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DJ Jeyaram Quoted in Leading National Medicaid Publication

Screen shot 2016-08-26 at 2.03.18 PMDJ was quoted in the national “Part B News” publication – a leading industry information source for healthcare practice managers and physicians.

Check out DJ’s quotes below in the article: “Negotiate For Patient Record Access When Rival Practices Close:”

Negotiate For Patient Record Access When Rival Practices Close

Increase your patient census and practice revenue when a nearby practice closes by striking a deal for limited access to patient records without paying for the privilege.

In fact, in some cases, the closing practice may pay you.

One of the valuable tangible assets of a practice sale is the patient records that come with it. While the purchaser can’t under HIPAA treat these records as their own until the patients affirm via signed waivers that they want to adopt the new provider, the fact that the buyer is holding the records provides an enormous incentive for them to do so.

It isn’t necessary for the buyer to purchase the entire assets of the practice either, notes Patrick Stanley, an attorney with Comitz | Beethe in Scottsdale, Ariz. Patient records may be included in a limited asset purchase agreement. As with a complete purchase, the retiring practice would then give patients notice and direct them to the purchaser to retrieve their records or, if they choose, continue their care with the new practice. Remember that the patients would have to sign on and have the final say. Note: Laws on the disposition of medical records may vary by state.

How to take custody of records

Vasilios “Bill” Kalogredis, chairman of the health law department of Lamb McErlane in West Chester, Pa., says he has negotiated several arrangements between practices that were closing down and practices that wanted to pick up their patients.

“I see this a lot,” says Kalogredis. “A solo practitioner is retiring and he can’t sell the practice, or he’s leaving one state for another. Hospitals and other practices may not want to buy, but they’re interested in the patients.”

Propose a “custodial” arrangement if buying the practice or part of it is too rich for your blood. In that case, your practice just takes responsibility for the safe- keeping of the other practice’s records. Under such an agreement, when the retiring practice gives notice to its patients, it also would inform them that they can retrieve their records from you and that you also are available to provide continuity of care.

The custodial agreement also should address the length of time that the records will be retained, says D.J. Jeyaram, owner and health care attorney at Jeyaram & Associates in Atlanta.

Consult your legal counsel and malpractice insurance carrier before entering into an agreement to make sure you’re handling things properly from the legal and ethical perspectives, Kalogredis suggests.

Some practices may even receive a fee for accepting this responsibility. But note that while receiving a fee for the storage of medical records would be kosher, an arrangement whereby you pay a fee for the right to store the records “could be seen as remuneration for referrals under the federal anti-kickback statute or its state equivalents,” says Jeyaram.

Mind HIPAA rules

Note that in a custodial arrangement, you would be only holding the patient records — they’re not really your records unless and until the patient releases them to you. “HIPAA only allows for the exchange of protected health information (PHI) without a written release if the transfer is between current or prior health care providers for the purposes of providing treatment,” says Jeyaram.

In this circumstance, under HIPAA, you would be a business associate (BA) of the transferring practice that remains the covered entity, says Jeyaram, and you should execute a business associate agreement (BAA) (PBN 7/11/16).

The BAA, which ensures HIPAA compliance in the transfer and storage of records, should be referenced in the custody agreement, Jeyaram says.
Note that though it varies by state, responsibility for retention of medical records is usually seven years or longer; be prepared to follow through on that if you accept responsibility.

Remember: A custodial arrangement gives you a good shot at inheriting these patients, but it’s not “exclusive” — in some states and under some contracts, other providers from the closed-down practice may take their patient lists with them and reach out to these patients too. In the end, it’s always the patient’s choice (PBN 5/2/16). — Roy Edroso (redroso@decisionhealth.com)

Visit http://pbn.decisionhealth.com/ to learn more.CompressedPartBNewsNegotiatePatientRecords8.16-min.pdf”CompressedPartBNewsNegotiatePatientRecords8.16-min.pdf”

Work In Healthcare? You Could Face Steep Fines Or Jail Time For Healthcare Fraud

Healthcare FraudNewly Released Health Care Fraud Report shows that HHS/DOJ Enforcement Efforts Remain Strong

The Department of Health and Human Services (HHS) and the Department of Justice (DOJ) recently released their annual joint report outlining the results of their healthcare fraud enforcement efforts throughout FY 2015.

The Report shows that during that period the DOJ opened 983 new criminal health care fraud investigations and over 800 new civil health care fraud investigations. Additionally, HHS investigations resulted in 800 criminal actions against individuals or entities that engaged in crimes related to Medicare and Medicaid, and 667 civil actions, CMP settlements, and administrative recoveries related to provider self-disclosure matters.

Over the course of the year, the government won or negotiated over $1.9 billion in health care fraud judgment and settlements.

High Number Of Fraud Convictions

The Report also highlights the activity of the Medicare Fraud Strike Force whose efforts resulted in over 300 guilty pleas and 48 defendant convictions throughout the year, and over 260 defendants going to jail. The Report summarizes several successful enforcement actions by the Strike Force including:

  • 2 physicians owners of a mental health clinic were each sentenced to 10+ years in prison for certifying that certain Medicare patients qualified for partial hospitalization services when they did not and paying kickbacks to group home operators and patient recruiters in exchange for referring Medicare patients;
  • An owner of a DME company was sentenced to 84 months in prison for paying kickbacks to medical clinics for fraudulent prescriptions for DME which the patients did not need; and
  • 2 home health directors were sentenced to over 10 years in prison and ordered to pay $18.6 million in restitution after pleading guilty to conspiracy to commit fraud and payment of kickbacks in exchange for Medicare referrals and home health service prescriptions.

You Could Personally Be Fined Or Go To Jail

The government is clearly cracking down and the healthcare industry should heed the warning. The Report indicates that any individual in the healthcare realm, whether physician or hospital CFO, could incur steep fines, penalties and even serve jail time for violating the Federal Anti-Kickback Statute, Stark Law and False Claims Act.

Jeyaram & Associates can help you assess and minimize your risk under these healthcare fraud and abuse laws. If you have any questions please contact Danielle Hildebrand at Dhildebrand@jeylaw.com or 678.325.3872.

To review the Report it is available here.

Avoid Being A Target Of HIPAA Audits | Here’s How

HIPAA AuditPhase 2 OCR HIPAA Audits Are Here – What Providers Should Do to Prepare

The Office of Civil Rights (OCR) has taken the first step in the next round of HIPAA audits.

OCR has begun to send out surveys in order to collect information from providers, health plans, and clearinghouses in preparation for phase 2 of their HIPAA audits. From the hundreds of entities receiving surveys, OCR will select over 200 providers and over 100 health plans to be audited.

It is more important than ever to make sure that you have complied with the HIPAA Rules. Here are the top 3 areas every provider should address:

1. When was the last time you conducted a Risk Assessment? If it has been more than a year or two, you should conduct a comprehensive Risk Assessment now.

If you are a small to medium sized office you can take advantage of HHS’s security risk assessment tool available on their website: HHS.gov SRA Tool

2. Have you recently reviewed your HIPAA policies and procedures to ensure that they are up to date and are being followed? There are three main areas that need to be addressed in your policies: Security Standards, Privacy Standards and Breach Notification Standards.

    • Security Standards – focus on how you keep Protected Health Information (PHI) secure, whether it is stored and/transmitted electronically or in some other form. Your practice must have appropriate safeguards in place (for example, requiring the use of secure passwords to access electronic health records and encrypting all devices that might contain e-PHI).
    • Privacy Standards – do you conduct periodic trainings for personnel regarding privacy practices? Do you have records that such trainings have been completed by all personnel? Is your Notice of Privacy Practices current and made available to your patients?
    • Breach Notification Standards – do you have a policy in place that outlines the steps for identifying and reporting a breach? Such a policy should address steps to take to investigate and contain the problem, as well as a means for identifying how many people were affected, who those individuals are, and how to send out breach notices. Keep in mind that under the Breach Notification Rule, providers must provide notice of a breach within a certain time frame. Your procedures for responding to a breach should allow for adequate time to meet this deadline.

3. Keeping track of your Business Associates and Business Associate Agreements – During the audit process OCR might ask for a list of business associates and their contact information. All providers should have this readily available. It is also important to have written Business Associate Agreements that are up to date and can be made available to OCR upon request.

If you have any questions about any HIPAA requirements or the approaching OCR audits our attorneys can help. Please contact Danielle Hildebrand at dhildebrand@jeylaw.com.

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The information on this site should not be construed as formal legal advice and is not intended to create or constitute a lawyer-client relationship.

 

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.

Physicians’ Compensation For Certain Referrals Could Violate Anti-Kickback Statue

Anti-KickbackOIG Reminds Physicians That They Will Be Held Liable For Illegal Payments Under The Anti-kickback Statute

On June 9, the Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert warning against potential liability for physicians who enter into certain financial arrangements with healthcare institutions.

The Fraud Alert states that “if even one purpose of the arrangement is to compensate a physician for his or her past or future referrals” the compensation arrangement would violate the federal Anti-kickback statute.

The Fraud Alert discussed a recent settlement regarding an arrangement between several physicians and a healthcare institution. It emphasized that the following factors resulted in an OIG determination that there was improper remuneration:

  • Payments to physicians took into account the physician’s volume or value of referrals and did not reflect fair market value for the services performed
  • Physicians did not actually provide the services called for under the arrangement
  • The arrangement relieved the physician of a financial burden that such physician would have otherwise incurred, e.g., a healthcare institution paid for the physician’s office staff at his or her practice

Although the Fraud Alert does not change any existing laws, it is a reminder that physicians (not just the hospitals) will be held liable for illegal payments. Physicians should heed OIG’s warning and ensure that arrangements with healthcare institutions do not violate any laws. All arrangements must not only comply with the federal Anti-kickback statute, but also other fraud and abuse laws such as the Stark Law, the Civil Money Penalties Law (CMP Law), and the state law Stark and Anti-kickback counterparts.

The Special Fraud Alert can be found here.

If you are a physician with questions about a current or proposed arrangement with a healthcare institution, please call Danielle Hildebrand or DJ Jeyaram at 678-325-3872 for legal counsel.