January 2010 Archives

January 18, 2010

OIG Report Found 81% of Hospice Claims Failed to Meet Documentation Requirements

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.

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January 15, 2010

UPDATE: Telemarketing by Durable Medical Equipment Suppliers is Still Prohibited

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."

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January 13, 2010

Ramifications of Federal Estate Tax Appeal

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.

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January 12, 2010

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

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.

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January 11, 2010

Health Care Law Call for Articles

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.

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January 8, 2010

Sebelius to "Galvanize" Public Health System

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

Implementation of this program begins January 2010.

January 7, 2010

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

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.

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January 6, 2010

Kickback Settlement Includes Publishing Names of and Payments to Physicians

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.

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January 5, 2010

CMS Amends Supervision Requirement for Outpatient Therapeutic Services and Outpatient Diagnostic Services in the 2010 OPPS

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.

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