Firm News & Legal Alerts

Wednesday, August 22, 2012

Amended Regulations to the Patient Protection and Affordable Care Act

Effective August 22, 2012, the Office of Medicaid Inspector General (“OMIG”) amended its regulations (Sections 518.7 and 518.9 of Title 18) to implement sections of the Patient Protection and Affordable Care Act (“ACA”), to require the state to withhold payments to medical assistance (Medicaid) program providers after the agency determines or is notified that a “credible allegation” of fraud exists involving the provider and for which there is a pending investigation. In both instances, untested and unproven allegations of fraud are enough to justify the withholding of payment for services rendered, and the burden is effectively shifted to the physician or provider to rebut these allegations in order to put a freeze to the ongoing recoupment efforts – all while the underlying investigation remains underway.  Since fraud is certainly in the eye of the beholder in these types of circumstances, a certain amount of discretion exists to further complicate this financially disruptive situation.


Wednesday, August 1, 2012

DEA ADMINISTRATIVE INSPECTIONS - CONSENT OR NOT CONSENT?


Your Office Manager comes into your office and tells you there are two DEA agents in the waiting area who want to inspect your office and ask you some questions. You go out to meet them, they briefly present official credentials and tell you they wish to conduct an audit or administrative inspection. You inform them that you have patient hours that day and ask them what gives them the right to come in and disrupt your practice without warning. They answer that since you have a DEA Registration they have a right to inspect and “today is your lucky day.” They then hand you a form that states if they uncover any evidence of criminality during the “administrative inspection” it can be used against you in a criminal prosecution.
Read more . . .


Friday, June 15, 2012

Centers for Medicare and Medicaid Services (“CMS”) Update

On June 15, 2012, the Centers for Medicare and Medicaid Services (“CMS”) issued an update regarding Regulation 42 C.F.R. 482.12, which effective July 16, 2012, requires participating Hospitals to have one or more members of the medical staff as a member of the Hospital’s governing body.  CMS received a number of comments against the proposed regulation, including from the American Hospital Association (AHA). In particular, the AHA argued that in some states there are laws which would conflict with this provision on the appointment or election of such governing bodies.  On the other hand the American Medical Association (AMA) has publicly supported this regulation and urges CMS to go forward with the rule.  In the June 15 notice, CMS stated that due to the comments from organizations like the AHA, CMS would review and reconsider this requirement in their future rule making.  CMS furthermore instructed the three CMS-approved accreditation organizations, the American Osteopathic Association, Det Norske Veritas Healthcare, and the Joint Commission, not to amend their accreditation standards related to this rule on the makeup of a Hospital’s governing body until CMS has completely addressed the issue.


Friday, June 1, 2012

PAYMENT DISCLOSURES UNDER THE SUNSHINE LAW: IS THE FORECAST CLOUDY?


Section 6002 of the Patient Protection and Affordable Care Act (PPACA), pursuant to a provision referred to as the “Sunshine Law”, requires certain manufacturers (“applicable manufacturers”) of drugs, devices, biologicals, or medical devices covered under Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”) to report annually certain payments or other transfers of value to physicians and teaching hospitals (referred to in the statute as “covered recipients”) during the course of the preceding calendar year. Applicable manufacturers must report the required payment and other transfer of value information to the Center for Medicare and Medicaid Services (CMS) to an electronic format by March 31, 2013, and on the 90th day of each calendar year thereafter. Applicable Manufacturers are subject to civil monetary penalties for failing to comply with the reporting requirements. CMS is required by the statute to publish the reported data on a public website. The data must be downloadable, searchable and easily aggregated.
Read more . . .


Friday, June 1, 2012

THE AFFORDABLE CARE ACT SURVIVED, BUT WILL PHYSICIANS?


The U.S. Supreme Court, in reviewing appeals as to the constitutionality of the Affordable Care Act (ACA), with a 5 to 4 Decision and Chief Justice Roberts breaking with dissenters, has left the ACA intact, for now.  The foundational requirement that most citizens buy health insurance or pay a fine was held to be a tax permitted by the Constitution, and not decided under the Commerce Clause.  As all provisions hinging upon the mandate remain intact, the focus should now shift to – what will the ACA mean to physicians? 

Some key surviving insurance provisions:

  • 1Insurers cannot deny coverage based on pre-existing condition,  
  • 2Annual or lifetime coverage limits are barred,  
  • 3Dependent coverage is now mandated to age 26, 
  • 4Preventive services must be provided without cost-sharing.
    Read more . . .


Tuesday, May 1, 2012

THREE THINGS EVERY PHYSICIAN MUST STOP DOING - RIGHT NOW


From an admittedly pro-physician, overly “doctor-protective” and openly biased perspective, there has never been a greater need for all physicians throughout the United States to immediately increase their healthy paranoia, eliminate any residual trust they may have had in their state and federal governments, and become completely and relentlessly self-protective. Let me say it directly - No investigator from any office of the federal or state government visits a physician to “help” them, “educate” them or simply “chat” with them. No request for medical records is benign, academic or routine. What is even more disturbing than the use of these deceptions, however, is that physicians continue to fail to recognize them as deceptions and, to make matters worse, blindly cooperate in (and many times, enable) their own destruction.

So, while there are certainly more, here are the three things every physician can, should and must stop doing right now:

1.
Read more . . .


Sunday, April 1, 2012

PRACTITIONER IMMUINITY


The United States is currently experiencing an epidemic of diversion of lawful prescription drugs.  It is now recognized that prescription drugs are the most often abused drugs in the United States. Diversion takes place when otherwise lawful prescription drugs are “diverted” to persons for whom the drugs were not intended.  Diversion also takes place when a patient uses medications beyond the medical necessity for which they were prescribed; that is, the patient obtains and uses the drugs to satiate dependency or addiction. In addition, a provider who prescribes or otherwise obtains controlled substances for his/her own use is another unfortunate example of diversion.
Read more . . .


Wednesday, March 21, 2012

Kamhi v. Emblem Health Inc.

March 21, 2012.  In Kamhi v. Emblem Health Inc., et al., the Supreme Court, Kings County, partially denied a managed care organization’s motion to dismiss a complaint by a plaintiff physician for damages resulting from the non-renewal of the physician’s participation in certain managed care networks in violation of Public Health Law (“PHL”) §4406-d.
Read more . . .


Wednesday, March 21, 2012

Koch v. Sheehan

On March 23, 2012, the New York Supreme Court, Appellate Division, Fourth Department, in the case of Koch v. Sheehan, held that an exclusion from Medicaid by the New York State Office of the Medicaid Inspection General ("OMIG"), based solely on a physician’s execution of an OPMC Consent Order, without any independent investigation by the OMIG, is arbitrary and capricious conduct and thereby not permitted.  This is the first Appellate Court to rule on an ongoing conflict between the New York State Office of Professional Medical Conduct ("OPMC") and OMIG, which prior to Koch has resulted in conflicting decisions in the Supreme Courts throughout the state on whether OMIG can exclude a physician’s participation in Medicaid, solely based on the entry of an OPMC Consent Order.  This is an issue that our clients routinely face when negotiating and entering into an OPMC Consent Order. The execution of an OPMC consent order typically results in collateral issues for the physician, such as disciplinary actions by hospitals, board and professional societies, professional liability insurance carriers, and private and public payors, including New York State Medicaid.  The Koch decision is a significant victory for physicians faced with the decision of entering into an OPMC Consent Order, as OMIG must now perform its own investigation in order to take disciplinary action against the affected physician, rather than relying solely on the entry of an OPMC Consent Order.  For a copy of the Koch decision, please click here.


Thursday, March 15, 2012

Decision Issued in Maimonides Medical Center v. First United American Life Insurance Company

Brooklyn Supreme Court Justice Carolyn Demarest has issued a decision in Maimonides Medical Center v. First United American Life Insurance Company, finding a private right of action by a healthcare provider against a Managed Care Organization under New York’s Prompt Pay Law.  Insurance Law 3224-a, provides that where an insurer is clearly liable to pay a health care claim, the health care provider or patient must be paid within 30 days of receipt of an electronically transmitted claim, or within 45 days of receipt of a claim transmitted by any other means (Insurance Law § 3224-a [a]). Where liability for the claim is not reasonably clear, the insurer must pay any undisputed portion and, within 30 days of receipt of the claim, provide either written notification specifying the reasons why it is not liable or a written request for any additional information necessary to determine its liability (Insurance Law § 3224-a [b]). An insurer that fails to abide by these standards “shall be obligated to pay to the health care provider or person submitting the claim” the full amount of the claim plus interest at the statutorily authorized rate (Insurance Law §3224-a [c] [1]). The Prompt Pay Law authorizes the Superintendent Financial Services to investigate violations and assess civil penalties, both on his own accord and upon complaint from an individual health care provider or policyholder (Insurance Law § 3224-a [c] [2]).  Justice Demarest has decided that an individual patient or provider has a right to bring suit to recover the funds alleged to be due, together with the statutorily imposed interest.  We expect this decision to be appealed to the Appellate Division.


Wednesday, March 7, 2012

New York Department of Financial Services Report

On Wednesday, March 7, 2012, the New York Department of Financial Services released a report entitled "An Unwelcome Surprise: How New Yorkers Are Getting Stuck with Unexpected Medical Bills from Out-of-Network Providers."  The report found an overwhelming need for increased transparency from insurers and healthcare providers, as well as improved consumer protection measures to ensure New Yorkers stop receiving unexpected medical bills from out-of-network providers.  The report proposes a number of reforms, such as: (i) increased disclosure by insurers of their methodology for determining out-of-network reimbursements; (ii) increased disclosures from insurers and medical providers regarding anticipated out-of-network costs associated with the provision of non-emergency care; (iii) a prohibition on excessive fees charged in emergency care situations; (iv) improving network adequacy protections for PPO and EPO subscribers (such as those enjoyed by HMO subscribers); and (v) minimum standards for out-of-network coverage.


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