Physician Law : Pennsylvania Health Law Lawyer & Attorney : Fox Rothschild LLP : serving Philadelphia, Pittsburgh, Allentown, Erie, Upper Darby Twp

In case you missed it, the Centers for Medicare and Medicaid Services (CMS) eliminated use of the evaluation and management Consultation Codes.  Consultations are now to be billed using the standard E/M visit codes.  According to CMS Transmittal 1875:

"Effective January 1, 2010, the consultation codes are no longer recognized for Medicare Part B payment. Physicians shall code patient evaluation and management visit with E/M codes that represent where the visit occurs and that identify the complexity of the visit performed. In the inpatient hospital setting and the nursing facility setting all physicians (and qualified nonphysicians where permitted) who perform an initial evaluation and management may bill the initial hospital care codes (99221 – 99223) or nursing facility care codes (99304-99306). As a result of this change, multiple billings of initial hospital and nursing home visit codes could occur even in a single day."

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According to a Department of Justice Press Release, a Texas Hospital has agreed to pay the federal government close to a million dollars in settlement of allegations that the hospital violated the federal False Claims Act. Specifically, Arlington Memorial Hospital has agreed to pay the U.S. $990,509.50 to resolve allegations that it improperly submitted claims to Medicare for services ordered by physicians who were allegedly being paid by the hospital to perform unnecessary services. The DOJ alleged that the hospital paid a physician group for blood gas lab study interpretations even though such tests no longer required any professional interpretation, and then failed to correct such arrangement after learning of it (and self-disclosing it to the government).

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In a 2008 report, the the Congressional Budget Office estimated that the savings from tort reform would amount to only about $4 Billion over the period from 2010 to 2019.  However, acording to a letter dated December 10, 2009 to Senator Rockefeller, the CBO's original estimate failed to take into consideration that tort reform would result in lower utilization of services.  Based on this previously omitted consideration, the CBO has now revised its estimate and now believes  that tort reform would result in saving of $54 Billion over the same period of time!  

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The Pennsylvania Department of Health has published the amounts which may be charged by a health care facility or health care provider in Pennsylvania upon receipt of a request or subpoena for production of medical charts or records.  Effective January 1, 2010, the following fees may be charged by a health care facility or health care provider for production of records in response to subpoena or request:

Not to Exceed
Amount charged per page for pages 1—20 $ 1.32
Amount charged per page for pages 21—60 $  .98
Amount charged per page for pages 61—end $  .33
Amount charged per page for microfilm copies $1.95
Flat fee for production of records to support any claim under Social Security $24.94
Flat fee for supplying records requested by a district attorney $19.68
* Search and retrieval of records $19.68
 

The list, which is published annually, can be found in the Pennsylvania Bulletin.

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According to a recent Transmittal from the Centers for Medicare and Medicaid Services, physicians and others are using modifier -PC to designate the "professional component" of diagnostic tests.  However, the -PC modifier is actually to be used to designate "Wrong Surgical or Other Invasive Procedure Performed on a Patient." 

Apparently many providers assume that because the modifier for technical component services is -TC, the corresponding modifier for professional components is -PC.  In fact, the correct modifier for professional component services is -26.

Note that Claims submitted with the wrong modifier will be denied.

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On November 24, 2009, the U.S. House of Representatives passed the Medicare Physician Payment Reform Act" (H.R. 3961) which would repeal the scheduled 21% fee reduction scheduled for January 2010.  The legislation would also permanently replace the existing Sustainable Growth Rate (SGR) formula with a new formula that, according to the House summary:

• Removes items such as drugs and laboratory services not paid directly to practitioners from spending targets;
• Allows spending on most services to grow at the rate of GDP plus 1 percentage point per year (compared to GDP without any adjustment today);
• Allows spending on primary and preventive care services to grow at GDP plus 2 percent per year; and
• Encourages coordinated, innovative care by allowing Accountable Care Organizations to be responsible for their own growth paths, irrespective of reductions or increases that apply elsewhere in the system.
   

The bill is now on the Senate calendar for consideration.

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According to a report issued by the Office of Management and Budget (OMB) of the White House, the Federal government made $54 billion in improper payments in 2009 from the Medicare and Medicaid programs.  The OMB reports that in response, President Obama is expected to sign an Executive Order this week designed to boost inter-agency transparency, hold agencies accountable, and create incentives for compliance.  This is just another indication that fraud, waste and abuse enforcement efforts will likely spike considerably in the coming months and years, and physicians and other providers need to be sure they are devoting adequate resources compliance efforts. 

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While all eyes are on the health care reform debate, a new Senate bill would give the government improved tools for investigating and prosecuting fraud and abuse in both federal and private health insurance programs. One of the most significant proposed changes would authorize a qui tam whistleblower action under the False Claims Act based solely on allegations of a violation of the Anti-Kickback law.

Senator Ted Kaufman (D-DE) introduced the Health Care Fraud Enforcement Act of 2009, co-sponsored by Committee Chairman Patrick Leahy (D-VT) and Committee members Arlen Specter (D-PA), Herb Kohl (D-WI), Chuck Schumer (D-NY) and Amy Klobuchar (D-MN).

Kaufman’s proposed legislation would modify federal sentencing guidelines, health care fraud statutes, and forfeiture, money laundering, and obstruction statutes, including:

Sentencing increases: The bill directs the Sentencing Commission to increase the guidelines range for health care fraud offenses and clarifies that the full potential scope of the fraud should be considered at sentencing.

Redefining “health care fraud offense”: The bill includes all health care crimes within the definition of “health care fraud offense,” regardless of where they are codified. (ERISA, drug marketing, and kickback crimes are currently not included) This change will make available to law enforcement the full range of antifraud tools, including criminal forfeiture and obstruction penalties, to combat these offenses.

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For more information regarding this settlement agreement, please contact William H. Maruca.

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