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Seeking Compensation for Out of Network Claims: A Primer for Providers

March 11th, 2019 by

out of network litigationBy: Matt Fischer

Litigation involving out of network claims by providers, also referred to as “non-participating” or “non-par”, continues to be rampant into 2019.  Complexity of plan administration, increased state and federal rule making, and rising costs are resulting in increased litigation.  A recurring issue: unpaid claims disputes.

Many physicians come to the conclusion that some contracts aren’t worth entering.  More and more physicians are opting out of participating provider contracts or have chosen not to participate in the first place.  Reimbursement is usually the prime reason.  The law that controls much of the litigation surrounding these disputes is the Employee Retirement Income Security Act of 1974 (ERISA).  ERISA is a federal law that sets minimum standards for most plans along with fiduciary responsibilities for plan sponsors.  Under ERISA, a “Summary Plan Description” must be created for each plan that sets forth the rights and benefits of each plan member and importantly, how out-of-network reimbursement is determined.  read more

Provider Self-Disclosures of Overpayments for Medicare Part C – Managed Care

March 6th, 2019 by

medicare part c overpaymentBy: Karina Gonzalez

When providers or suppliers self-report overpayments to Medicare Part C Managed Care organization, there is some uncertainty on what lookback period applies and whether there actually is an overpayment obligation. Is it Medicare’s 60-day overpayment rule that applies or do the Managed Care Part C organizations impose a different lookback period for overpayments?

CMS (The Centers for Medicare & Medicaid Services) published its Final Rule clarifying the procedures applicable to the statutory requirement under the Affordable Care Act (“ACA”) for providers and suppliers to self-report and return overpayments. (The Final Rule was published on February 12, 2016). The Final Rule applies to Medicare Parts A and B and addresses the procedures that a provider or supplier need to follow to investigate, identify, quantify to self-report and return an overpayment. The Final Rule clarifies the obligations of Medicare providers and suppliers to report and return overpayments for claims originating only under Medicare Parts A and B. The final rule does not address, or reference, the obligations of providers to return overpayments to Medicare Advantage organizations for Part C claims. read more

Time out! Keeping Healthcare Lead Generation in Check

December 7th, 2018 by

healthcare lead generationBy: Michael Silverman

There are perfectly compliant ways to engage with healthcare marketers, and then there’s this; here are some of the latest real-life examples:

“DME BRACE CAMPAIGN – $40 to $150 PER LEAD PER BRACE”

“DME DIABETIC LEADS $40 PER LEAD, INSURANCE AND DOC INFO INCLUDED”

“PAIN CREAM/LIDOCANE LEADS FOR SALE, RX INCLUDED”

These marketers are seemingly holding auctions for the sale of federally protected patient health information out to the highest bidder! Couldn’t make this stuff up – if you’re in this industry, a quick gander at your (business) social media platforms will quickly confirm it. read more

Fighting Back Against CMS Recoupment: A New Option

November 13th, 2018 by

CMS recoupmentBy: Matt Fischer

Fighting a large extrapolated overpayment demand from a Medicare Administrative Contractor (MAC)?  Facing bankruptcy?  Appealed to the Office of Medicare Hearing and Appeals (OMHA) with no hearing date in sight?  For providers and business owners who answer yes, there is a new potential remedy…a temporary injunction.

Multiple health care businesses have scored wins this year in their fight to prevent CMS from recouping payments before having an opportunity for an Administrative Law Judge (ALJ) hearing.  The similarity?  They each sought a temporary injunction in federal court.  Arguing that the alleged recoupments would cause the businesses to close, employees to lose their jobs and patients would be forced to change their providers, the businesses were granted temporary injunctions enjoining CMS from starting recoupment until the ALJ appeal stage had reached a conclusion.       read more

The Case Against Cloning (Medical Records)

August 10th, 2018 by

medical records cloningBy: Jacqueline Bain

The transition from paper medical records to electronic medical records has brought with it many conveniences and some unintended consequences. One example of an unintended consequence is cloning in the medical record. Cloning is copying and pasting previously recorded information from a prior patient note into a new patient note.

Providing quality medical care is only one part of the job. Appropriately documenting that care in order to be paid for your efforts is another. And while medical professionals are trained at length to provide care, hardly any are aware of the potential pitfalls associated with improper documentation.

In late 2015, CMS advised that cloning “is a problem in health care institutions that is not broadly addressed.” CMS specified that cloning records may indicate fraud, waste and abuse in inquiries and audits and that each part of a “medical record must contain documentation showing the differences and the needs of the patient for each visit or encounter.” read more

Medicare Opt Out: Part II

July 10th, 2018 by

medicare opt outBy: Susan St. John

As noted in Opting Out of Medicare Part I, opting out of Medicare may be an option for some physicians and practitioners. After determining whether you are eligible for opt-out or if it is financially feasible, there are a few other considerations. Part I discussed the Private Contract a physician must enter into with each Medicare beneficiary he or she treats; here, we will address the opt-out affidavit and other nuances of opting out. Let’s get started!

The Medicare Opt Out Affidavit

Provisions in an Opt Out Affidavit are similar to provisions that must be included in the opted out physician’s or practitioner’s private contract with Medicare beneficiaries. The opt-out affidavit must state that the physician or practitioner will only provide services to Medicare beneficiaries with whom they have a written and signed private contract and that the physician or practitioner will not submit claims to Medicare on behalf of Medicare beneficiaries. Medicare does allow for an exception here, but that is only when an opted out physician or practitioner treats a Medicare beneficiary who is not under private contract, and that beneficiary presents with a medical emergency or urgent care problem. Keep in mind, that if a Medicare beneficiary presents with a medical emergency or urgent care problem, the physician or practitioner cannot require that patient to sign a private contract at that time. read more

CERT Review and Top Five Medicare Documentation Errors

June 10th, 2018 by

By: Matthew Fischer

In CMS’ latest “MLN Connects” newsletter, the agency discusses the Comprehensive Error Rate Testing (CERT) program and the top five documentation errors committed by providers.  Providers should pay close attention when CMS releases these types of notices.  If selected for CERT review, providers are subject to potential action such as post-payment denials, payment adjustments, or other actions depending on the results of the review.  Therefore, providers should ensure they fully understand Medicare’s documentation requirements and how to meet these demands.  read more

Opt Out of Medicare: What Physicians & Practitioners Need to Know

May 14th, 2018 by

opt out of medicareBy: Susan St. John

Physicians and practitioners are ordinarily required to submit claims on behalf of Medicare beneficiaries when payment may be made for items and services provided by the physician or practitioner. However, in today’s health care environment, more and more physicians and practitioners are considering opting out of Medicare. For those professionals facing this decision, there are a few things to consider.

Is the Physician or Practitioner Eligible to Opt-Out?

First, determine if you are eligible to opt out of providing services to Medicare patients. Not every physician or practitioner is eligible to opt out of Medicare. For purposes of opting out of Medicare, “physician” is limited to: doctors of medicine; doctors of osteopathy; doctors of dental surgery or medicine; podiatrists; and optometrists; licensed by the state in which they practice (this could be multiple states).  The term practitioner, for opt-out purposes, is limited to: PAs, ARNPs, Clinical Nurse Specialists, CRNAs, Certified Nurse Midwife, Clinical Psychologist, Clinical Social Worker, Registered Dietitian and Nutrition Professional. What is omitted from the definition of physician and practitioner are chiropractors, and physician therapists and occupational therapists in independent practice. Consequently, a chiropractor may not opt out of Medicare; neither may PTs or OTs in independent practice, but it seems PTs or OTs working in a physician’s office may be eligible to opt out. read more

Potential Class Action Targeting ZPIC Dismissed: What This Means

April 30th, 2018 by

medicare payment suspensionBy: Matt Fischer

A recent lawsuit seeking class action status that targeted Zone Program Integrity Contractor (ZPIC), AdvanceMed along with the U.S. Department of Health and Human Services (HHS) has been dismissed.  The plaintiff, an Illinois home health agency (HHA), filed suit in federal court requesting a writ of mandamus (i.e. an order directing a party to perform a specific act) and damages based on claims of fraud and non-compliance with Medicare’s regulations.  With many wanting an overhaul with regards to ZPIC authority, this case has been watched closely.  What does this decision mean going forward?  Consequently, this decision solidifies the formidable hurdle and requirement to exhaust all administrative remedies before challenging a ZPIC in court.

What occurred in this case is not uncommon.  AdvanceMed conducted a review of a number of patient charts which led to a suspension of Medicare payment “based on reliable information that an overpayment exists or that the payments to be made may not be correct.”  In response to the suspension notice, the HHA submitted a rebuttal statement with additional supporting documentation.  The ZPIC later informed the HHA that the documentation had been reviewed and the Centers for Medicare & Medicaid Services (CMS) decided to continue the suspension.  In subsequent discussions between the parties, an AdvanceMed representative surprising stated that it was not their policy to review rebuttals nor was it obligated to review the additional documentation.  The representative further indicated that CMS concurred with their position.  As a result, the HHA filed a lawsuit.      read more

Pharmacy Audits: State of the Industry & Knowing Your Rights!

March 19th, 2018 by

pharmacy audit pbmBy: Michael Silverman

Pharmacy Benefit Managers (“PBMs”) act as the intermediary between insurance companies and pharmacies. PBMs contract with insurance companies on one hand and with pharmacies on the other, connecting the two so that an insured’s pharmaceutical claims may be processed at the rates set forth in the agreement between the PBM and supplying pharmacy. PBMs are paid on both sides of this transaction – by the insurance company for managing their insureds’ benefits – and by the pharmacy for processing the claims that are submitted. Processing claims for private, state, and federally funded insurance programs, PBMs play an integral role in vast majority of prescription drugs dispensed in the United States.

Part of a PBMs function is to audit a pharmacy’s claims to ensure that the claims submitted are in compliance with the PBM and insurance companies’ requirements.

Typical audits come primarily in two forms (1) desktop audit; and (2) field/on-site audit. A selected pharmacy usually will receive a letter or fax from the PBM informing an audit will be taking place. read more