Compliance Round-Up. March 11, 2014

Transcription

1 Compliance Round-Up March 11, 2014 Medicare Billing Settlement, HIPAA Guidance Mental Health Information, HIPAA Settlement, Two Midnight Rule Legislation, HCFAC Report, Halifax Settlement 1

2 Faculty Brian Annulis, JD, CHC Managing Director, Aegis Compliance & Ethics Center, LLP Ryan D. Meade, JD, CHRC Managing Director, Aegis Compliance & Ethics Center, LLP

3 Continuing Goals The goals of the Compliance Round-Up Webinars: Teaching/knowledge transfer Keep you up to date on compliance rules Practical points Assist organizations to develop in-house methods of managing Please share your thoughts, suggestions (and criticisms) 3 3

4 Compliance Round-Up: Webinar Overview Administrative Matters Monthly on the 2 nd Tuesday of the month No charge! (feel free to spread the word.) Each session will be minutes in duration Each session will begin at 12:00 PM CT If you are unable to participate in the live discussion, each session will be recorded and made available in MP3 format 4 4

5 Today s Topics/Agenda 1. Medicare Billing Settlement 2. HIPAA Guidance Mental Health Information 3. HIPAA Settlement 4. Two Midnight Rule Legislation 5. HCFAC Report 6. Halifax Settlement 5

6 Medicare Billing Settlement On February 18, 2014 US Attorney in Maryland and the OIG announced a FCA settlement with Engage Medical, Inc., its owner Sanjay Puri and three medical practices that were its clients The parties agreed to pay a total of $3,340,979 to resolve claims that Engage Medical overbilled for nuclear stress tests. The allegations resolved in the settlement agreement involve overbilling of nuclear stress tests between July 31, 2007 and March 8,

7 Medicare Billing Settlement Engage Medical contracted with physicians and physician practices, holding itself out as having expertise in medical billing. Engage Medical staff would obtain records from physician clients related to the medical services provided, and transmit that information to staff in India, where medical coders would apply the relevant CPT codes and bill applicable insurance, including Medicare and other federally funded health insurance programs. 7

8 Medicare Billing Settlement Engage Medical marketed the stress tests to general practitioners, persuading them that instead of referring the patients to cardiologists for these tests, Engage could arrange to have the testing service performed in the general practitioner s offices and bill for the tests, all of which would increase the general practitioners incomes. Dr. Muttath and Dr. Gill, two internists, agreed to allow Engage to provide this service. 8

9 Medicare Billing Settlement According to the government s press release, Engage Medical s billing of these tests, however, was false and in direct contradiction to published materials about such medical billing. The government argued that Engage Medical systematically billed for each service twice, using a CPT code modifier intended to be used when the service had been repeated by the same physician or when a distinct service was performed on the same day. The government s position was that none of the tests were repeated and none of the tests was a distinct procedural service. 9

10 Medicare Billing Settlement The government alleged further that Engage Medical also included with its billing a CPT code that was intended to be used for interpreting and reporting images, even though proper CPT coding for a nuclear stress test already compensated the physician for interpreting and reporting the tests results (i.e., unbundling). In its unbundling, the government alleged that Engage Medical ignored the plain language in the applicable CPT coding manuals that specifically told coders not to use the reporting and interpretation CPT codes when billing for nuclear stress tests. 10

11 Medicare Billing Settlement The government also alleged that in 2009, Engage Medical contracted with Advanced Cardiology Center and its three physician owners: Pankaj Lal, M.D., Mubashar Choudry, M.D. and Moshin Ijaz, M.D. Advanced Cardiology hired Engage Medical to re-bill claims for nuclear stress tests that Advanced Cardiology had already performed, billed and been paid for, in some cases years before. 11

12 Medicare Billing Settlement Advanced Cardiology gave Engage Medical access to Advanced Cardiology s billing files and Engage Medical isolated the instances where Advanced Cardiology had performed and been paid for nuclear stress tests. Using its false billing model, Engage Medical resubmitted the nuclear stress tests for payment a second time, using the CPT codes that reflected a distinct or repeat service, and also added the unbundled code for interpretation. 12

13 Medicare Billing Settlement Unlike the internists, however, the government alleged that Advanced Cardiology did not retain Engage Medical to bill claims after February 2010 and thus Advanced Cardiology did not give Engage Medical access to Advanced Cardiology medical records of its patients beyond that time. Rather, Advanced Cardiology employed the Engage Medical model itself, with its own billers applying the false CPT codes to new tests that the cardiologists at Advanced Cardiology performed. 13

14 HIPAA Guidance OCR recently published Guidance concerning when providers may appropriately share the PHI of their mental health patients and provides reminders about HIPAA Privacy Rule issues surrounding mental health records. guidance.html Under 45 C.F.R. Section (b), health care providers may communicate with a patient's family members and friends when the patient does not object and the disclosures are directly relevant to that person's involvement in the patient's care or payment for care. 14

15 HIPAA Guidance Examples A psychiatrist may discuss the drugs a patient needs to take with the patient's sister who is present with the patient at a mental health care appointment; and A therapist may give information to a patient's spouse about warning signs that may signal a developing emergency. 15

16 HIPAA Guidance In the Guidance, OCR also confirms that if a patient is incapacitated, a provider may share information with family and friends when that provider determines, based on professional judgment, that the disclosure is in the patient's best interest. The Guidance emphasizes that providers must abide by the wishes of their adult mental health patients who object to disclosures to friends and family. Nevertheless, OCR reiterates that HIPAA permits providers to warn family members or law enforcement if the provider perceives a serious and imminent threat to the health or safety of the patient or others and the disclosure may reasonably prevent or lessen the risk of harm. 16

17 HIPAA Guidance The Guidance also emphasizes that HIPAA provides extra protection to psychotherapy notes maintained separately since the therapist's personal notes are not required for treatment, payment, or health care operations. Under the Privacy Rule, Providers must obtain a separate authorization to disclose psychotherapy notes with few exceptions. 17

18 HIPAA Settlement On March 7, 2014, OCR announced that Skagit County, Washington agreed to settle potential violations of HIPAA and the Privacy, Security, and Breach Notification Rules. Skagit County agreed to a $215,000 monetary settlement and to work closely with OCR to correct deficiencies in its HIPAA compliance program. This case marks the first settlement with a county government and sends a strong message about the importance of HIPAA compliance to local and county governments, regardless of size, said Susan McAndrew, deputy director of health information privacy at OCR. These agencies need to adopt a meaningful compliance program to ensure the privacy and security of patients information. 18

19 HIPAA Settlement OCR opened an investigation of Skagit County upon receiving a breach report that money receipts with electronic protected health information (ephi) of seven individuals were accessed by unknown parties after the ephi had been inadvertently moved to a publicly accessible server maintained by the County. OCR s investigation revealed a broader exposure of PHI involved in the incident, which included the ephi of 1,581 individuals. Many of the accessible files involved sensitive information, including PHI concerning the testing and treatment of infectious diseases. OCR s investigation further uncovered general and widespread non-compliance by Skagit County with the HIPAA Privacy, Security, and Breach Notification Rules. 19

20 Two Midnight Rule Legislation On March 6, U.S. Senators Robert Menendez (D-NJ) and Deb Fisher (R-NE) introduced the Two-Midnight Rule Coordination and Improvement Act of 2014 (S. 2082), a bipartisan bill to address the ongoing issues surrounding the Two Midnight Rule. The rigid approach currently taken by this rule could lead to instances where a physician is unable to make the proper medical determination for a beneficiary s treatment. Almost immediately after CMS finalized the rule it became clear it was inherently flawed and the rule s enforcement has been delayed on three separate occasions. The current enforcement delay, announced on January 30, 2014, is in effect through September 30,

21 Two Midnight Rule Legislation The Two-Midnight Rule Coordination and Improvement Act seeks to resolve these issue by establishing new guidelines for CMS, in consolation with hospitals, physicians and other experts, to establish criteria and payment methodologies applicable to beneficiaries in need of short inpatient stays. Further, to ensure that hospitals are not subjected to potentially onerous audits while these criteria are being developed, the legislation codifies the enforcement delays CMS has already imposed. 21

22 HCFAC Report The Health Care Fraud and Abuse Control (HCFAC) Program recovered a record-breaking $4.3 billion in taxpayer dollars in fiscal year (FY) 2013, up from $4.2 billion in FY 2012, according to a report released February 26 by DOJ and HHS. According to the HCFAC annual report, in FY 2013, DOJ opened 1,013 new criminal health care fraud investigations involving 1,910 individuals and federal prosecutors had 2,041 health care fraud criminal investigations pending involving 3,535 potential defendants, and filed criminal charges in 480 cases involving 843 defendants. A total of 718 defendants were convicted of health care fraud-related crimes during the year, the report said. 22

23 HCFAC Report DOJ also opened 1,083 new civil health care fraud investigations and had 1,079 civil health care fraud matters pending at the end of the fiscal year, the report said. The report also said for every dollar spent on health care-related fraud and abuse investigations through HCFAC and other programs in the last three years, the government recovered $8.10. This is the highest three-year average return on investment in the 17- year history of the HCFAC Program, the agencies highlighted. 23

24 Halifax Hospital Settlement On March 3, 2014, Halifax Health announced an $85 million settlement with prosecutors that could resolve the first half of a trial over whether the organization's physician compensation deals violate the Stark Law. The settlement still needs finalizing and court approval. Halifax had been preparing for a trial that involved the largest potential damages ever seen in a civil whistleblower case against a single hospital. As much as a billion dollars was on the line. Halifax was about to become one of the few hospitals ever to go trial in such a case, following last year's $237 million judgment against a South Carolina hospital (Toumey) on similar allegations of overpaying doctors. 24

25 Halifax Hospital Settlement Under the settlement, Halifax would resolve the first half of its case out of court, which alleges that the hospital administration illegally compensated a group of nine neurologists and medical oncologists to refer Medicare patients to the hospital. The case was triggered when a former compliance officer who still works at the hospital in a different role, Elin Baklid- Kunz, filed a lawsuit in 2009 accusing Halifax administrators of paying doctors above-market rates and handing out bonuses to the most active doctors using the hospital's share of Medicare funds. If true, both of those arrangements would violate the Stark Law, and if done on purpose or with reckless disregard for the law, the payments would violate the FCA and trigger triple damages 25

26 Halifax Hospital Settlement Even if the settlement is approved, Halifax and Baklid-Kunz are set to litigate a separate but related set of allegations in July that DOJ did not join. Baklid-Kunz said the hospital ignored clear signs that it billed Medicare for inpatient hospital care in cases where the medical need wasn't documented. Hospital officials deny those allegations as well. 26

27 Follow-Up Questions? Next Lecture: Tuesday, April 8,