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

If your health care practice has not yet purchased and/or converted to an Electronic Health Records (“EHR”) product, there are, at minimum, five reasons why your practice should consider holding off on making the purchase for a few more months. 

1. To date, no EHR product has been certified as capable of meeting the criteria to support “meaningful use and quality eligible providers and hospitals” for funding under the American Recovery and Reinvestment Act (“ARRA”). In fact, it was only on August 30, 2010 that the Office of the National Coordinator for Health Information Technology announced that it had approved two organizations – CCHIT and The Drummond Group - to act as Authorized Testing and Certification Bodies (“authorized body”) to begin certifying EHR products. Eligible professionals, hospitals and critical access hospitals participating in the incentive program must use an EHR product certified by an authorized body to receive benefits.
2. Providers hoping to participate under the Medicaid Incentive Program will not have complete “meaningful use” criteria until (and unless) each individual State launches its additional requirements for meaningful use. States choosing to launch a Medicaid Incentive Program will do so beginning in January, 2011. In doing so, each State will be required to identify four (4) additional core “meaningful use” objectives for their Medicaid providers. Until each State has identified its individual core objectives, Medicaid providers have no way of knowing whether, and with what functionality, an EHR product can fulfill the practices specific EHR needs.
3. Most EHR products will require upgrades and/or additions before becoming certified EHR products. Most EHR products on the market today will need to (a) be upgraded and/or (b) add new functionality to meet the criteria of a certified EHR product. For instance, CCHIT certified less than thirty EHR products - there exist three hundred+ vendors on the market today - as meeting “Preliminary ARRA” requirements (“Preliminary ARRA” certification was given to EHR products that were tested against and met the published certification criteria and standards in the HHS Interim Final Rule of January 13, 2010).
4. Registration for the EHR Incentive Programs does not begin until January, 2011.  Providers will not be able to register for an EHR incentive program until January, 2011 and attestation for the Medicare Incentive Program will not begin until April, 2011. Accordingly, while early use of an EHR product may have distinct and undisputable benefit to any health care practice, in terms of the incentive programs there is no immediate need to commit to any one product until data on certified EHR technology is available.
5.  Multiple demonstrations and training are critical to making an informed decision. Providers are encouraged to begin conducting their search for an EHR product early on and to audit as many products as possible.  Moreover, once a practice has narrowed its EHR search down to a particular product, it is encouraged to participate in multiple demonstrations and to include its key employees (i.e. medical billers and coders, compliance officers, nurses and intake personnel) for individual feedback and criticism. Keep in mind that demonstrations by sales representatives and individual software testing can take a few hours each time so the sooner providers begin researching and testing these EHR products, the easier it will be to make an informed decision when the time to purchase an EHR product comes.

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While it is impossible to pinpoint the exact areas that Recovery Audit Contractors (“RACs") will target when reviewing medical bills sent to Medicare, each regional RAC is required to post its current “issues under review” and disclose to the public the specific codes and/or procedures currently being audited by automated reviews (where no medical record is involved in the review). 

For instance, the “issues under review” identified by Region A - Diversified Collection Services (which audits New York and New Jersey, among other states) are:

•         IV Hydration

•         Bronchoscopy services

•         Blood transfusions

•         Untimed Codes

•         Neulasta: J2505; injection, Pegfilgrastim, 6mg

•         Once In A Lifetime codes

•         Newborn/Pediatric codes (i.e. newborn pediatric codes Billed for patients exceeding age limits)

•         New patient visits

•         Duplicate claims - Part B only

•         Global billing of radiology or diagnostic tests in the facility setting

•         Add-on codes

If your medical practice provides services that are identified as “issues under review,” the first step in any internal review and self-audit is to have the practices medical biller(s) and performing physician(s) review: (a) the applicable local coverage determinations (“LCDs”) and (b) the “issue description” and “issue references” disclosed with the specific “issue under review.” In most cases, the practice can easily correct the “issue” being audited by using an alternate code, submitting claims that are more detailed and/or limiting the services to allowable: beneficiaries, duration, frequency or levels.

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When submitting medical bills to Medicare, it is important to note that for a Medicare claim to be paid (and retained after an audit), certain requirements must be met. For instance,

(1)   There must exist sufficient documentation in the provider’s records to verify that the services were provided to eligible beneficiaries;

(2)   Medicare’s coverage and billing requirements must be met (including that requirement that the services be reasonable and necessary); and

(3)   Services must be provided at the appropriate level of care and must be coded correctly.

These requirements are especially important where providers receive Additional Documentation Requests (“ADR’s”) from Medicare contractors or are subject to an audit. It is important to note that, upon request by a Medicare contractor (including a Recovery Audit Contractor), medical documentation must be submitted within forty-five days of the date of the request. If the provider (a) fails to submit documentation or (b) provides insufficient documentation for the services billed, Medicare takes the position that that there is no justification for the services or level of care billed and will either deny the claim or consider any prior payment an “overpayment” and request that the provider repay the amount previously paid on the claim. Moreover, now that Medicare’s RAC program has been extended to each state, ensuring that your medical practice is compliant with Medicare’s documentation requirements is an absolute necessity.

More importantly, in addition to Medicare and Medicaid, medical practices must be mindful of documentation requirements imposed by their state and federal government.  Accordingly, when evaluating a practice’s medical records and medical documentation, providers are encouraged to conduct internal audits and investigations, and identify corrective actions that promote compliance with all of the administrations and agencies that regulate medical practices.

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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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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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