Health Law Attorney Blog

Government Criticizes Healthcare Providers and Insurers for Out-of-Network Payment

Fri, 04 May 2012 13:12:52 -0600

The New York State Department of Financial Services ("Department") recently issued a highly critical report about out-of-network billing practices in New York State. The report stems from the Department's receipt of frequent complaints from patients who unexpectedly receive bills from specialists or other providers who they did not know were out-of-network. The Department indicated that unexpected, and often times, excessive medical bills from out-of-network providers are contributing to the growing problem of consumer medical debt, which continues to be a primary cause of personal bankruptcy.

The Department launched an investigation looking into more than 2,000 complaints it received in 2011 involving payment issues in order to better understand all aspects of the medical bills. A large number of complaints submitted to the Department involved patients who received scheduled, non-emergency medical services for which pre-approval had been obtained from the patient's insurer. In many of these cases, neither the insurer, the doctor, nor the hospital disclosed to the patient that other specialists - some of whom were out-of-network - would also be providing professional services. (Currently, providers are not required to disclose whether they are in-network or out-of-network prior to performing services.)

The Department's investigation of unexpected bills sent to patients by out-of-network providers revealed some large flaws in the way the health insurance market operates, such as:

• Lack of Disclosure for Non-Emergency Care. For scheduled, non-emergency medical services, patients typically do not know many of the specialists who are anticipated to provide treatment, and whether those specialists are
out-of-network, how much those out-of-network specialists reasonably expect to charge, and how much the insurer reasonably expects to cover. This lack of disclosure is a frequent cause of patient complaints.
• Excessive Bills for Emergency Care. In emergency situations, patients do not have the luxury of advance disclosure by out-of-network providers. Additionally, some out-of-network specialists appear to take advantage of the patients at this vulnerable point by charging excessive fees.
• Reduced Insurance Coverage. Some insurers have significantly reduced the level of out-of-network coverage. Employers, unable to keep up with increasing premiums, have chosen to reduce benefits. Patients are often unaware that their policies offer less generous out-of-network coverage.
• Difficulty in Submitting Claims. Submitting out-of-network claims is often confusing and time consuming. Not all insurers allow patients to submit claims electronically and not all out-of-network providers include a claim form with their bill to the patient.

The Department recognized in its report that health plans and healthcare providers will need to reform their current policies and practices. Some of these improvements may include enhanced disclosure, limitations on excessive charges for emergency health care services, and a simplified claim submission process.

The Department concluded its report by noting that even though a patient may have health insurance; this does not necessarily mean that he or she will leave the hospital without a bill. As such, prior to receiving medical treatment, patients should inquire which doctors will be providing professional services on their behalf and whether they are in or out-of-network.

CMS Delays Sunshine Act Data Collection Requirements

Fri, 04 May 2012 12:59:20 -0600

The Centers for Medicare and Medicaid Services ("CMS") has extended the implementation of the Physician Payments Sunshine Act Physician Payments Sunshine Act ("Sunshine Act"), which was promulgated as a result of Section 6002 of the Patient Protection and Affordable Care Act.

CMS will not require manufacturers of drugs, devices, biological, or medical supplies to begin collecting Sunshine Act data on their payments and gifts to physicians and teaching hospitals until January 2013.

In a May 3rd blog post, CMS said that it will issue a final rule later this year, and that it will not require data collection before 2013. CMS's latest delay is likely due to the significant industry-pushback it received, and the more than 300 comments it received during the proposed rule's 60-day comment period.

New CMS Guidance Allows SRDP Analysis to be Limited to Four Years

Wed, 02 May 2012 08:45:22 -0600

In four new recently posted frequently asked questions (FAQs) (select Fraud and Abuse in the left column), the Centers for Medicare & Medicaid Services (CMS) offers new guidance regarding the CMS Voluntary Self-Referral Disclosure Protocol. On September 23, 2010, CMS published the Medicare self-referral disclosure protocol ("SRDP") pursuant to Section 6409(a) of the Patient Protection and Affordable Care Act (ACA). The SRDP sets forth a process to enable providers of services and suppliers to self-disclose actual or potential violations of the physician self-referral statute.

Although the SRDP provides that the financial analysis must cover the entire look-back period, the new FAQs indicate that a disclosing party will satisfy the SRDP by submitting financial analysis setting forth the total amount actually or potentially due and owing for claims improperly submitted and paid within the time frame established for reopening determinations at 42 C.F.R. s 405.980(b) (i.e. four years). However, a disclosing party must still comply with other aspects of the SRDP, which includes specifying the duration of any period of noncompliance with the physician self-referral statute. That requirement remains unchanged by the recently added FAQs and a disclosing party must continue to specify the duration of any period of noncompliance, even if that period exceeds the time period that the party must submit financial analysis for.

The new guidance provided by the recent FAQs is a positive development for providers, as it reduces the burden on a provider who participates in the SRDP process.

Important Deadlines Looming for Healthcare Providers Who Treat Medicare Patients

Fri, 27 Apr 2012 14:01:27 -0600

In this rapidly-changing healthcare environment, providers need to remain cognizant of important deadlines that could affect their bottom lines. Here are several such deadlines under the Medicare program which could significantly impact cash flow.

Saturday, June 30, 2012 - "E-Prescribing" - In order to qualify for an e-prescribing hardship exemption for calendar year 2013, eligible professionals ("EPs") who are not otherwise exempt from Medicare's e-prescribing program must request a hardship exemption on or before June 30, 2012. Without a hardship exemption, all EPs who are not exempt from the program are expected to be e-prescribing. If they are not, then they will be penalized by having their Medicare reimbursement rates reduced by 1.5% for all services rendered by them in 2013.

The final rule provides a number of ways in which EPs who are not otherwise exempt can avoid the e-prescribing penalty that is scheduled to begin on January 1, 2013. Below are the significant hardship exemption categories that an EP can apply for to avoid the penalty:

• His/her practice is located in a rural area without high speed internet access.
• His/her practice is located in an area without sufficient available pharmacies for e-prescribing.
• He/she is unable to electronically prescribe due to local, State or Federal law or regulation (e.g., physicians who mainly prescribe narcotics but because of State law cannot submit these prescriptions electronically can apply for this exemption category).
• He/she prescribed fewer than 100 prescriptions between January 1, 2012 and June 30, 2012.

Sunday, July 1, 2012 - "5010 Implementation" - Recently, the Centers for Medicare & Medicaid Services (CMS) announced that it will delay for 90 days any enforcement action against any HIPAA-covered healthcare provider which has failed to complete its implementation of the Version 5010 format for electronic claims submissions. The "toll" on enforcement actions by the Government will end on July 1, 2012.

During the additional 90 days in which CMS will not initiate enforcement penalties, healthcare providers should collaborate with their trading partners on appropriate strategies to resolve any remaining problems. CMS has identified two steps that providers can take to ensure a smooth upgrade. They are:

1. Establishing a line of credit: To avoid potential cash flow disruptions, providers should consider establishing or increasing a line of credit. By doing so, they can prepare for possible delays and denials in payer claims reimbursements if noncompliant Version 5010 transactions are submitted.

2. Check partner readiness: Because a provider's Version 5010 upgrade can be dependent upon his or her billing vendor, it is important for providers to be aware of their vendor's transition status. If a healthcare provider's vendor is behind schedule for Version 5010 adoption, the healthcare provider should get confirmation of the vendor's timeline to become compliant, and encourage the vendor to take action so that it will be prepared to handle the provider's claims when the enforcement "toll" ends on July 1st.

Monday, October 1, 2012 - "EHR Incentive Program" - In order to qualify for the maximum incentive amount available under the Medicare portion of the Electronic Heath Record ("EHR") incentive program, EPs must start participating no later than October 1, 2012. The incentive program offers up to $44,000 for those EPs participating under the Medicare portion of the program and up to $63,750 for those participating under the Medicaid portion of the program.

Note:

• To qualify for Medicare EHR incentive payments, Medicare EPs must successfully demonstrate meaningful use for each year of participation in the program.

• Incentive payments are made based on the calendar year. The reporting period for the first year is any 90 continuous days during the calendar year. The reporting period for all subsequent years is the entire calendar year.

• EPs who delay and do not qualify for Medicare EHR incentive payments until 2013 can receive up to $39,000 in total incentive payments (i.e., $5,000 less than if they qualified in 2012). Similarly, EPs who delay and do not qualify for Medicare incentive payments until 2014 can receive up to $24,000 in total incentive payments (i.e., $20,000 less than if they qualified in 2012).

Antitrust Lawsuit Against Blue Cross Blue Shield Dismissed

Mon, 23 Apr 2012 07:35:04 -0600

By an order dated March 30, 2012, the United States District Court for the Eastern District of Michigan dismissed an antitrust claim brought by the City of Pontiac against Blue Cross Blue Shield (BCBS), the largest private health insurance provider in Michigan. In the case of City of Pontiac v. Blue Cross Blue Shield of Michigan, the City alleged that BCBS' practice of requiring hospitals to charge higher fees to competitor insurance carriers is anti-competitive and results in higher prices for other insurers, thereby threatening their ability to remain viable. BCBS essentially trades higher payments for services to the hospitals in consideration of their agreement to this provision. This practice, which is known as "most favored nation plus" status, was asserted to be a "violation per se" of antitrust laws, resulting in higher prices for competitors.

To make a determination of whether an arrangement is a "per se" violation, one must first evaluate whether the collaborative arrangement involves agreements--such as jointly agreeing on prices--that are inherently anticompetitive. If so, the arrangement must demonstrate the following to avoid being determined per se unlawful:

1. the arrangement has the potential to yield significant benefits or efficiencies for consumers; and

2. the arrangement's anticompetitive agreements and practices are subordinate to and reasonably necessary to achieve these potential benefits and/or efficiencies.

The court dismissed the City's complaint because it determined that the arrangement was not horizontal in nature (i.e., among the hospital providers themselves who are direct competitors), but rather, was one of a vertical nature (i.e., between the provider and an entity at a different level within the same market; meaning, BCBS as a purchaser of hospital services). Horizontal arrangements are initially evaluated by the "per se" rule. An arrangement that is not "per se" unlawful is instead subject to the "rule of reason" analysis.

The "rule of reason" analysis primarily involves an assessment of whether a collaborative arrangement is likely to have anticompetitive effects--for example, result in prices above competitive levels--and if so, whether these potential effects are outweighed by any procompetitive efficiencies which would justify the collaborative arrangement or agreement. When assessing potential anticompetitive effects, one consideration is whether providers and health plans are capable of raising, and likely to raise, prices in their market above competitive levels. Another consideration is whether a collaborative arrangement is likely to prevent or impede the operation of other health
plans or providers.

In order to survive the motion to dismiss, the City had to allege sufficient facts to justify proceeding on a "rule of reason" claim (because the arrangment was vertical instead of horizontal), but it failed to state factual bases for such allegations since it focused on the "per se" allegations. The complaint was, in short, determined to be inadequate.

The U.S. Department of Justice (DOJ) and the Michigan Attorney General also previously filed an antitrust action on the same matter (United States of America v. Blue Cross Blue Shield of Michigan), which is still proceeding. The parties to the DOJ case initially acknowledged that the "rule of reason" analysis applies.

New Hampshire House Passes Sweeping Rules Regarding Physician Relationships with Medical Device Companies

Wed, 11 Apr 2012 17:49:07 -0600

On March 29, 2012, with veritably no debate and less fan-fare, the New Hampshire House of Representatives recommended for passage HB 1725. HB 1725 is broad-reaching, and would prohibit all medical practitioners from prescribing or referring any FDA class II or class III implantable device in cases where they would gain profit, directly or indirectly from the sale of the device, or from performing any procedure involving the device. HB 1725 is currently being fast-tracked - the New Hampshire Senate Committee on Health and Human Services has scheduled a hearing on HB 1725 on April 19, 2012.

Supporters of the bill assert that it is necessary to protect New Hampshire from the perceived problems associated with physician-owned distributors ("PODs"), which appears to be pre-textual insofar as it is believed that no PODs are currently operating in New Hampshire, though supporters have argued the law is necessary as a preventative measure. As drafted, however, the bill goes significantly further than merely outlawing PODs; HB 1725 would essentially prohibit physicians from continuing to practice in their specialty in New Hampshire if they have legitimately developed medical devices and received payment for the same. Thus, even in the absence of any potential abuse or evidence of over-utilization, those physicians would effectively be barred from practice in the State.

Opponents of the bill argue that it could have significant unintended patient safety implications, as New Hampshire would effectively have outlawed the process by which physicians and legitimate medical device manufacturers continuously develop, promote, test, obtain feedback on, and improve life-saving medical devices. Additionally, HB 1725 could have significant chilling and anti-competitive effects on innovators, small businesses/medical device startup companies, and hospitals that employ physicians who develop intellectual property (such as university hospitals and others who engage in significant research and pay royalties to physicians).

Most of the potentially negative effects of HB 1725 occur because of the breadth of the bill, its lack of exceptions, and the fact that it layers upon a statutory definition in New Hampshire's current "self-referral" law, which currently merely requires disclosure of certain ownership interests to patients (a la the Stark In Office Ancillary Services exception's disclosure requirement for certain imaging services). That statute defines an "ownership interest" broadly as being:

"any and all ownership interest by a health care practitioner or such person's spouse or child, including, but not limited to, any membership, proprietary interest, stock interest, partnership interest, co-ownership in any form, or any profit-sharing arrangement. It shall not include ownership of investment securities purchased by the practitioner on terms available to the general public and which are publicly traded."

HB 1725, as drafted, would prevent a practicing physician (or their spouse/children) from receiving royalties for intellectual property that they have developed and licensed to a medical device manufacturer. Further, an innovative and entrepreneurial physician would be subject to liability if they, or their spouse or children, decided to create or invest in a medical device company for otherwise legal purposes. HB 1725, as drafted, does not distinguish between legitimate physician/medical device company interactions (e.g., bona fide businesses, as opposed to a marketing tool of a device manufacturer, or a sham entity designed to provider remuneration to referring physicians), and creates a near-absolute prohibition on physicians capitalizing on their intellectual property while continuing to practice in their field of specialty.

Opponents of the bill include the New Hampshire Medical Society, which questions the need for the legislation as no PODs currently exist within the state, and is concerned about the effect the law may have on medical innovation and legitimate cost savings vehicles, including ACOs and other payment/purchasing modalities. The Medical Society has further questioned whether the bill is necessary given developments in Federal law, and whether the legislature would be better off amending the bill to include the guidelines adopted by the AMA instead of a wholesale restriction on such activities.

To date, the legislative passage of New Hampshire's HB 1725 has not been widely publicized. The next significant legislative step occurs on April 19, 2012, when New Hampshire Senate Committee on Health and Human Services has scheduled a hearing on HB 1725.

Significant Stark Law Case Overturned by the Fourth Circuit Court of Appeals

Mon, 02 Apr 2012 09:24:01 -0600

In an opinion issued March 30, 2012, the United States Court of Appeals for the Fourth Circuit overturned a $45 million judgment against Tuomey Healthcare System, Inc. ("Tuomey"), a private, nonprofit corporation which owns and operates Tuomey Hospital in Sumter County, South Carolina. A former physician brought a qui tam action against Tuomey alleging that certain contracts entered with physicians violated the Stark Law and that billings resulting from referrals from those physicians constituted false claims under the False Claims Act. The United States government intervened in the action, which proceeded to a jury trial, with the False Claims Act violations and other equitable theories pursued by the government, such as unjust enrichment and payment by mistake.

The jury found that the contracts between Tuomey and the physicians violated the Stark Law, but also found that Tuomey did not violate the False Claims Act. After the jury verdict, the District Court set aside the jury verdict and ordered a new trial on the False Claims Act allegations. Additionally, the District Court found that because the jury had found that the contracts in question violated the Stark Law, the government was entitled to judgment against Tuomey on the equitable claims. The District Court then entered judgment against Tuomey for approximately $45 million plus interest on the equitable claims.

The Fourth Circuit vacated the decision of the District Court to enter judgment against Tuomey on the equitable claims, finding that the Judge's decision to set aside the jury verdict and order a new trial on the False Claims Act allegations precluded his use of the jury's finding of Stark Law violations to enter judgment against Tuomey on the government's equitable claims. The Fourth Circuit found that the manner in which the District Court reached his conclusions violated Tuomey's Seventh Amendment rights. A new trial should take place in the near future.

Going forward, this will be an important case to monitor for further developments as they related to the Stark Law and the physician compensation arrangements.

OIG Views Favorably a Proposal to Operate Website Containing Coupons and Advertising from Health Care Entities

Wed, 28 Mar 2012 15:52:48 -0600

On March 27, 2012, the Office of Inspector General ("OIG") posted a favorable, but narrowly defined, Advisory Opinion (Opinion No. 12-02) pertaining to Requestor's proposal to operate a website that would display coupons and advertising from health care providers, suppliers, and other entities (the "Proposed Arrangement").

Under the Proposed Arrangement, the Requestor, a corporation with a practicing physician member and another non-physician member, would contract with physicians and other health care providers and suppliers (the "Providers"), who wish to post coupons for health care items or services. The coupons could include discounts on items or services that are reimbursable by Federal health care programs, provided that such discounts comply with the applicable Federal health care program rules and regulations. As part of the service, the Requestor would not allow Providers to offer "free service" coupons; only coupons for a reduced price or a percentage discount would be permitted. The Providers would be required to give the same discount to any third party payor or insurance carrier that the Provider offers a patient. The Requestor also certified to the OIG that it would not be in a position to make any referrals to Providers that post coupons on the site. Even though one member of the Requestor was a practicing physician, the physician's name would not appear on the website, he would not post any coupons for his own services on the website, and he would not have any financial interest in the Providers the Requestor would contract with under the Proposed Arrangement. The Requestor would offer five (5) membership levels, one of which is a free "Basic" membership, the rest of which require a monthly fee, which would allow a Provider to create a profile, and if it chooses to do so, post coupons for consumers. The fee for the enhanced memberships would be a monthly flat fee.

The Requestor would also offer advertising on the website. Health care practitioners and entities (the "Advertisers") would be able to purchase space on the site for advertisement, including banner and pop-up advertisements. The Requestor certified that the fees for the coupon and advertising would be set in advance by Requestor, would be consistent with fair market value, and would not take into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made in whole or in part under any Federal health care program.

The potential customers (health care consumers) would pay no fees to access the website and coupons offered thereon. A customer would print a coupon (or download it to a mobile device) and the discount would be applied if the customer receives the service. The customer would not be required to pre-pay to receive the discount. The website would advise patients who submit their own claims of their obligation to report any discounts when submitting a claim.

After evaluating the pertinent facts, in its analysis, the OIG determined that the Proposed Arrangement involved two activities which implicate the federal Anti-kickback Statute ("AKS"): the selling of advertising space and the posting of Providers' coupons. The OIG indicated that both the posting of coupons and advertising on the website constitutes advertising activity. In evaluating advertising, there are a number of factors the OIG considers, including, the identity of the party engaged in the marketing activity and the party's relationship with its target audience; the nature of the marketing activity; the item or service being marketed; the target population; and any safeguards to prevent fraud and abuse. The OIG found that the Proposed Arrangement is sufficiently low risk under the anti-kickback statute for the following reasons:

1. The Requestor is not a health care provider or supplier and would simply operate a website hosting advertising and coupons;

2. The payments from Providers and Advertisers to the Requestor do not depend on the coupons being used by customers or obtaining services from the Providers or Advertisers, the fee is set in advance and does not take into account the volume or value of any referrals or business otherwise generated between the parties;

3. The advertising on the website would not be directed at the customer visiting the site and was akin to advertisements on a publically available website or in print media; and

4. The structure of the coupons decreases risk under the AKS because a customer does not pre-pay for the coupon and, thus, has no up-front investment. This fact, according to the OIG, significantly lowered the risk that a Provider's medical judgment would be improperly influenced to render medically unnecessary or inappropriate services based upon the fact that the Customer purchased a coupon.

The OIG also indicated additional risk existed due to the content of the coupons, which may offer discounts on items or services that are reimbursable by Federal health care programs. For the following reasons, the OIG found that the Proposed Arrangement included sufficient safeguards to mitigate the risks associated with the Requestor's role in posting the discounts:

1. Any discount would result in reduced costs which would benefit the patient as well as the payors, including Federal health care programs, as the discount would apply to the entire item or service, not only to the patient's cost-sharing obligations; and

2. The website's Terms of Use (which Providers must agree to before posting any coupons) require the Providers to comply with the discount safe harbor, which requires that buyers and sellers report any discounts to ensure that such discounts are shared with Federal health care programs; the coupons themselves would explain that the discount must apply to the entire item or service and not just a customer's cost-sharing obligation.

Notably, in its opinion, the OIG (without making specific references) makes it a point to differentiate the Proposed Arrangement from a "Social Coupon" type of situation involving relationships with websites such as "Groupon."

For the combination of the above reasons, the OIG concluded that the payments from the Providers and Advertisers for the Requestor's services associated with the Proposed Arrangement would pose an acceptably low risk of fraud and abuse under the anti-kickback statute and that the Requestor's role in posting the coupons also would be unlikely to improperly influence a beneficiary to choose a particular provider or supplier. However, the OIG does identify two areas of potential concern for which it expressed no opinion (1) Stark law issues in relation to the Physician Member and a person or entity with whom the Requestor would contract under the Proposed Arrangement; and (2) False Claims Act liability of the Requestor if the Requestor knows or should know that the Providers are not providing Federal health care programs with their share of the coupon discounts. Thus, although this ultimately was a favorable opinion, it was narrowly focused and identified potential other areas of concern/liability which fell outside the scope of the OIG's authority. As such, these types of arrangements must be carefully considered before a healthcare provider decides to participate.

Women in Healthcare Networking Events to be Held 3/28 and 5/3

Tue, 27 Mar 2012 08:41:14 -0600

The Women in Healthcare networking events are spearheaded by the women healthcare partners of The Greenberg, Dresevic, Iwrey, Kalmowitz & Pendleton Law Group, a division of The Health Law Partners. The events provide an informal forum for women in all aspects of the healthcare industry to network with their peers; discuss current issues in the healthcare field; share best practices and contacts, develop new business opportunities or just get out and socialize. Events are held four times a year in the tri-State area. Our kick-off event will take place on Wednesday, March 28th at The Andaz Hotel located at 75 Wall Street in New York City. We just announced our Buffalo event on Thursday, May 3rd. Please see the invitations on our website. We hope to see you there!

Attorneys Recognized By Martindale-Hubbell as Leaders in the Healthcare Field

Thu, 22 Mar 2012 08:48:11 -0600

The Health Law Partners is pleased to announce that four of our partners - Robert Iwrey, Alan Gilchrist, Dan Brown and Joel M. Greenberg - have been awarded AV Preeminent ratings by Martindale-Hubbell (the highest rating available) in recognition of their high level of professional skill and integrity. The ratings reflect a combination of the attorney's legal knowledge, analytical capabilities, judgment, communication ability and legal experience. The AV Preeminent rating is a significant accomplishment and serves as a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.

Robert Iwrey is a founding partner of The HLP and has been practicing healthcare litigation and transactional law since 1999. Mr. Iwrey provides counsel in all areas of healthcare law, including but not limited to licensure, staff privileges, contracts, physician practice issues, healthcare investigations and audit defense. Mr. Iwrey has been honored by d'Business Magazine as a Top Lawyer in Healthcare for 2010 and 2012 and named as a Super Lawyer for Healthcare Law in Michigan in 2010 and 2011.

Alan Gilchrist is a partner at The HLP and chairs its Civil False Claims and White Collar Criminal defense practice group. Mr. Gilchrist is a nationally recognized healthcare lawyer, specializing not only in civil false claims and white collar criminal defense, but also in matters related to licensure, reimbursement, compliance and fraud and abuse. He represents all types of healthcare providers, suppliers and professional organizations. Mr. Gilchrist has been recognized in the Super Lawyers publication; was selected by d'Business magazine in 2011 as one of the Top Lawyers in Metro Detroit; and is listed in the Best Lawyers in America in Healthcare Law and Administrative Law.

Dan Brown is the managing shareholder of the firm's Georgia office. Mr. Brown has extensive experience advising clients on the legal and regulatory issues impacting hospitals, physician groups, ambulatory surgery centers, sleep laboratories, dialysis clinics and independent diagnostic testing facilities. Mr. Brown is on the faculty of the Atlanta School of Sleep Medicine where he lectures on legal aspects of sleep medicine and sleep lab operations. He is also a member of the Board of Directors for the National Sleep Foundation in Washington, D.C., and is on the National Advisory Board of the Sleep Center Management Institute in Atlanta, Georgia.

Joel M. Greenberg is a partner at The Greenberg, Dresevic, Iwrey, Kalmowitz & Pendleton Law Group (a division of The HLP). Mr. Greenberg has extensive experience assisting physicians, medical groups, dentists, and other healthcare providers address the numerous business and legal issues that arise in their practices. Mr. Greenberg counsels clients in all aspects of their professional lives from the initial phases of setting up an entity to establishing employment, partnership and shareholder agreements to ensuring that all actions taken by the entity comply with the federal and state fraud, abuse, self-referral and professional misconduct laws and regulations. Mr. Greenberg was also selected as a "Super Lawyer" in 2011, a distinction earned by only five percent of the lawyers in the New York Metro area, and is a co-editor-in-chief of the 3rd edition of the Legal Manual for New York Physicians, which is a collaborative effort by the New York State Bar Association and the Medical Society of the State of New York.

Michigan Man Charged with Health Care Fraud in NY

Mon, 19 Mar 2012 14:41:22 -0600

According to a Department of Justice press release, on Thursday March 15, 2012, a man residing in Dearborn Heights, Michigan was charged by Criminal Complaint with health care fraud. 51-year-old Fitzgerald Anthony Hudson was arrested, and could face a maximum penalty of 10 years imprisonment and a fine of $250,000. Assistant U.S. Attorney Aaron J. Mango is handling the case, and has alleged that in October 2007, the defendant obtained a New York State medical license by listing false information on his application by stating that he graduated from York University-Facility of Science, North York, Ontario, Canada. It is further alleged that he does not hold such a degree and, in fact, had been dismissed from the Warren Hospital Family Practice residency program in July of 2003.

The complaint also states that the defendant provided medical care to patients in the Western District of New York at Jones Memorial Hospital in Wellsville, N.Y. and Nicholas H. Noyes Memorial Hospital in Dansville, N.Y. from August of 2008 to August of 2010. It is alleged that he was improperly reimbursed approximately $200,000 under the Medicare Part-B and Part-D programs.

Mr. Hudson's initial appearance on the charge has been scheduled for March 29, 2012 at 3 p.m. before United States Magistrate Judge H. Kenneth Schroeder, Jr. This arrest was the culmination of an investigation on the part of the Federal Bureau of Investigation.

OIG Report Questions IDTF Billings

Mon, 19 Mar 2012 09:40:18 -0600

In a Study released March 15, 2012, the Department of Health and Human Services, Office of Inspector General (OIG), reported on what it determined to be questionable billing by Independent Diagnostic Testing Facilities (IDTFs) for claims submitted in 2009. In conducting this study, the OIG analyzed claims among geographic areas, identified as Core Based Statistical Areas (CBSAs). The OIG then identified the 20 CBSAs with the highest average Medicare payments per beneficiary for IDTF services (the "high-utilization CBSAs"), compared IDTF billing patterns in high-utilization CBSAs to billing patterns in other CBSAs, identified IDTF claims with questionable characteristics, and compared the prevalence of IDTF claims with questionable characteristics in high-utilization CBSAs to the prevalence of such claims in all other CBSAs. OIG did not review the claims to determine whether the services were provided, whether any claims were medically necessary, or whether claims were coded correctly.

The findings of this Study include the following:

1. The 20 high-utilization CBSAs accounted for 11% of Medicare Part B payments for IDTF services, despite only having 2% of the total population of Medicare beneficiaries;
2. Almost 4 times more beneficiaries in high-utilization CBSAs received IDTF services than beneficiaries in other CBSAs;
3. On average, beneficiaries in high-utilization CBSAs received more IDTF services than beneficiaries in all other CBSAs;
4. The average Medicare payment per beneficiary who received an IDTF service in high-utilization CBSAs was almost 25 percent higher than in all other CBSAs;
5. 90% of IDTF services provided in high-utilization CBSAs were provided by 9% of IDTFs;
6. 71% of IDTFs providing services to beneficiaries in high-utilization CBSAs were in the Miami-Fort Lauderdale-Pompano Beach, Florida, CBSA;
7. High-utilization CBSAs had twice as many IDTF claims with at least two questionable characteristics as all other CBSAs (the OIG identified the following 3 characteristics as questionable: (1) a beneficiary being linked to 4 or more IDTFs; (2) IDTF claims that lacked corresponding claims by the referring physicians; and (3) IDTF claims for which the diagnosis categories were not the same as those on any other provider claims for those beneficiaries).

As a result of the Study, the OIG recommended that CMS monitor IDTF claims for questionable characteristics, review the claims of IDTFs which are found to have a high rate of questionable billing characteristics before payment to ensure that they are appropriate, and to assess whether to impose a temporary moratorium on new IDTF enrollments in CBSAs with high concentrations of IDTFs. CMS concurred in the OIG recommendations and indicated that IDTFs remain a key current focus of CMS and will continue to remain a key focus going forward.

This Study and CMS' comments on the Study show the continued focus by the government on IDTF facilities. Due to the continued focus of the government on IDTFs, any IDTF must, now more than ever, ensure full compliance with Medicare standards.

RAC Program (Medicare Fee-for-Service) Record Request Limits Increased

Fri, 16 Mar 2012 12:43:19 -0600

Medicare released new guidelines regarding the limit on the number of additional documentation requests ("ADRs") RACs may request per 45-day period. Notably, these revisions constitute an increase for providers. (Note: the revised ADR limits outlined below do not apply to physicians and suppliers.)

Effective March 15, 2012, the ADR limits will follow the guidelines bulleted below:

•RACs may request up to 2 percent of all claims submitted for the previous calendar year divided by 8 per 45 days. ** Note that this constitutes an increase from the previous limit of 1 percent of all claims submitted during the previous calendar year divided by 8 per 45 days.

•Notwithstanding the above, there will be a 400 record per-campus maximum ADR request limit (unless the provider previously was notified of an increased cap of 500 ADR requests - These providers will now have a cap of 600 records per 45 days).

•CMS may give the Recovery Auditors permission to exceed the limit. Permission to exceed the limit may occur by CMS's own initiative or from the Recovery Auditor requesting permission. CMS or the Recovery Auditor will notify affected providers in writing.

The new ADR limits are available on the CMS RAC website at http://www.cms.gov/Recovery-Audit-Program/Downloads/Providers_ADRLimit_Update-03-12.pdf.

Medicare Redesigns Claims and Benefits Statement to Empower Seniors with Clearer Information on Health Services Used

Fri, 16 Mar 2012 09:06:15 -0600

The Acting Administrator of the Centers for Medicare & Medicaid Services (CMS), Marilyn Tavenner, announced the redesign of the statement that informs Medicare beneficiaries about their claims for Medicare services and benefits. The announcement comes as a part of National Consumer Protection Week. The redesigned statement, known as the Medicare Summary Notice (MSN), will be available online and, starting in 2013, mailed out quarterly to beneficiaries.

This MSN redesign is part of a new initiative, "Your Medicare Information: Clearer, Simpler, At Your Fingertips," which aims to make Medicare information clearer, more accessible, and easier for beneficiaries and their caregivers to understand. CMS will take additional actions this year to make information about benefits, providers, and claims more accessible and easier to understand for seniors and people with disabilities who have Medicare.

The redesign of the MSN includes several features not currently available to Medicare beneficiaries with the current MSN:

• Clearer language, including consumer-friendly descriptions for medical procedures;
• Definitions of all terms used in the form;
• A clear notice on how to check the form for important facts and potential fraud;
• An easy-to-understand snapshot of the beneficiary's deductible status, a list of providers they saw, and whether their claims for Medicare services were approved.
• Larger fonts throughout to make it easier to read;
• Information on preventive services available to Medicare beneficiaries.

Starting later this week, the redesigned MSN will be available to beneficiaries on mymedicare.gov, Medicare's secure online service for personalized information regarding Medicare benefits and services; and, in early 2013, paper copies of the redesigned MSN will start to replace the current version being mailed.

To see a side-by-side comparison of the former and redesigned MSNs, please visit: http://www.cms.gov/apps/files/msn_changes.pdf

Of particular interest to health care providers and suppliers, the new MSN provides a 1-800 number to report instances of suspected fraud and indicates that tips received may lead to a financial reward to patients reporting cases of fraud. Therefore, providers and suppliers should closely evaluate the compliance measures in place, as incentivizing patients to file complaints will likely lead to increased claims scrutiny and may lead to increased auditing activity.

Long Island Red Cross Welcomes New Board Member

Fri, 16 Mar 2012 06:02:48 -0600

Joel M. Greenberg, a senior partner at The Greenberg, Dresevic, Iwrey, Kalmowitz & Pendleton Law Group A Division of The Health Law Partners in Lake Success, has been named to the board of directors of the American Red Cross on Long Island.

"I look forward to working on behalf of such an esteemed organization as the American Red Cross and particularly in helping it further its services on the Long Beach barrier island," said Greenberg, who resides in Atlantic Beach."

The American Red Cross responds to well over 100 local emergencies each year on Long Island--mainly home fires--and provides food, shelter and emotional support to those affected. During Hurricane Irene, nearly 5,000 residents evacuated to Red Cross shelters across the island.

Additionally, the Red Cross provides lifesaving training in skills like first aid, CPR and water safety to nearly 150,000 Long Islanders each year; and provides emergency communications and assistance to hundreds of local service members and military families.

"Joel brings a great deal of experience to our board and we look forward to working with him as we continually look not only for ways to help victims of disaster, but to make Long Island a safer place," said John Miller, CEO, Long Island Red Cross.

Greenberg is known for his abilities as a mediator and negotiator, having been credentialed by the American Health Lawyers Association and the Amicus Mediation and Arbitration Group to serve as a mediator in their Alternative Dispute Resolution programs. He frequently speaks regarding health law issues at hospitals, medical societies, colleges, and bar associations.

Greenberg is also dedicated to several not-for-profit organizations, such as the United Cerebral Palsy Association of Nassau County, MJHS and UJA-Federation of New York. He has been a long time member of the New York State and Nassau County Bar Associations, the American Health Lawyers Association, the Medical Group Management Association, and the American Academy of Family Physicians' Network of Consultants.

Greenberg served as the Managing Editor of the New York Health Law Update from 1998 through 2003 and was the Chairman of the Hospital and Health Law Committee of the Nassau County Bar Association from 2000 to 2002.

Greenberg received an undergraduate degree from Muhlenberg College and both a Master's degree in Public Administration and a J.D. from the American University in Washington, D.C. He is admitted to practice both in New York and the District of Columbia.

To learn more about the American Red Cross on Long Island, visit www.nyredcross.org or call (516) 747-3500.

To view the original press release from the Red Cross, please visit: http://www.nyredcross.org/?nd=news_room_detail&news_id=492&jid=63321