Top 10 Lessons: Helping Podiatric Physicians Survive the Health Law Jungle 2024 PDF

Top 10 Lessons: Helping Podiatric Physicians Survive the Health Law Jungle Video 4 DPM Community Health September 2024 Denise M. Hill, JD/MPA Associate Professor, Drake University Of Counsel Attorney,...

Top 10 Lessons: Helping Podiatric Physicians Survive the Health Law Jungle Video 4 DPM Community Health September 2024 Denise M. Hill, JD/MPA Associate Professor, Drake University Of Counsel Attorney, Whitfield & Eddy, PLC  Learning Objectives: Jurisprudence (2024) Identify the laws that protect patients; including their medical records, protected health information, and their safety. Identify the role of laws that govern corporations and other legal practice entities in protecting patients. Recognize the general legal concepts that govern medical practice. Identify the duties and responsibilities of state medical boards and hospital medical staff. Demonstrate knowledge of the following; Federal Kickback Law, Stark II Law, and False Claims Act as they relate to fraud and abuse. Define and demonstrate knowledge of informed consent liability, batter, and the essential elements of negligence (duty/standard of care, breach of care, damages, and causation) as they relate to health care delivery. Identify strategies for disclosure of adverse outcomes and legal ramifications. © 2024 Denise Hill-- For Education Not 2 Legal Advice  Top Lessons 6. Know how to recognize and avoid the dangers of fraud and abuse 7. Don’t try to blend in—report. 8. Set up a business system that works efficiently and profitably. 9. Don’t be proud, let process drive you & work with others to improve. 10.Don’t get stuck with a bad contract. 6. Know your Pets—Don’t sleep with the Boa Constrictor or you may be lunch! Recognize & avoid the dangers of fraud & abuse https://podiatrym.com/pdf/2017/1/Borreggine217web.pdf  Categories of Fraud & Abuse Note: Narrow Exceptions and Safe Harbors 1. Bribes or kickbacks (Anti Kickback Law) 2. Illegal referrals/Conflicts of Interest (Stark Law) 3. False claims or other fraudulent billing practices (False claims Law)  Anti-Kickback: You scratch my back & I’ll scratch yours  Anti-kickback Statute Knowingly/willfully Solicit or receive Remuneration ($$$ or other benefit) In exchange for referrals (may be actual or intent) For which payment may be made under federal government health care program Focus is on referrals as ONE reason for relationship  Remuneration Anything of value not in exchange for a service/good Any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is offered or provided, directly or indirectly for the purpose of improperly obtaining or rewarding favorable treatment in connection with a contract. Compensation in excess of fair market value (FMV)  Commonly Applied Safe Harbors 1. Investment interests in large publicly traded entities 2. Lease of space and equipment rental 3. Personal Services and management contracts 4. Physician Recruitment 5. Sale of practitioner practice (retirement) 6. employees 7. Investments in group practices 8. Warranties Regulations describe transactions that tend to induce 9. Discounts referrals but don’t necessarily violate the law. The regulations state clearly that transactions that don’t 10. Employees meet a safe harbor don’t necessarily violate the statute; Prosecutor will evaluate facts/circumstances to decide determination. See: http://www.aafp.org/fpm/2003/1100/p27.html 10  Anti-Kickback Example Typical Building Arrangement Hospital Space and MOB Space MOB Hospital Space Space 11 Why have safe harbors & Exceptions 12  What to do…. Your turn…Anita’s Story Dr. Anita is frustrated because Dr. Bob gets all of the sleep lab’s referrals. Dr. Bob is the “medical director of the lab” and receives a hefty salary for basically going to a meeting four times a year. She also heard through the grapevine that he gets Hawkeye Season tickets for “consulting” with the Zyrtec pharmaceutical rep. Conflicts of I n te r e s t No frogs were harmed in the making of this photo... CC BY-SA 2.0 Photo © 2010 J. Ronald Lee. © 2024 Denise M. Hill (For General Education-Not Legal Advice)  Stark II Physician self-referral law prohibits: a physician’s referral of a Medicare patient to an entity in which they (or their immediate family) have financial interests for provision of a certain designated health service.  Stark is an Exceptions Law All Self- 1. Starts by prohibiting Referrals are prohibited all forms of self- referrals Except those 2. Specifically exempts specifically particular conduct & excepted relationships 16  Designated Health Service Clinical laboratory services Physical therapy services Occupational therapy services Speech therapy services Radiology services Radiation therapy services Durable medical equipment Parenteral and enteral nutrients, equipment & supplies Prosthetics, orthotics and prosthetic devices Home health services Outpatient prescription drugs Inpatient and outpatient services  Referral Includes the request by a physician for a service or item covered by the government health care program, including consulting with another physician and any test or procedure ordered by or to be performed by or under the supervision of another physician Why concern about referrals? 19  Exceptions Both ownership and compensation arrangements – Physician services (provided personally) – In-office ancillary services – Prepaid HMOs Only to ownership interests – Publicly traded securities – Rural providers – Hospitals in Puerto Rico Only to compensation arrangements – Rental of office space/equipment – Bona fide employment arrangement – Personal service arrangement – Physician recruitment  Listen up! Stark reality… May Apply to YOU even if you do not have a relationship! Regulations on Phase II—Called “Stark Phase III” Revises definition of "indirect compensation arrangements” so that many contractual arrangements between a physician's group practice and any entity providing "designated health services" ("DHS") must now be analyzed as a "direct compensation arrangement" between each of the group’s physicians and the DHS entity. Deemed to "stand in the shoes" of physician group practice and have a direct compensation arrangement with the DHS entity.  Your What to do…. turn…Dr. Roger’s Story Dr. Roger has moved his family to a small town. His wife is a physical therapist and had to leave her practice in Iowa City. A few months after moving in she is bored and climbing the walls. Roger suggests that she get a job or find a hobby. The next day when he comes home she is very excited. I put a down payment on one of the storefronts downtown and met with an advisor to develop a business plan. We determined that there is a shortage of PT services in town and I am going to open a PT clinic. We have a cool marketing strategy and of course with all the podiatric referrals you, the partners in your clinic and the hospital we should be able to make the numbers work. She is on cloud nine. Would it matter if she worked for his clinic? What if the PT clinic was part of the same accountable care organization? Charges Against Podiatrists Suggest Fraud is “Afoot”  False Claims: Don’t Take what you did not earn  The False Claims Act Imposes civil liability on any person or entity who “knowingly” submits, conspires or causes someone else to submit false or fraudulent claim for benefit or payment Liability for treble (3x) damages and fines of $5,000 to $10,000 (per occurrence)  Types of (False Claim) Fraud Claims for services not rendered or provide medically unnecessary –“Phantom Billing” Bill for treatment not corresponding to treatment actually provided—“Up coding” or “DRG Creep” Fragmenting or Unbundling Services  Unbundling and Up coding Unbundling: Provider manipulates coding by billing for multiple procedure codes for a group of procedures that are covered by a single comprehensive code to maximize payment. Upcoding: Provider uses CPT codes to bill a payer (private, Medicaid or Medicare) for a higher-paying service than was performed. Drives up costs Negative health impact for client as it puts false information in their medical records and can affect future ability to get insurance. CMS. National Correct Coding Initiative Policy Manual for Medicare Services. version 11.3.  Must Be a Submission Health care claim or cost report To a government program– o Medicare o Medicaid o TRICARE o Veterans benefits o Indian Health Service OR……to private insurance (see next slide!) Fraud  Compare Key Statutes Stark Anti-Kickback False Claims Physicians, Dentists & Anyone in business with Any one who: Chiropractors federal government program submits Who does it Not “mid-level providers” conspires or But Stark -whoever submits Causes apply to? False claim to gov Civil penalties Criminal Criminal-felony PPACA=Also Anti-kickback Civil Civil $-treble & per Non-Payment Exclusion occurrence Penalties Non-Payment Exclusion PPACA=Also FCA Non-Payment All Prohibited & then narrow Some Activities Tend to be None. Exceptions or exceptions violations Did or did not do it Look at Safe Harbors to see if Safe Harbors No “de minimus” exception meet conditions Intent is not relevant. Specific Intent —not inferred Knowingly intend to from behavior receive—not to violate Intent Standard Designated Health Service Pay, solicit or receive Submit/conspire/cause  HIPAA’s Fraud & Abuse Extends to private insurance!!!!! (Sec. 204) Amends SSA title XI to require application of criminal penalties for acts involving the Medicare program to similar violations of any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the Federal Government, except the Federal Employees' Health Benefits Program (Federal care health programs).  PPACA Fraud & Abuse Provisions Overpayment liability under False Claims Act – “Any funds that a person receives or retains … to which the person … is not entitled” – Must report and repay the overpayment to applicable government entity within 60 days after the overpayment is identified (or corresponding cost report is due) – False Claims Act liability can result from failure to repay within applicable deadline 34  Doctors and Hospitals are Liable for the False Claims of Their Employees Doctors and Hospitals (like all employers) are usually liable for anything their employees do if that act is in the scope of their employment. It doesn’t matter whether or not the employee has been “instructed” to make a false claim—the burden is on the employer to train and supervise employees so they don’t make false claims. It doesn’t matter if the employer is unaware of what the employee is doing. 35  Don’t Forget about the States! State False Claims Laws State Suspension of payment—turn off the faucet instead of chase & collect. Very low standard! Short time to return overpayments PUT SOME… Teeth In It!!! – Felony (criminal fines of up to $25,000 and imprisonment for up to five years) – Civil money penalties up to $50,000 – Exclusion from participation in federal health care programs.  Serious! – Felony (criminal fines of up to $25,000 and imprisonment for up to five years) – Civil money penalties up to $50,000 – Exclusion from participation in federal health care programs.  A Cautionary Tale: Boesen Sentenced To 51 Months In Prison Doctor Ordered To Pay $931K In Restitution KCCI.com UPDATED: 7:22 am CDT May 5, 2007 DES MOINES, Iowa -- A Des Moines doctor convicted of health care fraud was sentenced Friday morning in federal court. Dr. Peter Boesen was convicted last year in federal court of overbilling patients for medical procedures. He was sentenced to 51 months in prison, three years of probation and must pay $931,000 in restitution. Boesen's attorney said the court allowed Boesen to remain free before he goes to prison. His attorney also said they will appeal his conviction and sentence to the 8th Circuit Court of Appeals. Read more: http://www.kcci.com/news/13257946/detail.html#ixzz1LDYb7CJ8 Read 8th Circuit Court of Appeals Decision: http://caselaw.findlaw.com/us-8th- circuit/1166124.html KCCI. Retrieved April 29, 2011 from http://www.kcci.com/news/13257946/detail.html.  U.S. v Boesen: At issue – 82 procedures performed & billed between 2000 and 2002 – Payers – Medicare, Medicaid, Principal, Wellmark – Three types of nasal endoscopy procedures Government alleged two types not performed and one type not medically necessary or of diagnostic value 41  U.S. v Boesen: Defenses Business Manager Defense Dr. Boesen Defense Lack of intent to Coding system ambiguous fraudulently bill, Unaware of incorrect coding, Services were medically Not actually present appropriate when procedures performed, Medical decisions best left Could not have known to physician’s discretion procedures were not performed 42  U.S. v Boesen: Appeal Appeal by physician in 2008 Judge upheld ruling that Dr. Boesen turn over $428,971 he received as payment for 948 questioned procedures (rather than just the 82 counts) Criminal sentencing – 51 months, Leavenworth 43  Wynnewood foot doctor arrested in $155,000 Medicaid fraud case PA Attorney General's Medicaid Fraud Control arrested Montgomery County foot doctor [Dr. Robert Kanowitz] for submitting false insurance claims and bilking insurance companies out of more than $155,000…. allegedly submitted claims for performing nail avulsions, which is a surgical procedure involving the partial removal of a toenail, when he was really only trimming toenails, which is not compensable under the Medical Assistance program…. According to the grand jury, the investigation began when one of the insurance companies affected alerted agents from the Attorney General's Medicaid Fraud Control Section about Kanowitz due to his billing of an unusually high number of nail avulsions. According to the investigation, Kanowitz allegedly billed various insurance companies for more than 3,600 nail avulsions from January, 2005, to January, 2008, and was paid more than $155,000 due to his fraudulent claims. "Medicaid fraud is a crime that affects everyone in the form of increasing medical costs," Corbett said. "Almost every Pennsylvanian is feeling the burden of rising medical fees, and our agents take these allegations very seriously.“… Kanowitz is charged with one count of Medicaid fraud, one count of theft by deception and one count of receiving stolen property. See: http://mainlinemedianews.com/articles/2010/01/03/main_line_times/news/doc4b3b8b84d3d2b728537566.txt?viewmode=fullstory  One Podiatrist’s Story of Medicare …Fraud & Dr. Ronald “Billing Issue” Joyce Brannon, Mary Beth Mikos, Billed Medicare $1.8 million Patient, witness & victim King, FBI Podiatrist for surgeries not performed Investigator Dr. Mikos was submitting Medicare bills for surgeries he never performed and recruited patients to lie to investigators about the fraud. Patient Joyce Brannon, was murdered before she could testify to a grand jury that Mikos never performed any of the 70+ surgeries on her feet he billed for. He was convicted of murder of a government witness and defrauding Medicare and was sentenced to death for the murder and 78 months for the fraud. His death penalty conviction has been upheld. http://www.hulu.com/watch/80718/american-greed-medical-scams  Guarding Against Fraud & Abuse Employee training Physician training Compliance program Regular audits  Your turn…Bill’s Story What to do…. Bill is the administrator for a family clinic that still has a substantial number of patients who pay independently (fee- for-service) for treatment and the clinic’s revenue has steadily eroded. Bill calls the medical director, Dr. Mark, and suggests that he expand the number of procedures used per patient visit and thus increase the reimbursement, or else be prepared for decreased staffing in the future. Reluctantly, but feeling strong loyalty to his staff and patients, Mark encourages his staff to increase coding levels and overall modality utilization.  Don’t blindly follow… fraud & abuse will lead you over a cliff!  Reporting Suspected Fraud & Abuse The Office of Inspector General has a hotline to handle complaints. The OIG hotline can be contacted at: Phone: 1-800-HHS-TIPS (1-800-447-8477) Fax: 1-800-223-8164 E-Mail: [email protected] Mail: Office of Inspector General Department of Health and Human Services Attn: HOTLINE 330 Independence Ave, SW Washington, DC 20201  Qui Tam: Whistleblower Actions Private person can bring a civil action against an individual/entity for violating the False Claims Act: – Must be original source – No current suit can be pending by the government – Can’t have participated – Can’t have been convicted of an crime related to the fraud Action brought in the name of the federal government 15-25% of the proceeds from any action or settlement if the government intervenes plus attorneys fees and costs. 25-30% of the proceeds from any action or settlement if the government does not intervene and the private plaintiff continues the action (litigates themselves) Employer can not retaliate against the whistleblower 7. Don’t try to blend in—You must Report  LEGAL REPORTING DUTIES Review Reporting Self to Board Peer Reporting to Board National Practitioner Data Bank Child/Dependent Adult Abuse Serious Bodily Injury Contagious Infectious Disease Unsafe Drivers Fraud & Abuse  National Practitioner Data Bank (“NPDB”)-- Part of HCQIA Directed health care entities, state licensure boards & malpractice insurance companies to report “Adverse” Actions to be reported to the NPDB: 1. Reporting malpractice actions, recovery by plaintiffs, and the amounts of settlements. 1. Actions by state licensure boards affecting the license status of health care professionals. 1. Adverse peer review decisions which have a duration of greater than 30 days. Hospitals MUST query bank every 2 years for medical staff members and for new applicants No Action required by individual practitioner--but directly affected by reports=Influence conduct  Mandatory Abuse Reporting If a mandatory reporter knowingly and willfully fails to report s/he is: – Guilty of a crime—a simple misdemeanor – Potentially liable for damages proximately caused by failure – May limit participation in the Medicare/Medicaid programs Reasonable & good faith reporting is a subjective standard. Mandatory Training Know the laws & procedures of the state where you practice!  Guides for Mandatory Reporters https://dhs.iowa.gov/sites/default/files/Comm164.pdf?062720191931 https://dhs.iowa.gov/sites/default/files/comm118.pdf?070920201718 All States https://www.childwelfare.gov/pubPDFs/manda.pdf  Injuries from Other Violence Not Necessarily Spousal abuse…See if fits below Iowa Code 147.111 (includes DPM) Must report: – Gunshot wound – Stab Wound – Other “serious bodily Injury”= disabling mental illness, bodily injury that creates a substantial risk of death or causes serious permanent disfigurement, causes protracted loss or impairment of the function of any bodily member or organ, any injury to a child that requires surgical repair and necessitates the administration of general anesthesia— includes but is not limited to skull fractures, rub fractures, and meta physical fractures of the long bones of children under the age of 4. Iowa Code 702.18 Know the laws & procedures of the state where you practice!  General Rule: Report But…DO NOT DISPARAGE! Jousting Board Rules Potential Liability for Defamation