Health Care Compliance Watch : New York Health Care Compliance Lawyer & Attorney : Ilana Sable : NY Physician Representation Law

When implementing the Recovery Audit Contractor (“RAC”) program, Medicare incorporated a variety of limitations and requirements that RACs are required to abide by when conducting audits of Medicare providers. Most significantly, Medicare providers should be aware of the following mandates when being audited by a RAC:

1. When conducting audits, RACs are limited to looking back up to three years from the date a claim was paid, with a maximum look back date of October 1, 2007.

2. RACs are limited in the number of medical records that they can request from a provider within a forty-five day period (medical record limits depend on the type and size of the practice).

3. RACs must accept and review extension requests if providers are unable to submit documentation in a timely manner.

4. After submission of an Additional Documentation Request (ADR) letter, RACs must initiate at least one additional contact with the provider before issuing a denial for failure to submit documentation.

5. When reviewing Evaluation and Management (“E/M”) services, RACs cannot look for incorrect levels of service (reviews of E/M services are limited to, among other things, reviews for duplicate claims and/or payments, unbundling and violations of global surgery rules).

6. RACs are prohibited from reviewing claims that were previously reviewed by another Medicare contractor (i.e. Medicare Administrative Contractors (“MACs”) or that underwent a Prepayment Review.

These points are not exhaustive and demonstrate the need for providers to understand their rights and protections when going through the audit process. The RAC program was designed with ample controls and provider protections, and it can be extremely costly and time consuming (if not debilitating) when Medicare providers fail to enforce their rights and protections when being audited by a RAC.

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After a recent post discussing preparation and maintenance of medical records, I received several requests for further information regarding the 1995 and 1997 Documentation Guidelines for Evaluation and Management (“E/M”) Services that I briefly discussed.

The 1995 guidelines are applicable to: (a) all medical and surgical services and (b) in all settings. The 1997 guidelines, in addition to incorporating the 1995 guidelines, focus on specialists and outline each component of a typical E/M service. The following is an outline of the general principles that health care practices must adhere to when structuring medical records in accordance with the 1995 and 1997 guidelines.

1. The medical record should be complete and legible.

2. The documentation of each patient encounter should include:

·        reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;

·        assessment, clinical impression or diagnosis;

·        plan for care; and

·        date and legible identity of the observer.

3. If not documented, the rationale for ordering diagnostic and other ancillary services should be easily inferred.

4. Past and present diagnoses should be accessible to the treating and/or consulting physician.

5. Appropriate health risk factors should be identified.

6. The patient's progress, response to and changes in treatment, and revision of diagnosis should be documented.

7. The CPT and ICD-9-CM codes reported on the health insurance claim form or billing statement should be supported by the documentation in the medical record.

The CMS website has further information regarding the 1995 (pdf) and 1997 (pdf) guidelines.

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“If it isn’t documented, it hasn’t been done.”

This axiom is synonymous with the health care industry and is especially relevant when discussing audit defense. Whenever I sit down with a new audit defense client, my first three questions are always the same - “What do your medical charts and records look like? How often do you review and monitor the medical notes and records of the other physicians and ancillary medical staff in your practice? When was the last time that you conducted an internal audit to monitor your practices billing and coding, diagnostic testing and patient follow-up?” This line of questioning is almost always met with a wrinkled expression and furrowed brow, and I immediately know that I have my work cut out for me.

When discussing medical records, health care practices must guide themselves around three fundamental principles. The first is that both private carriers and federal payors review medical records using the 1995 and 1997 Documentation Guidelines for Evaluation and Management (“E/M”) Services, and that any health care practice expecting to be reimbursed for services rendered must do the same.

The second is that each state has its own state-specific laws regarding a health care practices structure, care and maintenance of its medical records. In New York, the law mandates that, among other things, health care professionals must maintain a record for each patient “which accurately reflects the evaluation and treatment of the patient,” and unless otherwise provided by law, all patient records must be retained for at least six years. Moreover, in New York, obstetrical records and records of minor patients must be retained for at least six years and until one year after the minor patient reaches the age of 21 years.

The third is that a medical record is wholly incomplete without accurate and consistent documentation of a patient’s follow-up care. What steps were taken after the physician ordered the pricey diagnostic tests? What was the result of the extended IV Hydration Therapy?  If the follow-up care and treatment results go unanswered, questions of medical necessity, abuse and even professional misconduct can follow.

Auditors, investigators and prosecutors alike are always looking for the lapse in the story – the missing link that can be painted into an abusive, unnecessary or even unlawful method of care.  Above all, maintaining clear, consistent and well-monitored medical records is a health care practices most powerful tool in any audit defense situation.
 

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While Congress continues to tackle the difficult decision of when (not “if”) to implement a 21% cut in Medicare payments to physicians, medical practices are facing the equally difficult decision of whether they can afford to keep treating Medicare patients.

On June 24, the House of Representatives passed a six month deferral of the proposed 21% cuts in the Medicare physician fee schedule and retroactively reversed the June 1, 2010 payment cut for 6 months. Physicians were also given a 2.2% fee schedule increase. This temporary deferral marks the tenth time in less than eight years that Congress has blocked the proposed 21% cut in Medicare payments to physicians. Although Congress has pushed the proposed cuts a bit further down the road, the deferral is nothing more than a temporary fix. The Medicare Trust is rapidly depleting and lawmakers have no long term option other than to drastically reduce the country’s Medicare spending.

The bigger issue is that even without the proposed 21% payment cut, physicians across the country have been facing the hard business decision of whether they can afford to keep treating Medicare payments for several years. Many doctors – mainly primary care physicians such as internists and gynecologists – have increasingly stopped treating Medicare patients due to Medicare’s low reimbursement rates, growing demands for supporting medical documents and audits. On average, Medicare pays providers approximately 78% of what commercial insurers pay yet demands a great deal more effort and time in receiving, and often times retaining, payment for services rendered. Plus, with the advent of the RAC program, physicians are finding that they need what amounts to a secondary degree in billing and coding just to stay ahead of the audits and recoupments.

The end result: an increasing amount of physicians are choosing to put the needs of their medical practices above the needs of their senior patients and have either stopped accepting new Medicare patients or have opted-out out of the Medicare program entirely. According to the Centers for Medicare and Medicaid Services, approximately 10 % of physicians have opted out of the Medicare program, with the number of physicians opting-out of the program steadily rising ever year.

If your practice is considering reducing the amount of Medicare patients that it accepts or opting-out of the Medicare program entirely, there are several critical questions that must be asked an evaluated when making these decisions.

·         How much time, effort and secondary support (including staff members and physicians) is allocated toward preparing, processing and submitting medical bills to Medicare? 

·         How much time, effort and secondary support (again, including staff members and physicians) goes into requests for supporting documents and audits? 

·         On average, how do Medicare reimbursement rates measure up against reimbursement rates from commercial carriers for: (a) rate of claims paid and (b) amount paid on claims?

·         How much additional time would physicians and staff members have to allocate toward other projects if the practice reduced or eliminated its treatment of Medicare patients?

·         Would the practice require less staff, space and/or secondary support if it reduced or eliminated its treatment of Medicare patients? 

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On June 4, 2010 the U.S. Department of Justice announced the recovery of $2.85 million dollars from three New York City ambulance companies – SEZ Metro Corp., SEZ North Corp. and Big Apple Ambulance Service Inc. – to resolve false claims made to Medicare under the False Claims Act (“FCA”). The FCA gives the federal government (as well as private citizens) a cause of action against those who submit false claims to the government by and through its various agencies and/or departments. In this case, the Justice Department alleges that the ambulance companies used, or caused the use of, false records to appeal a large scale Medicare program refund demand.

Under Medicare rules, ambulance companies can lawfully bill the Medicare program for non-emergency transports only if a patient cannot be transported by any other means. Here, Medicare audited the ambulance companies past billings – audits that can go as far back as seven years under some circumstances – and concluded that the ambulance companies had charged Medicare tens of millions of dollars for ambulance trips that did not meet the standards required by the Medicare rules. When Medicare demanded a refund the ambulance companies proceeded by disputing Medicare’s decision through the Medicare appeals process and, in support of their appeals, submitted false claims by causing hundreds of forged letters purported to come from health care providers that attested to the need and medical necessity of the non-emergency ambulance transports.

This action was originally filed by a whistleblower – a private citizen who was the former financial officer for one of the ambulance companies – under the qui tam provision of the false claims act. The qui tam provisions permit private citizens to file suit on behalf of the United States and share in any recovery. Here, the former financial officer’s share of the settlement will be $618,450.00.

It is unclear whether the original Medicare audit that prompted this case was a product of Medicare’s recently instituted Recovery Audit Contractor (RAC) program.

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When hiring a third party collection agency to recover receivables due for unpaid health care services, health care practices tend to focus on fees and commissions and often lose sight of other equally important issues.  Below are a few key questions that health care practices are encouraged to ask and evaluate before entering a Debt Collection Service Agreement in order to avoid the common pitfalls associates with these types of transactions.

1. Will we need to disclose Protected Health Information (“PHI”) when working with the collection agency? If the answer is “yes,” the practice will need to enter a Business Associate Agreement that is compliant with The Health Insurance Portability and Accountability Act (“HIPAA”) and The American Recovery and Reinvestment Act of 2009 (including its expansion of the HIPAA rules and regulations) and must contractually require that the collection agency protect the privacy of the PHI. There may also be State mandated privacy regulations that are more restrictive than HIPAA and ARRA that must be taken into account.

2. What method of practice does the collection agency utilize? In addition to conducting itself in accordance with the Fair Debt Collection Practices Act and Fair Credit Reporting Act, State laws governing collection agencies and collection methods must be reviewed and incorporated into the Agreement to insure that the collection agency is complying with State specific rules and regulations when collecting debt for the health care practice.

3. How will the health care practice monitor the collection agency’s activities? It is important to incorporate language that will enable the health care practice to monitor the collection agency’s activities during the debt collection process, including: patient communications, complaints, requests for information, debts collected and/or settled, legal actions, judgments and garnishments. The practice will also want to include language establishing when and how this information will be obtained.  A consistent system of monitoring and reporting is especially critical in the event that the relationship is terminated and the health care practice is left to pick up where the collection agency left off.

4. What are the health care practice’s options and obligations when terminating the Agreement? Can the health care practice freely stop working with the collection agency or does the Agreement incorporate restrictive language? How will existing collection accounts be handled upon termination of the Agreement? These questions are easily overlooked yet often become obstacles in terminating relationships and retrieving crucial information.
 

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Primary care practices (including family medicine, pediatrics, internal medicine and OB/GYN) located in under-served NYC communities may be eligible to receive a $4,000.00 grant toward an eClinicalWorks EHR software package.  The grant is administered by the New York Department of Health and Mental Hygiene in support of its Primary Care Information Project ("PCIP").

PCIP is a New York City grant program that was developed to promote "prevention-oriented EHR's" among providers who care for NYC's under-served and vulnerable populations.  Primary care practices that are eligible for, and receive, the EHR grant will be required to participate in certain quality improvement efforts, including quality reporting and linkage to public health information systems.

While the $4,000.00 grant money will not cover the entire cost of running an EHR based practice, it is enough to cover the initial conversion costs ( including eClinicalWorks EHR licensing, staff training and 2 years of maintenance and support).  In addition, by converting to EHR, primary care practices may become eligible for the financial incentives available under other government programs, including the ARRA.

eClinicalWorks EHR has recieved 2008 CCHIT certification (the most current certification offered by CCHIT) and, as with all other EHR software, it remains to be seen whether it will receive the upcoming CCHIT ARRA certification.

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The Certification Commission for Health Information Technology ("CCHIT"), a non-profit organization that independently certifies health information technology, has put together a preliminary ARRA certification criteria for EHR (pdf) that it believes will meet the requirements for receiving EHR financial incentives available under the ARRA.

Currently, CCHIT is the only Department of Health and Human Services ("HHS") recognized certifying body.  As such, it will likely determine which EHR software will enable providers to make  "meaningful use" of their EHR when HHS publishes the final definition of  "meaningful use." When the definition is published, certification will be necessary for providers to receive the financial incentives available under the ARRA. 

The preliminary guide focuses on Ambulatory and In Patient EHR, and promises ongoing updates as more information becomes available. 

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As an update on the progress that Health and Human Services (“HHS”), in conjunction with the Centers for Medicare and Medicaid Services (“CMS”) and the National Coordinator for Health Information, is making toward defining “meaningful use," HHS is reporting that the proposed rule (defining “meaningful use”), is targeted for publication in late 2009.
 

On a related issue, recently, I have been receiving an increasing number of questions from readers wondering whether their practices will be among those eligible for incentive payments under the ARRA.  My response has always been, and remains, that these questions can not be answered until the exact definition of "meaningful use" is fleshed out.  However, in the interim, HHS has defined "eligible professional" in the following ways:

For the Medicare Incentives:

A physician as defined in section 1861(r) of the Social Security Act, which includes the following five types of professional:

1. Doctor of medicine or osteopathy
2.  Doctor of dental surgery or medicine
3. Doctor of podiatric medicine
4. Doctor of optometry
5. Chiropractor

For the Medicaid Incentives:

• Physicians
• Dentists
• Certified nurse-midwives
• Nurse Practitioners
• Physician Assistants who are participating in Federally Qualified Health Centers or Rural Health Clinics led by physician assistants.

I hope that helps to clear up some of the confusion.

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