Health Law Attorney Blog

The American Recovery and Reinvestment Act establishes an incentive program that provides incentive payments to eligible physicians (EP) and eligible hospitals for meaningfully using electronic health records (EHR). While many specialists are learning the conditions under which they can capitalize on these incentive payments, anesthesiologists will learn that they do not qualify as EPs, thus not able to receive incentive payments for their meaningful use of EHRs.

One requirement that a physician satisfy is that s/he is a non-hospital-based physician. "Hospital-based" physicians are defined to include those that provide 90% of their Medicare-covered services within a Place of Service (POS) of 21, 22, or 23--either an inpatient hospital, outpatient hospital, or emergency room hospital, respectively. Furthermore, the statute explicitly states that anesthesiologists--who furnish substantially all of their Medicare-covered services in a hospital setting, using the hospital's facilities and equipment, and qualified EHRs--are not eligible to receive the incentive payments because they are not bringing their own equipment to the hospital in furtherance of the medical services they perform. If a hospital demonstrates is meaningful use of an EHR, it can qualify for incentive payments.

Continue reading "Incentive Payments for Meaningful Use of EHR Technology Does NOT Apply to Anesthesiologists" »

CMS announced new demonstration programs it plans to implement to "identify, develop, test, and disseminate major and multi-faceted improvements to the health care system." The Medicare Modernization Act requires that Medicare conduct a five-year demonstration program to achieve four main goals: (1) to improve patient safety; (2) to enhance quality; (3) to increase efficiency; and (4) to reduce the variations in medical practice that yield poorer quality and increased costs. The two demonstration programs to be initiated are in Indiana and in North Carolina.

The Indiana demonstration program--Indiana Health Information Exchange (IHIE)--will consist of a regional, multi-payer, pay-for-performance program that is based upon a common set of healthcare quality measures. CMS hopes that this program will provide key empirical evidence demonstrating how effective the pay-per-performance, health IT, and multi-payer initiatives are to improving quality and efficiency.

The North Carolina demonstration program--North Carolina Community Care Networks (NC-CCN)--is aimed at evaluating the organization, delivery, and financing of healthcare that are all used to increase the quality and efficiency of the healthcare system. NC-CCN is a non-profit organization that will provide a model that "combines a physician- directed care management approach with a variety of information technology applications designed to support care coordination and evidence-based practice, and a regional physician pay-for-performance program using a common set of quality measures." Currently NC-CCN only serves Medicaid beneficiaries, but the demonstration program will expand to dual eligible and Medicare-only beneficiaries, as well.

CMS posts information on these demonstration programs at its Medicare Demonstrations page.

Continue reading "CMS Initiates New Demonstration Programs in Indiana and in North Carolina" »

All too often, services provided by hospices are denied by Medicare due to incomplete or inaccurate documentation practices that can easily be prevented.  A September report by the HHS Office of Inspector General analyzed some of the most common documentation inadequacies in hospice services provided to beneficiaries at nursing facilities, and the statistics are surprising.
 
According to the OIG report, the following mistakes were made: In 33 percent of claims, the election statement was either missing or failed to meet election statement requirements.  The most frequent problem was a failure to fully explain that the goal of hospice is palliative, not curative--meaning that beneficiaries are waiving certain services related to their terminal illnesses.  In 63 percent of claims, plans of care were inadequate--lacking an interdisciplinary approach or leaving out the scope of treatment or other requirements.  In 31 percent of claims, the services provided did not match the services outline in the plan of care.  In only 4 percent of cases was the problem certification, and in some of those cases, the issue was a failure to obtain a physician signature. 
 
In total, a startling 81 percent of claims in the OIG's study sample did not completely meet coverage requirements.

Continue reading "OIG Report Found 81% of Hospice Claims Failed to Meet Documentation Requirements" »

Generally, Durable Medical Equipment ("DME") suppliers are statutorily prohibited from telemarketing Medicare beneficiaries regarding furnishing a covered item. There are three exceptions to this rule: (a) the beneficiary has given written consent to be contacted by the supplier; (b) the contact is regarding a covered item that the supplier has previously furnished to the beneficiary; and (c) the supplier has furnished covered items to the beneficiary in the last 15 months.

Because the OIG received information regarding DME suppliers hiring third parties for telemarketing purposes, it released a Special Fraud Alert to reemphasize a March 2003 alert on a similar issue. The OIG clearly states that "[s]uppliers cannot do indirectly that which they are prohibited from doing directly." The DME supplier is responsible for what third parties do on its behalf, and must also ensure that those third parties are not engaging in prohibited solicitation on its behalf.

"If a claim for payment is submitted for items or services generated by a prohibited solicitation, both the DME supplier and the telemarketer are potentially liable for criminal, civil, and administrative penalties for causing the filing of a false claim, as well as criminal and civil penalties for using interstate telephone calls in furtherance of schemes to defraud."

Continue reading "UPDATE: Telemarketing by Durable Medical Equipment Suppliers is Still Prohibited" »

The federal estate tax has been repealed for 2010 only and will be re-imposed in 2011. Congressional efforts to cancel the repeal failed late last year. Now that Congress is back in session, it is likely Congress will again try to cancel the repeal retroactive to January 1, 2010. Even if the repeal is canceled in the coming months, we can only speculate what will be enacted. This will continue to cause a great deal of uncertainty and confusion for our clients until Congress takes some definitive action. We at The Health Law Partners appreciate that this legislative anomaly potentially triggers a challenging situation in which some estate planning documents may no longer work as intended if a client dies in 2010. In response to this change, our colleagues at the law firm of Jaffe, Raitt, Heuer & Weiss, P.C. have prepared the attached Jaffe Alert outlining the relevance of the federal estate tax developments. This represents an issue on which it is imperative to be proactive.

Continue reading "Ramifications of Federal Estate Tax Appeal" »

The January 2010 issue of Link, the online journal of the AHRA, is now available. This issue includes a new column called Regulatory Review, the first installment of which is called "Healthcare Marketing--Navigating the Regulatory Landscape." The column, to be a regular feature in Link, is authored by The Health Law Partners' Adrienne Dresevic and Carey Kalmowitz. In the article, Dresevic and Kalmowitz provide an overview of the legal risks that radiology providers should consider when constructing their marketing programs, together with detailed guidance on mitigating those risks.

Continue reading "Health Law Partners To Publish Monthly "Regulatory Review" Column in Link, The Online Journal of the AHRA" »

A health care law Call for Articles has been announced by the West Virginia Law Review. The announcement is set forth below:

Call for Articles

The West Virginia Law Review announces a call for articles and invites scholars, practitioners, and researchers to submit contributions for its upcoming issue focusing on health care. This issue will include articles from the Law Review's Lecture Series, "Beyond Politics: A Discussion of Health Care in America," a thoughtful discourse on the social disparities in access and outcomes engrained in our current health care system. For this issue, we are particularly interested in scholarship discussing the following topics:
- Health care reform;
- Health care access and outcome disparities, especially as they affect women and children, racial minorities, and the rural poor;
- Health care as a human right.

Articles will be selected by our Articles Selection Team and the Editor-in-Chief based on scholarly merit, originality, relevancy, and writing style. Articles should be thoroughly researched and contain appropriate footnotes in bluebook format.

Continue reading "Health Care Law Call for Articles" »

US Secretary of Health and Human Services Kathleen Sebelius presented the first US National Health Security Strategy ("NHSS") in December 2009. The NHSS "is intended to galvanize efforts to minimize the health consequences associated with significant health incidents." These incidents involve the "large-scale incidents" including terrorist attacks, hurricanes, SARS, H1N1, etc.. The NHSS presents a framework for integrating all levels of government to be better prepared and equipped to prevent and respond to health risks associated with the large-scale incidents.

The NHSS has two goals: (1) building community resilience, and (2) strengthening and sustaining health and emergency response systems. Community resilience is defined as "the sustained ability of communities to withstand and recover--in both the short and long terms--from adversity, such as an influenza pandemic or terrorist attack." To measure community health, a number of factors will be taken into account, including physical, social, and environmental factors. To achieve the second goal, there is a push to integrate not only government entities, but also includes academia and the private sector. It is the belief that combining all of these efforts will aid in minimizing and/or preventing incidents, detecting incidents more effectively, providing care to affected persons, and helping communities recover from incidents.

The NHSS has 10 strategic objectives to achieve its goals:

1. Foster informed, empowered individuals and communities


2. Develop and maintain the workforce needed for national health security


3. Ensure situational awareness


4. Foster integrated, scalable health care delivery systems


5. Ensure timely and effective communications


6. Promote an effective countermeasures enterprise


7. Ensure prevention or mitigation of environmental and other emerging threats to health


8. Incorporate post-incident health recovery into planning and response


9. Work with cross-border and global partners to enhance national continental, and global health security


10. Ensure that all systems that support national health security are based upon the best available science, evaluation, and quality improvement methods

On December 28, 2009, the American Society of Nuclear Cardiology (ASNC), joined by the American College of Cardiology (ACC), the Florida ACC Chapter, the Association of Black Cardiologist, and the Cardiology Advocacy Alliance, filed a complaint, as well as motions for a preliminary injunction and expedited discovery, against Health and Human Services (HHS) Secretary, Kathleen Sebelius, in U.S. District Court in Florida.

The lawsuit alleges that Secretary Sebelius, in her capacity of HHS Secretary, abused her discretion and acted arbitrarily and capriciously in violation of the Medicare statute and the Administrative Procedures Act by using an invalid Physician Practice Information Survey to set the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule (MPFS). According to the complaint, the 2010 MPFS makes such devastating cuts to cardiology that patient access to care will be threatened and cardiologists will be driven out of community practice. As a result, the lawsuit seeks to enjoin implementation of the 2010 MPFS and require the use of more reliable data in connection with the adoption of the 2010 MPFS.

Continue reading "American Society of Nuclear Cardiology Takes Legal Action to Halt Implementation of the 2010 Medicare Physician Fee Schedule" »

Shortly before the holidays, Boston Scientific agreed to pay $22 million to resolve allegations that its subsidiary, Guidant, paid kickbacks to physicians to induce them to use Guidant pacemakers and defibrillators, in addition to a previous agreement to pay a $296 million fine resulting from a criminal investigation relating to defective defibrillators. On December 23, 2009, Boston Scientific entered into a separate civil kickback settlement due to allegations that Guidant paid between $1,000 and $1,500 to cardiologists and electrophysiologists to participate in post-marketing studies. As part of this settlement, Boston Scientific must publish the names of the physicians involved and payment amounts on the CIA's website by June 2011.

Continue reading "Kickback Settlement Includes Publishing Names of and Payments to Physicians" »

Effective January 1, 2010, the 2010 Outpatient Prospective Payment System ("OPPS") amends the prior hospital outpatient supervision requirements. Reaffirming that Medicare will only cover outpatient therapeutic services that are furnished in the hospital ("in the hospital" defined as the areas included in the main buildings of the hospital that are under financial or administrative control of the hospital, that operate or function as part of the hospital, and areas in which the hospital bills under the hospital's CMS certification number), CMS also amends the supervision requirement to allow physicians and non-physician practitioners (i.e. clinical psychologists, physician assistants, nurse practitioners, ect.) ("Designated NPPs") to supervise outpatient therapeutic incident to services.

Supervisory physicians or Designated NPPs are only permitted to supervise those therapeutic services that are within that physician's or Designated NPP's licensure, scope of knowledge, practice, skills, and hospital privileges. However, some cardiac services (i.e. cardiac rehabilitation services, intensive cardiac rehabilitation services, and pulmonary rehabilitation services) require physician supervision only. When supervising, the physician or Designated NPP must not be performing other procedures that s/he may not step away from to be immediately available on the same hospital campus to give assistance to the procedure s/he is supervising.

The OPPS also amends the outpatient diagnostic services supervision requirements, requiring that all hospital outpatient diagnostic services that are provided under arrangements in non-hospital facilities, require direct supervision.

Continue reading "CMS Amends Supervision Requirement for Outpatient Therapeutic Services and Outpatient Diagnostic Services in the 2010 OPPS" »

On December 30, 2009, CMS announced a proposed rule to implement provisions of the Recovery Act that provide incentive payments for the meaningful use of certified EHR technology. The proposed rule outlines provisions governing the EHR incentive programs, including defining the central concept of "meaningful use" of EHR technology. The text of the rule can be found here.

Continue reading "Meaningful Use Regulations Issued by CMS: BREAKING NEWS" »

Genesys Health System in Genesee County settled a claim by the U.S. Department of Justice that it violated the False Claims Act by billing Medicare at higher rates for evaluation and management services than were actually provided to cardiology patients. The fraud allegations, which were initiated by a whistleblower lawsuit, resulted in a nearly $670,000 settlement, though Genesys does not admit any wrongdoing.

Continue reading "False Claims Suit Settled in Michigan" »

JUST RELEASED: Visiting Physicians Association--a Michigan professional corporation providing home health services in 4 states--settled with the U.S. Government and the State of Michigan for $9.5 million for alleged False Claims Act violations for submitting claims for unnecessary home visits and care plan oversight services, unnecessary tests, and upcoding evaluation and management services. The alleged violations arose out of 4 separate qui tam (whistleblower) actions with the relators receiving a total of approximately $1.7 million.

Continue reading "Michigan Company Settles with State of Michigan and US for $9.5 Million" »

In the new 2010 physician fee schedule, the Centers for Medicare and Medicaid Services (CMS) has replaced consultation codes with an increase in work relative value units (RVUs).

Effective January 1, 2010, CMS will no longer recognize consultation codes that reflect various places of service (with the exception of telehealth consultation G-codes), such as inpatient and office/outpatient codes. According to CMS, the RVUs have been increased for new and established office visits and for initial hospital and initial nursing facility visits. The increased use of these visits has also been incorporated into practice expense and malpractice calculations.

CMS has issued MLN Matters 6740 and Transmittal 1875 for additional guidance on how to bill for Medicare Part B patient services, now that consultation codes are no longer in use.

Continue reading "Medicare Eliminates Use of Consultation Codes" »