The Anti-Kickback Statute

Posted on Jun 24, 2019 in Billing, Medicare Compliance, Medicare Fraud

The Anti-Kickback Statute

A Criminal Law

The Anti-Kickback Statute is a criminal law that prohibits the knowing and willful payment or “remuneration” to induce or reward patient referrals.  It also applies to  the generation of business involving any item or service payable by the Federal health care programs. Remuneration includes anything of value and can take many forms besides cash, such as free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies. Learn more.

Penalties

Criminal penalties and administrative sanctions for violating the Anti-Kickback Statute include fines, jail terms, and exclusion from participation in the Federal health care programs. Under this law, physicians who pay or accept kickbacksalso face penalties of up to $50,000 per kickback plus three times the amount of the remuneration.

Target for Kickbacks

As a physician, you are an attractive target for kickback schemes because you can be a source of referrals for fellow physicians or other health care providers and suppliers. You decide what drugs your patients use, which specialists they see, and what health care services and supplies they receive. Many companies will attempt to take advantage of this relationship. They will attempt to pay you for the referrals.

Moreover, just as it is illegal for you to take money from providers and suppliers in return for the referral of your Medicare and Medicaid patients, it is illegal for you to pay others to refer their Medicare and Medicaid patients to you.

In addition, Medicare and Medicaid programs require patients to pay copays for services and you are required to collect them. Waiving these copays could implicate the Anti-Kickback Statute. Of course it is OK to waive if the patient cannot afford or if you have made efforts to collect.

Contact us for more information on these important topics and anesthesia compliance training for you and your company.

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False Claims Act and Anesthesia

Posted on Jun 5, 2019 in Billing, Compliance, Medicare Compliance

False Claims Act and Anesthesia

An Important Law

The Federal False Claims Act and anesthesia is a topic worth considering. Of note, there are many federal laws in place that govern Medicare fraud and abuse. One of the most important laws that addresses fraud is the Federal False Claims Act.    Most importantly, it allows private citizens to bring civil actions on behalf of the United States.

The False Claims Act protects the Federal Government from overcharging or selling substandard goods or services. Consequently it imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal Government. Of interest, this is a law that dates back to the Civil War era.

Knowledge of Wrongdoing

The terms “knowing” and “knowingly” mean a person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim. Furthermore, to violate the False Claims Act does not require proof of specific intent to defraud.

Qui Tam Complaint

The qui tam provision allows a person to file a qui tam action. Initially the government seals the qui tam complaint 60 days. Secondly, during this time the government will investigate the allegations and decide if it is proceeding with the action. Eventually if convinced by the case the government will prosecute. Finally, the individual who initially brought the case may receive between 15 and 25 percent of the amount recovered by the government.

Lack of Compliance Plan

Of importance is that the lack of a compliance plan increases the threat of Qui tam lawsuits.  Indeed this act provides significant financial incentives for private citizens to come forward as whistleblowers.

In short, the Federal False Claims Act and anesthesia is a topic that cannot be taken lightly.  Anesthesia providers should be prepared with an active compliance plan.

Contact us for more information on these important topics and anesthesia compliance training for you and your company.  ACC Contact Us

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New HIPAA Penalties from HHS

Posted on May 13, 2019 in Billing, HIPAA

Direction from HHS on Penalties

 New HIPAA Penalties are now available from the Department of Health and Human Services after it published a notice on April 30th.    Of interest, HHS is exercising its discretion in how it applies its regulations on the assessment of Civil Monetary Penalties (CMPs) under HIPAA. Currently HHS applied the same cumulative annual limit to the four categories of violations.

Pending further rule making HHS will now apply different cumulative annual CMP limits.  This will be instead of the maximum $1.5 million for each level of violation. This is a reduction in the maximum limit, scaling down based on the level of culpability. Consequently, HHS will use the new penalty structure until further notice.  It is important to understand the new HIPAA Penalties from HHS.

Read about Data Breaches

Four Categories

Based on four categories of culpability HHS has provided covered entities and business associates with a whole new structure for penalties.  In mostcases the amount of penalty will be significantly less than what we have experienced in the past.

First, for a category of no knowledge the minimum penalty is now $100, and the annual limit will be $25,000 down from $1.5 million.

Secondly, for a reasonable cause $1,000 is the minimum and $100,000 for an annual limit down from $1.5 million.

Next, willful neglect with a correction it would be $10,000 as a minimum and $250,000 for annual limit.

Finally the highest is for Willful neglect with no correction with $50,000 as a minimum with an annual limit of $1,500,000.

This new guidance changes significantly the penalty structure for HIPAA violations and must be considered and understood by covered entities and business associates who deal with protected health information.

To read this important notice on new HIPAA Penalties from HHS, visit the Federal Register using the link below.

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Fraud, Waste and Abuse

Posted on May 7, 2019 in Billing, Compliance, Medicare Fraud

Fraud, Waste and Abuse

Our Compliance Tip

We have heard much about Fraud, Waste and Abuse in the news lately and are aware the government has their eyes on the Anesthesia profession.   As providers of medical care we must be very familiar with these concepts. 

The Fraud, Waste and Abuse program has become very important and it is mandatory for healthcare professionals including Anesthesia Providers to understand the concepts.

Why It Is Important

Most important of all, the reason for this new required program is to help practitioners become aware of the significant problem we have today in terms of Medicare Fraud and Abuse.  Medicare abuse costs taxpayers billions of dollars and puts beneficiary’s health and welfare at risk.  In 2011 the US lost 3-10 % or $82-$272 billion annually due to healthcare fraud and abuse.

Fraud, and Intentional Action

Fraud is an intentional action that results in a benefit to the perpetrator.  The intention must be present for an action to be found to be a fraudulent activity.  In healthcare this may occur when services are not rendered or given in a matter claimed and they are intentionally billed.   A violation of the anti-kickback statute that results in reimbursement to the group can result in a false claims allegation by the OIG.  

Other actions can lead to allegations of false claims such as retention of overpayments, billing for services not provided or medically unnecessary, or up coding a claim, which uses a higher code than that which indicates the service rendered. An example of up coding is using a code with a higher amount of base units than that performed.  Unbundling services breaks apart elements into separate items of a service that we normally bill together.  There have been cases where an anesthesiologist unbundled provision of oxygen and basic monitoring from basic anesthesia care to bill for them separately. 

Examples of Fraud

Examples of fraud that show intent to defraud include: documenting a service that did not occur, upgrading the physical status, submitting documentation for reimbursement that you know is not correct and creating false documentation to support a higher level of service. 

What is Abuse

Primarily the term abuse means practices that are not consistent with medical, business or financial standards that result in waste of funds for reimbursement.  The government often links this with fraud.  

As an example of abuse is billing non-covered services as covered services, reporting duplicate charges on a claim, charging excessively for services, and improper billing that results in payment by a government program when another payer is responsible.

Most important of all CMS requires all providers to know how to combat fraud and abuse.  Providers must also learn how to keep their organizations from engaging in abusive practices that hurt the Medicare program.

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Texting Protected Health Information Safely

Posted on Aug 28, 2018 in Billing, Compliance, HIPAA

Texting Protected Health Information
Texting safely on mobile devices

Texting

The Office for Civil Rights or OCR  with HIPAA oversight  has not produced the long-awaited guidance on texting protected health information.  Finally, at a Health Information Management Conference in March the OCR director said healthcare providers could text message their patients with PHI.  However, the provider must warn the patient that it is not secure.  In addition, the provider must obtain and document  patient authorization to receive texts.

Recent Guidance on Sharing PHI Safely

The Centers for Medicare and Medicaid Services or CMS oversees the Conditions of Participation and Conditions for Coverage.  CMS issued a memo on healthcare provider texting protected health information safely on December the 28th of 2017.  Most importantly the takeaways are:

Texting Protected Health Information

CMS permits texting of patient information among members of the health care team.   Above all, the platform must be secure and encrypted. As a result, it minimizes the risks to patient privacy and confidentiality.  Most importantly, HIPAA regulations, the Conditions of Participation and the Condition for Coverage require this as a safeguard.

Texting Patient Orders

Regardless of the platform, CMS prohibits the practice of texting of patient orders. Above all,  the provider is not in compliance with the Conditions of Participation or Conditions for Coverage if he or she texts patient orders to a member of the care team.

CPOE for Orders

Most importantly, providers should opt for the use of Computerized Provider Order Entry (CPOE) as the preferred method of order entry. CMS insists that a physician or Licensed Independent Practitioner (LIP) should enter orders into the medical record via a handwritten order or via CPOE.  When using this system, orders are immediately downloaded into the provider’s electronic health records (EHR). Moreover, this method is preferred as the order would be dated, timed, authenticated and promptly placed in the medical record.

It is critical for all providers to understand and follow these new guidelines from CMS on Texting Protected Health Information among Healthcare Providers.

Follow this link to our partner at HIPAA ABCs

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Coding the Physical Exam

Posted on Sep 9, 2016 in Billing, Compliance, Medicare Compliance

 

The physical examination is the objective portion of the patient encounter. The extent of the examination performed is determined by the patient’s medical condition and the nature of the current illness as recorded in the history.

There are four levels of examination:

Problem focused

Expanded problem focused

Detailed

Comprehensive

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