OIG HEAT Provider Compliance Training Webcast

The Office of Inspector General (OIG) has made available the Health Care Fraud Prevention and Enforcement Team (HEAT) Provider Compliance Training webcast. OIG is making the training information available to help highlight and educate providers on the the federal government's effort to fight health care fraud and abuse.

More information about  HEAT Task Force and its mission and efforts can be found on the StopMedicareFraud website. The training information includes 16 modules:

Welcome Remarks 4:37
Overview of OIG 9:56
Navigating the Fraud and Abuse Laws 26:26
Compliance Program Basics 17:01
Operating an Effective Compliance Program 15:59
Understanding Program Exclusions 10:26
Navigating the Government 5:10
Overview of Centers for Medicare and Medicaid Services 34:24
Importance of Documentation 17:06
OIG Subpoenas Audits Surveys and Self Disclosure Protocol 17:42
Health Care Fraud Enforcement Panel 6:08
Health Care Fraud Enforcement Panel with CMS Deputy Admin 13:43
Health Care Fraud Enforcement Panel with Special Agent 15:10
Health Care Fraud Enforcement Panel with Asst. US Attorney 17:08
Health Care Fraud Enforcement Panel - Fraud Control Unit 11:15
Adjournment 0:59

Practical Guidance on Medicare Physician Signature Requirements

I was recently researching the physician signature requirements under the Medicare program and found this resource outlining some of key questions and answers around the requirements.

The Centers for Medicare & Medicaid Services Medicare Learning Network has issued a fact sheet on Comprehensive Error Rate Testing (CERT) Signature Requirements with the Q and A. Also mentioned in the guidance as a resourceis the Medicare Learning Network's MLN Matters Article MM6698, "Signature Guidelines for Medical Review Purposes."

OIG Issues Roadmap on Avoiding Medicare and Medicaid Fraud and Abuse for New Physicians

The U.S. Department of Health and Human Services, Office of Inspector General (OIG) has issued a resource and educational guide for new physicians to help them better understand the key Federal fraud and abuse laws.

As a health care attorney who often deals with physicians on fraud and abuse related matters, I applaud the OIG's effort to provide educational information to help raise the level of understanding on these issues and increase the transparency of these federal laws. This guide won't just be useful for "new" physician but for all physicians to gain a better understanding of the very complex legal/regulatory structure of fraud and abuse laws in the United States.

The new OIG document is titled, "Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse." The physician education roadmap document summarized the five main Federal fraud and abuse laws, including the False Claims Act, the Anti-Kickback Statute, the Stark Law, the Exclusion Statute, and the Civil Monetary Penalties Law. The roadmap document provides tips to physicians on how they should comply with these laws in their relationships with payers (like the Medicare and Medicaid programs), relationships with vendors (like drug, biologic, and medical device companies), and relationships with fellow providers (like hospitals, nursing homes, and physician colleagues).

The roadmap guide was developed as a result of a survey conducted by OIG of medical school deans and designated institutional officials at institutions that sponsor residencies and fellowships to learn what types of instruction medical students, residents, and fellows receive on Medicare and Medicaid fraud, waste, and abuse. Nearly all respondents (92% of deans and 90% of designated institutional officials) reported they would like OIG to provide educational materials they can use. The complete survey, "Medicare and Medicaid Fraud and Abuse Training in Medical Education," was recently issued in October, 2010.

You can view online or download a PDF version of the roadmap guidance materials. I plan to include a copy of this as a part of my hand out materials when I talk to physicians and other health care providers on fraud and abuse issues.

Credentialing and Privileging Telemedicine Physician and Practitioner

Last week the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule revising the conditions of participation (CoPs) for hospitals and critical access hospitals allowing for a new credentialing and privileging process for physicians and practitioners who provide telemedicine services. The proposed rule should make it easier on smaller hospital (especially critical access hospitals) who don't have the in-house medical staff to adequately evaluate and privilege a wide range of specialty physicians who provide services through telemedicine.

The proposed rule was published in the Federal Register on May 26, 2010, and titled, Credentialing and Privileging of Telemedicine Physicians and Practitioners, 75 Fed Reg 29479 (May 26, 2010). Comments on the proposed rule must be submitted by July 26, 2010.

Traditionally the CoPs have required the governing body of the hospital to make all privileging decisions based on the recommendations of its medical staff using specific criteria. Hospitals often use third-party credentialing verification services to assist in compiling the voluminous documents needed to verify credentialing and then have the governing body of the hospital review and sign off on the privileging decision.

The proposed rule points out that there has been a Joint Commission standard policy that allows "privileging by proxy," which has been in direct conflict with CoPs. "Privileging by proxy" allows Joint Commission accredited hospitals to utilize a different methodology to privilege"distant-site" physicians and practitioners. Basically, allowing one Joint Commissioned accredited hospital to accept the privileging decisions of another Joint Commissioned accredited hospital. In the past, hospitals were deemed (deemed status) to meet the CoPs if they were accredited by the Joint Commission. However, changes in the Medicare Improvement for Patients and Providers Act of 2008 (MIPPA) will halt (effective July 15, 2010) the statutory recognition of the Joint Commission's hospital accreditation program and now requires the Joint Commission to meet CMS standards in order to confer Medicare deemed status.

CMS has decided that requiring each hospital to independently privilege providers is a duplicative and burdensome process, especially for small hospitals who often use telemedicine services from larger academic medical centers and hospitals to provide access to needed specialty services. Thus, CMS is proposing in the rule to revise the hospital credentialing and privileging requirements to allow a hospital who obtains telemedicine services by agreement with another hospital that the agreement can specify that the hospital providing the telemedicine services is responsible for credentialing the telemedicine provider and can provide this information to the medical staff of the hospital receiving the telemedicine services who can then rely upon the credentialing and privileging decisions of the hospital providing the telemedicine services.

For a more detailed discussion and understanding of the proposed revisions read the proposed rule in the May 26, 2010, Federal Register.

The Saga Over The Privacy of Medicare Claims Data Continues . . .

Guest post by Michele Grinberg, my colleague in the Health Care Practice Group at Flaherty, Sensabaugh Bonasso PLLC.

Through indirection find direction out? With apologies to William Shakespeare, the U.S. Court of Appeals for the11th Circuit and D.C. circuit say: NO, not this time.

In Jennifer D. Alley, Real Time Medical Data, LLC v. U.S. Dept. of Health and Human Services, issued Dec. 18, 2009, the Court held that plaintiffs Alley & Real Time Data cannot obtain certain Medicare data for procedures performed in Florida, Georgia, Mississippi and Tennessee by AMA physicians and for all Florida physicians (the certified class). Specifically, Medicare Part B raw claims data that could easily be matched to a particular physician and then aggregated to calculate the total annual Medicare payment by physician cannot be disclosed to Alley. Alley had sought the information through filing a federal Freedom of Information Request (FOIA).

The reason? Because the Florida District Court in 1979 issued a permanent injunction in Florida Medical Assn. v. Dept. of Health Education & Welfare, prohibiting DHHS (then HEW) from disclosing “any list of annual Medicare reimbursements…for any years, which would personally and individually identify those providers of services …. Any such disclosure of annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers….is contrary to federal law.” (quoted in Alley)

Judge Carnes in a well-authored opinion (for those of you, like me, who care about good writing) enjoys the irony of hearing argument that sounds much like the health policy arguments heard in the mid-1970s. His second sentence reads: “The present national debate over health care rhymes a lot with one that took place three decades ago.” But whether it’s still good policy or not, Judge Carnes holds that plaintiffs cannot collaterally attack the 1979 injunction by arguing it does not apply to the data sought or the context has shifted in favor of disclosure or the reimbursement methodology has changed. Rather, if plaintiffs believe the injunction is no longer valid, their recourse is to go back to the court where the injunction issued and challenge it there.

In a footnote, the 11th Circuit references a recent 2009, United States of Court of Appeals D.C. Circuit, decision: Consumers’ Checkbook, Center For Study of Services. v. U.S. Department of Health and Human Services. The lower court’s holding in this case was discussed in this blog in 2008 (Consumers' Checkbook v HHS Update). In the 11th Circuit footnote (No.9), the court observes that in a factually similar case, the D.C. Circuit has held that FOIA exemption 6 permits DHHS to not disclose the requested Medicare data. FOIA exemption 6 protects from disclosure government agency files that constitute “a clearly unwarranted invasion of personal privacy.”

What we have then are two cases: one that upholds a 1979 injunction which enjoins DHHS from providing Medicare data that can be manipulated to identify annual reimbursements to individual physicians and other providers but which injunction reaches only the certified class of providers (identified above); and a second case that holds that providing similar Medicare data that can be tied to individual providers is protected from disclosure by a FOIA exemption. Thus, data elements which might indirectly seem disclosable are not if they lead to a resulting disclosure which invades personal privacy. We will see what changes health insurance reform brings, if any.

The AMA provides additional analysis of the decision in a story posted January 11, 2010, Appeals court rejects effort to sell Medicare physician claims data. Also, Law.com reports on the decision in its article, Mark Twain Lives On in Federal Judge's Ruling on Release of Medicare Data.

Medicare PHR Pilot Project

HealthcareIT News reports on the announcement of a Medicare personal health record (PHR) pilot project that will be made available to Medicare beneficiaries in Arizona and Utah.

The four PHR companies selected out of almost 40 who applied to participate in the pilot are: Google Health, HealthTrio, NoMoreClipboard.com and PassportMD.

The Arizona Republic has more on the pilot project. More background information on CMS's PHR projects.

Tip to iHeathBeat on the article.

UPDATE: Today's iHealthBeat indicates that interoperable PHRs could result in$21B savings per study conducted by Center for Information Technology Leadership. Read the press release and full Value of Personal Health Records report.

Dr. Val Guest Post: Straight Jackets Issued To All Hospital Patients Over Age 65?

Below is a guest post from fellow health care blogger, Val Jones, M.D, on the topic of the new Medicare "never events." For other recent posts by Dr. Val - check out the recent Dr. Val sightings at Suture for a Living.

Straight Jackets Issued To All Hospital Patients Over Age 65?

By Val Jones, MD

Bob is a good friend and blog buddy of mine, and I respect his legal opinions on medical matters. He has kindly invited me to guest post on his blog, and so I’d like to take this opportunity to ask you (Bob’s audience) to help me with a medicolegal issue. Let me explain.

Today I viewed a TV ad sponsored by the AARP. It was promoting a remote alarm device that elderly people could use to notify EMS if they fall and need help. The ad featured a surprising statistic:

“One in three people over the age of 65 will fall down this year.”

That’s a pretty common occurrence, wouldn’t you say? It certainly argues for the need for those wearable alarm buttons.

But at the same time that these ads are running on television, Medicare is moving forward with their “never event” quality program. The initiative means that Medicare will not pay for the care of patients who experience a “never event” in a hospital – funding for that patient’s care will need to come out of the hospital’s budget. Medicare argues that they shouldn’t have to pay for medical errors such as “wrong side surgery.”

While I’m sympathetic to their perspective on wrong side surgery, the list of never events reaches far beyond the limits of medical errors to include things like mental status changes, infections and… drum roll please . . . Falls.

That’s right, Medicare believes that falls are “never events” and will not cover the costs associated with fall injuries in the hospital setting.

Let me ask you this, if 33% of people over the age of 65 fall during a given year, how on earth can we argue that falling (in a sicker, hospitalized population) can be prevented 100% of the time?

The only solution I can think of is to tie down all Medicare patients to their hospital beds so that they are unable to fall. Forget autonomy, freedom, dignity, and all that other stuff. Can hospitals afford to lose funding for fall-related injuries that up to a third (or more) of their Medicare patients might have during their hospitalizations?

I feel very sorry for patients in this new “never event” era. Going to the hospital is dehumanizing enough – you’re put in a backless gown, poked, prodded, kept up all night and visited by throngs of staff, and now, you may just be put in a straight jacket as well.

I ask you, Health Care Law Blog readers – what are we to do about this? Is it legal to tie people down against their will? Is it fair for Medicare to classify falls as “never events?” Could attorneys help us in any way here? I eagerly await your responses.

I will be the first to respond to Dr. Jones' plea for answers from health lawyers. Daily I deal with health care provider clients, including hospitals, and help them to understand, interpret and practically implement health care regulations. As a part of the process we work together to understand the regulations, assess potential risks, legal implications, etc.

Dr. Jones' post points out the practical difficulty faced by hospitals -- limit the number of falls that occur in their facility or face non-payment for services. I'm not going to pass judgment on the reasons and process developed for implementing these new regulations because I have little historical background on the drafting of the regulations.

Do we want hospitals to have a 0% patient fall rate? Yes. Is it possible, probably not. Not all falls are preventable. I suspect the question of what is a preventable fall will be a topic of discussion and debate (with legal consequences) as the regulation is implemented. Also, personally I would have liked to have seen CMS take a "carrot" vs. "stick" approach to incentivizing hospitals to reduce the number of falls and other "never events." On a positive note, this type of regulation implements a process that links providing quality care with the amount of reimbursement.

Like most health care regulations, part of the problem is understanding the regulation. The world of health care regulation has become so complex that it is almost impossible for the average health care provider to understand the regulations. Just finding the regulations can be a task. For example, the details on the "never event" regulations were published in the midst of a 2,140 page regulation.

The new "never events" regulations were issued as a part of the Medicare Hospital Inpatient Prospective Payment System (IPPS) FY 2009 and went into effect for discharges occuring on or after October 1, 2008. To learn more about the regulations read the CMS press release and the final rule (regulations starting at page 290 and comments/responses at page 352). You can also find more information on the CMS' Hospital-Acquired Conditions site.

Consumers' Checkbook v. HHS Update

The WSJ Health Blog, "Feds Fight to Keep Doctor Data Secret," has the latest on the Consumers' Checkbook v. HHS matter involving whether or not Medicare physicians claims data should be made publicly available. Consumers' Checkbook, a nonprofit consumer information and service resource, wants to use the data to rate physicians and health care services.

Last week the DOJ filed its appeal and HHS released this statement regarding appeal of Consumers' Checkbook Decision explaining the basis for opposing (and supporting) release of the data. The press release states:

HHS is appealing this decision because of two conflicting court opinions that control HHS’ release of data. Release of certain Medicare claims data is currently governed, in part, under an existing order issued by a federal court in Florida in 1979. That order, which is still in effect, prohibits Medicare from releasing physician reimbursement data in a manner that would enable the user of that data to identify individual physicians. The court order states that this information is protected by the Privacy Act of 1974. The data sought by Consumers Checkbook, when combined with other publicly-available data on Medicare fees, could lead to the disclosure of annual Medicare reimbursement amounts for individual physicians. Release of the data would, therefore, result in a violation of the existing Florida court order. On the other hand, HHS faces the decision rendered last year by the District of Columbia court ordering the release of the data. HHS argues in its appeal that the recent decision is based on an erroneous application of the Florida court order and of the Freedom of Information Act’s exemption that protects privacy. The Department seeks resolution of this conflict from the Court of Appeals.

Beyond the legal issues that must be resolved, HHS recognizes and shares the goals of Consumers Checkbook. Like Consumers Checkbook, HHS seeks to support consumers and providers with quality performance and cost information for a variety of providers and plans. For many years, HHS has worked closely with providers and other stakeholders in developing and reporting quality information, including the use of national consensus-based quality performance measures. While Consumers Checkbook seeks to post the number of times a provider has performed a specific service, the quality measures used by HHS generate more valid, specific, and comprehensive information on the quality of care delivered.

For background on the legal saga check out my prior post.

Dartmouth Atlas Health Care Stats on End of Life Care Costs

The WSJ Health Blog posts (WSJ article, More Choices Drive Cost of Health Care) interesting statistics on end of life care costs according to the latest Dartmouth Atlas of Health Care edition (due out today).

The report shows:

. . . that the cost of individual medical services isn’t the big driver of Medicare spending, at least for chronically ill patients in their last two years. It’s the intensity of care, such as the number of specialist visits and days in the ICU. . .

According to the map graphic West Virginia comes in low in the "below $37,500" category showing the average Medicare Spending during the last two years of life for chronically ill patients.

As the costs of our health care system increase over the coming years we will likely see an increased focus on looking at the end of life care issue vs. costs of health care in those remaining years. These bring to the front a variety of medical, ethical and legal questions.

CMS Releases New Physician Self Referral (Stark) FAQs

The Centers for Medicare & Medicaid Services (CMS) recently modified its website and included a new Frequently Asked Questions (FAQ) section under the Physician Self Referral (Stark) section. CMS added 12 new Stark FAQs on January 31, 2008. A number of these new FAQs relate to the new Stark III regulations.

HHS Announces Physician EHR Demo Project

Yesterday HHS announced that CMS will involve physicians in a five year demonstration project encouraging small and medium physician practices to adopt electronic health records.

Excerpt from Secretary Leavitt's announcement:

“This demonstration is designed to show that streamlining health care management with electronic health records will reduce medical errors and improve quality of care for 3.6 million Americans. By linking higher payment to use of EHRs to meet quality measures, we will encourage adoption of health information technology at the community level, where 60 percent of patients receive care,” Secretary Leavitt said. “We also anticipate that EHRs will produce significant savings for Medicare over time by improving quality of care. This is another step in our ongoing effort to become a smart purchaser of health care -- paying for better, rather than simply paying for more.”

Conducted by the Centers for Medicare & Medicaid Services (CMS), the demonstration would be open to participation by up to 1,200 physician practices beginning in the spring. Over a five-year period, the program will provide financial incentives to physician groups using certified EHRs to meet certain clinical quality measures. A bonus will be provided each year based on a physician group’s score on a standardized survey that assesses the specific EHR functions a group employs to support the delivery of care.

The CMS demonstration also will help advance Secretary Leavitt’s efforts to shift health care in the U.S. toward a system based on value. The Department is working to effect change through its Value-Driven Health Care initiative, which is based on Four Cornerstones: interoperable electronic health records, public reporting of provider quality information, public reporting of cost information, and incentives for value comparison.

For more info check out the HHS Press Release.

Thanks to the Medicare Update blog for a tip on this new project.

CMS Proposed Rule Modifies PPS For Home Health Agencies

Last Friday, April 27, 2007, CMS issued a proposed rule (CMS-1541-P) modifying the prospective payment system (PPS) for home health agency reimbursement. The proposed rule will be officially published in the Federal Register on May 4, 2007. The details of how to comment on the proposed rule is included in the rule. According to the press release, the deadline for filing comments on the proposed rule June 26, 2007.

The summary from the proposed rule states:

This proposed rule would set forth an update to the 60-day national episode rates and the national per-visit amounts under the Medicare prospective payment system for home health services, effective on January 1, 2008. As part of this proposed rule, we are also proposing to rebase and revise the home health market basket to ensure it continues to adequately reflect the price changes of efficiently providing home health services. This proposed rule also would set forth the refinements to the payment system. In addition, this proposed rule would establish new quality of care data collection requirements.

CMS issued a press release, CMS Proposes Payment Changes For Medicare Home Health Services providing an overview of the proposed changes. Also, CMS issued a Fact Sheet outlining some of the proposed PPS home health changes as compared to the current home health PPS payment system. For more information go to the CMS Home Health Agency Center.

I plan to take a closer look at the proposed rule and would welcome any comments on what impact these changes may have on existing home health providers.

UPDATE (6/18/07): Today CMS issued correction of technical errors in the proposed rule issued May 4, 2007. The corrections are entitled, "Medicare Program; Home Health Prospective Payment System Refinement and Rate Update for Calendar Year 2008; Correction" (72 FR 33425).

Also, one of the comments to this post mentions materials from Beacon Health providing analysis on the proposed Home Health PPS Reform and tips for submitting comments to CMS. Those interested in the changes might want to check out this information.