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Articles Posted in Medicare/Medicaid

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This is a summary of the article Courts Recognize Irreparable Injury Caused by Medicare Appeals Backlog written by Jessica L. Gustafson, Esq. and Abby Pendleton, Esq., published in the January/February 2019 issue of BC Advantage.

Presently, there are 426,594 appeals pending and awaiting OMHA adjudication. Despite a statutory mandate to “conduct and conclude a hearing…and render a decision on such hearing by not later than the end of the 90-day period beginning on the date a request for hearing has been timely filed,” the average processing time for OMHA appeals is presently 1,142 days (over 3 years). Unfortunately for appellants, there are significant financial repercussions resulting from adjudicators’ failures to adhere to their statutory mandates for timely appeals adjudication. Delays in appeals processing not only violate the Social Security Act, but also create financial hardship for appellants.

Specifically, Medicare contractors are allowed to begin recouping an alleged overpayment after a reconsideration decision is issued. Following issuance of a partially favorable or unfavorable reconsideration decision, CMS will begin recoupment activities while an appellant awaits an Administrative Law Judge (ALJ) hearing and decision.

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As of January 29, 2019, a total of 38 hospitals have joined a lawsuit against the Department of Health and Human Services (HHS) over the new site-neutral payment policy that went into effect beginning January 1, 2019. The final rule that modified the Outpatient Prospective Payment System (OPPS) will result in a reduction of $380 million in Medicare reimbursements for hospital outpatient clinic visits. Half of the total reduction will apply next year, following a two-year phase-in period.

The American Hospital Association (AHA) and the Association of American Medical Colleges (AAMC) led the December 4, 2018 lawsuit, which has now grown to include 36 other hospitals or associations that are in opposition to the rule. The 2019 OPPS modifications will make payments for clinic visits site-neutral by reducing the payment rate for hospital outpatient clinic visits provided at off-campus provider-based departments (PBDs) by 60%. Previously, Section 603 of the Bipartisan Budget Act of 2015 ensured off-campus PBDs that began operations on or after November 2, 2015 were exempt from site-neutral payments. Now, however, the HHS has fundamentally overwritten Section 603, subjecting the PBDs that were originally protected to the lower OPPS rate.

Rick Pollack, president and CEO of the AHA said in a December press release, “These cuts directly undercut the clear intent of Congress to protect hospital outpatient departments because of the real and crucial differences between them and other sites of care…It is alarming that CMS continues to propose cuts that will harm the teaching hospitals that provide care to the most vulnerable patients, including Medicare beneficiaries.”

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The Center for Medicare and Medicaid Services (CMS) has published a 957-page final rule that confirms changes made to the Medicare Shared Savings Program (MSSP). This new rule will be expected to have a substantial impact on Accountable Care Organizations (ACOs) that rely on one-sided risk models, in so far as ACOs in the program will be forced to assume a larger amount of financial risk than under the current landscape. CMS’s new program, “Pathways to Success”, will afford smaller, physician-led ACOs a period of three years to remain in a one-sided risk model. All new ACOs will have two years, while existing ACOs with one-sided risk models will only have solely a year to adopt the new program and assume the additional financial risk.

CMS has also reduced the shared savings rate to 40% for ACOs that do not assume risk for health care costs, but the 50% rate for ACOs at all other levels of financial risk remains unchanged. With this new rule, announced December 21, 2018, CMS projects $2.9 billion in savings over the next ten years as ACOs take on more risk.

In CMS’s current program, which has been in effect for six years, ACOs were eligible to receive a portion of any savings that were generated, provided that they met quality standards for the care they provided to their patients. Currently, only a limited number of ACOs are subject to any sort of financial penalties in cases in which costs increase. However, from the experience running MSSP, CMS has been able to determine that ACOs that are required to take responsibility for costs tend to perform better than those that do not. This new rule provides incentives for ACOs to provide high-quality care in order to generate additional savings for themselves.

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The New York State Office of the Medicaid Inspector General (OMIG) maintains a Certification Program to ensure Medicaid providers are continuing proper compliance. This program works to eliminate any environment in a Medicaid provider’s system that may encourage fraud, waste, or abuse, as well as ensuring errors have the potential for self-correction if mistakes are located before the Medicaid program is billed. Providers who meet OMIG’s requirements must submit a certification at the time of enrollment and every December thereafter. This includes any Medicaid providers who have submitted $500,000 in Medicaid claims or those who may reach that goal in any consecutive 12-month time period, regardless of calendar year.

OMIG has identified seven compliance areas that must be covered by the Compliance Program:

  • Billings
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The practice of diagnosis and treatment of patients remotely by way of a telecommunications technology, also known as telemedicine, has gained popularity as companies who provide this type of healthcare have recently worked to make a name for themselves. Services such as CareClix, ConsultADoctor, and Teladoc are just a few of these providers who utilize telehealth as their primary healthcare service.

Telemedicine can be divided into two general categories: synchronous and asynchronous. Synchronous programs are those that occur in real-time, generally through a video conference or other similar means of communication between a patient and a medical provider. Asynchronous telemedicine, or “store and forward”, refers to the patient’s ability to gather all relevant information and communicate it to a medical provider over a delayed time period. The information is sent via secure email or other form of messaging service.

Beginning January 1, 2019 Medicare will be accepting certain medical services that fall under the classification of asynchronous telemedicine. The Centers for Medicare and Medicaid Services (CMS) published the final rule for the 2019 Physician Fee Schedule, which included a new code entitled “Remote Evaluation of Pre-Recorded Patient Information” (HCPCS code G2010). A list of the telehealth services that are currently covered by CMS can be found here.

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