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The Continued Scamming of Healthcare

July 30, 2016 Leave a comment

Here are just a few healthcare fraud cases of note during July 2016:

Three Miami men — $40 million in fines and restitution and 188 months of prison for billing for phantom home healthcare, money laundering, and kickback schemes.

New York surgeon — $25 million in false claims for billing for services not performed.

Maryland X-Ray company owner — 10 years prison for fraudulently billing bogus medical interpretations for diagnostic tests that resulted in two patients’ deaths.

New York physician — jail time for kickback with hospitals in exchange for referring patients to nursing homes.

South Carolina hospital — $17 million in fines for improper financial arrangements with referring physicians.

Illinois woman — $15.6 million and six years prison for fraudulent billing in home health services.

Texas physician — 63 months prison and $1 million in fines and restitution for falsely certifying patients for home health services.

Florida physician — 46 months prison and $2.1 million in fines and restitution for intentionally falsifying diagnoses to get higher Medicare advantage plan capitation payments.

FSA Qui Tam Suit Against “Company Model” Providers

April 15, 2016 Leave a comment

In October 2013, the Florida Society of Anesthesiologists filed a qui tam action under seal as required, which named as defendants a large number of Florida GI physicians, surgery centers, and “company model” anesthesia providers.  The action was unsealed and made public during the last week of March.

Chief among the FSA’s allegations is that the defendants violated the federal False Claims Act by billing and collecting for anesthesia services performed by captive “company model” anesthesia providers.

At its simplest, the term “company model” refers to an anesthesia company jointly owned by referring physicians and anesthesiologists that is formed to provide anesthesia services at the ambulatory surgery center that the referring physicians own.  The jointly owned anesthesia company takes the place of anesthesiologists (or an entity owned 100% by them) which previously performed the anesthesia services for the ASC. By using the company model arrangement, the referring physicians are then able to share in the revenues generated by the anesthesia services that previously would go solely to the anesthesiologists who performed the services.

The OIG made it clear in its Advisory Opinion 12-06 posted on June 1, 2012 that the company model and similar arrangements “could potentially generate prohibited remuneration under the anti-kickback statute and that the OIG could potentially impose administrative sanctions.”  The American and Florida Societies of Anesthesiologists had been urging the OIG to take action like this for a long time, and it is not surprising that the FSA would take the lead in filing a qui tam action on company model arrangements that continued after the OIG posted its opinion.

This is a very significant case.  The U.S. Attorney’s Office has presently declined to intervene, but its investigation is ongoing.

Health Rankings — Pinellas County and Hillsborough County

April 6, 2016 Leave a comment

The following infographic from the Suncoast Health Council compares various health factors between Pinellas and Hillsborough Counties, Florida:

 

2016 Pinellas-Hillsborugh Health Rankings

 

Saving the Medical Profession

March 23, 2016 Leave a comment

The following email string from earlier today from physician leaders is very telling and tragic.  The email discussion starts with this:

Many of you will recognize some of the themes in this piece written by a frustrated young physician who has made the tough decision to leave her practice. Some of you might have struggled with the same issues discussed in this essay.

Here are two quotes from her thoughtful essay:

“The phenomenon of patients as customers, the cultural rise of entitled incivility, and trusting Dr. Google more than their doctor has eroded some of the pleasure of patient care.”

“In the past decade, physician groups have been purchased by hospitals and conglomerations. Rather than being recognized for individual excellence by patients voting with their feet, this has resulted in doctors being interchangeable cogs in a system where patients/hour and shifts/month dictate value.”

[go here, to read the article]

Two physicians responded with the following:

As physicians, WE make the wheel go around. Yet we have allowed our knowledge, our expertise, and our unmatched dedication to be devalued by hospitals, insurance companies, politicians, etc.

I think that the more we are called providers and we do not educate the public about the time commitment and education that physicians put in to become the master of the profession then we lose. … medical students are very talented. We need to make this news because we are the only ones who can provide quality care and provide the impetus to decrease costs We are the only ones equipped to do so. The MD degree has tons of value and it is not an interchangeable cog in the wheel.

I responded:

So true.  My law practice focuses on representing physicians, which includes helping them evaluate and participate in opportunities as they deal with the onslaught of onerous laws, rules, and regulations. I constantly must remind my clients that physicians are and remain the sole source of value in healthcare. Notwithstanding that, many physicians, young and old, constantly ignore good opportunities for their practices because they are intimidated into choosing the wrong ones.

As the public member on the Board of Governors of the Florida Medical Association, I am pleased at the FMA’s focus (1) on lobbying legislators who are notoriously ignorant about physicians and the practice of medicine, and (2) on educating its members so that they can better understand and evaluate what is going on in the business of medicine.

I worry whether we can make a big enough impact quickly enough.

No other profession is faced with less respect or more demands or higher expectations than allopathic and osteopathic physicians.

This is not about “socialized” medicine, Obamacare, or anything other than  economics.  It has always been about the money.  We are happy to make physicians work harder for less, and that has been happening for years.  People don’t care because they have drunk the Kool-Aid from the insurance companies and the government that the  medical profession is the problem with healthcare, and a misinformed public accepts the view that somehow physicians are the enemy.

CMS Proposes Significant Changes to the 2016 Medicare Physician Fee Schedule, including to Stark

August 16, 2015 Leave a comment

CMS Factsheet:

“On July 08, 2015, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that updates payment policies, payment rates, and quality provisions for services furnished under the Medicare Physician Fee Schedule (PFS) on or after January 1, 2016. This year, CMS is proposing a number of new policies, including several that are a result of recently enacted legislation. The rule also finalizes changes to several of the quality reporting initiatives that are associated with PFS payments, including the Physician Quality Reporting System (PQRS), the Physician Value-Based Payment Modifier (Value Modifier), and the Medicare Electronic Health Record (EHR) Incentive Program, as well as changes to the Physician Compare website on Medicare.gov.”

The proposed rule includes provisions relating to the following;

  • physician quality reporting system
  • “Physician Compare”
  • EHR incentive program
  • Medicare shared savings
  • advance care planning
  • payment provisions on Part B drugs, misvalued codes, RVU reductions, “incident to” services, physician value-based payment modifier, etc.

Perhaps most significant in the area of healthcare business transactions are the physician self-referral (Stark law) updates:

  • expansion of recruitment and retention provisions to NPPs
  • updating physician-owned hospital requirements
  • reducing burdens of technical noncompliance through more reasonable regulations in a number of areas (based on information learned from self-dsiclosures and the rersults of recent cases)

The complete proposed rule as published in the Federal Register on July 15 can be found here.

Comments will be accepted by CMS on the proposed rule until September 8, 2015.

The Week in Health Law — “Back to School” Podcast for Healthcare Lawyers

August 16, 2015 Leave a comment

Great podcast for healthcare attorneys and keeping current — The Week in Health Law.

“TWIHL presents its first Back to School Special. We asked some wonderful health lawyers what were the compelling additions to this Fall’s health law curriculum. The answers are diverse and fascinating. To hear their explanations look for episode 22 when you subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.”

OIG Fraud Alert on Physician Compensation — Why Is No One Listening?

July 11, 2015 1 comment

A few weeks ago, the OIG published another one of its fraud alerts.  This one was entitled, “Physician Compensation Arrangements May Result in Significant Liability.”

Everyone knows (don’t they?) that business arrangements in healthcare have to meet several legal requirements, including: (1) it cannot be based on the value or volume of referrals, (2) it must be at arms’ length, and (3) it must be commercially reasonable.  When a healthcare provider enters into a transaction that violates any of these three requirements, he may have violated the anti-kickback statute or physician self-referral/Stark law or both, and any claim arising from the transaction that is submitted to the federal government for payment may be a false claim.  Healthcare lawyers have long been warning their clients to be cautious about how they pay (and recruit) physician employees and contractors in order to avoid violations of the kickback, self-referral, and false claims laws. Violations carry stiff penalties and in some cases criminal sanctions.

There is nothing new in this recent Fraud Alert.  Many similar fraud alerts and OIG advisory opinions and actual court cases have passed on the same message.  And there is nothing surprising other than that the facts described in this Fraud Alert so obviously violate these healthcare laws that you have to ask, why is no one listening?

I have a three explanations:

  • The false claims act was passed during the Civil War and was aimed at stopping corruption in how defense contractors were paid.  The law made sense.  There was a direct relationship between the defense contractor and the government dollars received.  However, the false claims act makes no sense in healthcare — treating a patient is so separated from payment; the provider at the time of care may not know who is paying — government, commercial, the patient, or no one.
  • The healthcare laws are so contrary to the economic rules that apply to other businesses and so counter-intuitive as to make them offensively ridiculous and begging to be ignored (which they are).
  • As we move to a pay for performance, quality-based healthcare reimbursement system, these laws become even more irrelevant.  Case in point — Accountable Care Organizations — a critical foundation for healthcare reform under the Accountable Care Act.  ACOs could not operate unless waivers to these healthcare laws were implemented.  Every healthcare provider is not in an ACO, but many are developing clinically integrated networks and other arrangements to oversee quality and utilization in order to compete more effectively with large healthcare systems and negotiate with payors in keeping with the goals of healthcare reform.  They are forced to act as if the waivers applied to them also.  In fact many consultants advise that the waivers DO apply to non-ACO networks.

It is time for a thoughtful review (and repeal) of these antiquated and economically debilitating laws in how they apply to healthcare providers.  It is time to stop calling business sensible healthcare transactions fraudulent and punishing the participants.

These laws allow regulators to be lazy and stupid. Anyone can enforce laws based an strict liability or ones that have lines so faint that crossing them is unavoidable.

Seriously, who cares if someone pays a fee for referring a patient for care?  Liability should be based on the quality and necessity of the care.  Providing care not needed or charging for care not given — those actions should be punished.  But that’s harder for regulators, so we continue to vilify healthcare providers and impose burdens on them that are far tougher than the benefits derived.

Setting Value-Based Payment Goals — HHS Efforts to Improve U.S. Health Care — NEJM

February 1, 2015 Leave a comment

Setting Value-Based Payment Goals — HHS Efforts to Improve U.S. Health Care — NEJM

This article (reproduced in full below) in the New England Journal of Medicine, online January 26, 2015,  is by Sylva M. Burwell, Secretary of Health and Human Services.  It discusses the important concepts of efficiency, quality, waste, and rationing and their intersection with the delivery of healthcare.  References can be found at the online article.

* * * * * * * *

Now that the Affordable Care Act (ACA) has expanded health care coverage and made it affordable to many more Americans, we have the opportunity to shape the way care is delivered and improve the quality of care systemwide, while helping to reduce the growth of health care costs. Many efforts have already been initiated on these fronts, leveraging the ACA’s new tools. The Department of Health and Human Services (HHS) now intends to focus its energies on augmenting reform in three important and interdependent ways: using incentives to motivate higher-value care, by increasingly tying payment to value through alternative payment models; changing the way care is delivered through greater teamwork and integration, more effective coordination of providers across settings, and greater attention by providers to population health; and harnessing the power of information to improve care for patients.

As we work to build a health care system that delivers better care, that is smarter about how dollars are spent, and that makes people healthier, we are identifying metrics for managing and tracking our progress. A majority of Medicare fee-for-service payments already have a link to quality or value. Our goal is to have 85% of all Medicare fee-for-service payments tied to quality or value by 2016, and 90% by 2018. Perhaps even more important, our target is to have 30% of Medicare payments tied to quality or value through alternative payment models by the end of 2016, and 50% of payments by the end of 2018. Alternative payment models include accountable care organizations (ACOs) and bundled-payment arrangements under which health care providers are accountable for the quality and cost of the care they deliver to patients. This is the first time in the history of the program that explicit goals for alternative payment models and value-based payments have been set for Medicare. Changes assessed by these metrics will mark our progress in the near term, and we are engaging state Medicaid programs and private payers in efforts to make further progress toward value-based payment throughout the health care system. Through Healthy People 2020 and other initiatives, we will also track outcome measures that reflect changes in Americans’ health and health care.

To drive progress, we are focusing on three strategies. The first is incentives: a major thrust of our efforts is to create an environment in which hospitals, physicians, and other providers are rewarded for delivering high-quality health care and have the resources and flexibility they need to do so. The ACA creates a number of new institutions and payment arrangements intended to drive the health care system in this direction. These include alternative payment models such as ACOs, advanced primary care medical-home models, new models of bundling payments for episodes of care, and demonstration projects in integrated care for beneficiaries dually eligible for Medicare and Medicaid.

Looking ahead, we plan to develop and test new payment models for specialty care, starting with oncology care, and institute payments to providers for care coordination for patients with chronic conditions. Three years ago, Medicare made almost no payments through these alternative payment models,1 but today such payments represent approximately 20% of Medicare payments to providers, and as noted above, we aim to increase this percentage. As part of this work, we also recognize the need to continue to reach consensus on the quality measures used and address issues related to risk adjustment in these new models.

Second, improving the way care is delivered is central to our reform efforts. We have put in place policies to encourage greater integration within practice sites, greater coordination among providers, and greater attention to population health. Through the Partnership for Patients, we have engaged U.S. hospitals in learning networks to focus on high-priority risks to patient safety and have already seen significant improvement. There is now a national program to reduce hospital readmissions within 30 days after discharge, which encourages hospitals to improve transitional care and coordinate more effectively with ambulatory care providers. Readmission rates are decreasing nationwide.2 Through the Transforming Clinical Practice Initiative, we will invest up to $800 million in providing hands-on support to 150,000 physicians and other clinicians for developing the skills and tools needed to improve care delivery and transition to alternative payment models. New Medicaid health homes, patient-centered medical homes, and efforts to reorganize care for people eligible for both Medicare and Medicaid are all designed to foster greater integration and coordination.

Third, we aim to accelerate the availability of information to guide decision making. The Obama administration has led a major initiative in health information technology (IT), focusing on the adoption of electronic health records (EHRs) and their meaningful use as a central avenue for transforming care. The proportion of U.S. physicians using EHRs increased from 18% to 78% between 2001 and 2013, and 94% of hospitals now report use of certified EHRs.3 Ongoing efforts will advance interoperability through the alignment of health IT standards and practices with payment policy so that patients’ records are available when needed at the point of care to permit informed clinical decisions to be made in a timely fashion.  HHS has made a commitment to enhancing transparency in the health care market. For example, the Medicare website enables consumers to compare data on the costs and charges for hundreds of inpatient, outpatient, and physician services. Information is available on the quality of hospitals, physicians, nursing homes, and other providers, enabling consumers to make better-informed choices when selecting providers and health plans.

The ACA established the Patient-Centered Outcomes Research Institute (PCORI), dedicated to generating information that can guide doctors, other caregivers, and patients as they address important clinical decisions; PCORI is working with the Agency for Healthcare Research and Quality to disseminate this information. In the years ahead, the research findings from PCORI, disseminated in part through EHRs, can bring critical clinical information to providers and patients when they need it most, at the point of care.

Although we have much to celebrate regarding increased access and quality and reduced cost growth, much of the hard work of improving our health care system lies ahead of us. Care delivered in hospitals was much safer in 2013 than it was in 2010: there were 1.3 million fewer adverse events between 2011 and 2013 than there would have been if the rate of such events had remained unchanged, and an estimated 50,000 deaths were averted. Still, far too many hospitalized patients — nearly 1 in 10 — have adverse events while hospitalized, and many people do not receive care that they should receive, while others receive care that does not benefit them. Growth of health care spending is at historic lows: Medicare spending per beneficiary increased by approximately 2% per year from 2010 to 2014 — a rate far below both historical averages and the growth rate of the gross domestic product.4 Survey data show that more than 7 in 10 people who signed up for insurance in the new health insurance marketplace last year say the quality of their coverage is excellent or good.5 However, it will take additional effort to sustain and augment the positive changes we have seen so far.

We are dedicated to using incentives for higher-value care, fostering greater integration and coordination of care and attention to population health, and providing access to information that can enable clinicians and patients to make better-informed choices. We believe that, by working in partnership across the public and private sectors, we can accelerate these improvements and integrate them into the fabric of the U.S. health system.

Vascular Access Centers: A Complex Picture

September 18, 2014 Leave a comment

Physicians are under a lot of pressure to improve their bottom line. In office procedures as described in this blog, as well as investments in surgery centers and other business ventures, all bring levels of needed regulatory compliance and increased regulatory scrutiny. From the business side, there are many stories of corporate partners from Hell! Before getting involved in any of these “opportunities,” physicians should work closely with their legal and financial advisors.  An ounce of legal prevention is worth a pound of very expensive legal cure.

Florida Healthcare Law Firm Blog

bcbs lawsuitBy: Jeff Cohen

Vascular access centers are a common ancillary service offered by a variety of physicians, mostly nephrologists.  They provide a unique setting for patients requiring interventional vascular services in connection with things like oncology, dialysis, nutritional delivery, wound healing, pain management and more.  Unlike many surgical services, however, they are typically not provided via a surgery center, but rather as part of (and inside) the physician’s practices.

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Federal Government Report Summarizes Health Care Privacy Compliance Efforts

August 31, 2014 Leave a comment

The blogger below summarizes recent reports from HHS on privacy issues. These reports demonstrate (at least, to me) that protecting the privacy of patient health information in the manner prescribed by the HIPAA (and applicable state) laws and regulations may be largely unattainable.  I have concluded that privacy does not merit the emphasis being placed on it or the financial burdens required of the health care industry in order to comply.  The task is a lot like filling up a sieve. There are more important things to worry about in American healthcare.

Wyatt HiTech Law Blog

government buildingThe U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued two reports to Congress required by Section 13402(i) of the Health Information Technology for Economic and Clinical Health (HITECH) Act:

–“Annual Report to Congress on Breaches of Unsecured Protected Health Information For Calendar Years 2011 and 2012” (the Breach Report); and

–“Annual Report to Congress on HIPAA Privacy, Security, and Breach Notification Rule Compliance For Calendar Years 2011 and 2012” (the Compliance Report).

Both of OCR’s reports (as well as previous annual reports) may be accessed here. This post discusses the Compliance Report. We summarized the Breach Report in a separate post entitled “Federal Government Report on Data Breaches in Health Care.”

OCR is the office responsible for administering and enforcing the HIPAA Privacy, Security, and Breach Notification Rules. The Compliance Report summarizes OCR’s compliance and enforcement activity with respect…

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