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What To Do If You Receive A Medicaid Fraud Subpoena In Georgia

medicaid fraudThe Georgia Medicaid Fraud Control Unit (MFCU) investigates and prosecutes fraud and abuse by providers in the Georgia Medicaid program.  One of the first steps MFCU takes when it opens up a case against a provider is often the issuance of an investigative subpoena, requesting specific patient records.

Often the provider has already been looked at by the Georgia Department of Community Health’s Medicaid Program Integrity Unit which handles intake and triage of cases before turning them over to MFCU. In other words, the provider has somehow managed to get on the State’s radar, and it is serious.

Please keep the following in mind if you receive a Medicaid Fraud subpoena:

1. CALL AN EXPERIENCED HEALTHCARE FRAUD ATTORNEY. This is a highly specialized area of the law, and you need someone to represent you that has experience both in defending criminal matters AND in healthcare law. This area of law is like a hybrid car. Just like it takes gas and electric batteries to power a hybrid car, it takes knowledge of criminal and healthcare law to successfully represent a provider facing a Medicaid fraud investigation.

2. Call an attorney BEFORE you respond to the subpoena or talk to an investigator.

3. Remember: the Investigator is NOT your friend. They are doing a job, and their job is find evidence against you. We recently represented a client who was complying with a subpoena from MFCU. Five investigators showed up to get the documents. Since there was no threat of an armed suspect, one can only guess that the use of five investigators to collect documents had to be an intimidation tactic. Likewise, these investigators tried desperately to butter up the employees to get them to talk, and this was with an attorney standing there. Remember: the investigator is NOT your friend.

4. Be Polite and cooperative. If your attorney determines that the subpoena is lawful and enforceable, you have to turn over the documents requested. This can be quite labor- intensive, but you must comply and polite cooperation can only help you in establishing the tone for whatever next steps will be taken.

5. Make copies of every document and electronic file you turnover to MFCU PRIOR to turning them over.

6. DO NOT provide MFCU with anything more than what they have requested in the subpoena- not one document more. And remember, they are only entitled to the records of Medicaid members.

7. Neither you nor your employees are required to speak with the investigator unless individually subpoenaed. Have an attorney present during any interviews.

8. Don’t panic. While a MFCU subpoena should be taken seriously, in Georgia, in 2014, there were 410 Medicaid Fraud Investigations. Of those investigations, only 4 led to indictment.1 The math indicates that MFCU investigates often but indicts with much less frequency.

If you are receive a subpoena from the Georgia Medicaid Fraud Unit, Jeyaram & Associates can help. Contact Kimberly Sheridan at ksheridan@Jeylaw.com or 678.325.3872.

Court Finds DCH’s Handling of Mass Reprocessing “Inconsistent and Misleading”

DCHIn a decision last week, the Office of State Administrative Hearings (OSAH) reversed the Department of Community Health’s (DCH) denial of a Request for Administrative Review by a group of Children Intervention Services (“CIS”) providers. The CIS providers had requested a review of recoupment actions that stemmed from two 2014 Mass Reprocessings by the Department, one involving NCCI edits that included claims dating back to 2010.  The Department argued that the providers missed the 30 day deadline to file a Request for Administrative Review.

Attorney Kimberly Sheridan of Jeyaram & Associates represented the group of CIS providers in the administrative hearing and argued that the providers should be granted a review because they followed all the instructions specific to the mass reprocessing posted by the Department in several banner messages and emails, as well as in-person conversations. Through the banner and email message instructions, the Department departed from its standard deadlines in its policy manuals.  The Court found that the Department’s position was “illogical and wholly unfair,” and that its instructions to the providers after the mass reprocessing were “inconsistent and misleading.” The Court also said the providers had justifiably relied on these instructions and could not now be penalized for their reliance.

At this time, the Department has not made it known if it will appeal the decision.

If you are a provider subject to a recoupment and need help, or if you need to appeal DCH’s decisions, Jeyaram & Associates has extensive experience and success with these cases. Contact Kimberly Sheridan at ksheridan@Jeylaw.com or 678.325.3872.

Healthcare Providers Need To Examine Billing Practices To Ensure Compliance

healthcare fraudLast month, the Department of Health and Human Services released its annual report for the Health Care Fraud and Abuse Control Program. According to the report, in 2014 more than 900 new criminal health care fraud investigations were opened by the Department of Justice. There was a slight increase in the number of criminal cases and convictions from last year, with 496 cases and 735 defendants convicted of criminal health care fraud. Civil cases alone resulted in $2.3 Billion in settlements and judgments.

The government’s press release reiterated that detecting and eliminating fraud and abuse continues to be a top priority. The government attributes its high recoveries to a change in strategy which uses real-time data analysis to detect fraud more quickly. The Centers for Medicare and Medicaid currently uses advanced analytics on Medicare fee-for-service claims. The goal of this is to detect aberrant and suspicious billing patterns which would then trigger an investigation or enforcement action by the government.

Now is the time to for Medicare and Medicaid providers to review their billing practices and financial relationships to ensure that they are compliant with federal laws. Charges against providers were made under the False Claims Act, as well as Anti-Kickback Statute, the Stark Law (Physician Self-Referral Law), and other federal laws.

The full annual report is available at www.oig.hhs.gov/publications/hcfac.asp.

If you have any questions about the legality of your billing practices or financial relationships, please contact DJ Jeyaram at DJ@jeylaw.com or Danielle Hildebrand at dhildebrand@jeylaw.com.

 

DCH Adopts New Rules for Rural Hospitals

DCH Rural HospitalsA potential solution to rural hospitals’ funding challenges

A few months ago, the Georgia Board of Community Health (DCH) adopted new rules that allow rural hospitals to reduce the scope of services provided and operate as a rural free standing emergency department. This provides an alternative to closing down operations for rural hospitals which may be struggling with funding operations on a full service scale. It also provides an opportunity for rural hospitals that recently ceased operations (and have either maintained a current DCH license or their license expired within the last 12 months) to re-open their doors.

Hospitals interested in pursuing this course of action must meet certain conditions including:

  1. The hospital must be located in a rural county (population under 35,000);
  2. The hospital must be located within 35 miles of a licensed general hospital;
  3. The hospital must be open 24 hours a day, 7 days a week; and
  4. The hospital must provide non-elective emergency treatment for periods continuing less than 24 hours.

Like the general and specialized hospitals, the rural free standing emergency department must obtain a permit to operate, as well as a specific license to operate as a rural free standing emergency department.

The new rules also require that specific operational elements be put in place. For example, a free standing emergency department must attempt to enter into an agreement with the surrounding hospitals and provide in that agreement a mechanism for patient transfer.

One controversial requirement set forth in the new rules is the requirement to provide certain medical services to patients such as medical screenings and treatment to stabilize without considering the individual’s ability to pay. Jimmy Lewis, CEO of the Georgia Rural Hospital trade organization, has stated that this rule may be unfair to the new stand-alone EDs because the transferee hospital “most often objects if the patient is a no-pay thus keeping the patient in the ED beyond licensure capability.” See http://www.hometownhealthonline.com/blog.

Furthermore, rural free standing EDs will have to bill Medicare and Medicaid at a lower provider rate rather than the current hospital rates. As of May 20, 2014, the application to become a rural free standing emergency department was made available by DCH. See http://dch.georgia.gov/documents/rural-freestanding-emergency-department- application-packet-5192014. According to DCH’s instructions, hospitals should submit a completed application along with supporting documentation at least 6 weeks prior to the planned opening date of the facility. If you are a hospital considering taking this step, the following items should be obtainedand/or completed to support your application:

  1. evidence that the hospital’s Certificate of Need authorization is still active;
  2. an application for a permit;
  3. notarized affidavits regarding ownership identification;
  4. a written request to conduct an initial licensure survey; and
  5. a statement from the local fire safety authority stating that an inspection has been made of the premises and that the state and local fire safety requirements have been met and the facility is approved for occupancy.

If you have any questions or would like legal assistance,  please contact Danielle Hildebrand at dhildebrand@jeylaw.com.

Healthcare Fraud: What To Do If You’re Audited

healthcare fraudOver the past several years, we’ve seen a trend in increased investigations and enforcement of healthcare fraud. This trend continued in 2013 and is continuing in 2014. Nationally, in 2013, the United States Attorney’s Office investigated 1,013 new criminal matters involving healthcare fraud and filed charges in 480 of these cases. In Georgia, in 2013, there were 336 Medicaid Fraud Investigations.  Of those investigations, only 13 led to indictment; but of those 13 indicted, 10 resulted in convictions. Given this trend, if you are a healthcare provider, it is vital to know what to do if you find yourself being investigated for fraud.   Following are some important  steps to follow if the government shows up at your door with a search warrant: —  Immediately call your attorney. Do not pass go. Call.  It is crucial to call an attorney who has experience in both health care law and in defense. —  Ask for identification of the people at your door. Review the credentials or business card. Write down the name and contact information. —  Do NOT destroy, alter or remove any documents. —  Be polite. Remain calm. Be cooperative. Say please and thank you. —  Ask for a copy of the search warrant and any affidavit filed in support of the warrant. —  Ask what crime and conduct is under investigation. —  Request that no interviews be conducted until your attorney arrives. —  Immediately advise all supervisory personnel of the search and that they are to wait for the attorney to arrive before answering any questions. —  Compile an inventory of all the documents being removed and ask if you can copy all the documents being seized – this includes making a back up disk for all computer files —  Make a record of everything said by an investigating officer. If you cannot do this during the search, write up your recollection after the search —  If possible, videotape or photograph the search —  DO NOT speak with the press Jeyaram & Associates has helped numerous organizations facing charges of healthcare fraud. To learn more or for assistance, contact Kimberly Sheridan at ksheridan@jeylaw.com

More Providers Audited for HIPAA Compliance – Are You Ready?

The number of entities audited for HIPAA compliance has increased. Are you prepared if OCR comes knocking on your door?

Under the HITECH Act, the Department of Health and Human Services is required to conduct periodic audits to ensure that entities are complying with HIPAA. Phase 1 audits concluded in 2012. Now OCR has released information on Phase 2 and more audits are set to begin around October of this year.

HIPAA Covered Entities and Business Associates selected for audits will be asked to quickly produce policies and procedures, executed business associate agreements and other HIPAA-related documentation so that it can be reviewed by OCR to determine if any deficiencies exist. OCR has noted that it intends to focus on the deficiencies identified through Phase 1 audits. These include lack of proper policies and procedures, presence of security risks, failing to conduct a security risk assessment, and failing to have business associate agreements on file.

Small providers should also take note—according to OCR, small providers tended to have more deficiencies than larger providers. OCR has also revealed other details regarding the 2nd audits, OCR will be conducting the audits internally. They have also increased the number of entities to be audited to 400 entities, 350 of which will be Covered Entities and the remaining 50 will be Business Associates. Some of the audits will focus on the Privacy Rule, others on the Breach Notification Rule, and the remainder will focus on compliance with the Security Rule.

If your organization is a covered entity or business associate under HIPAA you want to make sure that you are prepared in case you are one of the entities subject to an audit this Fall. Steps you will want to take include:

  • Have all your HIPAA policies and procedure updated and on file
  • Make sure all your Business Associate Agreements reflect the 2013 changes to the HIPAA Rules and have those agreements properly executed and on file
  • Conduct a security risk assessment if you have not already and ensure that security risks are addressed
  • Engage an experienced healthcare law firm to proactively help you review the aforementioned items to help you identify any potential deficiencies

To view OCR’s Presentation on Phase 2 Audits, click here: OCR Audits Phase 2 by Linda Sanches, Senior Advisor for Health Information 

For more information contact DJ Jeyaram at dj@jeylaw.com or Danielle Hildebrand at dhildebrand@jeylaw.com 

Medicare Trustees Report Includes Promising News for Healthcare Providers and Beneficiaries

Healthcare Cost SavingsThe Medicare Trustees recently released their 2013 Report, and it contained some promising news for the Medicare Hospital Insurance Trust Fund.  The Fund will be able to cover its obligations until 2026, which is an extension of last year’s projection by two years.

The increased solvency of the Trust Fund is good news for both healthcare providers and beneficiaries because it points to the positive financial impacts of current efforts to reduce healthcare spending.  Additional good news for beneficiaries included a preliminary estimate of the Part B premium for 2014, which is unchanged from 2013.

The CMS Administrator attributes the increased solvency of the Trust Fund to the Affordable Care Act; however, the Report cites numerous contributing factors, such as lower 2012 Part A spending and potentially lower Medicare Advantage costs.

Opponents of health care reform stress that crediting the Affordable Care Act for the increase in solvency may be premature because the numbers depend on a range of factors, none of which are fully predictable at this stage of implementation.

The actual impact of the Affordable Care Act provisions remains to be seen as does the implications to the Trust Fund.  Providers should stay informed about the potential financial impacts of healthcare reform as provisions are implemented in the coming months.

DCH and GaHIN Launch GeorgiaDirect to Automate Healthcare Referrals

GeorgiaDirectThis week,  the Health Information Technology Division (Health IT) of the Georgia Department of Community Health and the Georgia Health Information Network Inc. (GaHIN) launched GeorgiDirect, a free, secure e-mail, and easy-to use messaging service to automate health care referrals between patients, physicians, hospitals, laboratories and other authorized healthcare stakeholders.

The goal of GeorgiaDirect is to “better serve patients and increase efficiencies in health care across Georgia,” said former DCH Commission David A. Cook. Cook also stated, “This network – which should not be confused with a health insurance exchange – will literally transform health care in the years to come, delivering on our goal of a healthy Georgia through greater coordination of care, delivering better health outcomes, increasing administrative efficiencies and more. Additionally, privacy of health information is paramount to the department, and GeorgiaDirect is much more secure for the transmission of information than current methods.”

The more than 2,100 healthcare providers across Georgia who have registered for the free service are able transmit patient health information between authorized providers for a more efficient and secure exchange of patient data versus the current system of faxes, mail, couriers and telephones.

According to a press release by DCH, “GeorgiaDirect was developed using national standards from the Office of the National Coordinator for Health Information Technology’s Direct Project.” GeorgiaDirect also enables healthcare providers to connect with other states, including Alabama, Florida, Hawaii, Mississippi and Wisconsin. The goal is for GeorgiaDirect to expand and include more states so providers can obtain medical records when patients move to another part the country.

To learn more about GeorgiaDirect, you can watch this video or visit the GeorgiaDirect Web site.

 

 

Office of Inspector General’s Advisory Could Affect Payment to All Healthcare Providers

OFFICE OF INSPECTOR GENERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES SEALOn May 8, 2013, the Office of Inspector General (“OIG”) issued an Advisory Bulletin pertaining to exclusion and excluded healthcare providers.  Because exclusion could potentially affect every provider, it is important to learn more details about the designation.

If the OIG excludes a provider, then no Federal health care program payments may be made for items or services furnished by the excluded provider or prescribed or directed by the excluded provider.  If the excluded provider changes from one health care profession to another, the exclusion will still be in effect.

In addition, the prohibition is not limited to direct patient care; it also includes services such as review of treatment plans, preparation of surgical trays, or services provided related to filling prescriptions.  Transportation services provided by excluded individuals are also prohibited.

Finally, according to the Bulletin, excluded individuals are prohibited from providing any administrative or management services, even if they are not separately billable.

There are severe consequences if an excluded individual submits a claim or causes a claim to be submitted to a Federal health care program.  A civil monetary penalty of $10,000 per claimed item or service may be imposed.  In addition, any potential for reinstatement to Federal health care programs may be jeopardized.  Criminal penalties may also be imposed.

Civil monetary penalties may be imposed against providers that employ or enter into contracts with excluded individuals to provide items or services payable by a Federal health care program.  Further, there may be civil monetary penalties for health maintenance organizations that contract with or employ excluded individuals.  This does not mean that entities cannot hire or contract with excluded individuals at all.

If the services or items provided are not paid for by a Federal health care program, then there isn’t a prohibition against hiring or contracting with an excluded individual.  If the excluded individual only provides services or items to patients that are not covered by a Federal health care program, then there is no prohibition.

All individuals and entities should search the OIG program exclusion information that is available on the OIG Web site prior to employing or contracting with any provider of health care services and keep documentation of the search. 

In addition, individuals and entities should proactively monitor the exclusions database to ensure that none of its current employees or contractors is listed as an excluded provider.  Due diligence will help mitigate the risk of civil monetary penalties in the future.

ICD-10 Deadline for Healthcare Providers Fast Approaching – Jeyaram & Associates Can Help

ICD DeadlineThe October 1, 2014 deadline to switch to the ICD-10 codes set is less than five months away. This mandatory requirement replaces the ICD-9 codes set used to report medical diagnoses and inpatient procedures.

All healthcare providers covered by the Health Insurance Portability Accountability Act (HIPAA) must adhere to this new requirement. Please note, the change to ICD-10 does not affect CPT coding for outpatient procedures and physician services.

All healthcare practices currently using the ICD-9 codes must transition to the new codes. The transition to the new codes set will take several months. If you have not started the transition, we strongly urge to begin now. 

ICD consists of two parts:

1. ICD-10-CM for diagnosis coding
2. ICD-10-PCS for inpatient procedure coding 

ICD-10-CM is for use in all U.S. health care settings. Diagnosis coding under ICD-10-CM uses 3 to 7 digits instead of the 3 to 5 digits used with ICD-9-CM, but the format of the code sets is similar.

ICD-10-PCS is for use in U.S. inpatient hospital settings only. ICD-10­ PCS uses 7 alphanumeric digits instead of the 3 or 4 numeric digits used under ICD-9-CM procedure coding. Coding under ICD-10-PCS is much more specific and substantially different from ICD-9-CM procedure coding.

The Centers for Medicare and Medicaid Web site provides detailed check lists to help healthcare providers make the transition. However, if you have questions or need help with the transition to the ICD-10 codes set, Jeyaram & Associates can help. Contact DJ Jeyaram at DJ@Jeylaw.com or 678-708-4705.