Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at http://www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!
The Supreme Court upheld President Obama’s health care law today in a splintered, complex opinion that gives Obama a major election-year victory.
Basically. the justices said that the individual mandate — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax.
Chief Justice John Roberts — a conservative appointed by President George W. Bush — provided the key vote to preserve the landmark health care law, which figures to be a major issue in Obama’s re-election bid against Republican opponent Mitt Romney.
The government had argued that Congress had the authority to pass the individual mandate as part of its power to regulate interstate commerce; the court disagreed with that analysis, but preserved the mandate because the fine amounts to a tax that is within Congress’ constitutional taxing powers.
The announcement will have a major impact on the nation’s health care system, the actions of both federal and state governments, and the course of the November presidential and congressional elections.
A key question for the high court: The law’s individual mandate, the requirement that nearly all Americans buy health insurance, or pay a penalty.
Critics call the requirement an unconstitutional overreach by Congress and the Obama administration; supporters say it is necessary to finance the health care plan, and well within the government’s powers under the Commerce Clause of the U.S. Constitution.
While the individual mandate remained 18 months away from implementation, many other provisions already have gone into effect, such as free wellness exams for seniors and allowing children up to age 26 to remain on their parents’ health insurance policies. Some of those provisions are likely to be retained by some insurance companies.
Other impacts will sort themselves out, once the court rules:
— Health care millions of Americans will be affected – coverage for some, premiums for others. Doctors, hospitals, drug makers, insurers, and employers large and small all will feel the impact.
— States — some of which have moved ahead with the health care overhaul while others have held back — now have decisions to make. A deeply divided Congress could decide to re-enter the debate with legislation.
— The presidential race between Obama and Republican challenger Mitt Romney is sure to feel the repercussions. Obama’s health care law has proven to be slightly more unpopular than popular among Americans.
“We are very excited about it. The fact that we serve clients all over the country has been a small secret for a while but we realized there’s a huge demand and decided to just go for it,” said Jeffrey L. Cohen, Esq. Founder and President of Florida Healthcare Law Firm.
According to Cohen, “It’s just a strange area of the law. Nearly everything in healthcare business is regulated; leases, employment agreements, compensation. Things you wouldn’t think are regulated are strongly regulated. And there are large fines and criminal penalties for getting it wrong! Our clients understand that healthcare business of any kind has serious legal risks and that they need uniquely qualified help.”
* * *
Acknowledged throughout the country for its service and excellence, Florida Healthcare Law Firm is one of the nation’s leading providers of healthcare legal services. Founded by Jeffrey L. Cohen, Esq and headquartered in South Florida, FHLF provides legal services to physicians and healthcare businesses with the right pricing responsiveness and ethics. From healthcare clinic regulation, home health agency representation and physician contracting to medical practice formation/representation and federal and state compliance matters, the Florida Healthcare Law Firm is committed to bringing knowledge and experience to a diverse group of clients.
This is a great article published by CNN this morning.
View it in it’s entirety Here
(CNN) — On Monday, the U.S. Supreme Court takes on a political, social, economic and medical hot potato: the health care reform law that was signed into law two years ago.
For six hours during each of the next three days, attorneys will argue and justices will consider legal questions about the constitutionality of the Affordable Care Act’s individual mandate and issues surrounding federal versus state powers.
Many of the law’s major aspects have been the topic of much discussion. But are you aware that deep within the sweeping law’s 2,700 pages are many lesser known changes that could affect your life in unexpected ways?
1. How many goodies your doctors get
Is your doctor prescribing you certain drugs because those are the best for your condition or because of a pharmaceutical company’s influence? Here’s one way you can find out.
The Physician Payment Sunshine Act under health care reform requires drug, device or medical supply companies to report annually certain payments or things of value that they’ve given physicians and teaching hospitals. This could be speaking fees, consulting fees, meals and travel. So, you can find out which and how much companies pay doctors or health care workers. The companies are obligated to report annually about physician ownership and their financial investments.
Continue Reading Here
So many questions, so few answers. But the answers are coming! Here are some of our favorite stories out right now:
Could President Obama’s sweeping health care reform law survive if the court strikes down the requirement that all Americans buy insurance?
The short answer is yes — but insurance companies certainly won’t be happy about it.
Both Justice Department lawyers and their challengers agree that the individual mandate is not “separable” from the rest of the law, which means the rest of the law can’t survive if the individual mandate is surgically removed by the court.
The lower courts have been split on the question, but one of them, the 11th Circuit Court of Appeals, ruled in August that only the mandate should be struck down, leaving the rest of the law’s provisions — including an expansion of Medicaid to cover all low-income people and federal subsidies for lower-income and middle-class people to buy insurance — in place.
That decision no doubt sent shivers down the spines of some insurance executives. Striking down the mandate could be a nightmare scenario for the health insurance industry, since the rest of the law compels them to accept sick customers and to not charge higher premiums based on a customer’s health, age or gender. Sick customers would flood the insurance market and drive up costs, while young, healthy uninsured people would take their chances and not buy coverage, in what insurers worry would be a “death spiral” of rising costs.
DONALD B. VERRILLI JR.
Verrilli is solicitor general of the United States, the government’s official representative in front of the Supreme Court. He was confirmed to his position last June as the replacement for Justice Elena Kagan after serving as associate deputy attorney general and an associate White House counsel in the Obama administration. A graduate Columbia Law School, where he served as editor-in-chief of the Columbia Law Review, he was a law clerk for Justice William J. Brennan, Jr. and a partner at Jenner & Block, where he co-chaired the firm’s Supreme Court practice. He has argued more than a dozen times before the Supreme Court, and worked as an adjunct professor at Georgetown University Law School from 1992 through 2008. In 1994, as special counsel to President Bill Clinton, he assisted in the confirmation process for Justice Stephen Breyer.
Official biography: http://www.justice.gov/osg/meet-osg.html
Clement is a former solicitor general, having served in that position for President George W. Bush. When confirmed, he was the youngest solicitor general in 115 years at age 38. Clement graduated magna cum laude from Harvard Law School one year behind Obama, and clerked for Justice Antonin Scalia. He has argued more than 55 cases at the Supreme Court, and served as the chief counsel of the U.S. Senate Subcommittee on the Constitution, Federalism and Property Rights. A partner at Bancroft PLLC, he is a Georgetown University law professor and a former partner at King & Spalding. He resigned from there after the firm decided not to continue its representation of the U.S. House of Representatives in its attempt to defend the Defense of Marriage Act. Clement was one of the lawyers who made the successful argument in front of the 11th U.S. Circuit Court of Appeals in Atlanta that would strike down the law’s core requirement that individuals carry health insurance or pay a penalty
Official biography: http://www.bancroftpllc.com/professionals/paul-d-clement/
MICHAEL A. CARVIN
Another former Justice Department official, Carvin’s most famous argument was delivered to the Florida Supreme Court on behalf of soon-to-be President George W. Bush in the Florida recount controversy during the 2000 presidential election. A graduate of George Washington University’s law school in 1982, Carvin has worked as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, which is responsible for legal opinions that are binding on the Executive Branch, deputy assistant attorney general and special assistant to the assistant attorney general in the department’s civil rights division. He will be representing the National Federation of Independent Businesses, which was a party to the lawsuit in the 11th U.S. Circuit Court of Appeals in Atlanta that struck down the law’s core requirement that individuals buy health insurance or pay a penalty.
Official biography: http://www.jonesday.com/macarvin
WASHINGTON — Health coverage for more than 30 million people. The power of Congress to regulate interstate commerce. President Obama’s re-election chances. The reputation of the Supreme Court and the legacy of its chief justice.
And to hear some tell it: liberty.
All that and more could be at stake today when the Supreme Court begins a historic three days of oral arguments on the 2010 health care law that has become a symbol of the nation’s deep political divide.
All that and more could be at stake today when the Supreme Court begins a historic three days of oral arguments on the 2010 health care law that has become a symbol of the nation’s deep political divide.
Not since the court confirmed George W. Bush’s election in December 2000 — before 9/11, Afghanistan and Iraq, Wall Street’s dive and Obama’s rise — has one case carried such sweeping implications for nearly every American.
The Office of Inspector General of the Department of Health and Human Services recently (October 11, 2011) shook its head at a proposal involving a pathology lab management services business that was to be owned by physicians. The proposed arrangement had the following features:
1. A path lab management business (“Manager”) would be formed and the business would be owned by doctors;
2. The Manager would provide a list of management services to a path lab;
3. The path lab (“Lab”) would not be owned by the doctors that own the Manager;
4. The Manager would provide a fixed amount of hours of services each year and would receive a percentage of the Lab’s income (fixed percentage in advance) and that fee would approximate the Lab’s use of the Manager’s services for the year;
5. The physician Manager investors would be in a position to refer to the Lab;
6. The ownership interests of the physician investors in the Manager would exceed forty percent (40%);
7. More than forty percent (40%) of the Lab’s revenues would come from the physician investors.
The OIG decided that the proposed arrangement posed more than a minimal risk of violating the Anti Kickback statute. The OIG also said the manager cannot refer its own patients or generate business in connection with the proposed arrangement. The OIG focused on the following points in its advisory opinion:
1. The Manager’s “usage fees” to the Lab are percentage based and not flat and set in advance;
2. The ownership interests of the doctor investors in the Manager would exceed what is specified in the so called “small entity” Safe Harbor;
3. The physician owners of the Manager have no experience in managing a lab, but are in a position to generate referrals to it.
Though the regulatory Safe Harbors (to the Anti Kickback Statute) are illustrative of permissible arrangements, the OIG is clearly sticking very close to them. where federal or state healthcare program dollars are involved, physician investors would do well to make sure they are Safe Harbor compliant.
Click Here to view our October 2011 Newsletter:
The recently passed House Bill 7095 affects more than just pain management specialists. Practitioners who prescribe controlled substances for individuals with “chronic nonmalignant pain” also are required to comply with new state regulations, including designation “as a controlled substance prescribing practitioner on the physician’s practitioner profile”“with the state Board of Medicine by January 1, 2012. What follows is a bulleted summary of the new regulations.
Prescription s for controlled substances must be either written or electronic. Telephone prescriptions no longer are allowed.
Written Prescriptions for Controlled Substances
- Must have quantity in textual and numerical format
- Must be dated with the abbreviated month written out
- Must be written on a standardized counterfeit-proof prescription pad produced by a DOH approved vendor
Physicians who prescribe any controlled substance for the treatment of “chronic nonmalignant pain” must designate him or herself as a controlled substance prescribing physician on the physician’s practitioner profile and must comply with statutory requirements and applicable board rules
- “Chronic nonmalignant pain “ is defined as pain unrelated to cancer or rheumatoid arthritis which persists beyond the usual course of disease or the injury that is the cause of the pain or more than 90 days after surgery .
A complete medical history and physical exam must be documented in the medical record
The exact nature of the examination is not dictated, but it must be proportionate to the diagnosis that justifies treatment and must minimally document:
- The pain’s nature and intensity
- Current and past treatment for pain
- Underlying or coexisting diseases or conditions
- The effect of the pain on physical and psychological functions
- A review of previous medical records and previous diagnostic studies
- History of alcohol and substance abuse
- Notably, patients with such a history require referral to, or consultation with, a phsyiatrist or addictionologist
- The presence of one or more recognized indications for the use of a controlled substance
Healthcare reform aside, physicians are increasingly buried under the weight of nonstop regulatory scrutiny and compliance requirements. Even the most compliant physician will find, however, that the government is no gentleman when it comes to efforts to ferret out wrongdoing.
Physicians are most commonly confronted with the regulatory process by a phone call from an investigator or perhaps a written request for information. Board of Medicine issues usually begin with the so called “45 day letter,” which invites a physician suspected of wrongdoing to submit a written response to an allegation of wrongdoing. EMTALA violations are reported to the Department of Health and the Office of Inspector General, both of which will initiate contact with the physician in writing.
Though physicians may think a simple explanation will convince an investigator or attorney to back off, that is seldom the case. Physicians wrongly think that the point of such investigations is to determine the truth. They must instead accept that, once investigators and prosecuting lawyers have contacted them, there is already a belief that wrong doing has occurred. Physicians would do well to understand that the job of the investigator and prosecutor involves just two things: (1) Seeing if the physician’s response is so convincing as to cause them to reevaluate their suspicion (it seldom is); and (2) to see if they think they have enough to justify a prosecution. The investigator and prosecutor have a job, to find wrongdoing and to punish it! They are not philosophers or social workers. They are not counselors to have a really nice conversation with. They are not to be trusted because their job is at odds with physicians who are the targets (or even witnesses) of their investigations. If physicians can remember one thing, it is that they need the support of lawyers and others who know their way over this unfriendly terrain.
Innocent physicians caught in the investigative/prosecutorial process may feel impatient and frustrated. “I’ve done nothing wrong, so surely if I just tell the truth everything will be ok.” It’s just not that way; and it’s just not that simple! Discussions with the government will take time and will require patience. What physicians have to keep in mind is that, though they are innocent until proven guilty, if they are targets of an investigation, the investigator and prosecutor already suspect them of wrongdoing. It’s a bit of an uphill climb!
Remarkably, even the best legal representation will not necessarily resolve matters quickly. By the time physicians are aware they are being investigated, in many instances months have been spent working that case, and prosecutors are simply not inclined to immediately walk away from all that hard work.
Surprising still is that prosecutors will try to get a settlement, even when your lawyer tells you there is no wrongdoing. Recall that the prosecutor has a job—find the bad guy and win the case. If the prosecutor can get you to settle, particularly by paying money, they will call it a “win” and move on to the next case. It is nauseating but true that sometimes it makes sense to settle, even when there is no wrongdoing, given the legal and related expenses. But when settling is not an option because it causes a cascade of unacceptable consequences (e.g. a Board of Medicine investigation, a medical malpractice suit, becoming sanctioned by Medicare and perhaps even losing medical staff membership and managed care contracts), physicians have no option but to fight.
Probably most surprising, physicians who vigorously defend themselves may find that they never “win.” That is, they are never told by a prosecuting lawyer that the government is giving up. Physicians who have been the targets of government investigations will find that the sound of victory is often silence. Government prosecutors simply get quiet! You just stop hearing from them.
The best physician defendant is one well armed with guidance to traverse an inherently adversarial environment.
Recovery Audit Contractors are here to stay and they are affecting the way medicine is practiced across the nation. If they have not already, they will influence your office and facility practice, and likely hit you in the pocket book.
Recovery Audit Contractors, or ‘RACs’, were designed through a federal demonstration project from 2005 until 2008. The purpose of RACS is twofold:
- Ensure Medicare providers deliver more nationally consistent, evidence based health care
- Reduce noncompliance with Medicare coverage, coding and billing rules.
The goal is to reduce Medicare spending, plain and simple.
RACs are structured by region and our southeast region RAC is Connolly Consulting Associates, Inc of Wilton CN. RACs work on a 9 to 12% contingent fee basis, but must return any fees if a RAC finding is overturned. Each RAC must post on its website the types of issues under review. This is a good place to start if you would like to know what Connolly is auditing. Each RAC must employ a full time medical director, nurses, therapists and certified coders.
RACS perform two types of reviews, automated and Complex. Automated reviews review claims data derived from the CMS database without a review of the records supporting the claim. Complex reviews are performed when there is a high likelihood of overpayment.
For the most part, RACs have focused on inpatient hospitals, but that is changing. Five categories of improper payments are generally being identified:
- Not Medically Necessary- The record does not support the need for the procedure or stay. Short stays are often deemed not medically necessary, as is duplicate billing for the same procedure. This category often is found when a provider either fails to submit documentation or fails to submit sufficient documentation to support a claim.
- Incorrectly Coded-A claim is submitted for a certain procedure, but the medical record indicates Performance of a different procedure
- Incorrect Payment Amounts
- Non covered, or duplicative services
- Other errors- For example, a provider uses an outdated fee schedule or is paid twice for the same claim.
Likely, physicians are affected because inpatient facilities are working hard to assure records substantiate the billed for admission or procedures. You may be called upon by your inpatient facility to improve and/or supplement your medical record keeping to avoid RAC recoveries. In addition, remember, the RAC only looks at the inpatient medical record. If justification for the hospitalization or procedure is in your office records, but not in the inpatient record, it does not count.
There is a lot more to say about RACs, but we will conclude this article with a look into the future. HHS Office of the Inspector General has recommended CMS focus RAC activity on nursing homes; highly utilized outpatient therapies; and maximized use of generics. With the amount of fraud in home care services and DME’s, you can bet they will go there, too. Medicare Part D RACS are just rolling out, and Medicare Quality Reviews are on the horizon. In addition, Medicaid RACs are coming next.
RACs are here to stay, so stay tuned for more on RACs.