OIG Comes Down Hard on Physician Owned Distributorship (POD) Arrangements

OIG crestOn October 24, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) released its long-awaited report on the prevalence of physician-owned distributorships (PODs) and the increased costs incurred by Medicare following the rise of these entities. The U.S. Senate and OIG’s investigation of PODs began in earnest in 2011 with the release of the Senate Finance Committee’s POD overview and inquiry.1 This was followed by a Special Fraud Alert issued by OIG, which characterized PODs as “inherently suspect under the anti-kickback statute.”2

Cutting Patients a Break: Your Financial Hardship Policy

financial hardshipBy David Hirshfeld

with Jean Acevedo, Guest Contributor

As premiums and deductibles rise and coverage shrinks, more and more patients have difficulty paying for their health care.  You can provide financial relief to your patients if you wish, but you should only do so in accordance with a uniform hardship policy.

As a general rule, the practice should not routinely waive co-pays or deductibles, or offer discounts based on a patient’s statement that the patient is suffering from financial hardship.  If the practice does routinely offer discounts or waivers of deductibles without properly investigating a patient’s financial wherewithal, the practice runs the risk of violating its payor contracts, being accused of committing insurance fraud, and/or paying an illegal kickback to induce patients to come to the practice.  Some payor contracts require the practice to bill the payor the lowest rate that the practice bills any of its patients, a so-called “most favored nation provision.”  Typical Medicare participation agreements are subject to this type of provision.  If the practice waives deductibles or co-pays, then insurers often take the position that the amount being billed by the practice to the insurer ought to be reduced by the amount waived.  In addition, a regulator could conceivably accuse the practice of waiving co-pays and deductibles as a means of inducing patients to seek treatment from the practice in violation of anti-kickback laws. Continue reading

Florida Medical Spas: Regulators Look Beyond the Surface

money syringeThere is no such thing as a “medical spa” in Florida.  True!  They are not uniquely licensed.  In fact, they are usually not licensed at all because (1) they are owned and operated by licensed healthcare professionals, and/or (2) they do not file claims for reimbursement with health insurers.  And they are not a regulated entity.

What then is a “medical spa”?  If you want the long answer, go here. The short answer is It’s simply a place where people receive traditional spa services (e.g. facials), plus many other medical procedures, typically focused on cosmetic services (e.g. hair removal, Botox).   It’s “medical” because of the nature of the services provided.  It’s “medical” because (ideally) physician supervision is woven into the business model.

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Kill H.R. 2914

Background

H.R. 2914 is a bill filed by Congresswoman Speier that is intended (among other things) to prohibit medical practices providing the following sorts of medical services (“Non-ancillary Services”) to their own patients—

*The technical or professional component of (i) surgical pathology, (ii) cytopathology, (iii) hematology, (iv) blood banking, or (v) pathology consultation and clinical lab interpretation services

*Radiation therapy services and supplies

*Advanced diagnostic imaging studies (which include for instance MR and CT)

*Physical therapy services

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Time to ReThink RePackaging Drugs

By: David Hirshfeld

Winston Churchill once commented that “Anyone can rat, but it takes a certain amount of ingenuity to re-rat.”  Well, this sentiment evidently applies to the re-packaging and re-labeling of prescription drugs here in Florida; and the legislature seems to have caught up with the ingenuity.

For years, workers’ compensation insurers have been complaining about the perceived increased cost of repackaged and relabeled drugs.  With CS/SB 662 Florida’s legislature seems to have answered the payors’ cries, and closed a loop-hole in workers’ compensation reimbursement with respect to repackaged and relabeled drugs. Continue reading

The Effect of being excluded from Participation in Federal Healthcare Programs

blacklist

The Government recently clarified six areas related the effect of exclusion from participation in Federal Healthcare Programs.

  1. Switching professions during a period of exclusion does not change the exclusion and payment prohibitions.
  2. You can accept a referral from an excluded provider as long as the excluded provider does not provide any services to the referred patient.
  3. Being excluded along with the payment prohibitions extends beyond just direct patient care.
  4. If you are excluded you cannot provide either administrative or management services to non excluded provider.
  5. Excluded providers cannot even provide volunteer services, and
  6. Excluded providers can work for non excluded providers as long as the services they provide are furnished to non-federal healthcare program patients.

Providers need to screen every professional, employee and contractor they do business with to insure they are not on the Exclusion list. It is always best to check the list of Excluded Individuals/Entities (LEIE) for anybody you work with.

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

The Stark Law Regulations: A Review

The Stark Regs (1) forbid doctors and their immediate family members from referring their patients to businesses they own which provide “designated health services,” and (2) contains a long list of permitted financial relationships between health care providers.  The list of what constitutes a “designated health service” (DHS) includes PT, rehab, diagnostic imaging, clinical lab, DME, and home health.  A “physician” means an M.D., D.O., chiropractor, podiatrist, optometrist or dentist.  An “immediate family member” is a husband or wife; birth or adoptive parent, child, or sibling; stepparent, stepchild, stepbrother, or stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; grandparent or grandchild; and spouse of a grandparent or grandchild.  In short, if you or your family member owns a DHS, don’t refer to it.  Unless of course your situation falls within one or more of the gazillion exceptions.

A few key changes from the third set of revisions (so called Stark III) which affect physicians are helpful to keep in mind.  For instance, the way fair market value of physician compensation is determined  in the Stark II regs has been simplified and now depends on an amorphous consideration of the transaction, its location and other factors.  The clear formulas contained in Stark II was dropped and this makes the need for an expert FMV study even more compelling. Continue reading

Physicians & Facilities Frustrated in Upcharging Lab Fees

Licensed healthcare providers and facilities (including many drug and alcohol recovery businesses) who enter into arrangements with clinical labs to provide services to their patients and who then wish to charge more for those lab services will be very disappointed to learn about the restrictions under Florida law.

Section 456.054, Florida Statutes prohibits “kickbacks” and reads—

(1) As used in this section, the term “kickback” means a remuneration or payment, by or on behalf of a provider of health care services or items, to any person as an incentive or inducement to refer patients for past or future services or items, when the payment is not tax deductible as an ordinary and necessary expense.

(2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.

(3) Violations of this section shall be considered patient brokering and shall be punishable as provided in s. 817.505.

The issue involved in a provider or facility charging more for lab services than they were charged by the lab itself is that the prohibition above applies to healthcare providers and “any provider of healthcare services.”  Regulators may find any reduced fee by the lab to constitute a kickback in exchange for a volume of patient referrals.

A related issue has to do with Florida insurance laws that pertain to charging more for an item or service than the provider or facility was charged.  For instance, if Lab 1 charges the provider/facility $10 for lab work, and the provider/facility charges an insurer $20, that can be found to constitute insurance fraud.

The key Florida prohibition, however, is found in the Florida Administrative Code, which reads—

59A-7.037 Rebates Prohibited – Penalties.

(1) No owner, director, administrator, physician, surgeon, consultant, employee, organization, agency, representative, or person either directly or indirectly, shall pay or receive any commission, bonus, kickback, rebate or gratuity or engage in any split fee arrangement in any form whatsoever for the referral of a patient. Any violation of Rule 59A-7.037, F.A.C., by a clinical laboratory or administrator, physician, surgeon, consultant, employee, organization, agency, representative, or person acting on behalf of the clinical laboratory will result in action by the agency under Section 483.221, F.S., up to and including revocation of the license of the clinical laboratory. In the case of any party or individual not licensed by the agency acting in violation of this Rule, a fine not exceeding $1,000 shall be levied and, as applicable, the agency shall recommend that disciplinary action be taken by the entity responsible for licensure of such party or individual.

(2) No licensed practitioner of the healing arts or licensed facility is permitted to add to the price charged by any laboratory except for a service or handling charge representing a cost actually incurred as an item of expense. However, the licensed practitioner or licensed facility is entitled to fair compensation for all professional services rendered. The amount of the service or handling charge, if any, shall be set forth clearly in the bill to the patient.

(3) Each licensed laboratory shall develop a fee schedule for laboratory services which shall be available to the patient, the authorized person requesting the test or agency upon request and shall be subject to subsection 59A-7.037(2), F.A.C.

In this era where healthcare providers and facilities are struggling to hold onto dwindling profit margins, it is understandable why some are considering arrangements with clinical labs.  Still, Florida providers and facilities have to be extremely cautious when entering into such arrangements.

 

Recovery Business Marketing Not Immune from Anti Kickback Exposure

Many business people involved in some aspect of the recovery business world (e.g. IOPs, PHPs, Detox) are not aware of the punishing laws that apply to their marketing arrangements.  Simply paying someone a commission based sales compensation without fully appreciate the applicable laws is dangerous and costly.

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