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.
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
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
A recent decision by a Health and Human Services appellate panel emphasizes how strictly the government will interpret its rules and the disingenuous results that can sometimes follow when healthcare business operations best practices are less than optimal. Although the case referenced below involves a home health agency, the panel’s application of the rules applies to all Medicare providers. The resulting loss of the agency’s participation in Medicare serves as a sobering reminder that total compliance with all conditions of participation is crucial.
Vamet Consulting & Medical services was a Medicare-enrolled home health agency based in Houston, Texas. On July 14 and 15, 2014 the company conducted training for its office staff at its primary location. The training meant that all the agency’s staff would be in the back of the office, either in training or working, so the company locked its front door. read more
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
As many know, out-of-network providers have much different appeal rights with commercial plans than in-network providers. It is important to understand each health plan’s appeal procedure as well as time requirements for an appeal may vary. However, the appeal process is still one of the most important tools providers have to get paid in the current environment of reduced reimbursements, caps on the number and frequency of services, bundled payments based on specific codes, delayed payments, daily errors in claims processing leading to denied claims, claw backs, and the list goes on. read more
Earlier this year, the Florida legislature passed prohibitions against balance billing by out-of-network providers for emergency services and where the patient goes to a contracted facility but does not have an opportunity to choose a provider such as emergency room physicians, pathologists, anesthesiologists and radiologists.
Specific reimbursement requirements went into effect on October 1, 2016 for certain out-of-network providers of emergency and non-emergency services, where a patient has no opportunity to choose the provider.
Under these circumstances, an Insurer must pay the greater amount of either:
(a) The amount negotiated with an in-network provider in the same community where services were performed;
(b) The usual and customary rate received by a provider for the same service in the community where service was provided; or
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
ASAM and announced a collaborative effort with Brandeis University to test and validate three ASAM performance measures for addictions treatment. ASAM hopes that this project will provide measure testing of performance measures that will be accepted and adopted in the treatment of patients with addiction.
Three measures will be tested using two years of de-identified Cigna claims data for substance abuse. The measures to be tested in the study will be: use of pharmacotherapy for individuals with alcohol use disorders; pharmacotherapy for individuals with opioid use disorders and follow-up after withdrawal. This is expected to be a six month project. read more
Addiction treatment providers continue to react to an assault by payers to run them “out of town.” The first round of attacks (in the Fall of 2014) focused on the practice of copay and deductible write offs. The phrase cooked up by lawyers for Cigna, “fee forgiveness,” wound its way into the courts system in Texas in a case (Cigna v. Humble Surgical Hospital, Civ. Action No. 4:13-CV-3291, U.S. Dist. Ct., S.D. Tex., Houston Division) against a surgery center, where Cigna argued that the practice of a physician owned hospital in waiving “patient responsibility” relieved the insurer from paying ANYTHING for services needed by patients and provided to them. Though the case did not involve addiction treatment providers, it gave addiction treatment lawyers a look into what was going to come. The same argument made in the Texas case was the initial attack by Cigna in a broad attack of the addiction treatment industry, especially in Florida.
As addiction treatment providers fielded Cigna’s “fee forgiveness” attack in the context of “audits,” providers held firm to the belief that justice would prevail and that they would soon restore a growing need for cash flow. “If we just show them that we’re doing the right thing,” providers thought, “surely they will loosen up the purse strings.” After all, this was a patient population in terrific need of help, with certain [untested] protection by federal law (the Mental Health Parity Act). read more
The Medicare Access and CHIP Reauthorization Act was enacted to replace the flawed sustainable growth rate (SGR). MACRA contains performance measures for new payment models that will go in place in 2017. MACRA also established the Merit-Based Incentive Payment System (MIPS).
Physicians have to begin to learn about MACRA to improve performance and to avoid payment penalties.
We also have the Physician Quality Reporting System (PQRS), which penalizes providers for failing to report quality measures data on Part B services. To avoid a 2018 PQRS payment adjustment, for instance, providers have to report for a 12 month period.
There is also the Value Based Payment Modifier (VM) program that rewards groups for providing high quality, low cost care. It’s interesting to note that CMS proposes to publically report those providers who receive an upward adjustment. It’s being waived for Pioneer ACOs. It’s interesting to note that the measures used for the VM program are different than those used for ACOs; and this is causing a lot of confusion.
Bottom line: an increased use of benchmark establishment for quality and cost and financial incentive programs to achieve or surpass those benchmarks.
STARK LAW CHANGES
A new compensation arrangement exception is established for timeshare arrangements for the use of office space, equipment, personnel, items, supplies and other services. This sort of “overhead sharing” arrangement is done, but there hasn’t been a specific Stark provision for it till this year. It’s expected to be particularly useful in physician/hospital arrangements.
This exception amplifies the existing requirements that such arrangements must (1) be located where the physician or practice sees its patients, and (2) be used for designated health services that are incidental to what the doctor does, meaning E&M services and DHS that are provided at the time of such E&M services. read more