Managing Business Relationships to Thrive and Comply Presented by Douglas M. Wolfberg www.pwwemslaw.com 5010 E. Trindle Road, Suite 202 Mechanicsburg, PA 17050 717-691-0100 717-691-1226 (fax) dwolfberg@pwwemslaw.com Disclaimer: These seminar materials are designed to provide an overview of general legal principles and should not be relied on as legal advice. You should seek advice from an attorney if you have particular factual situations related to the materials presented here. COPYRIGHT 2017, PAGE, WOLFBERG & WIRTH, LLC. ALL RIGHTS RESERVED. REPRODUCTION BY ANY MEANS EXPRESSLY PROHIBITED WITHOUT THE WRITTEN CONSENT OF PAGE, WOLFBERG & WIRTH, LLC.
2017 Douglas M. Wolfberg Attorney and Consultant Contact Information E-mail: dwolfberg@pwwemslaw.com Direct Dial: (717) 620-2680 Education Undergraduate: B.S., Health Planning and Administration The Pennsylvania State University Law School: J.D., Magna Cum Laude Widener University School of Law Admissions to Practice Commonwealth of Pennsylvania State of New York Supreme Court of the United States U.S. Circuit Court of Appeals, 3 rd Circuit U.S. District Court, M.D. PA U.S. District Court, E.D. PA Professional Philosophy I consider myself very lucky to be able to combine my lifelong passion for EMS with the practice of law. Having gone from EMT to EMS director to EMS attorney and to apply that background to serve an industry I care about very deeply means that I simply love what I do for a living. Doug Wolfberg is a founding member of Page, Wolfberg & Wirth. For over 20 years he has been recognized as one of the nation s most prominent EMS attorneys and consultants. Doug brings a lifelong love of EMS to his work at PWW he answered his first ambulance call in 1978 and has been involved in EMS ever since. Doug became an EMT at age 16, and worked as an EMS provider and educator in numerous EMS systems over the decades. Doug has steadily worked up the ladder in his EMS career. He worked as a county EMS director and then as director of a threecounty regional EMS agency. He later worked for a statewide EMS council and then went to the nation s capital to work at the United States Department of Health and Human Services, where he worked on federal EMS and trauma care issues. After graduating law school with high honors, Doug worked for several years as a health law litigator. He then co-founded PWW in 2000 along with Steve Wirth and the late James O. Page. Doug represents public, private and nonprofit EMS agencies, billing companies, technology companies, private equity firms and others involved in providing and financing EMS. His practice focuses on revenue cycle management and compliance, EMS system design and evaluation, privacy and security, business transactions and other areas of EMS law. Doug serves as faculty at Commonwealth Law School and the University of Pittsburgh, and is a member of the Board of Trustees of Widener University. He has also endowed the Douglas M. Wolfberg Scholarship at Commonwealth Law. Doug has been a featured presenter at virtually every major EMS conference in the United States and has authored articles and columns in the industry s best-known publications. In his free time, Doug is an avid bicyclist and musician. Page, Wolfberg & Wirth, LLC 5010 E. Trindle Rd., Ste. 202 Mechanicsburg, PA 17050 www.pwwemslaw.com 717-691-0100 Fax 717-691-1226
California Ambulance Association 2017 Annual Convention and Reimbursement Conference Managing Business Relationships to Thrive and Comply Copyright Statement The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI, and is punishable by up to 5 years in federal prison and a fine of $250,000. Disclaimers This information is presented for educational and general information purposes and should not be relied upon as legal advice or definitive statements of the law. Consult applicable laws, regulations and policies for officials statements of the law. No attorney-client relationship is formed by the use of these materials or the participation in this seminar. The user of these materials bears the responsibility for compliance with all applicable laws and regulations. The Business Relationship Your organization s success and compliance requires that you have a good business relationship with the facilities you serve That relationship must be one of shared responsibilities Shared Responsibility The ambulance service provider files the Medicare claim for Part B transports, so it must conduct its own assessment of the patient s condition However, the information and documentation provided by the facility is material to that determination Shared Responsibility It is also a vital patient care issue so that the right level of service and right vehicle can be sent to meet the patient s needs This facilitates a continuum of care and reduces everyone s potential for liability Page 1
Shared Responsibility It is in a hospital s best financial and compliance interests to provide highly accurate patient information to the ambulance service provider that describes the condition of the patient at the time of transport MLN Article Caring for Medicare Patients is a Partnership issued June 2016 Cooperation of all providers of services to supply necessary documentation and information is a requirement under federal law 42 U.S.C. 1395u(p) MLN Article Emphasizes that treating physician or practitioner that orders a service to be provided by another provider needs to understand the applicable Medicare coverage criteria Article endorsed by Medical Director of each MAC 42 U.S.C. 1395u(p) In the case of an item or service ordered by a physician but furnished by another entity, if [CMS] requires the entity furnishing the item or service to provide diagnostic or other medical information in order for payment to be made to the entity, the physician shall provide that information to the entity at the time that the item or service is ordered This Means the Physician Isn t Merely Doing us a Favor by Providing a PCS it s Required! The Federal False Claims Act 31 U.S.C. Section 3729 Page 2
Knowing The False Claims Act Has actual knowledge of the information Acts in deliberate ignorance of the truth or falsity of the information Acts in reckless disregard of the truth or falsity of the information Hospital Liability Even though the ambulance service provider files the claim for Medicare reimbursement, a hospital that orders medical transportation can also face FCA liability if there was no medical necessity and the PCS was inaccurate Hospital Liability Under the FCA, whoever submits or causes to be submitted a false or fraudulent claim The government interprets the causes to be submitted language as including facilities that order medical transportation and provide PCS forms to ambulance services Medical Necessity A Shared Responsibility Between the Hospital and the Ambulance Provider Medical Necessity Ambulance services are a very limited benefit under Medicare Only reimbursed when other methods of transport are contraindicated by the patient s condition Page 3
Medical Necessity Medicare pays for non-emergency ambulance service only when the beneficiary is bed-confined or the beneficiary s condition, regardless of bed confinement, is such that transport by ambulance is medically required Bed Confined The patient is unable to: Get up from bed without assistance Ambulate Sit in a chair or wheelchair Bed Confined The term bed confined is not synonymous with bed rest or nonambulatory Medicare Benefit Policy Manual, Chapter 10, Section 10.2.3 Medical Necessity Certifications For most non-emergency ambulance transports, Medicare requires a physician certification statement (PCS) The PCS certifies that medical necessity for transport by ambulance is met Medical Necessity Certifications The ambulance service provider relies on the facility to accurately describe and document the patient s condition when requesting transport The ambulance service provider deploys the right resource based on the information supplied by the facility Transportation Coordinators Some ambulance services with ongoing facility relationships have found that it can be beneficial to deploy transport coordinators to facilitate the ambulance utilization process Page 4
Transportation Coordinators Sometimes, facility representatives will fulfill this role Discharge planner, social worker, etc. But other times, the ambulance service will deploy a transport coordinator to the facility Transportation Coordinators It is important to ensure that the financial relationships regarding transport coordinators are clear and compliant If the ambulance service deploys a transport coordinator in the facility, that individual should not provide services with a financial benefit to the facility Could be seen as a potential AKS issue Example ABC Ambulance hires a transport coordinator and assigns her to work inside XYZ Hospital Her duties include: Receiving transport requests from hospital departments Gathering PCS forms, face sheets and other documentation Assisting with scheduling of the transports These duties generally benefit the ambulance service Example However, when the transport coordinator isn t busy doing those things, she helps out by: Patient conveyance inside the hospital (e.g., moving hospital patients for lab tests or imaging and back to their rooms, etc.) Taking vital signs of floor patients Helping in the E.D. when it s busy Example Helping out costs ABC Ambulance money and has financial benefit for XYZ Hospital This could be seen as an inducement by ABC Ambulance to XYZ Hospital in exchange for receiving the hospital s transport business Principles of Compliance Ensure that the transport coordinator s services are all related to setting up, scheduling and managing the ambulance service s patient volume Any benefits conferred on the hospital should be quantified at their fair market value (FMV) The hospital should pay the ambulance service FMV for any benefits the hospital receives Page 5
Transportation Coordinators If structured properly, the use of transportation coordinators can enhance efficiency in arranging ambulance transports Another Potential Pitfall Be careful not to allow the transport coordinator to: Complete PCS forms for hospital staff Direct the hospital staff on what to write on the PCS forms These practices have been seen as issues by the government in a current ongoing investigation Can be a general resource Best Practices Transport Coordinators Have a written job description with clear delineation of responsibilities Hospital should have a written policy on appropriate ambulance utilization Best Practices Transport Coordinators Monitor utilization to ensure only appropriate patients who meet medical necessity are transported by ambulance Best Practices Transport Coordinators Provide pre-transport review of PCS from the facility to ensure they are: Accurate Consistent with the patient s medical records Complete Properly signed by an authorized signer Contain legible name and credentials of signer Case Study #1 The Florida Hospital Throughput Case Page 6
U.S. ex rel. Pelletier v. Liberty Ambulance, et al. Case No. 3:11-cv-00587-TJC-MCR (M.D. Fla.) Allegations The Defendant had a practice and policy of submitting false claims to the government for transports that were either medically unnecessary or were upcoded to a higher level of reimbursement Routinely submitted false statements on PCRs to support these claims Allegations Routinely transported patients that could ambulate, travel by private vehicle or travel by wheelchair Also alleged discounts in violation of the AKS Related Complaint In a related complaint also sued were another ambulance company and 9 hospitals Alleged the hospitals were providing false or inaccurate PCS forms Government alleged that the hospitals wanted to improve throughput by moving patients out to make room for new ones The FCA Counts Defendants knowingly presented or caused to be presented a false claim for payment in violation of 31 U.S.C. 3729(a)(1)(A) Defendants knowingly made, used or caused to be made or used false records to get false claims paid in violation of 31 U.S.C. 3729(1)(1)(B) The FCA Counts Through these acts Defendants conspired to defraud the United States by submitting and receiving payment for false claims in violation of 31 U.S.C. 3729(a)(1)(C) Page 7
Related Case The related case against the hospitals and the other ambulance service provider settled September 9, 2011 That case case filed settled May 1, 2015 case settled Potential Harm to Both Up to $15,024 per false claim Treble damages Possible exclusion OIG Initial Offer The OIG used extrapolation to calculate damages and make an initial settlement offer Initial settlement offer to ambulance service provider was 5 figures Presume initial settlement offer to hospitals was likewise, but more Settlement Total settlement = $7.5 million Hospitals paid $6.25 million Settling ambulance company paid $1.25 million and That case settled agreed to a Corporate Integrity Agreement Other ambulance company refused to settle and litigation is proceeding Case 1: Lessons Learned Although the EMS agency submits the claims for reimbursement, a health care facility may also have liability for those claims under the FCA Healthcare facilities can be held liable if their PCS does not accurately reflect the patient s condition Case 1: Lessons Learned The medical necessity documentation from hospitals is material to making medical necessity determinations for transport by ambulance Recognizing that hospitals have a financial incentive in expediting throughput, EMS agencies must market compliance Page 8
Case 1: Lessons Learned Ambulance services and facilities need to work together as partners in compliance to ensure that patients are transported by ambulance only when their condition is medically necessary Don t Be a Target Case 1 was brought by a whistleblower But you and your contracted facilities can be an audit target for a possible FCA investigation through data mining Some Audit Targets Large volume of discharges by ambulance Large volume of transports to and from dialysis by ambulance Supporting Documentation Ambulance suppliers are not required to submit supporting documentation for billing purposes However, Medicare rules require ambulance suppliers to retain documentation establishing medical necessity Supporting Documentation MACs, OIG, DOJ and the Medicare auditors have a right to review the ambulance service provider s documentation to determine if it supports reimbursement Avoiding Inducements: The Federal Anti- Kickback Statute Page 9
Anti-Kickback Statute (AKS) Anti-Kickback Statute violations are a two-way street It is a criminal statute For conviction, a felony, possible $25,000 fine, possible imprisonment for up to 5 years, or both Anti-Kickback Statute (AKS) If your organization is guilty, the facility with which you contract is also guilty Whoever knowingly and willfully solicits or receives remuneration to induce referrals is guilty of a felony and also a violation of the False Claims Act Anti-Kickback Statute Prohibits any solicitation or receipt of any remuneration, directly or indirectly, in cash or in kind, in return for referrals of services reimbursable by any Federal health care program Applies to both sides of an impermissible arrangement Anti-Kickback Statute In short, the AKS prohibits remuneration in exchange for referrals Guards against overutilization Broad reach applied to all manner of remuneration Case #2 The Southern California Swapping Case U.S. ex rel Carlisle v. Pacific Ambulance, et al. Case No. 3:09-cv-02628-L-BSM (S.D. Cal.) Page 10
False Claims Suit FCA suit under 31 U.S.C. 3729 was brought pursuant to 42 U.S.C. 1320a-7b(g) for swapping kickback schemes Defendan ts and C Defendants and Co-conspirators Seventeen ambulance service providers were named in the suit Numerous health care facilities were named as institutional co-conspirators Qui Tam Relator Care Medical Transportation, Inc. (CARE), competed against the defendants for contracts with the named health care facilities Owner was whistleblower CARE had contracts with many of the facilities and lost them to the defendants Alleged Facts Defendants routinely charged the named facilities less than the actual cost of a transport in exchange for an exclusive contract to conduct all ambulance transports from those facilities Alleged Facts One defendant offered a facility a discounted rate for Part A transports and free wheelchair van services in exchange for a Part B contract Settlement Five of the defendants entered into a settlement requiring them to collectively pay $11.5 million Page 11
Unfair Business Practices Unfair business practices can drive competitors to be whistleblowers Whistleblowing can lead to a big payoff 15%-25% of damages or settlement if OIG intervenes 25%-30% if whistleblower s attorney handles the litigation Lessons Learned Health care facilities want to pay the lowest rate You must educate them about AKS violations and their potential liability Lessons Learned Neither party should offer, solicit, provide or receive freebies, perks or other goodies in any amount either in cash or in kind if even one purpose is to influence patient referrals. Lessons Learned Ambulance charges to facilities must reflect fair market value. Rates should be consistent with the ambulance service provider s Medicare Part B rates Marketing Compliance At the end of the day, your facility relationships can be a blessing and a curse If you partner with facilities who care about compliance and work in partnership with you to achieve it, the relationship can be smooth sailing Marketing Compliance On the other hand, you ll have to travel a lonely, rocky road if your facility partners leave you to fend for yourself when it comes to compliance Page 12
Visit PWW Summary and Conclusion Visit our EMS Law Website at www.pwwemslaw.com Page 13