Tag Archives: physician

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

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

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

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

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

Allegations Against the Oncologist.

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

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

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

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

Charges.

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

Other Healthcare Providers Could Pay for Oncologist’s Greed.

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

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

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

Comments?

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

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

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

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

Sources:

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

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

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

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

Sexual Misconduct by Rogue Employees Can Cost Big Money: Your Responsibility as an Employer

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Johns Hopkins Health System agreed to shell out $190 million to more than 7,000 women and girls, in one of the largest settlements ever in the United States involving sexual misconduct by a physician.

A gynecologist, practicing in a Baltimore-based Johns Hopkins Hospital, one of the nation’s most prestigious medical institutions, was accused of using a tiny camera to secretly take videos and pictures of his patients. The doctor worked at the hospital for 25 years, but was fired after admitting to the misconduct and surrendering his recording devices to authorities.

This is a chilling example of how employers can be held responsible for “rogue” employees clearly not working under the consent of the employer. In general, employers have a responsibility to properly supervise their employees’ actions. As in this case, failure to do so can cost millions.

Background of the Case.

According to the Wall Street Journal, a co-worker tipped off Johns Hopkins officials that the gynecologist was wearing a pen around his neck that looked like a camera. In February 2013, an investigation revealed that the gynecologist secretly used the device in question to photograph and videotape thousands of women and girls during pelvic exams. The investigation found that the doctor’s camera captured 1,200 videos and 140 images of his patients, that were then stored on his computer. The doctor was fired in February 2013, and committed suicide days later.

Click here to read the entire article from the Wall Street Journal.

“Rogue” Employee.

In this case, Johns Hopkins states that insurance will cover the entire $190 million settlement. The preliminary agreement is awaiting final approval from a judge. In a statement, Johns Hopkins’ attorney said that the hospital was unaware of the doctor’s conduct, and that he had become a “rogue” employee. The hospital sent out letters of apology to the gynecologist’s patient list, calling the incident a “breach of trust.”

Click here to read all of the statements from Johns Hopkins Medicine in regard to this incident.

Employer’s Responsibility.

The lawsuit against Johns Hopkins alleged that the hospital failed to properly supervise the doctor and should have known of his alleged misconduct.

This situation brings up an interesting point, even though the employee was acting on his own accord, the health system would still likely have been held liable if the case was not settled.

Employers are generally “vacariously liable” for their employees’ actions. The basic idea of vicarious liability or the doctrine of respondeat superior is that an employer is held responsible for the negligent acts of its employee that cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment.

To establish that the employee’s conduct was within the scope of employment:

1. The conduct must have occurred substantially within the time and space limits authorized by the employment;
2. The employee must have been motivated, at least partially, by a purpose to serve the employer; and
3. The act must have been of a kind that the employee was hired to perform.

In certain circumstances, including the example of the gynecologist, an employer’s vicarious liability can extend to intentional or even criminal acts committed by the employee.

Vicarious liability is a powerful concept and, as evident by the Johns Hopkins case, can result in an employer being responsible for significant sums of money. Employers should institute policies which curb activities that could be injurious to others. The employer has a responsibility to monitor employees and immediately investigate any suspicious activity.

Despite the fact that Johns Hopkins acted quickly, the hospital system will still most likely be left holding a settlement sum of $190 million for actions of an employee.

Comments?

As an employer, how do you make sure your employees aren’t acting on their own or violating company policies and procedures? Please leave any thoughtful comments below.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of sexual misconduct and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

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:

Linderman, Juliet. “Hopkins Pays $190M in Pelvis Exam Pix Settlement.” Associated Press. (July 22, 2014). From: http://apne.ws/UquXOI

Levitz, Jennifer. “Johns Hopkins Agrees to $190 Million Exam-Photos Settlement.” Wall Street Journal. (July 21, 2014). From: http://online.wsj.com/articles/johns-hopkins-hospital-agrees-to-190-million-exam-photos-settlement-1405961572

Johns Hopkins Hospital. “Statement from Johns Hopkins Medicine on the recent news surrounding Nikita Levy, M.D.” Hopkins Medicine. (July 21, 2014). From: http://www.hopkinsmedicine.org/news/Nikita_Levy.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.

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.

 

Florida Supreme Court Overturns Medical Malpractice Caps

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida’s Supreme Court ruled 5-to-2 in favor of invalidating medical malpractice caps on non-economic damages. The initial legislation was put into place in 2003 by the Florida Legislature due to an alleged medical malpractice crisis. The caps limited payments to patients for non-economic damages at $500,000 in most malpractice cases and $1 million in cases involving deaths. However, on March 13, 2014, the Supreme Court concluded that the cap on wrongful death non-economic damages violates the state Constitution’s equal protection clause.

This decision by Florida’s highest court makes Florida the seventh state to make such a ruling that such limitations are unconstitutional. There are 35 states that currently have some type of cap on medical malpractice awards.

This decision stirs up harsh criticism from doctors, and praise from trial attorneys.

History of the Caps on Medical Malpractice Lawsuits.

The damages caps were initiated in 2003 by former Governor Jeb Bush, backed by doctors, hospitals and insurance companies. Supporters argued that reforms were needed to curb the outbreak of medical malpractice costs. The caps were also initiated in an effort to lower the cost of malpractice insurance rates and to keep doctors from moving out of the state. According to Health News Florida with the caps, the number of medical malpractice lawsuits fell, which was interpreted as a sign that the caps discouraged trivial lawsuits. To read the entire article from Health News Florida, click here.

Harsh Words from Florida Medical Association.

The Florida Medical Association (FMA) President Alan Harmon, M.D., wasted no time in releasing a statement of discontent. In a press release Dr. Harmon stated, “The FMA is extremely disappointed in the Supreme Court’s decision. This decision imperils our considerable efforts to make Florida the best state in the nation for physicians to practice medicine and for patients to receive care.”

Dr. Harmon mentions that without caps to help regulate out-of-control litigation, many physicians may move out of the state, and few out-of-state physicians will look to locate to Florida.

To read the full press release from Dr. Harmon, click here.

What This Means for Health Care Professionals.

Now that medical malpractice caps are gone, trial lawyers will be refocusing on lawsuits. Health care professionals need to carefully evaluate each patient before treatment begins, even consulting with specialists when necessary. Detailed documentation is also important. Make sure everything is properly charted in the patient’s medical record. As a health care professional, its important to have an open line of communication with your patient, so that he or she knows and understands his or her medical treatment.

Get Professional Liability Insurance Now.

It is now more important than ever to have good professional liability insurance. The truth of the matter is that all health care professionals should protect themselves by obtaining a personal professional liability insurance policy. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 to $15 a month. If you do not already have it, call Healthcare Providers Service Organization (HPSO), Lloyd’s of London, CPH & Associates Insurance, or another insurance company to discuss obtaining professional liability insurance.

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

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies (HHAs), nurse practitioners, lab technicians, occupational therapists, physical therapists (PTs), social workers, physician assistants, psychologists and other health professionals in many different legal matters.
Services we provide include representation before your professional board in Department of Health investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

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, how do you feel about the malpractice caps being thrown out? Will it make you think twice about taking certain cases or treating certain patients? Please leave any thoughtful comments below.

Sources:

Gentry, Carol. “FL Malpractice Caps Thrown Out.” Health News Florida. (March 14, 2014). From: http://health.wusf.usf.edu/post/fl-malpractice-caps-thrown-out

Klas, Mary Ellen. “Florida Supreme Court Tosses Out Medical Malpractice Cap on Damages.” Tampa Bay Times. (March 13, 2014). From: http://www.tampabay.com/news/politics/florida-supreme-court-tosses-out-medical-malpractice-cap-on-damages/2170030

VanSickle, Erin. “Supreme Court Invalidates Medical Liability Caps.” Florida Medical Association. (March 13, 2014). From: http://www.flmedical.org/Supreme_Court_invalidates_caps.aspx

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.

California Doctor To Pay $562,500 Fine and Spend 5 Days in Jail for Balance Billing Patients Covered by Managed Care Plans

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A California doctor was fined $562,500 and ordered to spend five days in jail for illegally balance billing patients covered by health plans, according to a Los Angeles Times posted in December 2013. The doctor, Jeannette Martello, M.D., is a plastic and reconstructive surgeon practicing in the Los Angeles area. She was accused of balance billing patients covered by managed care health plans that were provided emergency treatment in several hospitals in Los Angeles. The doctor had very aggressive collection practices and allegedly sued her patients frequently to collect the fees not covered by the managed care health plans.

Click here to the entire Los Angeles Times article.

What is Balance Billing?

Balance billing is the practice of doctors charging the patient the difference between what the managed care plan pays and doctor’s regular charges. A physician who is in-network is usually prohibited from balance billing patients by the health plan’s contract with the physician. The problem of balance billing arises most often in the context of emergency services where the patient may go to an in-network hospital, but the specialist physician providing services to the patient may be out-of-network. Most states require the managed care plan to pay the out-of-network physician a “reasonable fee” for the services. The physicians and the managed care plans rarely agree on the “reasonable fee” for a particular service. This often results in litigation between the physician and the health plan. The situation also arises when a patient goes to an in-network hospital for surgery, but the anesthesiologist is not in-network.

Doctor Plans to Appeal.

According to the Los Angeles Times article, Dr. Martello plans to appeal the ruling. Dr. Martello and her attorney claim the prohibition on balance billing did not apply to her patients because the patients were in stable condition.

Court Previously Entered Injunction Prohibiting Illegal Billing.

In 2012, The Los Angeles Superior Court entered an injunction ordering Dr. Martello to cease all illegal billing practices, according to the Department of Managed Health Care. Dr. Martello continued the billing practices, which is why the judge ordered Dr. Martello to serve five days in jail. The judge also issued a permanent injunction prohibiting Dr. Martello from illegally billing patients in the future.

To read the press release from the Department of Managed Health Care, click here.

The Medical Board of California also placed Dr. Martello on probation for five years for her illegal billing practices in August 2013.

Balanced Billing Could be Considered a Matter of Contract Law.

It is usually sound legal advice that if a court orders you to do something or to stop doing something, comply with the court’s order. It is hard to imagine legal advice to the contrary, unless the parties desire to have a test case to challenge the law or challenge such rulings.

Balance billing in such cases is usually a matter of contract law. The provider agreement between the physician and the health plan is the contract at issue. This, then, would be a breach of contract action and not a criminal matter.

However, in certain instances, such as for Medicare or Medicaid patients, laws may prohibit balance billing. It is always best to check with your experienced health attorney first.

Contact Health Law Attorneys Experienced with Investigations of Doctors.

The attorneys of The Health Law Firm provide legal representation to doctors and other healthcare providers in 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. The Health Law Firm also represents providers in billing disputes with third-party payers.

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 heard of balance billing patients? Do you think the doctor received a far punishment for her billing practices? Please leave any thoughtful comments below.

Sources:

Terhune, Chad and Brown, Eryn. “Doctor Gets Jail Time, $562,500 Penalty in Improper-Billing Case” Los Angeles Times. (December 6, 2013). From: http://articles.latimes.com/2013/dec/06/business/la-fi-mo-doctor-balance-billing-case-20131205

Green, Marta. “Department of Managed Care Director Brent Barnhart Issues Statement on Preliminary Injunction Granted in People v. Martello.” Department of Managed Health Care. (June 13, 2012). From: http://www.dmhc.ca.gov/library/reports/news/pr061312.pdf

The Pathology Blawg. “Dr. Jeannette Martello Gets Five Years Medical Probation for Aggressive Balance Billing.” The Pathology Blawg. (August 20, 2013). From: http://pathologyblawg.com/medical-news/balance-billing/jeannette-martello-five-years-medical-probation-aggressive-balance-billing/

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He 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.

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 © 1996-2012 The Health Law Firm. All rights reserved.

Scribes Offer Physicians Some Relief from EHR Frustrations

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In November 2013, a physician satisfaction study, sponsored by the American Medical Society (AMA), was published. In the study, physicians stated one of the most hated items in the medical industry is the electronic health record (EHR). According to physicians, EHRs are time-consuming, they hinder the physician-patient relationship by dividing the physician’s attention, they require health care professionals to perform tasks below their level of training, and EHRs can decrease efficiency in the practice.

Now there is a trend in the medical industry that allows physicians and health care practitioners to complete all their EHR documentation without ever having to touch a computer. According to an article in The New York Times, many medical practices and emergency rooms are hiring medical scribes to ease physicians’ note-taking responsibilities.

What is a Scribe?

A medical scribe is an unlicensed, trained medical information manager specializing in charting physician-patient encounters during the medical exams. A scribe enters information into the EHR at the direction of the physician or health care practitioner. Scribes can also support workflow and documentation for medical record coding.

Duties of a scribe vary by the practice. Some common duties include:

- Documenting procedures performed by the physician;
– Reviewing patient evaluation data for comparison and transcribing the results;
– Recording physician-dictated diagnoses, prescriptions and instructions for discharge; and
– Recording a provider’s consultations with other health care professionals.


Benefits of a Scribe.

According to an article in The New York Times, there are an estimated 10,000 scribes currently working in hospitals and medical practices around the country. In the same article physicians using scribes stated that they are more satisfied with their choice of career because the scribe allows the physician to concentrate on treating patients. Physicians also stated that by using scribes they can see up to four extra patients a day. Other benefits include, a reduced amount of clerical work for doctors, and better record keeping.

To read the entire article from The New York Times, click here.

Requirements of a Medical Scribe.

The growing medical scribe industry has yet to come together on a unified training and certification process. While the practitioner is ultimately responsible for the record, scribes should be trained to have a basic understanding of the EHR documentation guidelines, according to a Medical Economics article. Furthermore, there are specific signature requirements to be used when scribes are utilized, according to Medical Economics.

Some signature requirements for scribes include:

- Signing and dating all entries into the medical record. The role and signature of the scribe must be clearly distinguishable from that of the physician or licensed practitioner.
– The physician or licensed practitioner must authenticate the entry by signing, dating, and recording the time. A physician signature stamp is not permitted for use in the authentication of scribed entries.
– The authentication must take place before the physician and scribe leave the patient care area.
– If the organization determines that the scribe will be allowed to enter orders into the medical record, those orders entered into the medical record cannot be acted on until authenticated by the physician.
– The medical practice should implement a performance improvement process to ensure that the scribe is not acting outside of his or her job description, authentication is occurring as required, and that no orders are being acted on before they are authenticated.

When adding scribes to your practice, it is important to consult the guidelines laid out by state boards and other regulatory authorities in order to develop compliant scribe policies. Knowing your state’s requirements is key to reducing legal dangers and defending potential claims.

To learn more on medical scribes, click here to read the Medical Economics article.

Medical Assistants vs. Scribes.

In most states, medical assistants are allowed to perform more patient care activities than a scribe is. For example, see the list contained in Florida Law, Section 458.3485, Florida Statutes. On the other hand scribes are, in effect, merely medical transcriptionists. However, each job may prove to be a gateway to the other job. A well-trained medical assistant may make an excellent scribe and be of great assistance to the physician. An experienced medical scribe may make an excellent medical assistant, being familiar with medical terminology and patient care.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians and medical groups on EHR issues. It also represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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 about the use of scribes in the medical practice? Do you or have you ever used a scribe? What are the benefits or pitfalls of using a scribe? Please leave any thoughtful comments below.

Sources:

Hafner, Katie. “A Busy Doctor’s Right Hand, Ever Ready to Type.” The New York Times. (January 12, 2014). From: http://www.nytimes.com/2014/01/14/health/a-busy-doctors-right-hand-ever-ready-to-type.html?_r=0

Lewis, Maxine. “Scribes Can Help Document Care, Boost Efficiency at Medical Practices.” Medical Economics. (October 20, 2013). From: http://medicaleconomics.modernmedicine.com/medical-economics/news/scribes-can-help-document-care-boost-efficiency-medical-practices

Conn, Joseph. “More Docs Get EHR Help.” Modern Healthcare. (August 24, 2013). From: http://www.modernhealthcare.com/article/20130824/MAGAZINE/308249958

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 © 1996-2012 The Health Law Firm. All rights reserved.

ZPICs Seek “Voluntary” Agreements from Physicians for Auto-Denial Edits for Home Health Services

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law, and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

According to the Centers for Medicare and Medicaid Services (CMS), the primary purpose of Zone Program Integrity Contractors (ZPICs) is to investigate instances of suspected fraud, waste, and abuse.  The specific actions employed by ZPICs to fulfil this mission include:

-  Investigating potential fraud and abuse for CMS administrative action or referral to law enforcement;
–  Conducting investigations in accordance with the priorities established by Center for Program Integrity’s (CPI) Fraud Prevention System;
–  Performing medical review, as appropriate;
–  Performing data analysis in coordination with CPI’s Fraud Prevention System;
–  Identifying the need for administrative actions such as payment suspensions and prepayment or auto-denial edits; and,
–  Referring cases to law enforcement for consideration and initiation of civil or criminal prosecution.

However, it appears that some of the ZPICs have been overly proactive in identifying the need for payments suspensions and are asking providers to voluntarily agree to payment suspensions for certain claims.

Click here to read more on ZPICs from CMS.

Physicians Being Targeted by ZPICs for Auto-Denial Edits.

Recently, physicians have been approached by ZPICs and asked to voluntarily agree to a payment edit on their National Provider Identifier (NPI) that would automatically deny any claim for payment for home health services that listed the physician as the ordering, attending, or referring physician.  A ZPIC requesting a specific physician to voluntarily cease ordering any home health services appears to go further than identifying the need for administrative action including a payment suspension.

The activities a ZPIC may use to fulfil its obligations to CMS are:

-  Request medical records and documentation;
–  Conduct interviews;
–  Conduct onsite visits;
–  Identify the need for a prepayment or auto-denial edits and refer these edits to the Medicare Administrative Contractors (MAC) for installation;
–  Withhold payments; and,
–  Refer cases to law enforcement.

The following functions are reserved for the MACs and not functions of the ZPICs.

-  Provider outreach and education;
–  Recouping monies lost to the Trust Fund (the ZPICs identify these         situations and refer them to the MACs for the recoupment);
–  Medical review not
–  Complaint screening; for benefit integrity purposes;
–  Claims appeals of ZPIC decisions;
–  Claim payment determination;
–  Claims pricing; and
–  Auditing provider cost reports.

While a ZPIC may refer a provider to the MAC for the imposition of an auto-denial edit, some ZPICs seem to have taken this process a step further and are attempting to have physicians voluntarily agree to the auto-denial edits.

Issues with Agreeing to an Auto-Denial Edit.

A physician who voluntarily agrees to an auto-denial edit could create significant problems for his or her patients and practice.  A physician agreeing to an auto-denial edit would need to cease ordering home health services and would need to refer the patients that need home health services to another physician.  Any physician that has been approached by a ZPIC seeking a voluntary auto-denial edit should consult competent legal counsel before agreeing to the auto-denial edit.

We have heard if ZPIC representatives allegedly intimidating or attempting to intimidate physicians who routinely order home health services for patients into agreeing to such auto-denial edits.

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?

Have you heard of these auto-denial edit requests from ZPICs? Please leave any thoughtful comments below.

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He 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.

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 © 1996-2012 The Health Law Firm. All rights reserved.