Firm News & Legal Alerts

Wednesday, July 1, 2015


Legal Red Flags

It is estimated that approximately $60 billion is lost annually to fraud. During the 2014 Fiscal Year, the Federal Government recovered $2.3 billion in Federal fraud judgments and settlements. Laws that fall within the scope of fraud and abuse include: Federal False Claims Act, State False Claims Act, Federal Anti-Kickback Statute, Federal Stark Law, and NJ “Codey Law”. Similarly, there are many types of medical fraud such as; False Patients, False Claims, Unbundling, Upcoding, Self-Referrals, Criminal Activity, and Unnecessary Treatment and/or issues concerning the prescribing of Durable Medical Equipment (“DME”).
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Friday, May 1, 2015



As all participants in the EHR Incentive Program should now know, the Centers for Medicare & Medicaid Services (“CMS”) is providing incentive payments to those Eligible Professionalswho attest to meeting certain Medicare meaningful use requirements(“Meaningful Use”). In order to receive the payments, Eligible Professionals must attest to achievement of “meaningful use” of their EHR systems in each stage of the program.  There are three distinct stages of the program - appropriately called Stage 1, Stage 2 and Stage 3 - which are designed to advance the program.  For example, each stage is meant to build upon the stage that came before it to expand usage and integration of the EHR system.  If an Eligible Professional has trouble meeting the Stage 1 requirements, chances are he or she will not be able to meet the more comprehensive requirements of Stage 2 or Stage 3.
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Wednesday, April 1, 2015



All United States health care providers use a system known as the International Classification of Diseases, 9th Edition, Clinical Modification/Procedure Coding System (“ICD-9”), to categorize and report, or “code”, all patient encounters.  Any health care provider who is subject to the Health Insurance Portability Accountability Act (“HIPAA”) or who bills any private insurance, Medicare or Medicaid for patient services must use the ICD-9 coding system.    In recent years, a 10th Edition of the International Classification of Diseases, Clinical Modification/Procedure Coding System (“ICD-10”) has been developed with the goal of more accurately tracking patient care and more effectively reimbursing providers for same.  Under ICD-9, providers are required to select the most appropriate code from a list of approximately 14,000 codes; the number of potential codes will significantly increase - to approximately 69,000 codes.

All practices and medical professionals currently subject to ICD-9 were previously required to upgrade their systems to enable them to begin billing under the new ICD-10 codes by October 1, 2014.
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Wednesday, April 1, 2015


You are just starting out in practice. You have successfully completed your residency and perhaps, your fellowship. You are finally ready to make a living and start paying off your student loans. Congratulations! Or, you have just moved to New York from another state, and you are ready to get a new start in the Empire State.

Either through a recruiter, a head-hunter, the internet, or personal connections, you are offered an employment contract with a group of physicians, or with a hospital.
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Tuesday, February 24, 2015

Surprise Medical Bills Law Set to Take Effect March 31, 2015

Last year, as part of its budget agreement, New York State set forth its plan to revamp the out-of-network reimbursement system. A previous newsletter highlighted many of these changes which are scheduled to take effect March 31, 2015. On December 31, 2014, the Department of Financial Services (“DFS”) issued the proposed new 23 N.Y.C.R.R. Part 200. The proposed regulations provide further insight on the independent dispute resolution entities (“IDRE”) as well as what providers can expect in the future.

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Thursday, February 5, 2015

CMS Makes Changes to its Overpayment Recovery Process

Physicians in New York are all too familiar with Medicare and Medicaid audits, which can result in millions of dollars in recoupment by the Centers for Medicare & Medicaid Services (“CMS”). CMS recoups money that it believes was overpaid to providers as a result of improper billing practices, among other reasons. For far too long, providers have complained that the process is tipped in CMS’ favor and deeply flawed. For example, CMS retains Recovery Audit Contractors (“RACs”) to audit Medicare claims submitted by health care providers, including physicians and hospitals, on a contingency fee basis. Thus, some would argue, improperly incentivizing the RACs.

Due to the ongoing issues with the process, CMS suspended new RAC audit activities in February 2014, until new contracts could be awarded. RACs are still permitted to conclude ongoing investigations during that time.

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Sunday, February 1, 2015

Dealing With Deceased Patients’ Medical Records

Unless involved in performing autopsies, most physicians generally do not consider the liability that exists from the way patients are treated after they die. However, at a time when many different areas of law can apply to the same issue, it is important to understand how to deal with a patient’s medical records, once he passes away.

The main body of law that governs patient records is the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy Rule, which requires a covered entity (which includes a physician and/or medical practice) to protect the medical records, or “Protected Health Information” (“PHI”), of a patient. This obligation continues even post-mortem, and is quite similar to the obligation that exists when a patient is still alive. The primary, and obvious, distinction is that authority over records can no longer belong to a deceased patient.
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Sunday, February 1, 2015


Why do you need a compliance plan? There is no state or federal law or regulation explicitly requiring a compliance plan for physician practices. But, before you decide you’re not going to implement one, consider how others may be reviewing your practice, e.g., through a Medicare audit, a Medical Board complaint, or a private insurer’s Fraud Prevention and Detection Plan, any of which could also lead to prosecution under the state’s Health Care Claims Fraud Act.

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Monday, June 30, 2014

OPMC to Take Action Against Physicians with Outdated Profiles

The Medical Society of State of New York (“MSSNY”) has issued an alert advising physicians that the Department of Health’s Office of Professional Medical Conduct (“OPMC”) intends to take action against those physicians who have failed to update their New York State Physician Profiles. The Department of Health (“DOH”) requires physicians to maintain accurate profiles. Every physician licensed to practice medicine in New York State has a legal obligation to ensure that their Physician Profile is updated at least six months prior to the expiration of their registration period, and in some instances, within a short period of time following adverse developments, such as a privileging impairment or license restriction, for example.

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Wednesday, April 9, 2014

NYS Budget Agreement Takes Aim at Out-of-Network Reimbursement

The New York State budget agreement, announced last week, signaled important changes for out-of-network healthcare providers in New York. The changes, which will not be implemented until at least next year, are aimed at increasing transparency and avoiding “surprise medical bills.” The budget incorporates numerous amendments and new provisions to the New York Insurance Law and Public Health Law, including requirements that out-of-network providers disclose their fee schedules prior to rendering medical services. However, the addition of Article Six of the Financial Services Law will likely be the most controversial.

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Saturday, March 1, 2014

FSA’s, HSA’s and Over-the-Counter Reimbursement: New Rules and New Requirements

As part of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, patients can now seek reimbursement for the cost of certain over‐ the‐counter (OTC) medicines and drugs. The rule affects reimbursements under employer‐ sponsored health plans, health flexible spending arrangements (health FSAs), and health reimbursement arrangements (HRAs), as well as health savings accounts (HSAs) and Archer medical savings accounts (Archer MSAs).

Presently, the cost of OTC medicines and drugs are deemed “medical expenses” that are eligible for reimbursement from group health plans (and are “qualified medical expenses” eligible for distribution from HSAs and Archer MSAs). However, these new changes amend the definition of what is considered a “medical expense” and restrict the reimbursement of funds used to purchase OTC medicine and drugs going forward after December 31, 2010.

As of January 1, 2011, reimbursement for medicines and drugs as permissible medical expenses can only be obtained if the medicine or drug requires a prescription; is available without a prescription (i.
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