NYS OMIG STREAMLINES COMPLIANCE CERTIFICATION REQUIREMENTS

By Mathew J. Levy, Esq. & Zoila Sanchez, J.D., M.P.H.

Effective immediately, the New York State Office of the Medicaid Inspector General (OMIG) implemented changes to the annual Compliance Certification Requirement (NYS Social Services Law (SSL) §363-d) which we discussed in a prior Blast

This change impacts ALL NYSPROVIDERS AND BILLING COMPANIESthathavereceived or billed at least $500,000 in Medicaid payments directly or indirectly (through managed care companies or insurers) in any consecutive 12-month period, as well as prior certification obligations under the Deficit Reduction Act (DRA).

The annual certification requirements have been simplified in the following ways: 

NYS providers are no longer required to complete the annual December certification also known as the SSL Certification, which was previously completed using a form available on the OMIG website. 

Instead, providers and billing companies must now submit an annual Certification Statement to eMedNY. That filing now satisfies and hence eliminates the DRA Certification required for providers billing or receiving over $5 million dollars annually. 

Deadline: The Certification Statement is due on the anniversary of the provider’s Medicaid enrollment. Providers can locate this date in their initial Medicaid enrollment welcome letter. Additionally, providers can expect to receive a NYSDOH reminder by mail approximately 45-60 days before their enrollment anniversary.

Impact: In response to a request for clarification, the OMIG has told us that there will be additional changes in the upcoming months to the financial threshold for Medicaid certification. Those changes will be noticed in Medicaid Updates. We will also provide updates in future Blasts.

Keep in mind that providers who have withdrawn from Medicaid due to sale or closure but are  still collecting Medicaid monies for services rendered prior to withdrawal from the program, will still be required to file if they hit the $500,000 threshold during the relevant time period.

Remember—the recent changes do not alter other requirements which are continuously evaluated by OMIG’s Bureau of Compliance to reduce fraud, waste, and abuse. Providers can take steps to ensure compliance by reviewing “Understanding Compliance.”

Should you have any questions regarding mandatory compliance program requirements please contact Mathew Levy at 516-926-3320 or MLevy@weisszarett.com.

About the Authors: 

Mathew J. Levy is a Partner of the firm and co-chairs the Firm’s corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in, defending healthcare professionals in actions brought by State licensing authorities and the Federal agencies (OIG, Medicare, OMIG, Medicaid, DEA, OSHA, OCR OSHA, Hospital Review Boards, Office of Professional Medical Conduct and Office of Professional Discipline.) Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits including Prepayment Review, Post Payment Review, Medicare Hearings and Hospital Discipline Investigations.

Mr. Levy has successfully structured and negotiated joint venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements and commercial leases. Among the areas in which he focuses are coordinating mergers and acquisitions, compliance programs, ambulatory surgery centers, the establishment of diagnostic and treatment centers, HIPAA privacy regulations, fee-splitting issues, Stark law issues, fraud and abuse rules and regulations and Medicare/ Medicaid, Oxford, Americhoice, Fidelis, Healthfirst and other third-party payor settlements.

Zoila Sanchez, J.D., M.P.H. joined the Firm full-time upon graduating with her Juris Doctor degree from the Maurice A. Deane School of Law at Hofstra University. During law school, Ms. Sanchez served as a Legal Clerk with the U.S. Department of Health and Human Services Office of Counsel to the Inspector General in Washington, DC, where her work focused on health care fraud and abuse. Ms. Sanchez has experience in supporting the Firm’s business and health care law, and litigation practice areas. 

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

SEC Proposes Eliminating a Significant Burden on Raising Capital in Private Markets

By Mauro Viskovic, Esq

Startup, developmental and emerging growth businesses nationwide welcomed a recent proposal from the Securities and Exchange Commission that, if adopted, would make it considerably less difficult for them to raise capital.  

For many businesses seeking to raise start-up or working capital, banks are simply not an option due to the stringent credit requirements, asset encumbrances and overall rigidity that are associated with bank loans.  Accordingly, an alternative capital source for them are individual “angel” investors and, in some cases, venture capital and private equity funds.  

“Finders” are individuals who can connect businesses to these sources of investment capital in exchange for commission-based compensation; however, under current SEC regulations, such finders must be registered with the SEC as brokers.  Such registration is prohibitively costly and burdensome for finders seeking to assist small to middle market businesses.  As a result, many businesses are unable to connect with important sources of capital, leading to many of such businesses failing to execute on their business plan and, in many cases, reaching the unfortunate conclusion of ceasing operations.    

To address this issue, the SEC recently proposed a new exemption from broker registration requirements for finders who assist companies with raising capital in private markets from accredited investors.  If adopted, the proposed exemption would, under certain circumstances, permit individuals to solicit investments on behalf of companies seeking capital from accredited investors without registering with the SEC as brokers.  

The SEC’s proposal addresses a problem area in the SEC’s regulatory framework and, in doing so, seeks to facilitate investments for smaller businesses, including women- and minority-owned businesses.  Smaller businesses and their investors frequently encounter challenges connecting with each other in the private market, particularly in regions that lack established robust capital-raising networks.  In these areas, finders can play an important and discrete role in bridging the gap between small businesses that need capital and investors who are interested in supporting emerging enterprises.

Under current federal law, such finders are subject to essentially the same regulations and registration requirements as brokers who facilitate the trading of Fortune 500 companies in public exchanges.  The cost and burden of both the initial registration and the ongoing administration and reporting are enormous and the SEC seeks to address the current regulatory structure which makes it difficult for an individual to connect an investor to a small business seeking to raise start-up capital.  

The effect of the proposal on finder’s obligations would be sweeping.  Finders would not be required to register with the SEC or FINRA, and they would not need to notify the SEC of their intent to rely on the relief offered under the proposed exemption.  Moreover, finders would not be subject to periodic inspections or examinations, nor would they be required to maintain records of their activities.  Further, the proposal does not impose any limitations on the amounts that can be raised from investors, the size of the offerings, or the types of companies that can take advantage of the relief.  

This proposal would not affect the investment restrictions applicable to physician practices and other healthcare providers, which are subject to the prohibition on the “corporate practice of medicine” in most states.  The corporate practice of medicine doctrine has traditionally limited the ability of non-professional individuals and entities from investing in an ownership interest in healthcare providers.  

The SEC’s press release and summary of the proposal can be found here.  It is important to note that the proposed exemption on federal registration, if adopted, would not preempt related state regulations on finders and, as such, finders would need to analyze applicable state laws to ensure they are complying with relevant requirements.  In New York, a recent proposal would require all finders to be subject to all of the filing and exam requirements of brokers, broker-dealers and salespersons under New York law.  Such requirements, however, would be less onerous than the current federal broker registration requirements.  We will continue to monitor and provide updates on the New York proposal. 

Weiss Zarett represents business owners and investors in connection with a broad range of private investment transactions. If you are raising capital for your business venture or considering to participate as an investor in a private offering, please email Mauro Viskovic, Esq. at mviskovic@weisszarett.com or call us at (516) 627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care and financial services industries, including corporate and transactional matters, employment, civil and administrative litigation, regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Proposed Rule for 2021 Medicare Fee Schedule Includes Changes to Telehealth Billing and Use of Evaluation and Management Codes

By: Seth A. Nadel, Esq.

On August 3, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued its Proposed Rule for the 2021 Medicare Physician Fee Schedule (“Proposed Fee Schedule”). The Proposed Fee Schedule incorporates several proposals which could affect future physician billing, including changes to rules regarding use of Evaluation and Management (“E&M”) codes, billing for telehealth services, and others.

Telehealth Provisions

CMS has made several proposals related to telehealth services. Notably, at the outset of the COVID-19 pandemic, CMS temporarily added numerous codes to the list of approved telehealth services. In the intervening months, many providers have urged that CMS make these additions permanent. Accordingly, CMS has proposed permanently adding certain services to its permissible telehealth list. Some of these services include group psychotherapy, neurobehavioral status exams, care planning for patients with cognitive impairments and domiciliary, rest home or custodial care services. The list of permanent additions also includes general codes for prolonged services or home visits.

Additionally, CMS has proposed temporarily continuing to reimburse for certain services which have been added to its list on an emergency basis, which will remain in effect through the calendar year in which the public health emergency ends – which presumably includes 2021. These include domiciliary, rest home or custodial care services, home visits, and psychological and neuropsychological testing. CMS is continuing to solicit comments related to services added during the pandemic which do not appear on the list.

The Proposed Fee Schedule also would (a) relax rules regarding the frequency with which providers are permitted to check on nursing home residents via telehealth; (b) clarify supervision requirements for mid-level providers performing “incident-to” services via telehealth, and; (c) amend the definition of “interactive telecommunication systems” to mean any “multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication,” opening the door to the use of smartphones as a permissible means of delivering telehealth services.

E&M Codes

            In the hope that practitioners may be able to spend less time documenting patient visits and more time treating their patients, CMS has proposed overhauling key elements required to be documented when billing for E&M services. Specifically, these changes include eliminating history and physical exams as elements for selecting the appropriate E&M code. Additionally, physicians would be allowed to choose whether the documentation submitted includes the medical decision-making, or is simply a function of total time spent with patients. For example, 99213 would represent 20-29 minutes, and 99214 would represent 30-39 minutes. Such “time” would refer to total time spent, including non-face-to-face work done that day, and does not need to be limited to time spent counseling the patient on their medical issue.

Other Additions and Changes

           MIPS Quality Payment Program – CMS has proposed continuing to allow physicians to opt out of the Merit-Based Payment System (“MIPS”) based on the ongoing realities of the pandemic. Performance thresholds, performance categories, and incentive payment amounts would also be subject to revisions in 2021.

            Decreased Conversion Factor – the Proposed Plan includes a decrease of the Medicare Work Relative Value Unit (wRVU) conversion factor for physician services from $36.09 to $32.26. It includes significant wRVU decreases for radiology services, CRNA’s, and chiropractors to offset program spending in other areas.

            Diagnostic Test Supervision by Mid-Level Providers – Whereas previously midlevel providers were only authorized under Medicare rules to “order” and “furnish” diagnostic tests, CMS has proposed adding the supervision of diagnostic tests to the scope of practice of nurse practitioners, certified nurse midwives, clinical nurse specialists, and physician assistants. This would represent a permanent extension of rules implemented during the pandemic which allowed mid-level providers to perform these supervision activities for the first time.

More information about the Proposed Fee Schedule may be found at CMS’s website here. Assuming no subsequent changes are made, the Proposed Fee Schedule will be finalized and go into effect as of January 1, 2021. If you have any questions, please reach out to Seth A. Nadel, Esq. at snadel@weisszarett.com or 516-627-7000. 

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

MAURO VISKOVIC, ESQ. HAS JOINED THE FIRM

By Mauro Viskovic, Esq.

Mauro Viskovic is pleased to announce that he has joined Weiss Zarett Brofman Sonnenklar & Levy, P.C., bringing with him over 20 years of experience representing clients in mergers and acquisitions, corporate finance deals, private fund matters, and a wide range of other transactional and securities law matters.

Mauro is proud to be part of the Weiss Zarett team, as Mauro shares with Weiss Zarett the same focus on strong attorney-client communications, responsiveness, and high quality legal services that you have come to expect.

Weiss Zarett is a prominent and well-respected Long Island-based Firm known for assisting members of the healthcare industry and general business clients.  In the healthcare field, Weiss Zarett represents physicians and physician groups, other healthcare providers and health-related businesses with a wide array of legal services including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, governmental and commercial payor audits, bankruptcy, and commercial real-estate transactions.  Weiss Zarett brings decades of experience to this complex and ever-changing area of practice.

Equally experienced outside of the healthcare industry, Weiss Zarett advises and represents businesses and business owners in corporate and commercial matters, business disputes, employment practice, commercial, bankruptcy and commercial real estate and commercial landlord and tenant litigation, creditor’s rights, financing, documenting secured transactions and all phases of commercial real-estate transactions.

Mauro is looking forward to continuing his valued relationship with you here at his new home with Weiss Zarett and offering all the additional services now available to you at the Firm.  Please feel free to call upon us for your legal needs.

2020 OIG COMPLIANCE WORK PLAN

By Mathew J. Levy, Esq., & Stacey Lipitz Marder, Esq.

Investigations by Medicare and Medicaid are constantly on the rise. Each year, a Work Plan is published by the Office of the Inspector General (OIG) (which is updated monthly) showing the priorities and major initiatives that it intends to investigate during the fiscal year. The OIG’s updated 2020 Work Plan has been announced on its website: https://oig.hhs.gov/.

The OIG has recently advised that it has added new items to its 2020 Work Plan addressing concerns surrounding COVID-19 treatment. As a result of COVID-19, Centers for Medicare & Medicaid Services (CMS) has made a number of changes that allow Medicare beneficiaries to access a wider range of telehealth services, and providers have been engaging in these new and innovative ways to treat patients. While these forms of treatment have certainly provided a great benefit to patients, the government is concerned that providers are taking advantage and not being compliant, putting patients at risk, and costing the government a significant amount of money. 

As per the OIG’s most recent Work Plan, some of the key Target areas are as follows:

  • The OIG will continue investigations of fraud, waste, and abuse in the Medicare and Medicaid programs. Such reviews often result in providers being subject to an overpayment demand, and potential prepayment audit review.
  • The OIG will be reviewing the top 25 laboratory tests and analyzing the payments made under the new payment system.
  • The OIG will continue to monitor and combat the current opioid crisis which remains a public health emergency. The OIG has expressed concern that individuals with opioid use disorder could be hit particularly hard by the current pandemic.  

In connection with the COVID-19 pandemic, the OIG has further recently advised that it will be targeting the following areas:

  • Audit of CMS’ controls over the expanded “Accelerated and Advance Payment Program,” which serves to provide healthcare providers and suppliers with emergency funding and address cash flow issues when there is a disruption in claims submission or claims processing.
  • Review of Medicare and Medicaid telehealth utilization, including how the use of these services compares to the use of the same services delivered face-to-face, and the different types of providers and beneficiaries using telehealth services. The OIG will also be identifying program integrity risks with telehealth services. Data will also be reviewed in order to determine providers’ appropriate use and reimbursement during the COVID-19 pandemic in compliance with applicable state and federal law.  
  • Review of laboratory testing, specifically concerning add-on tests in conjunction with COVID-19 testing, particularly related to potentially fraudulent billing for associated respiratory pathogen panel (RPP) tests, allergy tests, and genetic tests. 

For a complete list please refer to the OIG’s website.

Based upon the OIG’s updated Work Plan, healthcare providers need to be ever more diligent in assuring that services being provided and billed are compliant with applicable rules and regulations, including those relating to telehealth and COVID-19. Healthcare providers should review and update their current compliance programs, as well as educate their staff with respect to their compliance programs. Providers should consult with a coding/billing expert and work with their legal team to conduct internal and external audits to determine whether the practice is compliant. To assist providers in reaching these goals, Weiss Zarett Brofman Sonnenklar & Levy, P.C. is providing a free initial snap shot review with a certified coder. All providers should take advantage of this program. Establishing an effective compliance plan taking into consideration the OIG’s targeted areas, as well as applicable federal and state rules and regulations, can help providers avoid or limit potential liability. It is imperative that providers take compliance seriously as failure to comply can result in serious repercussions, including for instance an audit and subsequent overpayment demand in connection with services previously rendered and paid for, criminal action and potential loss of license. 

Should you have any questions regarding the OIG Work Plan, compliance, or the free snap shot audit of documentation and coding please contact Mathew Levy at 516-926-3320 or MLevy@weisszarett.com or Stacey Marder at 516-926-3319 or SMarder@weisszarett.com.

About the Authors: 

Mathew J. Levy is a Partner of the firm and co-chairs the Firm’s corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in, defending healthcare professionals in actions brought by State licensing authorities and the Federal agencies (OIG, Medicare, OMIG, Medicaid, DEA, OSHA, OCR OSHA, Hospital Review Boards, Office of Professional Medical Conduct and Office of Professional Discipline.) Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits including Prepayment Review, Post Payment Review, Medicare Hearings and Hospital Discipline Investigations.

Mr. Levy has successfully structured and negotiated joint venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements and commercial leases. Among the areas in which he focuses are coordinating mergers and acquisitions, compliance programs, ambulatory surgery centers, the establishment of diagnostic and treatment centers, HIPAA privacy regulations, fee-splitting issues, Stark law issues, fraud and abuse rules and regulations and Medicare/ Medicaid, Oxford, Americhoice, Fidelis, Healthfirst and other third-party payor settlements.

Stacey Lipitz Marder is Senior Counsel at Weiss Zarett Brofman Sonnenklar & Levy, P.C., with experience representing healthcare providers in connection with transactional and regulatory matters including the formation and structure of business entities, negotiating and drafting contracts and commercial real estate leases, stock and asset acquisitions and general corporate counseling. Ms. Marder also has experience advising healthcare clients on a wide range of regulatory issues including Stark, the Anti-Kickback Statute, fraud and abuse regulations, HIPAA, reimbursement and licensing matters.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.