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.

Out and Back: COVID-19 Paid Leave Changes in New York

By: Carla Hogan, Esq. & Toni-Ann M. Buono, Esq.

In previous articles, we summarized the federal paid-leave laws and regulations under the Families First Coronavirus Response Act (“FFCRA”) and the New York State Paid Sick Leave for COVID-19, and the benefit interplay between the federal, state and New York City laws and regulations.

As previously reported, under the New York State Paid Sick Leave for COVID-19, New York employees who were self-quarantined because they voluntarily traveled for non-business purposes to a country with a level 2 or 3 CDC notice, and knew of the restriction and were provided with the travel notice, were ineligible for the New York State Paid Sick Leave for COVID-19.  Until now, no similar disqualification restriction existed for interstate travel. 

With COVID-19 cases escalating across the United States, Governor Cuomo took immediate and decisive steps to sustain New York’s positive recovery by requiring travelers coming into New York from a list of hot-spot states to self-quarantine for 14 days.  This list, which continues to change based on “a seven day rolling average, of positive tests in excess of 10%, or number of positive cases exceeding 10 per 100,000 residents”, currently includes 16 states.

On June 26, Governor Cuomo issued Executive Order No. 202.45 (effective through July 26), stating that New York employees required to self-quarantine because they traveled domestically to a hot spot will not be eligible to receive any paid COVID-19 sick leave benefits during their 14-day mandatory self-quarantine.  Keep in mind that New York employees working for employers with over 500 employees, are already ineligible for sick leave benefits under FFCRA, and the only available paid COVID-19 sick leave would otherwise be under the New York State Paid Sick Leave for COVID-19.  Clearly, this recent Order was designed to further discourage New York workers from travelling to states with high rates of COVID-19.

Consequently, going forward, if:

  • The New York employee travels after June 25, 2020; and
  • The employee travels to a “hot spot” state as designated by the NYS Commissioner of Health; and
  • The travel is voluntary (“not taken as part of the employee’s employment or at the direction of the employee’s employer”) 

then the New York employee may be eligible for paid sick leave under FFCRA (if the employer has less than 500 employees), but will be ineligible for the New York State Paid Sick Leave for COVID-19.  

Notwithstanding an employer’s obligations under the FFCRA and/or the New York State Paid Sick Leave for COVID-19, if an employee is subject to an order of quarantine, but remote work is available, the New York self-quarantined worker could avoid unpaid leave by working remotely. In addition, please keep in mind that employers have always had the discretion to refuse paid sick leave under FFCRA to medical providers and other enumerated workers.

As the COVID-19 leave laws continue to evolve to meet changing circumstances and policy considerations, employers are encouraged to review their particular circumstances with counsel to avoid making errors in benefit determinations.

Weiss Zarett represents healthcare providers and business owners in a wide variety of employment matters, including advising clients on current leave laws and reasonable accommodations under COVID-19.  If you have any questions regarding the above, please email Carla Hogan, Esq. at chogan@weisszarett.com or Toni-Ann M. Buono, Esq. at tbuono@weisszarett.com.

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 employment, 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.

Preliminary Injunctive Relief and Medical Staff Privileging Disputes

By David A. Zarett, Esq. & Zoila Sanchez, JD, MPH (Legal Intern)

Adverse action by a hospital against a physician’s medical-staff appointment or clinical privileges—such as summary suspension, termination or non-renewal—poses potentially catastrophic consequences to a physician’s practice and career. While most hospitals afford the physician internal “due process” hearing rights to challenge the adverse action, such a remedy could drag on for months and afflict serious ongoing damage to the physician while the adverse action remains in effect. After the internal “due process” mechanism is complete, the physician must then proceed to an administrative review by the New York Public Health and Health Planning Council (“PHHPC”), which only has the power to request that the hospital reconsider its determination. See Public Health Law Sections 2801-b and c. Again, while the PHHPC’s review process drags on, the hospital’s sanction remains in place, and the damages and harm to the physician mount.   

Compounding that problem, New York’s highest court in Gelbard v. Genesse Hospital ruled

that a physician is precluded from running to court to seek preliminary injunctive relief to “stay” the adverse action imposed by the hospital, until the physician first exhausts administrative remedies both within the hospital and before the PHHPC. See Gelbard v. Genesee Hosp., 87 N.Y.2d 691, 664 N.E.2d 1240 (1996); see also Farooq v. Millard Fillmore Hosp., 172 A.D.2d 1063, 569 N.Y.S.2d 320 (1991) (“Physician’s claim for injunction based on hospital’s allegedly wrongfully denying him staff privileges was premature where physician had failed to allege that he had exhausted administrative remedies by presenting claim to Public Health Council”); see also Raggi v. Wyckoff Heights Med. Ctr., 123 A.D.3d 1044, 999 N.Y.S.2d 174 (2014) (“Physician and professional corporation seeking reinstatement of physician’s clinical privileges at medical center were required to file an administrative complaint with New York State [PHHPC] and await the administrative disposition of that complaint before seeking redress in the courts”). This exhaustion requirement significantly handcuffs physicians, because the physician would have already suffered irreparable harm that could not be undone even by an ultimate court victory.

However, a recent decision by the Appellate Division, First Department may change the legal landscape when it comes to the availability of preliminary injunctive relief. Specifically, in Anyichie v. Lincoln Medical and Mental Health Center, the First Department held that a claim by a physician that a hospital did not follow its own bylaws in imposing the adverse corrective action—such as the summary suspension—was not subject to PHHPC review in the first place. See Anyichie v. Lincoln Med. & Mental Health Ctr., 176 A.D.3d 616, 110 N.Y.S.3d 674 (2019). 

Accordingly, it should follow under Anyichie that if a physician’s challenge to the hospital’s action were based on a claim the hospital failed follow its own bylaws, a physician could immediately seek judicial intervention and request immediate injunctive relief—since his or her claims were beyond the jurisdiction of the PHHPC and the doctrine of exhaustion of administrative remedies articulated in Gelbard would not apply. 

While Anyichie was decided only recently, it will be interesting to see whether this quite significant court decision alters the procedural landscape in which physicians dispute these types of issues with hospitals.

David A. Zarett, Esq., is a founding member of Weiss Zarett Brofman Sonnenklar & Levy, P.C., a Long Island law firm providing a wide array of legal services to the members of the health care industry, including physicians. Mr. Zarett devotes a substantial amount of his time counseling physicians who are the subject of adverse or corrective action imposed by hospitals. 

Zoila Sanchez, J.D., M.P.H. joined the firm as a Legal Intern from the U.S. Department of Health and Human Services Office of Counsel to the Inspector General (HHS-OCIG) where she worked as a Legal Clerk with a focus on health care fraud and abuse. Ms. Sanchez holds a Bachelor of Arts degree from Stony Brook University, Master of Public Health from the University of Arizona, and a Juris Doctor degree from the Maurice A. Deane School of Law at Hofstra University where she was awarded the Honorable David A. Paterson Award in Public Service.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.