CMS Clarifies Place of Service (POS) Coding Requirements

Billing Medicare for services requires the correct POS code on the claim form. Improper use of the POS code has been a problem, especially when services are provided in out-patient hospitals and surgery centers. The OIG has found many circumstances where such services were provided in those facilities were billed as though services were provided in the physician office. The POS code is intended to identify where the physician is physically present and has a face to face encounter with a Medicare patient when covered services are provided.

CMS has issues revised and clarified POS coding instructions. They give multiple examples, including one where a Medicare patient receives MRI services at a hospital. The hospital bills the technical component . The physician is to submit a claim showing the professional component POS as his/her office (code 22), since that is where the physician performed the covered service, not the MRI center at the hospital. The Instructions describe the proper use of POS modifiers and are invaluable in avoiding liability to Medicare.


Senate OKs Two-Month Freeze on Doc Pay

Wrapping up legislative business before the Christmas recess, the Senate on Saturday approved legislation that freezes Medicare payments to physicians until Feb. 29.

In a vote of 89-10, the Senate passed an amended version of the House payroll tax bill that the lower chamber approved earlier this week. The legislation from Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) (PDF)—which extends a payroll tax holiday for two months—provides no payment update in Medicare reimbursement levels for the nation’s doctors in January and February 2012, which prevents a 27.4% cut that was scheduled to tax effect on Jan. 1.

Meanwhile, the bill also extends for two months a host of Medicare and health-related provisions that would otherwise have expired by year’s end. These measures include reimbursement raises for ambulance services, mental health reimbursements, the Qualifying Individual (QI) program, the outpatient “hold harmless” provision, and transitional medical assistance, which provides Medicaid benefits for low-income families who are transitioning from welfare to work.

In a statement, American Medical Association President Dr. Peter Carmel said waiting until the final week of the legislative session to address an issue Congress knew about all year is no way to conduct business for the country.

Read more: Senate OKs two-month freeze on doc pay – Healthcare business news and research | Modern Healthcare http://www.modernhealthcare.com/article/20111217/NEWS/312179947#ixzz1gzkQmEcy
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Physician Owned Distributorships (PODS) Make Waves

Physician owned distributorships (PODs) have been the source of considerable controversy for years, but now they’ve caught the attention of Congress!

PODs distribute various things, most commonly surgical implants and devices, that are reimbursed by insurers. A patient needs a spinal rod, a surgical implant/device company makes it and a distributor rep distributed it. Device/implant companies usually contract with distributorships to sell their products. Distributorships contract with reps who are paid commissions for sales. Surgeons who actually order the devices sometimes think “Since I’m the one doing the surgery and ordering all this stuff, why don’t I make something from the selling it?” PODs are one way for physicians to financially benefit from the sales of devices and items their patients need, but they have never been more controversial than now.

Conceptually speaking, PODs are controversial because government regulators think physicians who have an economic stake in health care items or services will tend to over utilize them. Moreover, there is a specific concern that allowing physicians to profit from the devices their patients need violates federal anti kickback laws or the Stark prohibition on compensation arrangements.

In 2006, the Office of the Inspector General of HHS and CMS expressed major concerns about PODs, and cited concerns about “improper inducements.” At that time, the OIG stopped short of prohibiting them, but called for heightened scrutiny. CMS itself has stated that PODs “serve little purpose other than providing physicians the opportunity to earn economic benefits in exchange for nothing more than ordering medical devices or other products that the physician-investors use on their own patients.”

Implantable medical devices are unusual in the way they come into use. Unlike DMEPOS, for instance, medical devices are not sold to distributors. They’re sold from the manufacture to the medical facility where the surgery will take place. So, the argument goes, physicians are not actually in a position to drive the sales volume of the implants. The counter: physicians invested in a POD can leverage their hospital admissions to influence the device choice of hospitals and surgery centers.

The biggest legal hurdle for PODs is the federal Anti Kickback Statute, which carries both criminal and civil penalties. Simply put, if even one purpose of an arrangement is to pay for patient referrals, the law is violated. So, the law is arguably violated if one purpose of the POD is to induce physicians to order implants for their patients. Looked at another way, the law is violated if one purpose of a hospital doing business with a POD is to ensure patient referrals by the physician POD investors.

A 1989 OIG Special Fraud Alert on fraudulent physician joint ventures is especially interesting on the fraud and abuse issues in pointing out that the following would indicate unlawful intent to induce patient referrals—

Investor choice. If the only investors chosen are surgeons with an opportunity to refer and if they lack any business or management expertise, the arrangement appears to be a cloaked way to incentivize unlawful referrals (i.e. ordering implants). The key question is whether the business, in selecting investors, is looking to raise capital or to lock in referral sources.

Risk. If the POD investment involves little or no financial risk, the OIG would likely take issue with it.

The bottom line seems to be that if there isn’t a real business, with real financial risk and qualified investors, a POD will likely be viewed as a suspicious arrangement based on locking in patient referrals or physician admitting pressure by physician investors.

In its June, 2011 Inquiry “Physician Owned Distributors (PODs): Overview of Key Issues and Potential Areas for Congressional Oversight,” the U.S. Senate Finance Committee Minority Staff, the Committee reports “A number of legal and ethical concerns have been identified as a result of this initial inquiry into the POD Models.” The Committee reviewed over 1,000 pages of documents and spoke with over 50 people in preparing its report. The Committee cited long-held concerns regarding PODs, and leaned heavily on the 2006 Hogan Lovells (previously Hogan & Hartson) law firm’s anti-POD analysis.

With the Committee’s call for greater OIG and CMS involvement, one thing seems clear: the future of PODs is uncertain. In this era of cost-cutting, it seems clear that PODs are gonna get a haircut and may even lose their head.


#FHLF October 2011 Newsletter

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The Money Is In The Management

Conversation regarding ACOs and even healthcare reform itself is misplaced.  The well established facts are (1) more people will receive health care, and (2) the cost of healthcare will come down.  It does not matter whether the stimulus is a new law or just marketplace reaction.  The fact is that a healthcare system whose players are incentivized to do more with more expensive stuff is not economically sustainable or socially tolerable.

Take a look at our evolving marketplace.  What’s the single most distinctive feature in healthcare, aside from inactivity?  Integration.  Larger hospital systems and larger medical practices, typically single specialty.  Good adaptation?  Maybe.  It is in the short run.  Single specialty aggregation is purely defensive though.  It allows groups to maintain market share and to resist price compression better.  But how will that allow providers to do more with less?  How will that stimulate more outcome based, financial risk based care?  It doesn’t.  It is well established that cost and quality management demands broad spectrum system awareness….ummmm primary care physicians.  The adaptation of single specialty group integration is short term.  How short?  Who knows?  But it is clearly not as sustainable as one whose preparation for change includes primary care capabilities.

And how do hospital-based physician alliances help physicians survive and thrive?  They don’t unless they have a strong primary care base, and even then it is very questionable whether hospitals will be able to utilize their PCPs and specialists in a way that rewards outcomes based, financially smart behavior.  Hospitals have always been sink holes in the landscape of healthcare costs, so why jump in?  Physicians need to make sure that their affiliated hospital systems have clear plans and abilities (e.g. management and good physician billing and collection experience) to deliver outcomes at the right price.  Studies, however, that indicate over sixty percent of Florida hospital admissions are unnecessary are consoling in a fee for service environment, but devastating in a capitated (or other risk based) one.  Physicians have to make sure the ship they book passage on can sail a long way.

And they have to make sure they are part of the right team.  What expertise is there in things like IT, financial management, clinical outcomes management, and risk based contracting?  You’re gonna need that!

If one believes that healthcare costs are unsustainable (this guy does) and that our entire payment system is driving that result, then the need for new payment systems is clear.  And the challenge, just in terms of thinking about healthcare differently, is enormous!  How do you go to work and not think “I gotta do a lot, test a lot, do lots of procedures.”  How do you begin to shift?  Do you shift?

The compelling answer is “YES.”  Why not act now, before any law (even one dumber than the one that passed a year ago) gets passed, before our society calls the issue a failure and politicians and our neighbors demand a single payer-type system?  Isn’t there a huge opportunity RIGHT NOW?  You betcha.

So where is it?  It’s in management.  The money is in the management.  The data collectors, crunchers and implementers are the new gods in healthcare.  Anyone who can collect data, show what makes clinical and financial sense and then implement it will be more sought after than conflict diamonds.  Show one hospital how to live in that new system, where there are more patients, but less money available, and you retire rich.  Show physicians and other healthcare business people the same thing and lead change.  And since physicians are busy being physicians, except for a handful of physician entrepreneurs, they’re best bet is gonna be to find good partners in “business” who embrace change and see opportunity.


Elephants in the Room

ACOs and other new acronyms have swamped the minds of physicians and healthcarebusiness people alike since the terms were coined. The still new healthcare reform law continues to worry many and challenge others to figure out ways to play the game and win. While we scurry around chasing the regs and the new words and government agencies, while politics keeps moving the ball and shaping the healthcare agenda, the most central issues in healthcare cost/quality debate are not even discussed. It’s as though policy makers and business is saying “Hey, if we keep throwing new regulations at them, maybe they’ll stop asking really tough questions we can’t answer.”

Back in the 80s, the state of Oregon enacted Medicaid reform that took the breath right out of the rest of the country. Remember? The idea that a state would not list ALL medical services to ALL Medicaid patients was considered to be cruel and impolitic at the time. And the national debate about (1) whether healthcare is a right of American citizens, and if so (2) what healthcare services are “in” and which are “out” has grown virtually silent.

Instead, it seems we have entered the area of political intransigence. It appears that getting and staying in political office requires as little change as possible. So, very little seems to be accomplished or even discussed.

So what are the “elephants in the room?” They are the issues of “how much” and “patient accountability.” Though it appears that the issue of whether we Americans are entitled to receive healthcare has been skirted, we are clearly missing any discussion on the issue of how much services. Oregon hit the issue head on, but nationally there appears to be no movement or even discussion of the issue. We don’t know who should get what. We just know we want to reduce the costs (ration).

Virtually every effort to reduce costs so far has involved the use of managed care organizations. The Florida Medicaid program pilot project that began in Broward County in 2006 has produced two clear results—reduced expenditures and huge criticism that managed care has reduced costs solely by reducing access and care itself. Managed care has become the “black hat” that politics won’t pick up. It’s ok for managed care to restrict access and care because it reduces costs, but it is politically impossible to directly address the issue of “how much.” We rely on managed care to do it for us, due to our political inability to tackle the issue, then blame the payers for their (wink wink) bad behavior. If managed care is profiting, it is only because they don’t mind profiting from our unwillingness to take responsibility for the issues they deal with on a daily basis—saying “no.”

The second elephant is the issue of patient accountability. There is none! What is the consequence of patient bad behavior? What consequence is there for refusal to exercise, quit smoking, etc.? None. We pay more. There isn’t a single provision in any federal law that punishes us for making expensive healthcare decisions or that rewards us for making cost saving healthcare decisions.

I liken it to having teenagers. Expectations with no consequences yields a predictable result of no change in behavior. Simple.

These are huge issues to tackle. So many different kinds of people, agendas and ways of seeing the issues. So, we don’t even try. Instead, we “hire” managed care to bear the burden of our failure to address and answer these issues. And we throw complex ideas like metrics and healthcare reform into the market, which only serves to distract us from addressing the root causes of our healthcare challenges.


Innovative Surgery Center Arrangements

While surgery centers generally follow the guidelines set forth in the federal Safe Harbor to the Anti Kickback Statute (AKS), not all do. In fact, there are some creative arrangements worth considering.

Some centers do not perform services which are compensated in any way by a state or federal healthcare program. As such, they don’t have to comply with the usual federal laws (e.g. AKS and Stark). That leaves the center to comply only with state regulation, which is usually far less restrictive than the federal laws. This works if the center intends, for instance, only to do work pursuant to Letters of Protection (LOP) or bodily injury suits. Though the pool of patients is very different in this type of center, the lid is nearly off when it comes to how creative the arrangements among the owners and referring physicians can be.

One of the more vexing challenges among all surgery centers is ensuring patient referrals by owner surgeons. While most centers will simply follow the federal Safe Harbor “one third test,” other centers go further and do things like: (1) making loans to owner surgeons, (2) creating “put” or “pull” periods during which time an investing physician can buy back out or be bought back out, and (3) even making exceptions to the restrictive covenants commonly contained in ASC documents.

Complying with the federal Safe Harbor applicable to surgery centers is clearly the most conservative way to go, in terms of regulatory compliance, since compliance means immunity from AKS violations. That said, Safe Harbor compliance is a little like horseshoes: coming close counts. The simple reason is that Safe Harbors are examples of conduct that complies with the AKS, but they are not all encompassing. There may be arrangements that do not violate the AKS which are simply not described in the Safe Harbors. Simply put, there are many other creative arrangements commonly employed in surgery centers. Since surgery center ownership and referral arrangements are hotly regulated, owners must be careful when considering veering off the straight course provided by federal law.