Beginning January 1, 2013, healthcare organizations owned by both chiropractors and M.D.s (or D.O.s) will have to obtain a Florida Health Care Clinic License (HCCL) in order to take care of patients whose care is compensated by PIP. These sort of “integrated practices” are clearly on the upswing, especially after the tough new PIP Clinic regulations were passed this year, which makes providing care to patients injured in motor vehicle accidents tricky.Continue reading
There continues to be terrific interest in accountable care organizations (ACOs), which are of course a financially risk-based model of providing healthcare to patients who choose to enroll in the Medicare Shared Risk Program. ACO organizations are often led by hospitals and hospital systems, though occasionally by physician organizations. One of the key common threads among these provider led ACOs is the fear of being left out of “the game,” the fear of losing out financially. This fear, however, can lead physicians to run headlong into danger if and when they sign ACO documents.
One of the key ways ACOs get formed involves a stack of contracts being created, then shoved under physicians’ noses. Doctors afraid to lose out tend to just sign. The organizations are really to blame here, when the documents fail to contain material terms to deal with things like: credentialing criteria, disciplinary procedures, financial provisions, how the financial up side or down side can affect physician compensation. The documents are simply slid under their noses and, in fear of being left out, they get signed! Or, as my buddy Rodger says “Ready, shoot, aim.”
Regardless of a doctor’s view of ACOs, no document ought to be signed unless all the questions raised by them are addressed, very clearly and in writing. Be at the table with ACO organizers and do your best to design a good system, but don’t be naïve to think that the unaddressed portions will magically get filled in somehow in a way that benefits you or that even makes sense. At the very least, wait until the document is complete, then consider if you want to sign it.
Durable medical equipment is commonly sold through sales leads generated through telephone and/or internet contact. These leads often begin with a seemingly innocuous internet survey or an application for something unrelated to DME. This “raw” lead may be as basic as a person’s name, telephone number or email address, and age. The lead is then further developed and “qualified” by obtaining more details about the subject; such as: whether and by whom the subject is insured, what (if any) medical issues does the subject suffer from, the name of the subject’s physician. Ultimately, the lead is sold to a DME vendor who uses the lead to accomplish the sale of medical equipment or supplies. In the course of a lead’s birth and life, it is handled by a chain of companies, some of whom purchase the lead, add a level of detail to it, and sell it for a higher price. In the past year or so, several lead generation companies from the “middle of the chain” have come to me asking me whether their business model gives rise to an illegal kickback. After a bit of research, I gave the lawyerly answer: “It depends.”
The Federal anti-kickback statute provides that it is a felony for a person or entity to knowingly and willfully offer or pay any remuneration to induce a person to refer an individual for the furnishing or arranging for the furnishing of any item for which payment may be made under a Federal health care program, or the purchase or lease or the recommendation of the purchase or lease of any item for which payment may be made under a Federal health care program.[1] Florida’s corollary to this Federal law is the Florida Patient Brokering Act, but the Florida statute applies to all health care services, regardless of whether paid for by a Federal program.[2] The Federal law creates criminal liability, and includes a knowledge requirement. Congress recognized that business models exist that may appear as willfully paying remuneration in exchange for a referral, but which have more innocent motivations, and are less likely to result in abuse to the health care program at issue. In order to give the health care industry a measure of comfort, Congress created several “safe harbors.” If a business model fits within a safe harbor, then it is deemed to not be an illegal kickback under Federal and Florida law.
The Department of Health and Human Services Office of the Inspector General (“OIG”) is the agency charged with enforcing the Federal anti-kickback statute. In November 2008 the OIG considered a situation in which an advertising company created a website that would give prospective patients contact information for a list of chiropractors in their area, in response to a zip code entered by the prospect. The prospect paid nothing for the service, but the chiropractors paid the advertiser a fee for each call or contact from the website that lasted over thirty seconds, regardless of whether the contact resulted in a prospect becoming a patient. This scenario is as close as the OIG has come to opining on a typical DME lead generation.
The OIG found that the chiropractors’ advertising service was not a prohibited kickback, and cited four factors as convincing: (i) the advertising company is not a health care provider or supplier, and is only affiliated with the health care industry through the arrangement at issue; (ii) the advertising program did not target Federal health care program beneficiaries; (iii) the fees paid by the health care practitioners did not depend upon whether the prospect actually became a patient; and (iv) the advertising program did not steer patients to a particular chiropractor.
When applied to the DME context, the OIG opinion and the anti-kickback statutes suggest that leads can be sold for a per-lead fee as long as the leads are not priced, and do not contain information so detailed, such that the purchaser can cherry-pick those leads it wants to purchase based on the likelihood that the lead will result in an actual sale of covered DME. For example, a “raw” lead comprised simply of a prospect’s name, contact information, and interest in speaking with a DME supplier is probably the sort of lead that could be sold for a per-lead fee without running afoul of the anti-kickback prohibitions. As more and more information is added to the lead, such as the type of DME products of interest to the prospect, information regarding the prospect’s insurer and plan coverage, the purchaser will be better able to determine whether the lead is likely to result in a sale of DME (a “qualified” lead). At a certain level of detail, a lead morphs from lead that can be sold on a per-lead basis, to a referral that cannot.
A lead generation company can sell highly detailed qualified leads if that sales relationship fits within the safe harbor for “Personal Services and Management Contracts.”[3] That safe harbor requires that: (a) the aggregate compensation to be paid under the contract must be fixed in advance; (b) the compensation must be consistent with fair market value in an arm’s-length transaction; and (c) the compensation must not be determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made by a Federal health care program. The requirement that the compensation be fixed in advance does not tolerate a per-lead fee. Fixed in advance would be a weekly, hourly, annual fee.
So, if you are in the lead generation business, your liability for buying or selling health care referrals probably depends upon how detailed and “qualified” the lead is at the time of your transaction. The safe tack is to structure your transactions so that they fit within the safe harbor for Personal Services and Management Contracts so that just in case your leads are qualified enough to constitute “referrals.”
This article focuses on anti-kickback liability associated with DME leads, but there is also liability attached to how the lead is originated, and how the prospect is contacted. Lead generation companies are often well-served by committing their relationships to written agreements with advice from appropriate counsel.
When Florida’s legislators meet each year, change is sure to follow. Some of the changes this year include:
Therapeutic Spa Services are now defined under the nursing home law (Chapter 400) as “bathing, nail and hair care services and other similar services related to personal hygiene.” The new law will likely trigger the development of regulations that will affect how such services can be provided to residents of nursing homes and related facilities.
The Florida Health Care Clinic Law (400.990) has been changed to allow exempt “big businesses” from the licensure requirements. Those include—entities that have $250 Million or more in annual sales (if one of the owners is a Florida licensed healthcare professional who is responsible for compliance) and those which employ 50 or more Florida licensed M.D.s or D.O.s who provide services under single tax ID number. These changes may help physician integration moves but also benefit large corporate healthcare providers.
The state anti kickback law (483.245) was expanded to clarify that it is illegal for a clinical lab to provide (in any way at all) personnel to perform “any functions or duties” in a doctor’s office unless the lab and the doctor’s office are owned by the same legal entity. Clinical labs may not, for instance, lease space in doctor’s offices to collect specimens.
Perhaps the most hotly regulated aspect of healthcare lately has been in the area of controlled substance prescription and dispensing. A new law expands the exemption from the controlled substance prescribing standards to certain board eligible doctors (not just board certified ones), to rheumatologists and to doctors who prescribe medically necessary controlled substances to a patient during an inpatient hospital stay. As such, the exemption from the controlled substance prescribing standards—board eligible or certified anesthesiologists, physiatrists, rheumatologists, neurologists or medical specialist who have completed a fellowship in pain medicine; board certified doctors with privileges as a hospital or ASC; doctors who prescribe medical necessary controlled substances to patients during inpatient stays at hospitals.
Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!
Via @USAToday
The Supreme Court upheld President Obama’s health care law today in a splintered, complex opinion that gives Obama a major election-year victory.
Basically. the justices said that the individual mandate — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax.
Chief Justice John Roberts — a conservative appointed by President George W. Bush — provided the key vote to preserve the landmark health care law, which figures to be a major issue in Obama’s re-election bid against Republican opponent Mitt Romney.
The government had argued that Congress had the authority to pass the individual mandate as part of its power to regulate interstate commerce; the court disagreed with that analysis, but preserved the mandate because the fine amounts to a tax that is within Congress’ constitutional taxing powers.
The announcement will have a major impact on the nation’s health care system, the actions of both federal and state governments, and the course of the November presidential and congressional elections.
A key question for the high court: The law’s individual mandate, the requirement that nearly all Americans buy health insurance, or pay a penalty.
Critics call the requirement an unconstitutional overreach by Congress and the Obama administration; supporters say it is necessary to finance the health care plan, and well within the government’s powers under the Commerce Clause of the U.S. Constitution.
While the individual mandate remained 18 months away from implementation, many other provisions already have gone into effect, such as free wellness exams for seniors and allowing children up to age 26 to remain on their parents’ health insurance policies. Some of those provisions are likely to be retained by some insurance companies.
Other impacts will sort themselves out, once the court rules:
— Health care millions of Americans will be affected – coverage for some, premiums for others. Doctors, hospitals, drug makers, insurers, and employers large and small all will feel the impact.
— States — some of which have moved ahead with the health care overhaul while others have held back — now have decisions to make. A deeply divided Congress could decide to re-enter the debate with legislation.
— The presidential race between Obama and Republican challenger Mitt Romney is sure to feel the repercussions. Obama’s health care law has proven to be slightly more unpopular than popular among Americans.
Full Story Here: http://content.usatoday.com/communities/theoval/post/2012/06/Supreme-Court-rules-on-Obama-health-care-plan-718037/1#.T-xqPhd5F9E
June 30, 2012 is the deadline for submitting ten (10) Part B Fee for Service (FFS) claims to Medicare to avoid the 2013 Adjustment (penalty) of 1.5% against 2013 reimbursements.
Exception: if a provider submitted 25 e-prescribing events successfully in 2011, they have already met the reporting requirement to avoid the 2013 penalty. Otherwise, this upcoming June 30, 2012 deadline will apply. If you’ve started e-prescribing and are continuing to do so, do not stop at just 10 for this year to avoid the reduced reimbursement for 2013. This should be continually noted on all Medicare claims regardless to avoid any future penalties into the coming years as they will continue to require this as there will be a 2% reduction for year 2014 as well.
(Delray Beach, FL) June 21st, 2012 – The Florida Healthcare Law Firm, one of Florida’s leading healthcare law firms, today announced a major increase in their legal practice capabilities with the official launch of the National Healthcare Law Firm, a d/b/a and new portal of the firm. The expansion to a national platform providing healthcare legal services to physicians and healthcare businesses is one that significantly increases resources for clients who lack qualified local healthcare counsel. While the Florida Healthcare Law Firm has for years assisted clients outside the state of Florida*, this new development further cements the firm’s commitment to providing ethical legal counsel in the healthcare industry.“We are very excited about it. The fact that we serve clients all over the country has been a small secret for a while but we realized there’s a huge demand and decided to just go for it,” said Jeffrey L. Cohen, Esq. Founder and President of Florida Healthcare Law Firm.
According to Cohen, “It’s just a strange area of the law. Nearly everything in healthcare business is regulated; leases, employment agreements, compensation. Things you wouldn’t think are regulated are strongly regulated. And there are large fines and criminal penalties for getting it wrong! Our clients understand that healthcare business of any kind has serious legal risks and that they need uniquely qualified help.”
To request a service list or for any other firm information, call Autumn Piccolo at 888-455-7702 or visit the firm’s website at www.nationalhealthcarelawfirm.com or www.floridahealthcarelawfirm.com
* * *
Acknowledged throughout the country for its service and excellence, Florida Healthcare Law Firm is one of the nation’s leading providers of healthcare legal services. Founded by Jeffrey L. Cohen, Esq and headquartered in South Florida, FHLF provides legal services to physicians and healthcare businesses with the right pricing responsiveness and ethics. From healthcare clinic regulation, home health agency representation and physician contracting to medical practice formation/representation and federal and state compliance matters, the Florida Healthcare Law Firm is committed to bringing knowledge and experience to a diverse group of clients.
By: David W. Hirshfeld, Esq.
When the text of the new PIP law became public, our jaws went slack. The new law imposed incongruous effective dates that would seemingly put many providers out of the PIP business for six months. How could the insurance industry’s best and brightest have screwed this up?
The new law requires providers to be licensed as “clinics” in order to receive PIP payments, unless an exclusion to that licensing requirement applies. The incongruity arises because the provision requiring licensure seems to become effective July 1, 2012; but the provision creating the exclusions from that licensure requirement do not seem to become effective until January 1, 2013. Many providers are rightly concerned that they must either: become licensed as a clinic in order to receive PIP payments, or stop treating PIP patients from July 1, 2012 through January 1, 2013 when an appropriate exclusion will exist.
Thank goodness for Stuart Williams, AHCA’s General Counsel. In his May 8, 2012 memorandum, Mr. Williams artfully reasons that the statute could and should be interpreted so that both the licensure requirement and its applicable exclusions become effective January 1, 2013. Now most providers can continue to treat PIP patients without interruption. Whew!!!
We hope and expect that Florida’s Office of Insurance Regulation will adopt Mr. Williams’ reasoning and educate the PIP insurers.
The Florida Medicaid program does not enroll or reimburse for the services performed by an Independent Diagnostic Testing Facility (IDTF). Medicaid policy allows physicians practicing in an IDTF to enroll as a physician group so that they may only bill Medicaid for the professional component when services are rendered at the IDTF. Florida Medicaid does not reimburse for the technical component or global fee for services performed by an IDTF. This is not a new policy and it applies to both physician-owned and non-physician-owned IDTFs. This notice is being provided to you in anticipation of Agency-conducted audits regarding this policy.
If your practice is performing diagnostic testing, the global fee (or technical component) is only properly reimbursed when your practices’ physicians are also the treating providers (for the patient’s condition that warranted the testing). Physician practices that do not include the treating provider should immediately stop billing Medicaid for the global fee and/or technical component for diagnostic testing. Also, providers may choose to voluntarily conduct a self-audit and repay any overpayments prior to an Agency-conducted audit. When the Agency conducts an audit, it is entitled to recover the costs of the audit and is required to assess sanctions for the non-compliance.
It is recommended that you review claims from January 1, 2011, to present and submit self-audit findings as well as a refund check to the Agency for any improper payments detected in the audit. A provider who conducts a self-audit, submits the results, and remits payment, may avoid sanctions for the voluntary disclosure and repayment of overpayments. Information about conducting self audits, as well as the contact information for your local area office, is available on the agency’s website.
Questions specific to the anticipated recoupment project may be directed to Kelly Bennett via email at [email protected]. Please include the question in the email as opposed to a request for a return phone call.
