Tag Archives: defense lawyer

Pediatricians Who Are Targets of Medicaid Audits Should Request Hearings on the Final Audit Report Results

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We have recently been contacted by several pediatric practices that were subject to Medicaid audits. In several cases, the pediatricians received the final audit reports (FARs) stating that they owed Medicaid refunds, because of overbillings, in the tens of thousands of dollars.

With such demands for repayment of the alleged overpayments also come:

  1. Fines;
2. Penalties;
3. Requirements to sign agreements to refrain from such practices in the future;
4. Requirements to have personnel retrained; and
5. The specter of future audits.

In many cases, Medicare and Medicaid auditors may swiftly review supporting medical records and overlook key components that support the level of services (or CPT codes) that were billed, erroneously downgrading the code or disallowing the charge completely. Other times the pediatric or medical practice may have only provided partial records and have left out some key records that would support the codes billed.

Challenging the Determination.

Unfortunately, after receipt of the FAR, the only hope of challenging the determination would come by filing a written request or petition for a formal hearing in, specifically, a Medicaid case. In Medicare cases, other interim reviews or appeals are available.

If you have additional records you failed to provide, or if after a thorough review of the records you did provide show that all of the elements of a CPT code you billed (e.g., 99204 or 99205) were documented, then we recommend that you immediately retain the services of a board certified health lawyer experienced with Medicare and Medicaid audits to file a petition for you. Be sure a written request or petition for a formal hearing is filed within the time stated in the letter you receive, even if you must retain an attorney afterwards. Remember that the request must be in writing and must be received by the agency at the address specified before the date in the letter has passed.

You can always work out a settlement agreement, repayment agreement, or agreement for a different resolution of the situation. What you can’t do is to go back and get back your hearing rights after they have expired.

Steps to Take if you Receive Notice of an Audit.

What you should do immediately upon receiving notice of an audit:

 1. Retain the services of a board certified health lawyer who is experienced with such audits.

 2.  In a timely manner, provide all relevant documents pertaining to the audit, properly labeled and pages numbered (note:  in many instances, this may include more than just the minimum documents the audit requested).

 3. Watch for any interim, initial or preliminary audit reports (PARs), and be prepared to rebut it in detail if it requests a refund.

 4. If you receive a FAR demanding a repayment, be prepared to hire a board certified health lawyer who is experienced with such audits, if you have not already done so.

 5. If you disagree with the findings in the FAR, be sure the agency receives your request for a formal hearing to challenge the determination, prior to the date given in the FAR or demand letter.

For additional details, pointers and tips on this subject you may click here to read the prior blog we have published.

For information, details, pointers and tips on the subject of Medicare audits, you may click here to read the prior blog we have published on this.

Comments?

Do you know what to do if you are the target of a Medicaid audit? Did you know about requesting a hearing on the final audit report results? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Medicare and Medicaid Cases.

Attorneys with The Health Law Firm 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. We also handle Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S.

Our attorneys also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

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

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.

 

Disruptive Physicians: Nobody Likes a Nuisance

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Christopher E. Brown, J.D., The Health Law Firm

Identifying and eliminating disruptive physicians has become a paramount concern of many hospitals and healthcare systems. Disruptive physicians hinder the safe and orderly operation of a healthcare facility and are considered a threat to the safety of patients. Disruptive behavior can impact staff morale and can increase the risk of liability to all employers.

A recent New York case demonstrates this. According to a journal for surgeons, a New York doctor is being held responsible for an ongoing worker’s compensation bill as the result of a violent outburst he directed toward a physician assistant (PA). The physician allegedly lost his temper during an open-heart surgery when the physician assistant accidentally suctioned some heart tissue. The physician allegedly threatened that he would “throw the physician assistant through the wall” if it happened again.

The physician assistant has claimed that the threat deeply affected her ability to perform her job, as well as put the patient’s safety at risk. A psychologist diagnosed the PA with post traumatic stress disorder (PTSD) caused by the incident. Unable to work because of the trauma allegedly caused by the disruptive physician, the PA now reportedly collects $2,415 a week in workers’ compensation.

To read the full article from Outpatient Surgery, click here.

Implications of Disruptive Behavior.

Disruptive behavior from a physician can lead to dire consequences for both the physician and his or her employer. Lawsuits and liabilities, such as those in the New York case discussed above, can detract from a safe, cooperative, and professional healthcare environment.

Disruptive behavior can negatively affect the quality of patient care. Hospitals claim that this happens because of conduct that:

-    Disrupts or impedes the operations of the hospital;

-    Adversely affects the ability of others on the healthcare team to do their jobs;

-    Creates an unprofessional or hostile work environment for hospital employees;

-    Interferes with coworkers’ ability to practice competently;

-    Prevents effective communications among healthcare providers and staff;

-    Disrupts the continuity of care a patient receives; and

-    Adversely affect the community’s confidence in the hospital’s ability to provide quality patient care.

Being accused of being a disruptive physician may lead to adverse action against clinical privileges, action to drop the physician from insurance panels, consequential action by the state medical board or licensing authority, loss of specialty certification, termination of employment contracts and other various consequences.

What Conduct May Cause One to be Labeled a Disruptive Physician?

A hospital’s creed, ethical statement, or code of conduct, as well as Joint Commission Standards, and medical staff bylaws can define what constitutes disruptive behavior. Case reports, hospital policies and actual cases in which we have defended physicians demonstrate the types of acts that can be used to label a person as “disruptive.” Disruptive behavior includes, but is not limited to:

-    Verbal attacks that are personal, irrelevant to hospital operations, or exceed the bounds of professional conduct;

-    Shouting, yelling, or the use of profanity;

-    Verbally demeaning, rude or insulting conduct, including exhibiting signs of disdain or disgust;

-    Inappropriate physical conduct, such as pushing, shoving, grabbing, hitting, making obscene gestures, or throwing objects;

-    Inappropriate comments or illustrations made in patient medical records or other official documents, impugning the quality of care in hospital facilities, or attacking particular medical staff members, personnel, or policies;

-    Belittling remarks about the patient care provided by the hospital or any healthcare provider in the presence or vicinity of patients or their families;

-    Non-constructive criticism that is addressed to the recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence;

-    Refusal to accept, or disparaging or disgruntled acceptance of, medical staff assignments;

-    Inappropriately noisy or loud behavior in patient areas;

-    Making sexual or racial jokes;

-    Physically touching another professional, nurse or staff member, especially those of the opposite sex;

-    Making sexually suggestive remarks;

-    Commenting on another person’s body parts;

-    Threatening violence to another;

-    Throwing surgical equipment, medical supplies, charts, or anything else at or around anyone else; or

-    Other disruptive, abusive, or unprofessional behavior.

I previously wrote a two-part blog series detailing the types of conduct considered disruptive, as well as the consequences associated with disruptive behavior and how you as a physician can avoid such pitfalls. To read part one of the blog series, click here. To read part two of the blog series, click here.

Physicians: Proactively Educate Yourself.

It’s wise to review your hospital’s or institution’s policies on disruptive behavior. Arming yourself with the knowledge necessary to avoid such accusations is imperative in protecting your reputation and career.

No one lives in a glass house, but pretend you do. Someone can always observe your actions in the office or hospital. Once you have been labeled a disruptive physician, others may be closely, at times, scrutinizing you for anything you may do wrong. You will make yourself a target for possible false allegations and accusations. The healthcare industry is a demanding and stressful field. It’s understandable that potential outbursts can occur; control yourself and don’t let them.

Comments?

Have you ever been accused of being a disruptive physician? Have you ever been around one? What are some proactive tactics physicians can take to prevent any outbursts or behavioral conduct that would be deemed as disruptive? 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 www.TheHealthLawFirm.com.

Source:

Burger, Jim. “Doc Threatens Physician’s Assistant During Open Heart Surgery: I’m Going to Put Your Through the Wall.” Outpatient Surgery. (July 14, 2014). From: http://www.outpatientsurgery.net/surgical-facility-administration/legal-and-regulatory/doc-threatens-physician-s-assistant-during-open-heart-surgery-i-m-going-to-put-you-through-the-wall–07-14-14

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.

Why Have You Received a Denial on Your Medicare Enrollment Application?

GFI Blog LabelBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Christopher E. Brown, J.D., The Health Law Firm

Did you receive a denial on your Medicare enrollment application and can’t figure out why? You may be surprised to find out that even the smallest punctuation error, such as a missing comma or period, could be the reason Medicare rejected your application.

The Centers for Medicare and Medicaid Services (CMS) will deny Medicare applications of physicians, medical groups, home health agencies (HHAs), pharmacies and durable medical equipment (DME) suppliers because the name on file with the National Plan & Provider Enumeration System (NPPES) is not the same legal business name as reported to the Internal Revenue Service (IRS). The use of punctuation marks and abbreviations in your name with NPPES could produce a no match in the CMS records. It is imperative when filling out the Medicare enrollment forms that you use the exact legal business name on file with the IRS.

The easiest way for a health care provider or facility to apply for enrollment or make changes to enrollment information is to use the internet-based Provider Enrollment Chain and Ownership System (PECOS). Click here to utilize PECOS.

Other Reasons Why a Medicare Enrollment Application can be Denied.

Here are some more situations that can cause a provider’s application to be denied:

1. The form CMS-855 or PECOS certification statement is unsigned; is undated; contains a copied or stamped signature; or for the paper form CMS-855I and form CMS-855O submissions, someone other than the physician or non-physician practitioner signed the form.
2. The submitted paper application is an outdated version.
3. The applicant failed to submit all of the forms needed to process a reassignment package within 15 calendar days of receipt.
4. The form CMS-855 was completed in pencil.
5. The wrong application was submitted (for example: a form CMS-855B was submitted for Part A enrollment).
6. If a web-generated application is submitted, it does not appear to have been downloaded from the CMS website.
7. The health care provider sent in an application or PECOS certification statement via fax or e-mail when he/she was not otherwise permitted to do so.
8. The health care provider failed to submit an application fee (if applicable to the situation).

Update All of Your Information with Medicare.

If you are already a Medicare provider, I urge you to personally go into the PECOS and NPPES and print out a copy of the existing information to check it.

If anything is incorrect, including an incorrect or incomplete name for your medical group, corporation or business, immediately fix this. Everything should be consistent. All of your state licenses and corporation/company information on file with your Secretary of State should also contain the same information as well.

Incorrect Information Could Lead to the Termination of Your Medicare Provider Number.

The consequences of not checking your information on file are severe, and can include termination of your Medicare provider number and billing privileges.

The effect of this termination includes:

- You are prohibited from reapplying to Medicare for at least two years.
– You may have to pay back any money received from the Medicare program since the effective date of the termination (often many months prior to the notification letter).
– Other auditing agents may be notified such as the Medicare Zone Program Integrity Contractors (ZPICs) and the state Medicaid Fraud Control Unit (MFCU).
– You may no longer contract with Medicare or anyone who does.
– You may and probably will be terminated from the approved provider panels of health insurance companies with which you are currently contracted.
– You may and probably will be terminated from skilled nursing facilities (SNFs) and HHAs with which you have contracts.
– You may and probably will have your clinical privileges terminated by hospitals or ambulatory surgical centers (ASCs).

To read our recommendations on what to do if your Medicare provider number is terminated, click here to read my previous blog.

Comments?

Did you know that even the smallest punctuation errors could lead to a denial of your application for Medicare enrollment? Have you ever had an issue enrolling in the Medicare program? Please leave any thoughtful comments below.

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

The lawyers of The Health Law Firm routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicare and Medicaid investigations, audits and recovery actions. They also represent them in preparing and submitting corrective action plans (CAPs), requests for reconsideration, and appeal hearings, including Medicare administrative hearings before an administrative law judge. Attorneys of The Health Law Firm represent health providers in actions initiated by the Medicaid Fraud Control Units (MFCUs), in False Claims Act cases, in actions initiated by the state to exclude or terminate from the Medicaid Program or by the HHS OIG to exclude from the Medicare Program.

Call now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

About the Authors: 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.

Christopher E. Brown, J.D., is an attorney with 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.

Florida Attorney General Targets Targeted Case Management Fraud

DPP_12By Christopher E. Brown, J.D., The Health Law Firm

Due to increased fraud throughout the system, the Florida Attorney General (AG), through the Medicaid Fraud Control Unit (MFCU), is focusing its attention on Medicaid targeted case management (TCM) services.

TCM services were created to assist children with documented mental health conditions in gaining access to medical, social, educational, and other support services. To be eligible for such services a child must meet very strict criteria.

Eligibility Criteria for Children’s Mental Health TCM Services:

1. Must be enrolled in a Department of Children and Families (DCF) children’s mental health target population (birth through 17 years);
2. Has a mental health disability (i.e., serious emotional disturbance) that requires advocacy for and coordination of services to maintain or improve level of functioning;
3. Requires services to assist in attaining self sufficiency and satisfaction in the living, learning, work, and social environments of choice;
4. Lacks a natural support system for accessing needed medical, social, educational, and other services;
5. Requires ongoing assistance to access or maintain needed care consistently within the service delivery system;
6. Has a mental health disability (i.e., serious emotional disturbance) that, based upon professional judgment, will last for a minimum of one year;
7. Is in out-of-home mental health placement or at documented risk of out-of-home mental health treatment placement; and
8. Is not receiving duplicate case management services from another provider.

Unfortunately, many of the children TCM providers assist and bill Medicaid for do not meet these criteria. In addition, a lack of oversight by the Medicaid program has led to numerous improper and fraudulent payments to TCM providers.

Florida TCM Fraud Cases.

Improper and fraudulent payments are often related to TCM providers billing for services that were never performed and paying kickbacks for client referrals.

According to the Florida AG, the three owners of Destiny TCM Corporation in Central Florida were arrested by the MFCU for $27,000 worth of Medicaid fraud. The corporation is accused of falsely billing the Medicaid program for illegitimate targeted case management services and bribing individuals in order to obtain Medicaid recipient numbers. Click here to read the press release from the AG.
In another similar case, the owners of Kingdom Builders Ministries in Lake County, Florida, were also arrested for allegedly defrauding Florida Medicaid out of $80,000. The MFCU revealed that the two owners allegedly directed employees to bill for an entire family when only one member received services. Employees were also allegedly instructed to bill for unauthorized expenses, such as travel time, employee staff meetings and phone calls. Additionally, records indicate that Kingdom Builders Ministries received payment for services allegedly provided to young children who did not have any documented mental health condition and continued to submit invoices months after terminating services. Click here to read more from the AG.

Tips for Responding to a Medicaid Fraud Control Unit Investigative Subpoena.

The MFCU has become aware of these improper payments and has begun to investigate TCM providers, aggressively. The MFCU is in charge of investigating and prosecuting health care providers suspected of defrauding the state’s Medicaid program. When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific patient records. It is important to remember that the MFCU would not be involved unless criminal fraud was suspected. This is not a routine audit. Click here to read practice tips on how to properly respond to an MFCU subpoena.

Defend Yourself from Fraud Charges.

We have been consulted by many individuals similar to the subjects of this story, both before and after criminal convictions for fraud or related offenses. In many instances, we are convinced that the person is actually not guilty of fraud. However, in many cases those subject to Medicaid or Medicare fraud audits and investigations refuse to acknowledge the seriousness of the matter or they decide not to spend the money required for a top quality attorney to defend them.

If you are accused of Medicare or Medicaid fraud, realize that you are in the fight of your life. Your liberty, life and profession are at stake. You need to sell everything you own, borrow everything you can and hire the absolute best criminal defense attorney available who has experience in defending such cases to represent you.

If you win and are acquitted, at least you still have a professional license and can start over. However, if you lose, you will most probably be in prison for years. You will lose your license. You will be excluded from Medicare. You will be a convicted felon. You will have nothing and will have no way of starting over successfully.

Do not delude yourself. This is extremely serious. Be prepared to give up whatever you have in order to avoid a conviction.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and other Legal Proceedings.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Health Care Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent speech therapists, occupational therapists, vocational therapists, therapy groups, physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions. To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know the eligibility criteria for children’s mental health TCM services? Were you aware that the AG is targeting these services? Please leave any thoughtful comments below.

About the Author: Christopher E. Brown, J.D., 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 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 © 1996-2012 The Health Law Firm. All rights reserved.

HIPAA Fines, Mobile Devices and Risk Assessments: Follow the Steps or Pay the Price

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

Two separate entities have agreed to pay the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) $1,975,220 in fines collectively. The settlements resolve potential violations of the Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules involving stolen, unencrypted laptops. These two actions shine a light on the significant risk unencrypted laptops and other mobile devices pose to the security of patient information.

To read the press release from the HHS OCR, published on April 22, 2014, click here.

Concentra Received Risk Assessments, But Did Not Act on Findings.

According to the OCR, an investigation of Concentra Health Services, a subsidiary of Humana, was conducted after a laptop was stolen from a Missouri physician therapy center. This investigation revealed that Concentra had previously received multiple risk analyses that stated the company lacked encryption on its laptops, desktop computers, medical equipment, tablets and other devices containing electronic protected health information. Concentra’s efforts to remedy the risk were incomplete and inconsistent, leaving patients’ health information vulnerable. Concentra agreed to pay $1,725,220 to settle potential security violations and adopt a corrective action plan.

QCA Investigation.

The QCA Health Plan, Inc., investigation began in February 2012, after an unencrypted laptop containing the medical records of 148 individuals was stolen from an employee’s car. The investigation revealed that QCA failed to comply with multiple requirements of the HIPAA privacy and security rules. According to Modern Healthcare, the company is required to pay $250,000, as well as provide HHS with an updated risk analysis and corresponding risk-management plan.

Click here to read the entire article from Modern Healthcare.

Encrypt Laptops and Other Equipment or Pay the Price.

Encryption is one of your best defenses against incidents. These two settlements highlight the need for all entities to encrypt their laptops and other devices. Failing to do so may put that entity at risk for paying a large fine to the OCR and possible fines for state law violations.

HIPAA-covered entities are responsible for making sure all personal information is protected.

The following are some practical tips to use when handling protected health information. Share them with others in your organization:

1. Ensure that all types of electronic media by which you transfer patient health information of any kind are encrypted. This includes thumb drives, CD ROMs, DVDs, backup tapes, mini hard drives and anything else.
2. Try not to remove any patient information from your work site. If you need to work on it remotely, use a secure, encrypted internet connection to access your work database. Avoid saving the work or data onto your laptop hard drive or other removable media.
3. Never leave your laptop or other media in a car you are having worked on by a mechanic, having an oil change, having the car washed, or while you run into a store. Thieves stake out such locations and are waiting for careless individuals to do this.
4. Never leave your laptop, thumb drive or other electronic media from work in your car. What can be worse than having your car stolen? Having your car stolen with your laptop in it with patient information on it.

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.

Comments?

Are the laptops and other mobile devices at your practice encrypted? Does your practice regularly perform HIPAA risk assessments? Please leave any thoughtful comments below.

Sources:

Conn, Joseph. “Unencrypted-Laptop Thefts at Center of Recent HIPAA Settlements.” Modern Healthcare. (April 23, 2014). From: http://www.modernhealthcare.com/article/20140423/NEWS/304239945/unencrypted-laptop-thefts-at-center-of-recent-hipaa-settlements

U.S. Department of Health and Human Services Press Office. “Stolen Laptops Lead to Important HIPAA Settlements.” U.S. Department of Health and Human Services. (April 22, 2014). From: http://www.hhs.gov/news/press/2014pres/04/20140422b.html

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.

Kansas Cancer Treatment Center and Owner Pay $2.9 Million Settlement for Alleged False Claims Act Violations

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A whistleblower or qui tam lawsuit against a cancer treatment facility in Kansas has been settled. On April 14, 2014, the Hope Cancer Institute and its owner agreed to pay $2.9 million to resolve allegations that they violated the False Claims Act by defrauding Medicare, Medicaid and the Federal Employee Health Benefits Program. According to the complaint, it is alleged that the cancer treatment facility submitted false claims for drugs and services that were not provided to beneficiaries.

Click here to read the entire whistleblower complaint filed in 2012.

The complaint identifies three former employees of Hope Cancer Institute as the plaintiffs or “relators” in this case.

Owner Allegedly Instructed Employees to Submit Inflated Claims and Altered Medical Records.

According to the Department of Justice (DOJ), between 2007 and 2011, the Hope Cancer Institute’s owner allegedly instructed employees to bill for a predetermined amount of cancer drugs at certain dosage levels. However patients were allegedly given lower dosages of these drugs. This resulted in the center submitting false claims to federal health care programs for drugs that were not actually provided to beneficiaries. The three plaintiffs also stated they watched the owner use a paper cutter and tape to alter medical records before faxing them to Medicare. The employees’ investigation allegedly turned up altered documents for 13 patients.

To read the entire press release from the DOJ, click here.

The claims made against the Hope Cancer Institute and its owner are allegations. There has been no determination of liability.

Most Qui Tam Claims Filed by Employees.

The plaintiffs in this case filed the lawsuit against their employer under the qui tam or whistleblower provision of the False Claims Act. This law encourages whistleblowers to file fraud claims on behalf of the government by giving them a share of whatever the government collects, usually 15 percent (15%) to twenty-five percent (25%). Under the law, the employees are also required to give the DOJ the evidence they have collected so the government can join the lawsuit.

From our review of qui tam cases that have been unsealed by the government, it appears most of these are filed by physicians, nurses or staff employees who have some knowledge of false billing or inappropriate coding taking place. Typically the government will want to see some actual documentation of the claims submitted by the hospital or other institution. Physicians, nurses or staff employees usually have access to such documentation. Whistleblowers are urged to come forward as soon as possible. In many circumstances, documentation showing fraud “disappears” or cannot be located once it is known that a company is under investigation.

To learn more on whistleblower cases, read our two-part blog. Click here for part one, and click here for part two.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

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

Comments?

Individuals working in the health care industry often become aware of questionable activities. Often they are even asked to participate in it. In many cases the activity may amount to fraud on the government. Has this ever happened to you? Please leave any thoughtful comments below.

Sources:

Department of Justice. “Government Settles False Claims Act Allegations Against Kansas Cancer Treatment Facility and Its Owner.” Department of Justice. (April 14, 2014). From: http://www.justice.gov/opa/pr/2014/April/14-civ-378.html

United States of America ex rel., Krisha Turner, Crystal Dercher and Amanda Reynolds v. Hope Cancer Institute, Inc. Case Number 2:12-cv-02122-EFM-JPO. Complaint. (March 1, 2012).

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.

OIG Audit Finds Federal Database of Terminated Medicaid Providers Needs Improvement

LLA Headshot smBy Lenis L. Archer, J.D., M.P.H., The Health Law Firm

The Affordable Care Act (ACA) requires the Centers for Medicare and Medicaid Services (CMS) to establish a process for sharing information about terminated Medicaid providers. The federal database, called Medicaid and Children’s Health Insurance Program State Information Sharing System (MCSIS), is designed to prevent terminated health care providers from billing another state’s program. However, an audit by the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG), released in March 2014, states the MCSIS is not working as intended.

The MCSIS is supposed to collect data from every state Medicaid program on providers that were terminated from Medicaid for cause. However, the report found that the HHS OIG is not receiving data from 17 states or the District of Columbia. It was also found that a majority of the data does not meet the ACA criteria.

To read the entire report from the HHS OIG, click here.

Specific Issues Within Database.

According to the OIG, only 27% of the 6,439 MCSIS records involve terminated Medicaid providers. The database is filled with providers who had not been terminated, but rather had died, retired, left the state or stopped working with Medicaid of their own accord. It is also reported that about one-third of the records are not related to for-cause provider terminations. A majority of the data comes from California, Pennsylvania, Illinois and New York. According to Reuters, more than half of the records submitted did not include a National Provider Identification number, which is critical to any state trying to identify a terminated provider.

Click here to read the entire article from Reuters.

Recommendations to Improve Database.

CMS is now exploring options to implement mandatory state reporting. The agency has begun requiring that states submit termination letters for each provider entered in the MCSIS, and that CMS employees review each letter to ensure the provider belongs in the system.

What This Means for Medicaid Providers.

As CMS works to improve this database, those providers who have fallen through the cracks due to the reporting lag will now face repercussions for exclusion. Exclusion from Medicaid could mean exclusion from Medicare and other federal providers. It is important that health care providers know their status regarding exclusion, and contact an experience attorneys to assist them in having their names removed from exclusion lists.

To read more on the devastating consequences of exclusion, click here for a previous blog.

Contact Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare or Medicaid Programs.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare or Medicaid  Programs, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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

Comments?

As a health care provider, do you know your status regarding exclusion? Are you aware of the consequences of being excluded? Please leave any thoughtful comments below.

Sources:

Pell, M.B. “U.S Database for Tracking Medicaid Fraud Fall Short, Auditor Says.” Reuters. (March 27, 2014). From: http://www.reuters.com/article/2014/03/27/us-usa-medicaid-database-idUSBREA2Q08D20140327

Levinson, Daniel. “CMS’s Process for Sharing Information About Terminated Providers Needs Improvement.” Department of Health and Human Service Office of Inspector General. (March 2014). From: http://oig.hhs.gov/oei/reports/oei-06-12-00031.pdf

About the Author: Lenis L. Archer is as attorney with 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 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.

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.

Governor Requests the Agency for Health Care Administration to Inspect Florida’s VA Hospitals

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

In response to recent deaths at Veterans Affairs (VA) hospitals throughout Florida and the rest of the nation, on April 1, 2014, Governor Rick Scott wrote a letter to the Florida Agency for Health Care Administration (AHCA) requesting the agency begin inspecting VA hospitals in the Sunshine Health Network. This network under investigation includes Florida, south Georgia, Puerto Rico and the U.S. Virgin Islands. So far the VA has denied AHCA any permission to inspect its hospitals, and it is unclear whether the federal government will allow such inspections moving forward.

To see a copy of the Governor’s letter to the AHCA, click here.

Governor Scott Wants Answers in Patient Death Cases.

According to The Tampa Bay Tribune, Governor Scott wants answers in regard to the deaths of five patients in the VA region serving Florida. It was reported in March 2014, that five cancer patients died and nine others sustained injuries because of delays in diagnosis or treatment. The Tampa Bay Tribune report states that the delays were less than a year but more than 90 days. So far, VA officials have not said at which hospitals the deaths occurred, which concerns Governor Scott. Through AHCA’s investigation he hopes to determine where the deaths took place, how the U.S. Department of Veterans Affairs is going to ensure the quality of care for veterans improves, and how the federal government can increase transparency on the quality of care in VA hospitals.

Click here to read the entire article from The Tampa Bay Tribune.

AHCA Agents Booted from One Florida VA Hospital.

Two days after Governor Scott’s letter was sent to AHCA, two agency inspectors were allegedly denied access to records at the VA Medical Center in Riviera Beach, Florida, according to the Palm Beach Post. The inspectors were told an official response would be provided from the VA’s national office in Washington, D.C. One VA spokeswoman stated that the VA will cooperate with AHCA, but could not do so on the specific day of AHCA’s inspection.

To read the entire article from the Palm Beach Post, click here.

It is not yet known how the VA will work with AHCA in regards to inspections. Check our blog regularly for updates.

Florida’s Lack of Legal Authority and Federal Supremacy.

Governor Scott apparently has forgotten that the state lacks authority over federal facilities and federal agencies. The federal government and its laws and regulations are superior to and take precedence over any state laws, regulations or authorities. This is a key principle of our constitutional government in the United States of America.

I am sensitive to such issues having personally lived through times when state governors “stood up to” the federal government while trying to keep public schools from being desegregated during the Civil Rights Era. The “states rightists” lost that battle like Governor Scott is likely to lose this battle.

As a lawyer friend of mine used to say in reference to similar conflicts between state and federal authorities, “I seem to recall that we fought a war about this issue some time in the past and the South lost.”

I doubt that Governor Scott is ignorant of the law. I also doubt that the VA or any other federal agency is likely to give up its autonomy to kowtow state officials. I believe it is most likely that Governor Scott is merely grand standing to make a show that may appeal to state right advocates and veterans as part of his campaign for reelection. But, of course, this is just my personal opinion.

Contact a Health Law Attorney Experienced in the Representation of Veterans Administration (VA) Physician Representation and Military Physician Representation.

The attorneys of The Health Law Firm have represented physicians, psychologists, nurse practitioners, nurse and other health professionals working in Veterans Administration medical centers and clinics throughout the United States. Representation has included personnel and employment issues, disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions and appeals.

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

Comments?

What do you think of Governor Scott’s request for answers? Why do you think the AHCA agents were denied access? Please leave any thoughtful comments below.

Sources:

Scott, Rick. Letter from Governor Rick Scott to Ms. Elizabeth Dudek at the Florida Agency for Health Care Administration. (April 1, 2014). From: http://www.flgov.com/wp-content/uploads/2014/04/SKMBT_C35314040107040.pdf

Altman, Howard. “Gov. Scott Asks Answer in VA Hospital Deaths.” The Tampa Bay Tribune. (April 1, 2014). From: http://tbo.com/list/military-news/gov-scott-wants-inspection-of-federal-hospitals-20140401/

Bennett, George. “Turf War Escalates as 2 Florida Health Care Inspectors ‘Escorted Out’ of VA Hospital, Official Says.” Palm Beach Post. (April 3, 2014). From: http://www.postonpolitics.com/2014/04/turf-war-escalates-as-2-florida-health-care-inspectors-escorted-out-of-va-hospital-official-says/

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.

Duke University Health System Pays $1 Million to Settle Allegations of False Claims in Whistleblower Lawsuit

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 21, 2014, Duke University Health System in Raleigh, North Carolina, settled a whistleblower/qui tam lawsuit, according to the Department of Justice (DOJ). The lawsuit, filed in 2012, stated that the three-hospital academic medical center is alleged to have fraudulently inflated its Medicare bills by unbundling a number of cardiac services and billing for physician assistants’ (PAs) time illegally. Duke University Health System agreed to pay $1 million to resolve these allegations.

Click here to read the press release from the DOJ.

Duke University Health System Accused of Submitting False Claims to Federal Health Care Programs.

According to the complaint, the lawsuit was originally filed by a former health care bill coder and quality-control auditor for Duke’s revenue-cycle subsidiary, Duke Patient Revenue Management Organization. The former employee accused Duke University Health System of allegedly making false claims to Medicare, Medicaid and TRICARE by billing the government for services provided by PAs during coronary artery bypass surgeries when the PAs were acting as surgical assistants, which is not allowed. The whistleblower also alleged the medical center increased billing by unbundling claims when the unbundling was not appropriate. These unbundled claims were associated with cardiac and anesthesia services, according to the complaint.

To read the whistleblower’s complaint filed in December of 2012, click here.

According to the DOJ, the claims resolved by the settlement are allegations only, and there has been no determination of liability.

Whistleblowers Who Report Fraud and False Claims Against the Government Are Usually Employees.

Doctors, nurses or staff employees working for hospitals, nursing homes, medical groups, home health agencies or others, often become aware of questionable activities. They are sometimes even asked to participate in it. In many cases the activity may amount to health care fraud.

It does not matter who you are. You may even be actively involved in the wrongdoing. This does not disqualify you from reporting the false claims activity or receiving a reward for doing so. In order to encourage employees with knowledge of fraudulent activity to come forward, the government will usually not seek to prosecute or punish that person in any way.

Normally the government will want to see some actual documentation of the claims submitted by the hospital or other institution. Usually physicians, nurses or staff employees have access to such documentation. Whistleblowers are urged to come forward as soon as possible. In many circumstances, documentation that shows the fraud “disappears” or cannot be located once it is known that a company is under investigation.

Of course, the larger the amount of money the government has been defrauded the more likely it will be that the government will be interested in pursuing the case and the larger the reward the whistleblower will receive if there is a recovery.

To read more on whistleblower cases, read my previous blogs. Click here for part one, and click here for part two.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

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

Comments?

What do you think of this settlement? Do you think whistleblower lawsuits are becoming more common? Please leave any thoughtful comments below.

Sources:

Carlson, Joe. “Duke Pays $1 Million to Settle Whistle-Blower Case.” Modern Healthcare. (March 25, 2014). From: http://bit.ly/1g3W7yw

Department of Justice. “Duke University Health System, Inc. Agrees to Pay $1 Million For Alleged False Claims Submitted to Federal Health Care Programs.” Department of Justice. (March 21, 2014). From: http://www.justice.gov/usao/nce/press/2014/2014-mar-21.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.