On February 16, 2012, Health and Human Services (“HHS”) Secretary Kathleen G. Sebelius announced that the federal government will delay for an unspecified time the implementation date for the ICD-10 diagnostic and procedural coding system. ICD-10, which has been widely used in many other countries for years, was scheduled to replace ICD-9 in the United States in October 2011. During the 2008 public comment period, providers received a delay until Oct. 1, 2013. According to the press release, federal officials are acting on providers' concerns "about the administrative burdens they face in the years ahead.” HHS said it will "announce a new compliance date moving forward."
February 9, 2012. Late last year, a decision was rendered by the Appellate Division, Third Department, which reversed a lower court, and upheld the authority of the NYS Comptroller to audit a non-participating provider of medical services to beneficiaries of the Empire Plan. Under the Empire Plan, the New York State Insurance Program contracts with United Health Care Insurance Company of New York, a commercial insurer, to provide health insurance coverage to State employees and retirees. The Court held that “the fact that the state funds passed through United’s hands en route to [the provider] did not negate the Comptroller’s audit authority to confirm that the payments made by the state were proper.” This decision has the potential to negatively impact health providers in New York that treat Empire Plan beneficiaries on an “out-of-network” basis, by subjecting them to overpayment audits by the State Comptroller. Another significant aspect of the case was that the allegation of misconduct by the provider was that he was “routinely waiving out-of-pocket costs” to patients. This was considered by the court to be improper and could subject the provider to civil and criminal penalties for insurance fraud under Insurance Law § 403[c] and Penal Law § 176.05[2], because it allegedly artificially inflates the amounts claimed for medical services, and causes overpayments. The argument, by way of example, is that if a non-participating provider charges $100 for a procedure performed on an Empire Plan beneficiary, the patient is responsible to pay the provider a 20% co-payment ($20) and the Empire Plan is responsible for 80% ($80). If the non-participating provider is routinely waiving the 20% co-pay, then the actual charge is only $80, and the Empire Plan should only be responsible for $64 (80% of $80). Thus, the NYS Comptroller argued that Empire Plan has made a 16% overpayment. Of course, this same allegation of insurance fraud, by routinely waiving patient’s co-payments, is applicable to all Payors, both governmental and commercial. All health care providers should be aware that the routine waiver of co-pay amounts could lead to investigations, disciplinary action, audits, civil and criminal liability.
On November 21, 2011, Weiss & Zarett, P.C., partner David A. Zarett, was a guest lecturer at Professor Andrew Lupo’s antitrust class at Hofstra Law School. Mr. Zarett’s lecture focused on the topic of antitrust law in the healthcare field. In his hour plus lecture Mr. Zarett discussed the development of healthcare antitrust jurisprudence in this rapidly changing and exciting area of the law.
Weiss & Zarett, P.C. partner Michael D. Brofman, Esq. will be lecturing for the National Business Institute (“NBI”) seminar “Nuts and Bolts of Collection Law” at the Hyatt Place Garden City Hotel on November 9, 2011. Mr. Brofman’s topic is “Creditors’ Rights When a Debtor Files Bankruptcy”. Mr. Brofman, who has more then 30 years experience representing creditors, is a frequent lecturer for NBI on various bankruptcy and creditor rights topics.
On October 20, 2011, CMS issued the final regulations for the Medicare Shared Savings Program: Accountable Care Organizations (“ACO”), in accordance with the requirements of the Affordable Care Act (“Health Reform”) (The final regulations can be found at: http://www.ofr.gov/OFRUpload/OFRData/2011-27461_PI.pdf ). The significant changes in the final regulations compared to proposed regulations issued in March, resulted from an outpouring of over 1000 comments on the draft regulations. In addition, the DOJ and FTC issued the final version of their joint policy statement (See: policy statement) detailing how these agencies will enforce the antitrust laws in light of the ACO. The final policy includes certain antitrust “safety zones” for ACO’s.
Weiss & Zarett, P.C. is pleased to announce that on September 15, 2011, Bankruptcy Judge Cecilia G. Morris approved an agreement to add the attending physicians at the facility formerly known as St. Vincents Medical Center Westchester, to the October 21, 2010 settlement with physicians in the St. Vincents bankruptcy case. This settlement established a fund for the payment of medical malpractice claims against the former St. Vincent employee physicians, and provided for an injunction against uncovered medical malpractice claims being asserted against those physicians. St. Vincents Medical Center Westchester was acquired by St. Joseph's Hospital in October 2010 and most of these newly added physicians to the settlement remain employed at that facility.
In addition, we are pleased to announce the extension of the temporary stay, which was issued on October 21, 2010, and which continues to protect those covered former employee St. Vincent’s physicians from the continuation of medical malpractice lawsuits, through January 31, 2012. But for this temporary stay, these physicians would be faced with potential uninsured medical malpractice claims. It is anticipated that a permanent injunction will be approved by the Court upon the Debtor's submission of a plan of reorganization, which should occur in the near future.
The above was made possible through motion practice and settlement negotiations orchestrated by Weiss & Zarett, P.C. partner, Michael D. Brofman, Esq., who has been representing nearly 550 attending and resident physicians in the St. Vincent’s bankruptcy case for several years.
Starting in July 2011, Weiss & Zarett, P.C., member David A. Zarett, Esq., was appointed Co-Chair of the Nassau County Bar Association Health Law Committee. This Committee meets monthly, and is comprised of prominent members of the local healthcare bar to discuss issues of common interest, present continuing legal education programs, and provide a forum for area healthcare lawyers to professionally interact.
On March 31, 2011, CMS issued the much anticipated proposed regulations for the Medicare Shared Savings Program: Accountable Care Organizations (“ACO”), in accordance with the requirements of the Affordable Care Act (“Health Reform”) (Proposed ACO Regs Fed Reg). The four-hundred plus page proposed regulations set forth the rules for implementation of ACO’s in the Medicare program. The purpose of the regulations is to encourage and set forth the framework for the creating of ACO’s for the stated purpose of “promoting accountability” for a set of Medicare patients in a population, while coordinating care and thereby decrease costs and increasing quality. Costs and quality would be monitored for a three-year period at the end of which if certain goals are met the provider would receive an incentive/bonus payment. What this all means is yet to be determined and it could be some time before the final regulations are issued as there are numerous interested parties who we expect will submit substantive comments; including the AHA, insurance payors, and the AMA to name a few. What we do know is that ACO’s have the potential to forever change the healthcare delivery and reimbursement models as we know them. The public comment period for the proposed regulations ends on June 6, 2011.
Also on March 31, 2011, CMS issued a request for public comment entitled, “Waiver Designs in Connection with the Medicare Shared Savings Program and the Innovation Center” (Proposed ACO Fraud & Abuse Waivers Fed Reg). This notice for comment deals with applications for waivers of the Stark Law and Anti-Kickback Statute regarding financial arrangements for ACOs. The public comment period ends on June 6, 2011.
In light of CMS’ issuance of the proposed ACO regulations, also released on March 31, 2011, were the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”), “Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program.” (“FTC/DOJ ACO Statements”) (http://www.ftc.gov/opa/2011/03/aco.shtm). Significantly, the FTC/DOJ ACO Statements provide that an ACO approved for the shared savings program with CMS would be reviewed for antitrust purposes under the rule of reason test. In addition, the FTC/DOJ ACO Statements set forth certain safety zones, which if an ACO falls into such zones they would not, absent extraordinary circumstances, be subject to antitrust enforcement proceedings by the agencies. The public comment period for the proposed policy ends on May 31, 2011.
David A. Zarett and Craig D. Bloom authored an article entitled, “Joint Commission MS.01.01.01: A Golden Opportunity for Physicians to ‘Level the Playing Field’ at Intra-Hospital Hearings,” which was published in the Fall 2010 issue of the New York State Bar Association’s Health Law Journal newsletter. The article discusses meaningful changes that can be made to a hospital’s Medical Staff Bylaws to enhance procedural protections to a “target” physician in a peer review hearing. Weiss & Zarett P.C., regularly represents physicians in intra-hospital hearings and related legal proceedings (reprinted with permission from: Health Law Journal, Fall 2010, Vol. 15, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207, (1-800-582-2452), http://www.nysba.org).
On January 14, 2011, Weiss & Zarett, P.C. associate Joshua A. Boxer was the featured guest speaker at the weekly meeting for the Fellowship Program of the Division of Pulmonary and Critical Care Medicine at NYU, where he presented information on what graduating fellows should expect in their first employment contract. As a part of the presentation, Mr. Boxer discussed issues such as restrictive covenants, malpractice insurance, and compensation formulas.
On January 3, 2011, registration began for eligible professionals seeking available incentive payments for the adoption, implementation and demonstration of meaningful use of certified Electronic Health Record (EHR) technology. Eligible professionals can receive up to $44,000 over five years under the Medicare EHR Incentive Program. The CMS HITECH website and the CMS EHR Incentives Program website contain all the necessary information. Additionally, a helpful registration user guide for eligible professionals is available (Registration User Guide: Medicare). Attestation for the Medicare EHR Incentive Program begins in April 2011 and payments are expected to begin in May 2011.
In the December 2010 issue of the Nassau Lawyer, Weiss & Zarett, P.C. partner David A. Zarett, and associate Joshua A. Boxer authored an article entitled, “The Practice Guide to the New York State Physician Profile.” The article discusses the New York Physician Profile, with particular emphasis on reporting obligations in the context of medical staff privileges disputes and proceedings. Weiss & Zarett P.C., routinely advises clients about how Profiling reporting obligations and has filed appeals to the Profile regarding the posting of discretionary medical malpractice awards/settlements. (Reprinted with the permission of the NCBA Publication, The Nassau Lawyer)
On December 2, 2010, Weiss & Zarett, P.C. partner Michael D. Brofman lectured the Health Law Committee of the Nassau County Bar Association on the topic: Medical Malpractice Insurance Issues Facing Physicians in Hospital Bankruptcy Cases. Mr. Brofman presented the Committee with an analysis of relevant New York and Bankruptcy case law. Of particular interest was Weiss & Zarett’s recent representation of hundreds of physicians and residents in the St. Vincent’s Hospital bankruptcy case, where they were able to obtain a very favorable result in protecting staff attending physicians from personal liability in uncovered malpractice cases, due to the hospital’s refusal to purchase extended reporting period (“tail”) coverage.
On November 3, 2010, Weiss & Zarett, P.C. associate Joshua A. Boxer was the featured guest speaker at Grand Rounds for the Department of Pediatrics at Nassau University Medical Center, where he presented information to graduating residents regarding their first employment contract. As a part of the presentation, Mr. Boxer discussed issues such as restrictive covenants, malpractice insurance, and compensation formulas.
Weiss & Zarett, P.C. serves as co-counsel for plaintiff radiology groups, who have sued CareCore National and others for federal antitrust law violations. The case has been pending for several years, and on October 21, 2010, the Court issued a lengthy decision denying CareCore’s motion for summary judgment dismissing the action. Accordingly, the case will be proceeding to trial. The court’s decision addresses issues of antitrust standing, injury and conspiracy, and provides meaningful guidance regarding the contours of federal antitrust jurisprudence in the healthcare industry. For a copy of the decision, please click here
Weiss & Zarett, P.C. is pleased to announce that on October 21, 2010, Bankruptcy Judge Cecilia G. Morris approved a settlement in the St. Vincent’s bankruptcy case – reached by the firm on behalf of hundreds of former St. Vincent’s medical residents and attending physicians – challenging the hospital’s initial refusal to purchase “tail” medical malpractice insurance coverage for those former physician employees. Absent this settlement, hundreds of the hospital’s prior residents and attending physicians would have been uninsured for future potential medical malpractice losses and accompanying damages. The Order was issued out of the Southern District of New York Bankruptcy Court, following motion practice and settlement negotiations orchestrated by Weiss & Zarett, P.C., partner Michael D. Brofman, Esq. Click here for a copy of the settlement news release
On October 6, 2010, Weiss & Zarett, P.C. partner Michael D. Brofman was the featured guest at a meeting of New York City Bar Association Health Law Committee, where he presented information on the effect of the lack of New York legislation or regulation requiring hospitals to maintain malpractice insurance or to regulate their self-insurance funds. As part of the presentation, Mr. Brofman and in house counsel for The Committee of Interns and Residents/SEIU, invited the Committee to assist in addressing this issue before the Legislature and Department of Insurance.
Weiss & Zarett, P.C. partner, David A. Zarett, has co-authored a Chapter in the “Legal Manual for New York Physicians,” Third Edition, published by the New York State Bar Association and the Medical Society of the State of New York. The Chapter is entitled, “Hospital Medical Staff Membership and Privileges: Rules for Attending Physicians and Hospital-Employed Physicians.” Mr. Zarett had previously co-authored the same chapter in the first and second volumes of the publication. |