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Fraud & Abuse Healthcare Law

by admin on May 12, 2021 No comments

Healthcare fraud law should be easy to understand. If you don’t set out to lie, cheat, or steal to make money, you should be safe, right?

Unfortunately, the laws can be incredibly complex. Add in partnerships and sophisticated work-sharing agreements, and untangling the mess of responsibility could be even more difficult.

We’ll explain a few examples of healthcare law and fraud to make the problem easier to understand. But know that it’s always wise to contact a lawyer when you think you’re engaged in activity that could be considered fraudulent.

Inadvertent Healthcare Fraud Cases

Sometimes, the decisions you make as a healthcare professional break the laws, even if you never intended to do so.

Consider the Stark Law. Under that statute, you’re not allowed to refer a Medicare patient to any entity with which you have a financial relationship. In theory, you could break that law by:

  • Referring patients for tests and accepting a portion of the fees billed for those tests.
  • Giving your doctors an incentive for some kinds of tests.
  • Improperly paying your physicians
  • Making an arrangement with a medical center and promising to refer patients for some kinds of tests.

Inadvertent fraud is real, and these cases are complex. It’s wise to work with a lawyer, especially if healthcare arrangements are involved.

What About the Healthcare Fraud Law False Claims Act?

You can’t submit Medicare or Medicaid claims you know are fraudulent. Doing so is a violation of the False Claims Act, and fines are steep.

Typically, healthcare professionals know that they’re breaking this particular fraud law. They doctor the paperwork and hope to make money before anyone notices. But sloppy bookkeeping could also play a role. If you’re not absolutely sure that you’re submitting everything properly, wait and think before you take action.

Healthcare Fraud Law: Criminal Statutes

Sometimes, your mistakes aren’t inadvertent or paperwork related. If you intend to break the law and you know your conduct is wrong, you could be liable for criminal charges.

Two main criminal statutes apply to medical professionals, and they involve:

  • Kickbacks. If you get something in return for Medicare or Medicaid business, you’re involved in an illegal scheme.
  • Fraud. If you intend to falsify records or documents for your financial gain, you could face legal challenges.

Criminal charges could end your career. And they could also put you in jail for long periods of time.

What Should You Do When You Suspect Fraud?

If you’ve been reading this list with a growing suspicion that you’re engaged in something unethical, take action.

The government recommends:

  • Stopping. Don’t submit anything else that’s fraudulent.
  • Assessing. Determine how much you’ve made on the scheme.
  • Untangling. If you’re part of a scheme to defraud, get out of those relationships.
  • Disclosing. Own up to the mistakes you’ve made before you’re caught.

You should also work with legal counsel at this point. At Florida Healthcare Law Firm, we can help you assess the damage and find a proper path forward. Contact us for a confidential conversation.

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The Five Levels of The Medicare Appeal Process

by admin on May 11, 2021 No comments

medicare appeals pricessBy: Zach Simpson

There might be times when Medicare denies coverage for an item, service, or test that you or your company provided. In the event this occurs you have the right to formally disagree wit the decision and encourage Medicare to change it. Therefore, understanding the appeals process for Medicare claims is vital for all providers. The aim of this article is to give providers a better understanding of the five (5) levels of the Medicare Appeal process, and what must occur at each level.

The Medicare Fee-For-Service (FFS) has five levels in the claims appeal process:

Level 1 – Redetermination by a Medicare Administrative Contractor (MAC)

Level 2 – Reconsideration by a Qualified Independent Contractor (QIC)

Level 3 – Disposition by Office of Medicare Hearings and Appeals (OMHA)

Level 4 – Review by the Medicare Appeals Council (Council)

Level 5 – Judicial review in U.S. District Court

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Common Law in Healthcare

by admin on May 9, 2021 No comments

Medical professionals need a working understanding of the laws in their cities, states, and countries. In the United States, some of the most significant legal issues medical professionals face involve so-called “common law.”

Common law in healthcare covers a wide range of issues, both large and small. Let’s dig into examples and help you understand when you’ll need a lawyer’s help.

Common Law in Healthcare: A Definition

In everyday parlance, the word “common” is synonymous with known or normal. In legal terms, commonality is much different.

The common law system originated in England, and it forms the basis of the current American legal system. When patients head to court to talk about malpractice suits, they’re often citing the common law.

While common laws may originate in customs, they can change with time. Whenever a case heads to court and is decided, the reasoning enters legal records. That decision becomes a sort of precedent, and it can be cited in later cases.

Common issues in healthcare, such as a doctor’s lack of license, could be solved in court. When those issues are in the courtroom, lawyers from both sides will cite prior cases as a nod to common law.

Examples of Common Law in Healthcare

Almost anything that’s been solved in a courtroom in the past could be part of a common law proceeding. But in healthcare, common law cases tend to reference a few key elements.

Examples of common law in healthcare cases include:

  • Informed consent. The patient is aware of the risks, benefits, and procedures involved before a medical procedure begins.
  • Right of refusal. The patient understands that participation in a procedure is optional.
  • Negligence. The patient expects the team to be trained, talented, and focused. Safety comes first.
  • Malpractice. The patient’s needs and health are protected from mistakes, fraud, and outright bad medicine.

If you’re facing a case like this, you need a lawyer’s help. Together, you can walk through the issues that sparked the lawsuit. And you can come up with a plan to move forward through the case.

At Florida Healthcare Law Firm, we’d love to help you. Contact us to get started.

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Healthcare Law and Ethics

by admin on May 7, 2021 No comments

What’s the relationship between law and ethics in healthcare? Medical students often get confused about these two topics. And their classes may not help. Many teachers use these terms interchangeably, and some course titles have both terms within them.

Law and ethics are two different things. And sometimes, medical professionals face situations in which the two concepts conflict.

The Role of Law and Ethics in Healthcare

Let’s start by defining our terms to make the connections and differences a little easier to unpack and understand.

Medical professionals deal with:

  • Laws. Government officials craft these doctrines, and they’re designed to protect citizens. Violate them and expect punishment. You’re expected to comply.
  • Ethics. These informal rules stem from your personal sense of right, wrong, and fairness. Ethics are infused by formal structures, including your government and your upbringing. But breaking them doesn’t typically come with an official punishment.

Both ethics and law in healthcare deal with behavior. But laws are minimum standards, and ethics are maximum standards.

How to Mediate Conflicts

While laws are influenced by ethics, the two can contradict one another in a healthcare setting.

Sometimes, your legal duties as a healthcare professional can conflict with your ethical responsibilities. The law may force you to do things your ethics just don’t condone. Or you may want to do something because it’s ethical, but the law isn’t on your side.

The best example involves capital punishment. The law requires doctors to participate, but ethical codes say doctors shouldn’t take life.

When you’re facing conflicts like this, working with a lawyer is crucial. Together, you can examine your options and find a path forward. Your lawyer may help you understand legal options to help you abide by your ethics. Or your lawyer may help you understand the legal implications of abiding by your ethics while breaking the law.

At Florida Healthcare Law Firm, we’re here to guide our clients into ethical, legal decisions. We can help you unpack thorny issues and make good decisions for your patients and your community. Contact us to get started.

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What Is Negligence in Healthcare?

by admin on May 6, 2021 No comments

Negligence in healthcare is rarely planned. Few doctors, nurses, dentists, and other caregiving professionals want to cut corners, skip steps, and otherwise hurt their patients.

But when caseloads pile up, and schedules grow tight, it’s easy to make mistakes. And sometimes, patients hire lawyers to sort out the problem.

If you touch patients in any way, it’s wise to know what negligence healthcare looks like and how a lawyer can help.

Understand the 4 Elements of Negligence in Healthcare

Patients can’t open up a claim against medical professionals without due cause. And sometimes, they file cases they can’t win.

Most juries expect plaintiffs to prove:

  1. Responsibility. The medical professional (or entity) on trial owed the victim a duty of care.
  2. Violation. The duty of care was breached.
  3. Consequences. That breach caused the victim’s suffering.
  4. Penalties. The victim’s suffering can be calculated.

Any one of these four elements could be disproven in court. But if all four elements of negligence in healthcare are present, juries tend to issue rewards.

Negligence in Healthcare Cases

Sometimes, mistakes lead to loss of life. Up to 120,000 deaths are tied to negligence each year.

But some cases cause disfigurement or suffering. For example, in 2020, a pediatric dentist in Nevada used a diamond bur on a child’s tooth. A spark ignited the throat pack inside the girl’s mouth, and the flames burned for a few seconds. Her family filed a claim for more than $15,000 in damages.

If you’re facing negligence in healthcare cases, you need a lawyer. Someone must defend the decisions you made while treating your patients. And that legal expert must ensure that your insurance company doesn’t pay too much to settle a case that’s just not your fault.

At Florida Healthcare Law Firm, we specialize in cases just like this. We’d like to help you. Contact us for an assessment and evaluation.

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6 Essential Questions For Audit Preparedness

by admin on May 5, 2021 No comments

medical practice auditBy: Zach Simpson

As you train your staff on the changes that were recently made regarding evaluation and management coding it is very important to ensure that your staff understands the auditor’s perspective as well. There are four distinct portions of an auditor’s tool when evaluating the documentation guidelines for office/outpatient evaluation and management (E/M) services (99202-99215). The four distinct portions are diagnoses, data, risk, and calculation of medical decision making (MDM).  In order to ensure that a provider’s progress note is complete in the auditor’s eyes the provider should ask themselves the following six questions to create the best chances of successfully meeting the auditors expectations:

  1. Does my progress note contain a medically appropriate history and examination?
  2. Were my diagnoses addressed appropriately?
  3. Did I document all orders and data reviewed?
  4. Were other professionals included in my documentation that I worked with?
  5. Was an independent historian used?
  6. Does the documentation support the level of risk I chose?

For the remainder of the article, I am going to dive deeper into each question above so that you, as providers are able to recognize insufficient areas in a provider’s E/M documentation when you perform a self audit to better your practice.

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Health Care Fraud Enforcement Continues to Rock Pharmacy Industry

by admin on April 30, 2021 No comments

pharmacy fraudBy: Karen Davila

Yet again, the fraud enforcement arm of the DOJ strikes out against fraud in the pharmacy industry.  Two new cases shed continuing light on the ongoing fraud.

Announced last week by the DOJ, the owner/operator of five pharmacies in New York pled guilty to charges stemming from a scheme to defraud Medicare and Medicaid by billing for prescription drugs that were not dispensed, not prescribed, not medically necessary or dispensed when the pharmacy had no authority to dispense the prescription drugs.  This blatant disregard for the law was magnified when the owner/operator used the ill-gotten gains of her scheme to purchase luxury items like cars and jewelry.  Nothing screams “come and get me” like openly flaunting the money taken from the government.

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Permissible Payments For Referrals Under The Federal Anti Kickback Statute

by admin on April 28, 2021 No comments

anti kickbackBy: Karen Davila

The term “payment for referral” strikes fear in the hearts of health care providers throughout the country because of the significant prohibitions under the federal Anti-Kickback Statute (AKS).  And, Florida’s Patient Brokering Act (PBA) casts an even bigger shadow over arrangements involving payment in exchange for referrals.  There are other statutory restrictions as well, which may apply depending upon the services for which a referral is being made.  Those include but are not limited to statutes prohibiting physician fee-splitting and the federal Eliminating Kickbacks in Recovery Act (EKRA) (applicable to referrals to recovery homes, clinical treatment facilities, or laboratories in an effort to stave off growing opioid-related fraud), and the potential collateral damage of a false claim under the federal False Claims Act (FCA) if any of the above statutes are violated.

So, is there any scenario where a payment may be made by a health care provider in exchange for referrals?  The answer is yes- there is a safe harbor under the AKS (42 U.S. C. §1320a-7b(b)) specifically for such arrangements.  This safe harbor is not commonly used and likely means revision to existing arrangements to come into compliance with its specific requirements.  But it may be worth considering if the referral (and payment for that referral) is not otherwise prohibited as noted above.

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Five Reimbursement Denial Reduction Tips

by admin on April 25, 2021 No comments

EOBBy: Zach Simpson

  1. Review EOBs and determine where denials are originating and their root cause

While reviewing EOBs practices need to determine if a trend can be established that identifies the root cause for why claims are being denied. Trends can be established by asking if most denials are originating in your patient access and registration departments, or are denials occurring because of insufficient documentation, or due to billing or coding errors?

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Is Your Office Utilizing An Outdated Advanced Beneficiary Notice of Non-Coverage Form?

by admin on April 22, 2021 No comments

medicare abnBy: Zach Simpson

Does your office treat Medicare or Medicaid beneficiaries? If so, this article is vital to you and your staff. The first question that I want all of you to ask yourself is if your practice treats Medicare or Medicaid beneficiaries do you know what an ABN is, and why they are vital for your practice? The acronym ABN stands for Advance Beneficiary Notice of Non-coverage. ABNs safeguard your practice’s right to collect on non-covered services (other than statutorily excluded services) from patients who have Medicare or Medicaid. Multiple organizations I have worked with throughout my career had never been informed about ABNs or had never been properly educated on how utilize them. This article is intended to provide you and your practice with the most recent information regarding the renewed ABN form that became mandatory for use on January 1, 2021.

As of January 1, 2021, a new Fee-for-Service Advanced Beneficiary Notification of Non-coverage became effective until it expires on June 30, 2023. In the event that your practice has been utilizing the same ABN forms for years then listen up.

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