January 2011 Archives

January 28, 2011

CMS Issues Revised Interpretive Guidelines for Hospital Conditions of Participation - Anesthesia Providers Affected

CMS has issued revised Interpretive Guidelines for the Hospital Conditions of Participation. The revised Interpretive Guidelines, which are effective immediately, contain significant changes affecting anesthesia providers, including the following:

Labor Epidurals. CMS removed language exempting labor epidurals from the physician supervision requirements. The revised Interpretive Guidelines note that, "there is often no bright line, i.e., no clear boundary, between anesthesia and analgesia. This is particularly the case... with respect to labor epidurals." The revised Interpretive Guidelines require hospitals to "establish policies and procedures, based on nationally recognized guidelines, that address whether specific clinical situations involve anesthesia versus analgesia... [H]ospital anesthesia services policies and procedures are expected to also address the minimum qualifications and supervision requirements for each category of practitioner who is permitted to provide analgesia services."

Pre-Anesthesia Evaluation. CMS relaxed timeframes associated with the completion of certain elements of the pre-anesthesia evaluation. Within 48 hours immediately prior to surgery or other procedure requiring anesthesia services, the following must be documented:

o Review of the patient's medical history, including anesthesia, drug and allergy history; and

o Interview, if possible given the patient's condition, and examination of the patient.

The remaining elements, listed below, must be reviewed and updated as necessary within 48 hours, but "may also have been performed during or within 30 days prior to the 48-hour time period, in preparation for the procedure":

o Notation of anesthesia risk

o Identification of potential anesthesia problems

o Additional pre-anesthesia data or information (e.g., diagnostic tests, consultations)

o Development of the plan for the patient's anesthesia care

Post-Anesthesia Evaluation. Federal regulations require that a post-anesthesia evaluation be completed and documented no later than 48 hours after surgery or other procedure requiring anesthesia services. The revised Interpretive Guidelines clarify that, "While the evaluation should begin in the PACU/ICU or other designated recovery location, it may be completed after the patient is moved to another inpatient location or, for same day surgeries, if State law and hospital policy permits, after the patient is discharged, so long as it is completed within 48 hours." If a patient is unable to participate in the post-anesthesia evaluation, the post-anesthesia evaluation still should occur within 48 hours, and the reason for the patient's inability to participate should be documented (e.g., post-operative sedation, mechanical ventilation, etc.).

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January 27, 2011

Hospital Inpatient Admission Guidance Published

During the Recovery Audit Contractor ("RAC") demonstration program, a significant number of the claims denied were denied for the reason that an inpatient hospital admission was not medically necessary. The RACs regularly based these denials not upon published Medicare guidance, but based upon the criteria of private companies, such as InterQual.

In an effort to provide clarification regarding Medicare criteria regarding inpatient hospital admissions, the Centers for Medicare & Medicaid Services ("CMS") recently published a Special Edition MLN Matters article entitled, "Guidance on Hospital Inpatient Admission Decisions." The MLN Matters article cites to guidance published in the CMS Internet-Only Manuals, which sets forth the requirements for inpatient hospital services.

• The Medicare Program Integrity Manual, Chapter 6, Section 6.5, clarifies that, in determining whether an inpatient admission is medically necessary, a CMS reviewer should use the hospital's admission criteria; invasive procedure criteria; CMS coverage guidelines; published CMS criteria; and practice guidelines that are well-accepted by the medical community.

• CMS also has published guidance regarding inpatient hospital admissions in the Medicare Benefit Policy Manual, Chapter 1, Section 10, which generally defines an inpatient as follows: "An inpatient is a person who has been admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services. Generally, a patient is considered an inpatient if formally admitted as an inpatient with the expectation that he or she will remain at least overnight and occupy a bed even though it later develops that the patient can be discharged or transferred to another hospital and not actually use a hospital bed overnight..."

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January 26, 2011

New York Regulations Related to Medical Staff Credentialing Revised

The New York regulations related to the credentialing of medical staff personnel have been revised, effective December 22, 2010. In particular, the regulations have been revised to reduce the required "look-back period" for medical staff credentialing from 10 years to five years.

During this "look-back period," hospitals are mandated to query all hospitals at which a medical staff applicant had been employed, had privileges or had been otherwise associated whether the medical staff applicant was subject to any (1) pending professional misconduct or malpractice proceedings; (2) judgments, settlements or findings related to malpractice or professional misconduct; and (3) reports to the Office of Professional Medical Conduct concerning impairment, misconduct, voluntary resignation or withdrawal of privileges to avoid disciplinary measures, or criminal convictions.

In shortening the "look-back period" from 10 years to five years, the proposed regulations note that most of the information required to be obtained from the hospitals also is accessible through other sources, such as through the National Practitioner Data Bank. Therefore, shortening the look-back period should not adversely affect the information obtained. Further, reducing the look-back period could reduce the cost to hospitals of the credentialing process.

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January 24, 2011

OIG Health Care Fraud and Abuse Control Program Report Issued

The FY 2010 Health Care Fraud and Abuse Control Program Report was issued on January 24, 2011 by the Office of Inspector General ("OIG"). This report summarizes the health care fraud prevention and enforcement efforts that yielded results during fiscal year ("FY") 2010. According to the Report, the federal government recovered more than $4 billion in taxpayer dollars as a result of health care fraud prevention and enforcement efforts. Over $2.5 billion constituted recoveries under the False Claims Act, the largest amount in the history of the Department of Justice ("DOJ").

The Report notes the enhanced coordination between the Department of Health and Human Services ("HHS") and the DOJ, specifically acknowledging the HEAT program and Medicare Fraud Strike Forces. In FY 2010, there were seven cities with Strike Force Teams. The Strike Force Teams' accomplishments include the following:

• 140 indictments involving charges filed against 284 defendants who collectively billed the Medicare program more than $590 million;

• 217 guilty pleas negotiated and 19 jury trials litigated, winning guilty verdicts against 23 defendants; and

• Imprisonment for 146 defendants sentenced during the fiscal year, averaging more than 40 months of incarceration.

The Report notes that the Affordable Care Act provides the federal government tools and resources to fight fraud, including funding in the amount of $350 million for Health Care Fraud and Abuse Control Program activities. Some of these tools include enhanced enrollment requirements, data sharing across government agencies, and expanded overpayment recovery efforts (e.g., the expansion of the federal recovery audit contractor ("RAC") program).

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January 14, 2011

RAC Program Concerns Raised by the American Hospital Association (AHA)

The American Hospital Association (AHA) expressed its concerns with numerous regulations adversely impacting hospitals, by way of letter dated January 14, 2010 to Darrell Issa, the Chairman of the Committee on Oversight and Government Reform in the U.S. House of Representatives. Among numerous other regulations causing strife for hospital providers (e.g., the Federal Stark law, the Anti-Kickback law, the Civil Money Penalty law, etc.), the AHA noted its continuing concerns with the RAC program. The primary concern noted by the AHA involved the administrative burdens imposed upon hospitals directly related to the RAC program. According to the AHA, more than 50 percent of hospitals reported a significant increase in administrative burden, specifically in employing additional compliance staff and consultants to prepare for and respond to the RACs. The AHA also noted that multiple CMS contractors already are involved in the effort to identify inappropriate Medicare payments in addition to the RACs.

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January 10, 2011

CMS Launches Physician Compare Website

CMS announced on December 30th a new feature to enhance its Physician Directory tool, called Physician Compare, which expands and updates the existing Healthcare Provider Directory. The new site, www.medicare.gov/find-a-doctor, was mandated by the Patient Protection and Affordable Care Act. In the first phase of the roll-out, the categories of information on the Physician Compare website are limited to the following: contact and address information for offices, the professional's medical specialty, where the professional completed his or her degree as well as residency or other clinical training, whether the professional speaks a foreign language, the professional's gender, and whether or not the physician participates in the Medicare program. In the second phase of the Physician Compare planned for later in 2011, the site will report whether or not the provider chose to participate in a voluntary effort with the agency to encourage doctors to prescribe medicines electronically. According to the Press Release, CMS announced that further expansions are planned for future years.

We, at The Health Law Partners, are advising our physician clients to review the entry posted on the Physician Compare site with their information. Of significant import, providers should ensure that their Medicare participation status is properly identified. Further, a number of our physician clients whom we alerted regarding Physician Compare have indicated that the office location information for them has not been entirely accurate. Note that the information in the Physician Compare database comes from the Provider Enrollment, Chain, and Ownership System (PECOS) system and an external data source. If there are errors or omissions, please consult the "Provider" page for details on the process to correct these errors.

For more information, please contact Carey F. Kalmowitz, Esq. or Adrienne Dresevic, Esq., at (248) 996-8510 or (212) 734-0128 or visit the HLP website. The attorneys at The Health Law Partners can be reached in our Detroit area office at (248) 996-8510, in our New York office at (212) 734-0128, and in our Atlanta office at (770) 804-6475.

January 4, 2011

WPS Releases Revised Overpayment Notification and Voluntary Refund Forms

With the onslaught of the new Patient Protection and Affordable Care Act (PPACA) provisions making it a false claim to retain known overpayments and the new CMS guidance on the newly-reinstated Voluntary Self-Referral Disclosure Protocol (SRDP), Wisconsin Physician Services (WPS)--the Medicare Part B Contractor for Illinois, Michigan, Wisconsin, and Minnesota--released its revised overpayment notification and voluntary refund forms. The forms are divided into Medicare Financial/Medicare Secondary Payer (MSP) and non-MSP. MSP forms are to be used when Medicare paid as the primary payor, but the records show that Medicare should have been the secondary payor due to Workers' Compensation, VA, Disability, etc.

The Overpayment Notification forms (MSP/non-MSP) and the Refund forms (MSP/non-MSP) are each one-page forms. The Overpayment Notification forms are not used for sending in voluntary refunds; rather, they are merely notifications to WPS of overpayments and a request by the provider for the contractor to issue a formal demand letter to the provider for the overpayment amount. Once the overpayments have been processed and created and the provider has received the demand letter, the provider will have 30 days to refund the money without accruing interest. There are three methods in which a provider may refund the overpayment:

1. Withholding Payment - The provider has the option of having the overpayments withheld from future Medicare payments so long as the overpayment is more than $10. This option would be indicated on the Overpayment Notification form.


2. Immediate Offset - Providers have the option of filling out an Immediate Offset Request form to have the overpayments offset. WPS emphasizes that the offset does not eliminate interest payments when the accounts receivable is not offset in full within 30 days.

3. Issuing a Check - Providers that do not want payment withheld or their overpayments offset, they may send in a check to WPS for the overpayment.

For those providers that do not seek a formal demand letter prior to initiating a refund, they may submit the Refund form (MSP/non-MSP) with the check in accordance with the instructions set forth in the form.

For more information on the CMS SRDP, please visit the CMS SRDP page as well as our September 24, 2010 entry on the process of self disclosure. Please note: submitting an Overpayment Notification form or a Refund form does not constitute voluntary disclosure as provided in the SRDP.

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January 3, 2011

January 3: EHR Registration Begins!

For over a year, the Health Law Attorney Blog has reported on many of the electronic health records (EHR) incentive payment updates (the most recent entry from July 13, 2010). Beginning today, eligible professionals, hospitals and critical access hospitals may begin registering for incentive payments for demonstrating meaningful use of certified EHR technology. Certified EHR technology gives assurance to purchasers and other users that an EHR system or module offers the necessary technological capability, functionality, and security to help them meet the meaningful use criteria. For more information on EHR, registration, and meaningful use, please visit the CMS EHR Incentive Programs page.

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