ZPICs Seek “Voluntary” Agreements from Physicians for Auto-Denial Edits for Home Health Services

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

According to the Centers for Medicare and Medicaid Services (CMS), the primary purpose of Zone Program Integrity Contractors (ZPICs) is to investigate instances of suspected fraud, waste, and abuse.  The specific actions employed by ZPICs to fulfil this mission include:

–  Investigating potential fraud and abuse for CMS administrative action or referral to law enforcement;
–  Conducting investigations in accordance with the priorities established by Center for Program Integrity’s (CPI) Fraud Prevention System;
–  Performing medical review, as appropriate;
–  Performing data analysis in coordination with CPI’s Fraud Prevention System;
–  Identifying the need for administrative actions such as payment suspensions and prepayment or auto-denial edits; and,
–  Referring cases to law enforcement for consideration and initiation of civil or criminal prosecution.

However, it appears that some of the ZPICs have been overly proactive in identifying the need for payments suspensions and are asking providers to voluntarily agree to payment suspensions for certain claims.

Click here to read more on ZPICs from CMS.

Physicians Being Targeted by ZPICs for Auto-Denial Edits.

Recently, physicians have been approached by ZPICs and asked to voluntarily agree to a payment edit on their National Provider Identifier (NPI) that would automatically deny any claim for payment for home health services that listed the physician as the ordering, attending, or referring physician.  A ZPIC requesting a specific physician to voluntarily cease ordering any home health services appears to go further than identifying the need for administrative action including a payment suspension.

The activities a ZPIC may use to fulfil its obligations to CMS are:

–  Request medical records and documentation;
–  Conduct interviews;
–  Conduct onsite visits;
–  Identify the need for a prepayment or auto-denial edits and refer these edits to the Medicare Administrative Contractors (MAC) for installation;
–  Withhold payments; and,
–  Refer cases to law enforcement.

The following functions are reserved for the MACs and not functions of the ZPICs.

–  Provider outreach and education;
–  Recouping monies lost to the Trust Fund (the ZPICs identify these         situations and refer them to the MACs for the recoupment);
–  Medical review not
–  Complaint screening; for benefit integrity purposes;
–  Claims appeals of ZPIC decisions;
–  Claim payment determination;
–  Claims pricing; and
–  Auditing provider cost reports.

While a ZPIC may refer a provider to the MAC for the imposition of an auto-denial edit, some ZPICs seem to have taken this process a step further and are attempting to have physicians voluntarily agree to the auto-denial edits.

Issues with Agreeing to an Auto-Denial Edit.

A physician who voluntarily agrees to an auto-denial edit could create significant problems for his or her patients and practice.  A physician agreeing to an auto-denial edit would need to cease ordering home health services and would need to refer the patients that need home health services to another physician.  Any physician that has been approached by a ZPIC seeking a voluntary auto-denial edit should consult competent legal counsel before agreeing to the auto-denial edit.

We have heard if ZPIC representatives allegedly intimidating or attempting to intimidate physicians who routinely order home health services for patients into agreeing to such auto-denial edits.

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 heard of these auto-denial edit requests from ZPICs? Please leave any thoughtful comments below.

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.

Under Review: What You Need to Know About Clinical Privileges Hearings

The term “fair hearing” is used by different individuals and different organizations to refer to an administrative hearing or a private hearing in a hospital or professional association. There are a number of different types of proceedings that are often referred to as “fair hearings,” including clinical privileges (or peer review) hearings, which allow a physician who has had his or her clinical privileges revoked to be reviewed.

This type of hearing can also be referred to as:
• Privileges Hearing
• Fair Hearing
• Medical Review Hearing
• Credentials Hearing
• Medical Staff Hearing
• Disciplinary Hearing
• Credentials Committee Hearing or
• Ad Hoc Committee Hearing.

The physician that is subject to these hearings is not a Hospital employee, does not have a direct contract with the Hospital, is not a member of a group with an exclusive contract, but does have clinical privileges at the Hospital (based on proven clinical skills and competence to perform certain defined procedures in a hospital). When a hospital finds that a physician with clinical privileges is no longer competent (in the eyes of the hospital), a hearing will be conducted aimed at stripping the physician of his or her clinical privileges. This process (especially the litigation involved) can get ugly, and it is important for the physician in question to obtain the counsel of a health attorney who has experience in dealing with clinical privileges hearings.

Here is attorney George Indest’s basic rundown of clinical privileges hearings:

Indest’s Maxims for Hospital Peer Review Hearings

  1. The peer review process is different in every hospital.
     a. Medical staff bylaws are different.
     b. Hearings are different (attorneys may not even be able to participate).
     c. The burden of proof may be placed on the physician.
     d. Investigation and appeals process may be different.
  2. The hospital’s resources are virtually unlimited.
     a. Hospitals may use certain experienced companies as part of the process that have a tendency to favor the hospital.
     b. The hospital’s personnel and attorneys will do all of the work and provide all of the support for the medical staff and peer review committee.
     c. The hospital and medical staff will have unlimited access to hospital employees and documents.
  3. You need legal representation from the time of the first rumor you hear that a complaint has been filed or a matter is being investigated.
     a. DO NOT “wait and see what happens.”
     b. DO NOT think that you will be an exception.
  4. You must be represented by an experienced, knowledgeable health care attorney during the peer review process. The hospital will be.
  5. The “nonconformist” or “trouble maker” will be forced into a hearing situation. The guy everyone likes won’t be.
  6. If hospital administration (including nursing staff) is out to get you, you will be gotten.
     a. If the hospital administration identifies you as a “bad physician,” “troublemaker,” or “disruptive physician” you are in serious, serious trouble.
     b. Your prior cases may be reviewed and scrutinized retrospectively for problems that were “overlooked.”
     c. Every poor result or outcome will be analyzed.
     d. You will be written up for everything that happens, even for things for which others would not be written up. Incidents where you were just “joking around” will be written up as sexual harassment.
     e. Any patient complaints over insignificant matters that would have previously been handled in a routine way, will now be handled as significant events.
  7. You will probably be offered an opportunity to resign prior to the commencement of the investigation . . .
  8.  But you will foolishly turn down the opportunity to resign.
  9. There are many options and alternatives available early in the process, but only an experienced health care attorney will know them. Options may include:
     a. Agreement not to admit, treat or perform certain procedures;
     b. Taking a leave of absence;
     c. Assessment by an independent organization (P.A.C.E., C.C.A.T.);
     d. Agreement to undertake additional training; or
     e. Resignation (prior to any proceedings being commenced).
  10. A “fair hearing” is not fair.
     a. The resources are stacked in favor of the hospital and administration.
     b. Peer review proceedings are very expensive (for all parties).
     c. The burden may be and can be placed on you to prove you are currently clinically skilled and competent.
     d. There may be external motivations, other than quality (especially in cases of tenured professors, senior physicians and minorities). Certain motivations are economical in nature and can be identified by:
      i. Proceedings initiated by your competitors;
      ii. Complaints made by your competitors;
      iii. You allegedly bringing in too many cases (monopolizing the procedure rooms or operating rooms);
      iv. You bringing in the wrong cases (too many Medicare, etc.);
      v. One medical group controlling the whole department (in absence of an exclusive contract);
      vi. You being accused as an “overutilizer” (you use too many hospital resources);
      vii. You being accused as”cherry picking” the best cases (all non-indigent or non-Medicaid cases); or
      viii. You refusing to participate in managed care plans.
     e. If suspended pending investigation/hearing and the suspension goes over 30 days, then a report to the National Practitioner Data Bank (NPDB) is required (which means there will be a report to your state medical board or licensing authority).
     f. You may find the same individuals on:
      i. The Investigation Committee
      ii. The Peer Review/Hearing Committee
      iii. The Appeals Committee
      iv. The Board of Directors/Trustees (responsible for final recommendations)
     g. You may have a gag order and not be allowed to talk to witnesses or potential witnesses to help you prepare for your case.
  11. It may not matter what the peer review or fair hearing committee recommends.
     a. The Board of Directors/Trustees can and will overrule the conclusions and recommendations of any peer review hearing (with the input of hospital administration and hospital attorneys).
     b. The peer review committee must make solid, unequivocal findings supported by evidence, as well as, strong, precise well-reasoned conclusions and recommendations. Make sure that you ask them to do this and that you (or your attorney) present to them a proposed recommendation or report.
  12. Those who judge you are not your peers.
     a. They may be from all different specialities and some may not even by surgeons. (Try to have the hearing committee be appointed by your medical speciality association.)
  13. The only rights you have are those in your medical staff bylaws (unless you are at a “public hospital” or in California)
  14. The consequences to you of an adverse outcome will be lifelong and career-altering. Consequences include:
     a. National Practitioner Data Bank (NPDB) Reports, which are national, on file for 50 years, very difficult to get corrected or voided and also reported to your state medical board;
     b. State licensure action (in every state in which you have a license);
     c. Medical specialty associations will commence proceedings if they hear of an adverse outcome;
     d. You will unlikely ever get clinical privileges at another hospital;
     e. You may lose medical malpractice insurance coverage;
     f. You may be dropped from the panels of many HMOs, managed care plans and insurers;
     g. Contracts with employers and insurers may require you to report this (so that you can be terminated).
  15. Once a peer review proceeding is commenced, it’s not just going to go away, and none of your friends on the Executive Committee or Board of Trustees is going to make it go away.
  16. Once a peer review proceeding is commenced against you, you will be in the most important fight of your career and possibly your life.
  17. You have no power, no control and no leverage. Get some:
     a. Assemble an experienced legal team;
     b. Begin preparing early and seriously;
     c. Get established, credible experts;
     d. Sue the hospital and certain individuals involved, if circumstances permit;
     e. Consider “political” or “public relations” avenues like letters to other physicians or patients, full page newspaper ads, getting your state or county medical society involved, or having a state legislator introduce a bill to require due process in all hospital adverse actions.
  18. You are going to have to spend lots of money to properly defend yourself and you will not get it back if you win.
  19. If you think you will be successful in suing in court to have an incorrect result overturned, you are probably wrong.
  20. Court litigation can give you the leverage you need to obtain a favorable outcome on the peer review proceeding.

Indest’s Recommendations for the Subject of a Hospital Peer Review Hearing

  1. You must ensure that your medical staff bylaws contain true “due process” rights for accused physicians.
  2. You should attempt to have state legislation passed that requires all hospitals to afford physicians certain due process rights in peer review proceeding similar to what California has done.
  3. The Medical Staff should never allow hospital administration (or the hospital parent corporation) to force them to adopt medical staff bylaws changes which eliminate or limit the hearing rights or due process rights of a physician who may be the subject of an adverse decision.
  4. The peer review committee (fair hearing committee) should have its own independent legal advisor in all hearings. This must be someone other than from the law firm which represents the hospital.
  5. You must treat the peer review process like you would a civil trial against you for medical malpractice.
  6. If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you.
  7. Also, immediately retain a litigation attorney who has experience in this type of civil litigation. File suit immediately if the matter is not proceeding fairly and in accordance with medical staff bylaws and state laws.
  8. If your hearing procedures/peer review procedures are not in your medical staff bylaws, make sure that both the medical staff bylaws and the hearing procedures state that the hearing procedures have the same force and effect as the medical staff bylaws.

If you are currently the subject of a peer review or clinical privileges hearing, call (407) 331-6620 or (850) 439-1001 to speak with one of our health law attorneys. You can also visit our website at www.TheHealthLawFirm.com.

By |2024-03-14T10:00:28-04:00June 1, 2018|Categories: Health Care Industry, The Health Law Firm Blog|Tags: , , , , , |Comments Off on Under Review: What You Need to Know About Clinical Privileges Hearings

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.

Two Separate Lawsuits Against Novartis Pharmaceuticals Corporation Allege Illegal Kickbacks and False Claims

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

Novartis Pharmaceuticals Corporation (NPC) is currently fielding two different lawsuits, filed just days apart from each other, by the U.S. Department of Justice (DOJ). The first lawsuit was filed on April 23, 2013, alleging the company gave illegal kickbacks to pharmacists. A second lawsuit was filed on April 26, 2013, alleging illegal kickbacks were paid by NPC to health care providers. According to the DOJ, the government’s complaint seeks damages and civil penalties under the False Claims Act, and under the common law for paying kickbacks to doctors to induce them to prescribe NPC products that were reimbursed by federal health care programs.

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

NPC Accused of Treating Health Care Professionals to Expensive Dinners, Product Discounts and Fishing Trips.

Both lawsuits allege NPC violated the Anti-Kickback Statute. In the April 23, 2013, complaint against NPC the lawsuit alleges the company gave kickbacks, in the form of rebates and discounts to pharmacies in exchange for the pharmacies’ cooperation in switching patients from competitors’ drugs to NPC products.

The April 26, 2013, lawsuit accuses NPC of paying doctors to speak about certain drugs at events that were allegedly social occasions. Many of the programs were allegedly held in circumstances in which it would be impossible to have a presentation. According to the DOJ, this included fishing trips off the Florida coast and meetings in Hooters restaurants. NPC is also accused of treating health care professionals to expensive dinners. The payments and dinners were apparently kickbacks to the doctors for writing prescriptions for NPC drugs.

Florida Doctors Involved.

The lawsuit alleges at least six Florida doctors of participating in the bogus conferences and taking thousands of dollars in kickbacks, according to the Tampa Bay Times. The doctors are not named or charged in the civil lawsuit.

To read the allegations listed in the lawsuit against Florida doctors, click here for the Tampa Bay Times article.

NPC Denies All Claims.

In a press release, NPC disputes all of the government’s allegations. The pharmaceutical company states that discounts and rebates by pharmaceutical companies are a customary and legal procedure, as recognized by the government. It also addresses the physician speaker programs by saying the programs are also acceptable practices designed to inform physicians about the uses of different types of medicines. Click here to read the entire press release from NPC.

The Law Against Using Bribes in Exchange for Selling a Drug or Service.

For years drug companies have paid doctors to speak about new drugs at educational conferences with other health care professionals. The practice is legal, but considered questionable.

Under the Anti-Kickback Statute, it’s a felony for health care professionals to accept bribes in exchange for recommending a drug or service covered by Medicare, Medicaid, TRICARE or the Department of Veterans Affairs health care program.

Whistleblowers Who Report Fraud and False Claims Against the Government Stand to Receive Large Rewards.

The original complaint against NPC was allegedly filed under the qui tam, or whistleblower, provisions of the False Claims Act by a former sales representative.

Individuals working in the health care industry, whether for hospitals, pharmacies, nursing homes, medical groups, home health agencies or others, often become aware of questionable activities. Often they are even asked to participate in it. In many cases the activity may amount to fraud on the government.

In a two-part blog series on whistleblower/qui tam lawsuits I explain types of false claims, the reward programs for coming forward with a false claim, who can file a whistleblower/qui tam lawsuit, and more. Click here to read the first part of this blog, and click here for the second part.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm represent plaintiffs, patients, health care professionals and health facilities in qui tam or whistleblower cases. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.

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 these lawsuits? Please leave any thoughtful comments below.

Sources:

Masow, Julie. “Novartis Pharmaceuticals Corporation Disputes Allegations in Two US Government Lawsuits and Looks Forward to a Fair Discussion of the Facts.” Novartis Pharmaceuticals. (April 26, 2013). From: http://www.pharma.us.novartis.com/newsroom/pressreleases/137176.shtml

Davis, Brittany Alana. “Lawsuit: Pharmaceutical Company Gave Kickbacks to Florida Doctors.” Tampa Bay Times. (May 3, 2013). From: http://www.tampabay.com/news/courts/lawsuit-pharmaceutical-company-gave-kickbacks-to-florida-doctors/2119133

Department of Justice. “United States Files Complaint Against Novartis Pharmaceuticals Corp. for Allegedly Paying Kickbacks to Doctors in Exchange for Prescribing Its Drugs.” Department of Justice. (April 26, 2013). From: http://www.justice.gov/opa/pr/2013/April/13-civ-481.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.

Scribes Offer Physicians Some Relief from EHR Frustrations

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

In November 2013, a physician satisfaction study, sponsored by the American Medical Society (AMA), was published. In the study, physicians stated one of the most hated items in the medical industry is the electronic health record (EHR). According to physicians, EHRs are time-consuming, they hinder the physician-patient relationship by dividing the physician’s attention, they require health care professionals to perform tasks below their level of training, and EHRs can decrease efficiency in the practice.

Now there is a trend in the medical industry that allows physicians and health care practitioners to complete all their EHR documentation without ever having to touch a computer. According to an article in The New York Times, many medical practices and emergency rooms are hiring medical scribes to ease physicians’ note-taking responsibilities.

What is a Scribe?

A medical scribe is an unlicensed, trained medical information manager specializing in charting physician-patient encounters during the medical exams. A scribe enters information into the EHR at the direction of the physician or health care practitioner. Scribes can also support workflow and documentation for medical record coding.

Duties of a scribe vary by the practice. Some common duties include:

– Documenting procedures performed by the physician;
– Reviewing patient evaluation data for comparison and transcribing the results;
– Recording physician-dictated diagnoses, prescriptions and instructions for discharge; and
– Recording a provider’s consultations with other health care professionals.


Benefits of a Scribe.

According to an article in The New York Times, there are an estimated 10,000 scribes currently working in hospitals and medical practices around the country. In the same article physicians using scribes stated that they are more satisfied with their choice of career because the scribe allows the physician to concentrate on treating patients. Physicians also stated that by using scribes they can see up to four extra patients a day. Other benefits include, a reduced amount of clerical work for doctors, and better record keeping.

To read the entire article from The New York Times, click here.

Requirements of a Medical Scribe.

The growing medical scribe industry has yet to come together on a unified training and certification process. While the practitioner is ultimately responsible for the record, scribes should be trained to have a basic understanding of the EHR documentation guidelines, according to a Medical Economics article. Furthermore, there are specific signature requirements to be used when scribes are utilized, according to Medical Economics.

Some signature requirements for scribes include:

– Signing and dating all entries into the medical record. The role and signature of the scribe must be clearly distinguishable from that of the physician or licensed practitioner.
– The physician or licensed practitioner must authenticate the entry by signing, dating, and recording the time. A physician signature stamp is not permitted for use in the authentication of scribed entries.
– The authentication must take place before the physician and scribe leave the patient care area.
– If the organization determines that the scribe will be allowed to enter orders into the medical record, those orders entered into the medical record cannot be acted on until authenticated by the physician.
– The medical practice should implement a performance improvement process to ensure that the scribe is not acting outside of his or her job description, authentication is occurring as required, and that no orders are being acted on before they are authenticated.

When adding scribes to your practice, it is important to consult the guidelines laid out by state boards and other regulatory authorities in order to develop compliant scribe policies. Knowing your state’s requirements is key to reducing legal dangers and defending potential claims.

To learn more on medical scribes, click here to read the Medical Economics article.

Medical Assistants vs. Scribes.

In most states, medical assistants are allowed to perform more patient care activities than a scribe is. For example, see the list contained in Florida Law, Section 458.3485, Florida Statutes. On the other hand scribes are, in effect, merely medical transcriptionists. However, each job may prove to be a gateway to the other job. A well-trained medical assistant may make an excellent scribe and be of great assistance to the physician. An experienced medical scribe may make an excellent medical assistant, being familiar with medical terminology and patient care.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians and medical groups on EHR issues. It also represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, 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 do you think about the use of scribes in the medical practice? Do you or have you ever used a scribe? What are the benefits or pitfalls of using a scribe? Please leave any thoughtful comments below.

Sources:

Hafner, Katie. “A Busy Doctor’s Right Hand, Ever Ready to Type.” The New York Times. (January 12, 2014). From: http://www.nytimes.com/2014/01/14/health/a-busy-doctors-right-hand-ever-ready-to-type.html?_r=0

Lewis, Maxine. “Scribes Can Help Document Care, Boost Efficiency at Medical Practices.” Medical Economics. (October 20, 2013). From: http://medicaleconomics.modernmedicine.com/medical-economics/news/scribes-can-help-document-care-boost-efficiency-medical-practices

Conn, Joseph. “More Docs Get EHR Help.” Modern Healthcare. (August 24, 2013). From: http://www.modernhealthcare.com/article/20130824/MAGAZINE/308249958

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.

New Anti-Prescription Drug Abuse Campaign in Pinellas County

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

Pinellas County has started a new billboard campaign aimed at curbing prescription drug abuse. The billboard message reads, “We’re shutting down Pill Mills in Pinellas County.” The first two billboards were erected on April 1, 2012. Several smaller boards will be put up in the next few weeks, with even more planned for the future. This continues the long-standing battle by Pinellas County law enforcement authorities against pain management clinics that they describe as “pill mills.”  Pinellas County includes the cities of St. Petersburg, Clearwater and Seminole.

The billboard message is a statement from local coalition groups who have partnered with Pinellas County in order to curb the area’s prescription drug abuse problem. In 2010, Pinellas County allegedly had the most occurrences of accidental overdose deaths from prescription drugs when compared to all other counties in Florida.

The intention of Pinellas County in establishing this billboard campaign may be aimed at stopping prescription drug abuse, but the billboards also shed negative light on legitimate pain management clinics and physicians. Although anti-prescription drug abuse campaigns are laudable, these efforts should focus on assisting those with actual prescription drug abuse history, rather than creating a scapegoat out of the pain management industry.

If you work in the pain management industry (physician, pharmacist, pain clinic, pharmacy, etc.) and feel that your medical license, pharmacy license, or business is at risk or is under investigation by the Drug Enforcement Administration (DEA) or Florida Department of Health (DOH), please visit our website at www.TheHealthLawFirm.com for more information about this.

Sources Include:

WFTS Staff, “County Sends Billboard-sized Message About Prescription Drug Abuse,”  ABC Action News (Apr. 6, 2012).  From:  http://www.abcactionnews.com/dpp/news/state/county-sends-billboard-sized-message-about-prescription-drug-abuse

“We’re Shutting Down Pill Mills in Pinellas County,” Tampa Bay Newspapers (Apr. 10, 2012). From:  http://www.tbnweekly.com/pinellas_county/content_articles/041012_pco-01.txt

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

Central Florida Has Been Invaded By Zombies – No Twinkies Means No Food Source

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

You are already aware of Floridians’ fear of zombies, as shown by recent legislation against bath salts. Despite this, there continue to be reports of rampant zombie outbreaks across the Sunshine State. The zombie apocalypse has hit Central Florida, hard. As a citizen of Florida, you know you are not safe; not from zombies, not from British tourists, not from inability to count (notes in an election) and not from the state legislature. To make matters worse, Twinkies, the only food known to mankind that can survive a post-apocalyptic zombie outbreak (reference: Zombieland 2009) or a nuclear holocaust (reference: Family Guy, second season, third episode Dec. 26, 1999), may soon be out of production. Everyone knows Twinkies have a shelf life of 246 years.

Since Florida seems to be the only state infected with this flesh-eating disease, we are taking a poll. Should we be renamed “the Zombie State?”

A Run With the Living Dead in Clermont.

For those of your reading this blog from another state, you’re in luck. There is actual video footage of how bad the zombie outbreak has gotten in Florida. In Clermont, thousands of cardio-enthusiasts showed up to run a 5K course filled with numerous obstacles that forced participants to crawl in the sticky mud to avoid being pricked by barbed wire above and walking along an unstable beam of wood. Unfortunately, the runners were bombarded along the way by the living dead looking for a quick bite to eat. The participants had to protect their brains while running for their lives. Only the fastest survived.

To see video of attack, click here.

Zombies Take Over the University of Central Florida (UCF).

If you are in Florida and were hoping to take shelter on the campus of the University of Central Florida (UCF), you’re too late. From now until December 2, 2012, the campus will be crawling with zombies who have taken to the stage in a production called “Zombie Town: A Documentary Play.”

We’ve heard it’s not bad. Click here to read a review of the performance.

No Twinkies = No Hope.

By now you’ve heard Hostess, the maker of Twinkies, may be on its way to a complete shutdown. As you know, these delicious treats are the only food that can survive a zombie outbreak. If Hostess closes its doors, we are doomed for sure. Thank goodness Hostess and its striking union members are renegotiating. If Hostess does shut down, it’s rumored a Boca Raton, Florida, company will purchase the brand. We can only hope.

To read the latest on the Hostess debacle, click here.

Given the increasing number of zombie attacks in Florida, the price of Twinkies could soar into the hundreds of dollars each in Florida. Doomsday enthusiasts and disenchanted stock market investors are allegedly pouring funds into warehouse loads of Twinkies.

Is the Ban on Synthetic Drugs in Florida Working?

If you remember, Florida Governor Rick Scott signed House Bill 1175 on March 23, 2012. This bill outlawed more than 90 new forms of synthetic drugs. It modified Section 893.03(1)(c), Florida Statutes, by expanding the list of banned hallucinogenic substances in Schedule I of the Florida Comprehensive Abuse Prevention and Control Act. To view Florida HB 1175, click here. To read more on the ban, click here.

HB 1175 was in response to the first known zombie attack in Miami. This cannibalistic attack was allegedly because the one man was high on bath salts. It was rumored that one prominent Florida lawmaker stated that banning bath salts, smiles and other synthetic drugs should help to reduce the reported acts of cannibalism and zombie-like behavior in Florida.

And he was wrong, the walking dead are alive, sort of, and well in Florida.

Contact Experienced Health Law Attorneys.

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 DEA, 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 do you think about all the zombies around town? What are you doing to survive? Are you stocking up on Twinkies now? Tell us, do you think we should rename Florida the Zombie state? Vote in a poll on our Facebook page.

Sources:

Armstrong, Cassie. “Zombies Invade Clermont in 5K Challenge.” Florida 360. (November 17, 2012). From: http://www.orlandosentinel.com/multimedia/os-fla360-zombies-invade-clermont-in-5k-challenge,0,110644.story

Palm, Matthew. “Theater review: ‘Zombie Town: A Documentary Play’ from Theatre UCF.” Orlando Sentinel. (November 18, 2012). From: http://www.orlandosentinel.com/community/ucf/os-zombie-town-review-ucf-20121116,0,4007008.story

Hsu, Tiffany. “Hostess, Union to Give Talks Another Chance.” Orlando Sentinel. (Novemeber 2012). From: http://www.orlandosentinel.com/la-fi-mo-twinkies-hostess-union-mediation-20121119,0,4220893.story

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.

Internal Revenue Service Decides Electronic Health Record Incentive Payments are Taxable

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

The Internal Revenue Service (IRS) has taken the position that electronic health record (EHR) incentive payments are taxable. Previously it was not specified how EHR incentive payments were to be treated or reported to the IRS. On January 14, 2013, the IRS issued guidance on this issue in a memorandum from the Office of Chief Counsel. This memorandum lists tax issues facing those who have received or who will receive EHR incentive payments. It also states the IRS’s position on those issues.

IRS Considered Three Different Issues and Gave its Stance on Each Issue.

In its memorandum, the Office of Chief Counsel considered the following three issues:

1. Whether recipients must include in gross income electronic health record
incentive payments paid by the Centers for Medicare and Medicaid Services
(CMS) pursuant to the American Recovery and Reinvestment Act (ARRA).

2. Whether CMS has a reporting requirement with regard to payments made under the EHR Incentive Program.

3. Whether the reporting requirement is altered if the payment is assigned to a third party.

The Summary of the Office of Chief Counsel’s Position on Each of the Issues.

1. The recipients must include the incentive payments in gross income unless they receive the payments as a conduit or an agent of another and are thus unable to keep the payments.

2. CMS has a reporting requirement under section 6041 of the Internal Revenue Code with respect to the eligible providers.

3. In the event of an assignment by the eligible providers to a third party, CMS would be obligated to report a payment to the eligible provider, even if the payment is assigned to a third party. The eligible provider would then likely bear a reporting obligation with respect to the assignment to a third party. CMS would not have a reporting obligation with respect to the third-party assignee unless CMS exercised managerial oversight with respect to, or had a significant economic interest in, the assignment.

Click here to read the entire memorandum.

Health Care Professionals Be Aware.

According to the IRS, taxpayers cannot avoid tax by turning over income to someone else. For example, a doctor earns an EHR incentive payment and turns it over to his/her practice. That doctor may still have to include the EHR payment on his/her personal tax return. The IRS allows an exception. If the doctor received the payment as an agent of the group practice, the doctor does not have to report it on his/her personal tax return.

Health care professionals and providers who have or will receive EHR incentive payments should plan to deal with the tax consequences of those incentives.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians and medical groups on EHR problems. It also represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, 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?

As a health care professional, do you think electronic health record (EHR) incentive payments should be taxable? Please leave any thoughtful comments below.

Sources:

Goldberg, Alan. “Healthcare Reimbursement List.” American Health Lawyers Association. (April 26, 2013).

Montemurro, Michael. “Electronic Health Records Incentive Payments, POSTS-145204-12.” Internal Revenue Service. (January 14, 2013). From: http://www.thehealthlawfirm.com/uploads/1307005.pdf

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.

California Doctor To Pay $562,500 Fine and Spend 5 Days in Jail for Balance Billing Patients Covered by Managed Care Plans

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 California doctor was fined $562,500 and ordered to spend five days in jail for illegally balance billing patients covered by health plans, according to a Los Angeles Times posted in December 2013. The doctor, Jeannette Martello, M.D., is a plastic and reconstructive surgeon practicing in the Los Angeles area. She was accused of balance billing patients covered by managed care health plans that were provided emergency treatment in several hospitals in Los Angeles. The doctor had very aggressive collection practices and allegedly sued her patients frequently to collect the fees not covered by the managed care health plans.

Click here to the entire Los Angeles Times article.

What is Balance Billing?

Balance billing is the practice of doctors charging the patient the difference between what the managed care plan pays and doctor’s regular charges. A physician who is in-network is usually prohibited from balance billing patients by the health plan’s contract with the physician. The problem of balance billing arises most often in the context of emergency services where the patient may go to an in-network hospital, but the specialist physician providing services to the patient may be out-of-network. Most states require the managed care plan to pay the out-of-network physician a “reasonable fee” for the services. The physicians and the managed care plans rarely agree on the “reasonable fee” for a particular service. This often results in litigation between the physician and the health plan. The situation also arises when a patient goes to an in-network hospital for surgery, but the anesthesiologist is not in-network.

Doctor Plans to Appeal.

According to the Los Angeles Times article, Dr. Martello plans to appeal the ruling. Dr. Martello and her attorney claim the prohibition on balance billing did not apply to her patients because the patients were in stable condition.

Court Previously Entered Injunction Prohibiting Illegal Billing.

In 2012, The Los Angeles Superior Court entered an injunction ordering Dr. Martello to cease all illegal billing practices, according to the Department of Managed Health Care. Dr. Martello continued the billing practices, which is why the judge ordered Dr. Martello to serve five days in jail. The judge also issued a permanent injunction prohibiting Dr. Martello from illegally billing patients in the future.

To read the press release from the Department of Managed Health Care, click here.

The Medical Board of California also placed Dr. Martello on probation for five years for her illegal billing practices in August 2013.

Balanced Billing Could be Considered a Matter of Contract Law.

It is usually sound legal advice that if a court orders you to do something or to stop doing something, comply with the court’s order. It is hard to imagine legal advice to the contrary, unless the parties desire to have a test case to challenge the law or challenge such rulings.

Balance billing in such cases is usually a matter of contract law. The provider agreement between the physician and the health plan is the contract at issue. This, then, would be a breach of contract action and not a criminal matter.

However, in certain instances, such as for Medicare or Medicaid patients, laws may prohibit balance billing. It is always best to check with your experienced health attorney first.

Contact Health Law Attorneys Experienced with Investigations of Doctors.

The attorneys of The Health Law Firm provide legal representation to doctors and other healthcare 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. The Health Law Firm also represents providers in billing disputes with third-party payers.

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 ever heard of balance billing patients? Do you think the doctor received a far punishment for her billing practices? Please leave any thoughtful comments below.

Sources:

Terhune, Chad and Brown, Eryn. “Doctor Gets Jail Time, $562,500 Penalty in Improper-Billing Case” Los Angeles Times. (December 6, 2013). From: http://articles.latimes.com/2013/dec/06/business/la-fi-mo-doctor-balance-billing-case-20131205

Green, Marta. “Department of Managed Care Director Brent Barnhart Issues Statement on Preliminary Injunction Granted in People v. Martello.” Department of Managed Health Care. (June 13, 2012). From: http://www.dmhc.ca.gov/library/reports/news/pr061312.pdf

The Pathology Blawg. “Dr. Jeannette Martello Gets Five Years Medical Probation for Aggressive Balance Billing.” The Pathology Blawg. (August 20, 2013). From: http://pathologyblawg.com/medical-news/balance-billing/jeannette-martello-five-years-medical-probation-aggressive-balance-billing/

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. http://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.

DEA Has Online List of Cases Against Doctors

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

The Drug Enforcement Administration (DEA) has a public list of physicians with DEA registrations that have been arrested and prosecuted. On the DEA’s website, there is a list of all investigations of physician registrants in which the DEA was involved that resulted in the arrest and prosecution of the registrant which was updated and released on April 3, 2012.

The list includes:
• The name of the physician;
• The physician’s city/state;
• Date of arrest/conviction;
• Judicial status;
• Conviction;
• Status of the physician’s DEA registration; and
• Remarks regarding the physician’s case.

Click here to view a copy of the most recent list (last updated on April 3, 2012).

We cannot vouch for the validity of the information on the DEA’s list. We just know it was published.

Contact Health Law Attorneys Experienced with DEA Cases.

The attorneys of The Health Law Firm are experienced in handling DEA cases. If you are currently being investigated or facing other adverse action by the DEA contact one of our attorneys by calling (407) 331-6620 or (850) 439-1001. You can also visit our website for more information 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.

By |2024-03-14T10:00:30-04:00June 1, 2018|Categories: DEA, The Health Law Firm Blog|Tags: , , , , , , , , , |Comments Off on DEA Has Online List of Cases Against Doctors
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