Physician Practices

Fraud and Abuse Update: St. Joseph’s Hospital Health Center Agrees to Pay $3.2 Million to Resolve Allegations that it Violated the New York False Claims Act

August 3, 2016 | Little Health Law

gavel-952313-m On August 1, 2016, the United States Department of Justice (DOJ), through the United States Attorney’s Office, Northern District of New York issued a press release regarding the DOJ’s resolution of fraud allegations against St. Joseph’s Hospital Health Center (St. Joseph’s). No determination of fraud by a Court has been determined nor have the allegations of fraud been proven. Our Georgia healthcare law firm follows legal developments with regard to healthcare reimbursement and fraud and abuse.

The Federal Government’s allegations against St. Joseph concern the state’s Medicaid program. The DOJ alleged that St. Joseph’s staff was not qualified to provide certain mental health services for which Medicaid reimbursement was sought and obtained. St. Joseph provided the services in question under its program known as the Comprehensive Psychiatric Emergency Program (CPEP). The CPEP maintained a mobile unit that would serve patients in particular counties who could not, or would not, access mental health crisis intervention services available in the emergency room. New York law has regulations with which CPEPs must comply. Those State regulations delineate the proper composition of professional staff who must be involved with the applicable intervention services when such services are provided somewhere other than in the emergency room. Reimbursement for such services is expressly conditioned upon compliance with the New York regulations that govern proper staffing.

The DOJ alleged that St. Joseph violated the New York False Claims Act by submitting payment to Medicaid for “mobile-crisis outreach services” by individuals who did not meet New York’s CPEP qualifications to provide such services. The alleged violation of the New York False Claims Act was premised on the submission of claims for payment without disclosing that St. Joseph’s staff (allegedly) failed to meet the qualification requirements under State law for the particular services provided. St. Joseph’s agreed to pay $3.2 million to conclude the matter.

Senate Finance Committee Proposes Changes to STARK Law

July 8, 2016 | Little Health Law

law-education-series-3-68918-m In a Senate Finance Committee Majority Staff Report (the Senate Report) entitled, “Why Stark, Why Now?”, the Committee’s Chairman, Senator Orrin Hatch, argues that changes are needed to Stark Law.

Georgia Stark Law and Physician Self-Referral Attorneys

The Senate Report is, at a minimum, a strong indicator that calls for change in the law are heard and efforts are underway to evaluate improvements to the law.

A Brief History of Stark Law

Stark Law is Federal physician self-referral law premised upon the notion that physicians are prone to order (i.e., “refer”) more medical items and services if they stand to benefit financially from doing so. For example, where a physician has an ownership interest in a lab to which he refers patients, he will incentivized to send more patients to the lab for lab work.

Thus in 1989 Representative Fortney “Pete” Stark (D-CA), of whom the statute was named, proposed the law to address two perceived adverse consequences of financial incentives for physician self-referrals of medical items and services reimbursed by a Federal healthcare program: (1) overbilling of Federal healthcare programs; and (2) the provision of medical services that do not benefit a patient. Stark Law, Section 1877 of the Social Security Act, codified at 42 U.S.C. § 1395nn, as originally passed, was a fairly straightforward and narrow prohibition that precluded a physician from referring patients or specimens to clinical labs, including physician office labs, where labs paid for by fed programs (Medicare, Medicaid, or CHAMPUS) if the physician (or immediate family member) had a “financial relationship” with the lab. Indeed, Pete Stark declared in sponsoring the law that the intent was to create a “bright line” standard that would benefit physicians and protect Federal healthcare programs. But the law did not remain simple and expanded from the straightforward lab referral context to apply to a list of services and items known as “Designated Health Services,” identified by CMS billing codes.

General Accounting Office Issues Findings Regarding Medicare Appeals Backlog

July 1, 2016 | Little Health Law

files Earlier this month, the United States General Accounting Office (GAO) issued its monthly anticipated report (the Report) to Congress about the status of the Medicare Appeals backlog. The Report states on the first page, “Opportunities Remain to Improve Appeals Process,” which is a gross understatement and will likely be received with frustration by unpaid providers. At least it appears the backlog is on Congress’ radar and someone is trying to do something to improve this very difficult problem that adversely impacts so many providers.

CMS Announces Medicare’s New Primary Care Reimbursement Initiative, “Comprehensive Primary Care Plus”

April 25, 2016 | Little Health Law

usa-dollar-bills-1431130-m CMS recently announced what it describes as the largest-ever multi-payer initiative to improve primary care in America,” known as Comprehensive Primary Care Plus (CPC+). Though much of the press release is couched in terms of improving patient care — and surely CPC+ is intended to do so — the real impetus appears to be the government’s critical need to control healthcare costs funded by federal programs.

Atlanta/Augusta, Georgia Physician Practice Lawyers

The idea is to support a new primary care delivery model that will incentivize and reward value and quality. The current Administration’s goal is to have 50% of all Medicare fee-for-service payments made via alternative payment models by 2018. The Center for Medicare and Medicaid Innovation, which exists pursuant to Section 1115A of the Social Security Act (added under the Affordable Care Act) for the purpose of testing new payment and service delivery models, developed CPC+ as part of its mission, to aid the federal government in its efforts to curb its healthcare costs and enhance the quality of healthcare delivery.

Healthcare Providers and Business Partners Get Ready: The Next Phase of HIPAA Audits is Here

March 28, 2016 | Little Health Law

medical-doctor-1314902-m The U.S. Department of Health & Human Services (HHS) announced its preparation to move into its next phase of audits of healthcare covered entities and their business associates. According to HHS, “[t]he 2016 Phase 2 HIPAA Audit Program will review the policies and procedures adopted and employed by covered entities and their business associates to meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules.” Physicians, medical practices, other providers and healthcare businesses, and their business associates, should take steps to ensure they are current and compliant with respect to HIPAA requirements.

Federal Investigation/ Medical Audit Lawyers

HHS is charged by federal law with the responsibility to enhance and protect the health and well-being of all Americans. To that end, HHS, through its Office of Civil Rights (OCR), endeavors to ensure high quality health and human services and promote advances in medicine and public health. Federal law known as the Health Information Technology for Economic and Clinical Health Act (HITECH) requires HHS to conduct periodic audits of healthcare providers and their business associates to ascertain compliance (or lack thereof) with the HIPAA Privacy Rule, the HIPAA Security Rule, and the HIPAA Breach Notification Rule. The HIPAA Privacy, Security and Breach Notification Rules, though very important to our government’s efforts to protect protected health information (PHI), are additional burdens for those in the business of providing healthcare and their business partners who might have access to PHI.

A few years ago, OCR used a “pilot” audit program to assess a sampling of covered entities’ progress in implementing HIPAA’s requirements for protecting PHI. Now, utilizing the information obtained by its pilot audit program, OCR will begin auditing both healthcare providers and their business associates. Beginning this year, OCR will review and analyze policies and procedures adopted by covered entities and business associates against the requirements of the HIPAA Privacy, Security and Breach Notification Rules.

Physician Employment and Contracting

March 7, 2016 | Little Health Law

to-sign-a-contract-2-1221951-m In making a decision to pursue medicine and healthcare as a livelihood, it is likely that most physicians today did not contemplate the extent to which legally binding contracts would govern and impact their professional lives. Few other careers carry the same potential for commitment to so much paper and binding agreements that simultaneously foster professional opportunities and create hazardous legal and professional risks (for example, a non-compete agreement that bars future employment needed to avoid selling the house and moving; a contract with a hospital system that memorializes a compensation arrangement but, unbeknownst to the doctor when he signs, violates STARK law). In this day, all physicians should be mindful of the critical importance of good contracting principles and practices.

Physician employment

The healthcare industry, perhaps more dramatically than other industries, is prone to changes, trends, and developments. A sustained trend has been physician employment (versus private practice ownership). In the 1990s, with the evolution of HMOs, the industry trended toward high levels of physician employment, a trend that petered out some during the 2000s with decreasing physician employment as HMOs dissolved. In recent years, however, the healthcare industry returned to a strong trend toward physician employment driven by numerous factors derived from healthcare “reform.” Whether the current physician employment trend is more permanent than the last one is unknown, but some experts predict that the high level of physician employment is here to stay. As reported last year in the Dallas/Forth Worth Healthcare Daily, some experts believe that physicians’ need for stability with regard to future income will drive a lasting employment trend.

Medicare Reimbursement and Legal Issues in End of Life Planning

February 29, 2016 | Little Health Law

romanticism-1309299 Of the 2.5 million people who die in the U.S. in a year about 75% of those are 65 and older. As such, Medicare is the largest insurer of the cost of medical treatment during the last year of life, according to an article by the Henry J. Kaiser Family Foundation. Given this reality, health care providers regularly encounter practical questions and concerns about end-of-life issues. Examples of patient and provider concerns in end-of-life care include: Who is authorized to make medical decisions for patients unable to understand and decide for themselves? Does a patient want to receive artificial nutrition and hydration if in a coma? Does a patient wish to be resuscitated regardless of their medical condition? How can patients communicate and provide proof of their wishes about end-of-life medical decisions in a way that their families and health providers know and understand, and the law will support?

To ensure that a patient’s wishes are followed in the immediacy of meeting medical needs at the end of life, patients and their families should plan ahead to consider their options, make decisions, and communicate their wishes to their physicians and other health care providers in advance. Recognizing the significance to patients and providers in discussing end-of-life plans, effective January 1, 2016, Congress has authorized Medicare reimbursement to health providers for time spent in such discussions.

Physicians Continue in Trend of Medicare Opt Outs

February 4, 2016 | Little Health Law

medical-doctor-1314903-m In the past two decades, a growing number of physicians in private practice dissatisfied with reimbursement rates, paperwork and other aspects of the federal Medicare program have opted out of the program. According to an article by William Buczko available on the Centers for Medicare and Medicaid Services (CMS) website that explains the history and details of the Medicare Opt Out process: 2,839 physicians and other providers opted out of Medicare between 1998 and 2002. They comprised 0.42 percent of providers eligible to opt out in that period.

Since then, those numbers have continued to grow, with Medicare officials recently reporting about 4 percent of U.S. physicians and other providers having opted out.

The Opt Out Process

The Medicare Opt Out process requires three steps, according to an article by Physicians Practice. These include:

DOJ Concludes Medicare Billing Investigation and Issues Press Release: Medicare Billing Company Will Pay $500,000 to Settle False Claims Allegations

January 25, 2016 | Little Health Law

US-SUP-CT This week the United States Department of Justice (DOJ), through the United States Attorney for the Southern District of New York, Richard S. Hartunian, announced a settlement with Medical Reimbursement Systems, Inc. (MRI) of DOJ’s allegations that MRI submitted false claims to the Federal TRICARE Program in violation of the Federal False Claims Act (FCA). According to the DOJ investigation, MRI falsely presented claims to TRICARE as “HPSA” claims. MRI paid $500,000 to resolve the issue with DOJ.

Healthcare Law and Medical Billing

TRICARE is a Federal health care program for about 9.5 million beneficiaries that include active duty service members, National Guard and Reserve members, retirees, as well as the families of such. “HPSA” stands for Health Professional Shortage Areas, which (like sister Medically Underserved Areas known as “MUAs”) are designations based upon Federal standards applied by the United States Health and Human Services (HRSA).

Legal and Compliance Concerns in Telemedicine and Other Healthcare Technology in 2016

January 5, 2016 | Little Health Law

mobile-phone-in-hand-1438231-1-m High on the list of trends in the healthcare industry in 2016 is the advancement of technology in the diagnosis and treatment of disease and medical conditions. According to a recent online article in Healthcare Finance, thirty-two percent of consumers in 2015 had at least one health, medical or fitness app on their mobile devices. Such apps can be useful for primary care and chronic disease management, among other areas. Telemedicine will continue to grow in 2016 as well, with physicians and other health providers consulting and treating patients remotely. Providers increasing their use of technology can expand the geographic reach of their practice to include a greater number of patient consumers. Indeed, the Affordable Care Act anticipates and encourages the use of telemedicine and other remote technologies as an efficient and cost-effective method for expanding the reach of healthcare services.

Of course, with the increasing use of technology in healthcare comes attendant legal and compliance concerns, ranging from issues of patient privacy and cybersecurity to state regulatory and medical ethics requirements governing patient care, billing and reimbursement.

Providers considering increasing their use of telemedicine and other technology in the provision of services should first evaluate the legal and regulatory issues carefully, understanding that federal and state entities have specific definitions, compliance and legal requirements governing these practices. Some concerns as to this mode of healthcare delivery are as follows: