News

The constantly evolving U.S. healthcare system imposes a variety of challenges on Michigan providers. Frequent changes to compensation models and billing regulations can result in billing errors that sometimes result in uncollected revenue and sometimes result in insurer overpayments and investigations of possible healthcare fraud.

The Association of Certified Fraud Examiners (ACFE) has on its website a list of health care provider fraud schemes compiled by veteran Certified fraud examiner and private investigator Charles Piper.

Certified fraud examiner and private investigator Charles Piper says that in almost every healthcare fraud investigation he’s conducted, he has found evidence that the provider submitted claims to Medicare, Medicaid or an insurance company for care that was never provided and that patient files had no supporting documentation.

Billing for services not rendered, he says, is “real easy money.”

Piper says though he understands that records can be lost or misplaced, “a pattern of billing for services and care with no supporting documentation is unacceptable and unlikely to be coincidental.”

In addition to examining documentation, fraud investigators conduct interviews with staffers and patients listed in claims.

While physician impersonation is pretty rare, this form of misrepresentation of th

Like other medical professionals, chiropractors are aware of the significant benefits to patients when health care is provided by a medically integrated practice.

“Medical errors are minimized, unnecessary tests avoided, prescription painkillers reduced,” chiropractor Jesse Cooper told the American Chiropractic Academy in 2019.

However, there are strict services and billing guidelines to be observed and potentially serious legal consequences when integrated practices are not set up properly, according to a recent article by chiropractor and medical compliance officer, Ray Foxworth.

He writes in the current issue of Chiropractic Economics that a multidisciplinary medical practice should assume that audits will take place and prepare accordingly.

Chiropractor Mark Sanna – who also authored a piece in CE – writes that medically integrated practices should “retain local legal counsel familiar with the group practice health care laws and regulations of the state in which the practice will be established.“

Sanna notes that “while successfully operating a MDP can be rewarding, those rewards can quickly disappear should the chiropractor and other professionals involved not adhere to the most stringent policies and procedures.”

Foxworth writes that medically integrated practices “must be aware” of the federal Anti-Kickback Statute that forbids he

Tom Cruise’s “Mission Impossible” film series was launched back in 1996. Every few years since, new “MI” movies have updated the franchise while sticking to its core action-intrigue values.

Also debuting that year: Health Insurance Portability and Accountability Act (HIPAA). While many in the healthcare industry believe the federal law protecting sensitive patient health information needs to be modernized, there are provider group concerns about the following:

• The privacy and security of sensitive medical data when it’s made more accessible
• Implementing changes during a pandemic
• Squaring the changes with other data-restricting regulations

The American Medical Association stated in a letter to OCR that it questions “the need for these changes, particularly at this time.”

The physician group noted that practices still face major challenges to alter IT and data exchange processes in order to comply with last year’s rules changes promoting interoperability. And of course, there’s ongoing pandemic-related overhead to contend with as well.

“We urge OCR to reconsider implementing a massive change to patient privacy laws in the midst of this transition,” the AMA wrote.

If finalized, t

The potential for abuse and addiction involving controlled substance medications makes it of paramount importance for doctors, pharmacies, hospitals and other health care providers to comply with laws and regulations enforced by the federal government’s Drug Enforcement Administration (DEA).

Providers that administer and dispense controlled substance medications have dealt with unprecedented challenges over the past year, but the challenge to be DEA-compliant remains unchanged. However, the agency has issued guidelines related to pandemic-specific vaccines and other matters that add to the compliance burden.

Here are areas of concern for providers to be aware of as we all continue to make our way through this public health crisis.

Because of the rapid expansion of telemedicine during the pandemic, practitioners are authorized to prescribe certain controlled substance medications without in-person evaluations. Of course, those prescriptions must all be for legitimate medical purposes and issued in compliance with pertinent state and federal laws.

Registered providers are temporarily allowed to supply other registered providers with more than five percent of their dosage units. The DEA expects providers to be aware of when the exception expires. (Note: it expires when the public health emergency ends or the DEA modifies the exception.)

As many readers of our Michigan legal blog know, the Medicare audit appeals process has relatively small timeframes in which providers can object to claims of overpayments.

The good news for a Las Vegas hospital recently audited by the Office of the Inspector General is that its initial timely response to an audit meant that it was able to reduce the amount the OIG wants refunded for Medicare billing errors by $8,914. The reduction followed Sunrise Hospital & Medical Center’s submission of a handful of claims for reprocessing.

The bad news is that the Health and Human Services (HHS) watchdog insists on the return of the remaining portion of what it claims is $23.6 million in overpayments resulting from Medicare billing errors.

The OIG reviewed 100 inpatient and outpatient claims for the audit period from Jan. 1, 2017, through Dec. 31, 2018.

The OIG said Sunrise “complied with Medicare billing requirements for 46” of the reviewed claims, but “did not fully comply” on “the remaining 54 claims, resulting in net overpayments of $999,950 for the audit period.”

The federal office said 50 inpatient claims and four outpatient claims contained billing errors.

On the basis of the sample results, OIG estimated that Sunrise “received overpayments of at least $23.6 million for the audit period.”

In a statement on the hospital’s website, the Sunrise CEO said, “We strongly disagree with

HIPAA was written to protect individuals’ personal health information. Because HIPAA applies to doctors, hospitals, health plans and insurers, dentists, pharmacies, nursing homes, urgent care clinics and other entities paid to provide health care, many in the health care industry wonder if a vaccine passport would violate HIPAA.

Let’s say an airline required passengers to show a vaccine passport containing protected health information before boarding a plane. Because the airline isn’t a health care provider, experts say that HIPAA wouldn’t apply to passengers’ voluntary sharing of information about themselves.

Of course, airlines would still have to comply with Michigan privacy laws and applicable laws in other states.

Other nations – including China, Japan and those in the European Union – are working on their own versions of digital vaccine passports, Detroit’s PBS station WTVS reported.

The Biden administration recently said it won’t pursue the creation of a federal vaccine passport for use in travel or businesses. However, the administration also said it would help states to develop their own.

Critics of vaccine passports say the documents could jeopardize private health data and personal freedoms.

It should be noted that for decades, travelers to certain parts of Africa a

There are at least a couple of ways to view state medical boards that don’t issue many serious disciplinary actions for physicians. One way is to assume that because the rate of serious disciplinary actions per 1,000 licensed physicians in the state is low, nearly all of the doctors in the state are less likely to be professionally inadequate or engaged in criminal activities than physicians in other states.

That isn’t how the consumer advocacy group Public Citizen views things, however. The nonprofit organization says many state medical boards “are doing a dangerously lax job” of protecting the public.

Public Citizen recently issued a report ranking states by their rates of serious disciplinary actions per 1,000 licensed doctors in each state from 2017 to 2019.

Michigan ranks as the fourth most aggressive with 1.70 serious actions per 1,000 physicians, trailing only Kentucky (2.29), Arizona (1.81) and Pennsylvania (1.78).

The most lenient were Georgia, New Hampshire and the District of Columbia, with 0.32, 0.32 and 0.29 serious actions per 1,000 doctors, respectively.

Public Citizen uses disciplinary actions by medical boards as a measure of how well each state protects patients. “There is no reason to believe that physicians in any one state are more or less likely to be incompetent or miscreant than the physicians in any other state,” the organization stated in its report.

According to a news rep

One of the many changes the pandemic has compelled society to make is telehealth. The rapid rise of telehealth in the year-plus of the pandemic has made healthcare services more accessible, helped preserve personal protective equipment, reduced demand on healthcare facilities and helped to keep both patients and providers free of the virus.

Earlier this year, the Deputy Director for the Health and Human Services Office of Inspector General said telehealth isn’t just a matter of convenience for Medicare beneficiaries, it’s also “a matter of safety for many beneficiaries.”

Because many healthcare providers are saying they expect that telehealth will continue after the pandemic – and could even expand – the OIG Deputy Director announced plans to conduct “significant oversight” of telehealth to ensure its benefits aren’t compromised by abuse, misuse or fraud.

In fact, the OIG is already in the process of conducting several audits involving telehealth services. While the OIG’s work plan (a work plan is a list of “audits, evaluations, and inspections that are underway or planned”) indicates the focus will be on healthcare industry trends that emerged in the course of the pandemic, audits could also identify providers it believes received Medicare overpayments.

For instance, the OIG is conducting audits on the “Use of Telehealth to Provide Behavioral Health Services in Medicaid Managed Care,” “Home

Scholars believe the Hippocratic Oath was penned in Ionic Greek sometime between the third and fifth centuries B.C. Its principles are still in effect today, including: treat the sick to the best of your ability, teach medicine to the next generation and preserve patient privacy.

Patient privacy continues to be a foundation of medicine today. It’s central in the American Medical Association’s Code of Ethics and the Health Insurance Portability and Accountability Act (HIPAA).

The AMA describes HIPAA as “guardrails for the sharing and use of patient health information” between health care providers. Going over or around those boundaries can result in a wide range of civil penalties, however, from $100 for an “unknowing” violation all the way to $1.5 million for “willful neglect.”

The OCR also refers alleged criminal violations to the Department of Justice for investigation.

According to the AMA, entities that unlawfully obtain or disclose identifiable health information can face a fine of up to $50,000 and up to a year in federal prison.

The possible penalties for violations committed under false pretenses are even harsher: a fine of up to $100,000 and up to five years behind bars.

The sale, transfer or use of “individually identifiable health information for commercial advan

Most doctors bill their Medicare claims correctly. However, there are a few physicians – and their employers – who engage in upcoding and similar activities and risk the harsh penalties of the False Claims Act (FCA).

As many of our Michigan blog’s readers know, the Department of Justice (DOJ) last year increased the penalties that can be assessed under the FCA – a federal statute that dates back to 1863. In fact, the FCA was enacted during the Civil War to stem defense contractor fraud.

Today, the statute enables the federal government to pursue perpetrators of fraud, and it also allows private citizens to file lawsuits (called “qui tam” suits) on behalf of the government against those who’ve defrauded the government. The citizens who do so successfully are eligible to receive part of the recovery.

The Department of Justice says that in the fiscal year that ended Sept. 30 of last year, it received more than $2.2 billion in settlements and judgments in cases involving false claims and fraud.

According to the DOJ, there were 672 qui tam lawsuits filed in the 2020 fiscal year, and only 250 non-qui tam suits. The government recovered $545,330,030 in non-qui tam lawsuits and $1,686,124,824 in qui tam suits.

Both figures were down substantially from fiscal 2019’s non-qui tam ($844,282,697) and qui tam ($2,239,229,732) totals.

Although the HIPAA violations case is far from Michigan, it has ramifications for hospitals around the nation. The U.S. Court of Appeals for the Fifth Circuit recently overturned a $4.38 million fine imposed by the Department of Health & Human Services (HHS) on the University of Texas M.D. Anderson Cancer Center.

The genesis of the case was in the hospital’s voluntary disclosure of three instances of lost or stolen portable devices that contained electronic protected health information (ePHI). An HHS investigation found that the devices had not been encrypted. Because the devices weren’t encrypted to protect the ePHI contained on them, HHS determined that the failure constituted a violation of HIPAA Privacy and Security rules and in 2017, it then assessed the multimillion-dollar penalty.

The hospital appealed the fine to an administrative law judge and from there to the HHS Departmental Appeals Board. When those efforts failed to deliver the desired results, the University of Texas M.D. Anderson Cancer Center petitioned the Fifth Circuit for review.

The Fifth Circuit panel unanimously decided that the fine was “was arbitrary, capricious and otherwise unlawful.”

The court cited four reasons for its decision:

• The hospital addressed HIPPA’s encryption requirements, though the implemented mechanism on the devices “could’ve or should’ve been a better one.”
• The Fifth Circuit found that the government couldn’t demons

Licensed professionals of any kind spend years working toward their degree and their professional license. After spending so much time, energy, and money to earn their license, should a professional simply give it all up the first time their license is at risk?

While it is possible to defend a license against serious accusations, it is very easy to make a mistake that puts the license at risk. Here are four mistakes you can avoid to help defend your professional license:

Whenever you discuss the nature of your alleged misconduct or criminal activity, keep things brief. The more you say about the matter, the more ways a board can find a way to take your license. Keep your dialogue and responses short and sweet. When you keep things brief, you can prevent yourself from saying something that could cost you your license.

While a settlement can likely mean that you will keep your license, that does not mean that you should take the first offer you receive. You still can negotiate on your behalf, and you should use it. Negotiations can help you lower the years you remain on probation, how many corrective courses you will have to take, and even how much you may own in fines.

After you receive an accusation of misconduct or criminal activity, you have 15 days to confi

The Office of Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS) recently announced that it will conduct another audit to determine if acute care hospitals are being overpaid by Medicare.

The second round of audits follows up on a September 2020 audit that found that Medicare overpaid acute care hospitals $51.6 million from 2013 to 2016 for outpatient services to beneficiaries who were inpatients at other facilities such as long-term care hospitals, inpatient rehabilitation facilities, inpatient psychiatric facilities and critical-access hospitals.

The Detroit metro area has three acute care hospitals.

In a press statement, the OIG said: “that none of the $51.6 million we reviewed, representing 129,792 claims, should have been paid because the inpatient facilities were responsible for payments.” It added that Medicare beneficiaries also had to pay $14.3 million in “unnecessary deductibles and coinsurance” for the outpatient services.

The OIG also said the overpayments to acute care hospitals occurred because the common working file (CWF) edits that should’ve flagged overpayments weren’t working properly.

A news report stated that “acute

The Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services Office of the Inspector General (OIG) recently released their final rules revisions of the Physician Self-Referral Law (the Stark Law) and the Anti-Kickback Statute. Most of the alterations take effect on Jan. 19, 2021.

The changes are intended to modernize law and provide flexibility to providers, though

Here’s a brief overview of the changes.

• New value-based exceptions permitting compensation arrangements designed to coordinate care and improve care quality while lowering costs.
• A new cybersecurity technology donation exception was created, while the existing exception for electronic health record systems donations was expanded.
• A new exception enables physicians to receive remuneration of up to $5,000 per year for items or services rendered by the doctor.
• A clarification of how a physicians group can distribute profits from Designated Health Services (DHS). “Split-pool” profit-sharing is no longer allowed. Note: this clarification takes effect on Jan. 1 of 2022.
• The Stark Law Final Rule contains new definitions of the terms “commercially reasonable” and “general market value” and revises “volume or value” and “fair market value.” The changes are intended to clarify and modernize the Stark Law while continuing to protect Medicare from fraud and abuse.

One of the many changes the pandemic has made to Michigan life is in the management of health care. Telehealth (also referred to as “telemedicine”) has become commonplace – and patients are apparently OK with that.

A recent Harvard Business Review poll of more than one million patients found that “patients were just as likely — or even slightly more likely — to give high ratings to their care providers after telemedicine visits compared with in-person care.”

A recent announcement by the Centers for Medicare and Medicaid Services (CMS) makes it clear that the use of telehealth services for Medicare beneficiaries are here to stay, even after the Covid-19 pandemic has concluded.

CMS released the annual Physician Fee Schedule final rule (“Final Rule”) in December 2020.

Before the pandemic, only about 15,000 Medicare beneficiaries received weekly telehealth visits. However, because of virus transmission concerns, CMS added more than 100 telehealth services covered by Medicare.

By the end of April, more than 1.2 million Medicare beneficiaries were receiving weekly telehealth services. However, some services, including emergency department visits, discharge management services and initial inpatient and nursing facility visits were scheduled to expire when the public health emergency ended.

The recently released Final Rule permanently adds nine telehealth services that

The Department of Health and Human Services (HHS) recently proposed changes to data privacy rules that it says will increase patient access to their health information and will improve coordination of care between physicians, hospitals and other healthcare providers, as well as insurers.

The HHS said the proposed changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule will help enable patients to be engaged in their care. The changes to HIPAA will also make it easier for providers to coordinate care. HHS also says its proposal will reduce the healthcare industry’s regulatory burdens.

HHS says its changes will do all of that “while continuing to protect the privacy and security of individuals’ protected health information.”

The proposed changes will also enable family members and caregivers to be more involved in health emergencies or crises and give greater disclosure flexibility to care providers in emergencies or threatening situations. Two examples of these circumstances cited by HHS were the Covid-19 pandemic and the opioid crisis.

In a press statement, HHS Secretary Alex Azar said, “As part of our broader efforts to reform regulations that impede care coordination, these proposed reforms will reduce burdens on providers and empower patients and their families to secure better health.”

The American Health Information Management Association (AHIMA) sa

The independent pharmacy community’s wait began back in Michigan’s frigid  January when the U.S. Supreme Court decided it would take Rutledge v. the Pharmaceutical Care Management Association (PCMA). In October, the court heard arguments in the health care law dispute over whether states can regulate pharmacy benefit managers (PBMs).

With its recent unanimous decision, the court ended the wait by ruling that states may pass laws requiring PBMs to reimburse pharmacies for medications at a rate equal to – or higher than – the pharmacy’s wholesale cost.

The legal battle lines were drawn back in 2015 when Arkansas passed Act 900, a law requiring PBMs to increase reimbursement rates for prescription medications if the rates dropped below the pharmacy’s wholesale costs. The law also created a process by which pharmacies could challenge PBMs’ reimbursement rates.

In order to be able to participate in a preferred pharmacy network, some pharmacies would agree in contracts to accept unfavorable terms, such as below-wholesale reimbursements from PGMs. The Arkansas law was written to end the practice, but the PCMA (the trade association for major PBMs) argued in its lawsuit that the federal law known as ERISA (Employee Retirement Income Security Act) preempts state laws relating to ERISA-governed employee benef

Your primary duty is to care for your patient. Unfortunately, you aren’t given carte blanche to do so. Your care must fall within the lines of hospital and clinic rules. There are also state and federal regulations to which you must adhere, as well as your ethical obligations.

All of these factors can impede your ability to provide the type of care you feel your patient deserves. Sometimes, it can be tempting to flout the rules to help your patient get the treatment they need. Some medical professionals may perform an end-run around rules and regulations by engaging in a practice known as upcoding. While you may believe you are doing what is morally right, upcoding is considered a form of billing fraud. Upcoding could put your medical license at risk.

Upcoding can take a variety of forms. One example would be exaggerating a patient’s condition to help avoid an early discharge. Other examples may involve splitting one test into two or reporting symptoms that your patient hasn’t complained about to secure a medical test.

It can be easy to justify upcoding. What’s the harm in blurring the lines once in a while if it gets your patients the help they need? Is anyone even likely to notice an occasional bending of the rules?

Keep in mind it only takes one administrative audit or one instance of a colleague to report what you’re doing to find yourself in legal h

Deborah J. Williamson, Founder and Managing Partner of Williamson Health Law, was selected by a vote of her peers to be included in DBusiness magazine’s 2021 list of Top Lawyers. This esteemed list is published in the November/December 2020 issue of DBusiness magazine and online at www.dbusiness.com.

Williamson Health Law has been recognized in the 2021 U.S. News - Best Lawyers® “Best Law Firms” list for Health Care Law.  This is the sixth consecutive year Williamson Health Law has received this ranking.

Firms included in the 2021 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Williamson Health Law is ranked Metropolitan Tier II-Detroit in Health Care Law.  Williamson Health Law has been listed in “Best Law Firms” since 2016.

Deborah J. Williamson, Founder and Managing Partner of Williamson Health Law, is also listed in The Best Lawyers in America® 2021. Ms. Williamson has been featured in the Best Lawyers listings since 2013.

Williamson Health Law, PLLC is proud to announce that Deborah J. Williamson has been selected to the 2020 Michigan Super Lawyers list for her work as a health care attorney. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.  The 2020 Michigan Super Lawyers Magazine was released digitally today.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.  For more information about Super Lawyers, visit SuperLawyers.com.

Michigan Health Care Legal Blog