Georgia's Trusted Healthcare
& Medical Provider Attorneys

GA’s City & Urban Hospitals Will Be Impacted By The American Health Care Act

Emergency Sign Healthcare LawPassage of the American Health Care Act in its current or proposed form with significant cuts to Medicaid and Medicare will not only impact rural hospitals and facilities, but city and urban hospitals as well. Here’s how.

Steep cuts to Medicaid and Medicare will result in many of Georgia’s 95 health clinics being unable to keep their doors open. These facilities serve a population that is often primarily at the poverty level, the elderly, unemployed and uninsured.

As a result, city and urban facilities could see a significant increase in uninsured and under insured patients as these patients do not have access to any other options for healthcare.

City & Urban Hospitals Need To Prepare for New Challenges

Hospitals will need to:

• Increase medical and administrative staffing to handle the influx of additional patients, especially for patients that may utilize ER services in place of what would have been primary care services prior to the cuts.

• Absorb the costs of an increase in patients and staffing as there will be little or no government money (or at best temporary money) to assist (Medicaid or Medicare).

• Review internal policies on how to handle additional patients and billing procedures for patients who cannot afford medical care.

It’s imperative for all hospitals to begin reviewing policies and procedures before an influx of patients occurs and the potential for lawsuits arises.

Experienced Healthcare Attorneys

Jeyaram & Associates has more than 50 years legal healthcare experience and has helped numerous city and urban hospitals conduct internal audits, write policies and procedures and ensure compliance with state and federal laws.

Contact Us

Free initial consults. Contact DJ at DJ@JeyLaw.com or 678.325.3872.

60 Day Overpayment Questions Answered – CMS Releases Final Rule

Calendar CMSThe Centers for Medicare & Medicaid Services (CMS) published the Final 60 Day Overpayment Rule on Thursday, four years after the initial rule was released.

This Final Rule clarifies application of the 60-day reporting requirements instituted pursuant to the Affordable Care Act. Under the 60-day Overpayment Rule Medicare providers must report and return overpayments within 60 days of when an overpayment is identified (or the cost report due date, when applicable).

Prior to the publication of the Final Rule, there was much speculation, and interpretation by courts as to how to define “Identification.” This definition is important because when an overpayment has been “identified” as provided in the law, the 60 day clock starts ticking and the deadline for reporting and repayment is set.

Key Clarifications On Overpayment

The Final Rule provides a key addition in how “identification” is defined by adding that an overpayment is “identified” after such overpayment has been quantified. The Rule also requires that providers exercise “reasonable diligence,” which according to CMS requires “both proactive compliance activities to monitor claims and reactive investigative activities undertaken in response to receiving credible information about a potential overpayment.”

The Final Rule further clarifies that providers have up to 6 months to investigate a possible billing error before the 60-days start to run. This replaces an indefinite requirement set forth in the Proposed Rule that providers act with “all deliberate speed.”

Another noteworthy change in the Final Rule is the stated “look-back period.” In the Proposed Rule, overpayments had to be reported and returned if a person identified the overpayment within ten years of the date the overpayment was received. However, the Final Rule reduces this time frame to six years. This shortened “look-back period” is likely to reduce the administrative burden of complying with the law.

To review the Final Rule in its entirety it is available at here

Need Help?

If you have questions about the overpayment rules or need assistance, we can help you. Please contact Danielle Hildebrand at dhildebrand@jeylaw.com or 678.325.3872.

 

New Medicare Prior Authorization Process For Durable Medical Equipment In 2 Weeks

DMEStarting February 29, 2016, certain Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) must go through a prior authorization process in order to be approved for Medicare payment.

Pursuant to a Final Rule published December 30th, the Centers for Medicare and Medicaid Services (CMS) will soon require that DMEPOS items included on a Required Prior Authorization List (RPA List) undergo a review prior to being supplied to beneficiaries. The RPA List is to be updated on an annual basis and published in the Federal Register.

Providers are to initiate the process by submitting all relevant documentation for review by CMS or its contractors. After the review, CMS will provide a decision based on the documentation submitted. A claim submitted with a “provisional affirmation” decision will be paid so long as all other requirements are met. A claim submitted with a “non-affirmation” decision or a claim for items that did not undergo the mandatory prior authorization process will be denied. If a provider receives a “non-affirmation” decisions, a prior authorization request can be resubmitted.

CMS has stated that Medicare will make a reasonable effort to render an initial prior authorization determination within 10 business days. An expedited review process will also be available in certain circumstances.

The commentary published with the Final Rule states that a denial of prior authorization for DMEPOS coverage is not an appealable decision because it is not an initial determination.

CMS plans to publish sub-regulatory guidance to implement the Rule.

If you would like to review the Final Rule it is available here.

If you have any questions about the Final Rule or need assistance navigating through the prior authorization process please contact Danielle Hildebrand at dhildebrand@jeylaw.com or 678.325.3872.

Are You Compliant? HHS Issues Guidance & Likely To Continue HIPAA Compliance Scrutiny

HIPAA AuditThe Department of Health and Human Services (HHS) started the year by publishing new HIPAA guidance with respect to patient access to medical records.

While the recent HHS guidance does not add anything new to the regulations, it serves as a reminder to providers of certain provisions in the law. The guidance is intended as a tool to aid individuals in exercising their rights to access their medical records and to help providers ensure HIPAA compliance.

HHS highlighted certain provisions in the HIPAA regulations including provider obligations to respond to a request from a patient within 30 days and provide PHI in an electronic format if requested (assuming the electronic format requested can be readily produced by the provider).

The guidance also reminds providers that covered entities are not required to provide every single record about an individual even if the individual asks. Certain exceptions to a patient’s right to access include:

  • Patients do not have the right to access to information that is not used to make decisions about that individual. For example, certain quality assessment or improvement records, patient safety activity records, or business planning, development and management records that are used for business decisions do not have to be provided to an individual.
  • Individuals do not have a right to access psychotherapy notes that a mental health professional maintains separately from the individual’s medical record and that document or analyze the contents of a counseling session with the individual.
  • Providers can deny access to certain records if a licensed health care professional determines in the exercise of professional judgment that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person.
  • Patients do not have a right to access certain records compiled in reasonable anticipation of, or for use in, a legal proceeding.

Additionally, providers do not have to create new information, such as explanatory materials or analyses, that does not already exist in the record.

The government’s emphasis on HIPAA is expected to continue with pending audits of covered entities and business associates likely to take place this quarter. Now is the time for healthcare providers to review their policies to ensure that they are complying with the HIPAA regulations.

If you would like to review the HHS guidance it is available at http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html.

If you need help ensuring HIPAA compliance, please contact Danielle Hildebrand at dhildebrand@jeylaw.com or 678.325.3872.

 

 

Jonathan Anderson Joins Jeyaram & Associates

Jonathan AndersonPlease help us welcome Jonathan Anderson to our legal team!

Mr. Anderson is an associate attorney specializing in healthcare law. Prior to joining Jeyaram & Associates, Mr. Anderson worked as a legal intern on the Disability Integration Project for the Atlanta Legal Aid Society.

Mr. Anderson provided legal support to individuals with disabilities to help them remain in or move back the community rather than live in institutions. He also worked extensively with state Medicaid waivers including appealing the State’s decisions to terminate benefits of disabled individuals.

Mr. Anderson also served as an intern for the Health Law Partnership (HeLP) which serves clients whom meet certain income requirements and have a treatment relationship with Children’s Healthcare of Atlanta (CHOA). He conducted interviews, drafted briefs for Supplemental Security Insurance, and researched how changes in Supplemental Security Insurance regulations affected HeLP clients.

Legal Expertise

  • Medicaid Waivers
  • Medicare
  • Mediation

Jonathan can be reached at janderson@jeylaw.com.

Credit Cards and Special Needs Trusts: How They Can Work Together

Credit Card Care A special needs trust is designed to supplement the income of an individual with special needs so that she can maintain access to government benefits without necessarily sacrificing her standard of living.

But government benefits like Supplemental Security Income (SSI) and Medicaid prohibit the trustee of a special needs trust from simply giving a beneficiary cash to pay for goods and services herself. Instead, a trustee must pay vendors directly.

Credit cards offer a way for the trustee of a special needs trust to avoid giving a beneficiary cash while at the same time not serving as the beneficiary’s designated shopper.

Because a credit card is technically a loan from the credit card company to the cardholder, the goods or services purchased by a trust beneficiary using a card are not income and do not affect his access to government benefits. If the special needs trust then pays off the balance of a beneficiary’s credit card bill, the payment is likewise not considered income.

Because of this special treatment, an SSI or Medicaid beneficiary who is capable of managing her own affairs can use a credit card to make small purchases, and a trustee of a special needs trust need not micromanage every transaction.

Several very important rules apply to the use of credit cards, however.

  • First, a trustee cannot pay for any charges on the credit card that are for food or shelter.
  • Second, a trustee of a first-party special needs trust that was established with the beneficiary’s own money cannot pay for any credit card charges that a beneficiary may have incurred paying for goods or services that were used by other people because first-party trusts can only be used for the sole benefit of the person with special needs.
  • Third, a trustee should never give a credit card to a beneficiary who is incapable of managing her own financial affairs, or who is involved with people who will take advantage of her.
  • Finally, the credit card rules apply only to credit cards; debit cards are considered cash and should never be used.

Since the rules governing credit cards are complicated, it is imperative that you discuss the ongoing use of credit cards with a special needs planner prior to turning a card over to a beneficiary or paying a beneficiary’s bill.

Please contact DJ Jeyaram at DJ@Jeylaw.com or 678.325.3872 for assistance.

 

Medicare & Medicaid Deadline For Overpayment Clarified

60 Days Medicaid and Medicare RuleFederal Court Finds Sixty Day Rule Deadline Begins to Run When Put on Notice of Potential Overpayments

When the Affordable Care Act (ACA) was passed, a new requirement for reporting overpayments was created. This new obligation, often referred to as the ‘Sixty Day Rule’ requires providers who receive an overpayment of Medicare or Medicaid funds to “report and return” the overpayment to the government.

According to the statute, an overpayment must be reported and returned within sixty days of the “date on which the overpayment was identified.” Failing to do so is a violation of the False Claims Act.

Although Centers for Medicare and Medicaid Services (CMS) has provided some guidance on when an overpayment is “identified” within the context of Medicare, now a New York Federal Court has weighed in on the meaning and application of the ACA sixty-day rule as it applies to Medicaid.

In a case before a New York Federal Court, the U.S. Department of Justice asserted that a hospital improperly billed Medicaid in 2009 and 2010 and violated the FCA by delaying the return of overpayments. Such overpayments were the result of a billing system software glitch. The case was brought with the assistance of a former employee who had investigated the issue. Such employee had provided to hospital administrators a list of around 900 claims that were likely affected by the glitch which was subsequently ignored by the hospital.

The Court had to decide how to define the key term in the statute – “identified.” In the case, the former employee had not conclusively proven the identity of any overpayments. As it turned out, hundreds of the claims he listed had not actually been overpaid. However, he did recognize nearly five hundred claims that did in fact turn out to be overpaid as worthy of attention.

After looking at the legislative history and purpose, the Court concluded that the 60-day clock begins ticking when a provider is put on notice of a potential overpayment, rather than when the overpayment is conclusively ascertained. This holding is in line with CMS’s patchwork of guidance for Medicare overpayments.

As a result, providers facing a potential overpayment must take action immediately to meet the 60 day deadline and avoid False Claims liability. Every health care practice should have a protocol in place to ensure that possible overpayments are investigated in a timely manner and such investigation is documented appropriately. Failure to report overpayments within that time frame could subject providers to huge penalties.  

If you have any questions about the 60-day rule or need assistance with investigating and reporting a potential overpayment contact Danielle Hildebrand at dhildebrand@jeylaw.com.

Free Introductory Home Health Visits Don’t Violate Anti-Kickback Law

Anti-Kickback StatuteInspector General: No Kickback violation for free home health introductory visits

The Office of the Inspector General issued an advisory opinion clearing the way for home health providers who provide “introductory” home visits to individuals who eventually become their clients. The OIG advised that home healthcare providers who contact  patients after being selected by that patient and provide information to those patients about their services, do not violate the federal Anti-Kickback statute.

The Federal Anti-Kickback law makes it a criminal offense to knowingly and willfully offer, pay, solicit or receive anything of value in exchange for inducing or rewarding referrals of items or services reimbursable by a Federal health program

The OIG’s office stated that the “primary purpose of the Introductory Visit is to facilitate the patient’s transition to home health services in an effort to increase compliance with the post-acute treatment plan.” In addition, the OIG”s noted that during the “Introductory” visit, the health care provider ‘”does not provide any type of  any federally reimbursable diagnostic or therapeutic services during the Introductory Visits,” which occur where a patient is receiving care whether it’s a physician’s office, hospital or personal home. Further, the home health provider is not involved in any way in the patient’s selection process and “Introductory Visits” do not provide any actual or economic benefit to the patients. .

It’s important to reiterate, that healthcare providers should not contact the patient prior to receiving notification from the  patient that they have been selected nor can the “Introductory Visits” be a covered service under Medicare or Medicaid, or reimbursed by third-party payors. These actions could violate the Anti-Kickback statute.

To read the full opinion, click here.

For more information, please contact Kimberly Sheridan at 678-708-4703.

Physicians Need To Be Prepared For Increased Medicare & Medicaid Fraud Scrutiny

doctor-in-handcuffs-caption-1HHS increases resources to root out and penalize fraud:  Review existing financial arrangements NOW

On June 30th the federal Department of Health and Human Services Office of the Inspector General announced that it has created a specialized unit comprised of attorneys focused on Medicare and Medicaid fraud. This announcement comes on the heels of the OIG Special Fraud Alert reminding physicians of anti-kickback liability for illegal compensation related to arrangements with healthcare institutions.

Physicians should be prepared for increased scrutiny and an uptick in enforcement actions for kickback violations. According to OIG official Lisa Re, the new unit will be targeting kickback cases and will be going after not only the individual or organization paying the kickbacks but also the recipient of the kickbacks, e.g., the physicians.

Physicians who have financial arrangements that violate the Federal Anti-Kickback Statute would not only be subject to fines in the form of Civil Money Penalties, but could also be excluded from the Medicare and Medicaid programs.

Now is the time for physicians to review existing or proposed financial arrangements to ensure that they do not pose any risk of violating the Anti-Kickback Statute.

If you have any questions about a particular arrangement our attorneys can help. Please call Danielle Hildebrand or DJ Jeyaram at 678-325-3872 for legal counsel.

Increase In Medicare Part D Fraud Investigations

medicare-fraud1On June 18th, the U.S. Department of Health and Human Services announced a nationwide sweep by the Medicare Fraud Strike Force in 17 districts. This sweep represents the largest criminal healthcare fraud takedown in the history of the Department of Justice.

The investigations led to charges against 243 individuals, including 46 doctors and 197 other medical personnel. These individual are charged with participating in Medicare fraud schemes, including prescription drug fraud, totaling approximately $712 million in false billings.

On the heels of this announcement, the Office of Inspector General issued two new reports citing its findings of numerous nationwide violations of Medicare part D, Medicare’s drug benefit program. The reports show that more than 1,400 pharmacies submitted questionable billings for opioid drugs and also point to questionable billing practices in 1,432 retail pharmacies. The OIG is calling for more action from the Centers for Medicare and Medicaid Services to implement a greater number of its recommendations for fighting fraud and abuse in Part D.

The timing of these reports signals that the prescription drug benefit in Medicare part D will continue to be on the radar for investigation and enforcement actions.

To best protect against facing investigation for violations of federal and state healthcare regulations, providers must create, consistently practice and enforce strong internal compliance programs. If you need assistance with developing a compliance program or have any questions about healthcare fraud, please call or email Kimberly Sheridan at 678-708-4702.

 

OIG Reports

https://oig.hhs.gov/oei/reports/oei-02-15-00190.pdf

https://oig.hhs.gov/oei/reports/oei-03-15-00180.pdf