overpayment | The Health Law Firm Blog

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: The ALJ found that AHCA’s peer review expert applied certain standards to the Medicaid claims he examined in conducting the Medicaid audit, but “exercised his discretion as to whether to apply them based on the specifics of each patient’s medical records.” The ALJ dismissed the unadopted rule challenge, explaining that “where application of agency policy is subject to the discretion of agency personnel, the policy is not a rule. . . . The medical standards at issue in this case are not self-executing and require the exercise of discretion in their application.” The ALJ noted that “the medical standards of practice must be applied on a case-by-case basis to determine whether the services provided were medically necessary, and provided both an appropriate level of care and standard of care ‘customarily furnished by the physician’s peers and to recognized health care standards” as required by section 409.9131(2)(d), Florida Statutes.

Source:

Radhakrishna K. Rao et al. v. AHCA, DOAH Case No. 12-2813RU (Final Order Aug. 20, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

Centers for Medicare and Medicaid Services Puts Recovery Audit Contractor Program on Hold

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

On February 18, 2014, the Centers for Medicare and Medicaid Services (CMS) announced it is in the procurement process for the next round of Recovery Audit Program contracts. This means the program is, for the time being, on hold while CMS awards new contracts. According to CMS, it will select new vendors to continue the Recovery Audit Contractor (RAC) program, which is responsible for detecting improper Medicare payments. It is expected that this pause will also be used to refine and improve the RAC program. In the announcement it was not disclosed how long the program would be on hold.

Click here to read the announcement from CMS.

This news comes months after CMS revealed an enormous backlog of RAC appeals. The backup is so bad, providers are not able to submit new cases until the existing backlog clears, which could take two years or more.

Current Contracts Extended to Conclude Appeals.

According to Modern Healthcare, CMS extended its contracts with the four current vendors until December 31, 2015, for administrative and transition activities. These contracts were to end on February 7, 2014. The purpose of the extension is to allow the RACs to handle and wind down appeals. To read the entire article from Modern Healthcare, click here.

For providers this means a lull in additional documentation requests (ADRs), however it is important to remember RAC audits are not going away.

Dates to Remember.

Providers should note the important dates below:

– February 21, 2014, was the last day a Recovery Auditor could send a postpayment ADR;
– February 28, 2014, is the last day a Medicare Administrative Contractor (MAC) may send prepayment ADRs for the Recovery Auditor Prepayment Review Demonstration; and
– June 1, 2014, is the last day a Recovery Auditor may send improper payment files to the MACs for adjustment.

Backlog of RAC Appeals Worse Than Ever.

The RAC appeals process has become so overloaded that in December 2013, the U.S. Department of Health and Human Services’ (HHS) Office of Medicare Hearings and Appeals (OMHA) notified hospitals, doctors, nursing homes and other health care providers that the agency would be suspending acting on new requests for hearings. Health care providers were told they would not be able to submit any new appeals until the existing backlog clears, which could take two or more years. To read more on the backlog of RAC appeals, click here for my previous blog.

RAC Audits Will Be Back.

In the first three months of the fiscal year 2013, RACs recouped more than $2.2 billion from providers due to what the RACs deemed were overpayments. With money coming in, RAC audits are not going away. It has become common for state and federal regulators to enforce even the smallest violations, resulting in investigations, monetary fines and penalties. If found in violation, you will not only have to pay fines and face disciplinary action, you will also lose revenue because you will have to spend time dealing with the investigation, instead of practicing medicine. Whether you are trying to prevent Medicare and Medicaid audits, Zone Program Integrity Contractor (ZPIC) audits, or any other kind of healthcare audits, there are steps you can implement in your practice today that may save you down the line. Click here to read more on self audits.

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?

What do you think about the RAC program being put on hold? What do you think CMS should do to improve the program? Please leave any thoughtful comments below.

Sources:

Kutscher, Beth. “CMS Recovery Audits on Hold as Contractors Wrestle Big Backlog.” Modern Healthcare. (February 20, 2014). From: http://www.modernhealthcare.com/article/20140220/NEWS/302209968/cms-recovery-audits-on-hold-as-contractors-deal-with-big-backlog

Centers for Medicare and Medicaid Services. “Recent Updates.” Centers for Medicare and Medicaid Services. (February 18, 2014). From: http://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Recent_Updates.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 © 1996-2014 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T10:00:55-04:00June 1, 2018|Categories: In the Know, Medicare, Medicare Audit, The Health Law Firm Blog|Tags: administrative law, audit defense attorney, audit defense lawyer, Centers for Medicare and Medicaid Services, CMS, Connolly Healthcare, false billing, Florida Medicare attorney, Florida Medicare lawyer, health care fraud, health law firm, hhs, how to prepare for a medicare audit, how to prepare for a RAC audit, mac, medicare, Medicare Administrative Contractor, medicare audit, Medicare fraud, Medicare fraud attorney, Medicare investigation, Office of Medicare Hearings and Appeals, OMHA, overbilling, overpayment, prepayment audit, prepayment review, RAC, RAC appeal, RAC appeals backlog, RAC program on hold, Recovery Audit Contractor, self audit, the health law firm, U.S. Department of Health and Human Services, what is a MAC, what is a RAC, who is the RAC for Florida, who is the RAC for region C|Comments Off

The RACs, They’re Back! The Return of Medicare Recovery Audits

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

All good things must come to an end. This includes the two-month hiatus from Recovery Audit Contractors (RACs) that healthcare professionals enjoyed. The Centers for Medicare and Medicaid Services (CMS) is restarting audits of Medicare fee-for-service claims on a limited basis. The program has been suspended since June 1, 2014, due to expired contracts.

CMS announced the return of RACs on August 4, 2014.

Click here to read the latest announcements on Medicare recovery audits from CMS.

From what we have heard, there were serious problems with some of the audits that had been conducted by the RACs and CMS desired to start over with a clean slate. Just saying!

What Does Limited Basis Mean?

According to CMS, current RACs will conduct a limited number of automated reviews and a small number of complex reviews on certain claims including, but not limited to:

– Spinal fusions;
– Outpatient therapy services;
– Durable medical equipment;
– Prosthetics;
– Orthotics; and
– Supplies and cosmetic procedures.

RACs will not conduct any inpatient hospital patient status reviews for now. In the past, short inpatient stays accounted for 91 percent of the money the program recovered for Medicare.

Controversial Program.

According to an article on HealthData Management, in February 2014, members of congress argued that parts of the RAC program are unfair and violate the way that the Medicare program was intended to operate by raising out-of-pocket costs for beneficiaries. To address this concern, CMS established a provider relations coordinator to increase program transparency. This was announced in June 2014, so it is too soon to determine if this position will help providers affected by the medical review process. Click here to read more from HealthData Management.

Healthcare providers have complained that they are fed up with Medicare recovery audits tying up crucial funds and physician time in endless appeals. Currently, appeals can take up to five years. There is also a two-year moratorium in place preventing new appeals from being filed. You may remember my previous blog on the enormous backlog of Medicare recovery audit appeals. Click here to read that post.

What Exactly is a RAC?

RACs are often referred to as “bounty hunters.” They are private companies contracted by CMS, used to identify Medicare overpayments and underpayments, and return Medicare overpayments to the Medicare Trust Fund. Since the program began in 2009, it has brought in more than $8 billion in allegedly fraudulent, wasteful and abusive payments to healthcare providers.

How to Prepare for a Medicare Recovery Audit.

There is no such thing as a routine Medicare audit. The fact is that there is some item you have claimed as a Medicare provider or the amount of claims Medicare has paid in a certain category that has caused you or your practice to be audited.

I previously wrote a blog highlighting some of the actions we recommend you take in responding to a Medicare audit. The most important step you should take is to consult an experienced health law attorney early in the audit process to assist in preparing the response. Click here to read more on how to respond to a Medicare audit.

We Told You RACs Would Be Back.

RACs apparently caught $3.7 billion in allegedly wasteful payments that Medicare made to healthcare providers in 2013, and was allegedly on pace to bring back $5 billion this year. That’s why the government was eager to get RACs back to work.

It is extremely common for state and federal regulators to enforce even the smallest violations, resulting in investigations, monetary fines and penalties. If found in violation, you will not only have to pay fines and face disciplinary action, you will also lose revenue because you will have to spend time dealing with the investigation, instead of practicing medicine. Whether you are trying to prevent Medicare and Medicaid audits, Zone Program Integrity Contractor (ZPIC) audits, or any other kind of healthcare audits, there are steps you can implement in your practice today that may save you down the line. Click here to read more on self audits.

Comments?

What do you think about the return of Medicare recovery audits? What are you thoughts on Recovery Audit Contractors? Please leave any thoughtful comments below.

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

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

Sources:

Demko, Paul. “Controversial Medicare Recovery Audits Make Limited Return.” Modern Healthcare. (August 5, 2014). From: http://www.modernhealthcare.com/article/20140805/NEWS/308059962/controversial-medicare-recovery-audits-make-limited-return

Goedert, Joseph. “CMS Restarts Parts of the RAC Program.” HealthData Management. (August 5,2014). From: http://www.healthdatamanagement.com/news/CMS-Restarts-Parts-of-the-RAC-Program-48553-1.html

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.

By The Health Law Firm|2024-03-14T10:00:57-04:00June 1, 2018|Categories: Centers for Medicare and Medicaid Services, Medicare, Medicare Audit, The Health Law Firm Blog|Tags: administrative law, audit defense attorney, audit defense lawyer, Centers for Medicare & Medicaid Services, CMS, Connolly Healthcare, false billing, Florida Medicare attorney, Florida Medicare lawyer, health care fraud, health law firm, hhs, how to prepare for a medicare audit, how to prepare for a RAC audit, medicare, medicare audit, Medicare fraud, Medicare fraud attorney, Medicare investigation, Office of Medicare Hearings and Appeals, OMHA, overbilling, overpayment, prepayment audit, prepayment review, RAC, RAC appeal, RAC appeals backlog, Recovery Audit Contractor, self audit, the health law firm, U.S. Department of Health and Humand Services, what is a RAC, who is the RAC for Florida, who is the RAC for region C|Comments Off

Medicare Fraud Initiative Leads to Arrests of Over 100 Health Professionals

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

A recent Medicare fraud operation conducted between several federal agencies has resulted in the arrest of over 100 doctors, nurses and other medical professionals. They have been charged with various crimes relating to Medicare fraud. The arrests were made on May 2, 2012 in seven cities nationwide, but more than half took place in South Florida.

This multi-agency attack on medical professionals and health care providers was a joint effort between law enforcement agents from the Federal Bureau of Investigation (FBI), Department of Health and Human Services-Office of Inspector General (HHS-OIG), Medicaid Fraud Control Units (MFCU) and other state and local law enforcement agencies. In addition to arresting over 100 medical professionals, these agents also executed 20 search warrants in connection with ongoing Medicare fraud investigations.

Some of the charges against the health care professionals include conspiracy to commit health care fraud, health care fraud, violations of the anti-kickback statutes and money laundering. The charges are based on a variety of alleged Medicare fraud schemes involving medical treatments and services such as home health care, mental health services, physical and occupational therapy, durable medical equipment (DME), mental health counseling and ambulance services. These alleged Medicare fraud schemes resulted in a combined $452 million in false billings.

HHS also took other administrative action against 52 other health providers. These providers were tracked down through data analysis and are also accused of Medicare fraud. Because of the Affordable Care Act, HHS will be able to suspend payments to these providers the entire time until the investigations are completed.

Because of the severe state budget shortfalls and the federal deficit, we are seeing a tremendous increase in both Medicare and Medicaid fraud initiatives. If you are being accused of Medicare or Medicaid fraud, it is extremely important to retain an experienced health attorney immediately.

Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now Before it is Too Late

The lawyers of The Health Law Firm routinely represent physicians and other healthcare professionals in Medicare and Medicaid investigations, audits and recovery actions. They also represent physicians and health professionals in actions initiated by the Medicaid Fraud Control Units (MFCUs), in False Claims Act cases, in actions initiated by the state to exclude or terminate from the Medicaid Program or by the HHS OIG to exclude from the Medicare Program.

Call now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

Sources Include:

Weaver, Jay. “Feds Arrest More Than 100 Medicare Fraud Suspects in South Florida, Nationwide.” Miami Herald. (May 02, 2012). From
http://www.miamiherald.com/2012/05/02/2779369/feds-arrest-about-100-medicare.html

U.S. Department of Justice, Office of Public Affairs. “Medicare Fraud Strike Force Charges 107 Individuals for Approximately $452 Million in False Billing.” U.S. Department of Justice. Press Release. (May 02, 2012). From http://www.justice.gov/opa/pr/2012/May/12-ag-568.html

By The Health Law Firm|2024-03-14T10:00:30-04:00June 1, 2018|Categories: Health Care Industry, In the News, Medicaid, Medicare, The Health Law Firm Blog|Tags: Affordable Care Act, anti-kickback statute, conspiracy, Department of Health and Human Services, false billing, FBI, health care fraud, hhs, medicare, medicare audit, Medicare fraud, Medicare fraud attorney, Medicare Fraud Control Unit, Medicare investigation, mfcu, money laundering, Office of the Inspector General, OIG, overpayment|3 Comments

Florida’s Medicaid Program Receives Settlement Payment from Pharmaceutical Company

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

The Florida Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU), 46 other states and the federal government reached a $48 million agreement with pharmaceutical company Healthpoint Ltd., on February 25, 2013. According to the Florida AG, the settlement is in response to allegations of misrepresenting the regulatory status of an ointment used to treat skin conditions and submitting false Medicaid claims. Florida’s Medicaid program will receive almost $900,000 of the settlement.

Click here to see the press release from the AG’s office.

Pharmaceutical Company Allegedly Submitted False Claims to Medicaid.

According to the Department of Justice (DOJ), Healthpoint launched the ointment for the treatment of nursing home patients with bed sores. The settlement resolves allegations that Healthpoint marketed the ointment, Xenaderm, without the approval of the Food and Drug Administration (FDA) by modeling it on a pre-1962 drug that the FDA never reviewed. The DOJ states that the main ingredient in Xenaderm was determined by the FDA to be less-than-effective for its intended use. The government contends those determinations render the ointment ineligible for Medicaid reimbursements. Healthpoint is accused of knowingly submitting false claims to Medicaid programs.

To read the press release on the settlement from the DOJ, click here.

The settlement is th result of litigation by the United States Attorney’s Office for the District of Massachusetts, the DOJ and fifteen (15) states, including Florida.

Responding to a Medicaid Audit.

Should you find yourself, your facility or your health practice the subject of a Medicaid audit by your state Medicaid agency or audit contractor, there are a few things you should know.

The most important thing is that just because you are being audited, it does not mean that you or your business has done anything wrong. State and federal governments conduct audits for many different reasons. Typical ones include: special audits of high-fraud geographic areas, auditing of particular billing codes, randomly selected provider auditing, and complaints of possible fraud.

Click here to see a complete list of steps you should take in order to compile and provide a set of records that will best serve to help you avoid any liability at the conclusion of the audit process.

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

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

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions. We also represent health professionals and others who know of Medicare and Medicaid fraud to file whistleblower and qui tam cases.

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 settlement agreement? Please leave any thoughtful comments below.

Sources:

Meale, Jenn. “Attorney General Bondi’s Office Reaches Settlement with Pharmaceutical Company.” Florida Office of the Attorney General. (February 25, 2013). From: http://www.myfloridalegal.com/newsrel.nsf/newsreleases/D69C285712F6FF9185257B1D004D275D

Department of Justice. “Healthpoint Ltd. to Pay up to $48 Million for False Medicaid and Medicare Claims for Unapproved Prescription Drug.” Department of Justice. (December 6, 2013). From: http://www.justice.gov/opa/pr/2012/December/12-civ-1459.html

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.

By The Health Law Firm|2024-03-14T10:01:39-04:00May 15, 2018|Categories: Legal Defense for Pharmacists, Pharmacist, Pharmacy, Pharmacy Law, Whistleblower|Tags: Department of Justice (DOJ), false claims, false claims act, Federal Food Drug and Cosmetic Act, Florida defense attorney, Florida defense lawyer, Florida health care law, florida health law, Florida Medicaid fraud, Food and Drug Administration (FDA), Healthpoint, Healthpoint Ltd., medicaid, Medicaid fraud, medicaid fraud control unit, nursing homes, Office of Attorney General (AG), overpayment, pharmaceutical company, pharmaceutical drugs, quit tam, whistleblower|Comments Off