A New Perspective from CMS? Medicare, Stark Law and Whistleblower Changes on Deck

cms medicare regulations

medicare stark lawBy: Dave Davidson

Over the past several months, the Centers for Medicare & Medicaid Services (CMS) has taken a number of steps that show an awareness of the regulatory burden placed upon participants in the government’s health care programs, and even some willingness to consider reducing those burdens.  While it remains to be seen whether the recent proposals will have measurable results, the following actions can still be viewed with guarded optimism.

Proposed Changes to Medicare

In July, 2018, CMS proposed significant changes to Medicare, to be included in rules that take effect in 2019.  These changes cover physician fee schedules, streamlining Evaluation & Management (E&M) billing, advancing “virtual care,” decreasing drug costs, revising the MIPS program and establishing the MAQI demonstration project.  The agency also asked for comments on price transparency issues.Continue reading

Direct Primary Care Agreements: How it Works and What to Consider

direct primary care agreements

direct primary care agreementsBy: Susan St. John

As the provision of health care services continues to evolve, many practitioners are contemplating creating membership-based services for their patients through Direct Primary Care Agreements (“DPCA”). Although DPCAs are not necessarily a new concept, the Florida Legislature enacted a bill during the 2018 legislative session making DPCA’s exempt from the Florida Insurance Code. Thus, DPCAs are not a form of insurance subject to regulations of insurance products but are private contracts between practitioner and patient for specified health care services. Here is how the DPCA concept works.

DPCAs are private contracts between patients and primary care providers. Section 624.27, Florida Statutes, defines primary care provider as a provider licensed pursuant to Chapters 458, 459, 460, and 464, or a primary care group practice, who provides primary care services to patients. Included under this broad definition of providers are: allopathic doctors, osteopathic doctors, physician assistants, anesthesiologist assistants, chiropractors, RNs, LPNs and ARNPs.Continue reading

Pharmacy or DME: The Time is Ripe to Become Both

pharmacy dme

pharmacy dmeBy: Michael Silverman

People looking to enter the direct-to-consumer medical supply business often question whether becoming a pharmacy or durable medical equipment provider (DME) is a “better” endeavor.

Now, more than ever, due to industry changes and because of the synergies between the two, the answer is “ become both.”

Think about it.Continue reading

Medicare Opt Out: Part II

DME Marketing Florida

medicare opt outBy: Susan St. John

As noted in Opting Out of Medicare Part I, opting out of Medicare may be an option for some physicians and practitioners. After determining whether you are eligible for opt-out or if it is financially feasible, there are a few other considerations. Part I discussed the Private Contract a physician must enter into with each Medicare beneficiary he or she treats; here, we will address the opt-out affidavit and other nuances of opting out. Let’s get started!

The Medicare Opt Out Affidavit

Provisions in an Opt Out Affidavit are similar to provisions that must be included in the opted out physician’s or practitioner’s private contract with Medicare beneficiaries. The opt-out affidavit must state that the physician or practitioner will only provide services to Medicare beneficiaries with whom they have a written and signed private contract and that the physician or practitioner will not submit claims to Medicare on behalf of Medicare beneficiaries. Medicare does allow for an exception here, but that is only when an opted out physician or practitioner treats a Medicare beneficiary who is not under private contract, and that beneficiary presents with a medical emergency or urgent care problem. Keep in mind, that if a Medicare beneficiary presents with a medical emergency or urgent care problem, the physician or practitioner cannot require that patient to sign a private contract at that time.Continue reading

Opt Out of Medicare: What Physicians & Practitioners Need to Know

opt out of medicare

opt out of medicareBy: Susan St. John

Physicians and practitioners are ordinarily required to submit claims on behalf of Medicare beneficiaries when payment may be made for items and services provided by the physician or practitioner. However, in today’s health care environment, more and more physicians and practitioners are considering opting out of Medicare. For those professionals facing this decision, there are a few things to consider.

Is the Physician or Practitioner Eligible to Opt-Out?

First, determine if you are eligible to opt out of providing services to Medicare patients. Not every physician or practitioner is eligible to opt out of Medicare. For purposes of opting out of Medicare, “physician” is limited to: doctors of medicine; doctors of osteopathy; doctors of dental surgery or medicine; podiatrists; and optometrists; licensed by the state in which they practice (this could be multiple states).  The term practitioner, for opt-out purposes, is limited to: PAs, ARNPs, Clinical Nurse Specialists, CRNAs, Certified Nurse Midwife, Clinical Psychologist, Clinical Social Worker, Registered Dietitian and Nutrition Professional. What is omitted from the definition of physician and practitioner are chiropractors, and physician therapists and occupational therapists in independent practice. Consequently, a chiropractor may not opt out of Medicare; neither may PTs or OTs in independent practice, but it seems PTs or OTs working in a physician’s office may be eligible to opt out.Continue reading

Healthcare Marketing Lesson: Compound Pharmacy Kickback Scheme

healthcare marketingBy: Jacqueline Bain

Monty Ray Grow was a defensive back on the Florida Gators’ football team from 1990 until 1993. He contracted to play for the Kansas City Chiefs in 1994 and then for the Jacksonville Jaguars in 1995 and 1996. On February 5, 2018, he was convicted by a federal jury in Miami for his chief role in a massive healthcare marketing scheme designed to defraud Tricare.

Tricare is a health benefit program that provides civilian benefits for U.S Armed Forces military personnel, retirees, their dependents, and some military reservists. Tricare is a Department of Defense Program.

In September 2014, Grow entered into an agreement with a compounding pharmacy in Pompano Beach, Florida, wherein the pharmacy would pay Grow’s marketing company a commission equal to fifty percent (50%) of what the pharmacy netted in Tricare reimbursement from Grow’s referral of Tricare beneficiaries to the pharmacy. (Later on, Grow became an employee of the pharmacy.) Grow then used his commission to offer and pay recruiters to convince Tricare beneficiaries to use this pharmacy. Additionally, Grow offered and paid Tricare beneficiaries themselves to use this pharmacy.Continue reading

Chiropractic Medical Integration Needs an Adjustment

chiropractic medical integrationBy: Jeff Cohen

I’d run out of fingers and toes if i had to recount the rash of remarkably bad legal guidance given to well meaning chiropractors looking to integrate various medical services to their practice.  They hook up with an experienced business firm, a Management Company, that specializes in that area, but then get advice from a buddy or a lawyer who simply doesn’t have the depth of experience to correctly advise them.  The Management Company is happy because they don’t know the lawyer is oversimplifying things, which has the effect of a stream of chiropractor clients rolling into the Management Company.  Well done, except it’s often not!

Want some examples?  Ok, how about this—Continue reading

Medicare November Emergency Preparedness Deadline Quickly Approaching

By: Sharon Parsley 

It is not news that Hurricanes Harvey and Irma have rocked Texas and the Florida mainland, and Irma has left unimaginable damage throughout the Caribbean and Florida Keys.  During both hurricanes, considerable media attention was directed to how well hospitals and other sub-acute care providers in the affected areas were prepared for and responded to these events.  When coupled with the loss of multiple lives occurring at the Rehab Center at Hollywood Hills, seemingly due, at least in part, to exposure to extremely elevated temperatures during an extended power outage, emergency readiness should be near the top of every health care provider and supplier agenda.  Providers and suppliers should also be mindful of a rapidly approaching regulatory deadline Medicare requirement for continued participation on the topic of emergency preparedness.

While the Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers regulation (the “EP Reg”) was published in the Federal Register in September of 2016, providers and suppliers falling into one of 17 categories are required to comply with the EP Reg on or before November 16, 2017.  Among those provider and supplier types affected are hospitals, ambulatory surgery centers, psychiatric residential treatment facilities, home health agencies, and certain clinics and rehabilitation service providers. Continue reading

CMS Announces New TPE Audit Program

Medicare Audit

By: Sharon Parsley

The Centers for Medicare & Medicaid Services (CMS) relies on its Medicare Administrative Contractors (MACs) to serve as guardians of the Medicare trust fund through the MACs taking steps to prevent improper payments.  Despite that reliance, in its most recent report to the US Senate Finance Committee, the Government Accountability Organization (GAO) reports that improper payments totaling $41.1 billion (no, that is NOT a typo, that is a “b”) occurred during 2016 in the Medicare fee-for-service program [1].  That figure represents an overall 11% percent improper payment rate.

How many of us would feel good about being “wrong” in our core job function 11% of the time?  Not very many of us, I suspect.

The GAO report goes on to quote the MACs as generally having ongoing concerns about the following types of claims as those which pose the greatest financial risk to the Medicare trust fund.

Part A Part B DME Home Health
Short inpatient acute care stays and claims for both skilled nursing and inpatient rehabilitation Evaluation and management (including office visits, hospital visits, emergency room visits, and home visits for assisted living and nursing homes) and ambulance services Glucose monitors, urological supplies, continuous positive airway pressure (CPAP) devices, oxygen, wheelchair options and accessories, lower limb prosthetics, and immunosuppressive drugs Home health therapy services and home health or hospice stays that were longer than average

 

So, what does CMS plan to do to hold its MACs more accountable and to further the objective of reducing improper payments?  On August 14th CMS announced an expansion of an ongoing pilot program “Targeted Probe and Educate” Medical Reviews (TPE).

7 Things to Know

The basics of what the provider and supplier communities need to know about the TPE program follows.

  1. The silver lining here is that providers and suppliers with minimal aggregated billing pattern deviations from their peer group coupled with good audit track records may now experience fewer MAC medical review audit requests.
  2. TPE will be concentrated on providers and suppliers with “the highest claim error rates or billing practices that vary significantly from their peers”[1].
  3. In the first round of reviews, MACs will review a 20-40 record probe sample of claims for each lucky provider or supplier selected to participate in TPE.
  4. Providers and suppliers who perform well during the first TPE audit, or who demonstrate significant improvement during the second or third audit may be removed from the TPE audit cycle for a period of up to 12 months.
  5. Each provider and supplier with moderate and high error rates during round one TPE audits will receive provider-specific education, be given approximately 45 days to improve its rate of compliance, and will advance to a bonus round two TPE audit.
  6. Providers and suppliers who fail to improve during the round two TPE audit will again receive provider-specific education, be given another 45 days to improve processes and controls to improve rates of compliance, and will advance to the third round of TPE audits.
  7. Providers and suppliers who perform poorly during the final TPE audit round could be placed on 100% prepayment review, be subject to the dreaded “extrapolation”, and/or be referred to the appropriate Recovery Auditor, Zone Program Integrity Contractor or a Unified Program Integrity Contractor. It goes without saying that none of these are desirable outcomes.

7 Steps to Readiness  

  1. Many providers and suppliers are outliers relative to some component of their billing pattern. Use all the resources at your disposal to “know your numbers” and where your areas of exposure or risk most likely exist.
  2. Closely review results and findings from any recent internal audits or reviews conducted pursuant to your compliance program.
  3. If you have experienced recent external medical review audits, evaluate those results. If there were denied claims, identify the issue or issues leading to the denials.  Then, identify the root causes of errors.  Finally, and most importantly, resolve the problems which lead to denied claims.
  4. If you provide health care services in any of the areas mentioned above which are deemed highest risk by the MACs, examine on your billing patterns in those service lines.
  5. Pay attention to what your MAC says about TPE and areas of emphasis for audit. If you provide those health care services, examine your billing in those areas.
  6. Drill down into any area where your billing pattern materially deviates from your peer group and make sure you understand the basis for the deviation.
  7. If there is no obvious business rationale or justification for a considerable deviation from the “norm” do a deeper dive of your charge capture and billing practices to determine whether any process or practice needs further evaluation and/or adjustment.

These suggestions should position you for a successful outcome if / when you are selected to participate in the TPE audit program.

OIG Reviews Medicare Payments for Telehealth Services

oig work plan 2017By: Karina Gonzalez

The US Department of Health and Human Services, Office of Inspector General (OIG) reports that as part of its 2017 Work Plan it will be reviewing Medicare Part B payments for telehealth services. These services support rural access to care and Medicare pays telehealth services provided through live, interactive videoconferencing between a Medicare beneficiary located at an origination site and a healthcare provider located at a distant site.

The OIG is reviewing Medicare claims that have been paid for telehealth services that are not eligible for payment because the beneficiary was not at an originating site when the consultation occurred. A beneficiary’s home or office is not an originating site, an eligible originating site must be a practitioner’s office or a specified medical facility.Continue reading