April 2011 Archives

April 18, 2011

HLP's Founding Partner, Adrienne Dresevic, Co-Authored Featured Article in ABA's Health Lawyer

The HLP is proud to announce that the HLP's founding partner, Adrienne Dresevic, Esq., and former division director at the Centers for Medicare and Medicaid Services (CMS), Donald H. Romano, Esq., co-authored the featured article of the April issue of American Bar Association (ABA)'s The Health Lawyer entitled The "The Medicare Enrollment Process-CMSs Most Potent Program Integrity Tool". The article addresses the Medicare enrollment process, and provides insight into the mechanics of the new changes implemented on March 25th. As clients have commented, this article is an essential resource for physicians, physician group managers and administrators seeking to understand the enrollment-related tools at CMS' disposal.

Reflecting Ms. Dresevic's leadership positions within the ABA, she serves on the Editorial Board Member for the ABA Health Law Section's eSource, and is a Vice Chair of the Section's Publications Committee. In addition to Ms. Dresevic's many contributions to the ABA, she has also been instrumental in the Publication Committee's new ABA Stark & Anti-Kickback Toolkit--an online resource providing a unified searchable database containing the vast majority of reference materials needed to analyze Stark and Anti-kickback issues--to be unveiled this summer.

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April 18, 2011

CVS Pharmacy, Inc. Settles with Government for $17.5 Million

On April 15, CVS Pharmacy, Inc. agreed to pay the United States and 10 states $17.5 million to resolve False Claims Act allegations related to Medicaid billings for prescription drugs. These allegations were introduced to the government by a qui tam whistleblower. According to the Department of Justice press release,

The settlement resolves allegations that CVS submitted inflated prescription claims to the government by billing the Medicaid programs in Alabama, California, Florida, Indiana, Massachusetts, Michigan, Minnesota, New Hampshire, Nevada and Rhode Island for more than what CVS was owed for prescription drugs dispensed to Medicaid beneficiaries who were also eligible for benefits under a primary third party insurance plan (excluding Medicare as the primary payor). The United States alleged that rather than billing the government for what the insured would have been obligated to pay had the claims been submitted solely to the third party insurer (typically the co-pay), CVS billed and was paid a higher amount by Medicaid.

CVS entered into a corporate integrity agreement (CIA) with the Office of Inspector General in March 2008 in connection with a separate investigation and settlement. CVS has executed a separate amendment to its CIA that will be in effect for three years to monitor CVS's implementation of correct billing procedures and the training and education of employees. Moreover, an independent review organization (IRO) will conduct regular audits and issue reports on CVS's compliance with the terms of the amendment to the CIA.

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April 18, 2011

CMS' RACs Implementing a "Semi-Automated" Claims Review


The Medicare Recovery Audit Contractors (RACs) are introducing another weapon in their artillery: semi-automated claims review. Although semi-automated claims review is not specifically authorized by the RAC Statement of Work, the method is essentially a combination of an automated claims review and a complex claims review. CMS describes a semi-automated claims review in one of its frequently asked questions as follows:

It is a two-part review that is now being used in the Recovery Audit Program. The first part is the identification of a billing aberrancy through an automated review using claims data. This aberrancy has a high index of suspicion to be an improper payment. The second part includes a Notification Letter that is sent to the provider explaining the potential billing error that was identified. The letter also indicates that the provider has 45 days to submit documentation to support the original billing. If the provider decides not to submit documentation, or if the documentation provided does not support the way the claim was billed, the claim will be sent to the Medicare claims processing contractor for adjustment and a demand letter will be issued. However, if the submitted documentation does support the billing of the claim, the claim will not be sent for adjustment and the provider will be notified that the review has been closed.

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April 15, 2011

OIG Focuses on Mental Health Centers

On February 16, we wrote about a $200 million healthcare fraud scheme in southern Florida in connection with improper billing for Medicare mental health services. In an April 14 Department of Justice press release, the two orchestrators of the fraud scheme--Lawrence Duran and Marianella Valera--pleaded guilty at an arraignment hearing to all counts charged in a superseding indictment, unsealed on February 15.

According to the press release, "'These defendants billed Medicare for mental health services that were illegitimate or never provided,' said U.S. Attorney Wifredo A. Ferrer of the Southern District of Florida. 'In this way, these defendants engaged in an eight-year scheme that defrauded Medicare out of more than $200 million in payments for purported community mental health services. We will continue to aggressively prosecute all types of Medicare fraud and all levels of fraudsters, up and down the organizational chain, to help preserve our scarce Medicare dollars for those who really need it, the sick and the elderly.'"

Duran and Valera have been in custody since October 2010. Their sentencing is scheduled for July 13 and each could face decades in prison if given the maximum sentence.

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April 7, 2011

The HLP and Decision Health Announce Upcoming June Conference in Las Vegas, Nevada: "Physician-Hospital Alignment Strategies 2011"

Alignment Strategies web page icon.png Join Carey Kalmowitz, Esq. and Kate Hickner-Cruz, Esq. of The Health Law Partners, P.C. in Las Vegas, Nevada for a conference that will answer all of your questions regarding the growing movement towards greater physician-hospital alignment.

Declining reimbursement, uncertainty over health care reform, increased competition, the need to access capital and the overall economy are all combining to drive physician practices to align themselves in some way with hospitals. Alignment may be necessary, but it's a huge step for practices to take. It's a step not only fraught with uncertainty over practice autonomy, physician compensation and the future culture of the practice, but one that may affect the happiness and financial health of a practice more than all the other decisions a practice makes, combined, in any given year.

Physician-Hospital Alignment Strategies 2011, sponsored by DecisionHealth, is a conference geared toward physician practices looking to align, but hospitals, consultants and others will also benefit by hearing the advice practices will be hearing. Specifically, practices will learn how to:
• Choose the right model and right partner to ensure long-term happiness and financial health
• Protect practice autonomy and compensation no matter what type of deal is struck
• Discover what hospitals look for most when evaluating practices - direct from a hospital CEO
• Find out just how much a practice is worth - and make sure the assessment passes legal muster
• Prepare thoroughly for due diligence - don't lose a great deal at the last minute to an overlooked detail
• Work successfully with a hospital after the deal has closed - including how to set up good day-to-day relations
In addition, all attendees take home working materials packed with information and tools to help you successfully conclude the alignment deal you need.

Further, your attendance at Physician-Hospital Alignment Strategies is risk free! With the line-up of authoritative speakers and solution-oriented tracks and session, DecisionHealth guarantees you will leave with the knowledge you need to choose the alignment option that meets physician practice needs and conclude a deal that protects a practice at the same time. If not, DecisionHealth will refund your full registration fee.

P.S., Bring along others from your organization and save up to $300! (See the Decision Health website to find out how.) Reserve your seat now by going to www.practicealignment.com.

April 6, 2011

Joel Kahn, M.D. is Named to Two New Medical Director Positions at DMC

Dr. Joel Kahn has been named Detroit Medical Center's (DMC) Medical Director of Wellness and Medical Director of Preventive Cardiology and Cardiac Rehabilitation. Dr. Kahn plans to develop a clinic for preventive cardiology as well as reopening a cardiac rehabilitation program for DMC.


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April 5, 2011

Model Legislation for Balance Billing Adopted by NCOIL

The National Conference of Insurance Legislators (NCOIL) adopted model legislation to restrict out-of-network balance billing by physicians. The stated purpose of the model-legislation is "to provide transparency, accountability, and disclosure by healthcare facilities, facility-based providers, and health benefit plans regarding billing practices, notice of network benefits, and financial responsibilities in the delivery of non-emergency medical care." Two key provisions of the model legislation include the following:

Section 4. Facility Disclosure

A. Each healthcare facility shall develop, implement, and enforce written policies for the billing of non- emergency medical care. The policies must address:
1. the providing of a conspicuous written disclosure to a consumer at the time the consumer is first treated on a non-emergency basis at the facility, at pre-admission, or first receives non-emergency or post-stabilization services at the facility that:
(a) provides confirmation whether the facility is a participating provider under the consumer's third-party payor coverage on the date services are to be rendered based on the information received from the consumer at the time the confirmation is provided; and


(b) informs consumers that if a facility-based provider who provides services to the consumer while the consumer is in the facility is not a participating provider with the same third-party payors as the facility, then the consumer may be billed for medical services for the amount unpaid by the consumer's health benefit plan.


2. the requirement that a facility provide a list, on request, to a consumer to be admitted to or who is expected to receive services from the facility, that contains the name and contact information for each facility-based provider or facility-based provider group that has been granted medical staff privileges to provide medical services at the facility; and


3. if the facility operates a website that includes a listing of physicians who have been granted medical staff privileges to provide medical services at the facility, the posting on the facility's website of a list that contains the name and contact information for each facility-based provider or facility-based provider group that has been granted medical staff privileges to provide medical services at the facility and the updating of the list in any calendar quarter in which there are any changes to the list.

Section 5. Facility-Based Provider Disclosure

A. If a facility-based provider bills a patient treated at the facility for non-emergency medical care who is covered by a health benefit plan described in Section 3 that does not have a contract with the facility-based provider, requesting payment on the balance of the provider's charge that is not related to co-pays, coinsurance payments, or deductible payments and is not covered by the health benefits plan, the facility-based provider shall send a billing statement that:
1. contains an itemized listing of the non-emergency medical care provided along with the dates the services and supplies were provided;


2. contains a conspicuous, plain-language explanation that:


(a) the facility-based provider is not within the health plan provider network; and


(b) the health benefit plan has paid a rate, as determined by the health benefit plan, which is below the facility-based provider billed amount;


3. contains a telephone number to call to discuss the statement, provide an explanation of any acronyms, abbreviations, and numbers used on the statement, or discuss any payment issues;


4. contains a statement that the patient may call to discuss alternative payment arrangements;


5. contains a notice that the patient may file complaints with the [Insert State Medical Board] and includes the [Insert State Medical Board] mailing address and complaint telephone number; and


6. for billing statements that total an amount greater than $200, over any applicable copayments or deductibles, states, in plain language, that if the patient finalizes a payment plan agreement within 30 days of receiving the first billing statement that includes all insurance payments and reflects the final amount owed by the enrollee or six months after the receipt of medical treatment, whichever occurs first and substantially complies with the agreement, the facility-based provider may not furnish adverse information to a consumer reporting agency regarding an amount owed by the patient for the receipt of medical treatment.


B. A patient may be considered by the facility-based provider to be out of substantial compliance with the payment plan agreement if payments in compliance with the agreement have not been made for a period of 45 days.

While this is merely a model-form of legislation, a number of states have already adopted their own balance billing laws. Providers and suppliers should always be aware of their state's laws pertaining to balance billing when billing out-of-network patients for their services.

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April 4, 2011

Face-to-Face Encounter Requirement for Hospice and Home Health Providers Effective NOW

Effective April 1, 2011, hospice and home health providers will be required to comply with the face-to-face rule for purposes of verification of a patient's eligibility for Medicare home health services and of recertification for Medicare hospice services. Enforcement of this requirement was delayed from January 1, 2011, in order to allow home health and hospice providers time to work out any systemic issues associated with implementation of the face-to-face visit requirement. According to CMS, "the face-to-face requirement ensures that the orders and certification for home health services are based on a physician's current knowledge of the patient's clinical condition." These encounters must then be documented on patients' certifications. Moreover, where the home health encounter must occur within the 90 days prior to the stat of care or within the 30 days after the start of care, the hospice encounter must occur prior to the patient's 180th day recertification, and each subsequent recertification. The hospice encounter must occur no more than 30 calendar days prior to the start of the hospice patient's third benefit period.

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April 1, 2011

Alan G. Gilchrist, Esq. Joins The HLP to Lead Civil False Claims and Criminal Defense Practice Group

Alan Gilchrist The Health Law Partners, P.C. ("The HLP") is pleased to announce that Alan G. Gilchrist, Esq., has joined the firm as a partner. The HLP is excited to welcome Gilchrist to our growing team of lawyers specializing in health care law. Gilchrist will chair the firm's Civil False Claims and White Collar Criminal defense practice group. Gilchrist is a nationally recognized health care lawyer, specializing not only in civil false claims and white collar criminal defense, but also in matters related to licensure, reimbursement, compliance and fraud and abuse. He represents all types of health care providers, suppliers and professional organizations.

Gilchrist is a nationally-renowned litigator. He has successfully argued provider-reimbursement issues before the U.S. Supreme Court on behalf of the American Academy of Family Physicians and the Michigan Academy of Family Physicians. In addition, Gilchrist also has the distinction of being the first attorney to successfully defend a physician group in a Stark and Anti-Kickback case brought by the U.S. Department of Justice.

He frequently speaks nationally and locally, including to such organizations as the American Medical Association, American Bar Association, American Health Lawyers Association, and the FBI National Symposium on Health Care Fraud. He participated in the establishment of the Michigan Bar Association Institute of Continuing Education (ICLE) and has moderated and lectured at ICLE seminars for over a decade.

Gilchrist has been recognized in the Super Lawyers publication; he was selected by d'Business magazine in 2011 as one of the Top Lawyers in Metro Detroit; he is listed in the Best Lawyers in America in Health Care Law and Administrative Law; and he has an AV Preeminent rating by Martindale-Hubbell.

April 1, 2011

The Highly Anticipated ACO Guidance Has Been Issued!

On Thursday, March 31, 2011, the Centers for Medicare & Medicaid Services ("CMS") provided the health care community with some much needed guidance by publishing its Proposed Rule regarding the Medicare Shared Savings Program (the "Shared Savings Program") and its Accountable Care Organizations ("ACOs"). There is a sixty (60) day public comment period with respect to the Proposed Rule and CMS has encouraged members of the public, including physicians, to submit comments for consideration while the final regulations are being developed.

Within its almost 500 pages of text, the Proposed Rule sets forth an abundance of specific requirements that the ACOs will likely need to satisfy. In addition, the Proposed Rule provides further information regarding the payments that ACOs will receive from CMS. Notably, the Proposed Rule would not only allow ACOs to receive a share of the cost-savings that it generates based upon a benchmark set by CMS but would also require ACOs, at least eventually, to accept downside risk by requiring the ACOs to repay Medicare expenditures above the CMS benchmarks.

It is also important to note that the Proposed Rule was only one of several helpful publications simultaneously issued by Federal agencies, including the U.S. Department of Health and Human Services Office of Inspector General, the Federal Trade Commission, the Department of Justice and the Internal Revenue Service, in a coordinated effort to address barriers and resolve ambiguities with respect to the operation of the Shared Savings Program under health care fraud and abuse, anti-trust and tax exempt laws.

Additional information regarding each of these developments and the Proposed Rule itself can be found at http://www.cms.gov/sharedsavingsprogram/.

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