January 2011 Archives

January 28, 2011

OIG Issues Favorable Opinion Regarding Waivers of Co-Payments and Other Cost Sharing Amounts By a Charity Hospital

The OIG recently issued a favorable opinion concerning (1) the waiver of patient cost sharing amounts, without regard to patient need and (2) providing limited lodging and transportation for all patients of a network of pediatric charity hospitals.  The requestors were pediatric non-profit charity hospitals which currently provide free services to very sick and injured children.

The Requestors have not billed for their services in the past, but were seeking a favorable determination so that they could begin to bill on an "insurance only" basis without billing the patients or families for copayments, deductibles or other cost sharing amounts.  They would also continue to provide free services to uninsured patients and would not make decisions as to which families could receive the service based on insured status.

The OIG concluded that the Insurance-Only Billing would not lead to a risk of improper billing since the hospitals historically have not charged the patients or their families for services.

The OIG's opinion was also favorable with regard to the proposed lodging and transportation assistance based on an analysis pursuant to the recent revision in the Civil Monetary Penalty law, resulting from the Patient Protection and Affordable Care Act (PPACA), which excepts remuneration "which promotes access to care and poses a low risk of harm to patients and Federal healthcare programs."

This decision has limited applicability because of the unique nature of the healthcare providers at issue.  If you have questions regarding waiver of co-payments or deductibles, financial need policies or issues related to the provision of free transportation or free lodging, please contact one of our healthcare law attorneys at 248-544-0888 or www.Wachler.com

January 26, 2011

CVS Pays for Improper Billing

CVS recently settled a suit with the US Attorney's office for allegedly having a disqualified pharmacist fill prescriptions in their New York and New Jersey stores.  The settlement was for just under one million dollars.  The pharmacist had been excluded from participating in federal programs and CVS failed to pick up on this fact through its current system of background checking prospective employees.

This situation highlights the importance of thorough background checks for all healthcare employees.  These background checks should specifically check the status of the employee with respect to exclusion from any federal programs.  It can be a costly mistake to have an excluded employee bill for otherwise reimbursable services.

Whether you want to review your current compliance protocol, or construct an entirely new compliance program, one of our attorneys can help you navigate the labyrinth of complex healthcare compliance regulations.  Contact a Wachler & Associates attorney at 248-544-0888 or at www.Wachler.com.  

January 21, 2011

Moratorium on Enforcement of the Face-to-Face Encounter Requirement of Home Health and Hospice Services

The Affordable Care Act requires that all home health and hospice services be initiated by an in-person encounter with the patient and their physician in order to be covered under Medicare.  This requirement began January 1, 2011, but CMS has announced that it will not begin enforcing the requirement until April 1, 2011.  CMS has further stated that the delay in enforcement will not be further extended beyond April 1, 2011.

If you have any questions or concerns about complying with these new regulations, or any other regulations, please contact one of our attorneys at 248-544-0888 or www.Wachler.com

January 19, 2011

ONC Released Final Rule on Electronic Health Record Certification

The final rule changed several elements from the proposed rule.  One changed feature under the final rule is that one entity will be responsible for testing EHRs, and another entity will be responsible for certifying the EHRs.  No single entity will be allowed to perform both activities.

Other changes involve the process for accrediting the testing and certifying entities.  Those entities that were approved to test and certify records under the temporary program will not automatically be accredited under the permanent program and will have to meet any criterion required under the permanent program.  The permanent program is scheduled to begin January 12, 2012.

If you have any questions or concerns regarding certification of EHRs, or any compliance issues, please contact one of our attorneys at 248-544-0888 or visit www.Wachler.com for more information. 

January 18, 2011

DAB Adds Clarity to What Constitutes a Mobile Independent Diagnostic Testing Facility

Due to confusion surrounding whether an IDTF was considered a "mobile" or "fixed-base" delivery structure, the DAB has explicitly stated that there are two types of mobile IDTFs.  Mobile IDTFs can either be "portable units" or a "mobile facility or unit."  The difference between the two definitions is that a "portable unit" is one that transfers equipment to different fixed locations for diagnostic testing, while a "mobile facility or unit" is a vehicle that travels to different locations to treat patients inside the vehicle.

The DAB further clarified that rules on shared practice space between IDTFs and another Medicare enrolled provider.  These entities may share a location, but there is a clear distinction between clinical and non-clinical space.  The DAB specified that the sharing of common hallways, waiting rooms, and reception areas is permissible.  But the sharing of clinical space or diagnostic equipment is still strictly prohibited.

If you have any question or concerns regarding compliance with current CMS regulations, please contact one of our attorneys at 248-544-0888 or visit www.Wachler.com for more information.  

January 14, 2011

Increased Spending by the Obama Administration to Fight Fraud

The Adminstration has increased fraud prevention spending to $1.7 billion during the past fiscal year, a substantial increase from previous years.  This increase has been used to combat the estimated $60 billion lost to fraud in any given year.  The funds are going towards new law enforcement intra-agency teams called HEAT strike forces (Health Care Fraud Prevention and Enforcement Action Teams).  These teams are focused on seven cities, including Detroit, Houston, Los Angeles and Miami.  The goal is to expand these teams to 20 cities in the near future.

If you are facing any fruad or complaince related matters, please contact a Wachler and Associates attorney at 248-544-0888 or www.Wachler.com.

January 6, 2011

Federal Government Increases Fight against Medicare Fraud

Time Magazine published an article on January 4 outlining the Federal Government's increased measures to combat Medicare fraud.  The article outlined that although there is not an official figure on the cost of government health program fraud, the National Health Care Anti-Fraud Association estimates that it is at least $60 billion per year, approximately 10% of Medicare and Medicaid's combined annual funding.  However, some experts believe this estimation is below the actual cost because most fraud goes undetected.

To decrease the amount of undetected fraud, the Federal government has enlisted the help of Medicare beneficiaries.  According to the Times article, there are 47 million Medicare beneficiaries and the number is expected to rise to 80 million by 2030.  The government intends to use Medicare beneficiaries for fraud detection.  Senior Medical Patrols (SMPs) are volunteers that have been spread across the country to spread the word to seniors about detecting Medicare fraud.  The government is requesting that seniors keep track of their Medicare Summary Notices (MSNs), which outline the services and equipment that a beneficiary has been provided through Medicare.  Seniors that thoroughly check their MSNs can likely detect if the statement includes a service or equipment that the beneficiary did not receive.  Although some complain that the MSNs are not user-friendly, Washington is trying to simplify them.  In addition, the government has considered switching from quarterly MSNs to monthly MSNs.  This would help the government detect fraud more quickly, before the money can change hands and the fraudulent practice closedown. 

Finally, even absent Medicare beneficiary's involvement, the government hopes that the publicity on Medicare Fraud crackdowns will help inform doctors of the legal risks of being lured into Medicare scams.  However, criminal enterprises have begun to rely on identity theft to curtail the need of doctors at all.

For more information on the Federal government's efforts to fight Medicare fraud or for assistance with the development of a compliance program, please contact a Wachler & Associates attorney at 248-544-0888.

January 5, 2011

Andrew Wachler quoted in the Detroit Free Press regarding DMC's Settlement with the Federal Government

Andrew Wachler, principal of Wachler & Associates, P.C., was quoted in today's Detroit Free Press regarding the Detroit Medical Center's (DMC) $30 million settlement with the Federal government for violations of the Anti-Kickback Statute and Stark for improper financial relationships with referring physicians.  Mr. Wachler stated that the DMC case sends a message that the government has a significant focus on inappropriate relationships with doctors. 

For more information on Wachler & Associate's Stark and Anti-Kickback Statute practice, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888. 

January 4, 2011

The OIG Publishes an Unfavorable Advisory Opinion on a Proposal to Offer Transportation Services to Skilled Nursing Facilities

The Department of Health and Human Services Office of Inspector General (OIG) released an unfavorable Advisory Opinion involving a transportation supplier's proposal to offer skilled nursing facilities (SNFs) two payment plans for transportation of the SNF's Medicaid-covered residents.  The OIG determined that the arrangement could potentially violate the Anti-Kickback Statute and that administrative sanctions could be imposed.

The transportation supplier (Requestor) provides transportation services in a state where SNFs receive a per-resident daily rate for ancillary and support services form the state Medicaid program.  SNFs that have residents which are eligible for Medicare and Medicaid are responsible for the amount not covered by Medicare that would otherwise be covered by Medicaid as a secondary payor.  The Requestor will offer two payment plans that respond to SNFs' responsibilities:

(1) The first payment plan would be a capitated rate per resident per day for Medicaid transports regardless of whether the services were needed and whether Medicaid is the responsible payor.  For residents covered under Medicare and Medicaid, the payment would release the SNF from any further liability (including Medicaid deductibles).  The capitated payment would be less than the Requestor's cost of transportation for Medicaid patients and more for Medicare patients. 

(2) The second payment plan would be that SNFs pay a fee for services amount for transportation services provided only to Medicaid residents.  The amount would be below the Requestor's cost for providing the services.

After a thorough analysis, the OIG found that the payment plans could violate the Anti-Kickback Statute and specifically referenced the 2003 Compliance Guidance (CPG) for Ambulance Suppliers and 2008 Supplemental CPG for Nursing Homes. In both of these guides, the OIG stated that the Anti-Kickback Statute is implicated where there is a direct or indirect link between the prices offered by a supplier for business the purchaser's pays out-of-pocket and referrals of federal program business billable by the supplier.  The OIG noted the connection between the below-cost payment rates and the referral of other federal healthcare program business as a motive for SNFs to direct business to the Requestor.  Finally, the OIG was unable to exclude the possibility that the arrangement was (1) an attempt to offer improper discounts on Medicaid transports in return for more federal healthcare program business or (2) an attempt by the SNFs to solicit improper discounts to alleviate their financial risks and liabilities. 

January 4, 2011

DMC to Pay a $30 Million Settlement to the Federal Government

The Detroit Free Press reported that the Detroit Medical Center has agreed to pay $30 million to the federal government to settle claims that involved violations of the Anti-Kickback Statute and Stark from improper financial relationships with referring physicians.  The majority of the relationships at issue in the DMC matter involved office lease agreements and independent contractor relationships that were either not consistent with fair market value or not in writing.  If you are a provider and would like to ensure that your relationships comply with Stark and the Anti-Kickback Statute, please contact Wachler & Associates.