Medical Necessity: It’s a Necessity

medical necessityBy: Jacqueline Bain

Recently, a Florida-based physician practice specializing in pain management was ordered to pay the Federal Government $7.4 after it was determined that the group’s physicians were ordering medically unnecessary drug screens and billing Medicare for those tests. Federal prosecutors contended that the group’s physicians had appropriately ordered initial drug screens on many patients, but had inappropriately ordered more extensive (and more expensive) follow up tests nearly 100% of the time. Moreover, patient medical records did not reflect the need for more extensive testing. Continue reading

Marketing in Healthcare: It Ain’t What It Used to Be

By: Jeff Cohen

Healthcare professionals and businesses are routinely barraged with people who claim to be able to generate business for them.  The business of healthcare is like none other in its abhorrence of anything that even smells like payment for patient referrals, so professionals and businesses alike have to be extremely cautious and well advised in crafting marketing and related business-enhancing relationships.

The key here is to realize that, while the laws haven’t changed, what regulators are doing with them has!  The environment of healthcare marketing has never been more treacherous than it is today.  So what’s changed?  How about:

  1. Commission based marketing and sales involving federal or state payers, even those that arguably comply with the personal services arrangement and management contract safe harbor, are detested by federal regulators;
  2. The regulators will look to pierce any enterprise, including those consisting of multiple tax ID entities, in hopes of making the case that commercial based marketing payments were in exchange for even one drop of federal/state payer money;
  3. Both health insurers and large providers (e.g. labs, pharmacies) work hand in hand with federal regulators to pursue suspicious activity, the result of which is to support the large provider; and
  4. Targets of enforcement activity who have obtained good legal advice often pay just to put an end to the enforcement because there’s a risk of losing and “winning” can feel like losing when one considers the enormous defense costs.

Continue reading

Physician Compensation Targeted by the Department of Justice

healthcare business change in ownershipBy: Jeff Cohen

The DOJ reported on August 5th a settlement with a South Carolina hospital concerning physician compensation.  Though certainly not the first or the biggest case of its kind (e.g. note the Halifax Hospital and North Broward Hospital District cases, which generated settlements of over $100M and $60M respectively), it’s attention grabbing nonetheless.

The SC case was brought by a whistleblower, a neurologist formerly employed by the hospital.  The doctor alleged that the seven year employment agreements violated Stark and the Anti Kickback Statute because the compensation was more than what was legally permissible and was also based in part on ancillary services ordered by the employed doctors.  Seasoned readers will understand that the concept of “fair market value” (FMV) is at the heart of regulatory compliance and also that compensation surveys of organizations like the Medical Group Management Association (MGMA) are important guides in term of what is/is not FMV.  In the SC hospital case, compensation met or exceeded the top 10% of similarly qualified physicians in the area, which is very interestingly noted by the DOJ (because some of the comp levels were still within the MGMA surveys).  In other words, the trend here is for the Feds to push back against comp levels on the high end of the FMV spectrum. Continue reading

Docs, You’ve Been Hacked. What’s Next?

HIPAABy: Jacqueline Bain

Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.

HIPAA is a federal law designed for safe disclosure of patient’s protected health information.  The news headlines showcase giant penalties for violations.  However, Florida health care providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act.  So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.

So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure?  Responses vary based on the situation presented, but below is a good jumping off point: Continue reading

Core Regulatory Issues for Healthcare Transactions

healthcare transactionBy: James Saling

Regulatory issues in healthcare transactions have the potential to drive a transaction.  A healthcare transaction is very different from your typical corporate transaction. This is so because the healthcare industry is highly regulated at many different levels, and the issues tend to be complicated and not necessarily intuitive.  Whenever a provider is contemplating a sale of their healthcare business, they can expect a number of regulatory hurdles as they navigate the transaction.  Typical regulatory issues in healthcare transactions include: (1) fraud and abuse; (2) compensation; (3) investigations and audits; (4) compliance; and (5) licensure.  Of course, there are other regulatory issues that may arise, but these are, by far, the most common: Continue reading

CEC Networks Technical Advisory Report – Crypto Virus

300x300_alertBy: Curtis Cameron, President CEC Networks Inc., Guest Contributor
The Crypto virus pandemic is still going strong! This particular virus comes in many different forms and flavors. However, the result is almost always the same: your data being held hostage for ransom.  There are multiple ways of acquiring this virus, the most popular being through emails! These cyber terrorists are very creative and savvy trying to disguise their email so you will open it (i.e., subject line of “Your UPS tracking number”) or “Hello, here is my resume.” Do NOT open them! As a good “rule of thumb” you should never open anything unexpected or suspicious attachments with .EXE or .ZIP file extensions. These are executable files that once opened, run wild and perform their function. That function is rarely a good thing.
The GOOD news: There are firewall devices out there to help stop these viruses from entering and infecting your entire network. The firewalls must have a specific function included in them so ask your IT staff if your firewall has DPI/SSL.
The BAD News: Once your machine is infected, there is very little that can be done.  Make sure you have a good reliable off-site backup in place because once these files are encrypted, recovering from backup is the only recourse for you/your IT staff. Yes, you could try to pay the ransom, but who can trust a terrorist to follow through with their side of the deal!
Curtis Cameron is the Founder and President of CEC Networks, Inc. For over 10 years he has been in South Florida building and implementing I.T. solutions that drive efficiency and safety for clients. He can be reached via email or by calling directly 954-369-0999. Visit him online at 

Cigna Loses Texas Case Against Humble Surgical Hospital, Hit with $16 Mil Judgment

anti kickbackBy: Karina Gonzalez

Cigna recently sued a Texas hospital, Humble Surgical for overpayments.  Humble Surgical is an out-of-network (OON) provider.  Cigna alleged fraudulent billing practices and that the hospital engaged  in a scheme to defraud payors by waiving members’ financial responsibility.

While the suit involved many other  allegations  our article focuses on the arguments Cigna made on failure to collect co-payments, deductibles, and co-insurance and fee-forgiving practices by the hospital.   There were several other issues raised that are important to various practices that Cigna has engaged in with out-of-network providers.  Cigna has consistently audited South Florida providers alleging failure to collect patient financial responsibility or fee-forgiveness, then informing the provider that it was not entitled to any reimbursement because these practices fell within the exclusionary language of the member’s plan.

The suit brought under federal law, ERISA and also Texas common law seeking reimbursement for all overpayments. Cigna was seeking equitable relief including imposing a lien or constructive trust on  fees paid to the hospital.

Humble Surgical counter sued against Cigna for  nonpayment of patients’ claims, underpayment of certain claims and delayed payment of all claims in violation of ERISA, including other causes of action. Here’s what happened:  Continue reading

Medical Ethics Corner: CMS Pay Cut Controversy

By: Dr. Brent Schillinger, Guest Contributor

“Part B Drug Plan Draws Fire From All Sides,” shouts the headline in MedPage Today, an online newsfeed for physicians.  If you have enough time to read the entire article you will realize the headline is not exactly correct.   While oncologists and rheumatologists and their respective specialty societies are furious, the last paragraphs of the same article points out that the American Academy of Family Physicians applauds the measure.  Sounds like opinions based largely on special interests.

All this noise stems from a federal proposal to reformulate the equation by which the Centers for Medicare and Medicaid Services (CMS) reimburses doctors and facilities for in office dispensing and administration of drugs.    The current methodology reimburses providers the average sales price (ASP) plus a 6% add-on fee to “cover costs.”   The new proposal would replace this formula with a rate of the ASP plus 2.5% plus a flat rate of $16.80 per drug per day.   Continue reading

PAs and ARNPs and Prescribing Controlled Substances

ARNP controlled substancesBy: Jacqueline Bain

For many years, medical providers and regulators have wrestled with whether Advance Registered Nurse Practitioners (“ARNPs”) and Physician Assistants (“PAs”) should be able to prescribe controlled substances.  This past legislative session, several bills were signed into law allowing ARNPs and PAs to prescribe controlled substances subject to several limitations and restrictions. This article will set forth a broad overview of the bills. However, if your practice intends to use ARNPs or PAs to prescribe controlled substances, we strongly recommend that each practitioner is educated about the boundaries set forth in the new law. For instance, there are restrictions on prescribing certain controlled substances in certain circumstances, prescribing controlled substances within a pain management clinic, and prescribing controlled substances for persons under age 18. It is important that all practitioners are properly educated prior to engaging in prescribing or dispensing any controlled substances.

Advance Registered Nurse Practitioners

ARNPs may prescribe or dispense Schedule II, III or IV controlled substances if they have graduated from a program leading to a master’s or doctoral degree in a clinical nursing specialty area with training in specialized skills and have completed 3 hours of continuing education on the safe and effective prescription of controlled substances. ARNPs must limit their prescriptions of Schedule II controlled substances to a 7-day supply. However, this restriction does not apply to psychiatric ARNPs who are prescribing psychiatric medications. Continue reading

The United States Supreme Court adopted an “Implied Certification Theory” in “some circumstances”

bcbs lawsuitBy: Karina Gonzalez

The Supreme Court of the United States in the case of Universal Health Services v. United States ex rel. Escobar (decided 6/16/2016) extended the reach of the False Claims Act (FCA) to cover implied false certifications made “in certain circumstances” by healthcare providers in requesting payment for goods and services.

At issue was a theory of liability known as the “implied false certification theory” and whether this theory was valid under the FCA.  The implied false certification theory treats a payment request as an implied certification of compliance with relevant statutes, regulations or contract requirements that are a material condition of payment and treats a failure to disclose a violation as a misrepresentation that renders the claim false or fraudulent.  Continue reading