or reviewers should see the issues under review for their regional RAC and, in particular, the targeted abuse discussed by the RAC.

In this historic takedown, the Medicare Strike Force identified participation in schemes to submit claims to Medicare for treatments that were medically unnecessary and oftentimes never provided for the following procedures and/or services:

physical therapy and occupational therapy schemes
home health care services
HIV infusion fraud
Durable Medical Equipment (DME)
Nerve conduction tests
IV infusion therapy

Electronic Health Records and the Medicare / Medicaid Incentive Program: Five Reasons to Hold Off on Purchasing an Electronic Health Records Product

Ilana Sable — Tue, 07 Sep 2010 06:18:20 -0500

If your health care practice has not yet purchased and/or converted to an Electronic Health Records (“EHR”) product, there are, at minimum, five reasons why your practice should consider holding off on making the purchase for a few more months.

To date, no EHR product has been certified as capable of meeting the criteria to support “meaningful use and quality eligible providers and hospitals” for funding under the American Recovery and Reinvestment Act (“ARRA”). In fact, it was only on August 30, 2010 that the Office of the National Coordinator for Health Information Technology announced that it had approved two organizations – CCHIT and The Drummond Group - to act as Authorized Testing and Certification Bodies (“authorized body”) to begin certifying EHR products. Eligible professionals, hospitals and critical access hospitals participating in the incentive program must use an EHR product certified by an authorized body to receive benefits.
Providers hoping to participate under the Medicaid Incentive Program will not have complete “meaningful use” criteria until (and unless) each individual State launches its additional requirements for meaningful use. States choosing to launch a Medicaid Incentive Program will do so beginning in January, 2011. In doing so, each State will be required to identify four (4) additional core “meaningful use” objectives for their Medicaid providers. Until each State has identified its individual core objectives, Medicaid providers have no way of knowing whether, and with what functionality, an EHR product can fulfill the practices specific EHR needs.
Most EHR products will require upgrades and/or additions before becoming certified EHR products. Most EHR products on the market today will need to (a) be upgraded and/or (b) add new functionality to meet the criteria of a certified EHR product. For instance, CCHIT certified less than thirty EHR products - there exist three hundred+ vendors on the market today - as meeting “Preliminary ARRA” requirements (“Preliminary ARRA” certification was given to EHR products that were tested against and met the published certification criteria and standards in the HHS Interim Final Rule of January 13, 2010).
Registration for the EHR Incentive Programs does not begin until January, 2011. Providers will not be able to register for an EHR incentive program until January, 2011 and attestation for the Medicare Incentive Program will not begin until April, 2011. Accordingly, while early use of an EHR product may have distinct and undisputable benefit to any health care practice, in terms of the incentive programs there is no immediate need to commit to any one product until data on certified EHR technology is available.
Multiple demonstrations and training are critical to making an informed decision. Providers are encouraged to begin conducting their search for an EHR product early on and to audit as many products as possible. Moreover, once a practice has narrowed its EHR search down to a particular product, it is encouraged to participate in multiple demonstrations and to include its key employees (i.e. medical billers and coders, compliance officers, nurses and intake personnel) for individual feedback and criticism. Keep in mind that demonstrations by sales representatives and individual software testing can take a few hours each time so the sooner providers begin researching and testing these EHR products, the easier it will be to make an informed decision when the time to purchase an EHR product comes.

How to Use the CMS Approved Audit Issues as Compliance Guidance for Your Medical Practice

Ilana Sable — Fri, 06 Aug 2010 08:39:34 -0500

While it is impossible to pinpoint the exact areas that Recovery Audit Contractors (“RACs") will target when reviewing medical bills sent to Medicare, each regional RAC is required to post its current “issues under review” and disclose to the public the specific codes and/or procedures currently being audited by automated reviews (where no medical record is involved in the review).

For instance, the “issues under review” identified by Region A - Diversified Collection Services (which audits New York and New Jersey, among other states) are:

• IV Hydration

• Bronchoscopy services

• Blood transfusions

• Untimed Codes

• Neulasta: J2505; injection, Pegfilgrastim, 6mg

• Once In A Lifetime codes

• Newborn/Pediatric codes (i.e. newborn pediatric codes Billed for patients exceeding age limits)

• New patient visits

• Duplicate claims - Part B only

• Global billing of radiology or diagnostic tests in the facility setting

• Add-on codes

If your medical practice provides services that are identified as “issues under review,” the first step in any internal review and self-audit is to have the practices medical biller(s) and performing physician(s) review: (a) the applicable local coverage determinations (“LCDs”) and (b) the “issue description” and “issue references” disclosed with the specific “issue under review.” In most cases, the practice can easily correct the “issue” being audited by using an alternate code, submitting claims that are more detailed and/or limiting the services to allowable: beneficiaries, duration, frequency or levels.

Is Your Medical Practice Complying with Medicare's Documentation Requirements?

Ilana Sable — Wed, 28 Jul 2010 06:07:37 -0500

All medical pracites participating in and submitting medical bills to the Medicare program must comply with the following documentation requirements:

There must exist sufficient documentation in the provider’s records to verify that the services were provided to eligible beneficiaries;
Medicare’s coverage and billing requirements must be met (including that requirement that the services be reasonable and necessary); and
Services must be provided at the appropriate level of care and must be coded correctly.

These requirements are especially important when providers receive Additional Documentation Requests (“ADR’s”) from Medicare contractors or are subject to an audit. It is important to note that, upon request by a Medicare contractor (including a Recovery Audit Contractor), medical documentation must be submitted within forty-five days of the date of the request. If the provider (a) fails to submit documentation or (b) provides insufficient documentation for the services billed, Medicare takes the position that that there is no justification for the services or level of care billed and will either deny the claim or consider any prior payment an “overpayment” and request that the provider repay the amount previously paid on the claim. Moreover, now that Medicare’s RAC program has been extended to each state, ensuring that your medical practice is compliant with Medicare’s documentation requirements is an absolute necessity.

In addition to Medicare and Medicaid, medical practices must be mindful of documentation requirements imposed by their specific state as well as insurance carriers. Accordingly, when evaluating a practice’s medical records and medical documentation, providers are encouraged to conduct internal audits and investigations, and identify corrective actions that promote compliance with all of the administrations and agencies that regulate medical practices.

What Protection Do Medicare Providers Have When Being Audited by Recovery Audit Contractors?

Ilana Sable — Mon, 26 Jul 2010 05:41:37 -0500

When implementing the Recovery Audit Contractor (“RAC”) program, Medicare incorporated a variety of limitations and requirements that RACs are required to abide by when conducting audits of Medicare providers. Most significantly, Medicare providers should be aware of the following mandates when being audited by a RAC:

When conducting audits, RACs are limited to looking back up to three years from the date a claim was paid, with a maximum look back date of October 1, 2007.

RACs are limited in the number of medical records that they can request from a provider within a forty-five day period (medical record limits depend on the type and size of the practice).

RACs must accept and review extension requests if providers are unable to submit documentation in a timely manner.

After submission of an Additional Documentation Request (ADR) letter, RACs must initiate at least one additional contact with the provider before issuing a denial for failure to submit documentation.

When reviewing Evaluation and Management (“E/M”) services, RACs cannot look for incorrect levels of service (reviews of E/M services are limited to, among other things, reviews for duplicate claims and/or payments, unbundling and violations of global surgery rules).

RACs are prohibited from reviewing claims that were previously reviewed by another Medicare contractor (i.e. Medicare Administrative Contractors (“MACs”) or that underwent a Prepayment Review.

These points are not exhaustive and demonstrate the need for providers to understand their rights and protections when going through the audit process. The RAC program was designed with ample controls and provider protections, and it can be extremely costly and time consuming (if not debilitating) when Medicare providers fail to enforce their rights and protections when being audited by a RAC.