We have extensive experience with RAC audits and appeals, working directly with healthcare entities subject to RAC audits.
We have represented Independent Diagnostic Testing Facilities (“IDTFs”), mobile leasing entities, radiology group practices, and other imaging providers.
We provide assistance and guidance through the legal process focused on the goal of resolving your matter successfully and efficiently.

Articles Posted in Medical Devices

Published on:

The United States Department of Health and Human Services Office of Inspector General (“HHS-OIG”) has released its Work Plan for Fiscal Year 2016. This plan summarizes new and continuing areas of review and activities that HHS-OIG plans to pursue as well as describing its primary objectives. The newest additions to the work plan are:

• Medical device credits for replaced medical devices • Medicare payments during Medicare Severity Diagnosis Related Groups (MS-DRG) payment window • Content Management System (CMS) validation of hospital-submitted quality reporting data • Skilled nursing facility prospective payment system requirements • Orthotic braces-reasonableness of Medicare payments compared to amounts paid by other payers • Osteogenesis stimulators-lump-sum purchase versus rental • Orthotic braces-supplier compliance with payment requirements • Increased billing for ventilators • Ambulatory surgical centers-quality oversight • Physicians-referring/ordering Medicare services and supplies • Anesthesia services-non covered services • Physician home visits-reasonableness of services • Prolonged (E & M) services-reasonableness of services • Histocompatibility laboratories-supplier compliance with payment requirements • Accountable Care Organizations: Strategies and Promising Practices • Medicare payments for unlawfully present beneficiaries in the United States-mandated review • Medicare payments for incarcerated beneficiaries-mandated review • Content Management System (CMS) management of ICD-10 implementation • Medicare Advantage organization practices in Puerto Rico • Medicare Part D beneficiaries’ exposure to inappropriate drug pairs • Medicare Part D Eligibility Verification transactions • Part D Pharmacy Enrollment • Increase in prices for brand-name drugs under Part D • Specialty drug pricing and reimbursement in Medicaid • Express Lane Eligibility • State agency verification of deficiency corrections • Medical loss ratio-recoveries of MCO rebates from profit-limiting arrangements • Review of States’ methodologies for assigning Managed Care organization payments to different Medicaid FMAPs • Managed long-term-care reimbursements • Center for Disease Control (CDC)-oversight of the Select Agent Program • Controls over networked medical devices at hospitals • Food and Drug Administration (FDA)-tobacco establishment compliance with the Family Smoking Prevention and Tobacco Control Act • Health Resources and Services Administration (HRSA)-compliance with Maternal, Infant, and Early Childhood Home Visiting (MIECHV) Requirements • IHS-change card program review • NIH-controls over subcontracting of NIH grant and contract work • Controls over the preparation and receipt of select agent shipments • Review of Office for Human Research Protections compliance evaluations to ensure human subject protection • Foster Care-States’ protocols for the use and monitoring of psychotropic medications for children in foster care • States’ implementation of guardian ad litem requirements • Consumer Operated and Oriented Plan Loan Program-CO-OP compliance with requirements and CMS monitoring activities • Allowability of contract expenditures • Rollup of State-based marketplace eligibility determination audits and Content Management System (CMS) oversight • Health Resources and Services Administration (HRSA)-compliance with Maternal, Infant, and Early Childhood Home Visiting (MIECHV) requirements
The U.S. Department of Health and Human Services Office of Inspector General has released their Work Plan for Fiscal Year 2016

The HHS-OIG expects significant recoveries in audit receivables, investigative receivables and non-HHS investigative receivables resulting from their Work Plan, as well as tremendous savings in legislative, regulatory, and/or administrative actions.
Continue reading →

Published on:

On November 1, 2012, the Centers for Medicare and Medicaid Services (“CMS”) released a final Durable Medical Equipment (“DME”) face-to-face policy. As a pre-condition to payment, the rule requires that a beneficiary receive a face-to-face encounter with a Physician, Physician Assistant (“PA”), Nurse Practitioner (“NP”), or Clinical Nurse Specialist (“CNP”) within six months prior to a DME order. The encounter must then be documented in the medical record and communicated to the DME provider with the order.

The final rule makes the following key changes:

• Delays implementation of the DME policy until July 1, 2013 and clarifying that the rule will only apply to DME orders made after the implementation date.

• Expands the timeframe between the face-to-face encounter and order of DME to six months, although it eliminates the option of having the face-to-face encounter occur within thirty days following the order.

• Clarifies that Physician Assistants, Nurse Practitioners, and Clinical Nurse Specialists may complete the face-to-face encounter, but the encounter must be documented by a physician.

• Clarifies that orders may be made verbally for items that do not require a written order before dispensing, but the supplier must have a written order and face-to-face documentation before submitting for payment.

• Clarifies that DME orders for beneficiaries discharging from a hospital do not require a separate face-to-face encounter post-hospitalization.

• Written orders do not require “necessary and proper usage instructions” or the diagnosis, although related diagnoses must be in the Beneficiary’s medical chart and usage instructions provided to the Beneficiary and/or the Beneficiary’s Caregiver.
Continue reading →

Published on:

On October 3, 2012, the OIG released its Work Plan for the FY of 2013. Throughout the week, we will be posting on various aspects of the Work Plan pertinent to our clients and our readers in the following areas:

• Hospitals • Home Health Agencies • Hospices • Evaluation and Management Services • Imaging Services • Diagnostic Testing • Sleep Testing
• Medical Equipment and Supplies
• Medicare Audits and the Appeals Processes
Check back every day for updates!
Continue reading →

Published on:

In their June newsletter, The Record, Blue Cross Blue Shield of Michigan (BCBSM) recommended that physicians “consult with their legal counsel periodically.” The problem that BCBSM identified is the situation where physicians prescribe and dispense durable medical equipment and prosthetics and orthotics items in order to provide a means for their patients to be ambulatory prior to leaving the physician’s office. BCBSM has encouraged this practice; however, they warn physicians that certain practices may run afoul to local, state and federal laws. In particular, physicians should worry about the Stark and anti-kickback laws that prohibit self-referrals. Therefore, as BCBSM concludes, it is important for physicians to consult with their legal counsel to ensure compliance with the law. This is especially important when physicians provide durable medical equipment to patients directly from their office. Legal counsel should carefully review such practices to ensure compliance with the Stark law.
Continue reading →

Published on:

On March 29, 2012, with veritably no debate and less fan-fare, the New Hampshire House of Representatives recommended for passage HB 1725. HB 1725 is broad-reaching, and would prohibit all medical practitioners from prescribing or referring any FDA class II or class III implantable device in cases where they would gain profit, directly or indirectly from the sale of the device, or from performing any procedure involving the device. HB 1725 is currently being fast-tracked – the New Hampshire Senate Committee on Health and Human Services has scheduled a hearing on HB 1725 on April 19, 2012.

Supporters of the bill assert that it is necessary to protect New Hampshire from the perceived problems associated with physician-owned distributors (“PODs“), which appears to be pre-textual insofar as it is believed that no PODs are currently operating in New Hampshire, though supporters have argued the law is necessary as a preventative measure. As drafted, however, the bill goes significantly further than merely outlawing PODs; HB 1725 would essentially prohibit physicians from continuing to practice in their specialty in New Hampshire if they have legitimately developed medical devices and received payment for the same. Thus, even in the absence of any potential abuse or evidence of over-utilization, those physicians would effectively be barred from practice in the State.

Opponents of the bill argue that it could have significant unintended patient safety implications, as New Hampshire would effectively have outlawed the process by which physicians and legitimate medical device manufacturers continuously develop, promote, test, obtain feedback on, and improve life-saving medical devices. Additionally, HB 1725 could have significant chilling and anti-competitive effects on innovators, small businesses/medical device startup companies, and hospitals that employ physicians who develop intellectual property (such as university hospitals and others who engage in significant research and pay royalties to physicians).

Most of the potentially negative effects of HB 1725 occur because of the breadth of the bill, its lack of exceptions, and the fact that it layers upon a statutory definition in New Hampshire’s current “self-referral” law, which currently merely requires disclosure of certain ownership interests to patients (a la the Stark In Office Ancillary Services exception’s disclosure requirement for certain imaging services). That statute defines an “ownership interest” broadly as being:

“any and all ownership interest by a health care practitioner or such person’s spouse or child, including, but not limited to, any membership, proprietary interest, stock interest, partnership interest, co-ownership in any form, or any profit-sharing arrangement. It shall not include ownership of investment securities purchased by the practitioner on terms available to the general public and which are publicly traded.”

HB 1725, as drafted, would prevent a practicing physician (or their spouse/children) from receiving royalties for intellectual property that they have developed and licensed to a medical device manufacturer. Further, an innovative and entrepreneurial physician would be subject to liability if they, or their spouse or children, decided to create or invest in a medical device company for otherwise legal purposes. HB 1725, as drafted, does not distinguish between legitimate physician/medical device company interactions (e.g., bona fide businesses, as opposed to a marketing tool of a device manufacturer, or a sham entity designed to provider remuneration to referring physicians), and creates a near-absolute prohibition on physicians capitalizing on their intellectual property while continuing to practice in their field of specialty.

Opponents of the bill include the New Hampshire Medical Society, which questions the need for the legislation as no PODs currently exist within the state, and is concerned about the effect the law may have on medical innovation and legitimate cost savings vehicles, including ACOs and other payment/purchasing modalities. The Medical Society has further questioned whether the bill is necessary given developments in Federal law, and whether the legislature would be better off amending the bill to include the guidelines adopted by the AMA instead of a wholesale restriction on such activities.

To date, the legislative passage of New Hampshire’s HB 1725 has not been widely publicized. The next significant legislative step occurs on April 19, 2012, when New Hampshire Senate Committee on Health and Human Services has scheduled a hearing on HB 1725.
Continue reading →

Contact Information