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Helpful Tips to Speed Up the Medicare Prepayment Review Process

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

For Medicare providers, being notified of an impending audit is not welcome news. Being notified of a prepayment review is even worse. In a prepayment review, the health care provider must submit documentation to the Centers for Medicare & Medicaid Services (CMS) contractor before ever receiving payment. The health care provider will only receive payment (typically months later) if the contractor is satisfied with the provider’s documentation. This can be financially disastrous for the health care provider, who still must pay day-to-day expenses while waiting for a decision.

CMS Contractors.

If you have received notice of prepayment review, you first need to determine the contractor that has initiated the review. CMS contracts with four types of contractors:

– Medicare Administrative Contractors (MACs);
– Comprehensive Error Rate Testing (CERT) contractors;
– Recovery Audit Contractors (RACs); and
– Zone Program Integrity Contractors (ZPICs).

Both the Medicare Administrative Contractors (MACs) and Zone Program Integrity Contractors (ZPICs) can initiate prepayment reviews.

MAC Prepayment Reviews.

MACs will initiate prepayment reviews of health care providers suspected of improper billing for services. If the MAC detects anything resembling fraud during the process, the prepayment review can extend for up to a year or more. However, MACs will generally terminate the prepayment review when the health care provider demonstrates a pattern of correct billing. Health care providers who are notified of a MAC prepayment review should consult with an experienced health care attorney from the beginning of the process. An experienced health attorney will be able to assist the health care provider to ensure everything is in place for a speedy prepayment review.

ZPIC Prepayment Reviews.

A MAC may refer a health care provider to a ZPIC for a benefit integrity prepayment review if they suspect fraud. A ZPIC can also initiate a benefit integrity prepayment review based on data analysis.  Unlike MACs, ZPICs generally are less willing to communicate with health care providers about the prepayment review.

Additionally, there are different time limitations for a benefit integrity prepayment review. The MAC prepayment review is governed by Medicare Manual provisions that stipulate a maximum length of time on a prepayment review. However, a benefit integrity prepayment review can last indefinitely, if the basis for the review is not timely and properly addressed by the health care provider.

Further, ZPICs make fraud referrals to the Department of Health and Human Services (HHS) Office of the Inspector General (OIG). Thus, health care providers should view ZPIC correspondence as the start of a potentially larger investigation. An experienced health care attorney should be contacted immediately after a health care provider receives any contact from ZPIC.

How to Accomplish a Speedy Review.

In many cases, the health care provider will be on Medicare prepayment review until its billing accuracy reaches a certain percentage. However there are other steps to help speed up the Medicare prepayment audit process.

1.  Read all Correspondence from the Contractor Carefully.

Pay close attention to all correspondence sent by the contractor. Make a note of the due date given and make sure your response is sent well within the time limits. Denials will usually occur if a response is not received by the given deadline. Also be sure that you send your response to the correct office.

2.  Be Familiar with Local Coverage Determinations (LCDs).

You should read and be familiar with any and all applicable local coverage determinations (LCDs) and national coverage determinations (NCDs) for any codes, services, supplies or equipment you are billing.

3.  Contact an Experienced Health Care Attorney Immediately.

A health care attorney who is experienced in prepayment reviews will be able to help you file a proper response in a timely fashion. An attorney will also be able to help find out additional information on why you have been placed on prepayment review and exactly what documentation the auditor is looking for. Alternatively, a health care consultant who has actual experience in working on Medicare cases and who has been an expert witness in Medicare hearings may be able to assist, as well.

4.  Contact the Contractor Responsible for the Review.

After you have consulted with an attorney, schedule a call with the contractor responsible for your prepayment review. During the call learn as many details about the audit as you can and find out what the reviewer wants in the documentation.

However, do not:
a. Argue with the auditor.
b. Berate or demean the auditor.
c. Challenge the auditor’s knowledge, competence or credentials.
d. Ask the auditor to prove anything to you.
e. Demand to speak to the auditor’s supervisor.

5.  Do Not File Duplicate Claims.

Keep track of all requests for additional documentation and when they were received. Do not think that you need to file another claim for the same items just because you have not received a response as quickly as other claims where additional documentation was not requested. If you provide duplicate claims, the contractor’s decision can be delayed.

6.  Organize all Submissions and Results.

You must keep track of the date you receive the document request for a claim, the date you submitted the documentation for review, the result of the audit and the date the result was received. This will help you realize how quickly claims are reviewed. If a one claim’s review has taken longer than the others you’ve submitted, you can contact the reviewer to make sure they have received the claim and everything is in order.

7.  Follow-up with the Contractor for Feedback.

Keep in contact with the contractor throughout the review. This will help to maintain the relationship you initiated after first receiving notice of the prepayment review. This will also help you keep track of any issues and resolve them. Be sure to discuss how you can improve your claim submissions to meet the standards of your particular reviewer.

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 health care providers in prepayment reviews. 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 (850) 439-1001.

Sources:

Baird, Jeff. “Q&A with Jeff Baird: How to Prepare for and Survive Prepayment Reviews.” Home Care. (Sept. 13, 2010). From http://homecaremag.com/news/prepayment-review-faq-20100913/

Greene, Stephanie Morgan. “5 Steps to Get Off Pre-Payment Audit – Quickly!” Harrington Managment Group. (Mar. 18, 2011). From
http://homecaremag.com/news/prepayment-review-faq-20100913/

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.

Tag Words: prepayment audit, prepayment review, Medicare audits, Medicare, Centers for Medicare & Medicaid Services, CMS, RAC, Recovery Audit Contractor, ZPIC, Zone Program Integrity Contractor, MAC, Medicare Administrative Contractor, CERT contractor, Comprehensive Error Rate Testing contractor, overpayment, prepayment reviews, First Coast Service Options, Medicare contractor, Medicare fraud, Medicare investigation, Medicare overbilling, OIG

“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.

By |2018-08-29T18:50:11+00:00August 29th, 2018|The Health Law Firm Blog|0 Comments

Health Care Professionals Need to be Compliant with Anti-Fraud Laws

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

The federal government has several tools available to help combat Medicare fraud. Among those are the Stark Act, Anti-Kickback laws and Civil Monetary Penalty Laws. Each of these typically focuses on a particular type of behavior that is prone to abuse by health care providers.

The Stark laws exist to combat the problems that can arise from physician self-referrals. Self-referrals are cases in which a physician orders a test or service and refers the patient to a provider in which the referring physician has a financial interest. This second provider will then bill Medicare for the service, essentially allowing the referring physician to cash in twice.

The concern is that if physicians are permitted to benefit from referring to an entity, they will be prone to order tests and services that are not medically necessary. I previously wrote an article on the legal ramifications of unnecessary tests, which was published in Medical Economics. Click here to read that article.

Obligations for Compliance.

Stark compliance is a two-way street. Not only is the physician prohibited from referring to an entity in which he has a non-exempt financial interest, the provider receiving the referral is prohibited from accepting it.

Medicare conditions payment of a claim upon the certification by the claimant that it is in compliance with the Stark law. What this means is that there is an obligation on the recipient of a referral to make sure that it is proper.

In the complicated world of healthcare business entities, it is incumbent upon the management of a supplier of Designated Health Services (DHS) to know who all of its owners, investors, and stakeholders are so that it can remain in compliance and avoid any charges of impropriety.

Exceptions to Stark Law.

Like many other regulatory frameworks, the Stark law have exceptions. The law provides a number of exceptions to the rules which allow otherwise impermissible referral arrangements to pass muster.

Because the exceptions are numerous and often subject to change, it is highly recommended that any new business arrangement, or substantial change to an existing one, is reviewed by a health law attorney experienced in the area of Stark law.

Contact Health Law Attorneys Experienced in Handling Stark Compliance.

If you are involved in referring or providing DHS it is crucial that your arrangements are reviewed for compliance with Stark and other anti-fraud laws.

Violations of these laws can carry severe financial and criminal penalties. One of the best ways to avoid these sanctions is to have your current or potential arrangement reviewed by an attorney who is experienced in these matters.

The Health Law Firm routinely advises healthcare providers on Stark compliance issues for practitioners and providers of all types of DHS. We can advise you on the legality of a particular arrangement and can assist with remedying any perceived compliance issues.

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.

KeyWords: Medicare representation, Medicare fraud representation, Medicare fraud defense lawyer, Medicare audit representation, Medicare fraud prevention, Stark Law attorney, Stark Law representation, Anti-Kickback representation, AKS defense lawyer, representation for healthcare fraud, health care fraud compliance, representation for health care professionals, health law defense attorney, health care fraud lawyer, Florida defense attorney, Florida defense lawyer, heath law attorney, health law lawyer, representation for health care professionals, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law defense attorney, protecting your professional license

“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.

FDA Releases Draft Guidance to Revamp Drug Indication and Usage Labels

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

On July 6, 2018, the U.S. Food and Drug Administration (FDA) released draft guidance outlining its recommendations for how drug companies should word the indications and usage sections on a drug’s label. The new guidance aims to increase readability and reduce redundant information on indications and usage.

Drug Indication Label.

Prescribers can expect to see revamped drug labels with clearer descriptions of the conditions and patient populations for which an FDA-approved drug is indicated. Also, described in the guidance are circumstances when it might be appropriate for an indication to be either broader or narrower than the parameters of the clinical studies that backed its approval.

In addition to suggesting what information labels should include, the draft guidance also indicates what should be omitted to avoid unnecessary clutter the label.

The FDA hopes this guidance will give health care providers more precise information on which conditions a drug is approved to treat and, therefore, help identify the correct treatment options for patients. To read the FDA’s draft guidance in full, click here.

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Sources:

Gever, John. “Drug Labels to Get FDA Revamp.” MedPage Today. (July 6, 2018). Web.

Field, Emily. “FDA Releases Draft Guidance On Drug Indication Labeling.” Law360. (July 6, 2018). 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.

KeyWords: Food and Drug Administration (FDA) defense attorney, representation for FDA matters, legal representation for health care professionals, representation for prescribers, pharmacy representation, legal representation for pharmacies, pharmacy defense lawyer, pharmacist representation, legal representation for pharmacists, pharmacist defense attorney, health care compliance lawyer, health law defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“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.

By |2018-07-12T19:27:45+00:00July 12th, 2018|The Health Law Firm Blog|0 Comments

Texas Doctor Charged With Faking Diagnoses in $240 Million Health Care Fraud Scheme

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

On May 14, 2018, a Texas doctor was arrested on charges he led a $240 million health care fraud and money laundering scheme. He allegedly falsely diagnosed at least 16 patients with degenerative diseases and gave them unneeded chemotherapy and other treatments.

Fake Diagnoses and Treatments.

The doctor allegedly bilked Medicare, Medicaid, TRICARE, Blue Cross Blue Shield and others through a scheme in which he would falsely diagnose patients with diseases like rheumatoid arthritis. According to the indictment, he would then give them treatments based on those false diagnoses, and conduct repetitive and excessive unnecessary medical procedures.

Additionally, the office staff alleges that they were instructed to increase the number of medical procedures performed on patients. If patients questioned him about the diagnoses and procedures, he subsequently dismissed them from his practices, according to the indictment.

In an attempt to hide the scheme from government investigators, he created fake patient records and hid other medical records.

Money Laundering.

The doctor and his alleged co-conspirators submitted about $240 million in false claims to the health care benefit programs and he allegedly used this money to fund a very lavish lifestyle. He allegedly laundered proceeds from the scheme through a money exchange house in Texas, to various accounts maintained by financial institutions in Mexico.

According to prosecutors, the indictment lists 16 patients who were allegedly victims of the scheme, which dates back to 2000. Federal Prosecutors say they will seek the harshest punishment possible in this case.

Click here to read the indictment.

To read about a similar case involving a doctor giving false diagnoses and treatments, click here.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Sources:

Krochtengel, Jess. “Texas Doc Charged With Faking Diagnoses In $240M Scheme.” Law360. (May 14, 2018). Web.

“Valley Doctor Charged in Alleged $240M Health Care Fraud Case.” KRGB News. (May 14, 2018). 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.

KeyWords: Medicaid fraud attorney, Medicaid fraud representation, Medicare fraud attorney, Medicare fraud representation, submitting false claims to the government, False Claims Act defense counsel, FCA attorney, health care litigation lawyer, legal representation for health care fraud defense, health care litigation attorney, representation for unnecessary medical procedures, intentionally misdiagnosing patients, fraudulent billings defense attorney, defrauding health care benefit programs, Medicare audit defense attorney, Medicare billing attorney, physician billing attorney, TRICARE attorney, TRICARE fraud representation, health care fraud representation, Medicaid audit attorney, Medicaid audit representation, Medicare audit representation, fraudulent billing representation, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“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 © 2018 The Health Law Firm. All rights reserved.

By |2018-07-05T18:48:05+00:00July 5th, 2018|The Health Law Firm Blog|0 Comments

Terrible Things That Can Happen after Discipline on Your Professional License or Resignation of a License after Notice of Investigation

Patricia's Photos 013By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Do you have a medical, pharmacy or nursing license in several different states?  Do you have a license in more than one health profession?  Have you been notified that an investigation has been opened against you?  Are you thinking about resigning your professional license or voluntarily relinquishing such a license?  Then you must be aware of the following.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you.  Such a resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported out to other states, agencies, to the National Practitioner Data Bank (NPDB), to any certifying bodies for certifications you have and to other reporting agencies (such as the National Council of State Board of Nursing, the National Association of Boards of Pharmacy or the American Board of Internal Medicine).  Other states and other professional boards will most likely initiate disciplinary action based upon the first one.

Protect Your License from These Adverse Actions.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your professional license after receiving notice of investigation:

1.  A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank or HIPDB recently merged into the NPDB.

2.  Must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one), and remains for at least ten years.

3.  Any other states or jurisdictions in which the nurse has a license will also initiate an investigation and possible disciplinary action against him or her in that jurisdiction.  (Note:  I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, initiated action).

4.  The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program.  If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a.  If this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid.  This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b.  If this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list.  This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding.  This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c.  If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program.  In many states, this is also grounds for revocation of your license.

5.  Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing, American Medical Association physician profile, or the Federation of State Board of Physical Therapy profile) will include the adverse action in it, generally available to the public.

6.  If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff membership if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic.  This will usually be for physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives or certified nurse anesthetists (CNAs), podiatrists, clinical psychologist or clinical pharmacists.

7.  Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

8.  The U.S. Drug Enforcement Administration (DEA) will act to revoke the  professional’s DEA registration if he or she has one.

9.  Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

What Should You Do?

–  Don’t take the easy way out by immediately relinquishing your license if you are notified you are under investigation.

–  Don’t hide your head in the sand by thinking the case will just go away on its own.

–  Don’t take the easy way out.  If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

–  Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true.  If you do this, you are “pleading guilty.”

–  Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings.  They are out there, but you may have to search for one.  Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

–  Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not.  This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney.  Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage.  Make sure it covers professional license defense under all circumstances.  Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase;  $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation.  For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.

Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past who provide an inexpensive top quality insurance product for professional license defense costs include:  CPH & Associates Insurance, Nurses Service Organization (NSO) Insurance, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, nurses, pharmacists, pharmacies, dentists, mental health counselors, massage therapists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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 © 1996-2012 The Health Law Firm. All rights reserved.

You Must Challenge Overpayment Demands from Medicare and Medicaid Audits

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We have recently received numerous communications from health care professionals, including physicians, physical therapists, occupational therapists, mental health counselors, durable medical equipment (DME) providers, assisted living facilities (ALFs), group homes, and psychologists, who have been placed on prepayment review after failing to challenge Medicare or Medicaid audit results. The problem is that these providers, once placed on prepayment review, have their payments held up for many months and are often forced out of business. Sometimes it appears that this may actually be the goal of the auditing contractor or agency.

What Happens on Prepayment Review.

Failing to challenge, follow-up on, and appeal any adverse audit determinations can be very detrimental. An error rate in excess of fifteen percent (15%) will usually result in the provider being placed on prepayment review. While on prepayment review, the provider will be required to submit the documentation for medical records by mail to support each claim submitted and have that claim and its supporting medical records’ documentation audited, prior to any claims being paid. Often the auditing agency will come back to the provider again and again to demand additional information and documentation on claims instead of immediately processing them. This can hold up processing of the claim for months. Often the resulting termination of income flow will force the provider out of business. This saves the government lots of money, because the provider has then provided services to Medicare or Medicaid recipients for many months without ever getting paid for it.

These are some of the reasons why we recommend that physicians, physical therapists, occupational therapists, podiatrists, optometrists, psychologists, mental health counselors, respiratory therapists, and others always hire the Board Certified Health Law Attorney experienced in audits from the very beginning.

A Real-Life Example of the Trouble Caused by a Medicare Audit.

In one case we know of, a therapist was audited by Medicare. The audit by the Medicare administrative contractor (MAC) requested only 30 records. The therapist provided copies of the records he thought the auditors wanted. He did not number the pages or keep an exact copy of what he provided. The MAC came back and denied one percent (1%) of the claims audited. However, since the amount demanded back by the MAC was only a few thousand dollars, the therapist never hired an attorney and never challenged the results. Instead of retaining legal counsel and appealing the results, the therapist paid the entire amount, thinking that was the easy way out.

Unfortunately, because of the high error rate, the MAC immediately placed the therapist on prepayment review of all claims, assuming the prior audit had disclosed fraud or intentional false coding. Every claim the provider submitted from that point on had to be submitted on paper with supporting medical records sent in by mail. The MAC refused to make a decision on any of the claims, instead, holding them and requesting additional documentation and information from time to time. The therapist currently has most of his claims tied up in prepayment review, some for as long as five months with no decision. No decision means no review or appeal rights.

The therapist conveyed to me that he recently contacted the auditor to attempt to obtain decisions on some of his claims so that he could at least begin the appeal process if the claims are denied. He advised me that the auditor at the MAC expressed surprise that he was still in business.

Challenge Improperly Denied or Reduced Claims.

These situations are very unfair and unjust, especially to smaller health care providers. The reduced cash flow even for a month or two may be enough to drive some small providers out of business. Larger health care providers have vast resources sufficient to handle such audit situations on a routine basis. They may have similar problems but are better equipped and have more resources to promptly handle it. Rather than immediately pay whatever amount is demanded on an audit and waive any appeal/review rights, the provider should review each claim denied or reduced and challenge the ones that have been improperly denied or reduced. Otherwise you may wind up with a high error rate which will cause you to be placed into prepayment review. Once placed in prepayment review, it is difficult to get out of it. Often it takes six months or longer.

Don’t Get Caught Up in the Audit Cycle.

Another reason to challenge overpayment demands as a result of an audit is because the audit contractors will keep you on an audit cycle for a number of future audits if they are successful in obtaining any sort of significant recovery from you on the initial audit. This is similar to what happens if your tax return is audited by the Internal Revenue Service (IRS) recovers a significant payment from you because you did not have the documentation to support your deductions, you can expect to be audited for at least the next two years.

The value of competent legal representation at the beginning of an audit cannot be overestimated. It is usually long after the audit is over, and the time to appeal the audit agency’s findings has passed, that the health care provider realizes he should have retained an audit consultation.

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, ZPIC 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 (850) 439-1001.

Comments?

Have you ever been audited? What was the process like? Did you retain legal counsel to help with the process? Was having legal assistance worth it? Please leave any thoughtful comments below.

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 © 1996-2012 The Health Law Firm. All rights reserved.

Will Florida Board of Medicine Follow Board of Pharmacy’s Lead and Recommend PRN Evaluations for Applicants Before Application is Considered?

Lance Leider headshotBy Lance Leider, J.D., The Health Law Firm

At the February 12, 2014, Florida Board of Pharmacy meeting, some board members expressed frustration with the fact that applicants for licensure with prior mental health or substance abuse related issues had not been evaluated by the Professionals Resource Network (PRN) prior to the consideration of their applications by the Board.  The applications were scheduled for consideration, but applicants were told to come back after they had PRN evaluations.  This recommendation by the Board of Pharmacy could have potentially serious consequences for applicants.

So far, the Board of Pharmacy is the only Board we are aware of to make such a recommendation. We are waiting to see if the Board of Medicine or other professional boards follows suit.

No Statutory Requirement to Get Preemptive PRN Evaluation.

The Board of Pharmacy’s recommendation that any applicants with “positive health history responses” seek out a PRN evaluation prior to submitting the application is not a course of action we would recommend for nurses, doctors, pharmacists or any healthcare provider.  There is no statutory requirement that an applicant with past or present drug or alcohol issues be evaluated by PRN prior to submitting an application to any professional board.

Issues with Submitting to Preemptive PRN Evaluation.

Submitting to a PRN evaluation places the applicant at the mercy of the organization and its appointed evaluator.  If an applicant is deemed by PRN to require monitoring there is likely no way that a license of any kind will ever be issued without the blessing of PRN.

Typically PRN monitoring contracts last for five years.  They require, among many other things: daily check-ins for drug and alcohol screens; frequent mental or substance abuse evaluations; weekly support meetings; possible restrictions on practice type and location; psychiatric following; total abstinence from all non-approved medications; total abstinence from alcohol; and notification of present and future employment.

In a word, PRN contracts are onerous.

Submitting to a PRN evaluation before your application is considered by the Board may serve to effectively waive your right to individual consideration of your application.  If PRN says you need to be monitored, there is likely no way that the Board of Medicine will grant you a license that is not conditional on your participation in the program.

Your license will likely be listed as “Active/Obligations” instead of “Clear/Active.”  This means that any member of the public, coworker, employer, insurer, etc., can look you up and see that you are under some kind of practice restriction.  While the exact conditions of your obligation may not be publicly available, you can bet that questions will come.

The Alternative to a Preemptive PRN Evaluation.

Because no Board has the right to force you to have a PRN evaluation prior to considering your application, there are several things that you can do to avoid the program.  The Board of Medicine is required to review every application on its own merits.  This means that you can supplement your application with recommendations and evaluations from your own physicians.

The Board of Medicine often considers the recommendations of treating physicians and counselors as evidence that an applicant is safe to practice. What this means is that you can obtain your own evaluation outside of the PRN program.  Such an evaluation would not have the potential of locking you into a monitoring contract before you have even applied.

A health care professional’s career rides entirely on his or her license to practice. It is not advisable that you face the Board of Medicine without at least consulting with a health law attorney.

Contact a Health Law Attorney Experienced in the Representation of Physicians and Other Health Care Providers Before the Board of Medicine.

The Health Law Firm and its attorneys are experienced in dealing with the Board of Medicine, PRN, and license applications.  Our attorneys can help you get your application and supporting documentation together and present it to the Board in the most effective way possible.

Our firm has extensive experience in representing physicians, nurses, pharmacists and other professionals accused of drug abuse, alcohol impairment, mental impairment and sexual boundary issue, as well as in dealing with the Professionals Resource Network (PRN), its advantages and disadvantages, its contracts, its personnel, and its policies and procedures.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

What do you think about the recommendation made by the Board of Pharmacy to get a preemptive PRN evaluation? Do you think any other board will make the same recommendation? Please leave any thoughtful comments below.

About the Author: Lance O. Leider 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 Avenue, Altamonte Springs, Florida 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 © 1996-2014 The Health Law Firm. All rights reserved.

More than 30 People Charged with Pharmaceutical Drug Trafficking in Central Florida

By Dr. Thu Pham, O.D., Law Clerk, The Health Law Firm

Attorney General Pam Bondi along with special agent Mark R. Trouville of the Drug Enforcement Administration (DEA) and Longwood Police Chief Troy Hickson announced, on June 20, 2012, the execution of 37 arrest warrants stemming from state drug charges.  The defendants all reside in Central Florida.

Click here to read the entire press release from the Florida Attorney General.

Charges are Being Handed Down to the Defendants.

The charges for the defendants ranged from first degree to third degree felonies.  The defendants have been charged with acts such as conspiracy to traffic Oxycodone, solicitation to deliver Oxycodone, and possession of Hydromorphone with intent to sell or deliver. 

Law enforcement authorities have been able to apprehend 33 of the 37 charged.

Click here to see our experience representing pharmacists and pharmacies.

Contact Health Law Attorneys Experienced with Representing Pharmacists and Pharmacies.

The attorneys of The Health Law Firm provide legal representation to pharmacists and pharmacies in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.

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

Sources:

myfloridalegal.com. “DEA: 37 Charged in Longwood Local Impact Drug Trafficking Conspiracy.” AG. (June 20, 2012).  From Press Release:

http://www.myfloridalegal.com/newsrel.nsf/newsreleases/9E8D06F29BCB233B85257A230072572A.

Justice.gov. “Law Enforcement Dethrones “Queen” of Longwood, Florida.” DEA, Domestic Field Division. (June 20, 2012).  From Press Release:

http://www.justice.gov/dea/pubs/states/newsrel/2012/mia062012.html

About the Author: Dr. Thu Pham, O.D., is a law clerk 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., 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 © 1996-2012 The Health Law Firm. All rights reserved.

Phony Dentist Gets Busted for Child Abuse After Injuring Teen During Illegal Dental Procedures

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

A Miami man, his wife and their daughter have been charged with child abuse following two alleged dental procedures that left a 14-year-old girl permanently disfigured. According to a number of sources, the three were arrested on September 12, 2012, at their home-operated dental office.

Click here to see the man’s arrest affidavit from the Miami Police Department.

14-Year-Old Left in Pain and Disfigured After Procedures.

According to the Miami Herald, when the 14-year-old girl broke a front tooth, she and her mother went to the man, who claimed to be a dentist when he lived in Cuba. He offered to perform the dental work in the back room of his home office for $500. Instead of fixing the tooth, the article states the man filed all four of the girl’s front teeth down to the gums. He then allegedly fit her with a permanent bridge, which the mother described as an “iron bridge painted white with the form of teeth.”

The victim was allegedly left with swollen and blackened gums, according to the Miami Herald. She is now under the care of a licensed dentist at the University of Miami.

To read the entire article from the Miami Herald, click here.

Fake Dentist and Family Face Child Abuse and Performing Dental Services Without a License.

The fake dentist and his wife, who apparently witnessed the procedures, face charges of child abuse, child negligence and performing dental services without a license. The couple’s daughter faces a charge of child negligence.

The license status of almost all health care professionals can easily be checked online. In Florida, license verification for all health care professionals can be checked on the Florida Department of Health (DOH) website. Hint: If they don’t have a license, they ain’t a legitimate health professional.

This case was investigated by the Miami Police Department, the DOH and a Miami-Dade County team that fights pharmaceutical crime. Detectives suspect more victims will soon come forward.

Is Miami a Hotbed for Phony Physicians?

We have seen many reports on phony doctors, dentists, nurse practitioners and others practicing in the Miami area over the past decade. Many of these operate surreptitiously and prey on immigrants and foreign nationals. Others operate blatantly and publicly advertise.

Plastic surgery and cosmetic procedures appear to be the most likely area to be “practiced” by the imposters. We have seen or heard reports of physicians performing surgery in hotel rooms. We have read reports of walk-in plastic surgery offices where animal sedatives were used to sedate the patient and plastic knee replacements were used as breast implants.

More Stories on Fake Physicians and Other Health Professionals to Come.

In the near future on this blog, we will include additional articles on fake doctors and health professionals, some old, some new.

To see a recent blog on a Florida teen impersonating a physician’s assistant (PA), click here. You can also read the story of a fake plastic surgeon in New York by clicking here.

Sound Off.

Have you heard of any stories about fake health care professionals? What do you think if this story? Leave your comments below.


Contact Health Law Attorneys Experienced in Representing Health Care Providers in DOH Cases.

The Health Law Firm represents dentists, pharmacists, pharmacies, physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Agency (DEA), Department of Health (DOH), and other law enforcement agencies.

If you are aware of an investigation of you or your practice, or if you have been contacted by the DEA or DOH, contact an experienced health law attorney immediately.

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

Sources:

Sanchez, Melissa. “Little Havana Man Accused of Injuring Girl with Illegal Dental Work.” Miami Herald. (September 12, 2012). From: http://www.miamiherald.com/2012/09/12/2999610/little-havana-man-accused-of-injuring.html

CBS Miami. “Girl Leaves Dental Dungeon With Mangled Teeth; 3 Charged With Child Abuse.” CBS Miami. (September 12, 2012). From: http://miami.cbslocal.com/2012/09/12/girl-leaves-dental-clinic-with-disfigured-teeth-3-charged-with-child-abuse/

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 © 1996-2012 The Health Law Firm. All rights reserved.

Tuomey Healthcare System Ordered to Pay a Reduced $238 Million in Damages for Allegedly Violating Stark Law and False Claims Act

LOL Blog Label 2Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 30, 2013, a federal judge ordered Tuomey Healthcare System in Sumter, South Carolina, to pay $238 million in penalties and fines. The hospital system is accused of paying doctors to refer Medicare patients for treatments at the hospital, according to a number of media sources. The judge granted the government’s request to impose Stark law penalties and False Claims Act fines. The lawsuit against Tuomey was initially filed in 2005, by a whistle-blowing physician.

This corrected fine actually lowers the amount originally ordered by the federal judge, reducing it by $39 million. The original judgement was for approximately $277 million. The reduction in the damages was an acknowledgment that there was an error in the calculation of damages by the judge in the case, who awarded more than the government asked for.

Click here to read the entire ruling from the federal judge.

After the judge announced the fines, Tuomey began preparing to file an appeal, according to an article on Modern Healthcare. It is alleged that the hospital may be looking to settle.

Judge Ordered Hospital System to Pay Fines for Violating Stark Law and False Claims Act.

In a 2005 federal whistleblower or qui tam lawsuit, a Tuomey physician stated that a series of 19 deal contracts with specialty physicians in the area violated the federal ban on compensating doctors based on the volume and value of patient business they refer, according to Modern Healthcare. This is considered to be a financial conflict, illegal under federal laws.

The hospital has twice lost its case in U.S. District Court. A 2010, jury came to a $45 million split verdict that was overturned on appeal. In May 2013, a second jury found the hospital responsible for more violations than in the first trial, deciding that the hospital violated the Stark law and the False Claims Act.

It’s alleged that between 2005 and 2009, Tuomey collected $39 million in fraudulent Medicare claims.

To read the Modern Healthcare article, click here.

Open to Settlement.

According to WLTX, the CBS affiliate in Sumter, South Carolina, Tuomey is filing a notice of appeal. It is expected the hospital system is open to settle. According to a former attorney with the Department of Health and Human Services’ (HHS) Inspector General’s Office (OIG), it will be up to the government if they will settle. The former attorney also stated that with most of the civil litigation division on furlough it might take some time.

Complying with Stark and Other Anti-Fraud Laws.

The federal government has several tools in its toolbox to combat Medicare fraud. Among those are the Stark Act, Anti-Kickback laws, and Civil Monetary Penalty Laws. Each of these typically focuses on a particular type of behavior that is prone to abuse by health care providers.

Primarily, the Stark laws exist to combat the problems that can arise from physician self-referrals. Self-referrals are cases in which a physician orders a test or service and refers the patient to a provider in which the referring physician has a financial interest. This second provider will then bill Medicare for the service, essentially allowing the referring physician to cash in twice. Click here to read our previous blog on compliance with the Stark law.

Paying Kickbacks or Providing Things of Value in Exchange for Patient Referral Now Recognized as Basis for False Claims Act Cases.

U.S. v. Tuomey is just one of several different cases that has recently been decided that allows qui tam or whistleblower recoveries based on providing kickbacks for patient referrals. “Kickbacks” can include any thing or service of value. It can include, for example, tickets to ball games, free meals, sets of surgical scrubs, gift cards, appliances and free medical supplies. A “referral” can include an actual referral of a patient, a consultation to another physician, an order for x-rays, labs or other diagnostic testing, a prescription for medication, medical equipment or other supplies or services, an order for home health or nursing home services or other medical services.

It is the giving of something of value in exchange for the referral that violates the Stark Act and, many times, state laws. The theory is that this unnecessarily increases the amount of medical services that the government pays for without there being any actual medical need for them.

Now, under the decision in Tuomey and other cases, the claims for medical services (and equipment) that were submitted when the services (and equipment) were based on kickbacks, are considered to be false claims. Whistleblowers (qui tam plaintiffs or “relators”) can now file False Claims Act suits based on these theories and share in the government’s recovery. For example, and by way of demonstration only, if the person who filed the qui tam case in Tuomey received only 20% of the amount awarded to the government, that individual would receive approximately $47.6 million as their share. This is still big money to some of us.

Contact Health Law Attorneys Experienced in Handling Stark Compliance.

If you are involved in referring or providing DHS it is crucial that your arrangements are reviewed for compliance with Stark and other anti-fraud laws.

Violations of these laws can carry severe financial and criminal penalties. One of the best ways to avoid these sanctions is to have your current or potential arrangement reviewed by an attorney who is experienced in these matters.

The Health Law Firm routinely advises healthcare providers on Stark compliance issues for practitioners and providers of all types of DHS. We can advise you on the legality of a particular arrangement and can assist with remedying any perceived compliance issues.

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

Comments?

What do you think of this ruling? Please leave any thoughtful comments below.

Sources:

Calson, Joe. “Out-of-Court Settlement for Tuomey may be in te Works Following Ruling Against the System.” Modern Healthcare. (October 1, 2013). From: http://bit.ly/15Lj2uF

United State of America ex rel Michael L. Drakeford, M.D. vs. Tuomey d/b/a Tuomey Healthcare System, Inc. Case Number 3:05-cv-02858-MBS. Federal Judge Order and Opinion. September 30, 2013. From: http://www.thehealthlawfirm.com/uploads/Toumey%20Case.pdf

Santaella, Tony. “Tuomey Healthcare Ordered to Pay $276 Million.” WLTX. (October 1, 2013). From: http://www.wltx.com/news/story.aspx?storyid=251321

About the Authors: Lance O. Leider 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 Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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 © 1996-2012 The Health Law Firm. All rights reserved.

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