Articles Posted in Physician Practices

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health-insuranceOverview

Credentialing is used to evaluate physicians for different purposes and is required of almost all physicians. It is utilized by hospitals when evaluating physicians for medical staff positions and hospital privileges and when enrolling in health insurance plans as a participating provider. Unfortunately, this process has not been streamlined and can be very time consuming and complex.

Provider credentialing is meant to verify experience, expertise, and willingness to provide medical care. It is often a complex, ongoing process that can take several months to be completed and approved and is an administrative hassle for employers, insurance companies, and physicians. While credentialing was historically just proof of licensure, modern credentialing goes far beyond proof of diploma and license.

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georgia_capitol_domeOverview

It is important for all medical professionals to have a better understanding of their licensing board and the process for licensure appeals. The Georgia Composite Medical Board (“Board”) governs licensure for physicians, physician’s assistants, pain management clinics, clinical perfusionists, acupuncturists, orthotists and prosthetists, respiratory care professionals, and laser practitioners. The Board also regulates provisional, teacher, institutional, and administrative medical licenses.

The Board consists of thirteen physicians, two consumer members, and one physician assistant (PA) ex-officio member. Beyond licensure, the Board, in compliance with state law, also promulgates rules and regulations that govern the practice of medicine in Georgia. In order to stay in compliance with federal Antitrust laws (see NC State Board of Dental Examiners v. FTC), these rules are passed in accordance to legal advice received from the Attorney General’s Board representative and the rules are also subject to the Governor’s executive oversight of all licensing boards (HB 952). All proposed rules are also open to public comment and the Board encourages interested parties to come to the open portions of their monthly Board meetings to listen and comment if desired.

Investigations and Discipline 

There are many reasons that a medical professional may find themselves without an active license, including disciplinary action or simply failure to renew their license on time. Professionals are able to renew their license, apply for a new license, apply for reinstatement of a lapsed license and more online on the Board’s website. If a medical professional’s license has lapsed, it is unlawful for them to continue to practice and they must submit a reinstatement form and be approved before resuming.

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handcuffs-1156821-mThe U.S. Department of Health and Human Services (HHS) recently released its Medicaid Fraud Control Units Fiscal Year 2015 Annual Report (the “Report”).  The Report’s findings highlight 1,553 convictions, 731 civil settlements, and $744 million in criminal and civil recoveries relating to Medicaid fraud and abuse. Fraud and Abuse financial recoveries remain a top priority for the Federal Government and hence a primary objective of Federal law enforcement.  Our Georgia business and healthcare law firm follows developments in the world of healthcare law, including fraud and abuse issues.

Background

The Social Security Act (SSA) mandates that, absent certain circumstances, each State operate a Medicaid Fraud Control Unit (MFCU). The District of Columbia and forty-nine States currently maintain MFCUs.   MFCUs are one of many Federal law enforcement tools in its fraud and abuse arsenal.  The statutory mission of MFCUs is to investigate and prosecute Medicaid fraud by health care providers and patient abuse and neglect.  HHS’ Office of Inspector General (OIG) certifies, provides oversight of, and assesses performance relative to Federal compliance standards of all MFCUs.  The States are responsible for operation of MFCUs and receive reimbursement for a percentage of their costs from the Federal Government, pursuant to the SSA.  MFCUs are currently reimbursed for 90% of their costs for the first three years of their operation and 75% thereafter.

Each MFCU employs staff that comprise investigator(s), auditor(s) and attorney(s) to review referrals of potential fraud and abuse involving Medicaid and to make decisions regarding potential civil and/or criminal prosecution.  The Report essentially provides the latest annual update on the success of MFCUs in prosecuting Medicaid fraud matters.

A Few Findings of the Report

The Report’s findings include:

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mobile-phone-in-hand-1438231-1-mHow could it not?

The healthcare industry is rapidly evolving.  As recently reported in U.S. News and World Report, next on telemedicine’s horizon may be virtual care clinics.  In fact, so-called virtual care will likely revolutionize the delivery of health care in the coming years. “Virtual,” in this context, alludes to the fact that care providers, doctors, nurses and therapists, may provide most care from many miles away.

Georgia Health Care Law Firm

Various genres of “virtual care” delivery exists already.  One notable pioneer is Mercy Virtual.  Mercy, based in Chesterfield, Missouri, emphasizes that an objective of its mission is to ensure access to quality care, explaining: “Mercy Virtual’s mission is to connect patients with leading care providers whenever, wherever they need help.”  In recent years, many other medical businesses are finding and developing their own niches in the evolving virtual healthcare world.  Several of the numerous examples are: Teladoc, which provides online, 24/7 access to primary care physician services; American Well, which claims to offer “telehealth” to more than 100 million people in an online marketplace where customers select their healthcare provider from a list; Carena provides a range of healthcare services that include virtual visits for the employees of self-insured companies; Zipnosis is a platform that, through “phone and video care,” helps patients get answers to their healthcare questions and helps physicians treat primary care ailments; MeVisit enables “e-visits” that allow patients to use their mobile device to connect with a doctor.

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gavel-952313-mOn August 1, 2016, the United States Department of Justice (DOJ), through the United States Attorney’s Office, Northern District of New York issued a press release regarding the DOJ’s resolution of fraud allegations against St. Joseph’s Hospital Health Center (St. Joseph’s).  No determination of fraud by a Court has been determined nor have the allegations of fraud been proven. Our Georgia healthcare law firm follows legal developments with regard to healthcare reimbursement and fraud and abuse.

The Federal Government’s allegations against St. Joseph concern the state’s Medicaid program.  The DOJ alleged that St. Joseph’s staff was not qualified to provide certain mental health services for which Medicaid reimbursement was sought and obtained.  St. Joseph provided the services in question under its program known as the Comprehensive Psychiatric Emergency Program (CPEP). The CPEP maintained a mobile unit that would serve patients in particular counties who could not, or would not, access mental health crisis intervention services available in the emergency room. New York law has regulations with which CPEPs must comply. Those State regulations delineate the proper composition of professional staff who must be involved with the applicable intervention services when such services are provided somewhere other than in the emergency room.  Reimbursement for such services is expressly conditioned upon compliance with the New York regulations that govern proper staffing.

The DOJ alleged that St. Joseph violated the New York False Claims Act by submitting payment to Medicaid for “mobile-crisis outreach services” by individuals who did not meet New York’s CPEP qualifications to provide such services. The alleged violation of the New York False Claims Act was premised on the submission of claims for payment without disclosing that St. Joseph’s staff (allegedly) failed to meet the qualification requirements under State law for the particular services provided. St. Joseph’s agreed to pay $3.2 million to conclude the matter.

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law-education-series-3-68918-mIn a Senate Finance Committee Majority Staff Report (the Senate Report) entitled, “Why Stark, Why Now?”, the Committee’s Chairman, Senator Orrin Hatch, argues that changes are needed to Stark Law.

Georgia Stark Law and Physician Self-Referral Attorneys

The Senate Report is, at a minimum, a strong indicator that calls for change in the law are heard and efforts are underway to evaluate improvements to the law.

A Brief History of Stark Law

Stark Law is Federal physician self-referral law premised upon the notion that physicians are prone to order (i.e., “refer”) more medical items and services if they stand to benefit financially from doing so.  For example, where a physician has an ownership interest in a lab to which he refers patients, he will incentivized to send more patients to the lab for lab work.

Thus in 1989 Representative Fortney “Pete” Stark (D-CA), of whom the statute was named, proposed the law to address two perceived adverse consequences of financial incentives for physician self-referrals of medical items and services reimbursed by a Federal healthcare program: (1) overbilling of Federal healthcare programs; and (2) the provision of medical services that do not benefit a patient.   Stark Law, Section 1877 of the Social Security Act, codified at 42 U.S.C. § 1395nn, as originally passed, was a fairly straightforward and narrow prohibition that precluded a physician from referring patients or specimens to clinical labs, including physician office labs, where labs paid for by fed programs (Medicare, Medicaid, or CHAMPUS) if the physician (or immediate family member) had a “financial relationship” with the lab.  Indeed, Pete Stark declared in sponsoring the law that the intent was to create a “bright line” standard that would benefit physicians and protect Federal healthcare programs.  But the law did not remain simple and expanded from the straightforward lab referral context to apply to a list of services and items known as “Designated Health Services,” identified by CMS billing codes.

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filesEarlier this month, the United States General Accounting Office (GAO) issued its monthly anticipated report (the Report) to Congress about the status of the Medicare Appeals backlog.  The Report states on the first page, “Opportunities Remain to Improve Appeals Process,” which is a gross understatement and will likely be received with frustration by unpaid providers.  At least it appears the backlog is on Congress’ radar and someone is trying to do something to improve this very difficult problem that adversely impacts so many providers.

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usa-dollar-bills-1431130-mCMS recently announced what it describes as the largest-ever multi-payer initiative to improve primary care in America,” known as Comprehensive Primary Care Plus (CPC+). Though much of the press release is couched in terms of improving patient care — and surely CPC+ is intended to do so — the real impetus appears to be the government’s critical need to control healthcare costs funded by federal programs.

Atlanta/Augusta, Georgia Physician Practice Lawyers

The idea is to support a new primary care delivery model that will incentivize and reward value and quality.  The current Administration’s goal is to have 50% of all Medicare fee-for-service payments made via alternative payment models by 2018.  The Center for Medicare and Medicaid Innovation, which exists pursuant to Section 1115A of the Social Security Act (added under the Affordable Care Act) for the purpose of testing new payment and service delivery models, developed CPC+ as part of its mission, to aid the federal government in its efforts to curb its healthcare costs and enhance the quality of healthcare delivery.

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medical-doctor-1314902-mThe U.S. Department of Health & Human Services (HHS) announced its preparation to move into its next phase of audits of healthcare covered entities and their business associates. According to HHS, “[t]he 2016 Phase 2 HIPAA Audit Program will review the policies and procedures adopted and employed by covered entities and their business associates to meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules.”  Physicians, medical practices, other providers and healthcare businesses, and their business associates, should take steps to ensure they are current and compliant with respect to HIPAA requirements.

Federal Investigation/ Medical Audit Lawyers

HHS is charged by federal law with the responsibility to enhance and protect the health and well-being of all Americans.   To that end, HHS, through its Office of Civil Rights (OCR), endeavors to ensure high quality health and human services and promote advances in medicine and public health. Federal law known as the Health Information Technology for Economic and Clinical Health Act (HITECH) requires HHS to conduct periodic audits of healthcare providers and their business associates to ascertain compliance (or lack thereof) with the HIPAA Privacy Rule, the HIPAA Security Rule, and the HIPAA Breach Notification Rule.  The HIPAA Privacy, Security and Breach Notification Rules, though very important to our government’s efforts to protect protected health information (PHI), are additional burdens for those in the business of providing healthcare and their business partners who might have access to PHI.

A few years ago, OCR used a “pilot” audit program to assess a sampling of covered entities’ progress in implementing HIPAA’s requirements for protecting PHI.  Now, utilizing the information obtained by its pilot audit program, OCR will begin auditing both healthcare providers and their business associates.  Beginning this year, OCR will review and analyze policies and procedures adopted by covered entities and business associates against the requirements of the HIPAA Privacy, Security and Breach Notification Rules.

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to-sign-a-contract-2-1221951-mIn making a decision to pursue medicine and healthcare as a livelihood, it is likely that most physicians today did not contemplate the extent to which legally binding contracts would govern and impact their professional lives. Few other careers carry the same potential for commitment to so much paper and binding agreements that simultaneously foster professional opportunities and create hazardous legal and professional risks (for example, a non-compete agreement that bars future employment needed to avoid selling the house and moving; a contract with a hospital system that memorializes a compensation arrangement but, unbeknownst to the doctor when he signs, violates STARK law). In this day, all physicians should be mindful of the critical importance of good contracting principles and practices.

Physician employment

The healthcare industry, perhaps more dramatically than other industries, is prone to changes, trends, and developments. A sustained trend has been physician employment (versus private practice ownership). In the 1990s, with the evolution of HMOs, the industry trended toward high levels of physician employment, a trend that petered out some during the 2000s with decreasing physician employment as HMOs dissolved. In recent years, however, the healthcare industry returned to a strong trend toward physician employment driven by numerous factors derived from healthcare “reform.” Whether the current physician employment trend is more permanent than the last one is unknown, but some experts predict that the high level of physician employment is here to stay. As reported last year in the Dallas/Forth Worth Healthcare Daily, some experts believe that physicians’ need for stability with regard to future income will drive a lasting employment trend.

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