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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. 

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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.  

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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.

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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.

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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. 

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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. 

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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. 

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The Department of Health and Human Services (HHS) Office of Inspector General (OIG) reported $25.9 billion of expected recoveries and savings in fiscal year (FY) 2010.  The large amount is a combination of audit receivables, investigative receivables and other legislative and cost-saving actions that OIG recommended. 

In addition, the OIG’s semiannual report documented that it initiated 647 criminal actions and 378 civil actions against individuals or entities that engaged in crimes against departmental programs.  These actions included lawsuits under the False Claims Act (FCA), the Civil Monetary Penalties Law (CMPL) settlement and other administrative recoveries related to self-disclosure. 

Finally, the report indicated the Health Care Fraud Prevention and Enforcement Action Team’s (HEAT) success in fighting fraud.  That program alone recovered $71.3 million in investigative receivables.  

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Last week President Obama signed legislation that will delay Medicare payment cuts for one more year.  The reduction in pay, 25 percent, had been scheduled to begin on January 1, 2011.  The American Medical Association strongly advocated for the delay that is longer than the previous five delays over the past year.  Over the upcoming year, Congress will work to develop a long-term solution to the Medicare physician payment problem. 

For more information on Medicare payments or the physician fee cut, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888. 

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The U.S. District Court for the Eastern District of Virginia ruled that Section 1501 of the Patient Protection and Affordable Care Act (PPACA) is unconstitutional.  Shortly after PPACA was passed in March 2010, Virginia passed a state statute that conflicted with the individual mandate found in Section 1501 of PPACA which requires that by 2014 every United States citizen, with a few exceptions, must maintain a minimum level of health insurance coverage subject to penalty.  Following the passage of its state law, Virginia filed its lawsuit alleging that the individual mandate of PPACA violated the Commerce, Necessary and Proper and General Welfare Clauses of the United States Constitution.  The U.S. Department of Health and Human Services contended that the provision was Constitutional because individuals’ decisions to not purchase health care insurance combine to have a collectively serious effect on interstate commerce.  Thus, the Commerce Clause and the Necessary and Proper Clause support the provision. 

In his opinion, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia disagreed with the U.S. Department of Health and Human Services’ analysis.  The court held that the individual mandate in PPACA violates the Commerce Clause because the provision “compels” an individual to engage in commerce.  Further, since the provision violates the Commerce Clause, the Necessary and Proper Clause does not protect the provision because that clause requires that legislation be in furtherance of Congress’ constitutionally enumerated powers.  

For more information on health care reform and its impact on health care providers, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.  

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