When a healthcare provider cares for a patient, many times, the provider will set out directives for the patient to follow in order to live a healthier life. These changes may include changes in lifestyle, eating habits, and obedience in taking medications. A patient’s compliance with these directives instructs the provider on how to care for the patient in the future. A patient who does not follow these directives may suffer health consequences.
Similarly, the government sets out legal regulations for healthcare providers. The government expects healthcare providers to comply with its regulations, and providers who don’t can suffer consequences as a result. The regulations governing health care providers are vast and dynamic. In order to keep abreast of the changes in law, and to evidence an intent to comply with law, healthcare providers should strongly consider instituting compliance programs in their businesses.
Compliance with healthcare laws is important. Any number of consequences can result in the event that a healthcare provider is out of compliance—the most devastating being that the Department of Health and Human Services Office of the Inspector General (“OIG”) has the authority to exclude healthcare providers from participation in Medicare and other federal health care programs. Ignorance of the law does not absolve a healthcare provider of liability. Continue reading →
March 25, 2015 Advisory Opinion No. 15-04 addresses a proposed arrangement involving a clinical/anatomic lab’s desire to position itself as the single lab recommended by practices.
The proposal arises in the context of the OIG Advisory Opinion process, which allows the OIG to opine on its view of how the federal anti-kickback statute might view a proposed arrangement. Though Advisory Opinions are not “law,” they do provide good insight into prosecutorial intent.
The clinical/anatomic lab (“Lab”) wanted to have agreements with physician practices to provide all their lab services. To deal with the fact that some commercial insurers have exclusive arrangements with labs, the Lab proposed that if a practice patient’s insurer required the patient to use another lab, the Lab would waive all fees for the affected practice patients and would not bill the patient, the medical practice or the patient. The Lab would provide its services to these “exclusive patients” for free, while billing all other patients (and/or their insurers, including governmental payers) its fee scheduled or contracted rates. The proposed arrangement would allegedly simplify things for the practices and keep lab results uniform. A practice patient would be required to use the Lab. The Lab’s services would simply be offered by the practices to their patients. The Lab stated that the provision of free services to certain practice patients would not provide any financial benefit to the practices, although the lab would provide the practice a limited-use interface. Samples would not be drawn in physician offices. Continue reading →
In the “good old days” (in healthcare, that means more than a week ago), it was understood that if a client didn’t accept any state or federal healthcare program dollars (e.g. Medicare, Medicaid, CHAMPUS, TriCare, Supp Plans), they would not expect to get a “knock on the door” from any federal regulatory authority. No federal or state healthcare program dollars used to mean the client would only tend to hear from state regulators or commercial payors. Those days are done!
Federal law enforcement is increasingly pursuing alleged criminal wrongdoing in the “non-government” healthcare space. One of their favorite weapons is 18 U.S.C. 1347, the Federal Healthcare Fraud Statute, which gives federal law enforcement broad enforcement authority with respect to suspected wrongdoing involving interactions between healthcare providers and commercial insurers. Continue reading →
Balance billing occurs when a provider collects from a patient the difference between the amount billed for a covered service and the amount paid for that service. Balance billing does not apply when collecting deductibles, copayments or coinsurance.
Under Florida law, a provider may not balance bill a patient for any service, if an HMO is liable and responsible for payment. Contrary to what many people believe, this is true whether you are in-network or out-of-network. Even hospital based out-of-network physicians, such as anesthesiologists, pathologists, radiologists or emergency room physicians cannot balance bill HMO members where the hospital has a contract with the HMO or there was authorization given for an episode of care. Continue reading →
Though it can be tempting to offer help to patients in this era of sky high healthcare costs, out-of-network physicians must remember that they should not only be collecting copayments and deductibles from their patients at the time of service and before they leave the office, but also that collecting these payments is their obligation. For physicians and other providers who engage in the practice of failing to collect payments there is a significant legal exposure under federal and state laws including civil litigation brought by commercial health plans, managed care organizations and medical benefit managers regarding routine waiver of these payments. Continue reading →
On February 20, 2014, the Office of the Inspector General posted Advisory Opinion 14-02. The Advisory Opinion reviews the following scenario for compliance with the Federal Anti-Kickback Statute, 42 USC § 1320a-7b. Under the proposed scenario, a Medigap insurance provider participates with a preferred provider organization (“PPO”) which contracts with hospitals (“Network Hospitals”). The Network Hospitals discount Medigap policy-holders’ inpatient deductibles up to 100%. In exchange for each discount, the Medigap plan pays an administrative fee to the PPO. The Medigap plan also pays a portion of the discounted savings directly to the policy-holder who stayed at the Network Hospital. Continue reading →
In a recent Alert, Florida’s Agency for Health Care Administration announced that Florida Medicaid is in the throes of updating its Provider General Handbook, and will soon require new enrollees to provide either a copy of their Health Care Clinic License or a Certificate of Exemption from the clinic licensure requirement. Once Handbook changes have been adopted, Florida Medicaid will roll-out similar requirements for existing providers to produce either Licenses or Certificates of Exemptions.
Up until now there really has not been a compelling reason for an exempt provider to obtain a Certificate of Exemption. We urge our clients to file for their Certificates of Exemption in an effort to avoid what is likely to be an onslaught at AHCA’s licensing bureau.”
On May 1st, CMS issued a letter to Medicare Advantage Organizations (MAOs) and others regarding the effect of the 2% reduction from sequestration. The letter contains very important information for providers, especially regarding their relationships with MAOs. Most importantly (for purposes of this short article) is the section entitled “Reducing Payments to Contracted Providers” which states (in essence) that MAOs are to follow the terms of their contracts for contracted providers. The trouble is that some MAOs are using the letter as a basis for an across the board 2% payment reduction! Most contracts don’t allow this. Even more egregious is the fact that some commercial payers are following suit! Providers faced with such reductions need to know their rights and need strong advocates to push back.
More and more of our seasoned clients are opting out of Medicare, and the younger ones are simply not enrolling. The scale seems to have finally tipped so that the potential liability of being a Medicare provider outweighs the benefits. So many providers are avoiding Medicare participation, that the Affordable Care Act and CMS have implemented the issuance of “Ordering and Referring Provider Numbers” through CMS Form 855-O.
As of May 1, 2013, physicians and other providers (collectively “Providers”) who bill Medicare must list the NPI of the ordering/referring Provider on their claim forms in order to be paid for the technical component of imaging services, the technical component of clinical laboratory services, durable medical equipment and/or home health services. An issue arises when the referring/ordering Provider does not participate with Medicare, and does not have an active NPI.
The Affordable Care Act provides a solution by allowing Providers to enroll in Medicare for the sole purpose of ordering or referring covered services for their Medicare patients, even though the ordering/referring Provider cannot bill Medicare for the services (s)he provides. This limited enrollment is accomplished through CMS Form 855-O.
Providers who have opted-out of Medicare by filing the required affidavit and entering into acceptable patient contracts do not have to submit Form 855-O as they have NPIs, even though they are not allowed to bill under them during their opt-out period.