Health Law Attorney Blog

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.

Continue reading "CMS Issues Additional Guidance Regarding Elimination of Consultation Codes" »

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.

Continue reading "HLP Receives Direct Clarification Regarding HHA Ownership Changes" »

A legal ruling finding that the Red Flag Rules promulgated by the Federal Trade Commission ("FTC") do not apply to the profession of law has raised new hope that physicians may find a similar exemption.

In a final rule published in 2007 under the Fair and Accurate Credit Transaction Act of 2003, the FTC issued these "Red Flag Rules," which requires any entity that regularly extends credit or defers payments to adopt a formal policy to detect and prevent identity theft. The rule was originally set to be implemented on January 1, 2008, with compliance required by October 22, 2008. Due to significant confusion about the rule, especially regarding which professions are considered "creditors" under the rule's definition, implementation has been delayed three times (enforcement is currently set to begin June 1, 2010). An Extended Enforcement Policy revised July 29, 2009 by the FTC offered clarification, stating that professions such as physicians and attorneys fit their definition of "creditor," and would be affected by the rules.

However, in a suit for partial summary judgment brought by the American Bar Association against the FTC, the U.S. District Court of D.C. found that the FTC lacked the authority to apply these rules to attorneys. The decision holds that "The context is inconsistent with the regulation of attorneys," and that, "As the plaintiff correctly posits: 'In 'ordinary English,' no one would assume that a lawyer engaged in the practice of law is a 'creditor' simply because the lawyer bills clients for services rendered and does not demand immediate payment.'" This decision exempting attorneys was issued on December 1, 2009.

Physicians and other health care professionals now hope that they will find relief through a similar exemption. On January 27, 2010, the American Medical Association sent a letter to the FTC claiming that health care professionals should be exempted if lawyers are, based on the similarity of their business structures. The letter states, "While acknowledging that there may be minor differences between lawyers and [licensed health care professionals] for purposes of the applicability of the Rule, we believe that the dispositive considerations underlying that decision apply equally to LHCPs."

Continue reading "Will Physicians Find Permanent Relief From the FTC's "Red Flag Rules"?" »

A Florida Appeals Court upheld a ruling last month that a hospital-based but non-contracted provider may not balance bill patients for amounts unpaid by the patients' HMO, when the HMO has accepted liability. The text of the ruling can be found here.

In this case, the patients, each a subscriber to one HMO, received pre-authorization from the HMO to undergo surgical procedures at a hospital under contract with the HMO. The hospital's contract with the HMO empowered the hospital to direct hospital-based physicians to perform services for the HMO's members.

The anesthesia provider who performed anesthesia services in conjunction with the surgical procedures had an exclusive relationship with the hospital, but was not directly contracted with the HMO. The patients had little-to-no direct contact with the anesthesia provider prior to the procedures. The anesthesia provider then billed the HMO for services provided; the HMO issued payments, which the anesthesia provider accepted, that were for lesser amounts than what had been billed. The anesthesia provider subsequently issued bills for the remaining amounts to the patients.

The patients brought a suit seeking declaratory against the provider based on Section 641.3154 of Florida Statutes (2007), which states,

A provider or any representative of a provider, regardless of whether the provider is under contract with the health maintenance organization, may not collect or attempt to collect money from, maintain any action of law against, or report to a credit agency a subscriber of an organization for payment of services for which the organization is liable, if the provider in good faith knows or should know that the organization is liable.

Because the HMO had issued pre-authorization for the procedures at issue, the HMO had accepted liability for the procedure. Because the anesthesia provider was aware of the pre-authorizations, it should reasonably have known that the HMO had accepted liability.

The court ruled that any payment dispute is between the HMO and the anesthesia provider. Because the HMO had accepted liability for the procedures and because he anesthesia provider knew about it, the patients cannot be billed for the balance.

Continue reading "Florida Appeals Court Finds That Non-Contracted Providers Cannot Balance Bill Patients When an HMO is Liable" »

The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) requires the Secretary to designate organizations to accredit suppliers, including but not limited to physicians, non-physician practitioners, and Independent Diagnostic Testing Facilities, that furnish the technical component of advanced diagnostic imaging services. Advanced diagnostic imaging services include diagnostic magnetic resonance imaging (MRI), computed tomography (CT), and nuclear medicine imaging.

Recently, the Centers for Medicare & Medicaid Services (CMS) approved the following three national accreditation organization to provide the accreditation services for suppliers of the TC of advanced diagnostic imaging procedures: (1) the American College of Radiology; (2) the Intersocietal Accreditation Commission; and (3) the Joint Commission.

The accreditation organizations will assess the overall quality of a practice, including but not limited to, its personnel, equipment, quality assurance activities, and the quality of patient care. In addition, each accreditation organization has quality standards that focus on but are not limited to the qualifications of medical personnel and medical directors, performance specifications for imaging equipment, and quality assurance and control programs to ensure the safety, reliability, clarity, and accuracy of diagnostic imaging.

Continue reading "MIPAA Accreditation for Providers of Advanced Diagnostic Imaging Services" »

CMS rescinded a change order affecting the use of place of service ("POS") codes used for the interpretation of diagnostic tests. Originally issued on December 11, 2009, the rescinded Change Request ("CR") led to significant confusion about the POS for reporting the reading of diagnostic tests.

MLN Matters 6375, which explained the CR, required providers to report the specific date and location where the test interpretation (the professional component) occurred--rather than the date and location where the actual test was performed.

CMS has stated that it will issue a new CR and MLN Matters providing additional, more consistent clarification regarding the use of POS codes in the future.

Continue reading "CMS Rescinds POS Reimbursement Rules for Diagnostic Tests" »

The home health world has been turned upside down. As many are aware, new regulations have been implemented that affect ownership changes for home health agencies ("HHAs"). On January 21, 2010, CMS published a "Medicare Learning Network Provider Inquiry Assistance." This publication clearly states that any "ownership change" within 36 months of the Medicare enrollment date or the most recent ownership change will require a home health agency to enroll as an initial Medicare applicant.

"Ownership Change" is defined as any of the following: CHOW (as defined by Medicare); acquisition/merger; consolidation; change of information request reporting a five percent (5%) or greater ownership change (e.g., stock transfer, asset sale); or change request reporting a change in partners, regardless of the percentage of ownership involved. Previously, a stock sale (as opposed to an asset purchase) of an HHA was not treated as a change of ownership. Instead, HHAs were required to simply submit a change of information form.

Our office has become aware of numerous HHAs who were involved in stock sales and submitted the 855A applications and all relevant information prior to the publication of the final regulation. Despite the fact that the applications were submitted before August, when the regulation was proposed, the applications were never processed and the provider numbers became ineffective on January 1, 2010.

Continue reading "Home Health Agencies and Ownership Changes " »

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" »

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" »

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" »

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" »

Those monitoring regulations effective January 1, 2010 related to CMS payment policy for teaching CRNAs involved in two (2) concurrent anesthesia cases with student nurse anesthetists were likely confused by a November 20, 2009 CMS MLN Matters article that appeared to contradict the new regulatory language and CMS Transmittal 1859. Specifically, although the federal register commentary, regulation text and CMS transmittal seemed clear that the new payment policy permits the teaching CRNA to bill full anesthesia time for each of the two cases (as opposed to face-to face time only) as long as the teaching CRNA devotes his or her time to the two concurrent anesthesia cases and is not involved in other services, the November 20, 2009 MLN Matters article advised that time should be billed based on the actual amount of time present with the student (i.e., face-to-face time). Importantly, CMS recognized the error in the November 20, 2009 article and revised the article on December 15, 2009 to make clear that face-to-face time is not required.

In summary, the teaching CRNA may bill for both full base and time (as opposed to face-to-face time only) in each of the two concurrent student cases as long as: (1) the teaching CRNA devotes his/her full time to the cases and is not involved in other services; and (2) the teaching CRNA must be present with each student nurse anesthetist during the pre and post anesthesia care.

Please also note that in the commentary to the final regulations, CMS commented that AANA standards of the Council on Accreditation of Nurse Anesthesia Programs with regard to supervision of students must be met. In particular, for periods of concurrency for two student nurse anesthetist cases, another qualified anesthesia provider (CRNA or anesthesiologist) must be available to fulfill the standards. For example, to be available for the student to summon for clinical assistance should it be required.

Continue reading "Compliance Update: Teaching CRNAs and Two Concurrent Cases" »

On December 1, 2009, the Sixth Circuit affirmed the conviction of Dr. Jorge A. Martinez, an anesthesiologist, who was charged with illegally distributing controlled substances, mail fraud, wire fraud, and healthcare fraud, including two counts that resulted in the death of patients.

In 2002, the FBI began investigating Dr. Martinez's pain-management clinic in Parma, OH in response to reimbursement and billing patterns placing him above his peers for certain procedures. At trial, the government alleged that from 1998 until 2004, Dr. Martinez engaged in fraud and endangered patients by administering far more injections than his peers and seeing more patients more day than other physicians in Ohio. The government also demonstrated that two patient deaths were reasonably foreseeable consequences of Dr. Martinez's fraudulent treatment.

In addition to upholding Dr. Martinez's conviction, the appeals court also upheld his sentence for life imprisonment and over $14 million in restitution.

The full text of the case can be read here: U.S. v. Martinez.pdf

Continue reading "Sixth Circuit Affirms Conviction and Sentence of Anesthesiologist for Fraud and Endangering Patients" »

Requirements for Medicare coverage of Inpatient Rehabilitation Services will undergo a number of changes, effective January 1, 2010. Centers for Medicare and Medicaid Services (CMS) released a transmittal on October 23, 2009 detailing these changes, which include several new requirements for the patient admission process and ongoing recordkeeping. Admission will only be considered "reasonable and necessary" by CMS if the new procedures are followed.

The new mandatory requirements are significant, and include preadmission screening, post-admission physician evaluation, individualized plans of care, and a definition of measurable improvement, along with many other requirements.

As hospitals are gearing up for the permanent RAC program activity, it will be important for IRFs to comply with the new IRF requirements.

These changes are reflected in modifications to Chapter 2, Section 110 of the Medicare Benefit Policy Manual.

Continue reading "Medicare Makes Major Changes to Coverage Requirements for Inpatient Rehabilitation Services" »

Oral arguments began on November 3, 2009 in a case that will test whether defendants in medical liability lawsuits are permitted under HIPAA to conduct informal interviews with plaintiffs' other treating doctors.

The federal Health Insurance Portability and Accountability Act (HIPAA) protects private health information and preserves patient confidentiality. In the case at issue, the plaintiff suing a physician for negligence has denied the physician access to informal interviews with other treating physicians, arguing that HIPAA only allows the disclosure of written medical records--not oral communications, where it is more difficult to predict what protected information might be disclosed. The trial court agreed with this argument, only to be reversed by the Michigan Court of Appeals in 2008. The Appeals Court ruled that, provided the patient was notified through a proper mechanism, such informal meetings were permissible.

Other states have split over whether HIPAA prohibits informal oral interviews in medical liability cases.

Continue reading "Michigan Supreme Court Deciding HIPAA's Impact in Liability Cases" »