Excess Readmissions Mean Lower Medicare Reimbursement Rates for More than 2,000 Hospitals, Including 131 in Florida

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

Lower Medicare reimbursement rates are coming in October of 2012, to 2,211 hospitals around the country, including 131 in Florida. This is allegedly due to excessive readmission rates in these hospitals between July 2008 and June 2011, according to the Centers for Medicare and Medicaid Services (CMS). This story was originally reported by Kaiser Health News on August 13, 2012, and by other sources.

To read more on the readmissions reduction program, click here.


Starting in October 2012, Millions of Dollars in Penalties will be Deducted from Medicare Reimbursements.

Starting October 1, 2012, penalties will be deducted from Medicare reimbursements each time a hospital submits a claim.

All together these hospitals will give up about $280 million in Medicare funds over the next year as the government begins a push to start paying health care providers based on the quality provided, according to the Kaiser Health News article. The government apparently considers readmissions a prime symptom of an overly expensive and uncoordinated health system.

The CMS records show nine hospitals in Florida, including Florida Hospital in Orlando, will deal with a one percent (1%) decrease caused by the penalties.

To see the 2013 Medicare readmissions penalties in Florida, click here.

Medicare Attempting to Lower Readmission Rates.

According to the CMS nearly two million Medicare beneficiaries return to the hospital within a month of being discharged, costing Medicare $17.5 billion in additional hospital bills. CMS states the national average readmission rate is slightly above nineteen percent (19%).

Who Will Lose the Most Medicare Funds?

The penalties will fall heaviest on hospitals in New Jersey, New York, the District of Columbia, Arkansas, Kentucky, Mississippi, Illinois, and Massachusetts. Hospitals that treat mostly low-income patients will be hit particularly hard as well. This is all according to the report by Kaiser Heath News.

The analysis of the penalties shows seventy-six percent (76%) of the hospitals that have a majority of low-income patients will lose Medicare funds.

More Than 1,100 Hospitals Will Not Be Penalized.

The CMS report found 1,156 hospitals with acceptable readmission rates. Those hospitals will not lose any money. The analysis showed, on average, the readmission penalties were lightest on hospitals in Utah, South Dakota, Vermont, Wyoming and New Mexico. Idaho was the only state where no hospital was penalized by Medicare.

The Maximum Penalty to Increase Next Year.

The CMS notes the maximum penalty will increase to two percent (2%) starting in October 2013, and then to three percent (3%) the following year.

These penalties are part of an effort by Medicare to use its financial backbone to force improvements in hospital quality.

On top of the readmission reduction program, on August 27, 2012, the CMS will begin the Recovery Audit Prepayment Review (RAPR), in which Recovery Audit Contractors (RACs) will review a number of hospitals’ Medicare claims.
I previous wrote about the RAPR, click here to read that post.

Contact Health Law Attorneys Experienced in Handling Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in 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.

Sources:

Rua, Jordan. “Medicare To Penalize 2,211 Hospitals For Excess Readmissions.” Kaiser Health News. (August 13, 2012). From: http://www.kaiserhealthnews.org/stories/2012/august/13/medicare-hospitals-readmissions-penalties.aspx?referrer=search

Kaiser Health News. “First Hospital Penalties for High Readmissions Detailed.” Kaiser Health News. (August 13, 2012). From: http://www.kaiserhealthnews.org/daily-reports/2012/august/13/quality-issues.aspx?referrer=search

Health News Florida. “Readmit Rates Cost FL Hospitals.” Health News Florida. (August 13, 2012). From: http://www.healthnewsflorida.org/hnf_stories/read/readmit_rates_cost_fl_hospitals

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.

The Collateral Effects of Voluntary Relinquishment with Investigation Pending or other Discipline on Your Massage Therapy License

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

Many massage therapists are unaware of the drastic long-term effects that discipline on their massage therapist license could have. This includes submitting a voluntary relinquishment of the massage therapist’s license while there is an investigation pending or while there are charges pending. Although this particular article is being prepared specifically for massage therapists, similar principles apply to physicians, nurses, pharmacists, psychologists, dentists, mental health counselors and other licensed health professionals.

A voluntary relinquishment of the license after notice of the opening of an investigation or while a charge is pending is treated the same as a disciplinary revocation of the license. It is reported out the same and is treated the same. In some cases it may even be worse, if the agreement to voluntarily relinquish also includes an agreement to never apply for another license again.

Even discipline on the massage therapy license such as a suspension, probation, restrictions, etc., can have far-lasting adverse repercussions. Most people do not understand what else can happen as a result of a discipline, revocation or even voluntary relinquishment (under these circumstances).

Reports to National Organizations on the Discipline.

First and foremost, the discipline (including voluntary relinquishment) will be a public record. It will also be reported out to national reporting agencies, including the National Practitioner Data Bank (NPDB) and the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB).

As a result of the report to the NPDB, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will probably start action to exclude the disciplined therapist from the Medicare Program and place him or her on the OIG’s List of Excluded Individual’s and Entities (LEIE). This will bar you from the Medicare Program or working for or contracting with anyone else who does (including insurer’s medical clinics and most health care providers). This by itself will also have many negative consequences. For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) “debarred” list. You are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.

The NCBTMB will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state.

Summary of Adverse Consequences of Revocation or Other Discipline.

To summarize, the most important adverse problems that may be caused as a result of discipline on your license, may include the following:

1. May cause discipline to be commenced against any other health professional license you have, such as a nurse, acupuncture physician, chiropractic assistant, nurse’s aide, home health assistant, etc.

2. Will prevent you from obtaining any health professional license in the future.

3. May cause discipline to be commenced against any massage therapy establishment license for a massage therapy establishment you own in whole or in part.

4. Any other states or jurisdictions in which you have a license will also initiate action against him or her in that jurisdiction.

5. The National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state and will cause any other state in which you are licensed to take action against you.

6. Mandatory report to the National Practitioner Data Base (NPDB)), which remains there for 50 years. (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB.)

7. The OIG of 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 OIG HHS.

8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

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

10. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

What Can be Done?

If you have submitted a voluntary relinquishment without understanding the consequences, and the Board of Massage Therapy (“Board”) has not acted to accept it, you may withdraw it. What we do is submit a letter to the Executive Director of the Board stating it was submitted by mistake without fully understanding the consequences, and the massage therapist desires to withdraw the voluntary relinquishment. We submit this immediately (keeping a copy, of course) and by certified mail, return receipt requested, so we have proof of sending and proof of receipt.

However, you must also ask for a formal hearing to dispute the facts in your case, as well. We usually do this at the same time and by the same method. If you fail to request a formal hearing, then you are waiving your rights to challenge your guilt or innocence.

If you have requested an informal hearing, you have made a big mistake. For an informal hearing, you admit that everything stated in the complaint against you is true. You have admitted that all of the charges against you are correct, so you are pleading guilty to the charges. You are then giving up the right to have a hearing to determine whether you are really guilty or innocent. All you are going to be arguing about is the punishment you will receive. You will not be allowed to testify on or introduce any evidence on your guilt or innocence.

If you have submitted a request for an informal hearing, not realizing this, then what we usually do is to submit an immediate request to have the hearing changed over to a formal administrative hearing where you are allowed to dispute the facts against you and prove your innocence. In such a case, it is necessary to submit a Petition for a Formal Administrative Hearing and to specify which facts are contested or disputed and why.

The case is then sent to a neutral administrative law judge (ALJ) to hold a hearing on the case. The state Department of Health (DOH) (the parent agency over the Board of Massage Therapy) is then required to prove the facts against you by clear and convincing evidence. In fact, you do not even have to introduce any evidence or testimony, the burden of proof is on the DOH to prove the case against you.

Emergency Suspension Orders (ESOs), Appeals and Election of Rights (EOR) Forms.

In Florida, if you have an Emergency Suspension Order (ESO), you can appeal it to a court of appeal. The problem with this is that it is very technical to do so and is very costly. Call an attorney who specializes in appeals or appellate law and ask. Additionally, the court of appeal only rules on the law and not the facts. The appeal court will be required to accept everything that is stated in the ESO as true. There is no fact hearing, there are only legal arguments. Your basic case will be delayed while this takes place, and you will probably lose on appeal. This may not be the correct choice for you.

However, if there is an ESO, you also have the right to an expedited fact hearing on it. This may be the best course of action if you have documents and facts to show you are not guilty of the charges.

Furthermore, there will also be an additional document served on you, an administrative complaint (AC). When you receive the AC, it will probably say just about the same thing as the ESO. You will be given your hearing rights when this occurs (called an “Election of Rights” form or “EOR”). As we indicated above, you will almost always want to select a formal administrative hearing in which you dispute (challenge or contest) the allegations (charges) made against you. This is the only way you will have the right to have a full and fair hearing on your innocence of the charges. Make sure it is submitted in plenty of time to be received within the 21 days given. Seek legal advice in completing it. Do not admit to anything; you don’t have to as the state DOH has the burden of proof.

The Need for an Experienced Health Law Attorney.

It is very difficult to take the actions necessary yourself if you do not have any legal training. Nonlawyers make many stupid mistakes in these proceedings, including submitting written statements that can be used against them when they do not have to do so, talking to the DOH investigator or Board personnel, talking to the DOH prosecuting attorney, making admissions which can be used against them, and waiving their rights when they do not have to do so.

Most attorneys are not familiar with these types of procedures if they do not practice health law. They do not realize that the same rights which apply in criminal cases also apply to professional licensure cases. You need to find and hire an attorney experienced in this type of case. That would be a health law attorney, and preferably one who is Board Certified by the Florida Bar in Health Law.

What You Should Do.

So the bottom line is that if you are innocent and want to dispute any charges against you, you should:

1. If you have professional insurance coverage, such as HPSO Insurance, see if your insurance will cover your legal defense expenses in this type of case. Many will. We know HPSO will.

2. Act right away to request all of your rights in any matter. Make sure that anything you submit is actually received (not mailed, received) before the deadline given.

3. Do not call, write or speak to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

4. Do not make a statement, written or oral, to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

5. Contest (dispute or fight) every action that might be stated against you, including one by the NCBTMB or OIG.

6. Do not admit to anything you don’t have to as the state DOH has the burden of proof.

7. Keep copies of all forms or letters submitted, along with proof of mailing and proof of receipt (send via certified mail, return receipt requested).

8. Retain the services of a health lawyer who has experience in Board of Massage Therapy/Department of Health (DOH) cases (ask him or her how many he or she has actually done). DO THIS FIRST, NOT LAST!

Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations of Massage Therapists.
The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters 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.

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.

Most Physicians Not Using the Prescription Drug Monitoring Program

By Danielle M. Murray, J.D.

The Florida Prescription Drug Monitoring Program is apparently collecting dust as physicians are choosing not to use it. The Tampa Bay Times reported on October 5, 2012, that as few as one in twelve doctors have ever used the database. That is about eight percent (8%) of all physicians. Approximately fourteen percent (14%) of physicians are registered for the database.

Click here to read the entire story from the Tampa Bay Times.

Physicians Don’t Want to Use the Database.

Physicians interviewed for the article said the problem is that database use is not mandatory. Physicians are not required to review the database prior to accepting a new patient, or prior to giving out a prescription.  Some physicians said they would ask the pharmacy or check the local arrest records if they had a suspicion that the patient was abusing drugs or “doctor shopping.”

One potential reason that physicians may not check the database is simply that they don’t want to know.  If they know a patient is abusing prescription drugs, then that patient has to be sent away, and that is a loss of business. Another reason could be some doctors may not know the database exists, and other doctors may simply be too busy to bother.

In Some States the Database Is Mandatory.

The prescription drug database in Kentucky had a similar usage problem until the state made it mandatory for physicians to check the database.  A mandatory law in Ohio resulted in shock when physicians saw the reality of the large number of prescription drug abusers in their practices.

For the foreseeable future, using the database will not be mandatory for physicians. However, physicians should consider using the database, or otherwise remaining vigilant to avoid being labeled an overprescriber.

For legal tips for working with pain patients, click here.

Does the Database a Make it Easier to Prosecute?

From my perspective, I have seen the database in Florida used mostly as a tool for prosecution of pain management physicians and pharmacists. Even in cases where the pharmacist has been the one to notify the authorities of suspected forged prescriptions and where the pharmacist has cooperated in prosecuting the criminals, I have seen this database cited as evidence against him or her. I do not believe this is what the legislation intended.

Contact an Attorney Experienced in Department of Health (DOH) and Drug Enforcement Administration (DEA) Investigations.

As a health care professional, you may one day be charged with overprescribing narcotics or even criminally charged in the death of a patient due to their drug habits. If you are contacted by the Department of Health (DOH) or the Drug Enforcement Administration (DEA), do not sign anything or make any statements to anyone. Call an experienced health law attorney to learn about your rights in such a case.

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

Comments?

As a physician, do you use the Florida Prescription Drug Monitoring Program? Why or why not? Please leave any thoughtful comments below.

Source:

Cox, John Woodrow, “Florida Drug Database Intended to Save Lives is Barely Used by Doctors.” Tampa Bay Times. October 7, 2012. http://www.tampabay.com/news/health/florida-drug-database-intended-to-save-lives-is-barely-used-by-doctors/1255062

About the Author: Danielle M. Murray 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., 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.

Signing False Medicare Claims Lands Nurse Behind Bars for 30 Months

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Detroit-area registered nurse was sentenced on November 19, 2012, to 30 months in federal prison for his alleged part in a nearly $13.8 million Medicare fraud scheme. According to a Department of Justice (DOJ) press release, he will serve probation after being released from prison. He was also ordered to pay more than $450,000 in restitution, together with his co-defendants.

Click here to read the entire press release from the DOJ.

Nurse Signed Medical Records for Services Never Rendered.

According to the nurse’s plea agreement, from December 2008 through September 2011, he was paid to sign medical records for a home health care agency that billed Medicare for services that were allegedly never rendered. The man reportedly admitted to not seeing or treating the Medicare beneficiaries for whom he signed medical documentation. He also admitted to knowing that the documents he signed were being used for false claims. According to an article from Health Exec News, the man was paid around $150 for each fake file that he signed.

To read the article from Health Exec News, click here.

A Handful of Alleged Co-Conspirators Waiting to Be Sentenced.

Nine alleged co-defendants in this case have pleaded guilty and are waiting to be sentenced, while three others are fugitives and six more are awaiting trial, according to the DOJ. In total, the home health agency was paid close to $13.8 million by Medicare.

This case was investigated by the Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) as part of the Medicare Fraud Strike Force.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations,  in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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

Comments?

Do you think the registered nurse received a sentence that was too harsh? Please leave any thoughtful comments below.

Sources:

Health Exec News. “Medicare Fraud Scheme: Nurse Gets Jail Time for Signing False Claims.” Health Exec News. (November 23, 2012). From: http://healthexecnews.com/nurse-medicare-fraud-scheme

Department of Justice. “Detroit-Area Nurse Sentenced to 30 Months in Prison for Role in $13.8 Million Home Health Care Fraud Scheme.” Department of Justice. (November 19, 2012). From: ttp://www.justice.gov/opa/pr/2012/November/12-crm-1389.html

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.

Is It Legal to Make Flu Shots Mandatory for Health Care Professionals?

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The warnings have been loud and clear from the Centers for Disease Control and Prevention (CDC). This influenza season is off to an early and serious start. With that in mind, a number of states are requiring all health professionals in the state to receive the flu vaccination. Some of those opposed to getting vaccinated are being fired by hospitals and health facilities. Because of this, a controversy is arising between employee rights and patient safety, according to a number of news sources.

Click here to read more on this year’s flu season from the CDC.

Mandatory Flu Shots to Keep Patients Safe.

In December 2010, the Department of Health and Human Services (DHHS) announced a 10-year agenda to improve the nation’s health. It’s called Healthy People 2020. A part of this agenda calls for a ninety percent (90%) average vaccination rate of health professionals. Click here to read the press release on the Healthy People 2020 initiative from the DHHS.

According to an American Medical News article, there’s a push in the medical community to meet this goal as soon as possible. The CDC states that as of November 18, 2011, close to eighty-four percent (84%) of doctors in the U.S. had been immunized against influenza. The CDC is praising these doctors for this high number, hoping other health professionals and the public will follow suit.

The safety of patients is the chief reason for the mandate. In an ABC News article, one Indiana hospital said that it implemented the mandatory vaccine in September of 2012, to promote patient safety. Of the hospital’s 26,000 employees statewide, ninety-five percent (95%) have complied.

Health Care Professionals Are Fired If They Refuse to Get the Vaccine.

A large majority of employees at the Indiana hospital complied with the mandate; however, 1,300 employees did not. According to ABC News, eight employees, including at least three veteran nurses, were allegedly fired because they refused to get a flu vaccine.

The fired nurses are standing their ground, saying they should have the right to refuse the flu vaccine. One nurse had filed two medical exemption requests, a religious exemption request and two appeals. All were denied by the hospital. To read more on this story from ABC News, click here.

In October 2012, Rhode Island mandated immunizations for all health care workers who have patient contact. On December 6, 2012, a health care worker union filed a federal lawsuit against the Rhode Island Department of Health (DOH) to prevent it from implementing the regulations, according to a Fierce Healthcare article. Click here to read the entire Fierce Healthcare article.

Arguments Against the Flu Shot.

The attorney representing the Indiana nurses, who were fired, states that his clients had the right to refuse their flu shots. He argues Title VII of the Civil Rights Act of 1964 prohibits religious discrimination against employees. The attorney is suggesting religion is legally broad under the First Amendment, so it can include any strongly held belief. According to a Chicago Tribune article, in 2009 New York mandated flu shots for all health workers, during the H1N1 outbreak. Unions fought the issue in court, and the state has since relaxed the rule.

The Flu in Florida.

I’ve recently received calls from several local health care professionals working in different Florida hospitals, regarding refusing flu shots and other vaccinations. I’ve also read the news stories about Tampa General Hospital and Moffitt Cancer Center in Tampa requiring employees to receive the influenza vaccine. According to the news articles, the two Tampa health facilities require employees who refuse the flu shot to wear surgical masks.

However, the states and hospitals may not back down in this case. The issue may have to be decided by the courts. I promise to write more on this topic later.

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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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 mandated flu shots for health care workers? Is receiving a flu shot mandatory at your job? As a health care professional, do you think it is important to receive a flu shot? Is there enough medical evidence to justify firing health care professionals for not receiving the flu shot? Please leave any thoughtful comments below.
Sources:

Lupkin, Sydney. “Nurses Fire for Refusing Flu Shot.” ABC News. (January 3, 2013). From: http://abcnews.go.com/Health/indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967

Moyer, Christine. “More Physicians on Track to get Flu Shots.” American Medical News. (December 14, 2012). From: http://www.ama-assn.org/amednews/2012/12/10/hlsb1214.htm

Cheung-Larivee, Karen. “Health Unions Sue Over Mandated Flu Shots.” Fierce Healthcare. (December 10, 2012). From: http://www.fiercehealthcare.com/story/health-unions-sue-over-mandated-flu-shots/2012-12-10

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.

American Medical Association Joins Minnesota Medical Staff in Its Fight for Autonomy

7 Indest-2008-4By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The American Medical Association (AMA) and several other physician organizations announced support of a court appeal by physicians at Avera Marshall Regional Medical Center in Minnesota. The medical staff at Avera alleged the hospital’s governing board amended the medical staff’s bylaws and took away the medical staff’s right to self-govern. On February 6, 2013, the AMA, the Minnesota Medical Association, the American Academy of Family Physicians, the American Osteopathic Association and the Minnesota Academy of Family Physicians filed a friend-of-the-court brief on behalf of the hospital’s medical staff.

Click here to read the press release from the AMA announcing its support of the medical staff at Avera.

Background on the Case at Avera Marshall Regional Medical Center.

In January 2012, the Avera medical staff filed a lawsuit alleging the new bylaws created by the hospital’s governing board left the physicians without “nearly all rights and responsibilities” and gave Avera’s governing board controlling power in processes that required medical staff direction. On September 26, 2012, a Minnesota District Court judge issued a final order on a lawsuit refusing to recognize the medical staff’s lawsuit and refusing to recognize the bylaws as a contract.

To read more on the final order by the judge in the Minnesota District Court, click here.

AMA and Other Physician Organizations in Favor of Self-Governance by a Medical Staff.

The brief supports reestablishing the independence of the hospital’s medical staff to ensure their right and responsibility to uphold the quality of patient care, without interference by the hospital’s governing board. The AMA president said the judge’s ruling gave unchecked power to Avera’s governing board over the medical staff. The brief urges the state’s court of appeals to revise this ruling and allow the medical staff to present its case for self-governance. The AMA believes giving the medical staff the right to self-govern will restore balance between patient care and corporate interests at the hospital.

Click here to read the friend-of-the-court brief file by the AMA.

My Input on a Self-Governing Medical Staff.

By law the medical staff in a hospital is supposed to be self-governing. The AMA, along with other medical associations, created a minimum standard to govern hospitals and to lay out what health care professionals need to do to improve the quality of care in the hospitals. Self-governing includes allowing the medical staff to discipline its own members when necessary, conduct peer reviews, and take action when they see hospital issues.

To watch a video explaining medical staff self-governance in more detail, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses 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.

Comments?

What are your thoughts on medical staff self-governance? Please leave any thoughtful comments below.

Sources:

Mills, Robert. “AMA and Other Support Physician Fight for Autonomy.” American Medical Association. (February 15, 2013). From: http://www.ama-assn.org/ama/pub/news/news/2013-02-15-physician-fight-autonomy.page

Medical Staff of Avera Marshall Regional Medical Center on Its Own Behalf and in Its Representative Capacity for Its Members v. Avera Marshall d/b/a Avera Marshall Regional Medical Center. Case No. A12-2117. State of Minnesota Court of Appeals. February 6, 2013. From: http://www.thehealthlawfirm.com/uploads/2012-12-05-amicus-brief-avera-marshall.2.pdf

Gau, Deb. “Judge Issues Final Order in Avera Lawsuit.” Marshall Independent. (September 26, 2012). From: http://www.marshallindependent.com/page/content.detail/id/536152/Judge-issues-final-order-in-Avera-lawsuit.html?nav=5015

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.

Medicaid Fraud Control Unit Arrests Three Florida Women for Allegedly Bilking Medicaid Out of $27,000

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

Three Central Florida women were arrested by the Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU) on July 18, 2013, for allegedly defrauding Medicaid out of $27,000. According to the AG, the owner and two managers of Destiny TCM Corporation are accused of billing Medicaid for services never rendered and also bribing people in order to obtain their Medicaid recipient numbers.

To read the press release from the AG’s office, click here.

Violated Medicaid Fraud Kickback Statute.

An article in the Orlando Sentinel states that the Destiny TCM Corporation was supposed to provide targeted case-management services and link Medicaid recipients with mental health service providers. Allegedly, the business was billing for services never rendered to Medicaid recipients, which included claims for infants. The owner of Destiny TCM Corporation is also accused of paying kickbacks to people in order to access Medicaid numbers for billing, according to the Orlando Sentinel. This act violates the Medicaid fraud kickback statute, Section 409.920(2)(a)(5), Florida Statutes.

The three alleged Medicaid abusers are each charged with one count of Medicaid provider fraud. The owner was also charged for allegedly paying kickbacks for Medicaid numbers. If convicted, they all face prison time and hefty fines, according to the Orlando Sentinel.

Click here to read the entire article from the Orlando Sentinel.

Tips for Responding to a Medicaid Fraud Control Unit Investigative Subpoena.

The MFCU is in charge of investigating and prosecuting health care providers suspected of defrauding the state’s Medicaid program.  When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific patient records. It is important to remember that the MFCU would not be involved unless criminal fraud was suspected. This is not a routine audit. Click here to read practice tips on how to properly respond to an MFCU subpoena.

Defend Yourself from Fraud Charges.

We have been consulted by many individuals similar to the subjects of this story, both before and after criminal convictions for fraud or related offenses. In many instances, we are convinced that the person is actually not guilty of fraud. However, in many cases those subject to Medicaid or Medicare fraud audits and investigations refuse to acknowledge the seriousness of the matter or they decide not to spend the money required for a top quality attorney to defend them.

If you are accused of Medicare or Medicaid fraud, realize that you are in the fight of your life. Your liberty, life and profession are at stake. You need to sell everything you own, borrow everything you can and hire the absolute best criminal defense attorney available who has experience in defending such cases to represent you.

If you win and are acquitted, at least you still have a professional license and can start over. However, if you lose, you will most probably be in prison for years. You will lose your license. You will be excluded from Medicare. You will be a convicted felon. You will have nothing and will have no way of starting over successfully.

Do not delude yourself. This is extremely serious. Be prepared to give up whatever you have if you can avoid a conviction.

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 Health Care 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 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 case managers, nurses, physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health agencies, nursing homes, group homes, medical directors, nursing directors 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.

Comments?

Have you noticed an increase in activity by the Medicaid Fraud Control Unit (MFCU)? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “Three Women Charged in $27,000 Medicaid-Fraud Scheme, Officials Say.” Orlando Sentinel. (July 18, 2013). From: http://www.orlandosentinel.com/news/local/breakingnews/os-medicaid-fraud-arrests-20130718,0,7659716.story

Meale, Jenn. “Attorney General Bondi’s Medicaid Fraud Control Unit Arrests Three People for $27,000 of Medicaid Fraud.” Florida Office of the Attorney General. (July 18, 2013). From: http://www.myfloridalegal.com/newsrel.nsf/newsreleases/D234C9D525CAAC1E85257BAC005D8AF2

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

Grace Period Included in the Affordable Care Act Could Pose Financial Risk to Healthcare Professionals and Providers

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law, and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A little known rule published by CMS to implement the Affordable Care Act (ACA) could pose a significant financial risk for doctors, hospitals and other healthcare providers. The rule requires health plans participating in the exchanges to provide individuals purchasing insurance through the exchanges a grace period before terminating the coverage for non payment of the premiums. Doctors and other healthcare providers will continue to provide care during the grace period, but the insurance plan will not be required to pay the claims incurred during most of the grace period. The result could be that physicians and other healthcare providers would provide a significant amount of uncompensated care.

Details of the Rule.

The CMS rule provides individuals that purchased subsidized coverage through the exchanges a 90-day grace period before their coverage is cancelled for non payment. The insurance plan is required to pay any claims incurred during the first 30 days of the grace period, but the insurance plan is not required to pay the claims incurred during the last 60 days of the grace period if the individual’s coverage is terminated. The insurance plan is allowed to place all the claims during the last 60 days of the grace period in a pending status. The rule requires the insurance plan to notify the healthcare providers when an insured individual is in the last 60 days of the grace period.

Risk Falls on Healthcare Professionals and Providers.

The rule imposes a significant risk for uncompensated care on the healthcare providers. The rule does require insurers to tell healthcare providers when patients are behind on their premium payments, but he rule does not specify how the health plan will provide that notice to the providers. The only notice some providers receive will probably be the pending status placed on the unpaid claims by the insurance plan.

Many doctors and hospitals are reluctant to participate in insurance plans offered on the exchanges due to the increased financial risk associated with the CMS rule. The result could be that individuals enrolling in insurance plans through the exchanges may find it difficult to find a healthcare provider willing to accept them as patients. CMS has been asked to modify the rule so that insurers are required to pay claims during the entire 90-day grace period.

How Grace Period Can be Manipulated to Benefit Patients.

The CMS rule may also result in individuals manipulating the system. Some individuals may intentionally pay premiums for only part of the year and become serial abusers of the 90 day grace period. Another unintended consequence of the ACA is that individuals that choose not to pay their premiums and have their coverage terminated can reenter the exchange and enroll in a plan regardless of their pre-existing conditions so there is little incentive for some individuals to maintain their coverage.

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 insurance company or other third party payor reimbursements.

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

Comments?

Were you aware of the 90-day grace period? As a healthcare professional or provider, are you worried you don’t have adequate financial protection? Please leave any thoughtful comments below.

Sources:

Fiegl, Charles. “Medical Groups Fear ACA Grace Period Will Lead to Unpaid Claims.” American Medical News. (September 2, 2013). From: http://www.amednews.com/article/20130902/government/130909984/4/

Block, Jonathan. “Providers Protest Rule Putting Them at Financial Risk if Patients Don’t Pay Premiums.” Modern Healthcare. (August 13, 2013). From: http://www.modernhealthcare.com/article/20130813/NEWS/308139968

Adams, Samuel. “Hospitals May Absorb Risk of Insurers’ Debtor Patients.” Bloogberg. (August 17, 2013). From: http://www.bloomberg.com/news/2013-08-16/hospitals-may-pay-for-insurers-debtor-patients-under-obamacare.html

45 C.F.R. Section 156.270

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He 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., Altamonte Springs, FL 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.

Data Breach at Colorado Hospital Highlights IT Security Risks

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

A small rural hospital in Glenwood Springs, Colorado, has identified a virus on its computer network that had captured and stored screen shots of protected health information in a hidden file system. The hidden folder was created on Sept. 23, 2013, but was not discovered until Jan. 23, 2014. The breach identified at least 5,400 individual patients whose information was compromised.

According to Healthcare IT News, among the stolen data was patient names, addresses, dates of birth, telephone numbers, Social Security numbers, credit card information, and admission and discharge dates.

Hospital officials have been unable to determine how the virus was loaded onto the hospital network, according to Healthcare IT News. Consequently, officials believe that there is “very high” probability that the data had been accessed by an outside entity.

To read the entire article from Healthcare IT News, click here.

Take Steps to Secure Your Network.

Breaches of this kind are not solely confined to hospitals and large providers. In fact, it may be that this hospital was targeted because it was a smaller provider in a rural area with easier access to its systems.

Viruses like the one in question could be loaded onto systems as a result of an outside attack (think hackers) or through inside means like a flash drive or deliberately opening an infected e-mail.

It is imperative that a Health Insurance Portability and Accountability Act (HIPAA) covered entity have an effective cyber security plan. Make sure that you have up-to-date anti-virus software and that your computers are secure from access by unauthorized personnel like cleaning crews or patients and their families. Also, meet with your IT professional to discuss security measures you can put in place such as restricting access and accessibility to certain files or the ability to download programs and applications to essential staff only.

Hacked data represents a growing share of HIPAA breaches. It is imperative that covered entities ensure their compliance with HIPAA to avoid any sanctions by the Office for Civil Rights (OCR). To date, the OCR has collected in excess of $18 million in fines and penalties for failures to secure patient information.

Get a Risk Assessment.

A HIPAA Risk Assessment is a thorough review and analysis of areas where you may have risk of violating the HIPAA laws. Federal regulations require that covered entities have this assessment done. When the OCR auditor comes to visit your office to check for HIPAA compliance, they will ask for your Risk Assessment. Do you have one? Does your staff know who your HIPAA compliance officer is? To learn more on HIPAA risk assessments, click here.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs), please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Do you think it is likely that this hospital was targeted because it was a smaller provider in a rural area? Do you think a HIPAA risk assessment could have helped this practice avoid a breach? Please leave any thoughtful comments below.

Sources:

Harvey, Nelson. “Hospital Database Hacked, Patient Info Vulnerable.” Aspen Daily News. (March 15, 2014). From: http://www.aspendailynews.com/section/home/161578

McCann, Erin. “Small-Town Hospital Gets Hacked.” Healthcare IT News. (March 17, 2014). From: http://www.healthcareitnews.com/news/small-town-hospital-gets-hacked

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.

Go to Top