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

In July, the Centers for Medicare and Medicaid Services (CMS) released the much-anticipated final regulations that providers are required to meet in order to receive the Medicare incentives for adoption of a certified electronic health record system. In those regulations, In the final rule, CMS set forth 15 core elements which must be met in order to qualify for “meaningful use” of the EHR system.

Notwithstanding the regulations, the requirements are complex and many physicians and other providers have a host of questions regarding both the regulations and the incentive program. To address some of these questions, CMS has issued a number of Frequently Asked Questions (FAQs) on its website. To review the new EHR FAQs, physicians can click here and type the term “EHR” into the search window.

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Unfortunately, many physicians believe their activities are “under the radar” when it comes to fraud and abuse enforcement. A recent settlement announcement by the Office of Inspector General (OIG) of the Department of Health and Human Services illustrates that this is not the case. According to the press release, the OIG has entered into a $7.3 million settlement with three physician-owned entities, United Shockwave Services, United Prostate Centers, and United Urology Centers, for allegedly soliciting and receiving payments in violation of the federal anti-kickback statute.

Among other things, the OIG alleged that certain of the physician investors in the entities had suggested to hospital administrators that if the hospitals did not enter into contractual arrangements to utilize the entities’ services, the physicians would take their cases to other hospitals. In addition to the $7.3 million settlement, the entities also agreed to a five-year corporate integrity agreement under which an independent reviewer will monitor all of the contractual arrangements between the entities and any hospital in Illinois, Iowa and Indiana.

This recent settlement underscores the need for physicians and physician organizations to get serious about their compliance efforts.  All indications are that we will be seeing more and more enforcement actions against physicians in the months to come.

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As further indication that health care fraud enforcement efforts are heating up in a big way, on Friday July 16, 2010, the Department of Justice announced the largest health care fraud crackdown in history.  According to Attorney General Eric Holder, raids were simultaneously conducted in multiple states including New York, Florida, Louisiana and Detroit.  The crackdown resulted in the indictment and/or arrest of 94 people in connection with alleged schemes to submit false claims to Medicare in excess of $250 Million.  The crackdown was lead by by the Medicare Fraud Strike Force -- the joint initiative between the Departments of Justice and Health and Human Services -- involved more than 360 law enforcement agents.  According to the DOJ comments, among those arrested were physicians, medical assistants, and health care company owners and executives.  

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According to a recent article in the Chicago Tribune, a group of orthopedic surgeons and Rush University Medical Center have been sued in a federal whistleblower lawsuit.  The lawsuit alleges that the physicians and the medical center caused claims to be submitted to Medicare for surgeries performed by residents that failed to meet the Medicare teaching physician supervision rules.  The Medicare teaching physician rules require that the teaching physician be present during the critical portions of the procedure and immediately available to furnish services during the entire service.

The "qui tam" or whistleblower provisions of the federal false claims act permit private citizens to file a civil suit against parties believed to have submitted false claims to the federal government.  The federal government may then elect to intervene in the lawsuit if it believes the suit has merit.  Importantly, according to the article, the federal government has declined to intervene in the Rush case.

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The Centers For Medicare and Medicaid Services (CMS) has published the CY2011 Proposed Medicare Physician Fee Schedule for public inspection.  The Proposed Fee Schedule includes a number of provisions which, if adopted, would implement the recently enacted Affordable Care Act (ACA).  One of the proposed regulations would serve to clarify the requirement in ACA that physicians notify patients referred for imaging services within the physician's practice of alternate imaging providers. 

or someone in the physician’s group practice and provide the patient with a list of suppliers who furnish the service in the area in which the patient resides.

CMS has interpreted the ACA disclosure requirement to be effective only when the final rule is adopted.  If adopted in final, CMS would propose making the rule effective as of January 1, 2011.

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On June 24, by a vote of 417-1, the House of Representatives passed a bill (H.R. 3962) impelmenting a six-month deferral of the automatic 21% cuts in the Medicare physician fee schedule retroactive to June 1.  This measure has already been approved by the Senate and is expected to be signed by the President.  The bill also included clarifications of the 3-day payment window for hospital services, a CMS-RIS data match program to identify fraudulent providers, and certain pension funding relief provisions.

In a statement released yesterday,  the AMA called the patch "a very temporary reprieve, ... not a solution."  AMA president Cecil Wilson, M.D. noted:

 "In December, the Medicare physician payment cut will be a whopping 23 percent, increasing to nearly 30 percent in January. Congress is playing a dangerous game of Russian roulette with seniors’ health care. Sick patients can’t wait. Congress must replace the broken payment system before the damage is done and cannot be reversed."

It appears likely that claims for services rendered after June 1 that were processed by Medicare carriers at the lower rate will need to be resubmitted. Further clarification from CMS is anticipated.

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As of this past Friday, things were looking good for at least a temporary fix to the impending 21% Medicare physician rate cuts.  In an effort to forestall the cuts, the Senate passed a short term fix and sent it back to the House of Representatives for a vote.  According to a recent AP article, House Speaker Nancy Pelosi has put the breaks on once again, however, by indicating that she does not intend to call a vote on the "doc fix" bill until the Senate addresses an extension of various unemployment benefits.  

Since CMS has now begun processing physician claims at the reduced 2010 rates, physicians can expect to see a meaningful drop in Medicare reimbursement over the next few months.  Moreover, if the doc fix is passed retroactively, physicians will need to resubmit claims in order to get full reimbursement.   

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On Friday, June 18, the Senate approved a bill which, if passed by the House next week, would prevent the scheduled 21% cut in Medicare reimbursement under the Medicare Physician Fee Schedule.  The bill would provide for a 2.2% increase over 2009 rates but only until November 30, 2010. 

Unfortunately, the Senate action comes too late to stop the scheduled cuts from taking effect pending action by the House of Representatives.  The Centers for Medicare and Medicaid Services, which has held off on processing physician claims since June 1, 2010 (when the cuts technically took effect), has now instructed its contractors to start processing claims from June 1 or later at the reduced 2010 rates pending passage of the bill. 

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The Senate voted down a bill this week that would have temporarily avoided the impending 21% cuts in Medicare physician fees.  Although those cuts technically took effect on June 1, 2010, the Centers for Medicare and Medicaid put a hold on physician payments until tomorrow to give Congress time to pass the legislation.  The bill in question has been kicking around Congress since April.  In light of the current bill's defeat in the Senate, if and when the Senate approves a revised bill, it will then need to go back to the House for approval.  This added delay likely means the fee cuts will kick in, even if only temporarily, until a fix is ultimately passed.

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