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Archives for October 2011

Changes to Medicare’s “Incident To” Regulations Impact Physician Reimbursement

For physicians and other licensed practitioners utilizing “incident to” billing for occupational or physical therapy services under Medicare, new federal regulations may impact current and future staffing decisions. Providers should ensure that the person providing those “incident to” services qualifies for Medicare reimbursement under the applicable federal regulations.

As of July 25, 2005, for therapy services to be reimbursed by Medicare, the therapy must be delivered by either a physician or by someone that qualifies as a “therapist” under the federal regulations. Generally, 42 CFR § 484.4 requires that the physical or occupational therapy provider have graduated from physical or occupational therapy program respectively. 1 Therefore, despite extensive training in occupational and physical therapy, chiropractors will be unable to provide “incident to” therapy services and be reimbursed by Medicare, unless the chiropractor meets the specific criteria set forth in the Code of Federal Regulations. The new regulations will affect joint ventures between physicians and chiropractors where chiropractors provide certain therapy services “incident to” services provided by the physician, but are not qualified as a “therapist” under the regulations.

Likewise, physical or occupational therapy services provided “incident to” the services of a chiropractor under the Medicare Chiropractic Demonstration Project 2 will not be reimbursed unless the person who furnishes the service is a “qualified practitioner” under the regulations. Strangely, although a “qualified practitioner” under federal regulations is defined as an individual who has graduated from a physical or occupational therapy program or has equivalent educational credentials, as outlined in 42 CFR §484.4, there is no requirement that the therapist actually hold a license under applicable state law.

The American Chiropractic Association (ACA) has been strenuously lobbying the Centers for Medicare and Medicaid Services of the Department of Health and Human Services (CMS) to recognize that chiropractors receive extensive education and training in physical therapy and currently provide such services to patients under most state laws. To this point the ACA has been unsuccessful in having CMS revisit the regulations.

For more information contact us at 404.995.6792 or at dj@jeylaw.com.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

About the Author

Deepak (“D.J.”) Jeyaram is the founder of Jeyaram & Associates, a full service health law firm. He represents a wide variety of healthcare providers including hospitals, nursing homes and physician group practices. He concentrates his practice in healthcare regulatory matters, primarily in administrative appeals and Medicare and Medicaid reimbursement.

His prior experience includes working in-house with Georgia Medicaid, rising to the position of Deputy Director of Legal Services. Later in his career, Jeyaram was an Administrative Law Judge who presided over disputes between the Georgia Department of Community Health and Medicaid providers on issues involving reimbursement, utilization review and provider termination. Jeyaram received his bachelor’s degree, cum laude, from Boston University and his law degree from Emory University.

1 There are exceptions for experienced physical therapists who have not graduated from a program but have the requisite experience and have passed a proficiency exam given by the U.S. Public Health Service and for therapists who were licensed prior to 1966 and have accrued 15 years of experience full-time physical therapy experience prior to 1970 under the direction of a M.D. or D.O.

2 The Chiropractic Demonstration Project is currently unavailable in Georgia.

Make Sure You Get Paid for Outpatient Radiology

On September 1, 2005, the Georgia Department of Community Health began implementing a legislative mandate requiring prior authorization (“PA”) for certain types of high-cost radiology procedures performed in ANY outpatient settings, including free standing radiology centers, ambulatory surgery centers, outpatient hospitals and physician offices. PA will not be required for tests performed for inpatients.

Prior Authorization will be required for imaging procedure codes in the areas of Obstetrical Ultrasound, PET Scans (Brain and Whole Body), CT Scans (Head and Pelvis/Abdomen), and MRI (Brain and Lumbar Spine), a full list is at the end of this article. The Web-based request entry process is similar to all other PA Web submissions currently in use by Georgia Medicaid Providers.

In urgent or emergent situations, Providers will have thirty (30) days from the test date to request a prior authorization. If the case starts out in the Emergency Room and then the patient is admitted as an inpatient, the radiology test(s) do not need prior authorization. But be careful! The inpatient hospital stay may require review according to DCH Hospital Services Manual requirements. The inpatient hospital request must be submitted using the Hospital Admission and Outpatient Procedures PA request and not the Radiology PA type request.

Also be careful to distinguish between “inpatient” status and “observation” status admissions. If admitted under “observation” status, the provider will still need to get PA for radiology tests. Providers may want to see if the patient is admitted before requesting a radiology prior authorization, because imaging codes do not need to be submitted as part of an inpatient hospital stay.

There is some concern among providers regarding who is responsible for obtaining the radiology PA, checking medical necessity and providing clinical information to GMCF. As with other categories of PA, physicians shall be responsible for providing all this information and obtaining the PA. The Department plans to change its Physician’s Service Manual in October of 2005 to state: “The ordering physician is responsible for obtaining the Prior Approval. The physician’s failure to obtain Prior Approval will result in denial of payment to all providers billing for services including the facility. If the info submitted for the PA is incorrect, then both would be denied. Hospitals and physicians are both able to search the GMCF database on the internet to see if prior approval has been obtained for a particular patient and test. However, note that although the ordering or attending physician is responsible, facilities MAY request PA if they have the clinical information available. In some cases, outpatient clinics or hospitals serve this function for physician groups based upon their business arrangements.

Once PA is requested, the Department’s nurse reviewers will utilize InterQual criteria and Department of Community Health (DCH) policy guidelines to review Radiology PA requests. If the request meets InterQual criteria and DCH policy guidelines, the nurse will approve the case. If the case is not approved, the Provider may submit additional information for reconsideration. The reviwer will have up to seven (7) days to provide an authorization. Upon reconsideration, the PA is either approved or denied. If denied, the provider will be notified of any appeal rights.

Denials most often occur when the nurse reviewer does not get a clear clinical picture of the patient’s medical condition and why the test was needed. When submitting requests, err on the side of submitting more information and be sure to include information on co-morbidities; Member’s age; complications; previous testing results and any physician interventions such as medication or surgery.

If a request is approved for a particular radiology code, but once the procedure begins, the technician determines that a different procedure needs to be performed, providers have 30 days from the date of service to request changes (including procedure code changes). Be warned that the provider will still need to provide sufficient documentation that the new test is medically necessary.

Neither the hospital/facility or the physician may bill its claim until the PA is obtained. Even though the onus is on the physician to obtain the PA, it is likely that if one claim gets denied both parties’ claims will be denied even if one party is not at fault. Therefore, it is important for both parties to check on the GMCF website that PA has been obtained or risk the possibility that the claim will be denied by the Department.

CPT Codes Requiring PA as of September 1, 2005 (subject to change).

  • 70450 CT Head/Brain wo Dye
  • 70460 CT Head/Brain w Dye70470 CT Head/Brain wo & w Dye
  • 70551 MRI Brain wo Dye
  • 70552 MRI Brain w Dye
  • 70553 MRI Brain wo & w Dye
  • 72148 MRI Lumbar Spine wo Dye
  • 72149 MRI Lumbar Spine w Dye
  • 72158 MRI Lumbar Spine wo & w Dye
  • 72192 CT Pelvis wo Dye
  • 72193 CT Pelvis w Dye
  • 72194 CT Pelvis wo & w Dye
  • 74150 CT Abdomen wo Dye
  • 74160 CT Abdomen w Dye
  • 74170 CT Abdomen wo & w Dye
  • 76801 OB US 76802 OB US/=14 weeks, Single Fetus
  • 76810 OB US>/=14 weeks, Addl Fetus
  • 76811 OB US, Detailed , Single Fetus
  • 76812 OB US, Detailed, Addl Fetus
  • 76815 OB US, Limited, Fetus(s)
  • 76816 OB US, Follow-up, per Fetus
  • 78608 PET Brain Imaging
  • 78811 PET Tumor Imaging limited area
  • 78812 PET Tumor Imaging skull to thigh
  • 78813 PET Tumor Imaging whole body
  • 78814 PET w/CT imaging limited area
  • 78815 PET with CT imaging skull to thigh
  • 78816 PET with CT imaging whole body

For more information, contact us at 404.995.6792 or at dj@jeylaw.com.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

About the Author

Deepak (“D.J.”) Jeyaram is the founder of Jeyaram & Associates, a full service health law firm. He represents a wide variety of healthcare providers including hospitals, nursing homes and physician group practices. He concentrates his practice in healthcare regulatory matters, primarily in administrative appeals and Medicare and Medicaid reimbursement.

His prior experience includes working in-house with Georgia Medicaid, rising to the position of Deputy Director of Legal Services. Later in his career, Jeyaram was an Administrative Law Judge who presided over disputes between the Georgia Department of Community Health and Medicaid providers on issues involving reimbursement, utilization review and provider termination. Jeyaram received his bachelor’s degree, cum laude, from Boston University and his law degree from Emory University.

DCH Recoups Millions From Chain Pharmacies: Are The Independents Next?

The Department of Community Health (“DCH”) is in the midst of recouping millions of dollars from Georgia’s chain pharmacies for use of Dummy Doctor Numbers. Proposed recoupment from a single chain has run as high as $54 million. Every indication is that DCH next plans to pursue recoupment against independent pharmacies.

What are Dummy Doctor Numbers?

DCH’s policies and procedures require that each pharmacy claim billed to DCH contain the prescribing physician’s medical license number. The Dummy Numbers were created by DCH as a means of replacing the actual physician numbers when, for various reasons, the prescribing physician’s actual license number is not entered into DCH’s claim database and is unavailable on the Medical Board’s Web site.

There are several other situations where usage of the Dummy Number is appropriate, such as when a physician’s signature is illegible and there is no other way to identify the prescriber, when a prescription is written in the emergency room, or for a prescription written by a resident.

Pharmacy providers across the state have been using DCH approved Dummy Doctor Numbers for years. However, DCH thinks that pharmacies are abusing the Dummy Numbers and is using this type of recoupment action as a means of enforcing compliance with DCH policies.

How Does DCH Target Providers?

In deciding which pharmacies to target for recoupment, DCH identifies providers who use the Dummy Numbers for more than 20 percent of their Medicaid claims. On the face of DCH’s recoupment letter it is unclear how it arrived at the 20 percent threshold.

Through discussions with DCH, we have learned that the 20 percent threshold represents the average use per pharmacy of the Dummy Number with a margin for error built into the calculation. However, most providers are shocked to hear that DCH is not just trying to recoup reimbursement for Dummy Number claims over the 20 percent threshold, but is seeking recoupment for all of the provider’s Dummy Number usage including the original 20 percent!

What Do You Do if You Receive a Recoupment Letter?

Faced with huge recoupment amounts, most of the chain pharmacies have negotiated settlements with DCH. If your pharmacy receives such a recoupment letter you should obtain legal representation immediately, even if you plan on negotiating a settlement.

DCH’s case has significant constitutional, statutory and contractual weaknesses that can factor into an improved settlement for the provider. It is vital to have legal representation before the administrative review period. If the case proceeds to hearing, providers are limited to the arguments presented in its administrative review request. Therefore, to take advantage of the weaknesses in DCH’s case, legal arguments must be made and preserved in the administrative review request.

Remember, just because DCH asks for a large amount of money back it does not mean that it is what the provider owes. Know your rights and investigate your particular situation with the aid of experienced counsel.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

About the Author

D.J. Jeyaram is the founder of Jeyaram & Associates and has represented more than 70 pharmacies in Dummy Number cases. Jeyaram is a former in-house counsel for DCH and an Administrative Law Judge. Jeyaram can be reached at dj@jeylaw.com or 404.995.6792.

DCHs Managed Care Plan Alters Traditional Medicaid Practices

On July 15, 2006, the Department of Community Health (“DCH”) is scheduled to announce the winners of the Request for Proposal (“RFP”) process for its Georgia Cares managed care program. Whoever the winners may be, Georgia’s managed care initiative heralds sweeping changes for Georgia’s health care providers and care maintenance organizations (“CMOs”) alike.

Provider Networks

One of the most significant changes is DCH’s departure from its “any willing provider” enrollment philosophy. The RFP only requires the CMO to maintain a network of providers adequate to ensure access to all covered services while also complying with federal geographic and accessibility requirements. The RFP deviates from “any willing provider” in that it acknowledges the CMO’s right to deny enrollment to otherwise qualified providers.

However, DCH requires the inclusion of “significant traditional providers” (“STP”) in the CMO networks. A STP is defined as “those providers that provided the top eighty percent (80%) of Medicaid encounters for the GCS-eligible population in the base year of 2004.”

The RFP requires the CMO to include in its network all STPs in its service region for the first two (2) years of operation under the GCS contract provided that following requirements are met:

  1. The provider agrees to participate as a network provider and abide by the provisions of the provider contract;
  2. Agrees to accept the Offeror’s provider reimbursement rate for the provider type/class; and
  3. Meets the Offeror’s credentialing requirements.

Despite the seemingly mandatory inclusion of STPs, the above requirements grant CMOs significant leeway in contracting with STPs. As the Contract is currently drafted, if the STP and the CMO are unable to reach an agreement on a reimbursement rate, it appears that the STP need not be included in the CMO’s provider network.

The RFP also includes provisions regarding particular categories of providers, including the following:

  • Pharmacies. The CMO must maintain an adequate network of pharmacies to ensure pharmacies are available and accessible to all members.
  • Hospitals. The CMO is required to include in its network all Critical Access Hospitals (CAHs) that are located in the particular service region.
  • Laboratories. The CMO must maintain a provider network of labs that ensures accessibility to all members. The CMO must also ensure that the lab testing sites providing services under the Contract have either a clinical laboratory (“CLIA”) certificate or a waiver of a certificate of registration, along with a CLIA number pursuant to 42 CFR 49/493.3.
  • Community Service Boards. The CMO is required to enroll all Community Service Boards (“CSB”) that meet the CMO’s requirements and are located in its service region. Again, though it seems that the intent of DCH is to have all CSBs enrolled in the provider network, the language of the Contract allows the CMO to have more stringent requirements for enrollment than DCH and if the CSB does not meet the requirements of the CMO, the CMO may exclude the CSB from its provider network.
  • FQHCs and RHCs. The CMO is required to include in its provider network all federally qualified health centers (“FQHC”) and rural health clinics (“RHC”) in its service region.
  • Family Planning Clinics. The CMO is required to make a reasonable effort to subcontract with all family planning clinics, including those funded by the Public Health Services Act. These efforts must be documented and presented to DCH upon request.

Provider Rates and Payment

The RFP provides that in most cases CMOs may to negotiate rates with individual providers. DCH recommends that CMOs pay providers on a fee for service basis, but does not require this.

However, with regard to critical access hospitals, the CMO must pay a rate based on an allowable cost incurred by the critical access hospital in accordance with DCH’s Policies and Procedures. When the CMO negotiates with FQHC or a RHC, the CMO must pay rates that are comparable to other similar providers.

The terms “similar providers” or “similar services” are not defined in the RFP and leave some question as to the rates that are to be paid to these entities. A reasonable expectation would be the prevailing Medicare rates associated with these entities. With regard to prompt payment to providers, the CMO is required to meet the Georgia fifteen (15) calendar days prompt payment requirement for a clean claim.

Member Enrollment

The RFP provides that DCH will be responsible for member enrollment, including auto assignment of a CMO plan and disenrollment of members. If a member does not choose a CMO, DCH has developed an algorithm to “auto-assign” members to a CMO.

If the member does not have a family member enrolled in a CMO or does not have a previous service relationship with a provider, the member will be auto-assigned to the CMO plan with the lowest capitated rate in the service region. In the Atlanta region, no plan may have more than 50% of eligible members. In the other regions, no single plan may have more than 65% of the eligible members.

Provider Complaint System

Another significant departure from DCH’s traditional practices involves the delegation of the provider appeals to the CMO. The CMO is required to establish a provider complaint system that allows a provider to dispute the CMO’s policies, procedures or any aspect of the CMO’s administrative functions, including proposed adverse actions by the CMO against the provider.

Thus, the provider has broad rights under the RFP to challenge CMO policies. Under the RFP, a provider has forty-five (45) calendar days to file a verbal or written complaint. The full scope of what types of issues that a provider can file a complaint against is unclear. Though, providers can expect more clearly defined guidelines in the contracts they may sign with each CMO.

The RFP mandates designation of a specific staff person to receive and process all provider complaints. The RFP includes no time frame for the investigation or resolution of a complaint, except where the “standard” timeframe would jeopardize the health or safety of a member and expedited review is required. If a provider complaint is not resolved in favor of the provider, and the provider may further appeal the decision to an administrative law judge.

Undoubtedly, the CMO’s contracting process with DCH and with Georgia providers will shed light and lend definition to the full extent of the changes in store for all parties involved. Stay tuned for more.

For questions or comments about this article please contact the author, D.J. Jeyaram, at 404-995-6792 or dj@jeylaw.com.

About the Author

Deepak (“D.J.”) Jeyaram is the founder of Jeyaram & Associates, a full service health law firm. He represents a wide variety of healthcare providers including hospitals, nursing homes and physician group practices. He concentrates his practice in healthcare regulatory matters, primarily in administrative appeals and Medicare and Medicaid reimbursement.

His prior experience includes working in-house with Georgia Medicaid, rising to the position of Deputy Director of Legal Services. Later in his career, Jeyaram was an Administrative Law Judge who presided over disputes between the Georgia Department of Community Health and Medicaid providers on issues involving reimbursement, utilization review and provider termination. Jeyaram received his bachelor’s degree, cum laude, from Boston University and his law degree from Emory University.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

Federal Deadline for Pharmacy Compliance Plan Approaching – Are You Ready?

In an effort to contain the skyrocketing costs of the Medicaid and Medicare programs, the federal government enacted the Deficit Reduction Act of 2006. The Act is a sweeping cost cutting measure that will trim 11 billion dollars for the Medicaid and Medicare Programs over the next five years.

Buried amongst these cost cutting measures are new requirements for healthcare providers to enact Medicaid Compliance Plans. Though pharmacies are not traditionally thought of as “healthcare providers,” Section 6032 of the Act extend the Compliance Plan requirement to any entities receiving annual Medicaid payments of at least 5 million dollars.

Many independent and chain pharmacies are unaware that the Act requires that Compliance Plans be in place by January 1, 2007, and are not prepared to meet this statutory deadline. The Act requires any entity that meets the criteria to adopt policies and procedures and educate their employees, contractors and agents on various aspects of healthcare fraud enforcement. Included in these educational requirements are:

  • The federal False Claims Act;
  • administrative remedies for false statements under federal law;
  • any state laws establishing civil or criminal penalties for false claims or statements;
  • whistle blower protections under any applicable state or federal law;
  • the roles of such laws in preventing and detecting fraud, waste and abuse in federal healthcare programs;
  • the entities internal policies and procedures for detecting and preventing fraud, waste and abuse;
  • the entity’s Employee Handbook is required to contain specific discussion of the federal and state laws described above, the rights of employees to be protected as whistle blowers, and the entity’s internal policies and procedures for detecting and preventing fraud, waste and abuse.

For pharmacies chains with locations in multiple states, the employee and contractor education must be specific to the laws of every state the pharmacy is located.

It is important that Medicaid providers begin to review and revise their current compliance plans and policies including employees handbooks, to ensure that these documents meet the Act’s requirements.

Jeyaram & Associates can help you comply with these new federal mandates by integrating information into your existing compliance plan or by creating a new comprehensive compliance plan tailored to meet your needs. Contact us for a free consultation at 404.995.6792 or at dj@jeylaw.com.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

About the Author

Deepak (“D.J.”) Jeyaram is the founder of Jeyaram & Associates, a full service health law firm. He represents a wide variety of healthcare providers including hospitals, nursing homes and physician group practices. He concentrates his practice in healthcare regulatory matters, primarily in administrative appeals and Medicare and Medicaid reimbursement.

His prior experience includes working in-house with Georgia Medicaid, rising to the position of Deputy Director of Legal Services. Later in his career, Jeyaram was an Administrative Law Judge who presided over disputes between the Georgia Department of Community Health and Medicaid providers on issues involving reimbursement, utilization review and provider termination. Jeyaram received his bachelor’s degree, cum laude, from Boston University and his law degree from Emory University.

Five Things Every Medicaid Provider Should Know

Provider Manuals Are Always Changing

At current count, the Georgia Department of Community Health (“DCH”) has 80 different provider manuals and schedules. The provider manuals are continually being revised to clarify and update various provisions.

You should regularly review those manuals that are applicable to your categories of service and review them for changes. Don’t worry—you probably won’t need to read the entire manual again, as DCH typically includes revision dates next to each section that has changed.

However, it is important to note that when DCH changes a manual provision, it does not mean that the change is legal. The manuals are DCH’s contract with providers. Therefore, changes must comply with most provisions of basic contract law as well as with governing state and federal laws and regulations; any of which can render a conflicting manual provision invalid.

Preserve Your Rights

The DCH appeals process allows for an “administrative review” where DCH can review a matter, with additional documents and information submitted by the provider, in an attempt to resolve issues before hearing. But be careful!

An administrative review is still part of the appeals process and if you are not careful, you can severely hinder your chances of success if the matter proceeds to hearing. If you choose to proceed without legal counsel, be aware that anything said in any correspondence with the DCH can be treated as an admission and used at a hearing.

Even a simple statement such as “I’m sorry this was late” can cost the provider the case—EVEN IF THE DOCUMENT WAS NOT LATE IN THE FIRST PLACE! DCH can take the provider’s “admission” that the document was late and file a motion with the Administrative Law Judge and the case could be disposed of on those grounds.

Comply With Deadlines

When filing requests for administrative review or hearing, be careful to comply with all deadlines. If a request is beyond the time-frames set forth in the provider manual, DCH will likely not even look at the merits of your case.

DCH is short staffed and when given an easy and legitimate way to dispose of a case, DCH will likely make use of it. If you need more time to gather documents or consult with staff before responding to DCH, request an extension in writing before the original deadline has elapsed.

DCH May Disagree With Third-Party Contractors

When you are faced with a proposed Adverse Action from DCH, ask to see the work documents underlying that decision and review them with the decision maker at DCH. If the proposed action is based on work done by a DCH third-party contractor, including other state agencies, many times on closer review DCH will disagree with the third-party contractor’s conclusions and may even reverse its decision.

Win Your Case At Hearing

If your case is not resolved on administrative review, it will be important to present a strong case at the administrative hearing. Any appeal from the administrative hearing is sent to the Commissioner of DCH, who almost never rules against his or her own agency.

The case is then appealed to Superior Court. The standard of review in Superior Court gives great deference to the administrative judge’s rulings. So preparing a strong case early in the DCH appeals process is essential to a successful outcome.

For questions or comments about this article please contact the author, D.J. Jeyaram, at 404.995.6792 or dj@jeylaw.com.

This article is presented for educational and informational purposes only and is not intended to constitute legal advice.

About the Author

Deepak (“D.J.”) Jeyaram is the founder of Jeyaram & Associates, a full service health law firm. He represents a wide variety of healthcare providers including hospitals, nursing homes and physician group practices. He concentrates his practice in healthcare regulatory matters, primarily in administrative appeals and Medicare and Medicaid reimbursement.

His prior experience includes working in-house with Georgia Medicaid, rising to the position of Deputy Director of Legal Services. Later in his career, Jeyaram was an Administrative Law Judge who presided over disputes between the Georgia Department of Community Health and Medicaid providers on issues involving reimbursement, utilization review and provider termination. Jeyaram received his bachelor’s degree, cum laude, from Boston University and his law degree from Emory University.