March 2011

Several federal agencies have just issued much awaited proposed guidance regarding Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program. The guidance includes the following:

1. The Centers for Medicare & Medicaid Services (CMS) has issued proposed regulations that would establish accountable care organizations (ACOs) under the Medicare Shared Savings Program. The CMS proposed rule is available online at

2. CMS and HHS Office of Inspector General (OIG) jointly issued a notice with comment period outlining proposals for waivers under the Stark law, the anti-kickback statute, and certain provisions of the civil monetary penalty law in connection with the Shared Savings Program. The joint notice with comment period is available online at

3. The Federal Trade Commission and the Department of Justice jointly issued a "Proposed Statement of Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program" (Antitrust Policy Statement). The Antitrust Policy Statement is available online at:

4. The Internal Revenue Service (IRS) has issued a notice requesting comments regarding the need for guidance on participation by tax-exempt organizations in the Shared Savings Program through ACOs. The IRS notice is available online at,,id=222814,00.html

Too many physicians still believe that federal and state fraud authorities are only interested in large health systems and pharmaceutical companies. As clear evidence to the contrary, however, the U.S. Department of Justice announced this week that Dr. Fred Dweck, a retired Miami physician, has been sentenced to 24 months in prison and 3 years of supervised release for his role in a scheme to receive kickbacks from home health agencies in exchange for referrals for unnecessary Medicare services. According to the release, during a three year period, Dr. Dweck referred more than 800 patients for unnecessary homecare and physical therapy services. In addition to his prison sentence, Dr. Dweck has been ordered to pay $22 million in restitution jointly and severally with his co-defendants and co-conspirators to the Medicare program.

While Dr. Dweck’s punishment reflects the egregious nature of the scheme with which he was charged, physicians who treat Medicare patients and order/certify services covered by Medicare should take care to ensure that those services meet applicable medical necessity guidelines and further, that medical necessity is clearly documented in the record.  Billing for medically unnecessary services can result in overpayments and worse, allegations of fraudulent or abusive billing.  It’s also a good idea to have your documentation, coding and billing reviewed on a periodic basis by an independent billing/coding expert (engaged by legal counsel) to ensure compliance with Medicare and commercial payor rules and standards. 

We’ve known for a while now that the Medicare Recovery Audit Contractors ("RAC") program would eventually start impacting physicians and other Part B providers. That time has now come as medical practices and physicians are beginning to receive both audit and repayment letters from RACs. So, if you’re still not familiar with this aggressive audit and recovery program, you are well-advised to begin preparing for the possibility that some of your claims may be reviewed by a RAC.

Continue Reading Physicians Begin Seeing Recovery Audit Contractor (RAC) Letters