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

Health care providers who have been excluded from participation with certain insurance carriers often approach me for guidance concerning their options (if any) for continuing their existing relationships - and possibly treatment – with patients who are insured by the “excluding” insurance carrier. While the reasons for “exclusion” are quite varied and have differing degrees of severity (depending on the particular insurance carrier and type of exclusion that is involved), in almost all cases, exclusion from network participation means that the excluded provider cannot treat patients insured by the excluding insurance carrier, whether directly or indirectly. Provider arrangements made to circumvent exclusion may, among other things, be deemed the “fraudulent practice of medicine” and may carry serious, permanent, consequences for both the excluded provider and any provider assisting the excluded provider with the circumvention.

In the Matter of Josifidis v. Daines, 2011 NY Slip Op 7891 (decided November 10, 2011, Appellate Division, Third Department) the Third Department confirmed a determination of the Hearing Committee of the New York State Board for Professional Medical Conduct (the “Committee”) which, among other things, revoked the medical license of Petitioner Harry Josifidis (the “Excluded Provider”) for the fraudulent practice of medicine. In doing so, the Third Department confirmed the Committee’s finding that the Excluded provider circumvented “his exclusion from insurers’ networks by using another physician’s name.” 

The relevant facts underlying the Third Department’s decision are as follows:

“[The Excluded Provider] was excluded by certain health insurers from being reimbursed as an in-network provider for treatment rendered to their insureds as the result of a prior disciplinary action. [The Excluded Provider] thereafter entered into an agreement with another physician (hereinafter the other physician) by which the other physician’s name appeared on claims submitted to the insurers for [the Excluded Provider’s] treatment of in-network patients.

The Excluded Provider, in an effort to “explain” the legality of the circumvention arrangement, argued that “he relied on the other physician’s representations that their arrangement was ‘lawful and appropriate’” and that “he entered the agreement to provide his patients with continuity of care rather than for profit.”

The Third Department concluded that “[s]ubstantial evidence in the record shows that [the Excluded Provider] repeatedly submitted bills in the other physician’s name for services he had provided in order to receive payment from insurers who had specifically excluded him from being reimbursed for such services…. Accordingly, [the Third Department found] that the Committee properly rejected [the Excluded Provider’s] explanation and substantial evidence in the record supports its determination.”

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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 the minor patient reaches the age of 19 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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