Articles Posted in Compliance

Over $30 billion has been set aside by the government to use for incentive payments in an effort to get health care professionals to switch to electronic records. One reason for the push towards electronic records is the ability exchange patient information between systems. As a way to efficiently capture this benefit, government-funded regional health information organizations (RHIOs) were established. These organizations sign up doctors and hospitals in a specific area and coordinate the transfer of electronic patient records between health care providers. However, a recent survey published in Annals of Internal Medicine shows that RHIOs’ future looks to be uncertain as their financial viability appears to be a cause for concern.

The study surveyed 197 RHIOs, of which 165 returned the surveys. It was shown that only 75 of the RHIOs were currently operational, covering a mere 14% of hospitals and 3% of ambulatory practices in the United States. Moreover, only 13 of those RHIOs are able to conduct the necessary exchange of information that enable doctors to partake in receiving payments of the $30 billion that the government set aside in an effort to promote the electronic switch. Finally, only 67% of the currently operational RHIOs were found to be financially viable. The results of this study creates a concern of whether RHIOs can indeed be effective in assisting hospitals and physicians with the type of electronic information sharing that was intended to advance the quality of care for patients.

If you need help understanding the meaningful use requirements or assistance with negotiating EHR contracts, please contact a Wachler and Associates attorney at 248-544-0888.

The ONC announced last Wednesday that the Medicare electronic health record (EHR) incentive payments will begin disbursement this week. The payments will be made to providers who have met all of the program conditions, including the meaningful use requirements.

Eligible participants can expect to receive a payment based on 75% of their total Medicare allowed charges. These allowed charges must be submitted no later than two months after the end of 2011. The maximum allowed charges used for the 2011 program are $24,000, meaning that the incentive payment will not exceed $18,000. However, the eligible participant must meet the $24,000 in total Medicare charges before any payments will be made to that participant. Finally, payments can be expected to be paid in the same manner as that participant receives other Medicare services (electronic funds or paper check).

If you need help understanding the meaningful use requirements or assistance with negotiating EHR contracts, please contact a Wachler and Associates attorney at 248-544-0888.

On May 4, 2011, the Seventh Circuit Court was faced with the issue of whether a doctor’s actions violated the anti-kickback statute (United States of America v. Borrasi). Dr. Roland Borrasi was convicted of Medicare fraud after he accepted payments in the form of a salary from a psychiatric hospital in exchange for referring patients to the facility. Over a time period of three years, Borrasi and four other physicians were paid a sum of $647,204 for referring hundreds of patients to the hospital.

In an effort to conceal these bribes, the physicians were placed on the hospital’s payroll, given false titles and job descriptions, and asked to submit false time sheets. Through testimonial evidence, the court found that the physicians were not expected to perform any duties listed in their job description. Moreover, the bribed physicians attended very few meetings, were rarely seen at the facility, and were not expected to perform any of their administrative duties. The facts of the case led the jury to find Borrasi guilty of Medicare-related bribery in violation of 42 U.S.C. § 1320a-7(b)(1).

On appeal, the Seventh Circuit denied Borrasi’s argument for interpreting the statute. Borrasi argued the court to adopt a “primary motivation” rule, where a defendant shall be found not guilty if the primary motivation behind the payments was to compensate for bona fide services provided. Instead, the court held that if part of the payment compensated past referrals or induced future referrals, that portion of the payment violates the statute. Therefore, so long as some amount of the payments made to Borrasi and the other physicians were made not pursuant to a bona fide employment relationship, then the statute has been violated.

The Centers for Medicare & Medicaid Services (CMS) recently published a checklist for physicians and treating practitioners to follow in order to help them comply with documentation requirements for the face-to-face examination that must occur prior to the physician ordering a Power Mobility Device (PMD) for a Medicare beneficiary. The checklist contains the information that is essential for Medicare in determining whether payment should be made for a PMD. However, it is vital to note that the checklist is merely a guide and does not replace the underlying medical records. The following is the checklist offered by CMS:

• Signs/Symptoms that limit ambulation;
• Diagnoses that are responsible for these signs/symptoms;

Despite efforts by various groups to have the face-to-face  encounter requirement delayed for hospices and home health agencies, the requirement became effective as of April 1, 2011.  For more information regarding this issue, please see a recently authored article by Wachler & Associates attorneys Amy K. Fehn and Jennifer Colagiovanni entitled New Audit Risk for Home Health Agencies: Face to Face Certification Requirements.

CMS Recently released a proposed rule which would reverse the policy of heightening restrictions on suppliers of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).  The proposed rule relaxes previously onerous rules regarding the prohibition of telemarketing and beneficiary solicitation which were implemented on September 27, 2010.  If you have any questions about how this proposed rule will affect your current compliance program, please contact a Wachler & Associates attorney at 248-544-0888.

The Department of Health and Human Services Office of Inspector General (OIG) released an unfavorable Advisory Opinion involving a transportation supplier’s proposal to offer skilled nursing facilities (SNFs) two payment plans for transportation of the SNF’s Medicaid-covered residents.  The OIG determined that the arrangement could potentially violate the Anti-Kickback Statute and that administrative sanctions could be imposed.

The transportation supplier (Requestor) provides transportation services in a state where SNFs receive a per-resident daily rate for ancillary and support services form the state Medicaid program.  SNFs that have residents which are eligible for Medicare and Medicaid are responsible for the amount not covered by Medicare that would otherwise be covered by Medicaid as a secondary payor.  The Requestor will offer two payment plans that respond to SNFs’ responsibilities:

(1) The first payment plan would be a capitated rate per resident per day for Medicaid transports regardless of whether the services were needed and whether Medicaid is the responsible payor.  For residents covered under Medicare and Medicaid, the payment would release the SNF from any further liability (including Medicaid deductibles).  The capitated payment would be less than the Requestor’s cost of transportation for Medicaid patients and more for Medicare patients.