Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.
The use of, and billing of hot and cold packs in the chiropractic setting with Medicare patients is quite often misunderstood. More often than not it is overbilled, because it is difficult to appropriately establish appropriate rationale to prove medical necessity for this to be separately billed in the office. The American Chiropractic Association (ACA) has published this guidance for the proper use of the service:
“It is the position of the American Chiropractic Association that the work of hot/cold packs as described by CPT code 97010 is not included in the CMT codes 98940-43 in instances when moist heat or cryotherapy is medically necessary to achieve a specific physiological effect that is thought to be beneficial to the patient.Indications for the application of moist heat include, but are not limited to, relaxation of muscle spasticity, induction of local analgesia and general sedation, promotion of vasodilation and increase in lymph flow to the area. Indications for the application of cryotherapy include, but are not limited to, relaxation of muscle spasticity, induction of local analgesia and general sedation, promotion of vasodilation and increase of lymph flow to the area.”read more
Today marks a big win for Chiropractors, the Florida Chiropractic Association, and other medical providers that treat patients as a result of a motor vehicle accident. Legislation was presented earlier this year which would have completely changed how the personal injury protection (“PIP”) industry would impact medical providers. The legislation is known as Senate Bill 54 (“SB 54”).
SB 54 was sought to end the requirement that Floridians purchase $10,000 in PIP coverage and would instead require mandatory bodily injury (“MBI”) coverage that would pay out up to $25,000 for a crash-related injury or death. This would have meant that for each case before a provider would be paid by the patient’s car insurance coverage, fault would have to be determined through litigation which would have increased the time it would have taken providers to be paid. In today’s landscape providers are able to bill the patient’s PIP coverage for the initial $10,000, and be paid 80% of the billed charges immediately, and if this law would have passed each treating provider would have had to either bill the patient’s health insurance, or treat patients on letters of protection.
In Governor DeSantis’s veto letter he wrote, “While the PIP system has flaws and Florida law regarding bad faith is deficient SB 54 does not adequately address the current issues facing Florida drivers and may have unintended consequences that would negatively impact both the market and consumers.”
Due to the potential repercussions this legislation would have had on an entire industry it is very important for all medical providers today to continue and evolve with the changing landscape. Although providers can take a breather today, because the battle is now over, they must begin to think about how their practices would have been impacted if they could have only billed patient’s health insurance or treated patients on letters of protection. Many providers that I have spoken with were not sure what they would have done, and one piece of advice I always give is that now is the time to start thinking ahead to the future. Meaning, if this law were to present itself again you all have to ask yourself would your practice be able to survive not being paid for months or years? Providers need to start considering how they can better evolve to provide better care to their patients while still being able to survive in the event PIP is repealed in the future.
COVID-19 has affected all aspects of everyday life and healthcare rules and regulations are no exception. All areas of healthcare have been impacted, including the patient’s financial responsibility for healthcare services in the form of co-insurance, copays and deductibles. The waiver of a patient’s financial responsibility for healthcare services is regulated by federal and state law. The waiver of co-pays, co-insurance and deductibles has been deemed a violation of the federal Anti-Kickback statue. A provider who routinely waives the patient’s financial obligation may be violating the participating provider agreement with commercial carriers, state law and federal law with respect to Medicare beneficiaries. Waiving patient fees is seen as an inducement to the patient to prefer one provider over another for financial reasons. However, The Centers for Medicare and Medicaid Services (CMS) and commercial carriers have been authorized by the federal government to waive patient financial responsibility during the pandemic in order to encourage the public to get treated for COVID-19 and non-COVID medical conditions without fear of a hefty bill.
Florida may become the “next Texas” on the issue of physician owned specialty hospitals. “Next Texas,” since there are a number of examples where the concept launched (and also flopped). Done right, such facilities could be a better fit for many patients, depending of course on patient co morbidity issues. In theory, they would be the perfect bridge between surgery centers and regular acute care hospitals. But the ability of such specialty focused care suggests a better staffing model and more targeted and efficient overhead, instead of the broad-based overhead of an acute care hospital at is spread out aver all cases, including those where overhead allocation is viewed as “just an expense.” read more
Access to telehealth for Medicare beneficiaries was further increased by the Trump Administration April 30, 2020. These new changes allows all health care professionals eligible to bill Medicare for services to provide services via telehealth communications and to bill the Medicare program for such services. Additionally, certain services may now be provided using audio technology only.
For a list of services eligible for reimbursement by the Medicare Program, including services requiring audio technology only, download here. There are approximately 180 different codes reimbursable by Medicare if provided via telehealth communications.
The newest relief for small business and health care providers was passed by the Senate on April 21st, by the House on April 23rd, and became law on April 24, 2020. This new Act, provides for $484 billion in additional relief to small businesses and healthcare providers. $100 billion of the relief has been allocated to the Department of Health and Human Services and of that amount $75 billion is earmarked “to reimburse health care providers for health related expenses or lost revenues that are attributable to the coronavirus outbreak.” The remaining $25 billion will be used for expenses to research, develop, validate, manufacture, purchase, administer, and expand capacity for COVID-19 test to effectively monitor and suppress COVID-19.
The $75 billion provided under the Act will remain available until expended and will be used to prevent, prepare for, and respond to coronavirus to reimburse necessary expense or lost revenues incurred as a result of COVID-19. However, if a health care provider has already had expenses or lost revenues incurred due to COVID-19 reimbursed from other sources or that other sources are obligated to reimburse (like the CARES Act), any funds received from the $75 billion cannot be used as a “double dip” by that health care provider.
A big difference for health care providers with this Act, is that unlike the CARES Act that provided a direct deposit to health care providers based on Medicare fee for services reimbursement, no application necessary, this Act requires the health care provider to apply for relief funds. Eligible health care providers include public entities, Medicare or Medicaid enrolled suppliers and providers, profit and not-for-profit entities that provide diagnoses, testing, or care for individuals with possible or actual cases of COVID-19 (so as to accommodate the “lost revenues” provision, this could mean any patient treated since January 31, 2020, and is not necessarily limited to patients treated for COVID-19 symptoms without testing confirmation). Health care providers should act quickly and apply for funds as soon as possible as the HHS Secretary will review applications and make payments on a rolling basis. Payment may be a pre-payment, prospective payment, or a retrospective payment as determined by the HHS Secretary. Health care providers must submit an application that includes statements justifying the need of the provider for the payment. The provider must have a valid tax id number (could be an individually enrolled physician). As with the CARES Act, HHS will have the ability to audit how relief funds are expended and must start reporting obligations of funds to the House and Senates Committees on Appropriations within 60 days from the date of enactment of this Act. Reporting will continue every 60 days thereafter. read more
On February 4, 2020, the Department of Justice announced a $1.5 million settlement with Southeastern Retina Associates, a 17 physician practice, with offices in Tennessee, Georgia and Virginia. The sole basis of the claim was the alleged misuse of the Modifier 25 billing code and charging for exams at higher levels than warranted. The claim was initiated by a whistleblower, who will receive $270,000 from the settlement.
Use and potential abuse of Modifier 25 is obviously not unique to retina surgeons. In fact, the modifier can be very beneficial to providers, since it allows for payment for those patient visits when the care provided exceeds the scope of the scheduled appointment. However, given the potential for abuse and the many watchful eyes of the government (the Southeastern Retina case was investigated by the U.S. Attorney’s Office, the HHS Office of Inspector General, the U.S. Office of Personnel Management, the FBI, and the Tennessee Attorney General’s Office) and wannabe whistleblowers, a periodic review of a provider’s billing practices is always a good idea. read more
In 2014, the Centers for Medicare and Medicaid Services (CMS) started a program that combined the process of reviewing a sample of claims with providing follow up education as a way to help reduce errors in the claim submission process. This is called the Targeted Probe and Educate Program (TPE). The goal of the program is to help providers and suppliers identify errors made and quickly make improvements. CMS has acknowledged that since its inception the program needs improvements and that this type of review can be burdensome. Most providers and suppliers never experience a TPE review; however, for the ones that receive notification, here are the top five things you should know before moving forward:
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
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