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

Traditionally, it was only “doctors” that provided medical care to patients – likely with the help of some sort of unlicensed assistant – and doctors would, therefore, limit their billing (and revenue) to the services that they, individually, provided. In recent years licensed and/or certified non-physician practitioners (“NPP’s”) have begun to provide an increasing amount and variety of medical care to patients and, accordingly, increase the amount of reimbursement and revenue to health care practices that utilize the services of an NPP.

The regulations and statutes regarding NNP education, scope of practice, supervision and training are primarily based on state laws and, in many ways, differ from state to state. The designation and variety of NPP’s also vary from state to state, but, generally speaking, NPP’s can be categorized as follows:

• Advanced Practice Nurse
• Certified Registered Nurse Anesthetist
• Clinical Nurse Specialist
• Clinical Psychologist
• Clinical Social Worker
• Nurse Midwife
• Nurse Practitioner
• Occupational Therapist
• Physician Assistant
• Physical Therapist
• Speech Pathologist
• Surgery Assistant

Billing and Reimbursement for Non-Physician Practitioner Services

Reimbursement received by health care practices for services provided by NPP’s varies substantially among federal, state and commercial payors, and should be thoroughly evaluated prior to submission of medical bills. For instance, Medicare will reimburse for services provided by certain NPP’s in private physician practices when:

(1) The bill for NPP services is submitted using the NPP’s own name and national provider identifier (“NPI”) number. The NPP is reimbursed at eighty-five (85%) percent of the Medicare physician fee schedule.

(2) The bill for NPP services is submitted using the supervising physician’s NPI as “incident to” the services provided by the physician. The NPP’s services will be reimbursed at One Hundred (100%) percent of the Medicare physician fee schedule. Further, if covered NPP services are furnished, then services and supplies furnished incident to the NPP’s services may also be covered.

In order for a health care practice to submit a bill to Medicare for NPP services provided “incident to” the services of the supervising physician, the following criteria must be met:

(a)   The NPP services must be performed under the direct supervision of the physician as an integral part of the physician’s personal in-office service (this does not mean that each occasion of an incidental service performed by a NPP must always be the occasion of a service actually rendered by the physician.

(b) There must be a direct, personal, professional service furnished by the physician to initiate the course of treatment of which the service being performed by the NPP is an incidental part, and there must be subsequent services by the physician of a frequency that reflects the physician’s continuing active participation in and management of the course of treatment;

(c)   The supervising physician must be physically present in the same office suite and be immediately available to render assistance if that becomes necessary;

(d) Also, a physician might render a physician’s service that can be covered even though another service furnished by a NPP as incident to the physician’s service might not be covered.

In practice, this translates to the following criteria:

(1) The supervising physician initially sees the patient (or sees the patient at a previous visit) and initiates the plan of care that the NPP is carrying out.

(2)The supervising physician remains involved in the patient’s care and continuously documents this involvement in the patient’s medical record.

(3)The NPP is an employee and/or independent contractor associated with the physician practice.

(4)The supervising physician (or another physician of the physician practice) must be in the medical office at all times that the NPP provides services and must be immediately available to intervene in the patient’s care if medically necessary.

Commercial payors, on the other hand, are free to set their own policies and guidelines for credentialing NPP’s and providing reimbursement for their services. Some commercial payors are willing to credential NPP’s and allow NPP services to be reimbursed using the NPP’s own provider number or instruct physician practices to bill for services provided by the NPP under the supervising physician’s provider number as “incident to” the services provided by the supervising physician. Other commercial payors simply refuse to reimburse for services provided by an NPP altogether. It is also important to note that a health care practice may be able to negotiate the reimbursement rate provided by certain commercial carriers for services provided by NPP’s.

Additionally, federal, state and commercial payors each have unique restrictions and guidelines concerning an NPP’s ability to examine and treat new patients, patients with new or worsening conditions, and so forth. Accordingly, health care practices should always request and keep on file each payor’s written policy concerning qualification, billing, coding and reimbursement of NPP services.  

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For New York State accredited office-based surgery practices (“OBS”), the terms of continued accreditation (varying with an OBS’ specific accrediting agency) often come with strict requirements and guidelines concerning the hiring and retention of employees and independent contractors.  Most unexpected (and often overlooked by OBS employers) are the requirements and guidelines that reach far beyond the customary licensure and/or certification requirements and expand into areas that an OBS employer might consider (understandably) to be “private business decisions” or “matters of professional judgment.” It is in these outlying areas that OBS employers must be well versed in order to avoid inadvertent compliance breaches.

When hiring new employees and/or independent contractors, OBS employers must review their accreditation manuals with a specific focus on the following categories of employees and/or contractors:

(a)          Registered Nurses: when hiring Registered Nurses, OBS employers must confirm, among other things, (i) instances of treatment requiring the presence of a Registered Nurse(s) (including pre and post operative care), (ii) licensure, continuing education and liability insurance requirements, (iii) requirements concerning maintenance of medical records and supporting documentation and (iv) reporting requirements concerning adverse events; 

(b)          Physicians’ Assistants and/or Specialists’ Assistants: with regard to Physicians’ Assistants and/or Specialists’ Assistants, special attention must be give to rules and regulations concerning (i) the presence and/or supervision of a physician at the OBS facility, (ii) availability of and/or access to a physicians upon request of the patient, (iii) maintenance of medical record, auditing and quality control initiatives, (iv) licensure, continuing education and liability insurance and (v) reporting requirements concerning adverse events;

(c)           Anesthesiologists: in addition to the state and federal laws concerning and/or affecting financial and work relationships among physicians (i.e., Stark Laws, Anti-Kickback Statutes, False Claims Act), OBS employers must review all rules and regulations concerning: (i) the Anesthesiologist’s access and availability to patients, (ii) pre and post operative care directives, (iii) directives concerning maintenance and support of Anesthesia equipment, medication and/or supplies, (iv) maintenance of medical records, auditing and quality control initiatives, (v) board certification, licensure, continuing education, and liability insurance and (vi) reporting requirements concerning adverse events;

It is important to note that most of these “employment requirements” can be outlined as conditions of employment in an employment contract or independent contractor agreement between the OBS employer and the employee/contractor.  Documenting and outlining relevant accreditation-mandated employment requirements, in addition to clarifying the potential employee/contractor’s responsibilities and obligations, demonstrates a good faith effort to comply with all applicable accreditation mandates and delegates applicable accountability. 

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Purchasing a piece of medical equipment is often the largest single-item expense for a health care practice and must be treated as any other critical business decision.  The practice’s due diligence investigation must include independent research as to the quality and function of the equipment, a targeted cost-benefit analysis and a thorough review of the lines of business that the practice intends to offer with the new equipment. Unfortunately, practices tend to rely on the “pitch” and representations of the sales rep presenting the equipment and often lose track of the analysis that must be conducted.

Over the past few months I have been meeting with an increasing number of practitioners that, after entering a lease and/or finance for a very expensive piece of medical equipment, find that their practice (a) does not have a sufficient patient base to test/treat with the equipment, (b) has a sufficient patient base to test/treat with the equipment but the testing/treatments do not bring in enough revenue to support the cost of the equipment, (c) need additional equipment, software, and/or professionals to use the new equipment and/or (d) are not being reimbursed by insurance carriers for the testing/treatments. Many practitioners note that the sales reps who originally presented the equipment made certain misrepresentation and/or omitted certain information which later led to the practices inability to recover the expected revenue (i.e. “the rep did not tell me that I needed to buy the software for the equipment separately” or “I did not know that the manufacturer was distributing coupons which I would be obligated to honor.” Most of these practitioners find themselves before a court where the signed contract reigns supreme.

For these reasons, it is always important to approach any medical equipment purchase with the following questions in mind:

1. Is the testing/treatment indicated by the machine a “covered” procedure by major insurance carriers? In particular, practices will need to determine whether carriers readily reimburse for the testing/treatment implicated by the machine and what the average rate of reimbursement is.
2. Is the testing/treatment implicated by the machine considered “experimental” by major insurance carriers for the purposes intended by the practice and what is the “medical necessity” threshold for performing the testing and/or treatment? In most cases, procedures considered “experimental” by the insurance carrier are not payable without prior authorizations, if at all.  Moreover, practices will need to determine how common the intended testing/treatment is and what population of patients are authorized to receive the testing/treatment in the ordinary course of business.
3. What CPT codes and/or diagnosis codes are implicated for the equipment? In particular, practices will need to find out whether the intended CPT codes are considered exploratory "test" codes and what diagnosis codes support the intended CPT codes.
4. What amount of tests/treatments must be performed per month to cover the monthly expense associates with the equipment and whether the practice's current patient base requires that amount of testing/treatment? This information is necessary to budget for the new medical equipment.
5. Did the manufacturer/distributor of the equipment issue any rebates and/or coupons to end-users that the practice will be obligated to honor? If possible, the practice must try to narrow down the manufacturers/distributors prior and future incentives to end-users and incorporate the manufacturers/distributor representations into the written agreement.
6. Is there any additional software, training and/or components that the practice will need to purchase prior to or after using the equipment? Will the manufacturer/distributor provide software/hardware updates when available? Again, the practice can negotiate these issues and memorialize them in the written agreement.

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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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