Archive for the ‘Physician Issues’ Category

Authentication of Verbal Orders by Other Responsible Practitioner

Wednesday, January 24th, 2018

By Fisher, JD, CHC, CCEP

Authenticating Verbal Orders

Authentication of Verbal Orders

In a past blog article, I discussed the need for physicians to promptly authenticate verbal orders. The failure of a physician to timely sign a verbal order can have reimbursement implications. In some cases, in some states, another responsible provider can sign a verbal order that is originally given by another practitioner. This option is not always available and depends a lot on whether state law permits the practice. Some states require the practitioner who gave the verbal order to authenticate the order. With the use of electronic medical records, practitioners cannot expect leniency on these types of requirements.

In states that permit one practitioner to authenticate for another, the authenticating proxy practitioner should understand that he or she is accepting responsibility for the authenticated verbal order. State scope of practice rules apply to cross authentication of orders. In otherwords, the practitioner authenticating the order must have practice authority to have provided the original verbal order. Facilities can develop policies that a more restrictive then what the law permits. Policy can eliminate or restrict cross authentication practices. There is inherent risk in permitting cross authentication because the authenticating provider did not give the original verbal order. Additionally, as

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Hold On Just a Daw-Gone Minute – Physician Payment Act Dispute Process

Tuesday, April 11th, 2017

Disputing Inaccurate Reports Under the Physician Payment Sunshine Act

disputing sunshine act reportIn 2013, CMS issued final regulations interpreting and clarifying the requirements of the Physician Payment Sunshine Act (“Sunshine Act”) .  The final regulations clarify the reporting process, identifies exceptions and exclusions from the reporting requirements, and provides further details regarding what constitutes a reportable relationship.  The final rule delineates the specific data elements that reporting organizations are required to include and the reporting format that is required.  Reporting organizations that fail to make required reports are subject to potential civil monetary penalties.

Physicians are often surprised to see the information that reporting agencies submit.  Early on, errors in reporting were frequent as reporting companies struggled to integrate reporting requirements into their compliance process.  Reports tend to be more accurate now, but there are certainly instances where reporting organizations make reports that should be questioned.  A process is included to afford physicians and teaching hospitals to review and dispute the information that a reporting organization proposes to report.  The regulations require physicians to exercise diligence to review the information that is being submitted describing items of benefit that they are alleged to have received.  The regulations include a 45-day review and correction period, but report information does not automatically come to a physician unless affirmative action is taken to sign up to receive this information.

If the physician or teaching hospital receives notification, a process can be used to dispute the proposed disclosure with the applicable manufacturer.  There is a very short time window to dispute and resolve the issue before publication is made for the applicable year so it is critical that a dispute be invoked promptly upon receipt of notice of the proposed report.  Signing up for notifications also permits access to the web based dispute system.  The review period lasts for 45 days and reporting organizations have 15 days after the end of that period to correct data to resolve disputes.

Errors in amount, the nature of items reported, and methodology of calculating or allocating expenditures among numerous recipients are frequent areas of error.  For example, situations have occurred where expenditures that benefitted numerous physicians were allocated to a single physician.  The opportunity for error in reporting are endless; particularly given the multiple parties that can be involved in the reporting chain for the reporting company.

Inaccurate reporting is not without consequence to the subject of the report.  Inaccurate reports can be indicative of conflict of interest and can impact publication or reviewer credibility.  A report can also be an indication of further potential fraudulent payments and can result in further government investigation regarding the fair market value of services provided in a consulting or other relationship.  In extreme cases, payments that are inflated over fair market value for services that are actually and legitimately provided can indicate potential Anti-Kickback Statute and other compliance violations that can carry significant penalties.  If a review is based on an inaccurate or inflated report, a positive resolution can likely be reached with investigators.  However, anyone who has ever been involved in a government compliance investigation understands the intangible damage that the process can create.

In order to avoid complication that could result from inaccurate reports, physicians and other reporting subjects should be certain to register to receive notification of proposed Physician Sunshine Act reports.  Any inaccuracies should be disputed promptly.

Clinically Integrated Networks – Fee Sharing Procedures

Tuesday, June 2nd, 2015

By John Fisher, JD, CHC, CCEP

Jointly Providing Health Care Fee Information to Payers 

As health care provider networks move down the path toward clinical integration, we are often asked to provide guidance on how information can be jointly provided to payors.  The antitrust laws recognize that collective sharing of some pricing information, even by otherwise competing providers, can be beneficial and does not necessarily violate antitrust laws.  However, there are significant limitations on what can be jointly provided and how the information can be shared.

At the outset, it should be clarified that collective negotiations by competing providers who are not financially or clinically integrated should never take place and constitutes a per se violation of federal antitrust laws.  Prohibited activities include any action in contemplation of or in furtherance of an agreement on fees or other aspects of reimbursement.  It is unlawful for a non-integrated group of competing providers to agree on or suggest a central fee schedule.  Any activity relating to prospective fees should be avoided.

Competing providers can jointly provide information on fees currently being charged or that have been charged in the past as long as certain safeguards are implemented and strictly followed.  The FTC and DOJ have stated that the joint provision

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Ambulatory Surgery Centers – Federal Settlement Highlights Safe Harbor Requirements

Tuesday, June 2nd, 2015

By John Fisher, JD, CHC, CCEP

ASC Investments Safe Harbors

A Tennessee based ambulatory surgery center company has agreed to pay damages to a former employee who filed a suit alleging that physician investments in local surgery center entities violated the Anti-kickback Statute.  The case highlights some of the unique kickback issues that are present in ambulatory surgery center structure.  Specifically, the case demonstrates how investment terms that are intended to assure compliance with the safe harbor regulations under the Medicare Anti‑Kickback Statute (42 U.S.C. § 1320a-7b(a)-(b)) can create evidence of non-compliance if the initial terms of the offering relate, in whole or in part, to the volume or value of expected referrals from the investor in the ASC venture.

In order to comply with safe harbor requirements, ASCs must generally require investing physicians to use the facility as an extension of their medical practices.  However, if the terms of the investment are based on the volume or value of referrals, those same requirements become evidence that referrals are being required in exchange for remuneration.  In the Tennessee case, the ASC management company purchased controlling interests in local surgery center entities at a high multiple of earnings.  Physicians who were referral sources were offered investments at less than 1/3 of the

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Primary Care Integration Strategies – The Division Model Group Practice

Tuesday, June 2nd, 2015

By John Fisher, JD, CHC, CCEP

 It is no secret that the role of primary care is central to the creation of systems to respond to health care reform and changing reimbursement models.  To the extent primary care providers have not already relinquished their strategic positions by becoming employed, entering provider service agreements or service line management agreements with hospital controlled systems, primary care providers maintain a strong position in the market.

Primary care groups are still faced with the need to create or participate in organizations that provide for the best means to manage patient care.  Primary care groups are seeking strength in numbers by creating larger groups.  The goal is to best maintain their competitive position, to diversify risk, to create efficiencies through shared savings opportunities, and to maintain appropriate levels of influence over care cycles, protocols and division of emerging, episodic-based payment.

In order to achieve these goals, some independent primary care groups are considering merger with other groups.  Oftentimes, merging providers will seek ways to maintain some degree of intra-office independence while still taking advantage of the benefit of a larger group.

Provider mergers and acquisitions, particularly between competing independent practices in the same specialty area, can create sensitive antitrust issues.  Generally, competing providers

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How Much Clinical Integration Is Enough?

Tuesday, May 20th, 2014

By John Fisher, JD, CHC, CCEP

Clinical Integration Attorney

 

Analysis of all available resources makes it clear that there is no single formula for achieving clinical integration and each organization will be unique in the mechanisms and processes that are used to achieve required levels of collaboration and interdependence between providers.  Clinical integration is a process of continual assessment and enhancement.  When we are speaking of clinical integration from an antitrust standpoint, we must determine whether the systems and mechanisms are in place and continuously operating to enhance quality and efficiency.

For more coverage of clinical integration, visit the clinical integration section of the Health Law Blog.

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Auditing Physician Payments For Stark Law Compliance

Tuesday, April 8th, 2014

By John Fisher, JD, CHC, CCEP

One area of compliance that is often overlooked involves auditing of physician payments.  Physician contracts are often audited to determine whether they comply with a Stark Law exception.  Compliance should also work in the other direction, from payments that are made back to the existence of a contract that memorializes an applicable Stark Law exception.

Periodic monitoring of payments that are made to physicians should be undertaken.  Payments should be tracked to contracts to assure that the payment is covered by an applicable exception.  If there is no corresponding written agreement or if the written agreement has expired, there could be a potential Stark Law violation.  Further examination concerning the nature and purpose of the payment should be made.  If a Stark Law violation is found, self disclosure should be considered.

 

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New Physician Assistant Supervision Requirements Effective March 1

Tuesday, March 11th, 2014

Wisconsin MEB Changes PA Supervision Requirements

The Wisconsin Medical Examining Board (MEB) recently approved several changes impacting physician supervision of physician assistants (PAs) in Wisconsin. These revisions are reflected in the Wisconsin Administrative Code Med 8 (Med 8) and became effective March 1, 2014. It is important that physicians be aware of the changes and the impact the revisions may have on their practice.

Here’s an overview of the key changes:

Supervising Physician to Ratio
A supervising physician may now simultaneously supervise four, rather than two, on-duty PAs. There is no limit to the number of PAs that a physician can supervise over time, and a PA may be supervised by more than one physician while on duty. A physician may still request authorization from the MEB to supervise additional PAs.

PA Prescribing
PA prescribing is simplified under Med 8. A PA may prescribe orders for drugs provided the PA’s prescriptive practices are initially reviewed, and at least annually reviewed after the initial review, by a supervising physician. Reviews must be documented and signed by the supervising physician, and the PA must be available to the MEB upon request.

Identifying the Supervising Physicians
Med 8 adds the requirement that the supervising physician must be readily identifiable by the PA. The rule does not require a specific manner of documentation—just that it is being documented.

Substitute Supervising Physicians
Substitute supervising physicians no longer need to be reported to the MEB.

On-Site Visit and Review of PA Practice Locations
A supervising physician is no longer required to make a monthly visit and on-site review of each facility where the PA practices.

The full text of Med 8 is available online. Physicians who supervise PAs should be conscious of the new requirements and adjust their practices accordingly to ensure compliance.

Effective Dental Practice Compliance Cycles

Saturday, February 2nd, 2013

Establishing Effective Dental Practice Compliance Cycles

Dental practices normally focus their compliance efforts on regulations of the Occupational Safety & Health Administration (OSHA) and the Health Information and Portability Act of 1996 (HIPAA).  Until recently, dental practices have avoided many of the fraud and abuse enforcement activities that have been directed toward medical practices.  The environment for dental practices is beginning to change and we are seeing more governmental auditors and private contractors turn more attention toward review of dental claims.

Penalties for failure to follow billing rules can be very significant; particularly when a governmental health program is the reimbursement source.  For example, failure to return overpayments to a governmental program within 60-days following identification can result in liability of three times the amount of the overpayment, plus up to $11,000 per claim.  When discovery of an overpayment leads to other incorrectly submitted claims due to a systematic billing error, the penalties add up quickly.  Errors that are not discovered by the provider but could have been discovered through an “effective” compliance program will be deemed to have been “identified” and subject to penalty if discovered by a governmental or private auditor on review.

Because of the increased enforcement efforts, dental practices are beginning to recognize the need to establish systematic compliance programs that extend beyond the usual OSHA and HIPAA issues.  The Medicare Office of Inspector General has recognized that dental practices need to establish systematic compliance programs that include identification of potential legal risk areas and systematic audits of high risk areas.  “Off the shelf” form policies will not be  adequate to create a compliance program that is “effective” and in fact will often create additional risk.  Every clinic is unique and a “one-size-fits all” plan will not likely meet the government’s standards for “effectiveness.”

        

Using “form” policies may give you a sense of security, but shortcut the important step of going through the institutional process of identifying risk areas and creating compliance cycles that are unique to your specific organization.  A compliance program must be viewed much more as a process that must be continually operated rather than a set of policies.  It is important to create a “compliance cycle” which involves a continued process of risk identification, auditing and monitoring, training of personnel, corrective actions and appropriate plan revisions.  Attempting to shortcut the process necessary to create an organic compliance cycle will not result in an “effective” program and will not likely withstand governmental scrutiny.

John H. Fisher, CHC, CCEP is a healthcare attorney with Ruder Ware in Wausau, Wisconsin.  John is certified in healthcare compliance by the Health Care Compliance Association.  He is also certified in corporate compliance and ethics by the Society for Corporate Compliance and Ethics.  John is an active blogger on healthcare and compliance issues at www.healthlaw-blog.com.