Tag Archives: administrative law

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.

Use Caution in USMLE Step Exam Preparation

CTH Blog LabelBy Catherine T. Hollis, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The United States Medical Licensing Examination (USMLE) Bulletin of Information outlines several examples of conduct that is deemed to be irregular behavior.  On February 27, 2014, the USMLE posted an Announcement listing the types of alleged irregular behavior recently reviewed by the Committee for Individualized Review (CIR).  Some of the cases reviewed involved individuals who were accused of soliciting unauthorized access to examination materials or communicating about specific test items, cases, or answers with other examinees.  This particular type of irregular behavior seems to be increasingly alleged against individuals who have participated in online forum discussions requesting assistance with examination preparation.

Click here to read the entire February 27, 2014, USMLE Announcement.

Do Not Seek Specific Examination Materials or Attempt to Communicate With Other Examinees.

The USMLE is taking a hard line stance on enforcing its irregular behavior policies concerning soliciting test materials and communicating about specific test items.  We have recently seen a number of individuals accused of engaging in irregular behavior because of posts on forum websites that appear to be solicitations for specific examination materials or cases.  Some examples of these posts include:

-    Joining in requests from others for information on recent test questions after another individual’s post requesting Step 2 Clinical Skills  (CS) cases;
–    Requesting that others provide information about some of the cases at a specific test center;
–    Suggesting approaching examinees as they leave the exam center to ask about the exam; and
–    Requesting a list of CS cases for a specific test center.

Know the Rules.

All USMLE applicants are required to be familiar with the USMLE’s Bulletin of Information.  By signing a Step Exam application, an applicant is certifying that he or she has read and is familiar with all information contained in the Bulletin. You will still be held responsible for this whether you read it or not.

According to the Bulletin, irregular behavior includes any action that subverts or attempts to subvert the examination process.  As noted above, the Bulletin contains a non-exhaustive list of examples of conduct that is deemed to be irregular behavior.

Click here to read our previous blog about irregular behavior.

Irregular Behavior Has Serious Potential Consequences.

If an examinee is found to have engaged in irregular behavior, the CIR will impose sanctions.  These sanctions can include an annotation on an individual’s USMLE transcript, invalidation of scores, a report to the Federation of State Medical Boards, and even a bar from taking future USMLE examinations.

Appropriate Test Preparation.

Examinees can adequately prepare for the USMLE Step exams without the need to seek further assistance that might cross the line into irregular behavior.  On April 4, 2014, the USMLE posted an Announcement on its website with information about materials available from the USMLE, the National Board of Medical Examiners (NBME) and third parties. From the USMLE website, examinees can access free orientation and practice materials, including:

-    Informational materials on the overall USMLE program and content descriptions for each of the USMLE examinations;
–    Tutorials that illustrate the USMLE Step 1, Step 2 Clinical Knowledge (CK), Step 3 multiple-choice software and the Step 3 computer-based case simulation (CCS) Primum® software;
–    Sample multiple-choice test questions with answer keys for each Step exam;
–    Sample Step 3 CCS cases with feedback; and
–    Orientation materials for Step 2 CS.

Examinees may also, for a fee, take advantage of the self-assessment services offered by the NBME.  These services are designed to familiarize examinees with USMLE questions and provide feedback on the examinee’s areas of strength and weakness.

There are also a variety of commercial test preparation materials and courses that claim to prepare examinees for USMLE Step exams.  These courses are not affiliated with or sanctioned by the USMLE program, but may be helpful to you.

Click here to read the entire April 4, 2014, USMLE Announcement.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

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

Comments?

Have you ever come across these online forums? Have you ever posted in these forums? Please leave any thoughtful comments below.

Sources:

“USMLE Takes Action Against Individuals Found to Have Engaged in Irregular Behavior.” USMLE. (February 27, 2014). From: http://www.usmle.org/announcements/?ContentId=130

“Use Caution in Selecting Review Courses.” USMLE. (April 4, 2014). From: http://www.usmle.org/announcements/?ContentId=67

“USMLE 2014 Bulletin of Information.” USMLE. (2013). From: http://www.usmle.org/pdfs/bulletin/2014bulletin.pdf

About the Authors:  Catherine T. Hollis 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.

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.

If Denial of Licensure is Disciplinary in Nature, Then Agency Must Prove Case by “Clear and Convincing Evidence”

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

Davis Family Day Care Home (“Davis”) was issued a license as a family day care home in 2007. Davis applied annually for renewal of that license. In 2011, Davis applied for renewal of its license and also applied for a license as a large family child care home.

The Department of Children and Families (“DCF”) proposed to deny both the renewal application and the application for licensure as a large family child care home. Davis sought an administrative hearing on both denials. After an administrative hearing, the administrative law judge (“ALJ”) issued a recommended order recommending issuance of the renewal on a probationary basis and issuance of the large family child care home application on a provisional basis. The ALJ held that the burden of proof for the license denial was clear and convincing evidence. DCF rejected that conclusion, and provided a substituted conclusion of law that the burden of proof was by competent substantial evidence. DCF adopted the ALJ’s recommendation to renew the family day care home on a probationary basis, but denied the application for a large family child care home license.

On appeal, the court reversed and remanded. It held that DCF had misused the appellate “competent substantial evidence” standard of review as the burden of proof.

With respect to the appropriate burden on DCF, the court held that DCF must establish by clear and convincing evidence that the license should be denied, and not by a preponderance of the evidence. The court opined that the denial of the license for a large family child care home was essentially a disciplinary action since it was predicated on violations allegedly committed under the day care home license. The statute relied on by DCF authorized imposition of “disciplinary sanctions,” including denial or revocation of a license, for violations of the licensing laws. The court noted that DCF itself had acknowledged the disciplinary nature of its action, referring to its initial decision letter as an “administrative complaint.”

While recognizing that the court in Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 2006), had applied the preponderance of the evidence burden of proof (instead of clear and convincing evidence) to license application proceedings, the court noted that section 120.57(1), Fla. Stat., had been amended since the Osborne decision. Section 120.57(1)(j), Fla. Stat., now provides that the preponderance of the evidence standard applies except in penal or disciplinary actions. In this case, the statute made clear that DCF was taking disciplinary action.

Source:

Davis Family Day Care v. Department of Children and Family Servs., 117 So. 3d 464 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013).

 

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: The ALJ found that AHCA’s peer review expert applied certain standards to the Medicaid claims he examined in conducting the Medicaid audit, but “exercised his discretion as to whether to apply them based on the specifics of each patient’s medical records.” The ALJ dismissed the unadopted rule challenge, explaining that “where application of agency policy is subject to the discretion of agency personnel, the policy is not a rule. . . . The medical standards at issue in this case are not self-executing and require the exercise of discretion in their application.” The ALJ noted that “the medical standards of practice must be applied on a case-by-case basis to determine whether the services provided were medically necessary, and provided both an appropriate level of care and standard of care ‘customarily furnished by the physician’s peers and to recognized health care standards” as required by section 409.9131(2)(d), Florida Statutes.

Source:

Radhakrishna K. Rao et al. v. AHCA, DOAH Case No. 12-2813RU (Final Order Aug. 20, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

Centers for Medicare and Medicaid Services Puts Recovery Audit Contractor Program on Hold

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 18, 2014, the Centers for Medicare and Medicaid Services (CMS) announced it is in the procurement process for the next round of Recovery Audit Program contracts. This means the program is, for the time being, on hold while CMS awards new contracts. According to CMS, it will select new vendors to continue the Recovery Audit Contractor (RAC) program, which is responsible for detecting improper Medicare payments. It is expected that this pause will also be used to refine and improve the RAC program. In the announcement it was not disclosed how long the program would be on hold.

Click here to read the announcement from CMS.

This news comes months after CMS revealed an enormous backlog of RAC appeals. The backup is so bad, providers are not able to submit new cases until the existing backlog clears, which could take two years or more.

Current Contracts Extended to Conclude Appeals.

According to Modern Healthcare, CMS extended its contracts with the four current vendors until December 31, 2015, for administrative and transition activities. These contracts were to end on February 7, 2014. The purpose of the extension is to allow the RACs to handle and wind down appeals. To read the entire article from Modern Healthcare, click here.

For providers this means a lull in additional documentation requests (ADRs), however it is important to remember RAC audits are not going away.

Dates to Remember.

Providers should note the important dates below:

- February 21, 2014, was the last day a Recovery Auditor could send a postpayment ADR;
– February 28, 2014, is the last day a Medicare Administrative Contractor (MAC) may send prepayment ADRs for the Recovery Auditor Prepayment Review Demonstration; and
– June 1, 2014, is the last day a Recovery Auditor may send improper payment files to the MACs for adjustment.

Backlog of RAC Appeals Worse Than Ever.

The RAC appeals process has become so overloaded that in December 2013, the U.S. Department of Health and Human Services’ (HHS) Office of Medicare Hearings and Appeals (OMHA) notified hospitals, doctors, nursing homes and other health care providers that the agency would be suspending acting on new requests for hearings. Health care providers were told they would not be able to submit any new appeals until the existing backlog clears, which could take two or more years. To read more on the backlog of RAC appeals, click here for my previous blog.

RAC Audits Will Be Back.

In the first three months of the fiscal year 2013, RACs recouped more than $2.2 billion from providers due to what the RACs deemed were overpayments. With money coming in, RAC audits are not going away. It has become 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.

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.

Comments?

What do you think about the RAC program being put on hold? What do you think CMS should do to improve the program? Please leave any thoughtful comments below.

Sources:

Kutscher, Beth. “CMS Recovery Audits on Hold as Contractors Wrestle Big Backlog.” Modern Healthcare. (February 20, 2014). From: http://www.modernhealthcare.com/article/20140220/NEWS/302209968/cms-recovery-audits-on-hold-as-contractors-deal-with-big-backlog

Centers for Medicare and Medicaid Services. “Recent Updates.” Centers for Medicare and Medicaid Services. (February 18, 2014). From: http://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Recent_Updates.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. 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.

After Investigation Has Ended, Even Investigator’s “Mental Impressions” Are Subject to Release Under Public Records Act

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

The City of Avon Park (“City”) terminated Michael Rowan’s employment as Chief of Police. In the subsequent administrative hearing, at issue was Rowan’s investigation of certain city council members and alleged deletion of certain information from his work computer.

An investigator with the State Attorney’s Office was called in to investigate those issues; he prepared a report of his findings. The City subpoenaed the investigator to appear as a witness at the administrative hearing on Rowan’s termination, and to bring his report, which the City wanted to rely on. The State sought a circuit court order quashing the subpoena issued to the investigator. It also sought to prevent disclosure of portions of the report which constituted mental impressions of the investigator. The circuit court granted in part and denied in part the State’s petition. It concluded the investigator’s mental impressions were exempt from the Public Records Act and entered a protective order limiting the investigator’s testimony and protecting the mental-impression portions of the report.

The City appealed, arguing the report should be admissible in full and Rowan’s testimony should not be limited; Rowan cross-appealed, arguing that he should not be required to testify at all. The Second District Court of Appeal reversed the trial court’s decision excluding from evidence the portion of the report containing the investigator’s mental impressions. The court pointed to section 119.071(1)(d)1., Florida Statutes, which protects mental impressions from disclosure only until the conclusion of the litigation or adversarial administrative proceedings. In this case, the court concluded that the investigation had ended and no charges had been filed. Therefore, the investigator’s mental impressions were no longer protected.

Source:

City of Avon Park v. State of Florida, 117 So. 3d 470 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section Newsletter, Col. 36, No. 2 (Dec. 2013).