09/05/2008
As we have discussed in prior blogs, state lawmakers throughout the
country are debating increased restrictions on the pharmaceutical industry’s
ability to promote its pharmaceutical products to physicians. The industry has
voluntarily responded by adopting various rules, including capping the amount of money
that pharmaceutical representatives can spend promoting drugs to healthcare providers.
Pharmaceutical industry analysts have noted that the industry
has been focusing increased
efforts on direct-to-consumer advertisements.
In fact, this trend has caused increased scrutiny from the United States Congress.
Some members of Congress have even introduced legislation banning all direct-to-consumer
advertising during the first three years following drug approval.
Lawmakers are not the only ones scrutinizing direct-to-consumer ads.
A recent study examined the effectiveness of this advertising and concluded
that the billions of dollars being spent on such advertising may be having
very little impact upon consumers.
To listen to a recent report regarding this research that was recently reported
on NPR’s Marketplace®, please click the radio to the right.
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Labels :
Pharma,
Ethics
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09/04/2008
New Jersey patients and providers recently enjoyed a victory in their long-running tug-of-war with payers concerning the reasonableness of out-of-network reimbursements.
Last Tuesday, the New Jersey Department of Banking and Insurance ("DOBI") announced that Healthnet of New Jersey has agreed to pay $41 million to settle charges that it systematically underpaid out-of-network providers between 1996 and 2005. This payment consisted of $26 million in restitution and interest and a fine of $13 million.
In summarizing the Healthnet settlement, Commissioner Goldman of the DOBI explained: "Health Net dramatically underpaid claims to New Jerseyans to reimburse them for out-of-network health care services… I'm pleased that we were able to obtain the return of this money to Health Net’s New Jersey members, together with interest… The fine represents an appropriate penalty for this improper business practice."
While the Healthnet matter has been resolved, many patients and providers continue to be perplexed by their rights relative to out-of-network encounters. Therefore, in upcoming blogs, we will be focusing on the issue of out-of-network reimbursement, with a focus on the nature of “usual, customary and reasonable” and recent litigation regarding out-of-network payments.
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Labels :
New Jersey,
Reimbursement,
Reasonable and Customary,
Out-of-Network
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09/03/2008
Under a bill recently approved by the Assembly and expected to be signed into law,
California Healthcare providers could soon be subject to hefty fines and costly civil
litigation if they fail to adopt and implement “appropriate administrative, technical, and
physical safeguards to protect the privacy of a patient’s medical information.”
While A.B. 211 appears to mirror HIPAA’s requirements regarding “administrative, technical, and physical
safeguards,” unlike HIPAA, it puts real 'teeth' in its privacy requirements. For instance, A.B. 211 creates
a private cause of action, which means that patients are able to file suit under the law if a provider
negligently releases his or her records to a third party. Moreover, a patient need not demonstrate any
loss whatsoever to recover nominal damages of $1,000.
A.B. 211 also characterizes violations of the law as misdemeanors and imposes fines of as
much as $2,500 to $250,000. It further turns local county and city attorneys into 'bounty
hunters' by allowing their county or city treasurer (as the case may be) to retain 50% of any
fines that result from actions brought by them against providers under A.B. 211.
Pursuant to the bill, the extent of any administrative fines or civil awards must be informed by
the following factors:
- Whether the defendant has made a reasonable, good faith attempt to comply with this part.
- The nature and seriousness of the misconduct.
- The harm to the patient, enrollee, or subscriber.
- The number of violations.
- The persistence of the misconduct.
- The length of time over which the misconduct occurred.
- The willfulness of the defendant’s misconduct.
- The defendant’s assets, liabilities, and net worth.
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Labels :
California,
HIPAA,
Privacy,
Healthcare IT,
Data security ,
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09/02/2008
Under a new North Carolina regulation, details regarding North Carolina medical
malpractice settlements will soon be posted online for patients to view.
Confidential out-of-court settlements have long been the option of choice for
medical malpractice defendants in North Carolina and elsewhere. However, if the
North Carolina Board of Medical Examiners gets its way, North Carolina providers
will be required to provide details regarding every medical malpractice settlement
pursuant to which the provider or his or her insurance carrier paid the plaintiff $25,000 or more.
Likewise, information must be provided regarding litigation that results in the entry of a monetary judgment.
These details will then be posted on the Medical Examiner’s website so that the data can be reviewed
by patients and other members of the public.
Under the new law, the following information must be provided regarding all settlements
dating back to October 1, 2007, regardless of whether or not the parties’ settlement
agreement contained a confidentiality provision:
- The date the judgment or settlement was paid.
- The specialty in which the doctor was practicing at the time the incident occurred that resulted in the judgment or settlement.
- The total amount of the judgment or settlement in United States dollars.
- The city, state, and country in which the judgment or settlement occurred.
- The date of the occurrence of the events leading to the judgment or settlement.
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North Carolina,
Med Mal,
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Ethics,
Quality of Care
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08/29/2008
Regular readers of this blog will recall our recent discussion concerning the new ‘carrot’ of a 2% bonus that is being offered to electronic prescribers by the Centers for Medicare and Medicaid Services (“CMS”). Perhaps you will also recall our blog regarding the Drug Enforcement Agency’s (“DEA”) efforts to make E-prescribing more attractive by eliminating the existing prohibition against using E-prescribing for certain controlled substances.
While government agencies have been focusing on ‘carrots’, at least one group, the Pharmaceutical Care Management Association (“PCMA”), is using fear in its worthy effort to encourage providers to adopt E-prescribing technology. In advertisements like the one to the right, the PCMA is reminding legislators and the healthcare community that, as Time Magazine explained, “doctors' sloppy handwriting kills more than 7,000 people annually.” Press the play button to the right to view one of the PCMA’s pro-E-prescribing ads.
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Labels :
E-Prescribing,
Healthcare IT, CMS,
DEA,
Quality of Care,
Med Mal
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08/28/2008
Yesterday’s blog discussed the background of HHS’ proposed rule, which would penalize institutions that discriminate against providers who refuse to refer patients to abortion providers. As promised, today we’ll focus on the details of the proposed rule, which is entitled “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law.”
In relevant part, the proposed rule would:
- Condition HHS funding upon the recipient’s certification that it complies with the 42 U.S.C. § 300a-7 (“Church Amendments”), 42 U.S.C. § 238n (“Public Health Service Act”) and Pub. L. No. 110-161, Div. G, § 508(d), 121 Stat. 1844, 2209 (“Weldon Act”), each of which, in a slightly different way, supports provider conscience rights (collectively “Conscience Laws”)
- Direct that all complaints of discrimination be made to the HHS Office for Civil Rights; and
- Require HHS to assist private entities, state governments and local governments that are in violation of existing Conscience Laws and the proposed regulation to make necessary changes to achieve full compliance.
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Labels :
Ethics,
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OB/GYN
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08/25/2008
In a controversial move, last Thursday, HHS proposed regulations that would prevent healthcare providers from being compelled to refer patients to abortion providers if doing so would violate the provider’s conscience. Before diving into the proposed rule, let’s quickly consider the history of this issue.
ACOG Opinion
On November 7, 2007, the American College of Obstetricians and Gynecologists (ACOG) Ethics Committee issued
Opinion Number 385, which is entitled “The Limits of Conscience Refusal in Reproductive Medicine.” The Opinion provided that those who failed to refer patients to abortion providers risked losing their Board certification even if providing such a referral would violate the provider’s conscience.
The Opinion, in relevant part, stated: “Physicians and other healthcare professionals have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that their patients request.” In addition, the Opinion provided that every provider had an obligation to perform an abortion in an “emergency” if failing to perform the same “might negatively affect a patient’s physical or mental health.”
HHS Response
In a letter to the ACOG dated March 14, 2008, Health and Human Services Secretary Michael Leavitt reminded the ACOG that federal law protects providers who exercise their conscience rights and he urged the ACOG to confirm that it would not use Opinion 385 as a basis for revoking (or refusing to grant) Board certifications. In relevant part, his letter provided as follows.
“As you know, Congress has protected the rights of physicians and other health care professionals by passing two non-discrimination laws and annually renewing an appropriations rider that protect the rights, including conscience rights, of health care professionals in programs or facilities conducted or supported by federal funds. (See 42 U.S.C. § 238n, 42 U.S.C. § 300a-7, and the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844, § 508)…
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Ethics,
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OB/GYN
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08/20/2008
Notwithstanding years of litigation and multi-million dollar settlements, many healthcare providers continue to experience inappropriate evaluation and management service (“E/M”) denials. Earlier today, I spoke with a provider who had a well-founded complaint regarding his denials, so I want to take a minute to quickly review the basics.
E/M is a visit or consultation provided by a healthcare provider. Each E/M can be identified by a unique Current Procedural Terminology (“CPT”) code such as 99203, which identifies an outpatient visit with a new patient presenting with symptoms that are of moderate severity.
As a general rule, payers will not provide separate reimbursement for E/M services that are directly related to and necessary for your performance of the procedure on the same day as the E/M for which you are obtaining reimbursement. Nevertheless, as described below by Medicare, E/M is reimbursable in certain scenarios if modifier 25 is properly utilized. Specifically, Medicare explains:
Modifier 25 is used to facilitate billing of evaluation and management services on the day of a procedure for which separate payment may be made. It is used to report a significant, separately identifiable evaluation and management service performed by the same physician on the day of a procedure. The physician may need to indicate that on the day a procedure or service that is identified with a CPT code was performed, the patient’s condition required a significant, separately identifiable evaluation and management service above and beyond the usual preoperative and postoperative care associated with the procedure or service that was performed.
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Labels :
Reimbursement,
Coding, CMS,
Medicare/Medicaid
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08/14/2008
Uninsured New Jersey patients will soon be seeing lower hospital charges.
Earlier this week, New Jersey’s governor signed into law Assembly Bill 2609, which caps the fees that hospitals can charge uninsured patients. According to the New Jersey Commission on Rationalizing Health Care Resources, the constraints contained in this new law will cause a decrease in the hospital bills of most uninsured patients.
While the New Jersey Department of Health and Senior Services still must develop the specific monetary caps, we know the following:
The law only protects uninsured patients whose gross family incomes are equal to or less than 500% of the federal poverty level.
- Department of Health and Senior Services will develop a sliding scale maximum fee schedule that will be based on the patient’s gross family income.
- The maximum hospital fees for protected, uninsured patients will be 115% or less of the respective Medicare fee schedule charges.
- The fee caps will be established for both in-patient and out-patient services.
As a point of reference, 500% of the federal income poverty level is presently about $70,000 for a married couple (no dependent children). The amount for a married couple with two dependent children is approximately $106,000. Therefore, most New Jersey residents would be protected by these caps.
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Uninsured,
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08/08/2008
As we discussed earlier this year, Medicare has created an ever expanding list of hospital-acquired conditions for which it no longer provides reimbursement. This list includes conditions such as pressure ulcers, hospital falls, certain catheter-associated infections, air embolism as a result of surgery, leaving an object in d
uring surgery, providing incompatible blood or blood products and mediastinitis following coronary bypass surgery. Further, Medicare has just expanded this list to include the following (which marks a retreat from its initial, overly ambitious proposal):
- Surgical site infections following certain elective procedures, including certain orthopedic surgeries, and bariatric surgery for obesity.
- Certain manifestations of poor control of blood sugar levels.
- Each e-prescriber may only use approved e-prescribing technology and systems.
- Deep vein thrombosis or pulmonary embolism following total knee replacement and hip replacement procedures.
As is often the case, as Medicare goes, so go the commercial payers. As the Chicago Tribune reported yesterday, “if a hospital commits a serious error—such as leaving a sponge in a patient's chest after open-heart surgery or causing a prolonged illness by mixing up a patient's medication—Blue Cross and Blue Shield of Illinois says it will no longer pay the claim.” While Blue Cross and Blue Shield of Illinois has not released a detailed list of the never events, it is likely a shorter and less controversial list than Medicare’s list and is believed to only include indisputable ‘never events’ such as leaving a sponge in a patient during surgery.
While Blue Cross and Blue Shield of Illinois is the largest commercial payer to follow Medicare, it certainly will not be last. In fact, it is estimated that payers in more than two dozen states are actively considering similar proposals.
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Labels:
BCBS,
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Medicare/Medicaid,
Illinois
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08/07/2008
Physician societies, patient groups and federal and state agencies are rarely on the same page; so, on an occasion where they unanimously and enthusiastically support 
a common objective, things must move quickly, right? Not quite.
For about a decade, electronic prescribing (also known as “e-prescribing”) has been praised for its promises of reducing deaths and injuries associated with illegible handwritten prescriptions, enhancing efficiency, reducing costs and minimizing the possibility of fraud. Nevertheless, despite many initiatives to promote e-prescribing, a distinct minority of physicians actively use the technology.
One of the primary reasons for the healthcare community’s slow adoption of e-prescribing relates to certain Drug Enforcement Agency (“DEA”) restrictions. Specifically, healthcare providers who have adopted e-prescribing have been forced to continue using paper prescription pads for controlled substances (which account for approximately one-quarter of all prescriptions) in view of DEA regulations preventing the use of e-prescribing for Methylphenidate (Ritalin), Oxycodone, and the like. This is about to change.
DEA’s new proposed rule would permit doctors to electronically prescribe certain controlled substances that had, up to this point in time, been off limits for e-prescribers. Under the proposed rules, a healthcare provider would have to satisfy the following to qualify as an e-prescriber of controlled substances:
- Each provider must be properly registered (or exempt) to dispense controlled substances.
- He or she must appear in-person before a licensing board (or other designated entity) to provide identification and proof of his or her right to prescribe controlled substances.
- Each e-prescriber may only use approved e-prescribing technology and systems.
- Two-factor authentication (e.g., password and biometric device, electronic key, etc.) must be used for e-prescribing and the e-prescribing provider has an obligation to review his or her e-prescibing logs on a monthly basis, immediately report potential breaches, and take other security precautions.
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Healthcare IT,
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DEA
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07/30/2008
According to news accounts, Blue Cross Blue Shield of Georgia (“BCBS of
Georgia”) recently sent more than 200,000 benefits letters (e.g., EOBs) to
incorrect recipients, causing widespread concern among BCBS of Georgia’s
patients and forcing the insurer to quickly rollout a mitigation plan.
The Atlanta Journal-Constitution reports that most of the erroneous mailings were EOBs. It further states, quoting BCBS of Georgia’s spokesperson, that a “small percentage" of letters also contained the patients’ Social Security numbers. The Atlanta Journal-Constitution further indicates that “Blue Cross said the mix-up was caused by a change in the computer system that was not properly tested.”
As most providers know, an EOB (or “explanation of benefits”) is a document, which is prepared by a health insurer and forwarded to the respective provider and patient. An EOB results from a healthcare claim adjudication and the patient’s EOB typically contains various details including:
-
Patient’s full name and address;
-
All healthcare services provided by the healthcare provider to the patient during the particular visit;
-
Certain information regarding patient’s diagnosis; and
-
Insurance reimbursement details.
.
BCBS of Georgia is certainly not alone in its inadvertent disclosure of confidential patient information. Faithful readers of this blog may recall our discussion of BCBS of New Jersey’s notification of security breach earlier this year.
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Privacy,
HIPAA,
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07/21/2008
In recent blogs, we focused on Congress’ carrot and stick approach to encourage e-prescribing. As we discussed, providers who implement e-prescribing could receive Medicare bonuses (above and beyond the Medicare fee schedule payments) equal to 2%
of their annual Medicare collections. However, providers who do not implement e-prescribing will eventually see their reimbursements drop below the standard amounts set forth in the Medicare fee schedule.
To qualify for an e-prescribing bonus, the following requirements must be met:
- A provider must submit a “sufficient number” of prescriptions (aggregate of
electronic and paper) under Part D. Unfortunately, “sufficient number” has not
yet been defined, but it will be clarified by the Secretary.
- A “sufficient number” of the “sufficient number” of aggregate Part D
prescriptions must be submitted electronically (wow, only the government, or a
lawyer, could make it this convoluted!). Again, “sufficient number” has not yet
been defined, but it will be clarified at a later date.
- The provider must use e-prescribing technology that meets the minimum technical
requirements.
- If there are any PQRI measures that directly relate to e-prescribing, the
provider must...”
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CMS,
E-Prescribing,
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Medicare/Medicaid,
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07/14/2008
While we have seen many news stories regarding H.R. 6331’s rollback of the scheduled 10.6% Medicare reimbursement cuts, there has been virtually no coverage regarding the bill’s groundbreaking provisions calling for Medicare bonuses for providers who adopt and regularly utilize electronic prescribing. Therefore, let’s take a few minutes to discuss some of the basics.
H.R. 6331 employs a carrot and stick approach to promoting e-prescribing. The planned bonuses for e-prescribers and penalties for providers who do not use e-prescribing are as follows:
2009 - Bonus: Medicare Fee Schedule Reimbursement PLUS 2 %
2010 - Bonus: Medicare Fee Schedule Reimbursement PLUS 2 %
2011 - Bonus: Medicare Fee Schedule Reimbursement PLUS 1 %
2012 - Bonus: Medicare Fee Schedule Reimbursement PLUS 1 %
2012 - Penalty: Medicare Fee Schedule Reimbursement MINUS 1 %
2013 - Bonus: Medicare Fee Schedule Reimbursement PLUS 0.5 %
2013 - Penalty: Medicare Fee Schedule Reimbursement MINUS 1.5 %
2014 - Penalty: Medicare Fee Schedule Reimbursement MINUS 2 %
(Every year following 2014- Medicare Fee Schedule Reimbursement MINUS 2 %)
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Labels:
CMS,
E-Prescribing,
Healthcare IT,
Medicare/Medicaid,
Reimbursement
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07/10/2008
By a veto-proof, bipartisan majority, Congress has just passed H.R. 6331, which will rollback the 10.6% Medicare reimbursement cuts that were scheduled to become effective today and provide an incentive to physicians who adopt and utilize electronic prescribing technology.
Background regarding the Scheduled Cuts
The Centers for Medicare & Medicaid Services (“CMS”) final 2008 Medicare physician fee schedule included average scheduled cuts in excess of 10%. These perennial reimbursements cuts – which re-emerge each fiscal year - are driven by a complex reimbursement formula created by Congress in 1997 that is aimed at restraining the rate of growth of Medicare expenditures.
During the final months of 2007, Congress failed to find enough votes to rollback the 2008 cuts for the entire year, but did pass a six month moratorium on the cuts. That six month moratorium was over on July 1, 2008, but was extended for 10 additional days by the President. H.R. 6331 appears to end the deadlock over the Medicare cuts since it garnered enough votes to ensure an override of the President’s anticipated veto.
Nuts and Bolts of H.R. 6331
While H.R. 6331 addresses many issues, these are the things that are most critical to healthcare providers:
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Labels:
CMS,
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07/01/2008
During the last twelve months, we’ve seen significant developments in health law. At today’s opening session of the annual meeting of the American Health Lawyers Association, we took stock of many of these developments, which include the following:
Medicare Cuts Saga Continues to Unfold. On June 30th, we witnessed the latest chapter in the Medicare cuts saga, as President Bush issued a 10-day stay of the impending 10% reimbursement cuts. This move temporarily forestalls the reimbursement cuts until Congress returns from its July 4th holiday with a 3-day window to reach a compromise. For more information on these cuts, please see my earlier blogs.
NPI “Simplifies” Claim Submission, Causing Widespread Confusion throughout the Provider Community. After multiple delays, the NPI mandate finally took effect last month. Remarkably, the average Medicare claim rejection rate skyrocketed from approximately 5% to 25%, due to the NPI mandate. (I am proud to report that MTBC’s clients have not experienced any increase in rejection rates as a result of its comprehensive, proactive NPI plan.)
The Feds Get Serious about HIPAA. Following a decade of virtually no
criminal HIPAA prosecutions, during the past year, we’ve seen three felony
prosecutions. In U.S. v. Jackson,
a hospital employee was indicted for selling Farrah Fawcett’s PHI to a tabloid.
The defendant-nurse in U.S. v. Smith,
pled guilty to unlawfully disclosing a patient’s PHI to her husband for use in a
litigation matter. Finally, in U.S. v.
Howell, an employee was indicted under HIPAA for disclosing PHI to a
third party as part of an identity theft scheme.
Physician Report Cards Get an “F.”As we recently discussed, we’ve witnessed a great deal of controversy regarding certain payers’ physician “report cards.” In New York, Attorney General Andrew Cuomo threatened to sue certain payers, alleging that their physician “report cards” did not (as the payers argued) measure quality, but instead were rigged to give high marks to those physicians who saved the payers’ money. This controversy resulted in a transparent, multi-tiered rating system that places a greater emphasis on quality - not simply cost – and is serving as a template for other payers.
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Labels:
Medicare/Medicaid,
CMS,
Stark I/II,
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Quality of Care,
NPI,
Reimbursement
comments (0)
06/20/2008
Increasingly, payers throughout the country have been issuing “report cards” on
participating physicians. While payers argue that these report
cards provide valuable information to “consumers” (i.e., patients), physician groups
have loudly opposed these report cards asserting that the grades are based on faulty
assumptions and are presented in a misleading manner. This frustration regarding
the report cards has resulted in litigation in multiple states brought by individual
physicians, physician groups and state regulators.
Finally, physicians are fighting
back. Earlier this week, the American Medical Association released its 2008 National Health Insurer Report Card
The AMA’s Report Card provides information regarding key metrics including:
- Timeliness of adjudication and reimbursement
- Accuracy of payment
- Transparency of payers on payer websites and ERAs
- Denial details
A quick review of the results reveals some interesting details. For instance, the
AMA Report Card indicates that CIGNA provides incorrect reimbursement (i.e., the
payer’s allowed amount does not equal the contracted payment rate) for almost 33%
of the claims it processes. According to the AMA, UHC’s performance was worse, failing
to adhere to the contracted payment rate in 38% of the analyzed claims. However,
there is good news for physicians who participate with Medicare: Medicare leads
the pack in compliance, with a “contracted payment rate adherence percentage” of
98.12%. The AMA Report Card is an important step forward for physicians. Nevertheless,
it is important to remember that the conclusions reached in the report are based
upon a limited subset of claims data.
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Labels:
Reimbursement,
Medicare/Medicaid,
AMA
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06/11/2008
Your primary care practice could earn up to $290,000, over a five year period, if you adopt and actively use an EMR in coordination with the new Medicare Demonstration Project, which is designed to measure and showcase the quality care improvements that can result from the widespread use of interoperable EMRs/EHRs.
Since this program has generated significant interest, let’s take some time and
review the basics. In today’s blog, we’ll talk about which EMR users are eligible
to participate.
Location
As CMS announced yesterday, to participate, you must practice in one of the
following areas:
• Alabama
• Delaware• Jacksonville, FL (multi-county)
• Georgia
• Maine
• Louisiana
• Maryland/Washington, DC
• Oklahoma
• Pittsburgh, PA (multi-county)
• South Dakota (multi-state)
• Virginia
• Madison, WI (multi-county)
Specialty
To participate, you must be a primary care physician. For purposes of this program,
CMS has defined “primary
care” as being limited – with some exceptions
– to family/general practice, internal medicine or geriatrics. Sorry OB/GYN and
pediatric practices: For purposes of this program, CMS does not consider your providers
to be offering “primary care” services.
Size
Only small to medium sized practices may participate. If your practice employs 21
or more physicians, you are, unfortunately, out of luck.
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Labels:
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Healthcare IT,
Pennsylvania,/a>
Maryland,
Florida,
Georgia ,
Maine ,
Virginia
comments (0)
06/07/2008
Medicare reimbursements for healthcare providers will be cut by an average of 10.6% on July 1st and Congress may not be capable of rolling back these planned reductions in time to beat the deadline.
As many physicians recall, the Centers for Medicare & Medicaid Services (“
CMS”) final 2008 Medicare physician fee schedule included average
cuts in excess of 10%. The scheduled 2008 cuts, followed by Congress’ frenzy to
agree upon a restoration of the cuts, was the latest episode in an annual tradition
that has been occurring for many years.
In the waning months of 2007, Congress failed to obtain sufficient votes to rollback
the 2008 cuts for the entire year, but did pass a six month reduction moratorium.
That six month moratorium will be over in three weeks and Congress has yet to agree
upon one legislative blueprint for restoring the cuts. Therefore, unless Congress
acts, and acts very quickly, the largest reimbursement cuts in history will take
effect.
Washington insiders have expressed skepticism that Congress will be able to restore
the cuts before July 1st. Instead, the best hope lies in a retroactive rollback
of the cuts and there is some precedent for such an ex post facto rollback.
Congress has missed the deadline on at least two prior occasions. In 2003, a cut
set-in before Congress could come to a compromise in March, which ultimately restored
cuts and increased reimbursements for the remainder of the year, without directly
restoring providers’ lost revenues from January and February.
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CMS,
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05/28/2008
In its recent Open Letter to Providers
(“Letter”), the Department of Health and Human Services Office of the Inspector General (“OIG”) further refined and streamlined its Provider Self-Disclosure Protocol (“SDP”).
SDP Overview
OIG created SDP in 1998
to encourage providers to voluntarily disclose Medicare billing fraud and abuse.
It provides such encouragement by creating a framework for reporting fraud and abuse,
coupled with reduced penalties for reporting providers, i.e., typically resolving
self-disclosures at a multiple of the amount of the benefit conferred, as opposed
to a multiple of per-claim statutory amounts. OIG considers SDP a great success
and credits it with returning more than $120 Million to the Medicare Trust Fund.
SDP is not an appropriate vehicle for resolving routine billing mistakes or overpayments.
These sorts of issues should be addressed to the appropriate Medicare contractor.
However, SDP is appropriate for disclosing unlawful billing practices (e.g., Stark
violations) that are so significant that the provider credibly risks exclusion from
Medicare/Medicaid or monetary penalties under controlling law. Providers who voluntarily disclose billing practices through OIG’s SDP have the
ability to avoid certain penalties so long as they fully disclose all details, provide
appropriate reimbursement to the respective Federal program and cooperate with OIG
in ensuring that any necessary remedial steps are taken to avoid future errors.
New Changes
A provider’s initial submission must contain the following:
• Complete description of the conduct being disclosed;
• Description of the provider’s internal investigation (or commitment as to when the same will be completed);
• An estimate of the damages to the respective Federal healthcare program, together with a description of how the amount was calculated (or commitment as to when the same will be provided); and
•Identification of the law(s) potentially violated by the conduct.
•In addition to these changes regarding initial submissions, OIG has modified its default position regarding the requirement of a Corporate Integrity Agreement (“CIA”) or Certification of Compliance Agreement (“CCA”) in the event of a disclosure. In the past, it was commonplace for OIG to require a CIA or CCA with providers who participated in SDP; however, OIG has now indicated that it will be predisposed not to require a CIA or CCA.
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05/21/2008
As July approaches, the healthcare community is once again bracing itself for significant, scheduled Medicare reimbursement cuts. Those who have been following the news or reading this blog for more than one year will agree with Yogi Berra that “it’s like
déjà
Unless congress
is able to intervene, Medicare physician reimbursements will be reduced by 10.6
percent on July 1st. Thereafter, reimbursements will be slashed another 5
percent as of January 1, 2009.
Save Medicare Act of 2008 (#S. 2785)represents one of the many bipartisan efforts to stop (or
at least stall) the impending reimbursement cuts. The bill would not only replace the scheduled cuts, but would increase existing
reimbursement levels by 1.8% in 2009. Moreover, the bill would extend the
present Physician Quality Reporting Initiative (sometimes referred to as PQRI),
with its associated bonuses, through 2010.
We’ll continue to follow the progress of the Save Medicare
Act of 2008 and other similar efforts.
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Reimbursement,
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PQRI,
CMS
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05/16/2008
The Florida House of Representatives’ Healthcare Council recently voted unanimously
to recommend the approval of landmark legislation that would require healthcare
providers to provide each uninsured patient with a good faith estimate of charges
for non-emergency treatment. The “Health Care Consumer’s Right to Information
Act”, if adopted, would impose a monetary fine upon any healthcare facility
or provider that fails to provide a good faith estimate.
The House of Representative’s staff analysis explains that the bill would “amend
the current rights of patients… by requiring all non-state healthcare providers
and facilities to provide to each uninsured person, prior to the provision of planned,
non-emergency services, a reasonable estimate of charges for such services and information
regarding the provider’s or facility’s charity care policies for which the uninsured
person may be eligible.”
In
particular, the bill would require the following with respect to such healthcare
encounter estimates:
• Upon request, a private licensed facility or provider must provide, an
uninsured patient seeking planned, non-emergency care, with a written good faith
estimate of anticipated healthcare charges.
• Estimates must be reasonable and provided in good faith.
• Estimates must be written in a language that is comprehensible to an ordinary
layperson.
• Estimates must be provided within 7 business days of the date upon which an uninsured
patient explains that he is uninsured and requests an estimate.
• Estimates may be based upon the average charges for the relevant diagnosis-related
group or the average charges for the relevant procedure.
• Nothing in the bill precludes a provider or facility from charging a higher amount
than the estimate, so long as the estimate was reasonable and provided in good faith.
• A provider’s or facility’s failure to render a timely estimate may result in a
fine of $500 for each instance in which a provider or facility, as the case may
be, fails to provide a timely estimate.
|more...|
Labels:
Florida,
Uninsured,
Reimbursement,
Patient Billing
comments (0)
04/17/2008
My August 13, 2007 blog discussed CMS’ then-groundbreaking move to deny reimbursement
for seven hospital-acquired conditions including pressure ulcers, hospital falls,
certain catheter-associated infections, air embolism as a result of surgery, leaving
an object in during surgery, providing incompatible blood or blood products and
mediastinitis following coronary bypass surgery. CMS has now
announced
that it proposes expanding the list to include the following nine conditions:
-
Surgical site infections following certain elective procedures
- Legionnaires’ disease
- Extreme blood sugar derangement
- Lung collapse (Iatrogenic pneumothorax)
- Delirium
- Ventilator-associated pneumonia
- Formation/movement of a blood clot (Deep vein thrombosis/Pulmonary
Embolism)
- Bloodstream infection (Staphylococcus aureus septicemia
)
- Bacterial infection that causes severe diarrhea and serious
intestinal conditions such as colitis (Clostridium difficile associated disease)
CMS has explained that the underlying rationale for denying reimbursement is “to
strengthen the tie between the quality of care provided to Medicare beneficiaries
and payment for the services provided when they are in the hospital.” This
goal is consistent with - and, in fact, mandated by - the Deficit Reduction Act
of 2005 (Pub. L. 109-171), which requires the Secretary to identify certain high
cost and/or high volume preventable conditions that result from inadequate hospital
care and are identifiable by unique ICD-9-CM codes.
|more...|
Labels:
CMS,
Coding,
Reimbursement,
Medicare/Medicaid,
Quality of Care
comments (2)
04/04/2008
As I explained in my April 1st blog, California regulators have proposed new rules that would allow payers to continue to underpay non-participating providers, while penalizing the providers who seek customary and reasonable reimbursement. The proposed rules are now open for public comment and we have supplied the following comments to California’s regulators:
“The underlying objective (“to protect enrollees from unfair billing in specified
circumstances arising from the delivery of emergency services”) of the Department
of Managed Care (“Department”) in proposing the addition of section 1300.71.39 to
title 28 of the California Code of Regulations is laudable and important. See Initial
Statement of Reasons – Definition of Unfair Billing Practices, 2008-1536, page 2
(“Statement”). Clearly, “California patients who have purchased the financial protections
of health insurance must be assured that they will not be billed for services which
are the financial obligation of their health plan” See Statement at 3. However,
it is respectfully submitted that the most equitable and effective manner in which
to realize the Department’s objective is to ensure that health care payers provide
“reasonable and customary” reimbursements to providers, rather than penalizing the
providers who are themselves victims of the payers’ unlawful tactics.
California’s current regulatory scheme does not adequately define “reasonable and
customary” reimbursement. Of equal (or greater) importance, the present framework
for resolving disputes is inadequate and denies providers the ability to obtain
the “reasonable and customary” reimbursement they are entitled to receive under
California law. As Governor Schwarzenegger correctly indicated in Executive Order
No. S-13-06, there is a need to develop a “fair, fast, and inexpensive Independent
Dispute Resolution Process to… ensure that non-contracted providers who deliver
critical services without regard to a patient’s financial ability to pay are paid
the reasonable and customary value for their services.” Today’s process is no more
“fair,” “fast” or “inexpensive” than it was when Governor Schwarzenegger issued
his executive order in 2006.
The New Jersey Department of Banking and Insurance (“the NJDOBI”) recently grappled
with issues and regulations similar to those being addressed in the present matter.
See NJDOBI A07-59. However, the NJDOBI focused on the payer’s culpability in refusing
to provide “reasonable and customary” reimbursement. The NJDOBI recognized that
both patients and providers are victimized when a payer refuses to provide appropriate
reimbursement and thus chose to penalize the payer, not the providers who are co-victims.
|more...|
Labels:
California,
New Jersey,
Reimbursement,
Patient Billing,
Reasonable & Customary
comments (0)
04/01/2008
Earlier this week, California Governor Arnold Schwarzenegger's administration followed
the lead of a handful of other states by moving to ban certain balance billing practices.
This latest lost hardware debacle is instructive for New Jersey health care providers
and payers. Likewise, since most states have laws similar to New Jersey's data breach
law, providers and payers in other states can also learn a great deal from this
episode.
There is a great deal of confusion regarding the term “balance billing,” so we will
start by defining the term. “Balance billing” is the practice of billing a patient
an amount equal to the difference between the provider’s full charge and the sum
of the reimbursement actually received from a payer, together with any standard
co-payment, deductible or co-insurance. While laws vary from state to state, most
states - and Medicare and Medicaid - prohibit participating providers from balance
billing patients relative to covered services; however, many states permit non-participating
providers to balance bill patients.
California’s proposed regulation is narrowly focused on the balance billing activities
of hospitals and hospital-based physicians. As proposed, the regulation would prohibit
hospitals and hospital-based physicians from billing patients for the difference
between the insurance reimbursement received (including the patient cost-sharing
amount) and the charge amount. California justifies its limited focus on hospital
encounters by explaining that the majority of balance billing occurs in the hospital
emergency room setting.
In one of my prior blogs (August 1, 2007), I discussed New Jersey’s prohibition
on balance billing. Interestingly, New Jersey has viewed balance billing as a problem
created by insurance payers who fail to pay “reasonable and customary” fees; therefore,
New Jersey has targeted the payers when it comes to balance billing. West Virginia
takes the same approach as New Jersey and places the onus on the payers. Other states
- such as Maryland, Rhode Island, Connecticut and Colorado – have attempted to address
balance billing concerns by either providing patient indemnification or distilling
“reasonable and customary” into specified and binding reimbursement amounts.
|more...|
Labels:
Reimbursement,
New Jersey,
California,
Patient Billing,
Reasonable & Customary,
West Virginia
comments (0)
02/08/2008
New Jersey Blue Cross Blue Shield (BCBSNJ) recently made news as word of one lost
employee laptop spread like wildfire through the health care community and press,
adding BCBS to a long list of payers and physicians who have been forced to disclose
the loss of computer hardware containing patients' personal information.
Legal Duty of Disclosure
First, BCBSNJ's plight reminds us of the significant cost associated with losing
unprotected hardware. In accordance with New Jersey law (N.J.S.A. § 56:8-160, et
seq.), BCBSNJ provided written notice to more than 300,000 patients whose personal
information may have been contained on the lost laptop.
Under New Jersey law, BCBSNJ was also required to notify the New Jersey Department
of Law and Public Safety, which has the statutory obligation of referring the matter
for investigation in appropriate situations. Moreover, BCBSNJ had the obligation
of notifying the major credit reporting agencies of the data breach and has also
agreed to incur expenses arising from securing credit monitoring for all affected
patients.
At the end of the day, one lost computer has likely caused BCBSNJ to incur more
than one million dollars in out-of-pocket costs, not to mention the substantial
intangible losses that BCBSNJ will suffer as a result of this very public and embarrassing
episode.
Second, it is noteworthy that BCBSNJ took precautions to protect its data, yet it
may have taken the wrong precautions.
The data on BCBSNJ's lost laptop was apparently password-protected. Moreover, the
program required to access the protected data was timed to expire within days of
its loss. Nevertheless, these safeguards are probably not legally adequate to avoid
the necessity of public disclosure.
The notification obligations under New Jersey law are triggered when a company discovers
that its computerized records containing personal information have actually or likely
been accessed by an unauthorized third party. While there is some ambiguity in the
law, it appears that the loss of a company's computer hardware containing personal
information regarding its clients will almost always trigger the reporting obligations
unless the data is encrypted.
Encryption: The Solution
Data encryption involves the use of an algorithm to convert data into a form that
is unreadable to anyone who lacks a decrypting software key to access the data.
A company can encrypt its clients' personal information easily without impairing
the speed or efficiency of its applications. Also, encryption software is inexpensive;
in fact, there is free, open source encryption software available.
Encryption is the 'silver bullet' under the data breach notification law in New
Jersey and similar laws in many other states. According to IT professionals and
lawmakers, encrypted data is not reasonably accessible even if the hardware on which
it is located is lost. Therefore, a company that loses a laptop containing personal
information does not have an obligation to notify the public if the personal information
is encrypted.
|more...|
Labels:
Data Security,
Privacy,
Healthcare IT,
New Jersey
comments (0)
12/17/2007
A growing chorus of health care industry experts, physicians' groups, politicians
and medical malpractice insurance carriers are urging doctors to adopt new technologies
to reduce the likelihood and costs associated with medical malpractice. Most of
this focus has been on electronic prescribing, medical practice management software
and electronic medical records.
Electronic Prescribing
Sloppily written prescriptions cause more than 7,000 deaths and 1.5 million injuries
each year, according to a report issued last summer by the National Academy of Sciences.
Many of these errors result from difficult to read abbreviations and dosage indications,
imperceptible decimal points or misinterpretations of drug names (e.g., "heparin"
as opposed to "hespan").
Many states have recognized the importance of prescription legibility and have responded
by revising prescription laws. For example, in 2003, Florida lawmakers passed legislation
that explicitly states that every drug prescription "issued by a health care practitioner
licensed by law to prescribe such drug must be legibly printed or typed so as to
be capable of being understood by the pharmacist filling the prescription." See,
Florida Regulation Of Professions And Occupations Code Section 456.42.
In addition to eliminating mistakes caused by sloppiness, electronic prescribing
technology (also known as a computerized physician order entry system or CPOE) typically
includes a menu of medications from the formulary including a range of potential
doses and the standard dose. Likewise, most CPOEs automatically check for drug-drug
interactions and drug-allergy contradictions.
In spite of the legal, professional and commonsense rationales supporting electronic
prescribing, the overwhelming majority of the estimated 3.3 billion prescriptions
written each year are written by hand, rather than electronically; a reality that
is mystifying to many of those in the industry who understand and have adopted electronic
prescription technology.
For a very minimal cost, providers can acquire electronic prescription technology
that simplifies the process of writing prescriptions. In fact, some vendors and
health care partners offer this service at no additional charge and as a value added
service to providers. |more...|
Labels:
E-Prescribing,
EMR/EHR,
Healthcare IT,
Med Mal,
Florida
comments (0)
11/15/2007
The U.S. Citizenship and Immigration Service's (USCIS) Form I-9, which every U.S.
employer must complete in conjunction with the hiring process, has just been revised.
Failure to utilize and properly complete the Form I-9 can result in a fine of $1,000
per infraction; therefore, it is important for every employer to be aware of and
comply with these I-9 changes.
As most Healthcare employers are aware, the Immigration Reform and Control Act requires
every U.S. employer to verify the identity and employment eligibility of each new
employee. In accordance with the administrative regulations arising from this law,
employers are required to complete USCIS Form I-9 with regard to every new employee,
including U.S. citizens.
In order to properly complete the form, an employer must review one or more documents
contained on a list set forth on the Form I-9. The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 requires the USCIS to take steps to reduce
the likelihood of a prospective employee's use of fabricated documents in order
to obtain employment. Therefore, the USCIS has eliminated five documents that it
considers to be particularly vulnerable to fraud and abuse. It has also added one
document.
The items contained below in black continue to remain on the I-9, while those in
red represent removed documents and the document set forth in green font has been
added to the list.
• U.S. Passport (expired or unexpired)
•Unexpired foreign passport, with I-551 stamp
or attached Form I-94 indicating unexpired employment authorization
• Permanent Resident Card (Form I-551)
•Unexpired Temporary Resident Card (Form I-688)
OR Unexpired Employment OR Authorization Card (Form I-688A) OR Unexpired Employment
Authorization Document issued by DHS that contains a photograph (Form I-688B)
• Unexpired Employment
Authorization Document (I-766) - Added
• Unexpired Reentry
Permit (Form I-327) - Removed
• Unexpired Refugee
Travel Document (Form I-571) - Removed
• Alien Registration
Receipt Card with photograph (Form I-151) - Removed
Labels:
Employment,
Immigration
comments (0)
It is increasingly common for physicians to charge their patients a fee for missed
appointments. For example, approximately 31% of MTBC’s clients routinely charge
a missed appointment fee.
Most of these providers charge approximately $25, while
others charge as little as $15 or as much as $100 per missed appointment
1.
Until recently, there has been some
uncertainty regarding whether a provider is permitted to charge a missed appointment
fee to Medicare patients in view of Medicare’s assignment and limiting charge regulations.
However, earlier this week, the Center
for Medicare and Medicaid Services (“CMS”) explained the following:
CMS’s policy is to
allow physicians and suppliers to charge Medicare beneficiaries for missed appointments,
provided that they do not discriminate against Medicare beneficiaries but also charge
non-Medicare patients for missed appointments.
See, CMS Manual System, Pub. 100-04 Medicare Claims Processing, Transmittal 1279
(October 1, 2007).
The missed appointment
charge is not a fee for health care services rendered, but rather, as CMS explains,
it is a “charge for missed business opportunity.”
This is important because providers (whether participating or non-participating)
are only permitted to directly charge Medicare/Medicaid patients specified cost-sharing
amounts for health care services. For
instance, balance billing is not permitted because, in accepting Medicare/Medicaid’s
payment, a provider has agreed not to charge any other amount directly to his or
her patient other than the specified cost-sharing amount.
If the missed appointment charge was classified as a fee for service, a provider
would not be permitted to pass it on directly to the patient; however, since it
is classified as reimbursement for missed business opportunities, it may be charged
to an offending patient.
If you are considering implementing
a missed appointment charge, you should consider the following:
You can
charge a patient for a missed appointment, but this charge is
not reimbursable; therefore, do not waste your time submitting a claim to
Medicare or Medicaid because it will be denied.
2.
You cannot
charge one fee to Medicaid/Medicare patients, while charging a different fee (or
no fee) to self-pay/commercial payer patients.
Such unequal treatment violates the Medicare and Medicaid statutes and regulations.
|more...|
Labels:
Medicare/Medicaid,
Patient Billing,
CMS,
Reimbursement
comments (0)
09/06/2007
In a decision that could have broad implications for physicians and patients alike,
the United States District Court for the District of Columbia has recently ordered
the Centers for Medicaid and Medicare Services ("CMS") to disclose claim information
regarding hundreds of thousands of patient encounters.
The Lawsuit
In March 2006, Consumers' Checkbook, a consumer group based in Washington D.C.,
filed a Freedom of Information Act ("FOIA") request with CMS seeking the disclosure
of information regarding claims submitted to Medicare by providers based in Illinois,
Maryland, Virginia, Washington D.C. and the State of Washington. See Consumers' Checkbook, Centers for the Study of Services
v. United States Department of Health and Human Services, et al. While Consumers'
Checkbook did not request any information regarding the names or identities of particular
patients, it did request information that would identify individual providers and
pinpoint each instance in which the providers performed a particular service or
procedure.
CMS modified its position during the litigation, but it consistently opposed at
least some aspects of the FOIA request. Consumers' Checkbook argued that it was
entitled to the claim and patient care information under FOIA and explained that
it intended to utilize this data to analyze the quality of patient care provided
by the respective Medicare providers. It explained that its analyses and reports
would allow the public to ascertain the following:
- Whether the government is allowing and paying for Medicare physicians with less-than-optimal
levels of experience to perform difficult procedures
- Whether the government is allowing Medicare physicians with insufficient board certifications,
histories of disciplinary actions, or poor scores on independent quality assessments
to perform high volumes of difficult procedures for which they may not be qualified;"
- Whether Medicare physicians are exhibiting practice patterns that conform with existing
guidelines (e.g. whether physicians treating patients with specific diagnoses are
providing annual exams and screenings recommended for those patients).
District Court Judge Emmet G. Sullivan considered the nature of Consumers' Checkbook's
request, Consumers' Checkbook's asserted interests and the exemption arguments raised
by CMS. In view of the controlling case law, the Court ruled in favor of Consumers'
Checkbook, requiring CMS to immediately disclose all requested information.
The Debate
The disclosure of this detailed information will probably be only the first of many
such disclosures concerning the claim submission patterns of Medicare providers.
After this voluminous quantity of information is disclosed, it will be mined, analyzed
and used to create provider profiles and scorecards. Patient groups and commercial
insurance companies (also known as "payers") tout the merits of offering such information
to patients, asserting that it will empower them to make informed health care decisions.
To the contrary, many providers express concerns, arguing that these analyses may
be inaccurate and misleading and involve an unacceptable degree of privacy invasion.
|more...|
Labels:
Data Security,
Healthcare IT,
Privacy,
CMS,
Medicare/Medicaid,
Maryland,
Virginia,
Illinois
comments (0)
08/13/2007
Newly adopted Medicare regulations make it clear that Medicare intends to stop reimbursing
hospitals for expenses associated with "hospital-acquired conditions".
Background
Pursuant to the Deficit Reduction Act of 2005 (Pub. L. 109-171), the Secretary identified
certain high cost and/or volume preventable conditions that result from inadequate
hospital care and are identifiable by unique ICD-9-CM codes. In accordance with
the Congressional mandate, CMS will no longer provide reimbursement for such specified
hospital-acquired conditions. See
42 C.F.R. 411, et seq..
Non-reimbursable Claims
While many conditions were considered, the list was eventually narrowed down to
the following conditions for which Medicare will not provide any reimbursement:
- Pressure ulcers
- Hospital falls
- Certain catheter-associated infections
- Air embolism as a result of surgery
- Leaving an object in during surgery
- Providing incompatible blood or blood products
- Mediastinitis following coronary bypass surgery
It should be noted that existing Medicare regulations prohibit the balance billing
of patients. Therefore, if Medicare denies payment for these hospital-acquired conditions,
a hospital cannot attempt to pass these costs onto its patients.
|more...|