Posted on September 2, 2010 by Robert Cochran

64 percent of appealed RAC claims decided for providers

According to a recently released report from Centers for Medicare & Medicaid Services (CMS), providers won 64.4 percent of appealed claims during the three-year Recovery Audit Contractors (RAC) demonstration project. Providers appealed 76,000 claims and received favorable decisions on 49,000.

Providers can win a RAC appeal. Preparedness is the first step to surviving a RAC audit. Providers must be prepared to respond to RAC demand letters and requests for medical records. Because RAC audits are generally unannounced, the appropriate time to prepare for an audit is now. Providers should consider the following to prepare for an audit:

  • Not responding is not an option. Providers have a narrow window in which to respond to an audit. Providers have 45 days to respond to a RAC request for medical records. If a provider fails to respond, RACs are authorized to render an overpayment determination on the underlying claims. Failure to timely respond could also result in the loss of valuable appeal rights.
  • Designate someone as the contact person for all audits. Providers should designate appropriate personnel to respond to all audit requests. RACs are required to communicate with providers by email, telephone, letters and in-person. Accordingly, administrative personnel must be available to process correspondence and respond to the RAC's various requests. Training personnel and cultivating a working relationship with the regional RAC may mollify interactions and aid in the timeliness of communications.
  • Collect relevant documents and records. Providers should ensure that the records they produce to the auditor are complete. This will help show the appropriateness of the treatment, billing and reimbursement. The relevant records include not only medical records, but billing information as well.
  • Contact legal counsel. Providers are well served to engage legal counsel to help navigate RAC audits and appeals. Lawyers can help train employees on the details of RACs, including an overview of the regulatory history, "hot button" issues RACs are likely to focus upon, and how to respond appropriately.
  • Investigate the claims at issue. Providers should undertake a careful review of the materials investigated during an audit. RACs are sometimes perceived as overly aggressive in identifying overpayments largely because they are paid on a contingency fee basis. Staying abreast of the scope of the audit may reveal issues that are ripe for appeal.
  • Keep a written record of all contact with auditors and a set of all documents sent to auditors. Because the audit findings can be appealed, providers should retain a copy of all documents provided to the RAC. Providers should also memorialize the date, time and a brief description of all communications during the audit. Keeping accurate records will protect providers if a problem arises regarding the conduct of the audit. It will also help the provider appeal an adverse audit finding.
  • Become familiar with the appeals process. RAC denials are subject to the Medicare Part A and Part B appeals process with two differences. First, providers are given 15 days from the date they receive an improper payment letter from a RAC to rebut the RAC's findings, although providers are not required to go through this rebuttal process before filing an appeal. Second, a provider appealing a RAC determination must file an appeal to its fiscal intermediary within 30 days of the date that the provider receives the fiscal intermediary's notice indicating the amount of overpayment identified by the RAC. Given the number of appeals decided in the provider’s favor, the importance of audit preparation and understanding your appellate rights cannot be understated.
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Posted on September 1, 2010 by Kris Dawley

New requirements tax-exempt hospitals face under health care reform

Presenters:
Mark Gilgus, Seigfreid, Bingham, Levy, Selzer & Gee, P.C.
Mark Thompson, Seigfreid, Bingham, Levy, Selzer & Gee, P.C.

Tax-exempt hospitals face a number of new requirements under the Patient Protection and Affordable Care Act. These include greater accountability for community benefits provided by them, requirements regarding patient access to available charity care, requirements for less aggressive billing and collection of patient pay amounts, and adverse tax consequences for those that do not comply. Gilgus and Thompson review these provisions for tax exempt hospitals.

This podcast is part of the Law Firm Alliance – 2010 Health Care Reform podcast series, which can be accessed in its entirety by clicking here.

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Posted on August 20, 2010 by Kris Dawley

Tax related provisions in health care reform

Presenters:
Jeff Tauscher, Seigfreid, Bingham, Levy, Selzer & Gee, P.C.
Mark Thompson, Seigfreid, Bingham, Levy, Selzer & Gee, P.C.

The Health Care Reform Law contains significant tax-related provisions. These include incentives and disincentives for individuals and businesses that phase in over a period of years. Jeff and Mark highlight those everyone should be aware of.

This podcast is part of the Law Firm Alliance – 2010 Health Care Reform podcast series, which can be accessed in its entirety by clicking here.

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Posted on August 18, 2010 by Robert Cochran

New timely filing requirements for Medicare fee-for-service claims

Section 6404 of the Patient Protection and Affordable Care Act (the Act) amended the timely filing requirements to reduce the maximum time period for submission of all Medicare fee-for-service claims to one calendar year after the date of service.

Under the Act, claims for services furnished on or after Jan. 1, 2010, must be filed within one calendar year after the date of service. In addition, Section 6404 mandates that claims for services furnished before Jan. 1, 2010, must be filed no later than Dec. 31, 2010.

According to CMS, the following rules apply to claims with dates of service prior to Jan. 1, 2010:

  • Claims with dates of service before Oct. 1, 2009, must follow the pre-Act timely filing rules.
  • Claims with dates of service Oct. 1, 2009 through Dec. 1, 2009, must be submitted by Dec. 1, 2010.

Section 6404 of the Act also permits the Secretary of the U.S. Department of Health and Human Services to make certain exceptions to the one-year filing deadline. At this time, no exceptions have been established.

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Posted on August 13, 2010 by Robert Cochran

Hospital hit with lawsuit after complying with grand jury subpoena

On Feb. 1, the U.S. District Court in Cleveland issued a significant decision concerning the disclosure of medical information in response to a grand jury subpoena.

The grand jury subpoena was issued to the Cleveland Clinic as part of a criminal investigation of James Turk for carrying a concealed weapon. The Cleveland Clinic complied with the subpoena and supplied the records to a police detective as instructed by the subpoena. As a result of the criminal investigation, Turk was charged with various offenses. A jury eventually acquitted him of one charge and the other charges were dismissed. Turk then filed a lawsuit in federal court against the police and various other defendants, including the Cleveland Clinic. The lawsuit alleged the defendants violated his rights in connection with the criminal investigation.

Regarding his medical records, Turk claimed the Cleveland Clinic violated his privacy rights by releasing privileged medical records in response to the grand jury subpoena. The clinic argued the claim should be dismissed because the clinic was responding to a grand jury subpoena. The clinic argued that Ohio courts do not extend the physician-patient privilege to records subpoenaed by the grand jury because the disclosure to the grand jury is not a public disclosure. The clinic also argued that the disclosure was required because there is a countervailing interest in investigating criminal activity.

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Posted on August 10, 2010 by Stephen Kleinman

Patient Protection and Affordable Care Act mandated health insurance reform

Presenters:
Stephen Kleinman, Schottenstein Zox and Dunn, Partner, Health Care Practice Group
Robert Cochran, Schottenstein Zox and Dunn, Of Counsel, Health Care Practice Group

The Patient Protection and Affordable Care Act (PPAC) is anticipated to expand insurance coverage to 32 million people. As a result, the specific legislative changes discussed in this podcast will impact millions of Americans and the way health insurance companies do business. Listen as Steve and Bob discuss these changes.

This podcast is part of the Law Firm Alliance – 2010 Health Care Reform podcast series, which can be accessed in its entirety by clicking here.

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Posted on March 25, 2010 by Robert Cochran

Health Care Reform Enhances Fraud and Abuse Laws

The Patient Protection and Affordable Care Act (H.R. 3590), signed into law on March 23, 2010, contains new fraud and abuse provisions. Some of the key fraud and abuse provisions include:

  • Requires all providers to implement compliance programs. The U.S. Department of Health and Human Services (HHS) will develop core elements for inclusion in a compliance program.
  • Requires providers to report and return overpayments within 60 days of identifying the overpayment (or the date any corresponding cost report is due). Providers must state in writing the reason for the overpayment. Clarifies that an overpayment retained after the deadline for reporting and returning the overpayment is an “obligation” for purposes of the False Claims Act (FCA). Under the FCA, any provider who knowingly retains an overpayment can face civil prosecution.
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Posted on February 10, 2010 by Kiana Russell

Hospital-based eligible professionals are excluded from ARRA EHR incentives

Does this reach hospital employed-physicians and physicians employed by hospital-affiliated practices?

On December 30th, the Centers for Medicare and Medicaid Services released its proposed rule for the American Recovery and Reinvestment Act (ARRA) of 2009 electronic health record incentive program. This Interim Final Rule represents the first step in an incremental approach to adopt standards, implementation specifications, and certification criteria to enhance the functionality, utility, and security of health information technology and to support its meaningful use. Among the issues that will impact providers is which physicians will qualify for the Medicare eligible professional EHR incentive payments.

ARRA provides that no Medicare incentive payments for meaningful use of certified EHR technology may be made to hospital-based eligible professionals. ARRA defines a “hospital-based professional” as an otherwise eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of his or her covered professional services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital.

Under the propose rules, the determination of whether an eligible professional is a hospital-based eligible physician is to be made on the basis of the site of service (as defined by the DHHS Secretary). Based on the language in ARRA and the proposed rule, it appears the EHR incentive payments will not be made to physicians who:

  • furnish “substantially all” (quantified by CMS as at least 90% of a physician’s services)
  • of their “covered professional services”
  • in a “hospital setting” (including place of service codes 21 – Inpatient Hospital, 22 –   Outpatient Hospital, and 23 – Emergency Room)
  • that is either “inpatient or outpatient” and
  • through the use of the facilities and equipment of the hospital, including the qualified EHR of the hospital.

It is important to point out under these proposed rules that “hospital-based” does not focus on the employment or billing arrangement, but rather on the site of service. The foregoing may mean that in situations where a hospital employs a physician and handles the physician’s billing, this arrangement in and of itself does not make a physician “hospital-based.” If the physician’s practice is not conducted in a facility that is part of the site “licensed” as a hospital, then under the proposed rules the physician may not be practicing in a “hospital setting” and therefore not considered “hospital based,” assuming of course the physician does not exceed the 90% threshold “site of service” test. Remember, however, that the EHR rules are only proposed at this time. These situations may be addressed more clearly in the final rule scheduled to be published in March 2010. Stay tuned.

This post was co-authored by Anthony Shaffer.

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Posted on January 5, 2010 by David Kopans

CMS Annual Report on National Health Spending

The Centers for Medicare and Medicaid (CMS) released its annual report on national health spending. According to the CMS press release, 2008 had the "the slowest rate of growth since [CMS] started officially tracking expenditures in 1960." The rate slowed to 4.4 percent down from 6.0 percent in 2007.

However, despite the decelerated growth, health spending's share of the gross domestic product increased from 15.9 percent in 2007 to 16.2 percent in 2008.

CMS also reports the following statistics:

  • Hospital spending in 2008 grew 4.5 percent to $718.4 billion, compared to 5.9 percent in 2007, the slowest rate of increase since 1998. 
  • Physician and clinical services’ spending increased 5.0 percent in 2008, a deceleration from 5.8 percent in 2007. 
  • Retail prescription drug spending growth also decelerated to 3.2 percent in 2008 as per capita use of prescription medications declined slightly, mainly due to impacts of the recession, a low number of new product introductions, and safety and efficacy concerns.
  • Spending growth for both nursing home and home health services decelerated in 2008.   For nursing homes, spending grew 4.6 percent in 2008 compared to 5.8 percent in 2007. 
  • Total health care spending by public programs, such as Medicare and Medicaid, grew 6.5 percent in 2008, the same rate as in 2007. 
  • Health care spending by private sources of funds grew only 2.6 percent in 2008 compared to 5.6 percent in 2007. 
  • Private health insurance premiums grew 3.1 percent in 2008, a deceleration from 4.4 percent in 2007.
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Posted on December 4, 2009 by David Kopans

NIH Approves First Human Embryonic Stem Cell Lines under New NIH Guidelines

The National Institutes of Health, a component of the U.S. Department of Health and Human Services, approved the first human embryonic stem cell lines under the new NIH Guidelines for Human Stem Cell Research. According to the NIH's press release, the NIH has approved 13 lines and an additional 92 lines are awaiting the NIH's review.

The NIH Guidelines were released on July 7, 2009 to implement President Barack Obama's executive order issued earlier in the year that removed the limitations on the use of federal funds for human stem cell research. The limitations had been established through an executive order issued by President George W. Bush in 2001.

For more information on President Obama's executive order and its impact on stem cell research, please see SZD's article "Campaign ‘08 and the Obama Administration’s Rejuvenation of Stem Cell Research" as published in Life Sciences, A Publication of the American Health Lawyers Association.

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