Regulation Postponed: March 1, 2013 Health Insurance Exchange Notice Delivery Requirement

The Affordable Care Act (ACA) requires employers to provide all new hires and current employees with a written notice about ACA’s health insurance exchanges (Exchanges), effective March 1, 2013.
On Jan. 24, 2013, the Department of Labor (DOL) announced that employers will not be held to the March 1, 2013, deadline. They will not have to comply until final regulations are issued and a final effective date is specified.

The DOL anticipates issuing the regulations in late summer or fall of 2013. The DOL, it its announcement, cites two reasons for the delay.First, the Exchange Notice (Notice) should be coordinated with the educational efforts undertaken by the Department of Health and Human Services (HHS) and with the Internal Revenue Service (IRS) guidance on “minimum value” requirements. Delaying the Notice will achieve that goal. The DOL also cites its intent to provide employers with sufficient time to deliver the Notice at a time that will be meaningful to the employees receiving it. When ready, the DOL will produce a generic Notice which will meet the law’s requirements.

Florida Board of Medicine Says: Take a Pause

Via Florida Board of Medicine – – – The Florida Board of Medicine’s Surgical Care/Quality Assurance Committee has been reviewing Rule 64B8-9.007, Florida Administrative Code – Standards of Practice in an effort to reduce the number of wrong patient, wrong site and/or wrong procedure disciplinary cases. This rule outlines requirements for taking a pause prior to beginning surgery to ensure you have the right patient, the right site and are performing the right surgery as described in the Informed Consent signed by the patient. The Board continues to see disciplinary cases in which the required “pause” is performed but surgery is still performed on the wrong patient, wrong site or the wrong procedure is performed. The Committee met three times and heard public testimony. During that testimony, it was determined the definition of surgery also needed to be clarified. Changes to the rule include:

  • Physicians are required to confirm the patient’s identity, confirm the procedure being performed and confirm the correct surgical site with another healthcare practitioner
  • “Pause” must be performed again if the physician leaves the room at any time during the procedure or surgery
  • Clarification of the definition of surgery

These changes are effective January 29, 2013 and are underlined in the rule language below:

64B8-9.007 Standards of Practice.

The Board of Medicine interprets the standard of care requirement of Section 458.331(1)(t), F.S., and the delegation of duties restrictions of Section 458.331(1)(w), F.S., with regard to surgery as follows:

(1) The ultimate responsibility for diagnosing and treating medical and surgical problems is that of the licensed doctor of medicine or osteopathy who is to perform the procedure. In addition, it is the responsibility of the treating physician or an equivalently trained doctor of medicine or osteopathy or a physician practicing within a Board approved postgraduate training program to explain the procedure to and obtain the informed consent of the patient. It is not necessary, however, that the treating physician obtain or witness the signature of the patient on the written form evidencing informed consent.

(2) This rule is intended to prevent wrong site, wrong side, wrong patient and wrong surgeries/procedures by requiring the team to pause prior to the initiation of the surgery/procedure to confirm the side, site, patient identity, and surgery/procedure.

READ ON

 

Closely Monitoring the 26.5% Medicare Physician Payment Threat

Via HCMA, SGR Advocacy Alert from the AMA – – – –  The negotiations between Speaker Boehner and President Obama on the Lame Duck tax and deficit reduction package are at an impasse. There is a very real threat of the 26.5 percent Medicare physician payment cut taking effect on January 1, 2013, at least temporarily.

If Congress does adjourn without addressing the payment cut being induced by the sustainable growth rate (SGR) formula, the Administration announced today that the Centers for Medicare and Medicaid Services will follow normal claims processing procedures.

That is, claims will not be held and Medicare carriers will process payments for physician services provided after December 31 under the normal 14-day cycle required by law.  Payment for these claims would be based on the new, lower fee schedule conversion factor of $25.0008, as opposed to the current rate of $34.0376.

At this time, it is impossible to predict whether the 112th Congress will find a way to pass a stop-gap measure before adjourning, how long such a measure would last, or how long payment cuts will be in effect before legislation can be passed after the 113th Congress convenes in January.  It is highly unusual for a new Congress to enact significant legislation in the first month of its session, but the circumstances facing our nation today are far from typical.

It is inexcusable that Congress is once again putting the 47 million Medicare patients and the practices of physicians who provide them needed health care at significant risk.  The Medicare program has become unreliable and its instability undermines efforts by physicians to implement new health care delivery models that stand to improve value for seniors and other beneficiaries through better care coordination, chronic disease management, and keeping patients healthy.

The AMA believes that the financial disruption this situation will cause for physicians and their practices is unacceptable, and we will continue to fervently convey this message in the strongest possible terms to Congress and the Administration, as we have for the past several weeks.  Our patient and physician grassroots networks have been activated, and we are seeking your voices to tell Congress just how deeply its inaction will affect you.

Despite these efforts, at this time we feel compelled to advise physicians to start making plans for steps they can take to mitigate this disruption and meet their own financial obligations in January, in case the 26.5 percent cut actually takes effect.  Given the potential impact on practice revenue in early January, physicians should be certain adequate arrangements are in place to sustain their practices.  For those physicians who are forced into the untenable position of limiting their involvement with the Medicare program because it threatens the viability of their practices, we urge that patients be notified promptly so that they, too, can explore other options to seek health care and medical treatment.

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.

 

2012 Florida Legislature Impacts Healthcare

When Florida’s legislators meet each year, change is sure to follow.  Some of the changes this year include:

Therapeutic Spa Services are now defined under the nursing home law (Chapter 400) as “bathing, nail and hair care services and other similar services related to personal hygiene.”  The new law will likely trigger the development of regulations that will affect how such services can be provided to residents of nursing homes and related facilities.

The Florida Health Care Clinic Law (400.990) has been changed to allow exempt “big businesses” from the licensure requirements.  Those include—entities that have $250 Million or more in annual sales (if one of the owners is a Florida licensed healthcare professional who is responsible for compliance) and those which employ 50 or more Florida licensed M.D.s or D.O.s who provide services under single tax ID number.  These changes may help physician integration moves but also benefit large corporate healthcare providers.

The state anti kickback law (483.245) was expanded to clarify that it is illegal for a clinical lab to provide (in any way at all) personnel to perform “any functions or duties” in a doctor’s office unless the lab and the doctor’s office are owned by the same legal entity.  Clinical labs may not, for instance, lease space in doctor’s offices to collect specimens.

 

Perhaps the most hotly regulated aspect of healthcare lately has been in the area of controlled substance prescription and dispensing.  A new law expands the exemption from the controlled substance prescribing standards to certain board eligible doctors (not just board certified ones), to rheumatologists and to doctors who prescribe medically necessary controlled substances to a patient during an inpatient hospital stay.   As such, the exemption from the controlled substance prescribing standards—board eligible or certified anesthesiologists, physiatrists, rheumatologists, neurologists or medical specialist who have completed a fellowship in pain medicine; board certified doctors with privileges as a hospital or ASC; doctors who prescribe medical necessary controlled substances to patients during inpatient stays at hospitals.

 

The Florida Healthcare Law Firm Goes National

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 !!!

Supreme Court upholds Obama health care law

Via @USAToday

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.

Full Story Here: http://content.usatoday.com/communities/theoval/post/2012/06/Supreme-Court-rules-on-Obama-health-care-plan-718037/1#.T-xqPhd5F9E

The Florida Healthcare Law Firm Announces National Expansion

(Delray Beach, FL) June 21st, 2012 – The Florida Healthcare Law Firm, one of Florida’s leading healthcare law firms, today announced a major increase in their legal practice capabilities with the official launch of the National Healthcare Law Firm, a d/b/a and new portal of the firm. The expansion to a national platform providing healthcare legal services to physicians and healthcare businesses is one that significantly increases resources for clients who lack qualified local healthcare counsel. While the Florida Healthcare Law Firm has for years assisted clients outside the state of Florida*, this new development further cements the firm’s commitment to providing ethical legal counsel in the healthcare industry.

“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.”

To request a service list or for any other firm information, call Autumn Piccolo at 888-455-7702 or visit the firm’s website at www.nationalhealthcarelawfirm.com or www.floridahealthcarelawfirm.com

*     *     *

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.

How Many Lobbyists Does It Take to Write A Statute ?

By: David W. Hirshfeld, Esq.

When the text of the new PIP law became public, our jaws went slack.  The new law imposed incongruous effective dates that would seemingly put many providers out of the PIP business for six months.  How could the insurance industry’s best and brightest have screwed this up?

The new law requires providers to be licensed as “clinics” in order to receive PIP payments, unless an exclusion to that licensing requirement applies.  The incongruity arises because the provision requiring licensure seems to become effective July 1, 2012; but the provision creating the exclusions from that licensure requirement do not seem to become effective until January 1, 2013.  Many providers are rightly concerned that they must either: become licensed as a clinic in order to receive PIP payments, or stop treating PIP patients from July 1, 2012 through January 1, 2013 when an appropriate exclusion will exist.

Thank goodness for Stuart Williams, AHCA’s General Counsel.  In his May 8, 2012 memorandum, Mr. Williams artfully reasons that the statute could and should be interpreted so that both the licensure requirement and its applicable exclusions become effective January 1, 2013.  Now most providers can continue to treat PIP patients without interruption.  Whew!!!

We hope and expect that Florida’s Office of Insurance Regulation will adopt Mr. Williams’ reasoning and educate the PIP insurers.

OIG SLAMS COMPANY MODEL ANESTHESIA ARRANGEMENTS WITH SURGERY AND ENDO CENTERS

A long awaited opinion from the OIG on relationships between surgery, endoscopy (and other) centers (“Centers”) will doom many arrangements with anesthesiologists.  At the very least, they will have to significantly restructure.

Such “Company Model” arrangements basically involve a way for surgeon investors in Centers to share in the anesthesia services revenue.  These arrangements have always been suspect, but the OIG has been clear that they run afoul of applicable federal law.  In the June 1st OIG Opinion (12-06), two models were proposed, and both were essentially shot down.  The first involved requiring the anesthesiologists who provide services at the Center to engage a management company owned by surgeon owners of the Center to provide management services on a per patient fee basis.  The second, which is far more commonplace, involved establishing a company owned by the surgeons who also own the Center.  The new company would provide the anesthesia services and contract with the anesthesiologists in a way the leaves some of the anesthesia services income to be distributed to the surgeon in the Center, who also happen to generate all the cases for the Center, and hence all of the anesthesia revenue.

Such arrangements are not only “inherently suspect,” as described by the OIG, they have never made much common sense.  How is it not a kickback for the anesthesiologists to make 100% of the anesthesia related profit on Monday, but then have to “share” it with the surgeon owners on Tuesday, once a new management company or separate anesthesia services company (owned by the surgeons) is formed?

At the very least, surgeons looking for a share of anesthesia revenue will have to dig deep into the opinion and into prior opinions to see if there is any legitimate basis available.