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We Defend Healthcare Providers Nationwide in Audits & Investigations

CMS Publishes Stark Self-Disclosure Protocol

CMS Has Published Its Stark Self-Disclosure Protocol(September 30, 2010): The Health Care Reform Act has dramatically changed the future of health care for millions of Americans.  While many of its provisions are directed at access and affordability issues, a significant portion of the Act addresses various loopholes in existing statutory and regulatory provisions aimed at fighting health care fraud.  One of these statutes is the “Physician Self-Referral Statute,” Section 1877 of the Social Security Act, also known as “Stark.”  Section 6409 of the Health Care Reform Act required that the Secretary, Health and Human Services (HHS) work with HHS’ Inspector General of HHS to establish a Medicare self-referral disclosure protocol.  Last week, CMS published its Stark Self-Referral Protocol to be used by providers when disclosing Stark violations.  Notably, this protocol is specifically limited to Stark issues.

As the Stark Self-Disclosure protocol discusses:

“Participation in the SRDP [self-referral disclosure protocol] is limited to actual or potential violations of the physician self-referral statute. The OIG’s Self-Disclosure Protocol is available for disclosing conduct that raises potential liabilities under other federal criminal, civil, or administrative laws. See. 63 Fed. Reg. 58399 (Oct. 30, 1998); OIG’s Open Letter to Health Care Providers, March 24, 2009. For example, conduct that raises liability risks under the physician self-referral statute may also raise liability risks under the OIG’s civil monetary penalty authorities regarding the federal anti-kickback statute and should be disclosed through the OIG’s Self-Disclosure Protocol. Disclosing parties should not disclose the same conduct under both the SRDP and OIG’s Self-Disclosure Protocol.”

When evaluating the self-disclosures made, CMS has stated that it will consider the following factors in its assessment of whether or not to reduce any amounts that may be owed due to violations of the Stark statute.  These include:

(1) The nature and extent of the improper or illegal practice;

(2) The timeliness of the self-disclosure;

(3) The cooperation in providing additional information related to the disclosure;

(4) The litigation risk associated with the matter disclosed; and

(5) The financial position of the disclosing party.

 Importantly, there are no guarantees.  CMS has no obligation to reduce any amounts that may be owed.   The Stark statute can be quite complicated and providers facing Stark issues should discuss these points with qualified legal counsel when deciding whether or not to use the self-disclosure protocol.

Liles Parker attorneys are experienced in assessing business arrangements which may implicate the Stark statute.  Should you have questions regarding Stark or this self-disclosure protocol, please give us a call at:  1 (800) 475-1906.  

ZPICs and PSCs are Enforcing Strict Medicare Signature Requirements

Medicare Signature Requirements(August 4, 2010):  Is your practice complying with Medicare signature requirements? Earlier this year, the Centers for Medicare and Medicaid Services (CMS) issued updated guidance, Change Request (CR) 6698, to be used by Medicare contractors (including Medicare Administrative Contractors, affiliated contractors, CERT contractors, ZPICs and PSCs) when conducting claims reviews of medical documentation submitted by Medicare providers.  CMS reportedly issued this guidance to “clarify and update” various sections of the Program Integrity Manual.  Importantly, this guidance is not intended to supplant any existing specific requirements that may be contained in LCDs or other CMS manuals which may address specific signature requirements (such as signature and timeliness requirements which must be made in connection with Treatment Plans or Plans of Care prepared by health care providers in both private pracice and in clinics.   Several examples of the strict approach that CR 6698 requires include:

  •  For medical review purposes, Medicare requires that services provided / ordered be authenticated by the author.  The method used shall be a hand written or an electronic signature.  Stamp signatures are not acceptable. 

Our comments:  Despite the fact that “stamp signatures” have been problematic for years, we are still seeing cases where a provider has continued to use a stamp of his signature on orders and at the end of record entries. Get rid of signature stamps in your office or clinic!  Contractors that may be looking for an excuse to deny your claims will readily do so if your have used a stamp instead of documenting your signature by hand. 

  •  If there are other reasons for denial, unrelated to signature requirements, the reviewer shall not proceed to signature authorization.  If the criteria in the relevant Medicare policy cannot be met but for a key piece of medical documentation which contains a missing or illegible assessment, the reviewer shall proceed to the signature assessment. 

 Our comments This requirement reinforces the fact that Medicare reviewers are required to assess the adequacy of medical documentation (and presumably of medical necessity), separate and apart from their review of the signature itself.  Once they determine that the medical documentation is otherwise acceptable for coverage purposes, then they will assess whether the signature meets applicable requirements.

  •  If the signature is missing from an order, ACs, MACs, PSCs, ZPICs and CERT shall disregard the order during the review of the claim.

 Our comments This requirement can be extremely harsh, especially when considering the fact that many claims depend on an initial order by a referring or ordering physician.  If in the absence of such an order, the claim will be denied, it becomes readily apparent that providers must be especially diligent in their review of orders to ensure that each one is properly signed.

 These examples represent only a few of the many examples and changes highlighted in CR 6698.  We strongly recommend that you review these changes with each of the providers in your practice or clinic to ensure that everyone is aware of how CMS expects its contractors to proceed when conducting medical reviews.

Should you have any questions regarding these changes to the signature requirements, don’t hesitate to contact us. Liles Parker attorneys have extensive experience representing health care providers in both post-payment and pre-payment audits.  Our attorneys are also experienced in assisting providers with the development and implementation of an effective Compliance Plan.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.




Identity Theft — Red Flags Rule — Treating Doctors Like Banks Is Delayed Once Again

Has Your Practice Implemented the Red Flags Rule?(July 5, 2010): The Federal Trade Commission (FTC) has agreed to once again delay enforcement of its illogical and onerous identity theft Red Flags rule with respect to physicians. The Red Flags rule arose under the Fair and Accurate Credit Transactions Act of 2003 and requires “financial institutions” and “other creditors” to develop written plans to detect identify theft in their day-to-day operations.  Under the FTC’s interpretation of the rule, physicians who permit patients to pay after they have rendered medical service are transformed into “creditors.”Extension of the rule to physicians has been delayed several times as the extent of the burden on health care providers has become clear.  As recently as May 28, the FTC made note of the concerns:

“At the request of several Members of Congress, the [FTC] is further delaying enforcement of the ‘Red Flags’ Rule through December 21, 2010, while Congress considers legislation that would affect the scope of entities covered by the Rule….The Commission urges Congress to act quickly to pass legislation that will resolve any questions as to which entities are covered by the Rule and obviate the need for further enforcement delays.”

The June 25th agreement arises in connection with a suit filed against the FTC last month by the American Medical Association (AMA) and others seeking to prevent enforcement of the Red Flags rule and alleging that the FTC overreached its bounds in seeking to enforce the rule against physicians.   A similar complaint by the American Bar Association (ABA) is currently making its way through the appeals process after the U.S. District Court for the District of Columbia enjoined enforcement of the rule against lawyers.  Until a ruling is issued in the ABA case, the AMA case will be held in abeyance and physicians will be safe from the Red Flags rule.

Health Care AttorneyShould you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

Your Next “Patient” May be an Undercover Agent Performing a Medicare Audit on Your Practice.

Is a Medicare Secret Shopper Audit Taking Place at Your Practice? Have You Implemented Effective Compliance Measures?

(April 10, 2010): As the American Medical Association (AMA) recently reported on March 22nd, 2010, health care providers may find themselves subjected to a Medicare Secret Shopper audit by fellow health care providers and others hired by the government to conduct undercover reviews and investigations.  In a speech he made March 10th, 2010, President Obama expressed interest in a proposal by Senator Tom Coburn, M.D. (R-OK) to have physicians and other health professionals go undercover and pose as patients to root out fraud. Apparently, President Obama included it among with several other Republican proposals which were considered when the recently passed Health Care Reform Bill was enacted.  Dr. Coburn tried to amend the Senate health reform bill with a provision that would direct the Department of Health and Human Services (HHS) to establish a demonstration project for undercover investigations.  While a number of demonstration projects were ultimately included in the legislation, it isn’t clear if this is one of them.

I.  Undercover Medicare Secret Shopper Audit by Patients: AMA’s Response:

Not surprisingly, the AMA has dismissed the idea of paying physicians to pretend to be patients in an effort to smoke out criminal activity.  As the AMA responded:

“The AMA has zero tolerance for health fraud, but there’s no evidence that the undercover-patient tactic would be effective or efficient in finding fraud. . . We are partnering with HHS and the Justice Dept. to address fraud, and we strongly recommend the government target areas where fraud occurs most, instead of wasting physician time that could be better spent caring for real patients.” (AMA President J. James Rohack, M.D.)

Notably, Medicare Secret Shopper audits and investigations are nothing new.  Both HHS and DOJ have used individuals posing as patients or employees in investigations for as long as health care fraud has been prosecuted by the government.

II.  Does The Performance of Undercover Medicare Secret Shopper Audits Affect Your Compliance Plan?

Theoretically, the proverbial “facts are the facts.”  In other words, it really shouldn’t matter if you know you are being subjected to a Medicare Secret Shopper audit or not.  Nevertheless, from a compliance standpoint, treating another health care provider could conceivably present a number of additional risks not normally encountered in a standard billing and coding Medicare audit.  Moreover, this may raise quality of care issues due to differences in professional opinion, variances in standards of care, etc.  In any event, all physicians should work with their legal counsel to develop and implement an effective Compliance Plan and Program.  Hopefully, in doing so, it won’t matter who enters your office — a bona fide patient or an undercover physician — your care will be equally excellent.

Healthcare LawyerRobert W. Liles, Esq. is Managing Partner at Liles Parker.  Should you have any questions regarding compliance issues, don’t hesitate to contact us.  For a complimentary consultation, you may call Robert or one of our other health lawyers at: 1 (800) 475-1906.

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