June 2011 Archives

June 30, 2011

OIG Issues Unfavorable Opinion Involving an Incentive Arrangement Between a DME Supplier and Several IDTFs

On June 14, 2011, the Office of Inspector General (OIG) issued an unfavorable advisory opinion addressing an existing and a proposed arrangement involving contracts between a durable medical equipment (DME) supplier and several independent diagnostic testing facilities (IDTF). The DME supplier (Requestor) provides continuous positive airway pressure supplies (CPAP), which may be prescribed by a physician for patients diagnosed with obstructive sleep apnea. The study may be performed at the IDTFs, and a patient must select a DME supplier to supply the equipment after being prescribed the CPAP.

The existing arrangement involves contracts between Requestor and several IDTFs, some of which have physician investors, where the IDTFs are permitted to display and provide equipment from multiple DME suppliers. The patients are given a list of local DME suppliers, and are advised by IDTFs their right to select which supplier will provide them with the equipment. The contracts only apply to non-federally insured patients. If a non-federally insured patient chooses Requestor's DME, an IDTF staff member will prepare the CPAP for the patient, along with educating the patient on how to properly use the equipment. For completing these tasks, Requestor pays the IDTF a per-patient fee. Each contract between Requestor and IDTF is non-exclusive and is set for a term of at least one year. Furthermore, Requestor may only terminate the contract for breach or for cause, but the IDTF may terminate the contract at any time.

The proposed arrangement would be similar to the existing arrangements, except for the following three elements: (1) the proposed arrangement would include federally-insured patients; (2) IDTF would be paid a flat monthly/annual fee; and (3) Requestor would have the ability to terminate the contract if it is unsatisfied with the number or patients receiving the services.

OIG had found several problematic issues relating to the arrangements. First, OIG noted that even though Requestor excluded federally-insured patients under the existing agreement, IDTFs may nevertheless have an influence in referring those patients to choose Requestor's DME. Another issue found by OIG pertained to the in-person sales pitches or informational sessions that are aimed at senior citizens, Medicaid beneficiaries, and other vulnerable patients. Moreover, OIG raised concerns in regard to physicians marketing the equipment, which would ultimately distort the line between medical advice and a sales pitch. Finally, OIG determined that even though Requestor has certified that it would not make separate payments for rental of space and consignment services, the consignment component of the arrangement contains at least some amount of the IDTFs' fees.

It was determined by OIG that the arrangements did not meet the necessary elements for the personal services and management contracts safe harbor, mostly due to the arrangements failing to specify the exact schedule, precise length, and exact charge for the intervals of services performed.

For more information on compliance with the anti-kickback statute, DME contracts or other regulations, please contact a Wachler & Associates attorney at 248-544-0888

http://oig.hhs.gov/fraud/docs/advisoryopinions/2011/AdvOpn11-08.pdf

June 30, 2011

Obama Administration Opts to Abandon Its Recently Announced "Mystery Shopper" Survey

On Tuesday, the Obama Administration announced that it decided to abandon its "mystery shopper" survey. The survey was created as a way to address concerns about the shortage of primary care doctors, a problem that could continue to grow if more than 30 million Americans gain health care coverage as expected by the Obama Administration. The decision not to move forward with the survey came after doctors and politicians criticized the project for needlessly wasting taxpayer dollars, along with a number of privacy issues. According to Senator Mark Steven Kirk, Republican of Illinois, there have already been a number of reputable studies confirming the difficulties for Medicare patients to find doctors to see them. Kirk was joined by a number of others who ultimately persuaded the Obama Administration to put the survey on what a spokesman for the health department labeled as an "indefinite hold."

Physicians should understand their options when dealing with Medicare patients. Physicians can choose to limit the number of Medicare patients that they see. Physicians can also choose to be "nonparticipating" or can choose to "opt-out" of Medicare. If you are a physician with questions about your Medicare participation options, please contact a Wachler & Associates attorney at 248-544-0888.

June 29, 2011

CMS Advisory Opinion Finds Non-Compete Provision Meets the Requirements of Stark Law Physician Recruitment Exception

The Centers for Medicare & Medicaid Services (CMS) recently issued an advisory opinion stating that a physician recruitment arrangement including a non-competition provision meets the requirements of the physician recruitment exception under the Stark law. The approved non-compete arrangement restricts the physician from establishing, operating, or providing professional medical services at any location within a twenty-five-mile radius of the hospital for one year.

Under the Stark law, the original Stark physician recruitment exception required that a practice not impose additional restrictions on a recruited physician other than conditions related to the quality of care. However, in Stark III, CMS stated that it now believes that categorically prohibiting non-compete provisions from recruitment arrangements makes it difficult to recruit physicians, and that practices may be unable to hire physicians despite receiving a hospital's financial assistance in compliance with the Stark physician recruitment exception. CMS provided several factors that determine whether a non-competition provision imposes practice restrictions that "unreasonable restrict" a physician's ability to practice medicine in the geographic service area. In Advisory Opinion 2011-01, CMS found that: 1) the time period restriction of one year was reasonable, 2) the distance requirement was reasonable based on the hospital's geographic service area, 3) the physician would still be permitted to practice at certain hospitals both within and outside the hospital's service area during the one year period, and 4) the non-competition provision complies with state a local laws.

The advisory opinion provides health care entities with a framework for structuring non-competition provisions under the requirements of the Stark law physician recruitment exception. Wachler & Associates regularly advises clients on Stark, fraud and abuse, and the anti-kickback law. If you have any questions regarding the physician recruitment exception, the Stark law in general, or other Stark exceptions please contact a Wachler & Associates attorney at 248-544-0888 or visit www.wachler.com

June 28, 2011

Obama Administration Implements "Mystery Shopper" Initiative to Address the Increasing Shortage of Primary Care Doctors

The Obama administration has labeled the increasing shortage of primary care doctors as a "critical public policy problem." In an effort to address this issue, the administration intends to assemble a team of "mystery shoppers" to pose as patients, call doctors' offices, and request appointments in order to see how difficult it is for people to obtain care when their health problems arise. In addition to better understand the problematic shortage of primary care doctors, the survey will also attempt to discover whether doctors are accepting patients with private health insurance while at the same time refusing to attend to those insured by government health care programs.

The survey will be conducted by a federal contractor who will call 4,185 doctors' offices. The number of surveys will be evenly conducted throughout nine states: Florida, Hawaii, Massachusetts, Minnesota, New Mexico, North Caroline, Tennessee, Texas, and West Virginia. Each office will be called at least twice, one call from a person claiming to be privately insured while another federally insured, inquiring about whether the office is accepting new patients. Some mystery shoppers will pretend to be in need of a routine checkup, while others will claim to have symptoms necessary of more urgent care. Furthermore, mystery shoppers will not identify themselves as government workers and will block the caller ID of the incoming calls. A third call will be made to eleven percent of doctors, in which the callers will identify themselves as calling on behalf of the U.S. Department of Health and Human Services. The caller will ask doctors about which types of insurance they accept and then compare those answers with the mystery shopper calls, noting any discrepancies. The survey data collected will be kept confidential and will not identify any individual doctors. With last year's passing of the new health care law, it is predicted that more than 30 million people will obtain health care coverage. Therefore, the federal government finds it necessary to conduct this mystery shopper survey in an effort to fully understand the shortage of primary care doctors and ultimately fix the problem.

Physicians should understand their options when dealing with Medicare patients. Physicians can choose to limit the number of Medicare patients that they see. Physicians can also choose to be "nonparticipating" or can choose to "opt-out" of Medicare. If you are a physician with questions about your Medicare participation options, please contact a Wachler & Associates attorney at 248-544-0888.

June 27, 2011

Senate Report Probes PODs

A group of U.S. senators is seeking an inquiry into the expansion and potential abuse of physician-owned distributorships (PODs). PODs are entities that allow doctors to purchase ownership shares in an organization that buys products used in surgery. In separate letters to the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health and Human Services (HHS), the report states that the Senate Finance Committee has received "numerous allegations" of physicians who performed more surgeries than medically necessary, or who used implants that were of "inferior quality or not best suited for the procedure," due to their financial interest in PODs.

The Report asks each department to review the POD industry's compliance with fraud and abuse and anti-kickback laws. Physicians who control the choice of medical devices may use their ability to generate referrals for hospitals in order to induce them to buy medical devices from companies in which the physicians have ownership. Further, the committee believes that the recently released regulations for accountable care organizations may "provide an inadvertent loophole allowing less reputable POD models to fall under the Stark and anti-kickback law waivers envisioned for ACOs."

Physician-owned distributorships, according to a 2006 OIG opinion, carry "the strong potential for improper inducements." The Senate committee noted that hospitals, physicians and medical device manufactures would benefit from "clear legal guidance." For more information regarding PODs and their compliance with fraud and abuse and anti-kickback laws, please contact a Wachler & Associates attorney at 248-544-0888 or visit our website at www.wachler.com

June 23, 2011

Comparative Billing Reports and the Risk of a Future Audit

The Centers for Medicare and Medicaid Services ("CMS") are using Comparative Billing Reports as a tool to educate providers about their individual billing practices. Comparative Billing Reports ("CBRs") show individual providers how their billing patterns for various codes and procedures compare to the state average and the national average for providers within the same field (e.g. physical therapists and chiropractors). These comparative studies are designed to help providers review their coding and billing practices and utilization patterns, and take proactive compliance measures. CMS has stated that "the CBR is not intended to be punitive or sent as an indication of fraud. Rather it is intended to be a proactive statement that will help the provider identify potential errors in their billing practice."

CMS awarded Safeguard Services, LLC the contract for producing the CBRs and has recommended that CBRs be sent out to certain provider types that have been identified as a vulnerability in the Medicare Program. As of now, the provider types that have been identified to receive CBRs are physical therapists, chiropractors, ambulance, hospice, podiatry, and sleep studies. A maximum of 5,000 providers will be selected to receive CBRs in each provider class.

CBR data analysis involves the same data-mining tools used by Medicare audit contractors to identify candidates for audit. If you have received a CBR or are a possible candidate to receive a CBR in the future, CMS may consider you a statistical outlier in comparison to your peers, subjecting you to an increased risk of audits. It is important to review the information provided, ensure the data reported is accurate and integrate any necessary compliance measures. CBRs are to be used as a tool for providers to look at their individual billing patterns in comparison to peers in their specialty, identify any potential errors and take proactive compliance efforts. Upon receiving a CBR, it is vital that providers evaluate the information and design a proper compliance plan to address any vulnerabilities and prepare for or defend against potential future audits. If you are a recipient of a CBR or are among the provider types that have been identified to receive CBRs (i.e. physical therapists, chiropractors, ambulance, hospice, podiatry, and sleep studies), please contact a Wachler & Associates attorney at 248-544-0888 to discuss evaluating the CBR analysis and development of an appropriate compliance plan that will reduce audit risks.

June 22, 2011

HITPC Recommended to Push Back Stage 2 Meaningful Use Requirement Deadline

On June 8, 2011, the Health Information Technology Policy Committee ("HITPC") advised the U.S. Department of Health and Human Services ("HHS") to push its deadline for Stage 2 meaningful use requirements to 2014. The current deadline is 2013 for providers who achieve Stage 1 meaningful use requirements in the 2011 payment year. Upon reviewing the Meaningful Use Workgroup's recommendations, HITPC acknowledged that requiring providers who achieve Stage 1 requirements in 2011 to meet Stage 2 requirements in 2013 can be seen as penalizing early adopters. Therefore, as a way to prevent providers from delaying Stage 1 attestation, HITPC urged HHS to allow those who meet Stage 1 in 2011 an additional year to meet the requirements of Stage 2.

The American Hospital Association ("AHA"), one of the organizations that provided comments to the Meaningful Use Workgroup, proposed that Stage 2 be pushed back until three-fourths of eligible providers are compliant with Stage 1. In addition, AHA recognized that less than 2% of responding providers confirmed that they were able to meet the minimum meaningful use requirements when the initial incentive payments became available. The organization also noted that initiating Stage 2 requirements too quickly may cause providers to become overwhelmed and decreases their ability to properly comply.

If you need help understanding the meaningful use requirements or assistance with negotiating EHR contracts, please contact a Wachler and Associates attorney at 248-544-0888.

June 22, 2011

Wachler & Associates Attorney Participated on ABA's ACO Task Force

Wachler & Associate's attorney Amy Fehn, as a member of the ABA's ACO Task Force, recently participated in the drafting of comments on CMS' proposed regulations for ACO participation in the Medicare Shared Savings Program. The proposed regulations will govern the way in which ACOs will contract with CMS to become responsible for the delivery of care to an assigned population of Medicare fee for service beneficiaries. The ABA's ACO Task Force prepared comments to help CMS properly develop ACOs by highlighting some of the problematic areas of the proposed regulations. Click here to view the full version ABA's comments on the ACO proposed regulations.

For assistance with interpreting the ACO Shared Savings program regulations, or for assistance with creating an infrastructure conducive to ACO participation, please contact a Wachler & Associates attorney at 248-544-0888.

June 20, 2011

DCS Healthcare Announced 11 New Issues for Medical Necessity Review

DCS Healthcare added 11 new approved issues for medical necessity reviews for providers in Region A states. The recently approved new issues may be reviewed for providers in Pennsylvania, the District of Columbia, New Jersey, Delaware, New York, Connecticut, Vermont, Maine, Massachusetts, New Hampshire, and Rhode Island, excluding Maryland. The new issues include:

MS-DRG 885 psychoses

• MS-DRG 188 pleural effusion without CC-MCC

• MS-DRG 087 traumatic stupor and coma, coma less than one hour without CC-MCC

• MS-DRG 918 poisoning-toxic effects of drugs without MCC

• MS-DRG 283 acute myocardial infarction, expired w MCC

• MS-DRG 534 fractures of femur without MCC

• MS-DRG 294 deep vein thrombophlebitis with CC-MCC

• MS-DRG 281 acute myocardial infraction, discharged alive with CC

• MS-DRG 280 acute myocardial infraction, discharged alive with MCC.

• MS-DRG 123 neurological eye disorders.

DCS also approved a new issue for providers in Maryland:

• APR-DRG 203 chest pain (All severity and risk of mortality levels)

 

If you need assistance in preparing for, or defending against RAC audits, or implementing a compliance program geared toward identifying and correcting potential risk areas related to RAC audits, please contact a Wachler & Associates attorney at 248-544-0888.

DCS Healthcare: http://www.dcsrac.com/IssuesUnderReview.aspx

June 16, 2011

Pioneer ACO Model Program Participation Deadline Extended

The Center for Medicare and Medicaid Services (CMS) has extended the deadline for the submission of the Pioneer ACO Model program letters of intent to June 30, 2011. Additionally, the Application deadline has been extended to August 19, 2011. Applications received from organizations that have not submitted a letter of intent will not be considered.

Click the following links to complete the Pioneer ACO letter of intent and application. If you wish to participate in CMS' Pioneer ACO Model program and need assistance in doing so, please contact a Wachler & Associates attorney at 248-544-0888.

June 15, 2011

OIG Issues Favorable Opinion Regarding a Vaccine Reminder Program

The U.S. Department of Health and Human Services, Office of Inspector General (OIG) issued a favorable advisory opinion for a Requestor regarding a vaccine reminder program. In February 2011, the Requestor, a manufacturer of pneumococcal bacteria vaccines for immunization of infants and toddlers, expanded a vaccine reminder program to entities that insure and treat patients covered by federal healthcare programs. Prior to February the reminder program was only to the parents or guardians of children who may have needed one or more doses of the vaccine.

Under the expansion, the Requestor offers the reminder program to entities regardless of the number of children that have been or will be vaccinated. The Requestor also pays for the reminders, either through telephone calls or postcards and there is no other charge to the entities that wish to participate. The reminder postcards or telephone calls do not refer to a specific product and do not recommend a specific avenue for vaccination. They merely suggest that the child's parent or guardian contact a clinic to determine if a vaccine is required.

The OIG analyzed the program under the beneficiary inducement statute and the anti-kickback statute. The OIG first concluded that the reminder messages to the parents from the Requestor were not inducements since they only inform the parents about the potential need to have a vaccination. Further, the OIG determined that the relationship between the Requestor and the healthcare entities did not violate the anti-kickback statute. Although there is some independent value to the entities from the program, there is a low risk of fraud and abuse because of several factors, including: the arrangement was narrowly tailored and transparent, available to all health insurers and entities regardless of their use of the Requestor's vaccines and the reminder messages do not recommend a specific vaccine or course of vaccination, thus they still encourage patient's freedom of choice.

For more information on compliance with anti-kickback statute and other regulations, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.

http://oig.hhs.gov/fraud/docs/advisoryopinions/2011/AdvOpn11-07-2.pdf

June 13, 2011

New Rule in Effect for Provider Enrollment Process

In February, the Centers for Medicare & Medicaid Services published its Final rule implementing changes in the provider enrollment processes. Effective March 25, 2011, providers participating in Medicare, Medicaid and Children's Health Insurance Program will undergo an initial screening process prior to enrollment. In addition, providers are now required to revalidate their compliance with CMS enrollment requirements every five years. Suppliers of durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) must revalidate every three years. As a catch all, CMS may demand that any provider revalidate and undergo screening at any time.

The new rule, found in Medicare Program Integrity Manual Chapter 15, sections 19 though 19.4, finalized provisions related to the (1) establishment of provider enrollment screening categories, (2) submission of application fees as part of the provider enrollment process, (3) suspensions of payment based on credible allegations of fraud, and (4) authority to impose a temporary moratorium on the enrollment of new Medicare providers and suppliers of a particular type (or the establishment of new practice locations of a particular type) in a geographic area.

The screening process establishes 3 levels of risk - limited, moderate, or high - and each provider will be assigned to a risk category. The rule also addresses application fees. Providers initially enrolling in Medicare will pay an initial application fee, and current provides will pay the fee when they revalidate.

Providers participating in Medicaid will only pay an application fee to the state agency. Similarly, Medicare providers will pay the fee only for Medicare participation, and state agencies must rely on Medicare's determination of compliance.

The new rule highlights CMS' intention to increasingly screen providers and use the enrollment process to combat future fraud. Providers should be aware of the intensified enrollment process and its goal of keeping potential violators out of the Medicare, Medicaid, and Children's Health Insurance Programs. Further, current participants must maintain a higher level of compliance in order to revalidate their compliance with enrollment requirements every five years.

For more information regarding the Medicare/Medicaid provider enrolment process and compliance programs, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.

June 13, 2011

ONC Announces New Initiative to Promote Health Information Technology

The Office of the National Coordinator for Health Information Technology (ONC) announced a new program on Wednesday to encourage the innovation of health information technology through prizes and challenges. The program, called Investing in Innovations (i2) Initiative, was created under the America Compete Reauthorization Act of 2010 and has already awarded the first $5 million to two projects.

For more information on health care law developments, please visit www.wachler.com.

Investing in Innovations (i2) Initiative http://healthit.hhs.gov/portal/server.pt?open=512&mode=2&objID=3635&in_hi_userid=11673

June 9, 2011

AARP Tool Implemented to Fight Medicare Fraud

AARP recently unveiled an online tool aimed at helping senior citizen beneficiaries fully understand their quarterly health care statements. This tool will aid in fully informing seniors of all charges the Medicare program has paid, along with dates, billing codes and a description of the medical service. The AARP website urges senior citizens to use this tool to identify errors on their bill as well as to spot fraud.

CMS has made numerous efforts over the years to enlist the help of Medicare beneficiaries to detect and report Medicare Fraud.

An effective compliance program is the best defense against billing errors that can lead to complaints or allegations of Medicare fraud by beneficiaries. If you have any questions regarding Medicare billing or development of a compliance program, please contact a Wachler & Associates attorney at 248-544-0888.

June 8, 2011

OIG Reports Providers Charged Medicare for Nonmedical Services

The Office of Inspector General (OIG) recently reported that it believes Medicaid is being inappropriately billed for certain nonmedical services (e.g. bathing, dressing and light housework). As a result of two recent audits, OIG has requested that North Carolina and Washington refund the federal government more $61 million resulting from improper Medicaid claims. It was discovered that these claims lacked the necessary documentation. Additionally, it was determined that the claims weren't included in the states' plan of care, were provided without medical supervision and the qualifications for the in-home providers could not be verified.

If you have any questions relating to home health compliance or Medicaid/Medicare billing requirements, please contact a Wachler & Associates attorney at 248-544-0888.

June 7, 2011

CMS Proposed Rule Regarding E-prescribing Requirements for Physicians

Through a proposed rule, the Centers for Medicare and Medicaid Services have answered the call by organized medicine to extend the deadline for qualifying physicians to meet electronic prescribing requirements and add additional hardship exemptions. With the current rules, eligible physicians must use an e-prescribing system to complete at least 10 paperless drug orders between January 1, 2011 and June 30, 2011 to avoid a 1% Medicare pay cut in 2012. However, the proposed rule gives the physicians another opportunity to avoid the cut and add more hardship exemptions that a physician could meet. Whereas under the current rule physicians have to apply for hardship exemptions by June 30, 2011 and only have two possible exemptions, the proposed rule extends the deadline to October 1, 2011 and adds more hardship claims, including:

• The physician has limited prescribing activity during the six-month time frame.

• The physician has delayed purchasing an e-prescribing system because he or she intends to participate in Medicare's electronic medical records incentive program from 2011.

•The physician lives in an area where regulations prevent e-prescribing, such as those prohibiting paperless orders for narcotics.

•The physician e-prescribes, but only for types of visits that do not count toward the 10-order minimum.

Finally, the proposed rule allows physician practices that use certified EHR systems to use those systems to meet the e-prescribing requirements.

For more information on the meaningful use criteria for EHR incentive payments, please contact a Wachler & Associates attorney at 248-544-0888.

Centers for Medicare and Medicaid Services

http://www.ofr.gov/ofrupload/ofrdata/2011-13463_pi.pdf

Call by organized medicine

http://www.ama-assn.org/amednews/2011/05/23/gvsf0526.htm

June 6, 2011

Sleep Medicine Company Agrees to $650,000 Settlement

A sleep medicine and durable medical equipment company, Areté Sleep LLC, Areté Sleep Therapy LLC, and Areté Holdings LLC will pay a $650,000 settlement pursuant to federal authorities discovering the company to have submitted false claims to Medicare over a seven year span.

According to federal prosecutors, the false claims were for diagnostic tests performed by unlicensed/uncertified technicians. These licenses/certifications are required by Medicare rules and regulations. Areté filed for Chapter 11 bankruptcy in early 2011 and has agreed to pay the settlement with the proceeds from its asset sales.

If you have any questions or concerns regarding compliance with Medicare rules and regulations, or if you have questions regarding compliance issues associated with billing for sleep studies and related DME, please contact a Wachler and Associates attorney at 248-544-0888.

June 3, 2011

OIG Announces $3.4 Billion in Semiannual Recovery

On June 1, 2011, the Office of Inspector General (OIG) announced that it expects to recover an estimated $3.4 billion in connection with its Medicare and Medicaid investigations, audits, and reviews. The amount was accrued between October 2010 and March 2011 in the form of penalties, fines, and settlements. Of the estimated $3.4 billion in recoveries, $222 million stems from audits while $3.2 billion arose from 349 criminal and 197 civil actions. The OIG featured the following items in its Semiannual Report to Congress:

•· 100 healthcare professionals were arrested for their participation in various healthcare-related crimes (e.g. violating the anti-kickback statute and money laundering) which resulted in $225 million in false billing.

•· Two drug companies, GlaxoSmithKline and Allergan USA, agreed to pay $750 million and $600 million, respectively, to resolve various charges.

•· 13.5% of the one million Medicare beneficiaries discharged from hospitals experienced adverse events during hospital stays in October 2008, 44% of which were found to be preventable.

•· In February, OIG launched a series of provider compliance training sessions across the U.S. in an effort to help prevent health care fraud and improve compliance.

If you need help defending against Medicare/Medicaid audits or investigations, or assistance with implementation of a proactive corporate compliance program, please contact a Wachler & Associates attorney at 248-544-0888.

June 3, 2011

RAC Program Expands to Medicare Part D in Third Quarter of 2011

The Centers for Medicare & Medicaid Services (CMS) intends to roll out its Part D RAC program during the third quarter of 2011. In implementing the program, CMS has contracted with ACLR Strategic Business Solutions to be the Part D recovery audit contractor. This company has already recovered tens of millions of dollars through its auditing process for government contractors. John Spiegel, director of the Medicare Program Integrity Group, stated that "CMS is working on business planning, technology requirements, staffing and communications initiatives to achieve the program goals." He also mentioned that CMS intends to implement a website that will provide additional Medicare Parts C and D RAC information.

Medicare Part D plans and sponsors should consider conducting internal audits and implementing compliance programs at this time in order to be in the best position to avoid or defend against a RAC audit.

If you need assistance in preparing for, or defending against Part D RAC audits, or implementing a corporate compliance program geared toward identifying and correcting potential risk areas for Part D RAC audits, please contact a Wachler & Associates attorney at 248-544-0888.

June 2, 2011

Healthcare Providers Receive $158 Million in EHR Incentives from U.S. Government

The Centers for Medicare and Medicaid Services announced last week that in the past year healthcare providers have received $158.3 million in EHR incentives. The incentives have been advocated by the Obama administration to encourage doctors and hospitals to use digital health records that meet federal standards. This encouragement coincides with the Administration's goal to have half of Americans using digital health records by 2014.

Healthcare providers can receive $63,750 during six years from the Medicaid program and up to $44,000 during five years from the Medicare program. For more information on the meaningful use of electronic health records please contact a Wachler & Associates attorney at 248-544-0888.

Centers for Medicare and Medicaid Services

http://www.cms.gov/EHRIncentivePrograms/

announced

http://www.bloomberg.com/news/2011-05-26/u-s-pays-158-million-to-doctors-to-adopt-digital-records.html

digital health records

http://www.wachler.com/CM/Custom/When%20Purchasing%20Electronic%20Health%20Records%20Buyer%20Beware.pdf

Wachler & Associates

http://www.wachler.com/

June 2, 2011

Pioneer ACO Model Program Participation Deadline

Healthcare providers that wish to participate in CMS' Pioneer ACO Model program must submit a letter of intent to CMS by June 10, 2011. This program is the latest initiative in the development of ACOs. The Pioneer ACO program is an opportunity for groups of providers that are already accustomed to coordinating care and ready to share risk. The Pioneer program will offer greater risks and rewards than ACOs participating under the previously released shared savings program.

Click here to view the letter of intent form. This form must be submitted by email no later than June 10, 2011. If you wish to participate in CMS' Pioneer ACO Model program and need assistance in doing so, please contact a Wachler & Associates attorney at 248-544-0888.

June 1, 2011

OIG Issues Favorable Opinion Regarding Shared Services of an Air Force Medical Group and Community Hospital

The Office of the Inspector General issued a favorable opinion regarding an affiliation between an Air Force medical group and a community hospital. The arrangement involves an Air Force medical group (medical group) located on a military base and a community hospital located near the base. As a result of hurricane Katrina, the medical group no longer has the patient population to maintain certain residency and training programs. The community hospital has a need for certain physician specialists. Under the proposed arrangement, certain specialists from the medical group would treat the hospital's patients; these patients would include Medicare/Medicaid beneficiaries. The medical group specialists would utilize hospital equipment and facilities to treat patients and be covered under the hospitals malpractice insurance.

The specialists will only provide services if the hospital has an identified need for a particular specialists' services. The hospital has determined that the costs associated with this arrangement would be offset by the expenses that would be incurred by bringing in a physician specialist from a different source. The services provided by the medical group specialists will be free to the patients. The hospital will bill the appropriate party for any technical fees that are appropriate given the services provided.

The OIG noted that the arrangement's risk of violating the Anti-Kickback statute is low for the following reasons: the medical group physicians do not bill for their services; the hospital rarely serves as a referral source for the medical group; this arrangement is in the best interest of the public; the referrals are not required to be to medical group physicians; and the arrangement's costs are offset by expenses avoided by utilizing the arrangement. The OIG stated that since federal healthcare program beneficiaries were not improperly influenced under the arrangement, civil monetary penalties would not be applicable. Specifically, the OIG looked to the following factors: there is no advertisement that the medical groups physicians services are free of charge; the hospital bills patients for technical fees; and the patients come to the hospital fully expecting to pay for the services and it is unlikely that learning the services are free after the fact will induce patients to solicit these services.

If you have any question or concerns about the anti-kickback statute or the prohibition on beneficiary inducement found in the Civil Monetary Penalties law, please contact an attorney at Wachler & Associates at 248-544-0888.

June 1, 2011

HHS Announces Proposed Changes to HIPAA Privacy Rule

The Department of Health and Human Services (HHS) has issued a notice of proposed rulemaking to modify the HIPAA Privacy Rule in accordance with the Health Information Technology for Economic and Clinical Health Act (HITECH) requirement that users of electronic health records (EHRs) provide a more extensive accounting of disclosures than previously required by the Privacy Rule. The proposed rule would give individuals the right to receive an access report showing them specifically who has accessed their electronic protected health information. While the Security Rule has arguably required such tracking pursuant to the audit trail requirements, it did not have to be shared with individuals. The proposed rule also requires more detail in accounting of certain disclosures, in an attempt to curtail existing efficiency problems.

Click here to view the complete HHS announcement. You can also click here to view the proposed rule. If you have any questions regarding compliance with the new HIPAA privacy standards or any other HIPAA issues, please contact a Wachler & Associates attorney at 248-544-0888.