Category Archives: Payers

2016 Is Ramping Up For Telemedicine Developments

Two months in and this year has already seen significant movement in regulatory action across the country to expand the ability to provide telemedicine services. Below please find some of the more significant items that have already gone into effect in 2016 or are under consideration, including commercial payor and Medicaid reimbursement coverage for telemedicine services, reciprocal licenses for out-of-state providers and the ability to prescribe without an in-person evaluation.

Parity Laws in New York and Connecticut

Effective January 1, 2016, New York passed a Chapter Amendment clarifying last year’s telemedicine commercial coverage statute.  Under the 2016 Chapter Amendment, private insurers are required to cover services via telemedicine if provided by hospitals, home care and hospice agencies, licensed physicians, physician assistants, dentists, nurses, midwives, podiatrists, optometrists, ophthalmic dispensers, psychologists, social workers, speech language pathologists and audiologists.  The parity law prohibits an insurer from excluding from coverage a service provided via telehealth if that service is otherwise covered in-person.

The law also provides for Medicaid reimbursement to providers for telehealth services, which is defined broadly to include real-time two-way electronic audio visual communications, asynchronous store and forward technology and remote patient monitoring. However, with the exception of remote patient monitoring, telehealth will not be reimbursed by Medicaid when the patient is located in their home.  The New York Department of Health is expected to release telemedicine regulations later this year.

Similarly, Connecticut also recently passed a new telemedicine parity law that went into effect January 1, 2016. Under Connecticut’s parity law, commercial insurers must provide coverage for services rendered via telemedicine under the same terms and conditions as would apply if that service was provided in-person.  Connecticut broadly defines telehealth to include services performed by a telehealth provider at a distant site as well as synchronous interactions, asynchronous store and forward transfers and remote patient monitoring.

Notably, Connecticut went even farther than New York in its telehealth parity law by expressly preventing a health plan from excluding a service from coverage solely because the service is provided through telehealth and not in-person. In this way, a health plan cannot exclude a telehealth service, such as remote patient monitoring, simply because it does not lend itself to an in-person professional service.

Florida’s Controlled Substance Teleprescription Law

Florida recently implemented a new rule to permit physicians to prescribe controlled substances via telemedicine exclusively for the treatment of psychiatric disorders, effective March 4, 2016. Specifically, the amended regulation provides that controlled substances may not be prescribed through the use of telemedicine, “except for the treatment of psychiatric disorders.”

However, after passing this new rule, the Florida Board of Medicine recognized that it is still restricted by the Federal Ryan Haight Online Pharmacy Consumer Protection Act of 2008.  The Ryan Haight Act narrowly permits the remote prescription of controlled substances for patients without an in-person evaluation so long as the patient is: (1) physically located in a hospital or clinic with a valid DEA registration; and (2) treated by a DEA registered practitioner in the usual course of professional practice and in accordance with state law.  Accordingly, while Florida is expanding its telemedicine laws, the prescription of controlled substances via telemedicine will only be broadly permissible if the American Telemedicine Association, or other organizations, are successful in amending the Ryan Haight Act.

Newly Introduced Telemedicine Bills in New Jersey and Ohio

Various other states are also in the process of trying to pass telemedicine bills. For example, New Jersey recently introduced a bill on February 8, 2016, that would require private payors to provide coverage for telemedicine to the same extent that the services would be covered if they were provided through an in-person consultation.

Additionally, another NJ telemedicine bill was introduced on January 12, 2016, which would provide a mechanism for physicians and other health care providers to obtain reciprocal licenses to practice in New Jersey if the providers are licensed by another state in their particular specialty.  The bill would also provide a parity law for telemedicine services to be reimbursed under NJ Medicaid.  As a similar bill was proposed in 2015 and has now carried over into the 2016 session, the likelihood of its passing is even greater.

An Ohio legislative bill is also headed to the Senate that would allow patients to obtain prescriptions (for non-controlled substances) without an in-person exam or visit from a health care provider.

For more information on telehealth and telemedicine legal and regulatory considerations, continued legislative developments or related issues, please feel free to contact Daniel Meier or any member of our health care practice group for a further discussion.

CareFirst, Third Major Health Insurer This Year To Be Hit By Cyberattack

On May 20, 2015, CareFirst BlueCross BlueShield (“CareFirst”) announced that it was the latest victim of a major cyberattack, with as many as 1.1 million plan customers affected.  Current and former CareFirst members and individuals who do business with CareFirst online who registered to use CareFirst’s websites prior to June 20, 2014 are impacted by this event.

CareFirst said that although the hackers may have acquired customer names, email addresses, birthdates, customer-created user names and subscriber identification numbers, they did not obtain sensitive financial or medical information like Social Security numbers, medical claims, credit card or employment information or passwords associated with the user names.  The company has stated that those affected by the cyberattack will be provided two free years of credit monitoring and identity theft protection.

As an explanation of how CareFirst learned of the breach, Chet Burrell, CareFirst’s chief executive, said that after cyber attacks on other insurers earlier this year, he created a task force to review the company’s information technology systems.  CareFirst then hired Mandiant, a division of FireEye, to perform a forensic review of its systems.  Last month, Mandiant determined a breach had occurred in June 2014 allowing unauthorized access to a single database with the information listed above.

Just hours after the announcement of the breach, class action law firms were already investigating the circumstances of the breach and seeking plaintiffs who may have been affected.  Now that state claims may be brought based on HIPAA as a standard of care, the suits will likely consider potential harm due to the disclosure and whether CareFirst adequately protected the information and provided timely notice.  These are the same types of claims brought in the numerous class action lawsuits after the Anthem cyber-attack in February 2015.

The cyber-attack and pending lawsuits should serve as a reminder for healthcare companies to review and properly implement their HIPAA privacy and security policies and procedures.  For more information on HIPAA, health care compliance or related issues, please feel free to contact Daniel Meier or any member of our health care practice group for a further discussion.

OIG Publishes Special Fraud Alert Regarding Laboratory Payments To Referring Physicians – Some Arrangements May Violate the Anti-Kickback Statute

The laboratory market has become quite competitive in recent years, raising compliance concerns and investigations into lab relationships with referring physicians. Accordingly, on June 25, 2014, the OIG released a Special Fraud Alert (the “Fraud Alert”) which provides guidance about two different types of suspect arrangements: (1) Blood-Specimen Collection; and (2) Registry Payments. The concerns raised here by the OIG involve referring physicians receiving payments from laboratories who may not even be aware that these arrangements are violating the Anti-Kickback Statute due to their complicated nature.

The OIG explained that it is concerned about arrangements in which a lab pays a physician more than fair market value (“FMV”) for the physician’s services or for services the lab does not actually need or for which the physician is compensated. The four major concerns typically associated with kickbacks involving labs include: (1) corruption of medical judgment; (2) overutilization; (3) increased costs to the Federal health care programs and beneficiaries; and (4) unfair competition. These concerns arise because arrangements with labs could induce physicians to order tests from a lab that provides them with payment, rather than utilizing laboratories that provide the best, most clinically appropriate service. Indeed, the choice of which laboratory to use and whether to even order lab tests are decided by or at least strongly influenced by the physician. Continue reading

Comments Solicited for Draft of Revised Guidebook for National Practitioner Data Bank

The Health and Resources and Services Administration (“HRSA”) of the Department of Health and Human Services has issued notice of a draft revised guidebook for the National Practitioner Data Bank.  The Guidebook provides policies that serve as a resource for Data Bank users to clarify legislative and regulatory requirements.  The Guidebook provides examples for querying the Data Bank and reporting professionals to the Data Bank along with frequently asked questions (FAQs). Comments are being solicited through January 10, 2014; Locate the draft Guidebook and directions on submitting comments at NPDB Website.

NYS Identifies $496 Million in Medicaid Home Health Erroneous Payments

On October 30, 2013, the New York State Office of the Medicaid Inspector General (“OMIG”) issued a press release that New York recovered $211 million from the federal government out of an identified $496 million in Medicaid erroneous payments related to home care recipients who are dually eligible for both Medicare and Medicaid funds.  On October 1, 2013, the New York State Department of Health’s Fiscal Group received the $211 million payment through the action of OMIG, which was the largest single monetary recovery in OMIG’s history.

These payments were recovered by New York State as part of a federal project, the Third-Party Liability Home Health Care Demonstration Project, which is reviewing home health care involving dual eligible recipients, and is being conducted in conjunction with the University of Massachusetts Medical School.  Continue reading

Protecting Your Organization From Exclusion Sanctions – Compliance Today Article

The federal government has a wide array of sanctions it can levy against individuals and organizations that run afoul of the laws and regulations governing Medicare, Medicaid, and other federal healthcare programs.
One of its most effective tools is the ability to exclude persons convicted of certain criminal or civil violations from further participation in federal healthcare programs. Protecting your organization from individuals and entities that are excluded is an integral part of the operations of any organization that does business with federal health care programs.

Ari J. Markenson and Kelly Skeat discuss these issues in a recent article in the September issue of the Health Care Compliance Association’s Compliance Today magazine.

A copy of the article can be found here —> Protecting Your Organization From Exclusion Sanctions

CMS Announces Discontinuance of the HHABN in Transmittal 2782

On September 6th, 2013, in its Transmittal 2782, CMS announced the discontinuance of the use of the HHABN.  Advance Beneficiary Notices of Noncoverage or ABNs are required to be issued by providers in order to inform medicare beneficiaries about possible non-covered services/charges. Transmittal 2782 announces that home health agencies (HHAs) will  discontinue the use of HHABNs (Form CMS-R-296, the specific form for HHAs) and starting in December will use the ABN (Form CMS-R-131) for liability notification. The transmittal provides instructions for HHAs on the use of the ABN and also provides some clarification to the manual instructions on ABNs  in Medicare Claims Processing Manual (Pub. 100-04), Chapter 30, Section 50.

You can find a copy of the transmittal at here –> CMS Transmittal 2782