Holidays Can Be A Time To Spot Changes In Elderly Family Members

Slight changes in behavior or personality can be subtle and not easily noticed if you interact with the person frequently.  However, many Americans will be visiting with elderly family members during the upcoming holidays and might not have seen their loved ones for several months.  Subtle changes can be more easily identified if it has been a period of time since the last interaction.  The holidays can be a good time to reassess as to whether your elderly family members may need some additional guidance or assistance due to physical or mental status issues.  Try to assess the circumstances and observe the person as they currently are and not as the invincible parent or relative that they have been all of their life.  It may be the time for family members to assist the senior with life changes or transitions in living environment or the addition of support mechanisms.

The following is a list of potential warning signs that your family member may need some medical assessment or assistance with activities of daily living:

  • Changes in basic personality
  • Inability to concentrate on and complete simple to moderate tasks including household chores or paying bills
  • Unsteadiness of gait or a history of recent falls
  • Loss of important items such as car keys or wallet
  • Dressing inappropriately for the season or wearing multiple layers of clothing
  • Difficulty in discussing recent and current events
  • Repetition of same information during short conversations
  • Neglect of their environment or their personal appearance
  • Unusual dents to vehicle or the garage

If signs or symptoms such as the above are noticed, assist your family member to seek out assessment and/or intervention to address the concerns.  Don’t ignore those signs and symptoms of confusion or personality change as they may be the warning signs of illnesses such as dementia or other acute or chronic illnesses.  Many community resources are available to assist family members and seniors and help the senior connect to those resources.  Enjoy the holiday season with family while assuring that your aging seniors remain safe and healthy.

RACs recover $2.39 billion in overpayments in FY 2014

Last week, CMS released its report to Congress regarding the results of the FY 2014 Medicare Recovery Audit Program (the “Report”). Of note, the Report notes that RACs identified and corrected more than 1 million claims for improper payments, which resulted in $2.57 billion dollars in improper payments being corrected ($2.39 billion in overpayments; $173 million in underpayments). After taking into consideration the costs of the Recovery Audit Program, this amounts to more than $1.6 billion dollars returned to the Medicare Trust Fund (and $274 million in contingency fees to the RACs).

Inpatient hospital claims resulted in the vast majority of improper payments, yielding overpayments in excess of $2 billion dollars. Auditing of skilled nursing facilities was also very active, resulting in overpayments in excess of $85 million dollars.

Given the tremendous success of RACs in returning funds to the Medicare Trust Fund, providers would be wise to be prepared for a RAC audit. In addition to simply focusing on accurate billing, being prepared means having a team in place that knows how to respond quickly and appropriately, and whom to call for help. Being well prepared can lead to big savings. For example, the Report notes that of the total number of claims appealed in FY 2014, 22.9% were overturned with decisions in the provider’s favor (Part A overturn rate = 11.7%; Part B overturn rate of 49.5%). A complete copy of the Report can be accessed here.

Should you have any questions regarding preparing for or responding to a RAC audit, please contact Dan O’Brien, or any member of Benesch’s health care practice group.

FCC Releases Guidance on Autodialing and Pre-Recorded Voice Calls to Wireless Phone Numbers

This past July, the Federal Communications Commission (“FCC”) released a ruling (the “Ruling”) interpreting the Telephone Consumer Protection Act (“TPCA”) restrictions on certain communications to wireless telephone numbers. The Ruling significantly restricts business’ ability to use auto-dialers and artificial / prerecorded voices for contacting wireless telephone numbers, including via text message (“automated contact system ”), prior to obtaining customer consent. Fortunately for the many health care providers who rely on this type of technology for important patient correspondence such as appointment reminders, the FCC has provided a significant exception for providers’ automated contact systems that meet certain criteria set forth in the Ruling. While the criteria are not overly burdensome, they are numerous and specific, so health care providers with automated contact systems should review them carefully to ensure ongoing compliance with the TPCA.

Following the Ruling, health care providers with automated contact systems must either obtain patient consent prior to using automated contact systems, or be sure that their automated contact system comply with the Ruling. Generally, to be exempt from obtaining prior express consent from patients calls to wireless numbers using automated contact systems:

  • must not be charged to patient-recipients;
  • must be for specific, health-related purposes;
  • must include easy opt-out options; and
  • are subject to volume and brevity restrictions.

The Ruling describes in greater detail the steps that health care providers must take to meet the above standards.

The FCC ruling is available here. Contact a member of the Benesch team if you have any questions about your automatic contact system after the FCC’s recent ruling.

Compliance: Reporting Overpayments and the 60-day Clock

On August 3, 2015, a federal judge in New York issued an important opinion regarding the False Claims Act and what it means to “identify” an overpayment for purposes of starting the 60-day clock in which Medicare and Medicaid overpayments must be returned. The decision underscores the importance of taking overpayment allegations seriously, and makes clear that deliberate ignorance is not a viable defense. Providers should take note of this decision, and update their compliance plans accordingly.

The case, Kane v. Healthfirst, et. al., arose out of a software glitch in a managed care company’s billing system. The glitch caused providers to submit additional bills to secondary payors, above and beyond what is permitted under the New York Medicaid program. Eventually, the managed care company identified the glitch, and alerted its contracted providers, including the hospital, of the problem. The hospital tasked an employee, Mr. Kane (who eventually became the relator), with investigating the issue. Mr. Kane identified approximately 900 claims that could be affected by the software glitch, and stated that “further analysis would be needed to confirm his findings.” Shortly thereafter, Mr. Kane was terminated.

Subsequently, the hospital reimbursed the State of New York for five improperly submitted claims, but did nothing with Mr. Kane’s analysis or the rest of claims for two years. The DOJ alleged that this delay violated the Affordable Care Act requirements that Medicare/Medicaid overpayments must be reported and returned within 60 days of the date “on which the overpayment was identified.” Failure to comply with such a requirement constitutes a violation of the False Claims Act.

The instant action centers upon what it means to “identify” an overpayment. The term “identify” was not defined by Congress in the Affordable Act. The DOJ argued that the hospital acted intentionally or recklessly and “fraudulently delay[ed] its repayments for up to two years after [the hospital] knew of the extent of the overpayments.” The hospital, on the other hand, argued that Kane’s email only provided notice of potential overpayments, and did not identify actual overpayments so as to trigger the 60-day clock.

Ultimately, the district court rejected the hospital’s position, and concluded that identification occurs when health care providers are “put on notice” of potential overpayments. For providers, this means that when you receive information which suggests that an overpayment(s) may exist, you need to take action. Further, this action should be documented in an organized manner specifying the actions being taken to track down the overpayment. While it is yet to be seen whether such efforts could serve as a defense, the decision of the district suggests that good intentions could be a viable defense.

For more information regarding the False Claims Act or related compliance issues, please contact Dan O’Brien or any member of our health care practice group.

CMS Proposed Stark Law Revisions

On July 15, 2015, the Centers for Medicare and Medicaid Services (“CMS”) published proposed revisions to the regulations implementing the physician self-referral law, or Stark Law.

The Stark Law is a key regulatory scheme in the healthcare industry that governs relationships between physicians and the providers to whom they refer certain designated health services. In order to receive Medicare reimbursement for these services, all financial relationships between providers and the referring physician must satisfy a statutory or regulatory exception to the Stark Law. These exceptions are complex and very technical, and providers who fail to fully comply with the Stark Law’s many requirements can be subjected to significant penalties and other sanctions.

Many of CMS’ proposed revisions appear designed to reduce the burden of some of these technical requirements. In addition, CMS is proposing several new exceptions. If enacted, these will be some of the most significant changes to the Stark Law in years.

Highlights of the proposed revisions include the following:

  • Contractual requirements. Many of the Stark Law exceptions require the relationship between the parties to be “set out in writing” or be pursuant to a “written agreement.” CMS is proposing to revise all exceptions to contain the same language, using the phrase “arrangement.” CMS has further clarified that the “arrangement” does not have to be a formal, written contract, and the exceptions can potentially be satisfied by multiple documents evidencing the course of conduct between the parties.
  • Recruitment of Nonphysician Practitioners (NPPs).   CMS is proposing a new exception that would allow hospitals and other providers to provide recruitment support for nurse practitioners and other NPPs. Previously, this support had only been allowed for physicians.
  • Timeshare Arrangements. CMS is proposing a new exception that would allow providers to enter into timeshare arrangements with physicians for the use of office space, equipment, personnel, supply and other services.
  • Standardized language. CMS is proposing to standardize the use of certain phrases throughout the regulations. As described above, various references to “contracts” or “writings” will now be uniformly replaced with the term “arrangement.” In addition, all references to the volume or value of referrals between parties will use the phrase “takes into account.”
  • Holdovers. Under the proposed regulations, parties may continue to provide services under leases and personal service agreements that have technically expired for an indefinite period without violating the Stark Law. Previously, providers could only do so for six months.
  • Signature Requirements. Under the proposed regulations, contracts could be signed up to 90 days after services started and be considered compliant with the Stark Law. Previously, the period was only 30 days in most circumstances.
  • Term Requirements. Many of the exceptions to the Stark Law require the parties to have an agreement for at least one year. CMS is clarifying that the contract or agreement between the parties does not have to have an explicit one-year term, so long as the relationship does in fact last one year.  CMS is continuing the requirement that if an agreement is terminated prior to the one year term, the parties cannot enter into a similar agreement until that one-year period is up.

Providers who may be impacted by these proposed changes are encouraged to submit comments to CMS. Comments may be submitted electronically here and should be received by September 8, 2015.

Benesch is preparing an in-depth client alert analyzing the potential impact of these regulations. If you have questions regarding the scope and impact of these proposed regulations in the mean time, please contact any member of the Benesch Health Law team.

HIPAA and Jason Pierre-Paul’s Medical Chart – Setting the Record Straight

Last night, ESPN reporter Adam Schefter tweeted a photo of New York Giants defensive end Jason Pierre-Paul’s medical chart, which chart indicated that Pierre Paul had his index finger amputated. The amputation was apparently the result of a fireworks accident on the Fourth of July. Prior to the Schefter’s report of the amputation, the injury was already a major offseason story for the NFL, as Pierre-Paul is a pro-bowler, and initial reports indicated that the New York Giants withdrew an outstanding $60 million contract offer as a result of the Fourth of July injury.

Football aside, the Pierre-Paul story is yet another example of a celebrity patient’s medical information being disclosed to the media. Right now, the internet is ablaze with news stories and comments suggesting that Adam Schefter and/or ESPN violated HIPAA by posting a copy of Pierre-Paul’s medical chart. Despite the public outcry, this view highlights a fundamental misunderstanding of HIPAA and its prohibitions. Adam Schefter and/or ESPN are not the ones that should be concerned about a HIPAA violation – the hospital and its employee(s) that leaked Pierre-Paul’s medical chart, however, should be.

At its most basic level, HIPAA provides certain federal protections for protected health information (“PHI”) held by covered entities and their business associates. The definition of a “covered entity” includes health care providers, health plans, and health care clearinghouses. See 45 C.F.R. 160.103. A “business associate,” in turn, is generally defined to include a person or entity that creates, receives, maintains or transmits PHI on behalf of a covered entity. Id.

Clearly, neither ESPN nor Adam Schefter constitutes a covered entity or business associate. Absent evidence of a conspiracy with hospital employees to obtain the documents in violation of HIPAA, ESPN and Adam Schefter should be in the clear with respect to HIPAA. On the other hand, unless Pierre-Paul appropriately authorized the disclosure of his medical chart, the hospital and its employee(s) that leaked the medical chart to Adam Schefter could face significant civil and/or criminal penalties in connection with a HIPAA violation.

It is also important to note that although HIPAA does not authorize a private right of action (meaning that only the Department of Health and Human Services Office of Civil Rights or State Attorneys General can enforce HIPAA), private individuals have had some success with lawsuits alleging state law privacy violations that utilize HIPAA to establish the standard of care.

For additional information regarding HIPAA, please contact Dan O’Brien, Cliff Mull, or any other member of Benesch’s Health Care Department.

HHS Revises, Delays Medicare Enrollment Requirements for Part D Prescriptions

The Affordable Care Act authorized the Department of Health and Human Services (HHS) to require a physician, dentist or other healthcare provider to be enrolled in the Medicare program before they can issue a prescription covered by Medicare Part D.

Regulations implementing this requirement were first issued by HHS in 2014 and scheduled to go into effect June 1, 2015, with an enforcement delay until December 1, 2015.  Under the regulations, HHS required all providers to either formally enroll in, or officially opt out of, the Medicare program in order to issue a covered prescription to a Medicare Part D beneficiary.

These regulations will have the greatest impact on healthcare providers, such as dentists, whose services are generally not covered under Medicare but who may still issue prescriptions to Medicare beneficiaries.  These providers have historically neither formally enrolled in nor opted out of the Medicare program, because they never provided services which were eligible for Medicare reimbursement.

The provider community objected that these regulations would create an undue burden on providers who had never been subject to Medicare enrollment requirements and would limit beneficiaries’ access to needed pharmaceuticals. For example, a prescription for a painkiller or antibiotic issued to a patient by a dentist would no longer be covered if the dentist had not met these new enrollment requirements.  The patient would have to pay for the full cost of the drug and, if they could not afford to so, might not receive needed pharmaceutical care.

In response, HHS released revised regulations on May 6, 2015.  These revisions include a delayed effective date of January 1, 2016.  In addition, Medicare Part D plans must now provide provisional coverage of the a drug prescribed by a provider who does not meet the enrollment/opt out requirements.  The provider will then have up to 3 months to either enroll or formally opt out of Medicare, allowing the prescription to be covered back to the original date.

Providers who have not yet enrolled in or opted out of Medicare have four options to consider:

  1. Take no action.  The provider can still issue prescriptions – but Medicare Part D beneficiaries will be required to pay the full cost of the prescription or find an alternate provider.
  2. Enroll as a Medicare provider.  Dentists and other healthcare professionals are eligible for Medicare enrollment, even if they never provide Medicare-covered services.
  3. Enroll in Medicare as an ordering/referring provider (ORP).  This is a limited enrollment category.  An ORP is allowed to order Medicare-reimbursable services, including prescriptions, but is not eligible for Medicare reimbursement for any services they provide directly.
  4. Opt out of Medicare.  Providers can formally opt out of Medicare by filing an affidavit with the appropriate Medicare contractor.

Each option has pros and cons that should be weighed carefully before a decision is made.  If you have any questions regarding Medicare provider enrollment or opting out of the Medicare program, please contact the Benesch Health Care group.