Medical Necessity: It’s a Clinical Documentation Necessity

medical necessityBy: Jacqueline Bain

Recently, a Florida-based physician practice specializing in pain management was ordered to pay the Federal Government $7.4 after it was determined that the group’s physicians were ordering medically unnecessary drug screens and billing Medicare for those tests. Federal prosecutors contended that the group’s physicians had appropriately ordered initial drug screens on many patients, but had inappropriately ordered more extensive (and more expensive) follow up tests nearly 100% of the time. Moreover, patient medical records did not reflect the need for more extensive testing.Continue reading

HIPAA Compliance: Docs, You’ve Been Hacked. What’s Next?

HIPAABy: Jacqueline Bain

Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.

HIPAA is a federal law designed for safe disclosure of patient’s protected health information.  The news headlines showcase giant penalties for violations.  However, Florida healthcare providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act.  So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.

So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure?  Responses vary based on the situation presented, but below is a good jumping off point:Continue reading

Healthcare Change of Ownership in Business

healthcare change in ownershipBy: Jacqueline Bain

The amount of regulation imposed upon those entering into the healthcare business arena can be staggering even for a highly experienced businessman. In the business world, buying and selling businesses is often accompanied by lawyers, documents and consultants.  In the healthcare business world, buying into and selling healthcare businesses, or any portion of health care businesses, requires all of that support and much more.

Diving into a healthcare business requires many considerations that are unique to other areas of business. First, appropriate licensing bodies must be notified and/or approve any such purchase or sale. For instance, in the State of Florida:

  • the Department of Children and Families must be notified every time a new owner becomes a part of a licensed substance abuse treatment center and prior to taking ownership, must either submit to a level 2 background screen or provide proof of compliance with the level 2 background screening requirements.
  • the Agency for Health Care Administration must be notified sixty days prior to any change in ownership and will run a background check on new owners.
  • the Agency for Health Care Administration must be notified every time a new owner is added to an entity holding a Health Care Clinic License. Additionally, AHCA must approve any owner of more than 5% of the Health Care Clinic prior to such person becoming an owner.

Continue reading

Physicians: Start Preparing for 2016 Changes in Healthcare

By: Jeff Cohen

Stepping into 2016, physicians and medical practices must continue to be vigilant about the changing landscape in healthcare.  Those who adapt quickly and smartly will thrive, while those who don’t will lose.  What can they do?

Stabilize

Stability for medical practices requires two things:  clear analytics and fixes.  Smart medical practices will examine threats outside the practice and within it.  As far as external threats go, the key area to focus on is competition.  Do you know what competitors are doing and how they’re different than you?

Internal threats are general revealed in the form of (a) employees that need better training and communication, (b) employees that just need to go, and (c) creating a succession plan for the practice.  If the practice is top heavy with older physicians, what plan is in place to ensure that “new blood” is brought in?  What recruitment strategies are in place?  Can the practice go it alone or does it need a recruitment arrangement with a hospital that can demonstrate a community need?  How will the older physicians phase out?  Is there a plan in the corporate documents to make sure phase out is slow and planned?  What do departing physicians get?  What about billing and collection?  When was the last time that was analyzed?  And finally, coding analysis.  Is money being left on the table?  Far too many practices actually undercode visits and services out of fear of payer audit.  Apart from constituting a False Claims Act violation (though regulators are not fast to indict providers who are underpaid), the differential can mean the difference between a good year and a bad one.

Finally, in light of the fact that regulatory and recoupment activity has never been higher, practices would do well to ensure compliance via a self-audit and compliance plan.  This is a different animal than a coding audit.  This one looks at all contractual relationships to ensure compliance and augments coding compliance.  Continue reading

T’was the night before the First Tuesday after the First Monday in March, and all through the House (and the Senate…)

stem cell bill

FLBy: Dave Davidson

It’s that time of year.  People are scrambling around, deciding what they want to give and what they want to get.  Brand new packages are being wrapped up and filed away.  Excitement and tension fill the air. Everyone can’t wait for the big day; but in this season that big day doesn’t happen until the first Tuesday after the first Monday in March.  But it’s never too early to start getting ready, right?  In fact, the Florida Legislature is currently in session, drafting and filing bills that the sponsors hope will be considered in March and will become law in 2016.  And as usual, health care is on a lot of legislative wish lists.  Although all of these bills are subject to significant revision, and some may never make it out of a subcommittee, here’s a sneak peek of some of the proposed health care legislation (without editorial – for now).

Scope of Practice Expansion

Three categories of health care professionals may see significant expansion of the scope of their practice.

Both Advanced Registered Nurse Practitioners and Physician Assistants would gain the right to prescribe controlled substances pursuant to Senate Bill 676.  Most of the details about specific medications and dosages is left to an administrative committee, but the bill seems to anticipate broad authority.  The bill also adds references to ARNPs and PAs throughout the Florida Statutes, indicating a willingness to accept these professionals into a significant role in the delivery of care.  Additionally, SB 572 would add PAs and ARNPs to the list of providers who can certify that an individual meets Baker Act criteria to justify a patient’s involuntarily confinement for mental health reasons.Continue reading

Medicare Physician Fee Schedule Full of Surprises

Bill Tracking SpyglassBy: Jeff Cohen

When new healthcare regs come out, we all get excited.  “What sort of nuggets will I find that could be useful?”  Sometimes the regs have useful things and sometimes, they’re just disappointing and frustrating.  The proposed changes to the 2016 Medicare Physician Fee Schedule are a mixed bag.  Allow me to illustrate:

The incident to rules may be changed to require only the ordering physician to supervise the performance of the service.  Currently, any physician in a group practice could supervise the performance of an incident to service (which allows the practice to bill for the service as though it had been performed by the ordering physician);

Qualified telemedicine services that are furnished via an interactive telecom system can be furnished by a physician or authorized practitioner for an additional list of services, including CRNAs.  This is a big change that expands the list of authorized providers;

The feds propose to characterize certain Stark Law violations as “technical,” which means they pose no financial risk to the Medicare program.  Examples include unsigned or expired agreements;Continue reading

The Reality of the “Economic Realities Test”

contractBy: Valerie Shahriari & Jacqueline Bain

Across the healthcare industry, providers and healthcare businesses are consistently faced with the decision of whether to employ or contract with their workers.  Whether it’s a physician working with a group practice, or a marketer on behalf of a healthcare service, correctly structuring relationships between healthcare businesses and their workers is important.  For tax reasons, many workers strongly prefer to enter into independent contractor relationships.  However, simply calling oneself an independent contractor is not enough to solidify the relationship.  Many times, workers who call themselves independent contractors are actually employees in the minds of the government.  And sometimes, so-called “employees” with several part-time positions are actually viewed as independent contractors.

On July 15, 2015 the Administrator of the Department of Labor’s Wage and Hour Division (WHD) provided additional guidance regarding the application of the standards for determining who is an employee under the Fair Labor Standards Act (FLSA).  The goal of the guidance is to help the regulated community in classifying workers and decreasing misclassification.  The Administrator’s Interpretation reviews the pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA.  The Administrator’s Interpretation then addresses each of the factors of the “economic realities test”.

According to the Administrator, when determining whether a worker is an employee or independent contractor, the application of the economic realities factors should be guided by the FLSA’s statutory directive that the scope of the employment is very broad.  The FLSA’s definitions establish the scope of the employment relationship under the Act and provide the basis for distinguishing between employees and independent contractor.

The Supreme Court and Circuit Court of Appeals have developed a multi-factorial “economic realities” test to make the determination whether a worker is an employee or an independent contractor under the FLSA.  The test focuses on whether the worker is economically dependent on the employer or in business for him or herself.  The factors include:Continue reading

Value Based Payments Gaining Traction – CMMI Oncology Care Model

443 Providers sign up for the CMMI Oncology Care Model including numerous providers in Florida.  The Oncology Care Model is a new payment model for physician practices administering chemotherapy.  Practices receive reimbursement via an episode based payment model that incentivizes high quality coordinated care.  Letters of Intent from payers (several of which are Florida payers) wishing to participate in the new model were submitted and Letters of Intent from providers wishing to participate were also submitted.  A list of those payers and providers who submitted LOIs can be found at http://innovation.cms.gov/initiatives/Oncology-Care/ .

If you would like to learn more about value based payments for your practice, Attorney Valerie Shahriari is offering a free webinar on June 24, 2015.  Registration is now open: “Preparing Your Practice for an Incentive Based Payment Structure”

 

New OIG Advisory Opinion Frowns on Proposed Lab/Physician Arrangement

OIG crestMarch 25, 2015 Advisory Opinion No. 15-04 addresses a proposed arrangement involving a clinical/anatomic lab’s desire to position itself as the single lab recommended by practices.

The proposal arises in the context of the OIG Advisory Opinion process, which allows the OIG to opine on its view of how the federal anti-kickback statute might view a proposed arrangement.  Though Advisory Opinions are not “law,” they do provide good insight into prosecutorial intent.

Facts Presented

The clinical/anatomic lab (“Lab”) wanted to have agreements with physician practices to provide all their lab services.  To deal with the fact that some commercial insurers have exclusive arrangements with labs,  the Lab proposed that if a practice patient’s insurer required the patient to use another lab, the Lab would waive all fees for the affected practice patients and would not bill the patient, the medical practice or the patient.  The Lab would provide its services to these “exclusive patients” for free, while billing all other patients (and/or their insurers, including governmental payers) its fee scheduled or contracted rates.  The proposed arrangement would allegedly simplify things for the practices and keep lab results uniform.  A practice patient would be required to use the Lab.  The Lab’s services would simply be offered by the practices to their patients.  The Lab stated that the provision of free services to certain practice patients would not provide any financial benefit to the practices, although the lab would provide the practice a limited-use interface.  Samples would not be drawn in physician offices.Continue reading

Houston Court Brings the Heat in Payer Provider Case

bcbs lawsuitBy: Jeff Cohen 

A recent Texas District Court case took the usually frustrating ERISA dynamics applicable in payer provider disputes and upended them in a way that helped the provider.  There (Cigna v. Humble Surgical Hospital, Civ. Action No. 4:13-CV-3291, U.S. Dist. Ct., S.D. Tex., Houston Division), the court was faced with an out of network hospital sued by CIGNA to recover payments made.  In particular, the case involved—

  • An out of network hospital (HSH);
  • HSH set its prices higher than neighboring in network hospitals;
  • HSH billed Cigna members for deductibles and coinsurance at in network rates, but billed Cigna on an out of network basis;
  • Cigna alleged that the billing practices of HSH caused Cigna to pay more than its required share under applicable plans, even though plan members paid little or nothing at all;
  • Cigna also alleged HSH paid owner physicians referral fees to induce patient referrals; and
  • Cigna sought to recover payments made to HSH.

The case is a departure from the usual scenario, which involves (a) providers suing payers for payment and relying on state laws to do so, and (b) provides side stepping those state laws by successfully arguing that the federal ERISA law applies (which usually offers provides less favorable remedies).Continue reading