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Compliance Update
Physicians Need to Pay Attention to Fraud and Abuse Risks Print E-mail
Written by Todd Rodriguez   
Thursday, 09 June 2011 09:32

We spend a great deal of time on this blog recounting stories of physicians and other providers who have run afoul of the various federal and state abuse laws applicable to the practice of medicine.  However, in my travels in working with physicians and group practices, it is apparent that many physicians still lack a basic understanding of the complex legal and regulatory framework within which they practice every day.  Many physicians operate under the mistaken belief that their greatest area of legal exposure is professional (malpractice) liability.  But, unlike fraud and abuse exposure, most physicians carry significant insurance against catastrophic malpractice claims.  Too few physicians appreciate the fact that running afoul of Medicare billing and coding requirements or entering into an arrangement which is a violation of the federal Stark or anti-kickback statutes could result in significant overpayments which must be refunded to the Medicare program or even worse, massive civil money penalties or false claims liability.

Following a recent study in which the Centers for Medicare and Medicaid services (CMS) determined that residents were getting inadequate training on fraud and abuse laws, the Office of Inspector General (OIG) recently published a document entitled "A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse".  The document serves as a good primer on the various fraud and abuse laws which apply to medical practice under the Medicare program. Physicians are well-advised to not only review the document themselves but to have key office personnel including administrators, office managers and key billing personnel review the document as part of their regular compliance training.  Although this basic document cannot take the place of competent legal counsel, it will give physicians and their employees a fundamental understanding of the regulatory framework that applies to their daily practice and enough knowledge to know when to get health care legal counsel involved.

ABOUT THE AUTHOR:  Mr. Rodriguez is an attorney for Fox Rothschild, LLP.  He is Co-Chair of the firm's Health Law Practice.  To learn more click here:  Todd Rodriguez Bio & Contact Info

Last Updated on Tuesday, 21 June 2011 17:10
 
D.C./M.D. Arrangements Share Legal Issues Nationwide Print E-mail
Written by Jeffrey L. Cohen   
Thursday, 09 June 2011 08:53

Chiropractors and medical doctors (or D.O.s) have had a long and somewhat complex relationship. Though they approach healthcare issues differently, there are many instances where they share care or even work together. Such "M.D./D.C." relationships are legally complex, but often prove to be rewarding in many respects. Properly constructing the arrangements is critical, especially since government regulators and payers tend to view such arrangements with skepticism, alleging that the true reason for the combination is for chiropractors to avoid coverage restrictions.

The core legal issues the parties need to be aware of include:

Corporate practice prohibitions. Most states prohibit (or regulate) who can own a medical practice or a chiropractic practice. So called "corporate practice restrictions" for instance often prohibit a medical doctor and a chiropractor from jointly owning a clinical practice. Additionally, many states do not permit a chiropractor employing a medical doctor and vice versa. That leaves essentially two models for consideration-a direct employment model and a management type of model.

Legal structure. Getting this right is important, especially with respect to self referral restrictions. If federal patients dollars are involved (e.g. Medicare), some very complex and powerful federal laws (e.g. Stark and the Anti Kickback Statute) come into play. And many states have their own self referral restrictions. Single legal entity? Multiple legal entity? It depends on things like the payer mix, state regulation, and the type of services provided.

In office ancillary services (IOAS) or "group practice" concerns. This is closely related to self referral regulations. Both states and the federal government regulate such conduct. For instance, under applicable federal law, "designated health services" (which include physical therapy and diagnostic imaging) must be provided in the very same office where patient care is provided. Moreover, a physician (but not a chiropractor) must be physically present in the office when the DHS services are provided to patients. Additionally, to comply with the IOAS provision, the practice has to ensure that the physicians in the practice spend, on average, 75% of their total professional time working through the combined practice. MD/DC practices which don't require an M.D. often can find adhering to state and federal requirements difficult because of applicable supervision requirements.

Fee splitting. Many practices want to simply divide up income on a percentage basis, but this raises fee splitting (and kickback) issues.

These unique combined practices have to be careful to guard against the already tainted regulatory assumptions about them. Yet, there are many things conservative professionals can do to thwart successful investigations, like-

·Rules and regulations to address common risks like "patient channeling" allegations (for which many physicians have been criminally convicted);

·A compliance audit to ensure that what they are doing or planning to do complies with applicable state and federal law; and

·An annual audit to ensure continued compliance (including in areas like coding and proper documentation).

Mixed practices like M.D./D.C. relationships are not new, but the full spectrum of regulatory compliance is essential to ensure long term viability. It simply isn't sufficient to focus on one or more aspects. Getting the entity and form of compensation right is just one part of a legally complex business arrangement; and to serve physicians well requires all facets of the arrangement to be viewed and cleared.

ABOUT THE AUTHOR 
With over 20 years of healthcare law experience following his position as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. His practice immerses him in regulatory, contract, corporate, compliance and employment related matters.  Mr. Cohen is the founder of The Florida Healthcare Law Firm.
www.floridahealthcarelawfirm.com | 888-455-7702

Last Updated on Thursday, 09 June 2011 08:56
 
7 Essential Elements for Compliance Print E-mail
Written by Todd Demel, MBA   
Thursday, 26 May 2011 16:55

Establishment of Compliance Standards and Procedures:

Develop and distribute written standards of conduct, policies and procedures.

 

Designation of a Compliance Officer or Committee:

Specific individual(s) in high level positions within the organization should be assigned overall responsibility for compliance development, implementation, oversight, and enforcement.

 

Employee Education and Compliance Training:

Effectively communicate standards and procedures to all employees through development and implementation of ongoing program

 

Ongoing Monitoring and Reporting Systems:

Use audits and/ or evaluation techniques to monitor compliance and assist in the reduction of identified problem areas.

 

Corrective Actions:

Once an offense is detected, the organization should take all reasonable steps to respond appropriately.

 

Disciplinary Actions:

Compliance standards should be consistently enforced by the organization, including the use of appropriate disciplinary mechanisms.

 

Lines of Communication:

Mechanisms should be in place for raising questions or alerting the company of potential violations. Employees should be allowed to make complaints anonymously and confidentially as well as being assured of non-retaliation for complaints raised in good faith.  

Source:  MF Healthcare Solutions:  Developing a Compliance Plan

 

Last Updated on Wednesday, 29 June 2011 16:59
 
Be Mindful of the Medicare Incident-To Rules Print E-mail
Written by Todd Rodriguez   
Thursday, 12 May 2011 16:30

Although many Medicare billing rules can present challenges for physicians, the incident-to billing rules consistently confound many physicians. The incident-to rules permit a physician to bill for the services of non-physician mid-level providers and auxiliary personnel as if the physician performed those services himself. To be covered on an incident-to basis, the services and supplies must be:

· An integral, although incidental, part of the physician's professional service. The Centers for Medicare and Medicaid Services (CMS) has interpreted this to mean that there must have been a physician's service rendered to which the auxiliary personnel services are incidental. However, according to CMS, this does not mean that a physician's service must precede every single incident-to service. Rather, there must have been a physician's service which initiates the course of treatment during which incident-to services will be rendered.

· Commonly rendered without charge or included in the physician's bill.

· Of a type that are commonly furnished in physician offices or clinics. If auxiliary personnel perform services outside of the office setting, such as in a patient's home or an institution (other than a hospital or skilled nursing facility), their services may be covered under the incident-to rules only if there is direct supervision by the physician. In a non-office setting, direct supervision would require that the physician be in the immediate presence of the auxiliary personnel while the services are being rendered.

· Furnished by the physician or by auxiliary personnel under the physician's direct supervision. This means the physician must be present in the office suite where the services are being rendered, at all times while the services are being rendered, and must be able to immediately respond if needed. CMS has not provided any clear guidance on what constitutes an "office suite," and presently this is within the discretion of each Medicare Area Contractor.

All of the incident-to rule technical requirements must be met as a condition of Medicare reimbursement. This means that if even one of the requirements is not met, the services may not be billable to Medicare and you may be receiving overpayments (which must be repaid within 60 days of discovery). Accordingly, it is advisable to adopt policies and procedures to ensure ongoing incident-to compliance.

 ABOUT THE AUTHOR:  Todd Rodriguez  is a partner with Fox Rothschild, LLP.   To learn more click HERE.

 
Florida Physician Strikes Out in Challenging Hospital Re-Appointment Denial Print E-mail
Written by Jeff Cohen, JD   
Wednesday, 06 April 2011 14:22

In January, a Florida appellate court upheld the denial of a physician's request to halt a hospital's intention to deny reappointment to the medical staff.  The physician involved in the case was a member of the medical staff and was recredentialed pursuant to the hospital's recredentialling cycle.    The doctor asked the trial court to stop the hospital from implementing the denial until the trial court fully considered the case; which request the court granted.  The appellate court, however, decided the trial court was wrong and overturned the decision.

The basis of the doctor's claim was that the hospital didn't follow the medical staff bylaws and that, therefore, the hospital's decision shouldn't be implemented, at least not until the court could have a trial-like hearing on the issue, which might take many months to schedule.  The appellate court relied on a state law granting immunity to the hospital for the denial and stated that the doctor didn't make the proper argument that would have justified the trial court granting his request to delay implementing the decision. 

Specifically, Florida law grants medical staffs the authority for reviewing applications, but is clear that the final decision rests with the hospital governing body.  Most medical staff bylaws codify the very same principle, though there is room to create more of a collaborative relationship between governing bodies and medical staffs on the issue.  Medical staffs ought to be vigilant about the wording of their medical staff bylaws, since they are considered to be a contract between them and the hospital.       

In the present case, however, the doctor was ultimately denied the right to delay the hospital's decision because he did not argue that the hospital decision involved fraud.  The case is yet another example of why medical staffs have to take a very pro active role in creating medical staff bylaws, which is no easy feat, since most physicians consider medical staff bylaw creation to be only slightly more exciting than paint drying contests.

With over 20 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen's practice immerses him in regulatory, contract, corporate, compliance and employment related matters. He is the Founder of The Florida Healthcare Law Firm.  www.FloridaHealthcareLawFirm.com 

Last Updated on Thursday, 14 April 2011 09:36
 
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