The Move to Self-Reporting Continues: Self-Referral Disclosure Protocol

health law complianceBy: James Saling

The Center for Medicare and Medicaid Services (CMS) issued proposed Self-Referral Disclosure Protocol (SRDP) forms and revisions to the regulations on May 6, 2016. This was an additional step in the move for providers to self-report violations of the Stark Law.  Part of the revisions to the regulations came as a result of the final overpayment rule issued earlier this year on February 11, 2016 (60 Day Rule). CMS expects that the SRDP forms will facilitate faster review of a self-disclosure and make it easier for providers to report violations.

The SRDP was established as a result of the Affordable Care Act and is a tool for resolving Stark Law compliance issues. One of the problems with the SRDP is the time that self-disclosures worked their way through the system.  Some self-disclosures have yet to be resolved and were initially made years ago. Continue reading

The First False Claims Act Involving the Affordable Care Act (ACA) 60 Day Repayment Rule

By: Valerie Shahriari

While the False Claims Act (FCA) has been in existence for years, many providers do not know that the rule was extended in 2010.  As part of the Affordable Care Act (ACA), Congress created the “60 Day Rule” and extended the False Claims Act liability to health care providers who fail to report and return overpayments within 60 days of identification if that overpayment came from a federal program (i.e., Medicare and Medicaid).  United States ex rel. Kane et al. v. Healthfirst, Inc., et al (Case No. 1:11-cv-02325) (S.D.N.Y. August 3, 2015) is the first case in which the federal government intervened on an alleged violation of the 60 Day Rule.  Continue reading

The Affordable Care Act on Trial Again in King v. Burwell

bcbs lawsuitBy: Jackie Bain

The Affordable Care Act is heading back to the Supreme Court this Spring.  The issue presented to the Supreme Court on this occasion is whether the IRS is authorized promulgate regulations to extend tax credit subsidies for coverage purchased through Federal Government’s Health Care Exchange.

The Affordable Care Act allows individuals who purchased health coverage through State-established Health Care Exchanges to subsidize a portion of that coverage through the form of refundable tax credits.  The United States treasury directly pays each eligible taxpayer to offset the cost of the taxpayer’s insurance premium.  However, a majority of States (including Florida) have elected not to establish their own Health Care Exchanges.  In order to provide coverage to persons in these States, the Federal Government set up its own Health Care Exchange marketplace.  Continue reading

Physicians’ Participation in the Open Payments Program: As if the Anti-Kickback Statute Wasn’t Enough !

sunshine act scope

 

By: David Hirshfeld

By now we are all too familiar with the commandment “Thou shaltneither pay nor receive, nor solicit the payment or receipt, of anything of value in exchange for referring an individual to a person for the furnishing of an item or service for which payment may be made by a Federal health care program.”  Many of us have restructured, redefined, contorted and construed our arrangements so that they fit neatly within a statutory Safe Harbor to the anti-kickback legislation.  Then, in the name of “Patient Protection,” comes the Open Payments Program (also known as the “Physician Payment Sunshine Act”).

Continue reading

Hospital Physician Alignments are Tenuous

integration1Hospitals, particularly those heading ACO development efforts, are quick to say things like “One day, all physicians will be employed by hospitals.”  Though there is clearly some wisdom under that statement, it’s also a remarkable leap of faith.

Three things are clear in this era of healthcare reform:  (1) healthcare will be provided to more, but with less; (2) there will be a growing move over time to pass financial risk to providers; and (3) those businesses in a position to control both costs and quality (and some say patient satisfaction) are in a position to both survive and even do better than ever.

This leaves the door wide open as to the form of the business that can succeed.  Is it a single specialty mega practice?  Is it a multi specialty medical practice?  How about a hospital? Continue reading

Ordering and Referring Providers: CMS Just Won’t Take No for an Answer. Form 855-O.

By: David Hirshfeld, Esq.

More and more of our seasoned clients are opting out of Medicare, and the younger ones are simply not enrolling.  The scale seems to have finally tipped so that the potential liability of being a Medicare provider outweighs the benefits.  So many providers are avoiding Medicare participation, that the Affordable Care Act and CMS have implemented the issuance of “Ordering and Referring Provider Numbers” through CMS Form 855-O.

As of May 1, 2013, physicians and other providers (collectively “Providers”) who bill Medicare must list the NPI of the ordering/referring Provider on their claim forms in order to be paid for the technical component of imaging services, the technical component of clinical laboratory services, durable medical equipment and/or home health services.  An issue arises when the referring/ordering Provider does not participate with Medicare, and does not have an active NPI.

The Affordable Care Act provides a solution by allowing Providers to enroll in Medicare for the sole purpose of ordering or referring covered services for their Medicare patients, even though the ordering/referring Provider cannot bill Medicare for the services (s)he provides.  This limited enrollment is accomplished through CMS Form 855-O.

Providers who have opted-out of Medicare by filing the required affidavit and entering into acceptable patient contracts do not have to submit Form 855-O as they have NPIs, even though they are not allowed to bill under them during their opt-out period.

Why Compliance Plans Make Sense

Clipboard with Checklist and Red PenHas your practice implemented a compliance program or considered improving an existing one?  Is it really necessary?  Prior to the Patient Protection and Affordable Care Act (ACA), the necessity for physician practices to develop compliance plans was merely voluntary.  However, the ACA will now require physician practices to have a fraud and abuse compliance plan in place as a condition of continuing to participate in Medicare or Medicaid programs.  Because the government first published guidelines in the year 2000 for the voluntary use of compliance plans in physician practices and has subsequently enacted a mandate in the ACA for compliance plans, many physician practices are proactively implementing them.  While this compliance plan mandate may be viewed by physicians as yet another administrative burden and expense to the practice, it can have many benefits as well.  Implementing an effective compliance program can have the result of not only reducing liability risks, but can also allow a practice to reap monetary benefits.  In fact, it could be more costly for the practice not to have one! Continue reading