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OIG Slams Trusting Doctors Who Let Others Bill for their Services Print E-mail
Written by Jeffrey L. Cohen   
Friday, 09 March 2012 10:02

Physicians who allow other people or entities to bill for their services are taking a risk. Settlements with eight physicians whose provider numbers were used unlawfully by entities they worked for prompted the OIG to issue an Alert on February 8th. The Alert basically says that physicians who assign to others (e.g. 855R) the right to bill for the services of the physicians will be responsible for the wrongful actions of those using the doctors' provider numbers. Ignorance will likely not be a good excuse any longer.

What does all this mean to doctors? Simple: VERIFY REGULARLY.  If you assign to any person or entity the right to bill for your services, you MUST routinely check to see if they are billing correctly. The fact that some person or entity may bill wrongfully, even fraudulently, without your direct knowledge, will not protect you from liability. Make sure (1) you have written agreements for all arrangements that involve any person or entity billing for your services, and (2) those contracts contain indemnification provisions in case you have to hire a lawyer or pay anything to the government for their wrongdoing.

With almost 25 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen's practice involves him in regulatory, contract, corporate, compliance and other healthcare law related matters. As Founder of the Florida Healthcare Law Firm, Mr. Cohen can be reached at 888-455-7702 or online at jcohen@floridahealthcarelawfirm.com. 
Last Updated on Friday, 16 March 2012 09:18
 
"Incident To" Services Under Medicare Print E-mail
Written by Troy A. Kishbaugh & Sarah L. Mancebo   
Friday, 02 March 2012 11:22

Medicare Part B allows for services to be billed by a physician even though the services are actually performed by non-physicians. These types of services are known as "incident to" services and are provided under the Medicare "incident to" rule. Services billed under the "incident to" rule are paid at 100% of the Medicare Physician Fee Schedule amount.   

"Incident to" services are provided incident to a physician's or other practitioner's (physician assistant, nurse practitioner, clinical nurse specialist, nurse midwife and clinical psychologist) professional service and must be:

  • an integral, although incidental, part of the physician's professional service;
  • commonly rendered without charge or included in the physician's bill;
  • of a type that are commonly furnished in the physician's offices or clinics;
  • furnished by the physician or by auxiliary personnel under the physician's "direct supervision."

"Incident to" services must be billed under the physician's provider number and must meet specific criteria to fall within the parameters of the Centers for Medicare & Medicaid Services ("CMS") guidelines. Generally, (i) the physician must first see the patient to establish a physician-patient plan of care, (ii) the services provided by the non-physician should be provided in the physician's office, (iii) the physician must be present in the office suite and readily available when the services are provided (direct supervision) and (iv) the physician must be involved in the patient's treatment of care on an ongoing basis.   

Services provided under the "incident to" rule are coming under new focus by the federal government. The Health and Human Services, Office of the Inspector General ("OIG") 2012 Work Plan lists "incident to" services as a new review for the agency to examine billing error rates and assess CMS's capability to monitor services billed as "incident to." The OIG intends to prevent unqualified personnel from providing services to Medicare beneficiaries and will be seeking to recover overpayments made if individuals have been incorrectly billing "incident to" services.   

Billing "incident to" services is attractive to physicians because it allows the physician to generate additional revenue from the services that are provided by non-physicians. However, before engaging in "incident to" services, the physician and non-physician providing the services must ensure they are strictly complying with the "incident to" rules. Failure to do so can result in harsh penalties, including without limitation, a comprehensive CMS investigation into billing practices, recoupment of Medicare overpayments, and/or criminal charges from filing and submitting false claims to Medicare.  

For more information about "incident to" services under Medicare, please contact Troy A. Kishbaugh and Sarah L. Mancebo with GrayRobinson's Health Law Team.

Last Updated on Friday, 09 March 2012 10:30
 
Centers for Medicare & Medicaid Services (CMS) Zone Program Integrity Contractors (ZPICS) Guidance Print E-mail
Written by Troy A. Kishbaugh J.D. and Sarah Logan Mancebo J.D   
Friday, 17 February 2012 14:14

The Medicare Prescription Drug, Improvement and Modernization Act of 2003 mandated that CMS, the federal agency that operates and administers the Medicare program, implement reform to phase out fiscal intermediaries and begin using Medicare Administrative Contractors. Further, because of this 2003 law, CMS now contracts with ZPICs that are private auditing contractors who investigate Medicare fraud and abuse on CMS's behalf. In 2008, CMS began contracting with ZPICs to identify and stop potential fraud to reduce improper Medicare payments for Part A and Part B. 

Specifically, ZPICs (i) identify cases of suspected fraud, (ii) develop them thoroughly and in a timely manner, and (iii) take immediate action to ensure that Medicare Trust Fund monies are not inappropriately paid out to health care providers and that any mistaken payments are recouped. When necessary, ZPICs also make referrals to the Office of Inspector General (OIG), Office of Investigations field office (OIFO) for consideration and initiation of criminal or civil prosecution, civil monetary penalty, or administrative sanction actions.

ZPICs conduct its Medicare integrity audits in seven (7) geographical zones. For example, SafeGuard Services, LLC is the ZPIC that investigates Medicare fraud for Zone 7, which includes Florida, Puerto Rico and the Virgin Islands. ZPICs also report monthly statistics and data related to their program integrity activities, including ongoing investigations, case referrals, requests for information and administrative actions to CMS. CMS then monitors and analyzes the statistics. 

Thus, it is important for health care providers to ensure they are properly enrolled in Medicare, properly filing claims to bill Medicare and properly receiving Medicare payments to avoid the potential for fraud and a resulting investigation by ZPIC.

Mr. Kishbaugh and Ms. Mancebo  are healthcare attorneys at GrayRobinson.  For more information, please click Health Law Team.
Last Updated on Friday, 24 February 2012 11:55
 
Fraud & Abuse Enforcement Soars Sky High Print E-mail
Written by Jeffrey L Cohen   
Monday, 13 February 2012 00:00

Investigations and successful prosecutions for violation of laws like the Anti Kickback Statute ("AKS"), the Stark Law and the False Claims Act were dramatically up in 2011 and are expected to climb still higher in 2012. For instance 13 doctors were charged in December, 2011 with violating the AKS by receiving payment for referring patients to an MRI center. Physicians and other healthcare business people MUST have any suspect arrangement closely scrutinized by highly qualified counsel. A "suspect arrangement" is any arrangement between providers of healthcare services that involve, to any degree, the exchange or payment of anything of value, including money. The AKS is a criminal statute; and the risks of enforcement are now huge.

Business and arrangements which are designed at all to lock in physician referrals carry particularly large risks and require close scrutiny. For instance, surgery centers that received referrals from non-owner physicians viewed that as a great thing. Now, referrals from unaffiliated physicians are viewed as inherently suspect. "What," the regulator thinks, "is driving this referral? What wrongful conduct is being engaged in here?" This is especially so with any marketing arrangement as well.

Physicians and other healthcare business people would do well to recall that if even "one purpose" of the arrangement is to compensate (cash or anything of value) someone for a patient referral, the AKS is triggered. Moreover, where Safe Harbor Act compliance was recommended, many now find it necessary.

With almost 25 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen's practice involves him in regulatory, contract, corporate, compliance and other healthcare law related matters. As Founder of the Florida Healthcare Law Firm, Mr. Cohen can be reached at 888-455-7702 or online at jcohen@floridahealthcarelawfirm.com.

Last Updated on Sunday, 19 February 2012 13:48
 
New Appeals Court Decision Streamlines Stark Challenge Print E-mail
Written by Jeffrey L. Cohen   
Friday, 10 February 2012 09:13

Normally, challenges to healthcare related regulatory changes have to jump through an administrative hoop before they can file suit.  They can't just run to court.  They have to go through CMS first and allow CMS the opportunity to justify the new regulation.  A recent appellate court ruling changes this.

The Council for Urological Interests (CUI) is a national organization of physician-owned joint ventures.  As many readers know, "under arrangement" lithotripsy services, for instance, are a common joint venture type business for urologists to be engaged in.  The CUI filed suit in response to 2008 changes to the Stark Law, which would have interfered with certain urology-centered joint venture businesses, but the lower court dismissed the suit because the CUI was first required to go through "administrative review" required by the Medicare Act.  The appellate court disagreed and agreed to hear the CUI suit.  The case should make it easier to file legal challenges in response to regulatory changes, like Stark Law developments.

The case is also important because the Stark Law change in 2008 (effective in 2009) made it difficult (impossible in some instances) for physicians to act as service providers to hospitals.  These "under arrangement" transactions were ok because the hospitals billed for the "designated health services," not the doctors.  The Stark Law change, effective in October, 2009, interfered with such relationships (between physicians and hospitals) by determining that the "under arrangement" providers were actually providing the service (even though the hospital, not the doctor entity, billed for the service).

Though the jury is still out on the substance of the CUI lawsuit (whether the Stark changes are unlawful), the case will pave the way for more legal challenges of this type.

With almost 25 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen's practice involves him in regulatory, contract, corporate, compliance and other healthcare law related matters. As Founder of the Florida Healthcare Law Firm, Mr. Cohen can be reached at 888-455-7702 or online at jcohen@floridahealthcarelawfirm.com

 Click HERE  to view Mr. Cohen's Blog page.
Last Updated on Monday, 13 February 2012 09:21
 
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