Health Law Attorney Blog

President Obama to Expand RAC program

2010-03-10T14:03:02Z

Providers beware: On March 9, 2010, President Obama re-emphasized his support of, and intention to, expand the RAC program.

As part of President Obama's drive to pass the comprehensive changes to the nation's healthcare system, the President plans to bring in high-tech bounty hunters to help root out healthcare fraud in the government-run Medicare and Medicaid programs. The bounty hunters will be private auditors, armed with sophisticated computer programs designed to scan billing data for patterns of bogus claims. Officials state that the President will also sign a presidential memorandum directing all federal departments and agencies to intensify their use of private auditors to discover and recapture such improper payments. With bipartisan support, this is one of the few health care measures that providers across the nation can count on to have great impact on the health care community.

]]> For more information on the RAC programs, please contact Abby Pendelton, Esq. or Jessica L. Gustafson, Esq. at (248) 996-8510, visit the RAC specialty page, or the HLP website.

ONC Proposes Certification Program for Electronic Health Records Systems

2010-03-08T22:42:13Z

The Office of the National Coordinator for Health Information Technology ("ONC"), an office of the Department of Health and Human Services, released a proposed rule creating a program to certify electronic health records ("EHR") systems. The rule creates both a temporary and a permanent certification system, designed to assure users to that EHR systems and related technology meets the "meaningful use" criteria of the HITECH Act.

This certification is required by CMS for providers to receive payments in an incentive program created by CMS in January for the "meaningful use" of EHR technology.

ONC hopes to issue the final rule regarding temporary certification by the time that HHS issues final rules regarding meaningful use standards and certification criteria. Both are expected this fall.

The permanent certification program, with a longer comment period, will later replace the temporary program.

]]> For more information, contact Jessica L. Gustafson, Esq. at (248) 996-8510.

Concerns About Pete Stark Thwart His Assuming the Chairmanship of the House Ways and Means Committee

2010-03-06T03:26:47Z

Rep. Sander Levin, an expert on trade issues, has been tapped to take over the House Ways and Means Committee after Rangel stepped down and Rep. Pete Stark stepped aside. It has been widely reported that concerns by fellow members of the House Ways and Means Committee over Rep. Pete Stark's politics, background and history of controversial statements led to the surprise decision on March 4th to have Congressman Levin replace the embattled Rep. Charles B. Rangel as the committee chairman. Stark had been in line for the powerful post after Rangel announced Wednesday that he was stepping down until a House ethics panel finished investigating him. Based upon the positions that Pete Stark historically has taken to limit revenue-generating opportunities for physicians, the prevailing assumption is that the physician community breathed a collective sigh of relief upon learning of this development.

]]> For more information, please contact Adrienne Dresevic, Esq. or Carey F. Kalmowitz, Esq. at (248) 996-8510 or visit the HLP website.

CMS Issues Additional Guidance Regarding Elimination of Consultation Codes

2010-03-05T14:20:41Z

As HLP previously reported, in December, CMS issued MLN Matter 6740 announcing that consultation codes would no longer be used to reflect the different locations where services were provided.

This week, CMS issued additional guidance regarding billing for those services that would previously been coded as consultations. This guidance includes a Questions and Answers on Reporting Physician Consultation Services and Revisions to Consultation Services Payment Policy.

The "Questions and Answers" document includes a wide range of information, including how to bill for services that don't fit classification by a CPT E/M code, how this change affects the definition of transfer of care, how to define new versus existing patients, and whether providers can bill patients for services denied by Medicare for the reason that the incorrect CPT code was billed.

]]> For more information, contact Abby Pendleton, Esq. at (248) 996-8510.

HLP Receives Direct Clarification Regarding HHA Ownership Changes

2010-03-04T15:47:45Z

Recent Medicare regulations regarding ownership changes for HHAs have been the source of controversy and confusion. After numerous attempts by HLP founding partner Robert Iwrey, Esq. to obtain clarification regarding enforcement of these regs, Rob was pleased to receive an email this morning from Frank Whelan, a CMS adminstrator with the Division of Provider and Supplier Enrollment, providing direct clarification. Mr. Whelan's email is below:

If an HHA submitted a CMS-855A ownership change that was received by the Medicare contractor prior to January 1, 2010, the contractor will not apply the 36-month policy found in 42 CFR 424.550(b). As such, if the contractor received a change of ownership or change of information which resulted in a change of owners (e.g., asset sale/stock transfer) prior to January 1, 2010 and the HHA was adversely affected by the contractor's application of the policies found in 424.550(b), the HHA should send a letter to the contractor formally requesting that its ownership change be processed. This letter should include:

*The seller's name, taxpayer identification number, national provider identifier, and the date on which the ownership change was submitted to the contractor.

Contractors will process these pre-January 1, 2010 Medicare enrollment applications under the policies in place prior to January 1, 2010.

While we always encourage providers and suppliers to discuss and resolve enrollment issues with the Medicare contractor, if a HHA encounters a processing problem, we will review it.

]]> For more information, please contact Robert Iwrey, Esq. or Adrienne Dresevic, Esq. at (248) 996-8510.

Pete Stark Replaces Charlie Rangel on House Ways and Means Committee

2010-03-04T15:05:28Z

Yesterday House Speaker Nancy Pelosi selected Congressman Pete Stark of California to head the powerful Ways and Means Committee, replacing New York Congressman Charlie Rangel, who has stepped aside temporarily amid ethics investigations. Stark is best known in health care for first proposing what is now known as "the Stark law," which regulates physician self-referral, in 1988. The first version of the Stark law was passed in 1989.

]]> For more information on Stark, please contact Adrienne Dresevic, Esq. at (248) 996-8510.

Congress Extends Freeze in Medicare Reimbursement for 30 Days

2010-03-03T16:39:47Z

Physician reimbursement under the Medicare program will not face a 21% cut, at least not for the next 30 days. Yesterday, on March 2, 2010, the Senate passed the Temporary Extension Act of 2010 (H.R. 4691, 111th Cong. § 5 (2010)), which postponed the effective date of a planned 21% fee reduction for an additional 30 days - until March 28, 2010. CMS has stated its belief that Congress will continue to work to avoid implementation of the negative fee schedule update.

The Health Law Partners, P.C. ("The HLP") will continue to keep you apprised as updates occur.

]]> For more information, please call Adrienne Dresevic, Esq., Carey Kalmowitz, Esq., or Jessica Gustafson, Esq. at (248) 996-8510 or visit The HLP's website.

HLP Attorney Dresevic Published on Stark and AKS in RBMA Bulletin

2010-03-02T18:52:11Z

One of HLP's founding partners, Adrienne Dresevic, Esq., who specializes in Stark and fraud & abuse analysis, published a new article in the latest issue of the RBMA Bulletin, a publication of the Radiology Business Management Association. Adrienne's article, entitled "Key Regulations Impacting Marketing: Entertainment and Gifts," explains the regulatory limitations placed on health care professionals when marketing, and is a must-read for physicians and other providers trying to expand their business.

]]> For more information or with questions, please contact Adrienne Dresevic, Esq. at (248) 996-8510.

Medicare Reimbursement Reduction Update

2010-03-02T14:21:54Z

On February 22, The Health Law Partners, P.C. ("The HLP") posted a blog urging our clients and friends to help prevent a proposed 21% reduction in Medicare reimbursement. On February 28, the short-term Medicare physician payment freeze expired, triggering the 21% reduction in Medicare reimbursement. Congress is expected to vote within the next several days to extend the payment freeze and stave off the reduction in reimbursement for an additional 30 days - to March 28, 2010.

However, because a vote did not occur prior to the expiration of the physician payment freeze existing in February, triggering the 21% reduction in Medicare reimbursement beginning March 1, if payments were to be made under the cuts, and if the cuts are subsequently repealed, physicians would have to file new claims to recoup lost amounts, creating an administrative burden to both the provider community and Medicare claims processors. According to a recent AP report (3/2, Alonso-Zalvidar), the Obama Administration expects "the Senate will act soon to stave off the cuts," and has "directed Medicare billing contractors to hold off processing claims for 10 business days." Jonathan Blum, director of CMS' Center for Medicare Management, has stated that, CMS' "No. 1 goal is to avoid disrupting payments to physicians during this time."

The HLP will continue to keep you apprised of future developments.

]]> For more information, please contact Adrienne Dresevic, Esq. or Carey F. Kalmowitz, Esq. at (248) 996-8510 or visit The HLP website.

Michigan Office of Health Services Inspector General Created

2010-03-01T15:20:16Z

Following the leads of a number of other States, including New York, Michigan Governor Jennifer Granholm has issued an Executive Order creating an independent Office of Health Services Inspector General (the "OHSIG"). According to the Executive Order, OHSIG, which will be organized as an independent and autonomous entity within the Department of Community Health, is charged with the responsibility to "conduct and supervise activities to prevent, detect, and investigate fraud, waste, and abuse in health services programs" such as Medicaid. The Health Services Inspector General, which will be vested with broad powers to carry out its anti-fraud and abuse mandate, will be appointed by the Governor. The Executive Order becomes effective October 1, 2010.

]]> For more information, please contact Carey F. Kalmowitz, Adrienne Dresevic or Abby Pendleton at (248) 996-8510.

CMS Releases Home Health Agency Transmittal Regarding Accreditation and Change of Ownership

2010-02-25T20:43:03Z

On February 18, 2010, the Centers for Medicare and Medicaid Services released a transmittal addressing home health agencies ("HHAs") that have deactivated billing privileges as well as conditions on HHAs and changes in ownership (the "Revised HHA Policy"). The Revised HHA Policy affords relief to those HHAs that submitted change-of-ownership ("CHOW") applications prior to January 1, 2010, but which were not approved prior to that date. By operation of the policy, the provider number of any HHA whose CHOW application was not approved by January 1st would be terminated (the "36-Month HHA Transfer Restriction Rule"). A substantial number of HHAs submitted CHOW applications prior to promulgation of the rule, but these applications were not processed by December 31st, and thus these HHAs did not obtain the requisite approval by January 1st. Thus, HHAs with pending applications were beginning to receive notices of termination, and others were awaiting such termination notices. The Revised HHA Policy, however, clarifies that the requirements of the 36-Month HHA Transfer Restriction Rule are effective for CMS-855A applications received on or after January 1, 2010. Most importantly, under the Revised HHA Policy, HHA applications received prior to January 1, 2010 will be handled in accordance with the policies in place prior to January 1, 2010. Thus, all HHAs that submitted CHOW applications by December 31, 2010 will have these processed under the former (i.e., pre-36-Month HHA Transfer Restriction Rule) standards.

]]> For more information, please contact Adrienne Dresevic, Esq. or Carey F. Kalmowitz, Esq. at (248) 996-8510 or visit the HLP website.

Michigan Updates in Medicare and Medicaid

2010-02-24T14:47:55Z

In the past month, Michigan has experienced a great deal of Medicare and Medicaid news. On February 11, Governor Jennifer Granholm announced that in her proposed 2011 budget, she would continue the 8% Medicaid cuts to hospitals, physicians, long-term care, and mental health providers. Further, her proposed budget also reintroduced the 3% physician tax that was voted down in the Senate last summer.

]]> For more information, please contact Abby Pendleton, Esq., Jessica L. Gustafson, Esq., Adrienne Dresevic, Esq., Robert S. Iwrey, Esq., or Carey F. Kalmowitz, Esq. at (248) 996-8510 or visit the HLP website.

Recovery Audit Contractors (RAC), Fraud Referrals, Recommendations

2010-02-23T14:41:50Z

The Office of Inspector General (OIG) released a report discussing some of its recent findings regarding the Recovery Audit Contractor (RAC) 3-year demonstration program. The report revealed that between March 2005 and March 2008, the RACs "referred two cases of potential fraud to the Centers for Medicare & Medicaid Services (CMS). However, CMS reported that it received no potential fraud referrals from RACs during this period." The OIG learned that the RACs were not properly trained in detecting fraud and recommended to CMS that it do the following: "(1) conduct followup to determine the outcomes of the two referrals made during the demonstration project, (2) implement a system to track fraud referrals, and (3) require RACs to receive mandatory training on the identification and referral of fraud." CMS has accepted and agreed and has already begun to adopt these recommendations.

]]> For more information, please contact Abby Pendleton, Esq. or Jessica L. Gustafson, Esq. at (248) 886-8510, visit our RAC specialty page, or the HLP website.

HITECH "Business Associate" Provisions Enforcement Delayed

2010-02-22T22:15:41Z

Unverified accounts have it that enforcement of the "business associate" provisions of the HITECH Act, which was set to commence on February 17, 2010, is being delayed. The business associate provisions require business associates of covered entities to also implement the HIPAA Security Rule, and portions of the HIPAA Privacy Rule, and also requires that all agreements between covered entities and business associates provide for the business associates' compliance with those to portions of HIPAA regulations.

A partner at HLP saw Adam Greene of the Office of the General Counsel, Civil Rights Division, at the Department of Health & Human Services, mentionthe delay in implementation when speaking at the American Bar Association's 11th Annual Conference on Emerging Issues in Healthcare Law.

]]> For more information, contact Abby Pendleton, Esq. at (248) 886-8510.

Medical Society of the State of New York Urges Calls to Congress To Again Prevent 21% Physician Medicare Cut

2010-02-22T14:27:16Z

As a service to our clients and friends in NY, we are reproducing the notice circulated by the Medical Society of the State of New York urging all interested constituents take action to prevent the proposed 21% reduction in Medicare physician reimbursement. "On February 28, the two month extender of the current Medicare > conversion factor expires. If this is allowed to happen, it will > result in a 21% cut to Medicare physician reimbursement. This could devastate senior access. Congress must act to prevent this from > happening. The American Medical Association and MSSNY continue to push for repeal of the unfair SGR formula used for determining Medicare reimbursement updates. While several proposals are under consideration in Congress which would prevent this cut, including another short-term extender to a time later in the year, no action has yet been taken. Physicians are urged to call the AMA Grassroots Hotline, 1-800-833-6354, to contact Senators Schumer and Gillibrand, as well as their respective member of the House of Representatives, to urge a long-term fix to this problem. Time is running out, so please act now."

]]> For more information, contact Carey Kalmowitz, Esq., Adrienne Dresevic, Esq. or Abby Pendleton, Esq. at (248) 996-8510.