Recently, Mark Moskovitz, Esq., Deputy Director of the Medicaid Fraud Division of the office of the State Controller gave a presentation to a small handful of attorneys who practice Medicare and Medicaid Fraud. Here are some of the “takeaways” from the seminar:
The Medicaid Program Integrity and Protection Act was passed by the NJ Legislature on March 16, 2007. Among other things, the Act was created for the purpose of establishing a department within the NJ government whose purpose was to detect, prevent and investigate fraud and abuse related to Medicare and Medicaid in the health care industry. The goal of the Department is to recover improperly expended Medicaid funds, to enforce Medicaid rules and regulations, to audit cost reports and claims, to review quality of care, and to refer criminal cases to the appropriate prosecutor’s offices.
The Medicare Fraud Unit (the “MFU”) is the department created in response to the Act, for NJ. The MFU is actively “data mining” statistics and claims made by health care providers (“providers”) seeking reimbursement through the Medicare/Medicaid programs. The data mining is designed to discover fraudulent patterns in order to tip off investigators where fraud may be found.
The statute defines “fraud” as: “An intentional deception or misrepresentation made by any person….with the knowledge that the deception could result in some unauthorized benefit to that person or another person, including any act that constitutes fraud under applicable federal or state law.”
It is important to note that the definition of fraud does not require that there be some actual unauthorized benefit, only that it is possible that an unauthorized benefit could have resulted from the request for Medicaid/Medicare reimbursement.
Further, provider practices are “abusive” when they are inconsistent with sound fiscal business or medical practices and; they result in unnecessary costs to Medicaid; or consist of services that are not medically necessary or fail to meet professionally recognized standards for health care. The term also includes recipient practices that result in unnecessary costs to Medicaid. Thus, your practice maybe deemed “abusive” if you do not take appropriate measures to assure that you are in compliance with Medicare and Medicaid rules and regulations. A sound business model, designed to assure compliance – is necessary.
NJAC section 10:49-9.8 requires that all providers have documentation which fully supports the extent of services provided. It is insufficient to simply state that services were provided. Rather, any reimbursement for Medicare or Medicaid payments must be backed up with documentation at the provider’s home office in the event the request for Medicare or Medicaid funding should be audited. In the event the provider cannot document the extent of services provided, payment adjustments will be necessary. The documentation should establish that the procedure was medically necessary, that the provision of medical services was actually done; there should be invoices, delivery documents, related prescriptions and signature logs.
Where the MFU Gets its “business”:
The MFU receives its cases through a number of sources. Sources include the complaint hotline, complaint letters, referrals from state and federal agencies, the data mining unit, and others.
The MFU’s Subpoena Power:
The MFU has the ability to collect documents from third-parties and from all providers through the use of the subpoena power. The MFU can issue subpoenas for the purpose of taking testimony and for securing documents. Failure to comply with the subpoena can lead to a contempt citation, contempt proceedings and possible suspension of payments. The MFU is not subject to HIPAA and thus, documents which are otherwise not discoverable by other parties related to a patient’s care may be turned over to the MFU in response to an appropriate subpoena.
An overpayment is a situation where a provider receives payments for Medicare or Medicaid in excess of what should have been received. Whether the overpayment was the result of a fraud or mistake is immaterial. The State is entitled to recover the amount of the overpayment, regardless of whether the services were provided in relation to the overpayment.
If the MFU investigation reveals that overpayments have been made, a Notice of Claim is issued by the MFU which describes the factual basis for the conclusion that there was an overpayment, the amount of the overpayment, the claims involved and the right to a pre-hearing conference. If the pre-hearing conference does not resolve the overpayment issue, providers have the right to appeal to the Office of Administrative Law within twenty (20) days of the pre-hearing conference.
Notes From an Insider:
Mr. Moskovitz indicated in no uncertain terms that the pre-hearing conference is essentially a two-way street. The MFU is more inclined to “work with providers” who provide the MFU with appropriate and thorough information as opposed to compelling the MFU to subpoena documents which are being protected or otherwise closely shielded by providers and their counsel.
The “Criminal” Component:
The MFU is required by statute to refer “suspected” fraud to the prosecutor’s office, provided there is a “credible allegation” of fraud. This means that it is very possible that your case may be referred to the prosecutor’s office and may result in criminal prosecution. It is important for counsel to negotiate with the MFU to determine whether or not a case has been referred to the prosecutor’s office. If a referral has been made, counsel should make an effort to secure a hearing conference which includes both the prosecutor’s office and the MFU so that any resolution of an outstanding claim may be resolved by both departments at the same time.
Overpayments must be returned within sixty (60) days of their being identified by the provider or the date any corresponding court report is due. Failure to return overpayments subjects the provider to the penalties available under the False Claims Act. The MFU is not likely to impose penalties or interest if it finds that the provider has returned the corrected amount of the overpayment within two (2) years of the date of the claim.
In the event the overpayments are substantial and the provider cannot make the overpayment, the MFU may consider a corrective action plan to make sure the cause of the overpayment is addressed.
Make a Plan:
In 2010, the Affordable Care Act (“Obamacare”) mandated that all providers have a compliance plan in place to prevent fraud and abuse. Many providers are retaining the services of third-party consultants or in-house compliance managers to assure compliance with this section of the ACA.
Compliance plans encourage employees to report potential problems permitting the provider to conduct an internal investigation and take corrective actions.
Turn Yourself In:
Last and not least, if you determine that you are not in compliance or that overpayments have been made, you are best served by retaining appropriate counsel and “self-disclosing” the overpayment to the MFU. This is appropriate for a number of reasons. First and foremost, the MFU considers self-reporting an indication of good faith. The MFU is more likely to be helpful and less punitive to providers who self-report as opposed to learning of the overpayment through independent investigation. Furthermore, the MFU and the prosecutor’s office are more likely to find that there was no purposeful intent or intentional fraud by virtue of the fact that a provider self-reported. The self-reporting indicates a provider’s belief that something accidental has occurred which the provider has already addressed, as opposed to some purposeful concealment on the part of the provider.
There are a number of state and federal agencies whose tentacles may reach into an overpayment depending upon the manner, type and extent of an overpayment. Providers are well served by hiring appropriate counsel, who are well versed in Medicare and Medicaid fraud law, and who know the players involved. Contact Romanowsky Law today if you find yourself involved in the issues touched upon in this blog.
Today, Medicare pays healthcare providers a fee in exchange for services which are rendered. Most healthcare providers including hospitals and doctors either accept the fee which is offered by Medicare or negotiate independently with healthcare insurance providers and private parties for a different fee. For years, many have argued that the Fee For Service model is inefficient, provides no value to the goal of improving healthcare, and is often unrelated to the actual costof services provided.
On January 26, 2015, Health and Human Services Secretary Silvia M. Burwell announced that the government’s Medicare reimbursement plan intends to change the model under which it reimburses healthcare providers. It will abandon the traditional fee for service model and adapt a “quality” or “value based” model no later than 2018. If it can be accomplished, this transition represents a sea change in the way healthcare providers are paid and healthcare providers of all types should sit up and take notice.
According to Burwell and others, providing reimbursement in exchange for improved quality of care, rather than simply paying for each individual service without evaluating the outcome of the service, promotes the goals of building a healthcare system that delivers better care, spends healthcare dollars more wisely, and results in a healthier American population.
Ms. Burwell has set forth a timeline as follows:
Not wasting any time, Burwell announced the creation of a Healthcare Payment Learning and Action Network to work with private payers, employers, consumers, providers, states and Medicaid programs to expand the alternative payments models into their programs.
The details regarding how value will be measured, how those values will be compensated and other important criteria are yet to be worked out. You can be sure that healthcare providers and insurance companies will participate in the debate in the coming months in order to protect their various interests.
Nurses are not immune to the dangers of alcohol and substance abuse threatening everyone in their daily lives. In fact, nurses may be especially vulnerable by virtue of the accessibility they have to prescription medications.
The Recovery and Monitoring Program was established in 2003 largely through the effort of the NJ State Nurses Association. It is envisioned to be an alternative to discipline. It is a voluntary, confidential program, which works with the Board of Nursing, employers and nurses to ensure public safety, safe practice and health.
When a nurse is facing loss or suspension of a license by virtue of conduct influenced by an addiction, the nurse may turn to RAMP for help. First and foremost, RAMP will work with the nurse to secure treatment for the addiction, and closely monitoring recovery.
Ramp will work with your employer, and advocate for the retention of employment under appropriate circumstances. Employers contacted by RAMP are more likely to retain the employed nurse than retain a nurse who does not seek the help RAMP offers. In appropriate circumstances, the nurse’s access to medicines can be modified, so that the nurse can continue to provide services, but avoid the temptations caused by accessibility.
If your license is at risk, RAMP will work with your Attorney to help reach terms regarding the suspension of your license, which are acceptable to you. For example, it may be possible to suspend your nursing license, but have it reinstated after you have completed RAMP program benchmarks. Romanowsky Law can help you in your negotiations with Board of Nursing.
RAMP is a valuable resource for Nurses facing alcohol or drug addiction. The Board of Nursing and Employers both look favorably upon Nurses who take responsibility for their conduct, acknowledge they have a problem and take action. For these reasons, RAMP may be crucial to saving your career as a nurse.
As the director of Ramp recently told me, “These are excellent people. They have an issue like anyone else, and they’re not the first, nor will they be the last Nurse to confront them. We’re here to help.”
If you think RAMP can help you, contact them at: 609 883 5335 x 24, or email firstname.lastname@example.org. Because preserving your license is at stake, call Romanowsky Law now. 973 451 1116.
Payment Rates or In-Patient Rehabilitation Facilities
(IRF’s for federal fiscal year 2015 are published.)
The Center for Medicare and Medicaid services, Department of Health and Human Services issued a final rule updating the prospective payment rates for in-patient rehabilitation facilities on August 6, 2014. Among other things, the final rule is consistent with the Department’s policy to collect data on the amount and mode (individual, concurrent, group and co-treatments) of therapy provided in the IRF setting according to the therapy discipline, and revises the lists of diagnosis and group codes.
The final rule also addresses the implantation of the International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-TEN-CM), for the IRF Prospective Treatment System (PTS), which will be effected when ICD-TEN-CM becomes the required medical data record set for use on Medicare claims and IRF-PAI submissions.
The rule also delays the effective date for the revisions to the list of diagnosis codes that are used to determine presumptive compliance under the “60% Rule” that were finalized in the fiscal year 2014 IRF-PTS final rule and adopts the revisions to the list of diagnosis codes that are used to determine presumptive compliance under the “60% Rule” that are finalized in the Rule. The updated quality measures and recording requirements under the IRF-QRP are applicable for IRF discharges occurring on or after October 1, 2004.
ENROLLMENT OF NEW AMBULANCE SUPPLIERS AND HOME HEALTH AGENCIES STILL IN LIMBO
On Friday, August 1, 2004 The Center for Medicare and Medicaid Services, Department of Health and Human Services issued an extension of the temporary moratoria on the enrollment of new ambulance suppliers and home heath agencies in specific locations within designated metropolitan areas including New Jersey. With respect to New Jersey, the temporary moratorium affects the enrollment of new ambulance suppliers in the counties of Burlington, Camden and Gloucester.
CHANGES TO HOSPICE RATES
On August 22, 2014 The Center for Medicare and Medicaid Services, Department of Health and Human Services issued a final rule to update the Hospice Payment Rates and Wage Index for fiscal year 2015 and continues the phase-out of the wage index ????? Neutrality Adjustment Factor (BNAF). The rule provides for potential definitions of “Terminal Illness” and “Related Conditions,” and information of potential processes and appeals for Part-D payment for drugs while beneficiaries are under a hospice election. The rule specifies time frames for filing the Notice of Election and the Notice of Termination/Revocation; adds the attending physician’s name to the Hospice Election Form, and requires hospices to document changes to the attending physician and also requires hospices to complete their Hospice Aggregate Cap Determinations within five months after the cap year ends. The rules require hospices remit any overpayments, and updates the Hospice Quality Recording Program. Finally, the rule will provide guidance on determining hospice eligibility; information on the delay in the implementation of the International Classification of Diseases, and will further clarify how hospices are to report diagnosis on hospice claims.
What is a licensed nurse in another state to do when their spouse who is in the armed forces is suddenly relocated to NJ? How can a struggling armed forces family make ends meet when the nurse has to wait for a protracted license application to be passed? On June 2, 2014, the NJ State Board of Nurses proposed a rule which would help in such a situation.
Under the proposed rule, an individual who is licensed as a nurse in another state and is the spouse of an active duty member of the Armed Forces of the Unites States may obtain a courtesy temporary nursing license in NJ. The courtesy would NOT extend to a nurse who has committed an act that resulted in action being taken against her or his license, or who was the subject of an investigation by a licensing entity in any other state. To qualify, the nurse will have to establish that her or she has practiced as a licensed nurse for two of the last five years, and the nurse must complete and submit a Criminal History Certification Form. The license would be valid from one year, and can be renewed for an additional year upon application to the Board, together with a check for $60.00.
The Board is accepting public comment right now, though August 1, 2014. It is predicted to become law shortly thereafter.
Bravo to the Board to proposing a rule to help the families of our Armed Forces!
A full text of the proposal follows – additions are in bold text, deletions in brackets [thus]:
SUBCHAPTER 4. LICENSURE BY ENDORSEMENT; PROFESSIONAL AND PRACTICAL NURSES
13:37-4.2 Application requirements for licensure by endorsement
(a) An applicant for licensure by endorsement shall submit or arrange to submit the following to the Board:
1. (No change.)
2. A non-refundable initial license fee and application for licensure by endorsement fee as set forth in N.J.A.C. 13:37-[5.5(a)2 and 3]5.5(a)3 and 4; and
3. (No change.)
13:37-4.3 [(Reserved)] Temporary courtesy license
(a) A registered professional nurse or licensed practical nurse may obtain a temporary courtesy license pursuant to P.L. 2012, c. 76, if he or she:
1. Is currently licensed in good standing in another state or territory of the United States, or the District of Columbia that has licensure requirements equivalent to those in New Jersey;
2. Is not a resident of New Jersey;
3. Has not committed an act in another jurisdiction that would have constituted grounds for the denial, suspension, or revocation of a nursing license in New Jersey or has not been disciplined, or is not the subject of an investigation, by a professional or occupational licensing or credentialing entity in another jurisdiction;
4. Is the spouse of an active duty member of the Armed Forces of the United States who has been transferred to New Jersey in the course of his or her service; and
5. Is legally domiciled in New Jersey or has moved to New Jersey on a permanent change-of-station basis.
(b) An applicant for a temporary courtesy license shall submit, or arrange to submit, to the Board:
1. A completed application form, provided by the Board, which requests information concerning the applicant’s educational and experiential background;
2. A non-refundable initial license fee and application for temporary courtesy license fee as set forth in N.J.A.C. 13:37-5.5(a)3 and 13;
3. Written or electronic verification of status of licensure from every state or territory of the United States, or the District of Columbia, in which the applicant was ever licensed. The verification shall either be forwarded directly to the Board from the applicable state board, if written, or if electronic, be issued by the applicable state board;
4. Proof that the applicant was engaged in the practice of nursing in another jurisdiction, including any time spent discharging official duties in the Armed Forces or for an agency of the Federal government, for at least two of the last five years immediately preceding the date of application; and
5. A completed Criminal History Certification of Authorization form.
(c) A temporary courtesy license shall be valid for one year.
(d) An individual who holds a temporary courtesy license may apply to the Board for an extension of the license for an additional year by submitting a renewal application to the Board.
Learn about why you should contact a healthcare law firm to review your doctor employment contract. Call Romanowsky Law today at (973) 451-1116.
The Department of Justice recently reported recoveries of more than $2.6 Billion in health care fraud for the calendar year 2013. These numbers have been steadily climbing over the last four years, thanks in part to the emphasis the Obama administration is putting on the effort to stop health care fraud.
The primary weapon of choice for the Department of justice is the False Claims Act, which has been used to recover $12.1 billion dollars since 2009. Most recoveries relate to fraud involving Medicare and Medicaid. While much of the money was secured by suing pharmaceutical companies for false advertising, etc., the DOJ reports it obtained 16 criminal convictions and more than 1.3 billion in criminal fines, forfeitures and disgorgement under the Federal Food, Drug and Cosmetic Act which promotes public safety by assuring that drugs intended for human consumption are safe.
Notable recoveries include a $237 million dollar judgment against Tuomey Healthcare System Inc., after a four week trial, for violating the Stark Law and the False Claims Act; and a judgment against dermatologist Steven J. Wasserman, M.D. for his role in an illegal kickback arrangement with Tampa Pathology Laboratory.
On February 6, 2014, lawmakers in the House and Senate announced final agreement on legislation which will change the way doctors are paid through the Medicare physician payment system.
After a year of work, the 195-page bill doesn’t include financial offsets needed to pay for the bill’s cost, which the Congressional Budget Office has estimated at $128 billion over 10 years. The legislators will focus on that next, but many are praising the group for achieving more than was expected to of them so far.
“This is a significant step in the right direction, but there is still a lot of real estate between where we are now and the final goal line,” Katie D. Orrico, director of the Washington Office of the American Association of Neurological Surgeons, told Bloomberg BNA.
The Bill would overhaul Medicare’s sustainable growth rate (SGR) formula, which each year calls for cuts in physician payments. Congress perennially cancels those cuts with what is often called a “doc fix.”
The Bill would eventually eliminate this system by phasing in new payment models over a period of years. Instead of paying doctors for “services rendered” (a model which many argue does not focus on quality of care, but volume), the new legislation will more closely tie compensation to medical outcomes.
Will the legislators be able to find agreement on how to pay for the new plan? We’ll see…….
People who require mental health coverage are happy to know that long awaited changes to the laws effecting insurance coverage have finally arrived. Those changes can be found in the new Affordable Care Act, (the “ACA”) and changes made to the Mental Heath Parity and Addiction Equity Act of 2008 (the “Parity Act”).
Under the ACA, among the various types of coverage which must be afforded by insurance companies to their insureds is mental health and substance abuse treatments. Such coverage is considered “essential” benefits” under the ACA, and must be offered to the public regardless of whether the need for such services arose prior to coverage.
New rules aimed at adding “teeth” to the Parity Act were issued last November. The law provides that insurance plans must provide coverage for mental ailments in “parity” with other physical ailments. For example, plans may not set higher deductibles or charge higher co-payments for mental health coverage than for medical coverage. Further, plans may not charge higher co-payments for mental health care, nor restrict the number of visits a patient may make for medical health care needs. The rules go into effect on July 1, and the insurance companies will have until July 1, 2015 to comply.
The most recent rules related to the Parity Act fill in gaps about how the law must be applied, advocates say. For example, plans may not limit mental health care to a specific geographic area, if they do not do so for physical illnesses. And the rules clarify that the law also applies to “intermediate” treatment options for mental health and addiction disorders, benefiting those who require residential treatment or intensive outpatient therapy.
If you find it difficult to find appropriate coverage for your mental health needs, or the needs of a loved one, contact your county behavioral health department.
The federal Substance Abuse and Mental Health Services Administration also offers a service locater, samhsa.gov/treatment/index.aspx on its website.
On August 13, 2013, Allstate Insurance filed suit in the Superior Court, Bergen County, asking the Court to declare that it is not liable to pay 2.1 million dollars in claims presented by Dr. Nabil Yazgi, a medical doctor from Saddle River, NJ.
The Suit alleges that Dr. Yazgi was improperly performing expensive neurological tests on patients who did not require them. It alleges that these patients were referred to Dr. Yazgi by a chiropractor (Michael Haddad) who practices in Manalapan, NJ. More specifically, the complaint alleges that the neurological studies Yazgi performed were not medically necessary, were incompletely performed, or where performed as part of an unlawful referral scheme with a chiropractor.
Allstate alleges that in return for the referrals from the chiropractor, Dr. Yazgi consistently referred patients back to the chiropractor for continued and regular care which was not necessary. Such referrals may be considered an impermissible “gift” which is unlawful under NJ law.
Allstate seeks reimbursement of 2.1 million dollars from the defendants, representing the amount Allstate paid on the claims, plus treble damages as allowed by law.
Allstate, like other insurance carriers, has created a unit within the company whose mission is to identify and prosecute insurance fraud. Allstate ‘s actions are part of a growing list of cases brought by insurance companies who have sought redress through the NJ Insurance Fraud Protection Act.
Be sure to know what type of referrals are legal, and which are not. Romanowsky Law can guide you through these rules, and prevent you and your practice from becoming a headline.