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A New Perspective from CMS? Medicare, Stark Law and Whistleblower Changes on Deck

October 2nd, 2018 by

medicare stark lawBy: Dave Davidson

Over the past several months, the Centers for Medicare & Medicaid Services (CMS) has taken a number of steps that show an awareness of the regulatory burden placed upon participants in the government’s health care programs, and even some willingness to consider reducing those burdens.  While it remains to be seen whether the recent proposals will have measurable results, the following actions can still be viewed with guarded optimism.

Proposed Changes to Medicare

In July, 2018, CMS proposed significant changes to Medicare, to be included in rules that take effect in 2019.  These changes cover physician fee schedules, streamlining Evaluation & Management (E&M) billing, advancing “virtual care,” decreasing drug costs, revising the MIPS program and establishing the MAQI demonstration project.  The agency also asked for comments on price transparency issues. read more

Anti-Kickback Statute and Healthcare Marketing: 3 Legal Considerations

September 6th, 2018 by

healthcare marketingBy: Matt Fischer

Healthcare marketing arrangements that violate the Anti-Kickback Statute (AKS) can lead to serious financial and criminal consequences.  Understanding the types of marketing arrangements that courts have found to be in violation of the statute and the potential implications are critical for marketers to know in order to operate in the healthcare industry.

Under the AKS, it is a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce referrals of items or services reimbursable by the Federal health care programs.  Where remuneration is paid purposefully to induce referrals of items or services paid for by a Federal health care program, the AKS is violated.  By its terms, the AKS ascribes criminal liability to parties on both sides of an impermissible transaction.  An example of a highly scrutinized arrangement involves percentage compensation.  For regulators, percentage compensation arrangements provide financial incentives that may encourage overutilization and increase program costs.

Here are 3 important things to know: read more

Medicare Audit and Appeal Process from A to Z: Challenging Extrapolated Overpayments

February 1st, 2018 by

ZPIC auditBy: Matt Fischer

Medicare claims are processed by organizations (i.e. Medicare Administrative Contractors (“MACs”)) that contract with the Centers for Medicare & Medicaid Services (“CMS”) to act as liaisons between the Medicare program and providers and suppliers.  As CMS continues to evolve its enforcement strategies to reduce fraud and abuse in the system, post payment reviews utilizing statistical sampling still remain as one of its key methods.  These reviews are conducted not just by MACs but also by Zone Program Integrity Contractors (“ZPICs”).  When a review is completed, providers and suppliers often face large extrapolated overpayment amounts based on the analysis of a small sample of claims.  Therefore, providers and suppliers need to understand the process and most importantly, how to effectively navigate the system.

ZPICs are a part of Medicare’s integrity program and took the place of Program Safeguard Contractors (“PSCs”) that operated with the same goal in the past.  ZPIC reviews initiate in various ways such as from whistleblower complaints, through ZPIC investigations (e.g. using data mining), and from referral from the Office of Inspector General (“OIG”).       read more

Civil Investigative Demand: What to Expect in a Heightened Regulatory Environment

November 6th, 2017 by

DOJ InvestigationBy: Matt Fischer

The United States Department of Justice (DOJ) has the power to issue civil investigative demand (CIDs) when the DOJ has reason to believe that a person may be in possession of information relevant to a false claims investigation.  The DOJ is empowered to serve CIDs by the False Claims Act (FCA).  A CID is similar to a grand jury subpoena; however, it provides greater versatility in the use of the information obtained.  In addition to requiring the production of documents similar to a grand jury subpoena, CIDs demand other types of discovery responses and the information gathered may be shared between the civil and criminal sides of an investigation.  Given this flexibility and with the passage of the Fraud Enforcement and Recovery Act of 2009 (which changed the law to allow issuance of a CID without the personal signature of the Attorney General), the DOJ has substantially increased its use of CIDs in the realm of healthcare law enforcement.     read more

Beware The Hypnosis of Crisis

April 27th, 2017 by

By: Jeff Cohen

One of the biggest challenges faced by addiction treatment providers today, especially in Palm Beach County, Florida, arises in the context of unprecedented pressure by law enforcement via the Sober Home Task Force, newspapers and insurers.  The threat of being targeted by law enforcement is an enormous thing in itself.  Add to that the mainstream media’s insatiable desire for readers, the industry’s drop into insurer red flagging and recoupment, the political football nature of addiction and addiction treatment, and treatment providers can lapse into a state of paralyzed tunnel vision, a sort of mass hypnosis.  Here’s the problem:  providers dealing with the current compliance crisis environment have a lot to lose if they take their eye off the bigger picture.  The more absorbed they become in “crisis mode,” the more likely they will miss important addiction treatment compliance details in an increasingly regulated and changing industry.  Losing the ability to see the entire picture (and trends) and quickly adapting to it can have costly (and even deadly) consequences.

The addiction treatment industry is like any other healthcare provider—enormously and increasingly regulated, highly scrutinized and always dynamic.  The moment it took on features of traditional healthcare (e.g. lab and physician services), it left the relatively warm and fuzzy comfort of behavioral health providers, sorta.  “Sorta” because medical behavioral health (e.g. psychology and counseling) has not had it easy in the past 10 years, as it came under crushing price compression with managed care driven networks and other price cutting middlemen that have often been owned or controlled by insurance companies.  Addiction treatment providers in the pure behavioral health space were “saved” from all this till about three years ago because they were out of network and not the focus of insurer driven price cuts.  As payors (and their price cut incentivized middle men) looked for more ways to drive up profits, the competitive and disorganized addiction treatment sector became a natural (and unprepared) sector to hit.  And they hit it hard!  Clearly, the Perfect Storm.  Addiction treatment providers now have no option but to learn to swim hard and fast in the ever changing river of the healthcare business industry. read more

Cigna Lawsuit Loses Texas Case Against Humble Surgical Hospital, Hit with $16 Mil Judgment

July 13th, 2016 by

anti kickbackBy: Karina Gonzalez

Cigna recently sued a Texas hospital, Humble Surgical for overpayments.  Humble Surgical is an out-of-network (OON) provider.  Cigna alleged fraudulent billing practices and that the hospital engaged  in a scheme to defraud payors by waiving members’ financial responsibility.

While the suit involved many other  allegations  our article focuses on the arguments Cigna made on failure to collect co-payments, deductibles, and co-insurance and fee-forgiving practices by the hospital.   There were several other issues raised that are important to various practices that Cigna has engaged in with out-of-network providers.  Cigna has consistently audited South Florida providers alleging failure to collect patient financial responsibility or fee-forgiveness, then informing the provider that it was not entitled to any reimbursement because these practices fell within the exclusionary language of the member’s plan.

The suit brought under federal law, ERISA and also Texas common law seeking reimbursement for all overpayments. Cigna was seeking equitable relief including imposing a lien or constructive trust on  fees paid to the hospital.

Humble Surgical counter sued against Cigna for  nonpayment of patients’ claims, underpayment of certain claims and delayed payment of all claims in violation of ERISA, including other causes of action. Here’s what happened:  read more

The Final Overpayment Rule and Practical Steps for Compliance

May 11th, 2016 by

By: James Saling

On February 11, 2016, the Center for Medicare and Medicaid Services (CMS) issued the final overpayment rule commonly referred to as the “60 Day Rule”. Physicians, labs, hospitals, and other providers that receive reimbursement under Part A or B must comply with the 60 Day Rule or face penalties under the False Claims Act.

The 60 Day Rule requires that overpayments (e.g., payment for coding errors) be reported and returned to CMS within 60 days after the date on which the overpayment was identified. Identification of the overpayment was addressed at length in the regulation.  The 60-day clock to identify overpayments starts ticking “when the person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment.”  Reasonable diligence means that the provider takes steps to uncover overpayments and steps to quantify the amount of the overpayment. read more

Compounding Pharmacies and Alleged Tricare Abuses Back in the Spotlight

February 16th, 2016 by

compounding pharmacyBy: Jacqueline Bain

On Thursday, February 11, 2016, the United States Attorneys’ Office from the Middle District of Florida announced a $10 million settlement with 4 physicians and 2 pharmacies regarding alleged abuses of Tricare program.  The case against these physicians and pharmacies was prosecuted as part of the United States government’s large-scale effort to combat questionable compounding practices.  Investigations revealed that patients were often prescribed compounded drugs that they never used, and that Tricare paid a mark-up cost of nearly 90% for compounded drugs over and above the pharmacy’s actual costs of making the drug.  Roughly 40% of the claims submitted by the pharmacies in question were written by 4 physicians with an ownership or financial interest in the pharmacies.

Tricare is a federal health care program designed to insure active duty military service members, reservists, members of the National Guard, retirees, survivors and their families.  Tricare outpatient costs have almost doubled in the last 5 years, and compound drugs have accounted for a large portion of that increase.  read more

Managed Care Contracts: Watch Out for Definitions Section Pitfalls

January 13th, 2016 by

Contract CWBy: Karina Gonzalez

One of the most commonly overlooked components of a managed care contract is the definitions section despite the fact that what is contained here will affect the contracted provider on a daily basis.  Contract terms that are too generic so that they are not clearly defined and understood as they relate to a particular area of practice can have a direct influence on clinical decision making.  A patient may need a higher level of care but be approved for a lower level only.  The provider knows that a patient may suffer if the level approved will not treat the illness or that the patient’s condition could deteriorate without a higher level of care.

Let’s take, for example, the definition of medical necessity in a contract. Who decides medical necessity?  Is it the provider or is it the managed care organization (MCO)?  Many contracts state that the term “medical necessity” relates only to the issue of reimbursement.  Further, that the approval or denial of a claim is “for reimbursement purposes only” and should not affect the provider’s judgment on whether treatment is appropriate to treat the illness, symptoms or complaints of the patient.   read more

Cigna Points to Tox Costs and Fraud in Quitting Florida Obamacare

October 27th, 2015 by

gavelBy: Jeff Cohen 

Cigna just announced it is withdrawing from Florida’s Health Insurance Marketplace.  As reported by Carol Gentry in Health News Florida, Cigna blamed its decision to withdraw on fraud and abuse and on “out of network substance abuse clinics and labs.”  Interestingly, Cigna spokesman, Joseph Mondy, pointed to a recent article in the Palm Beach Post (“Addiction Treatment Bonanza:  How urine tests rake in millions”) in support of Cigna’s announcement.

Media reports regarding the treatment industry and Cigna’s announcement go unquestioned by reporters.  For instance, the Palm Beach Post article claims “the sky-high charges have exploited addicts and alcoholics seeking help, gouged insurers and spurred law enforcement interest….”  It pictures a young, tattooed man as a recovery business owner, but does not mention any wrongdoing or charges against him.  It restates claims in a lawsuit against a toxicology lab without any counterbalancing input from the lab that is the subject of the lawsuit.  It expresses certainty that insurers are being gouged, but does not mention that the rates actually paid by insurers for out of network services are determined entirely by the insurers, not the treatment providers.  It’s an article full of allegations and innuendos, but no meaningful coverage of any of the issues.      read more