AHCA Exemptions From Employment Disqualification for Florida Health Professionals

Attorney Geoge F. Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida law requires that health professionals (including physicians, nurses, physical therapists, nurse practitioners, professional counselors, and social workers, among others) obtain a Level 2 background screening before working in a facility licensed by the Agency for Health Care Administration (AHCA).  This includes third and fourth-year medical students, resident physicians, and nursing students.  Often an arrest from years ago, sometimes decades ago, will be located during this screening.  A letter stating that the individual is disqualified from employment or requiring an explanation may result.  What do you do?

Level 2 Background Screens.

A level two background screening requires your fingerprints.  It is done by checking the National Criminal Information System (NCIS) database maintained by the Federal Bureau of Investigation (FBI).  The NCIS receives reports, arrests, investigations, and criminal actions from all U.S. law enforcement agencies and the military.

It is much broader than a Level 1 background screening and covers all states and U.S. jurisdictions.

Problems and Incomplete Reports.

Although agencies that report arrests and investigations are also supposed to report the outcomes to the NCIS, they often fail to do this.  Therefore there may be incomplete information in the report that is received.  An arrest may be entered, but the dismissal or other resolution of the case may be omitted.  This will cause problems because you will have to explain what happened and produce court documents to prove it.  For example, we had a nurse-client whose Level 2 background screening came back with an arrest for a drunk and disorderly charge, in New Orleans, at Mardi Gras when she was 18 years old, over 30 years prior.  The courthouse had since been flooded during a hurricane, and all records were destroyed.

Another problem lies in military records.  Reports from The Army Criminal Investigative Division  (CID). Air Force Office of Special Investigations (OIS) and Navy Criminal Investigation Service (NCIS) are often received and entered into the system, even if the investigation concerned an administrative infraction, a minor infraction of regulations, or resulted in an Article 15 non-judicial punishment (NJP), an administrative proceeding which is not a criminal conviction.  Civilian authorities often mistakenly interpret Article 15 non-judicial punishment (NJP) as a “conviction,” but U.S. Supreme Court cases specifically state that it is not.

Certain Criminal Offenses Will Disqualify Health Professionals from Employment.

Many criminal offenses may be returned on a Level 2 background screening which initially appears to disqualify the individual from being employed in an AHCA-licensed facility, especially where the patients will be elderly, disabled, or children.  In this case, you will get a letter back from AHCA and/or your employer advising you that you are disqualified from employment, but you have thirty (30) days to provide documents to show what really happened, show the charges were dismissed, show that you have completed any sentence you received or show you have been fully rehabilitated.

We recommend that you obtain the services of an experienced health attorney in completing the forms and obtaining and producing the documents needed.  You should contact an attorney at the earliest sign that this might occur.  You will need certified copies of court documents and probation documents, as well as character reference letters.

The fact that you received prior screening when you applied for a license or before you began school is irrelevant to this process.  You will have to follow the procedure, anyway.  In the case of an actual guilty plea, a plea of nolo contendere (no contest), finding of adjudication withheld (deferred), or finding of guilty, you will have to request an exemption or a waiver from AHCA so that you may be cleared to be employed.

The Health Law Firm Attorneys have experience in Complying with AHCA Requirements and in Foiling Requests for Exemptions or Waivers.

The attorneys at The Health Law Firm have experience completing the petitions and providing the documents and explanations that AHCA requires in such matters.

Below is a copy of a decision letter from AHCA showing a successful result in such a case.

Exemptions for Employment Disqualification for Health Professionals

For more information, read our recent blog on Florida’s legislation on background checks for health professionals.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and other healthcare providers. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.


“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

 

New Study Faults Coding Structures For Increased Medical Billing Costs in U.S.

Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A study publicized in August 2022 revealed that the complex coding structures used in the United States drive up medical billing costs. This helps to make the U.S. one of the most expensive countries for health providers to get paid. According to the study, researchers used a micro-level accounting of billing and insurance-related (often abbreviated “BIR”) expenses in different national settings at six provider locations in five nations: Australia, Canada, Germany, the Netherlands, and Singapore. This most recent study supplements a prior study measuring such costs in the U.S.

The findings, published in Health Affairs Journal, revealed “BIR (billing and insurance-related) costs in the U.S. are generally much higher than the costs in other countries.” This means that all the extra costs of coding and billing, including the related expenses, are a significant factor in driving up health care cases in the U.S. Say what you want about doctors’ hating paperwork, but this study seems to validate that feeling.

The Findings of the Study.

The study confirmed what research has established that billing and insurance-related (BIR) costs in the U.S. are much higher than in other countries. For example, prices range from $6 in Canada to $215 in the U.S. for an inpatient surgical bill. In the U.S., that represented about 3.1 percent of the total professional revenue for the procedure. Providers also spent about 100 minutes processing the claim.

To compare, only Australia had similar billing and insurance-related costs to the U.S. Australia has a mix of publicly and privately funded payers and universal coverage. Billing and insurance-related costs were significantly less in Canada than in the other nations. The study said Germany, Singapore, and the Netherlands had equal billing and insurance-related costs.

A Common Trend: Complex Coding.

The U.S. has a coding process in which each payer has its forms and documentation requirements, creating a significant burden on providers to translate clinical documentation into billable codes for reimbursement.

Because of standardization in other countries, providers spend less time coding or do not need coders to translate documentation into billable codes. Additionally, “little physician time is spent entering billing-related information into the EHR [electronic health record] system, as charge codes are either generated automatically or entered manually by a lower-wage or nonclinical teammate,” the study stated. “As a consequence, these countries’ billing systems either require fewer labor resources or much less costly labor and physician time than the one in the U.S.”

Researchers also found that financial counseling could reduce overall billing and insurance-related costs in the U.S.

You can read the study in full and learn more by visiting Health Affairs, a leading peer-reviewed journal of health policy thought and research.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and other healthcare providers. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

LaPointe, Jacqueline. “Coding Drives Up Medical Billing Costs in the US.” Rev Cycle Intelligence. (August 3, 2022) Web.

Norris, Amanda. “REV CYCLE PROCESSES PUSH U.S. TO TOP OF LIST FOR HIGHEST MEDICAL BILLING COSTS.” Health Leaders Media. (August 10, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

Are You the Target of a Medicaid Audit? Tips Health Professionals Should Be Following

Headshot of Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Agency for Health Care Administration (AHCA), Office of Inspector General (OIG), and Bureau of Medicaid Program Integrity is the Florida agency responsible for routine Medicaid audits The agency ensures that the Medicaid program was billed correctly for services by health care professionals. Those receiving the greatest amounts of Medicaid payments are also the ones most likely to be audited.

These include pediatricians, Ob/Gyns, family practice physicians, and dentists. The Medicaid audit usually requests information in a questionnaire form. It also includes a request for copies of medical records (including X-rays and other diagnostic studies) for the patients selected for the audit.

If AHCA determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. Additionally, fines and penalties can be added by the Medicaid program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.

Practical Tips for Your Practice.

There are ways to run the everyday practice that will help you if you are selected for a Medicaid audit.
1. Every patient record entry should be clearly dated and signed or initialed by the provider. Make sure this is always done.

2. When documenting the patient’s record, make sure that you document exactly what services were needed and completed to support what was billed to Medicaid.

3. Communicate with the person responsible for your billing so that the actual services provided are billed for. Do not bill in advance for anticipated services needed as indicated in the appointment calendar or on a treatment plan.

4. Keep the patient records organized and ready for copying, if necessary. Using only one-sided documents and securely fastening small forms (prescriptions, telephone memos, small sticky notes) onto 8-1/2″ by 11″ paper will help those still using paper charts. Scan all such documents into the patient record using an electronic health record (EHR).

5. Services provided by a physician not enrolled in the Medicaid program to a Medicaid patient may not be billed to or paid by the Medicaid program. Therefore, never allow any other physician associated with your practice who is not enrolled as a Medicaid provider to provide services to Medicaid patients. Do not allow a new physician coming into your practice to treat Medicaid patients until he or she actually has received his or her Medicaid provider number. The group may not bill for the services, nor may another physician bill for the services.

6. Ensure that all health care professionals’ licenses and permits are updated. Ensure that all X-rays, clinical lab, and diagnostic equipment are permitted and kept up to date. Ensure that any CLIA license or exemption certificate is correct and kept up to date. Services billed by unlicensed personnel or services provided by improperly-licensed facilities may not be paid by the Medicaid program.

7. Use only standard abbreviations in your medical records documentation, orders, and reports. While an abbreviation may seem familiar to you or your practice, the auditors may not recognize it if it is not a universally accepted abbreviation.

8. Make sure all records are timely made, accurate and legible. Safeguard them, and never let the original leave your office. Illegible records are treated as a non-record, and payment is wholly disallowed for an illegible note or order. A missing record, X-ray, or chart entry will result in a complete repayment being directed for those services.


The Medicaid Audit.

If you are on the receiving end of an audit, AHCA will send you a letter notifying you. AHCA will also supply you with a list of patients to be sampled. A standard sample will include a list of anywhere from 30 to 150 patient names, as a general rule, depending on the size of the practice. Regular audits routinely request 30 to 50 patients’ records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a “Certification of Completeness of Records” form to complete and return with the copies of the patient records. (Please note: This will be used against you in the future if you attempt to add or supplement the copies of the records you provided.)

For more information, read a past blog that will let you know if you are the subject of an audit.

You must retain the services of an expert consultant or experienced health care attorney to correctly and accurately complete the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.

If you have been accused of Medicaid fraud and need to prepare for an audit, watch our informational video blog.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and other Legal Proceedings.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Healthcare Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

Supreme Court Rules Against HHS in Hospital Medicare Reimbursement Case

Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On June 15, 2022, the U.S. Supreme Court said the federal government improperly cut more than $1 billion a year in Medicare reimbursements to hospitals.  This came in a ruling that limits regulators’ power to control what the program pays for certain drugs.  In this case, the Supreme Court justices sided unanimously with a group of hospitals suing over drug reimbursement rates for facilities that serve low-income communities. In writing for the court, Justice Brett Kavanaugh said the U.S. Department of Health and Human Services (HHS) improperly calculated reimbursement rates using a methodology Congress authorized for use only in limited circumstances.

Were the Reimbursement Cuts Unlawful?

The Supreme Court overturned a lower court’s 2020 decision that HHS had the authority to reduce the yearly Medicare reimbursement rates for a group of hospitals serving low income communities. Click here to view the July 31, 2020 decision.

The high court found the U.S. Court of Appeals for the District of Columbia Circuit erred in 2020 when it allowed the HHS to reduce Medicare payments, by roughly $1.6 billion, for outpatient drugs that had helped subsidize the operations of the hospitals.  The Supreme Court’s decision did not extend so far as to undermine HHS authority, but only stated how the agency acted unlawfully in accordance with its varying rates for hospitals under the 340B Drug Pricing Program.

“In short, the statute allows HHS to set reimbursement rates based on average price and affords the agency discretion to ‘adjust’ the price up or down. But unless HHS conducts a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates by hospital group,” Justice Kavanaugh wrote in the ruling.


Regulating Reimbursement Rates Under the 340B Program.

Under Medicare, health care providers get reimbursed by the government for expenses, including medications used in hospital outpatient departments. Previously, hospitals had been getting reimbursed at a rate based on the average price of the drugs. However, in 2018, the HHS, under then-President Donald Trump, cut payments for outpatient drugs by 28.5% to hospitals receiving money under the 340B program.

The department found that reimbursements were too high because these hospitals obtain the drugs from manufacturers at a deep discount, an issue that also resulted in excessive patient co-payments. Additionally, the resulting cut dealt “a crushing blow to providers that were already operating on razor-thin  margins and to the vulnerable populations they serve,” the hospitals told the justices in a court filing.

Justice Brett Kavanaugh wrote for the court that “absent a survey of hospitals’ acquisition costs,” the HHS “may not vary the reimbursement rates for 340B hospitals. The HHS’s 2018 and 2019 reimbursement rates for 340B hospitals were therefore contrary to the statute and unlawful.”

Click here to read the Supreme Court’s Opinion in the case, American Hospital Association v. Becerra, 20-1114.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, Medcaid audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free at (888) 331-6620.


Sources:

Stohr, Greg. “Supreme Court Sides With Hospitals on Medicare Reimbursement.” Bloomberg Law. (June 15, 2022). Web.

Chung, Andrew. “U.S. Supreme Court faults Medicare cuts to hospitals for outpatient drugs.” Reuters. (June 15, 2022). Web.

Gresko, Jessica. “High court rules against government on drug reimbursement.” Associated Press. (June 15, 2022). Web.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

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DOJ Files False Claims Suit Against Nursing Homes Over “Substandard Services and Nonexistent” Care

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On June 15, 2022, the U.S. Department of Justice (DOJ) announced it has sued three nursing homes in Ohio and Pennsylvania, citing their “grossly substandard skilled nursing services.” The False Claims Act (FCA) complaint against the American Health Foundation (AHF), its affiliate AHF Management Corporation, and three nursing homes alleges the facilities fraudulently billed the Centers for Medicare & Medicaid Services (CMS) for often “nonexistent care.”

According to the complaint, all three AHF nursing homes not only provided substandard nursing home care services that failed to meet required standards of care but also did not maintain adequate staffing levels between 2016 and 2018.

Click here to view the complaint filed by the DOJ in the U.S. District Court for the Eastern District of Pennsylvania.

FCA Violations For “Substandard or Nonexistent Care.”

The government alleged AHF Management and its entities violated the FCA stemming from reimbursements for “grossly substandard” care provided at the Cheltenham, Wilmington Place, and Samaritan nursing homes.

“The defendants knowingly submitted, or caused the submission of, false claims to Medicare and Medicaid for nursing home care and services that were blatantly substandard or nonexistent,” the complaint read. “The Medicare and Medicaid programs provided reimbursement for the claims, but these payments were by mistake as CMS didn’t know the true and full extent of the defendants’ failure to provide patients with proper treatment and care.”

Alleged Patient Conditions and Mistreatment.

Examples of the appalling conditions described in the complaint included housing elderly and medically vulnerable patients in “pest-infested” buildings whose belongings were often stolen; giving residents unnecessary medications, including antibiotic, anti-psychotic, anti-anxiety, and hypnotic drugs; subjecting residents to verbal abuse; neglecting to provide residents with activities or stimulation, and failing to provide needed psychiatric care.

Additionally, the complaint outlines the suicide of a resident who was admitted with a history of self-harm and was later hospitalized after slashing his wrists but still was not provided psychiatric services. Tragically, just weeks after readmission, the resident committed suicide by hanging himself from a bedsheet in a shower room, justice officials said.

“Nursing homes are expected to provide their residents, which include some of our most vulnerable individuals, with quality care and to treat them with dignity and respect,” said Assistant Attorney General Brian M. Boynton, head of the DOJ’s Civil Division in a statement. He continued, “the department will not tolerate nursing homes, or their owners or managing entities, who abdicate these responsibilities and seek taxpayer funds to which they are not entitled.”

To read the DOJ’s press release in full on the case, click here.

The United States’ complaint stems from an investigation that the DOJ initiated as part of its “National Nursing Home Initiative.” The department launched the initiative in March 2020 to identify and investigate nursing homes that provide grossly substandard care.

Click here to learn more about the Justice Department’s nursing home initiative.

The case is United States v. American Health Foundation Inc., case number 2:22-cv-02344, in the U.S. District Court for the Eastern District of Pennsylvania.

Contact Health Law Attorneys Experienced in Handling False Claims Act (FCA) Violations, Investigations, and other Legal Proceedings.

The attorneys of The Health Law Firm represent healthcare providers in defending audits and investigations by the Department of Health and Human Services, the Department of Justice, The Drug Enforcement Administration (DEA), the Florida Department of Health (DOH), Medicaid Fraud Control Unit (MFCU), state boards of medicine, state boards of pharmacy, and state boards of nursing. They also represent health professionals and providers in administrative litigation (state and federal) and civil litigation (state and federal). They represent physicians, nurses, medical groups, nursing homes, home health agencies, pharmacies, dentists, pharmacies, assisted living facilities, and other healthcare providers and institutions in recovery actions and termination from Medicare and Medicaid Programs.

To contact The Health Law Firm please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

D’Annunzio, P.J. “Feds Hit Nursing Home With FCA Suit Over ‘Nonexistent’ Care.” Law360. (June 15, 2022). Web.

Marceas, Kimberly. ‘Grossly substandard’ care leads to False Claims charges for Ohio-based nursing home operator. McKnights Long Term Care News. (June 16, 2022). Web.

“Nursing Homes Face DOJ False Claims Suit Over Standards of Care.” Bloomberg Law. (June 15, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

 

Psychiatric Practice Reaches Settlement in FCA Suit to End Allegations of Employing Physician on OIG Exclusion List

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 23, 2022, a psychiatric practice and its owner agreed to pay $310,874 to resolve allegations they improperly hired and employed a physician who was excluded from federal healthcare programs. The physician who was hired was on the OIG’s exclusion list, the “List of Excluded Individuals and Entities” (LEIE). As a result, the government took the position that claims for services the physician provided filed against government programs were illegal pursuant to the false Claims Act (FCA). Details were disclosed in a Press Release by the U.S. Attorney for the District of Connecticut.

Geriatric & Adult Psychiatry, LLC (GAP), along with the owner, entered into a civil settlement agreement to resolve their liability under the federal and state False Claims Acts, the U.S. Department of Justice (DOJ) said in a press release.

Past Conviction Overlooked.

In 2006, the physician had been convicted in the Southern District of Florida of conspiracy to commit healthcare fraud. Because of his conviction, the Office of the Inspector General (OIG) excluded him from all federal healthcare programs. Such exclusion includes Medicare, Medicaid, Tricare, Veterans Administration (V.A.), and Indian Health Service (I.H.S.) programs.

When the OIG excludes an individual or entity from federal health care programs, no payments may be made for items or services furnished by that excluded individual. Additionally, the law prohibits any person or organization that receives such funds from employing or contracting with a person on the LEIE, in any way. To avoid potential liability, it is advised that health care providers check the List of Excluded Individuals/Entities (LEIE) on the OIG website: http://oig.hhs.gov/exclusions.

In addition, the OIG has issued a Special Advisory Bulletin to providers who might employ or contract with an excluded individual or entity to provide guidance. To review this OIG Bulletin, click here.

For more helpful information, click here.

Despite this, to medical group hired the former physician as the clinical director in 2016 where he served in that position until 2021. During that time, both the practice and its owner billed and sought reimbursements from Medicare, Medicaid, TRICARE, and the Railroad Retirement Medicare Program. Additionally, GAP’s reimbursements were used to pay the physician’s salary and benefits.

Payment Prohibition & Civil Monetary Penalties (CMPs).

Health care providers receiving funds from federal health care programs must check to see if potential employees and contractors are excluded by searching the LEIE to ensure that person is not listed. Providers have mistakenly assumed that exclusion does not apply to an individual or entity that provides services that extend beyond direct patient care; this is wrong. Payment prohibition extends to anyone who chooses to employ or contract with an excluded individual or entity in any capacity. Providers who violate this prohibition are required to pay back all federal health care program funds inappropriately received and may also be subject to civil monetary penalties (CMPs) and action under the False Claims Act (FCA).

Furthermore, payment of an excluded individual’s salary, benefits, or expenses, directly linked to federal health care program funds is expressly prohibited. Click here to read my prior blog and learn more about this.

Little Known Fact: You Must Actively Apply to Get Taken Off the LEIE.

A little-known fact, often overlooked, is that a person or entity on the LEIE must actually apply to be removed from it, no matter how short the period of exclusion. Thus if a person is excluded and placed on the LEIE for only two years, they must apply to the OIG after that period of time, completing its detailed, notarized application, and be removed from the list. Removal is not automatic.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Yankowski, Peter. “Officials: Hamden psychiatric practice to pay $310,000 settlement over employee who lost medical license.” Stamford Advocate. (February 23, 2022). Web.

Health Law Weekly. “Psychiatric Practice, Owner Pay $310K for Employing “Excluded” Individual.”American Health Law Association (AHLA). (February 25, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714; Phone: (407) 331-6620; Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022. The Health Law Firm. All rights reserved.

 

 

2022-04-21T22:35:28-04:00April 12th, 2022|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida’s Protecting DNA Privacy Act: How Will It Affect Healthcare Providers?

By George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law

On June 29, 2021, Florida Gov. Ron DeSantis signed into law HB 833, known as the “Protecting DNA Privacy Act,” which took effect in Florida October 1, 2021. Under the act, collecting or submitting another person’s DNA sample for analysis without his or her express consent now constitutes a second-degree felony in the state of Florida.  It amends Section 760.40, Florida Statutes, with the criminal penalties being set forth in Section 817.5655, Florida Statutes.

The new law clarifies the extent to which individuals own their genetic information. It also creates new crimes for the unlawful collection, retention, analysis, disclosure, or sale of an individual’s DNA sample and the results of a DNA analysis.  The act also has important implications for secondary uses of data by health care providers and others that perform genetic testing and analyze genetic information.


What is Genetic/DNA Privacy Law?

The use and accessibility of genetic testing, primarily through direct-to-consumer options (companies such as 23andMe and Ancestry.com ), has significantly increased in recent years, which has resulted in growing concerns about the privacy of genetic information and its use by third parties.

The Florida Legislature has focused on strengthening the protections surrounding genetic information. In 2020, it amended Florida law to limit the use of genetic information by life insurance companies for specific insurance purposes, including underwriting. Click here to read the final bill analysis for the act.


The Impact on Healthcare Professionals.

The new law will have the biggest impact on physicians who employ DNA testing in their practices. Physicians who collect or submit a patient’s DNA sample for DNA analysis will have to first obtain the patient’s express consent to do so.

“Express consent” is defined as “authorization by the person whose DNA is to be extracted or analyzed, or such person’s legal guardian or authorized representative, evidenced by an affirmative action demonstrating an intentional decision after the person receives a clear and prominent disclosure regarding the manner of collection, use, retention, maintenance, or disclosure of a DNA sample or results of a DNA analysis for specified purposes.”

This means that physicians who wish to have a patient’s DNA analyzed for a specified purpose need first to explain how the DNA sample will be collected, used, retained, and maintained and how the results of the DNA analysis will be used. This information ideally will be outlined in a formal, written document that the patient will sign. In addition, the legislation allows physicians to obtain a single express consent for every instance of a specified purpose or use.

What This Means For You.

Any healthcare professional engaged in such activities should consider reevaluating their consent processes to determine whether they obtain appropriate consent for all uses of de-identified results of DNA analysis. To learn more, click here.

Click here to view HB 833 in full.

Click here to review Section 760.40, Florida Statutes.

Click Here to review Section 817.5655, Florida Statutes, containing the criminal penalties.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.


Sources:

Peloquin, David. “What Fla. DNA Privacy Law Means For Health Providers.” Law360. (October 4, 2021). Web.

“How the new DNA privacy law could affect your practice.” Florida Society of Clinical Oncology. (September 20, 2021). Web.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.  Copyright © 2022 The Health Law Firm. All rights reserved.

COVID-19 Provider Relief Fund Expected To Run Out of Money If Congress Doesn’t Act Soon

Attorney and Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In 2020, the U.S. Department of Health and Human Services (HHS) created the “Provider Relief Fund” (PRF) to help support healthcare providers in the battle against the COVID-19 pandemic. The federal program has served as a lifeline to frontline healthcare workers who’ve experienced revenue losses and increased demand for their services during the pandemic.

To date, it has allocated more than $178 billion in payments to over 410,000 providers across the United States. Click here to learn more.

COVID-19 Uninsured Relief Fund.

Let’s start with some good news: Under the COVID-19 relief funding, HHS created the “uninsured relief fund.” This program provides claims reimbursement to health care providers for testing, treating, diagnosis, and administering vaccines to uninsured individuals for COVID-19. It has paid out more than $17 billion throughout the pandemic. It has paid out more than $17 billion throughout the pandemic.

Of the $17 billion, HHS has distributed nearly $10 billion for testing, more than $6 billion reimbursed for treatment, and the remainder covered vaccinations. Read more on the statistics here.

Running Out of Money.

Now for the bad news: According to an HHS spokesperson, there’s only $7.6 billion left, and the money will run out in the coming months. Congress isn’t currently considering making more funding available, meaning providers and patients are likely to have soon to bear the costs themselves.

Therefore, many hospitals and healthcare organizations urge Congress to replenish the PRF. “One of the most helpful and patient-oriented uses of the PRF was to help those people who for whatever reasons are uninsured and suffer from COVID-19,” said Federation of American Hospitals CEO Chip Kahn. “It meant that no one should have any reluctance to go to the hospital if they have COVID but no insurance.”

Additionally, on February 9, 2022, the American Hospital Association released a statement urging readers to contact lawmakers to get Congress to provide another $25 billion for the PRF in the government funding package. Read the AHA’s action alert here.

As we approach nearly two years since HHS declared COVID-19 a national public health emergency, PRF has been a lifeline to hospitals, health systems, and medical professionals. It has been helping to keep doors open during the pandemic to continue providing essential care to patients and communities. However, if the program runs out of money and Congress doesn’t appropriate more, hospitals could be left footing the bill, which will hurt both providers and patients in the end.

Read one of my previous blogs on a similar case regarding a Florida Dentist’s COVID-19 Business Interruption Insurance Claim to learn even more.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Hellmann, Jessie. “HHS running out of money to pay providers for treating uninsured COVID-19 patients.” Modern Healthcare. (February 8, 2022). Web.

HRSA. “Covid Uninsured Claim.” Health Resources & Services Administration. (February 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

Doctor Indicted in $1.3 Million Medicare Fraud Kickback Case Seeks Reinstatement of Medicare Billing Privileges

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 2, 2021, a doctor and his wife who had been indicted for their roles in a $1.3 million Medicare fraud scheme asked a New Jersey court to eliminate a bail condition. The doctor argued that the bail condition impeded his ability to practice medicine. Additionally, the doctor indicated that he was seeking to directly address CMS and the Medical Practice’s ability to bill Medicare and Medicaid.

According to the brief, the defendants argued that the court should not get involved in a licensed physician’s medical practice. They argued that this is the role of the state board of medicine.

Background of Their Case.

Both of the defendants, in this case, were arrested and charged in July 2020 for accepting bribes and kickbacks in exchange for ordering unnecessary genetic tests for patients. Genetic testing has turned out to be the latest area of large-scale health care fraud. According to the Department of Justice (DOJ), the scheme billed Medicare for a total of $1.3 million for unnecessary tests. Both of the defendants had been released on $250,000 unsecured personal recognizance bonds.

Click here to view the press release issued by the DOJ.

Is It Really Possible?

In a brief filed with the court, the doctor and his spouse specifically asked the judge to allow them to submit claims to the federal government for reimbursement and to allow the referral of patients to certain other providers.

The defendants argued that because CMS had already suspended both individuals from submitting claims, the court’s bail conditions were unnecessary. The defendants wanted to be able to approach CMS and attempt to have the medical practice’s ability to continue billing the Medicare and Medicaid Programs reinstated. They contended that certain safeguards could be put into place if the practice were allowed to do so. The brief further argued that to the extent, the court had the concern that they would continue to submit fraudulent billing, the following arguments would prevent that:

1. A proposed third-party management company and a third-party billing company, with appropriate peer review, would take over all management and billing responsibilities;

2. CMS would need to agree to reinstate the medical practice with whatever conditions and restrictions it felt necessary before the practice submitted any additional Medicare or Medicaid claims;

3. It is already a condition of their bail that the defendants commit no further crimes.

These defendants’ brief argued that these safeguards should adequately address any concerns of possible future wrongdoing.

Defendants Say Bail Conditions Are Unreasonable For a Working Medical Practice.

The defendants claim the court’s order makes it practically impossible for the doctor to keep his Pennsylvania medical practice open. They claimed that the doctor treats a sizable Medicare and Medicaid patient population. It also argued that, as a licensed physician, he must continue treating his existing patients. Lastly, the defendants argued that they are hoping to eliminate a condition which they claim forces the medical practice to choose between meeting required standards of patient care or violating the court’s bail order.

What Was The Court’s Decision?

These all seemed like some pretty well-thought-out arguments that the defendants made. What did the court finally decide on this matter? Unfortunately, you will have to tune in to this blog at a later date to find out. Hopefully, the answer will not be lost in chaos.

Click here to view the defendant’s brief in full.

To read about another recent case involving bribery and kickbacks in a healthcare fraud scheme, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced with Health Care Fraud, False Claims Act Violations, and Anti-Kickback Statute Violations.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, program integrity Contractor audits, False Claims Act cases, and whistleblower/qui tam cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Pagan, McCord. “Indicted Doc In Kickback Case Seeks CMS Billing Privileges.” Law360. (November 2, 2021). Web.

“Two Scranton area doctors charged in genetic testing bribery and kickback scheme.” PA Homepage. (July 17, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

 

 

 

2022-03-16T13:20:55-04:00March 16th, 2022|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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