Physician Practices

CMS’ New Final Rule for Durable Medical Equipment Requires Prior Authorization

December 31, 2015 | Little Health Law

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The U.S. Centers for Medicare and Medicaid Services (CMS) issued a Final Rule earlier this week, which created prior authorization rules applicable to particular durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS). The impetus for the rule is CMS’ determination that prior authorization will curb past issues with unnecessary utilization of DMEPOS, saving the government money and enhancing the care of Medicare beneficiaries.

Atlanta and Augusta Business and Healthcare Law Firm

The Social Security Act (the Act) authorizes CMS to periodically revise its list of DMEPOS that is subjected to unnecessary utilization and to develop a prior authorization process for such items. See the Act, § 1834(a)(15). CMS broadly considers “unnecessary utilization” to include “the furnishing of items that do not comply with one or more of Medicare’s coverage, coding, and payment rules.” The Final Rule creates a Master List of specific DMEPOS potentially subject to prior authorization. The so-called “Master List,” together with pertinent other information regarding the list, can be accessed via this link. An items presence on the Master List does not automatically create a prior authorization requirement. CMS will implement a subset of items on the Master List, a “Required Prior Authorization List,” which will be published in the Federal Register with 60 days’ notice before implementation.

Healthcare Fraud Report: Nine Years in Federal Prison for 24-year-old Pharmacist

December 14, 2015 | Little Health Law

gavel-952313-m Daniel Suarez, 24, was sentenced earlier this month to nine years in prison following his guilty plea to healthcare fraud and abuse charges. According to the Miami Herald, Suarez, a pharmacy technician, was involved in a family ring of Medicare fraud that involved submitting false claims to Medicare for prescription drugs. Medicare has been a victim of extensive fraud and abuse over the years, resulting in a greatly enhanced regulatory environment that, unfortunately, burdens all healthcare providers, honest and dishonest.

Georgia Business and Healthcare Law Firm

The Medicare Program is funded by federal dollars and provides benefits and services for free (or low cost) to about 40 million elderly, blind or disabled, known as Medicare “beneficiaries.” Medicare has several different programs referred to as “parts.” The Medicare Part D Program subsidizes the cost of prescription drugs needed by Medicare beneficiaries. Beneficiaries enroll in Medicare drug plans, operated by private entities known as “sponsors” (insurers), which pay pharmacies for the beneficiary’s drugs and are, in turn, reimbursed by the Medicare Program.

Creative schemes to bilk the Medicare Program have been rampant. Healthcare fraud and abuse continue to cost the federal taxpayer staggering sums of money and, for that and other important reasons, remain a top priority of federal law enforcement. The federal government, through the United States Department of Health & Human Services/Office of Inspector General (OIG) and other federal law enforcement agencies, utilizes numerous methods to identify, combat and prosecute healthcare fraud. According to the OIG, as of September 20, 2015, $1.8 billion has been recovered by the federal government in healthcare fraud and abuse actions.

ACP Report Considers Patient Care Ramifications of Continued Growth of Concierge and Direct Pay Medical Practices

November 30, 2015 | Little Health Law

doctor The American College of Physicians (ACP) recently released an informative policy position paper that assesses how “concierge” and similar direct pay health care arrangements between doctors and patients impact patient care. Our Georgia business and healthcare law firm follows developments in the healthcare industry that affect physicians, medical practices and other healthcare businesses.

“Direct Pay” refers to an important and evolving alternate payment model and health care arrangement between medical practices and patients. Rather than traditional fee-for-service reimbursement models that render physicians and medical practices dependent upon steerage of patients from insurers or other third-party payers, a typical direct pay contracting model utilizes a flat fee, often paid monthly or annually, which the patient pays out of pocket and “direct” to the doctor (as opposed to through an insurance transaction) to compensate the physician for access to a contractually-agreed menu of health care services. The hallmark of direct pay practices is, for the patient, greater access to the physician and, for the doctor, less red tape and a more rewarding professional experience focused on providing care. Direct pay physicians, of necessity, typically limit the number of patients they see, compared to a traditional, third-party payer based model.

The Eleventh Circuit Court of Appeals: A violation of AKS or Stark Law cannot be used to prove state law claims against a competitor for statutory unfair competition and common law

October 2, 2015 | Little Health Law

1330873_courthouse This litigation involves claims of unfair competition and tortious interference under nine different states’ laws, where the claims are based, in part, upon alleged violations of the federal Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b(b), and Stark law (“Stark”), 42 U.S.C. § 1395nn(a). Our Georgia business and healthcare law firm follows legal developments in the world of healthcare.

This particular dispute is between Ameritox Ltd and Millenium Laboratories, Inc. These laboratories are competitors in the drug-screening/testing marketplace. Each sells to physician practices and other healthcare providers products and services that facilitate analysis of patient drug use, including point-of-care (POCT) cups. POCT cups are used by physician practices to collect and store urine samples. Additionally, POCT cups contain chemically activated strips that indicate the presence of particular drugs in the patient’s system. POCT cups thereby facilitate “qualitative testing,” informative of patients’ drug use. Such information is very limited, however; it does not, for example, reveal the precise quantity of a drug in the patient’s system. To obtain more meaningful information about the patient, a doctor must send the POCT cup to a clinical laboratory, for “confirmatory testing.” These two laboratories compete for that business.

The Continuing Trend of Physician Employment

August 25, 2015 | Little Health Law

medical-doctor-1314903-m A recent survey by search agency The Medicus Firm shows steady continuation of the national trend toward employment of physicians. In representing employers and employees, our Georgia physician practice law firm follows physician employment trends and issues. According to the Medicus survey results, the vast majority of physicians hired in the first half of 2015 — nearly 90% — were hired by either hospital systems or group practices.

The Medicus survey also revealed other interesting aspects of the physician employment trend. For example, the survey shows that one aspect of the current employment trend is increased placement in urban and mid-sized communities, compared to recent years. The survey also shows that the top four placement categories (by specialty) during the same time frame were:

Family Medicine (almost 19%)
Internal Medicine (11%)
Ob/Gyn (almost 6%)
Psychiatrists (5%) and hospitalists (5%)

Where the Current Physician Employment Trend and Employment Law Meet

As many drivers of the trend toward physician employment remain on the horizon, more employment law disputes will involve physicians as plaintiffs. There are many examples:

Majority of Georgia Hospitals Face Medicare Penalties

August 14, 2015 | Little Health Law

usa-dollar-bills-1431130-m About two-thirds of Georgia hospitals can expect to be fined for excessive Medicare readmissions, according to a recent article in the Atlanta Journal. According to our Georgia business and healthcare law firm’s research, this places Georgia hospitals well above the national average of 54% of hospitals facing similar fines. The fines are imposed by way of reduced Medicare reimbursement rates for those hospitals with excessive readmissions (readmissions within 30 days of discharge).

Medicare fines imposed as penalties against hospitals with too many patients returning in a month’s time for follow-up treatment, are part of healthcare reform. For the past several years, the federal government has promoted a program to reduce Medicare readmissions, for purposes of improving patient treatment outcomes and saving money. The federal readmission penalty program reflects a strong effort to remove a financial incentive to hospitals for readmitting sick patients. A 2013 article referenced an estimate of The Medicare Payment Advisory Commission (MedPAC), which advises Congress, that 12 percent of Medicare patients may be readmitted for potentially avoidable reasons. “Averting one out of every 10 of those returns could save Medicare $1 billion,” MedPAC says. The readmission penalty program strives to modify hospital behavior by replacing previous financial incentives with financial penalties for avoidable patient readmissions, so that hospital administrators and providers work affirmatively to keep patients healthier and avoid untimely readmissions. Statistics comparing hospital performance as to the readmission reduction program are available on a website maintained by the Centers for Medicare and Medicaid Services (CMS), called “Hospital Compare.”

FRAUD DOESN’T PAY: HEALTHCARE PROVIDERS BEWARE CIVIL MONETARY PENALTIES LAW

July 31, 2015 | Little Health Law

hammer-to-fall-673264-m Physicians and other healthcare providers and businesses who seek to stay in the center of the court and avoid fraud allegations often inquire of our Georgia business and healthcare law firm about the applicability of STARK (civil statute) or the Federal Anti-kickback (criminal) statute to particular circumstances or transactions. While those laws have great importance and severe penalties for violations, another federal law often warrants review to ensure business is conducted in a legally compliant manner. Many physicians and healthcare businesses have not heard of the “Civil Monetary Penalties” law (CMP), found at 42 U.S.C. § 1320a-7a.

Under the CMP law, the United States Office of Inspector General (OIG) may impose civil monetary penalties upon persons, organizations or entities who knowingly present (or cause to be presented) to a state or federal government certain types of false claims. Such penalties can be severe, ranging from $2,000 to $50,000. Further, the law gives the OIG the ability to treble damages.

So, what triggers CMP?

False Claims Act Compliance: 16 Hospitals to Pay $15.69 Million to Resolve Allegations of Medically Unnecessary Psychotherapy Services

May 21, 2015 | Little Health Law

By: Lee H. Little

Health Care providers evaluating billing compliance for psychotherapy services should take caution from a recent multi-million dollar settlement under the federal False Claims Act involving allegedly unnecessary intensive outpatient psychotherapy (IOP) services.

Georgia Healthcare Law Firm

According to the Department of Justice’s (DOJ) press release, the government’s allegations were that billing by these providers was improper because the patient conditions did not qualify for IOP; patient treatments were not provided pursuant to an individualized treatment plan designed to help patients address specific mental health needs and reach achievable goals; patient progress was not adequately tracked or documented; patients received an inappropriate level of treatment; and/or the therapy provided was primarily recreational or diversional in nature, and not therapeutic.

Medicare Fraud Indictment of Ophthalmologist

May 18, 2015 | Little Health Law

medical-series-11-124837-m-e1423597784531 As Medicare fraud schemes continue to bilk federal taxpayers of billions of dollars, federal law enforcement continues to push diligently to identify and prosecute Medicare fraud. Because of the importance to federal law enforcement of ferreting out healthcare fraud schemes, it is critical for all healthcare providers and healthcare businesses to follow the law to the letter and keep their business practices in the center of the court.

Georgia Healthcare Fraud Defense Law Firm

A key focus for the government is whether tests and procedures are actually medically necessary and properly documented. A recent example is the case of Dr. Salomon E. Melgen. On April 14, 2015, the Department of Justice announced the indictment of Dr. Melgen for alleged Medicare fraud in connection with eye centers owned and operated by him. Dr. Melgen, 60, is a Florida ophthalmologist and retina specialist. He owned the Vitreo-Retinal Consultants Eye Center and the Melgen Retina Eye Center, which together had four offices in south Florida. The eye centers treated 100 or more patients a day, many of whom were Medicare beneficiaries.

FMLA Litigation: A Rising Tide Large Healthcare Employers Face

April 28, 2015 | Little Health Law

hospital-corridor-2-65904-m Hospital systems and other large healthcare providers face increasing risks associated with noncompliance with the Family and Medical Leave Act (FMLA), as FMLA litigation is on the rise. According to Law360, FMLA litigation tripled in one year (from 2012 to 2013). Our Georgia business and healthcare law firm has litigated FMLA and numerous other employment law cases in federal court. Because following the regulatory scheme of the FMLA can involve difficult details (e.g., tracking intermittent leave taken in small increments), many employers can violate the Act inadvertently. Retaliation claims are also problematic because of how the employee is treated before and after the medical leave. Tight protocol and committed training of management, supervisors and HR personnel is critical to minimizing the financial risks associated with FMLA noncompliance.