CMS Extends Waivers under the ACO Shared Savings Program

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

On November 2, 2011, the Centers for Medicare and Medicaid Services (CMS) promulgated the interim final rule on fraud and abuse waivers for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program. The interim rule can be found at 76 Fed. Reg. 67801. The waiver was granted pursuant to the agency’s authority under the Affordable Care Act, specifically, 42 U.S.C. § 1899(f).

You can read our prior blog postings on the ACO waiver programs here.

Normally, interim final rules are only permitted to remain in effect for a maximum of three years (see 69 Fed. Reg. 78422). CMS regulations require the agency to publish a final rule within three years of a proposed or interim final rule. As the interim final rule is set to expire on November 2, 2014, the agency took advantage of the procedure that allows it to extend the life of the rule for an additional year by publishing a notice explaining the reasons why the regular timeline was not met.

Explanation for the Extension.

CMS stated that it is in the process of preparing a final rule, and allowing the interim final rule to expire would create a great deal of legal uncertainty for ACOs currently participating in the Shared Savings Program. According to CMS, this uncertainty has the potential to disrupt ongoing ACO business, plans, and operations.

Ultimately, CMS has learned through the course of its operation of the Shared Savings Program that certain modifications to the program are necessary. Although these modifications are not yet defined completely, CMS nevertheless believed the prudent course of action was to maintain the status quo during the rule making process.

Check back with us for updates on the process and any further information as the final rule is developed.

Comments?

Have you considered joining an ACO? Why or why not? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced With Healthcare Business Practices.

The Health Law Firm routinely represents physician groups and practices with issues involving establishing, licensing, selling, merging, and intergroup affiliation. If you are considering establishing an ACO or have been approached to become a participant in one, you can contact The Health Law Firm at (407) 331-6620 or (850) 439-1001 or you can visit our website at http://www.TheHealthLawFirm.com.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Internal Medicine Specialists Should Be Aware of Impending Medicare Audits

6 Indest-2008-3Coming to a medical practice near you. . . It’s scary, it’s horrible, and it could cost you a lot of money!

It’s the dreaded Comprehensive Error Rate Testing (CERT) audit.

The Horror! The Horror!

First Coast Service Options, the Medicare contractor for Florida, announced a new prepayment audit program that will impact Internal Medicine Specialists. The prepayment program is focused on Initial and Subsequent Hospital Evaluation and Management Services, CPT Codes 99223 and 99233. The program is being launched due to the high CERT error rate associated with these codes.

The audits will start on October 21, 2014.

What is the CERT Program?

CMS created the CERT program to measure the paid claims error rate for Medicare claims submitted to Medicare administrative contractors, carriers, durable medical equipment regional carriers, and Medicare Administrative Contractors (MACs). CMS receives more than two billion claims annually. The CERT program randomly selects approximately 120,000 of these claims for review to determine whether the claims were properly paid.

Statistical samples are selected and the CERT documentation contractor (CDC) submits documentation requests to those providers who submitted affected claims. Once the requested documentation has been received, the information is forwarded to the CERT review contractor (CRC) for review. The CRC will review the claims and supporting documentation to measure compliance with Medicare coverage, coding and billing rules. Click here to read my previous blog on the CERT Program.

How Internal Medicine Specialists Can Avoid CERT Audits.

First Coast is only targeting Internal Medicine Specialists as their data analysis suggests the specialty is the primary contributor to an elevated CERT error rate. Errors are normally cause by insufficient documentation to justify the service.

Healthcare providers designated as Internal Medicine with First Coast Service Options need to pay special attention to this audit program and the documentation requirements for billing 99223 and 99233 codes. If you find yourself or your practice the target of a CERT audit, click here for tips on how to respond.

Our Thoughts on the CERT Program.

In working with the CERT Program, we have been pleasantly surprised when our personal phone calls to the CERT auditors have been answered and actual accurate information provided, as well as letters and documents we provided being promptly acknowledged. Like with any other audit, however, we urge those being audited to seek the advice of an experienced health law attorney who may be able to assist in heading off and avoiding a more serious investigation or a large repayment demand.

Comments?

Have you heard of CERT audits? Has your practice encountered a CERT audit? Please leave any thoughtful comments below.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

“Doctor of Death” Trial Could Ignite Stricter Oversight in the Healthcare Industry

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On paper, one Detroit-area oncologist appeared to be a wildly successful professional with impeccable medical credentials. According to his medical practice’s website, he went to medical school at Cornell Medical College, did an internal medicine residency at Maimonides Medical Center in Brooklyn, New York, and then completed a medical oncology fellowship at Memorial Sloan-Kettering Cancer Center, a very well-respected facility. The oncologist ran a professional practice of seven locations with a total of 60 employees.

However, on September 24, 2014, his reputation and accolades faded when he pleaded guilty to intentionally and wrongfully diagnosing healthy patients with cancer. He also admitted to giving these patients chemotherapy solely for the purpose of making a profit.

For healthcare professionals, this act is an obvious violation of the oath they took to serve their patients and to do no harm. But, if this oncologist is found guilty, you can be assured that oncologists, physicians, dentists, and all other healthcare professionals will be under a microscope to help ensure that something this egregious and dishonest does not happen again.

Allegations Against the Oncologist.

The details of the allegations, obtained from various employee whistleblowers, range from the mundane to the horrific. In the Federal Bureau of Investigation’s (FBI) complaint against the oncologist, there are dozens of examples of his wrongdoing described. The activities of which the doctor is accused include:

- Administration of unnecessary chemotherapy to patients in remission;
- Deliberate misdiagnosis of patients as having cancer to justify unnecessary cancer treatment;
- Administration of chemotherapy to end-of-life patients who would not benefit from the treatment;
- Deliberate misdiagnosis of patients without cancer to justify expensive testing;
- Fabrication of other diagnoses such as anemia and fatigue to justify unnecessary hematology treatments; and
- Distribution of controlled substances to patients without medical necessity.

There is also an issue of Medicare fraud. For the past six years, the doctor is accused of seeing a large number of patients per day. He would then bill every patient at the highest possible billing code, even though he allegedly only spent a few minutes with each patient. The amount of money related to the doctor’s Medicare fraud scheme is a staggering $35 million.

Click here to read the FBI’s complaint against the oncologist.

Charges.

The oncologist is facing a an abundance of legal issues. In all, the oncologist pleaded guilty in U.S. District Court to 13 counts of healthcare fraud, one count of conspiracy to pay or receive kickbacks and two counts of money laundering. He will be sentenced in February 2015 and faces up to 175 years in prison.

Other Healthcare Providers Could Pay for Oncologist’s Greed.

If the oncologist is found guilty, the aftereffects will surely be felt throughout the industry. For example, healthcare providers will need to more closely watch their Medicare billing. Any reimbursement submitted to Medicare will be under tight scrutiny. Keep in mind that Medicare pays close attention to the percentage of patients billed at each level. If a physician bills for every patient at the highest level, it’s going to send up a huge red flag. If you or your practice is being audited, click here for some tips on responding to a Medicare audit.

On top of the extensive healthcare fraud charges, the oncologist allegedly misled, endangered, and injured his patients. He betrayed the trust and privilege given to him as a physician by society, all in the name of greed. According to an article in The Washington Post, more than one patient died under the care of the oncologist. These families are now left to figure out whether their loved ones actually had cancer and died of chemotherapy complications, or whether they died of an actual cancerous ailment.

It’s crucial to remember that cutting corners to make a profit as a healthcare professional leads to great ramifications. Once a healthcare professional’s license and reputation are questioned, it is not an industry one can easily get back into.

Comments?

In your opinion, what is the worst offense this oncologist allegedly committed? Explain. Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Sullivan, Gail. “‘Death Doctor’ Who Profited from Unnecessary Chemotherapy for Fake Cancers Could Resume Practice in 5 Years.” The Washington Post. (October 1, 2014). From: http://www.washingtonpost.com/news/morning-mix/wp/2014/10/01/death-doctor-who-profited-from-unnecessary-chemotherapy-for-fake-cancers-could-resume-practice-in-three-years/

“Prominent Michigan Cancer Doctor Pleads Guilty: ‘I Knew That It Was Medically Unnecessary’.” The Inquisitr. (September 24, 2014). From: http://www.inquisitr.com/1485160/prominent-michigan-cancer-doctor-pleads-guilty-i-knew-that-it-was-medically-unnecessary/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Criminal Law: Warrantless Search of Cell Phones

Our guest author of this is article is Doug Plank, a legal research attorney with National Legal Research Group in Charlottesville, Virginia.

In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court’s general rule that a person’s belongings may be searched without a warrant incident to an arrest of that person, the Court found that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.

The Court recognized that its decision will have an impact on the ability of law enforcement to combat crime, but it noted that some case-specific exceptions to the warrant requirement would still be applicable to the search of cell phones, such as the presence of exigent circumstances that would require an immediate search to prevent the imminent destruction of evidence or to locate an immediately dangerous instrumentality, such as explosives.

About the Author: The author of this is article is Doug Plank, a legal research attorney with National Legal Research Group in Charlottesville, Virginia. This article appeared on The Lawletter Blog.

This article was originally published in The Lawletter Vol 39 No 6.

 

Cyber Attack at Community Health Systems Affects 4.5 Million Patients-Could This be a New Trend?

Patricia's Photos 013By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar  in Health Law

On August 18, 2014, Community Health Systems, a Tennessee-based hospital chain that has 206 hospitals in 29 states, announced that its computer system was hacked. According to a number of news reports, an outside group of hackers, originating in China, used highly sophisticated malware and technology to steal 4.5 million patients’ non-medical data. The hackers were able to obtain patients’ names, Social Security numbers, addresses, birth dates, and telephone numbers.

According to the Orlando Sentinel, in Florida, St. Cloud Surgical Associates, St. Cloud Medical Group, and Urology Associates of St. Cloud were among the practices where medical data was stolen. The article did not mention how many patients in Florida were affected. Click here to read the story from the Orlando Sentinel.

How Community Health Systems will Handle Being Hacked.

According to The New York Times, Community Health Systems believes the attacks happened from April to June 2014. The company will be notifying affected patients and agencies under the Health Insurance Portability and Accountability Act (HIPAA).

The hospital system is now working with a security company to investigate the incident and help prevent future attacks. Federal law enforcement agents are also investigating the incident. Click here to read the entire article from The New York Times.

Because this breach affected more than 500 individuals, it will soon be posted on the Office for Civil Rights (OCR) Department of Health and Human Services’ (HHS) Wall of Shame. The law requires that any breach involving 500 or more individuals be publicly posted. To learn more on the Wall of Shame, click here for my previous blog.

Protect Your Practice As Best You Can From Cyber Attacks.

Cyber hacking in the medical community appears to be a crime of opportunity. Quickly there are becoming two types of companies: those that have been hacked and those that will be hacked.

While there is no way to guarantee protection from extrusion and external sources, there are steps that can be taken. For medical practices, many of these are required as part of a HIPAA risk assessment. Some areas to focus on include:

-    Background checks;
-    Comprehensive policies and procedures;
-    Vigilance when it comes to monitoring and data-leakage prevention tools; and
-    Employee education.

Medical practices are going to become bigger targets as the health care industry transitions to electronic health records. In addition, the hacking community is figuring out it is easier to hack a hospital or private practice, than it is a bank and you get the same information. To learn more on HIPAA risk assessments, click here.

Comments?

How do you protect your medical practice from hackers? Do you have regular risk assessments? Why or why not? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Perlroth, Nicole. “Hack of Community Health Systems Affects 4.5 Million Patients.” The New York Times. (August 18, 2014). From: http://nyti.ms/1pFpujC

Kutscher, Beth. “Chinese Hackers Hit Community Health Systems; Other Vulnerable.” Modern Healthcare. (August 18, 2014). From: http://bit.ly/1BxsLqH

Jacobson, Susan. “St. Cloud Medical Patients’ Information Among Millions Stolen in Cyber Attack.” (August 18, 2014). From: http://www.orlandosentinel.com/business/os-hospital-data-breach-st-cloud-20140818,0,3157319.story

Rose, Rachel. “Protecting Your Medical Practices From Cyber Threats.” Physicians Practice. (July 17, 2014). From: http://www.physicianspractice.com/blog/protecting-your-medical-practice-cyberthreats

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Watch Out for Legal Pitfalls Associated with Telemedicine

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

With all the new technologies, mobile medical applications, expansion of access to health care under the Affordable Care Act (ACA), and the emphasis on quality care, telemedicine is at the forefront of the health care industry.

Now is the time to educate yourself on the new opportunities in practicing telemedicine. As with any new health care business model, you also have to assess the risks and be sure you are complying with the ever increasing number of regulations.

Where Telemedicine Stands Today.

The Centers for Medicare and Medicaid Services (CMS) can be credited for the telemedicine revival. In 2011, CMS issued a final rule permitting a more flexible process for credentialing and privileging practitioners who provide telemedicine services. Telemedicine escalated in 2013, when federal and state legislation and major insurers expanded the types of reimbursable telemedicine services. Now in 2014, there are more partnerships between insurers and health care delivery systems to provide patients access to specialists through telemedicine programs.
For example, WellPoint, Inc., and Aetna, Inc., among other health insurers, are letting millions of patients schedule online visits with health care professionals. These insurance companies are working together with companies that offer virtual visits with doctors who, in some states, can prescribe drugs for anything from sinus infections to back pain. According to Bloomberg, this is a major advancement for telemedicine. To read the entire article from Bloomberg, click here.

The Current Status of Telemedicine in Florida.

In March 2014, the Florida Boards of Medicine and Osteopathic Medicine adopted updated standards for practicing telemedicine. The final rule, 64B8-9.0141, Florida Administrative Code, defines telemedicine as:

the practice of medicine by a licensed Florida physician or physician assistant where patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic communications. Telemedicine shall not include the provision of health care services only through an audio only telephone, email messages, text messages, facsimile transmission, U.S. mail or other parcel service, or any combination thereof.

The rule states that the standard of care shall remain the same regardless of whether a physician provides services in person or by telemedicine. Also, those providing telemedicine services are responsible for the safety, security and adequacy of their equipment.

Several other parts of the new Florida telemedicine rule are worth noting:

1. Telemedicine is sufficient to establish a physician-patient relationship;
2. All regulations regarding patient confidentiality and record keeping are applicable;
3. The rule specifically exempts medical advice given by emergency responders including EMTs, paramedics and emergency dispatchers;
4. The rule also does not apply to physicians or physician assistants providing emergency care under conditions requiring immediate medical care; and
5. Florida law presently prohibits prescribing controlled substances via telemedicine.


Telemedicine and the Potential Legal Issues.

As telemedicine grows, so will the oversight and scrutiny by state medical boards and federal and state regulatory agencies. Here are some areas to be mindful of:

- Reimbursement: This is continuously an issue with telemedicine. Medicare reimbursement for telemedicine services is limited and generally requires face-to-face contact between patients and providers. Medicaid reimbursement varies from state-to-state, and only about 20 states have enacted statutes that require reimbursement for certain telemedicine services. This means health care providers need to review Medicare and Medicaid reimbursement policies, state health insurance regulations, and provider payer contract requirements so that they are aware of the reimbursement requirements that may affect their billing. Educate yourself on what will and what won’t be reimbursed, and only submit compliant claims to avoid audits.

- Fraud and Abuse: As a telemedicine provider, you will most likely initiate business arrangements between distinct health care entities that may include the lease of equipment or the use of a product owned, in part, by physicians. Arrangements like this need to be written with federal fraud and abuse laws in mind, including the Anti-Kickback Statute and the Stark Law. For more advice on telemedicine-related fraud issues, review advisory opinions issued by the Office of the Inspector General (OIG).

- Medical Staff Bylaws: Health care organizations that depend on information from a distant-site hospital or telemedicine entity to credential and privilege telemedicine practitioners must revise their medical staff bylaws and policies to include criteria for granting privileges to distant practitioners, and a procedure for applying the criteria. Additions should also include what category of the medical staff distant-site telemedicine practitioners will join, the level of involvement they may have in medical staff committees, and what procedural rights they should be given.

- Credentialing and Privileging: Under CMS’ final rule, health care organizations may rely on the credentialing and privileging decisions of distant-site hospitals or the information provided by other telemedicine entities when determining privileges for distant-site practitioners who provide telemedicine services, as long as certain conditions are met, including a compliant written agreement.

- Patient Privacy: Providers are responsible for ensuring they have secure communication channels, implementing business associate and other confidentiality and privacy agreements, educating staff regarding the appropriate use of telemedicine, and understanding how and what patient information is being collected and stored.

- Compliance with State Requirements: Most states require physicians engaging in telemedicine to be licensed in the state where the patient is located. It would be wise for health care organizations to seek the legal guidance of an experienced health law attorney to navigate individual state requirements.

- Interactions with Pain Management Laws: Our practice has seen many physicians become the subject of some kind of government investigation or action resulting from the remote practice of medicine in a pain management setting. These telemedicine rules do not alter the status quo in pain management. Physicians are still required to see patients in a face-to-face encounter in order to prescribe controlled substances for the treatment of pain. There are discussions among the members of the Florida  Boards of Medicine and Osteopathic Medicine to permit limited prescribing of controlled substances through telemedicine. However, the boundaries of a future rule are unclear. Considering the hard-line stance the Boards have taken toward pain management in general, it is unlikely that any final rule would authorize the remote practice of pain management.

Health care providers need to stay mindful of the listed legal issues, and any others that may come up. It is important when practicing telemedicine to ensure your services are compliant, and you appropriately protect patient safety and privacy.

Comments?

Does your practice use telemedicine? In your opinion what are the benefits and what are the difficulties of telemedicine? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

French, Marie. “The Doctor Will Click on You Now.” Bloomberg. (July 13, 2014). From: http://www.bloomberg.com/news/2014-07-14/the-doctor-will-click-on-you-now.html

Kadzielski, Mark and Kim, Jee-Young. “Telemedicine: Many Opportunities, Many Legal Issues, Many Risks.” JD Supra. (July 30, 2014). From: http://www.jdsupra.com/legalnews/telemedicine-many-opportunities-many-l-18993/

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

The RACs, They’re Back! The Return of Medicare Recovery Audits

Patricia's Photos 013By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

All good things must come to an end. This includes the two-month hiatus from Recovery Audit Contractors (RACs) that healthcare professionals enjoyed. The Centers for Medicare and Medicaid Services (CMS) is restarting audits of Medicare fee-for-service claims on a limited basis. The program has been suspended since June 1, 2014, due to expired contracts.

CMS announced the return of RACs on August 4, 2014.

Click here to read the latest announcements on Medicare recovery audits from CMS.

From what we have heard, there were serious problems with some of the audits that had been conducted by the RACs and CMS desired to start over with a clean slate. Just saying!

What Does Limited Basis Mean?

According to CMS, current RACs will conduct a limited number of automated reviews and a small number of complex reviews on certain claims including, but not limited to:

- Spinal fusions;
- Outpatient therapy services;
- Durable medical equipment;
- Prosthetics;
- Orthotics; and
- Supplies and cosmetic procedures.

RACs will not conduct any inpatient hospital patient status reviews for now. In the past, short inpatient stays accounted for 91 percent of the money the program recovered for Medicare.

Controversial Program.

According to an article on HealthData Management, in February 2014, members of congress argued that parts of the RAC program are unfair and violate the way that the Medicare program was intended to operate by raising out-of-pocket costs for beneficiaries. To address this concern, CMS established a provider relations coordinator to increase program transparency. This was announced in June 2014, so it is too soon to determine if this position will help providers affected by the medical review process. Click here to read more from HealthData Management.

Healthcare providers have complained that they are fed up with Medicare recovery audits tying up crucial funds and physician time in endless appeals. Currently, appeals can take up to five years. There is also a two-year moratorium in place preventing new appeals from being filed. You may remember my previous blog on the enormous backlog of Medicare recovery audit appeals. Click here to read that post.

What Exactly is a RAC?

RACs are often referred to as “bounty hunters.” They are private companies contracted by CMS, used to identify Medicare overpayments and underpayments, and return Medicare overpayments to the Medicare Trust Fund. Since the program began in 2009, it has brought in more than $8 billion in allegedly fraudulent, wasteful and abusive payments to healthcare providers.

How to Prepare for a Medicare Recovery Audit.

There is no such thing as a routine Medicare audit. The fact is that there is some item you have claimed as a Medicare provider or the amount of claims Medicare has paid in a certain category that has caused you or your practice to be audited.

I previously wrote a blog highlighting some of the actions we recommend you take in responding to a Medicare audit. The most important step you should take is to consult an experienced health law attorney early in the audit process to assist in preparing the response. Click here to read more on how to respond to a Medicare audit.

We Told You RACs Would Be Back.

RACs apparently caught $3.7 billion in allegedly wasteful payments that Medicare made to healthcare providers in 2013, and was allegedly on pace to bring back $5 billion this year. That’s why the government was eager to get RACs back to work.

It is extremely common for state and federal regulators to enforce even the smallest violations, resulting in investigations, monetary fines and penalties. If found in violation, you will not only have to pay fines and face disciplinary action, you will also lose revenue because you will have to spend time dealing with the investigation, instead of practicing medicine. Whether you are trying to prevent Medicare and Medicaid audits, Zone Program Integrity Contractor (ZPIC) audits, or any other kind of healthcare audits, there are steps you can implement in your practice today that may save you down the line. Click here to read more on self audits.

Comments?

What do you think about the return of Medicare recovery audits? What are you thoughts on Recovery Audit Contractors? Please leave any thoughtful comments below.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Demko, Paul. “Controversial Medicare Recovery Audits Make Limited Return.” Modern Healthcare. (August 5, 2014). From: http://www.modernhealthcare.com/article/20140805/NEWS/308059962/controversial-medicare-recovery-audits-make-limited-return

Goedert, Joseph. “CMS Restarts Parts of the RAC Program.” HealthData Management. (August 5,2014). From: http://www.healthdatamanagement.com/news/CMS-Restarts-Parts-of-the-RAC-Program-48553-1.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.