The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) released it’s 2014 Fiscal Year Work Plan. If you’ve got the stomach for the long version, click here. Around each fiscal year, the Department of Health and Human Services, Office of Inspector General publishes its annual Work Plan, which provides terrific insight into unique provider behavior and practices the OIG plans to target in 2014. Medicare providers should pay particular attention to the following targeted areas:
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
By: David Hirshfeld
When people ask me what I do, I used to say “I’m a transactional health care attorney. I represent health care practitioners in their business deals. I don’t do malpractice.” That response does little to wipe the blank stare off my questioner’s face, and even I have to stifle the urge to yawn. My new and improved response is that “I spend a lot of time advising health care practitioners how they can share fees with people who refer them patients.” Now I get invited to all sorts of cocktail parties !!!
Practitioners split fees with one another for a variety of reasons; and they very often do not realize that a particular arrangement involves a split-fee arrangement, or that split-fee arrangements are often illegal in Florida. The purpose of this article is to provide practitioners with a general overview of the concepts underlying the prohibition against split-fee arrangements in Florida, in the context of three common business arrangements. Continue reading
You’ve hired a new doctor to join your practice, but it will take several months to get the new doctor on your insurance plans and to add him or her to your group practice. What do you do? Can you bill for the new doctor’s services under your own provider name or number? Can you hold the billing and submit it at a later date?
Billing for the new doctor’s services under the name or provider number of a physician who did not actually perform the service is fraud. It’s as simple as that. And it’s a serious offense, punishable as a criminal offence, regardless of the payer involved. In other words, it’s not true to say “Well, it’s ok to do with HMOs, but not Medicare.” It’s fraud for every payer. And, with federal payers, it’s a federal crime! So what do you do?
Physicians are very limited with respect to Medicare and Medicaid patients. The new doctor must be added to the practice’s provider number, especially if the practice provides “designated health services” such as PT, rehab, clinical lab and diagnostic imaging. Most practices time the hiring of the new doctor with adding him or her to the provider number and also ensuring that the new doctor is contracted with various payers, all of which can take several months.
There may be a little more flexibility with respect to PPOs and HMOs, though this is tricky. These payers are usually adamant about credentialing the new doctor and about having him or her sign a participating provider agreement before providing services to their insureds. In some very limited circumstances, a payer may expedite the process and may even suggest a billing arrangement that would otherwise constitute insurance fraud, but physicians still need to be careful with these arrangement. When a payer suggests such an arrangement, it is absolutely essential that the proposal and agreement be in writing and review to ensure regulatory compliance. Otherwise, the practice and the doctors involved may be subject to fraud based claims—e.g. violations of the state insurance laws and even the federal False Claims Act.
The drug and alcohol rehab business is especially abundant in South Florida, yet few entrepreneurs are aware of the many laws that apply. The recovery business is a highly regulated one, with great intricacy in terms of the options and also the applicable laws.
Substance abuse services in Florida are broadly regulated by Chapter 397, Florida Statutes. The applicable regulations, however, drill down with remarkable granularity. For instance—
The broadly crafted Client Rights listed in Section 397.501, like the ones applied to nursing home residents, are very open ended (requiring things like the “Right to Individual Dignity”) and yet create the basis of a lawsuit! That said, people acting “in good faith, and without negligence” can rest assured they will not be found liable.
Though some may intuitively understand the specificity and seriousness of the regulations dealing with medical detox, residential treatment and Partial Hospitalization Programs (PHPs), including the staffing, service and supervision requirements, it may not be as readily apparent with the lower intensity of service options, like Intensive Outpatient Programs (IOPs).
Even PHP requirements can, however, be confusing. For instance, it is well known that PHPs are not for people who require 24/7 residential treatment. They stand somewhere between residential inpatient and intensive outpatient programs. What is less known is that the staffing requirements are particularly detailed. For instance, each PHP has to have a paid, awake employee on premises at all times when even one client is on the premises and also must have a paid employee on call when clients are at the community housing location.
Intensive inpatient programs are required to provide detailed services, to include 14 hours of counseling each week and 20 hours of “other structured activities.” Like IOPs, staff coverage is very specific. Nursing coverage must be available 24/7. More specifically, an RN must supervise all nursing staff and an RN or LPN has to be physically present on site. Finally, a physician has to be on call 24/7.
Outpatient programs have similarly detailed requirements, including the minimum counseling requirements and staffing client ratios. Intensive Outpatient Programs (IOPs) of course have far greater service requirements (at least nine hours of services each week) and yet share the same staffing ratio as regular outpatient (50 clients per counselor).
One of the more vexing issues the recovery industry faces deals with marketing. The industry is flush with commission based marketing professionals, and yet there are very detailed state and federal regulations that threaten that practice. At the federal level, the Anti Kickback Statute, a criminal statute that criminalizes remuneration for patient referral, threatens these percentage based arrangements. State laws also strike them hard. For instance, the Florida Patient Brokering Act (PBA) is a criminal statute with serious consequences for violations. While the PBA does have an exception for federal law compliance, many entrepreneurs may find themselves hard pressed to comply.
Though the term “recovery business” may seem like an oxymoron to some, it is an area of significant business opportunity that many have dug into. Knowing the regulatory minefields of the industry is, however, an important step forward in both a successful business and a stable platform of care.
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 !!!
“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.”
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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.
Physicians with Florida medical practices that provide physical therapy must feel at times they are playing “Whack a Mole,” given the many changes to the applicable rules and regulations, especially those that pertain to Medicare patients. Is it ok for a physical therapy assistant (PTA) to provide the services? Can the practice provide PT to people who are not patients of the practice? Does a physician have to be on premises when PT is provided? It’s just complex.
Let’s start with a couple fundamentals: first, medical practices that comply with the so called “group practice” exceptions (under both state and federal law) are permitted to provide PT to their own patients. They are more accurately known as the “In Office Ancillary Services Exception,” but most refer to them as described above. These exceptions dictate, for instance, the form of the practice and how much time each physician has to spend practicing through the group. For instance, if the practice does not have at least two of the following, it does not meet the group practice requirements: physician owner; physician W-2 employee. Second, PT falls under both the state and the federal definitions of “designated health service” (DHS). DHS are services that are regulated by the Stark Law and also (at the state level) by the Florida Patient Self Referral Act of 1992 (FPSRA). They are very similar laws, but with some key differences. Where many physicians go wrong is to ensure compliance with federal laws but not state or vice versa.
Why is it important to know that this discussion is confined to Florida “group practices” providing PT to Medicare patients? First, because the laws that apply to group practices are different that those that apply to reference PT businesses. Businesses that only provide PT are not nearly as regulated as medical practices (especially those in Florida) that provide both medical services and PT to their own patients. For instance, the issue of “outside referrals” does not arise with respect to reference PT businesses. Second, because when Medicare patients are involved, both state and federal law come into play. While state law applies to all services provided in Florida, federal law only comes into play when federal or state healthcare program dollars are involved.
Medical practices in Florida that provide DHS (like PT) to their Medicare patients have to comply with both state and federal law. And those laws are different. For instance, while federal law allows up to 25% of the time of doctors in a group practice to be spent providing services outside the group, state law is not so clear. For instance, federal law allows a practice to provide DHS to a certain amount of patients who are not patients of that group practice (“outside patients), but Florida law allows that sort of flexibility only for “diagnostic imaging services” (up to 15%). If, for instance, a Medicare patient from Dr. Smith down the street comes to your office only to get the PT your practice provides to its patients (i.e. they are not a patient of your practice), that patient will be turned away. Isn’t it ok for a Florida medical practice to provide just PT to someone else’s Medicare patient? No, because state law does not allow it.
Similarly, under federal law, a physician complies with certain supervision requirements if he or she is in the building where the medical practice is located while a Medicare patient receives DHS. In Florida, the physician in a group practice is required to be in the office (not just the building) when a Medicare (and every other) patient receives DHS in order to comply with the stricter “direct supervision” requirement applicable to patients in Florida that receive DHS (all DHS, not just PT) from a group practice.
Once a physician clears those regulatory hurdles, how can a doctor bill for PT? Essentially, there are two ways: under the provider number of the physical therapist or under the provider number of the supervising physician. The situation gets even more complex when a physical therapy assistant (PTA) gets involved.
Can a Florida medical practice bill under the provider number of a supervising MD for PT provided by a PTA to a Medicare patient? No. While applicable law requires an MD or DO to be on premises when a Medicare patient receives PT from the group practice, services provided by a PTA are considered by CMS to be included as part of the covered service under Section 220 and 230 of the Medicare Benefit Policy, Chapter 15. A Florida doctor may not lawfully supervise the services of a PTA, since PTAs (under federal law) that provide services in a medical practice must be directly supervised by an RPT.
There are also state laws that need to be followed, they differ based on physician specialty. For instance, a PTA employed by a physician other than a board certified orthopedist, physiatrist or chiropractor certified in physiotherapy must be under the onsite supervision of an RPT. Though inapplicable to Medicare, there is no provision in Florida law that allows a chiropractor to supervise a PTA.
What about if the PT services are provided by a registered physical therapist (RPT)? Though CMS does not recognize the term RPT, it does allow the services of a “qualified professional,” which includes a licensed physical therapist, to be billed either under the physical therapist’s provider number or “incident to” the services of the supervising MD or DO. “Incident to” services are services that are so integral to the services provided personally by the physician that they can be billed to Medicare as though the physician provided the service, even when the physician didn’t provide them. To comply with the rule (and for the doctor to be able to bill for it as though he or she did provide the service), the services must be:
1. An integral though incidental part of the physician’s service in diagnosing or treating an illness or injury,
2. Commonly furnished without charge or included in the physician’s bill;
3. Commonly furnished in a physician’s office or clinic;
4. Furnished under the physician’s direct supervision (e.g. physical presence in the office);
5. Furnished by the physician, practitioner with an incident to benefit or auxiliary personnel.
Though the incident to services rule is materially different from the Florida “direct supervision” requirement under the FPSRA, its effect is very similar: an MD or DO must be physically present on the premises of the office when a patient receives DHS and it is billed under the provider number of the supervising physician. One might argue that the PT’s services could be billed under the PT when the MD or DO is not on premises, but this conflicts with the direct supervision requirement of the FPSRA.
What’s the Analysis?
To comply with the State and Federal supervision requirements, group practices in Florida that provide PT to their Medicare patients must ask themselves at least the following questions:
1. Does my practice comply with the state and federal “group practice” requirements? and
2. Is an MD or DO in the office when the patient receives PT? If not, the PT may not be provided at all, since all PT in Florida group practices require direct supervision by a physician.
What are the Penalties?
At the very least, doctors who fail to comply with the supervision requirements for DHS risk (1) AHCA licensure actions; (2) having to repay the money received when they did not comply; (3) having to pay stiff fines, and in some instances (4) criminal prosecution. There have been many reported cases of physicians being investigated and fined for failing to meet the supervision requirements. And there have been numerous instances of physicians being prosecuted for failing to meet the “incident to services” rule.
If you provide PT to your patients, you must be clear about (1) the “group practice” exception provisions that allow you to provide DHS to your patients, and (2) the State and federal supervision requirements. There is simply too much at stake not to. Additionally, physicians ought to develop clear and easy to use written guidelines for compliance.