Retrospective Audits: How to Avoid Them

By: Mathew J. Levy, Esq.
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There is perhaps no more frustrating moment in a physicians career than when a health plan or managed care company notifies them that, after the physician has spent countless hours and expended endless efforts to get paid fifty or sixty cents on the dollar, the payor is now suddenly demanding that some exorbitant amount of money be “repaid” to the payor. The basis for such a demand? The payor has reviewed as few as six charts, isolated what it interprets as a pattern of inappropriate billing, takes the amount involved and extrapolates that amount to extend over a randomly selected number of past years. The result? A “discrepancy” of several dollars quickly becomes a demand for several hundred thousand dollars.  While couched as a “retrospective audit” or a “probe review,” many physicians have simply termed it as legalized extortion.

Understanding how these audits come about is a key first step in avoiding their potential wrath.  The triggering event in most cases is a simple computer analysis that identifies those physicians who are billing and/or coding differently than their supposed peers, labels those physicians as “outliers” and refers them for additional scrutiny.  To avoid these initial steps, physicians must first come to realize that just as accountants are needed to manage the complexities of the Tax Code, today’s billing and coding systems dictate the need for specialized assistance.  The traditional model of relying exclusively on staff who bill and/or code in a certain fashion because “we’ve always done it this way” or because “this is how other practices are doing it” is outdated, risky and self-defeating.  Even a simple “snap-shot” review of current billing practices, done on an annual basis by a certified coder, can provide valuable insight into what methods are current areas of scrutiny, what trends are developing with one’s peers and/or what can be done to keep the practice in the mainstream. Advice from any billing resource should be provided verbally (any written reports could be discoverable in any future proceedings) and should be provided directly to the physicians involved.

Physicians must also understand that even the smallest of amounts in dispute can generate extremely large demands for repayment. If a discrepancy is noted by the computer review, that notation triggers “additional scrutiny” of the practice. While neither statistically valid nor based upon a truly random sample, even the smallest of discrepancies provides the reviewer with a simple method to demand exorbitant monies be “repaid” to the payor.   The basic “repayment formula”:

Claimed Overpayment


Rate of Code Usage


Number of Years Enrolled


Using this formula, even a billing discrepancy of only $2.00 can bring about an enormous demand

Claimed Overpayment – $2.00


Rate of Code Usage – eight per day, 40 per week, 2000 per year


Number of Years Enrolled – 12

DEMAND – $48,000.00

In consideration of such a potentially draconian impact, the need to secure expert, up to date advice has never been more paramount.  For the very reason physicians rely upon an accountant to understand and keep abreast of the ever changing tax laws, they can no longer expect their staff to hold sufficient expertise to properly conduct their billing and coding. From Medicare’s Fraud and Abuse Bulletins to the never ending stream of Policy and Procedure Manual updates of every health plan and managed care company, the amount of information to be digested is simply overwhelming. To expect general office staff to properly manage that information is both unrealistic and extremely risky. Just as accountants steer taxpayers away from IRS “red-flags” and identify inappropriate deductions, a certified coder focuses on what each payor’s particular demands are and what issues might trigger (and thereby avoid) an audit or targeted review.

Moreover, just as every taxpayer understands the need to obtain (and retain) receipts in order to support their tax deductions, today’s physician must understand the critical need to create (and retain) a medical record which adequately supports their billing claims.  There are ample “short-cuts” to creating a record that will not only withstand audit scrutiny but will also deny payors the ability to reject future, individual claims for payment. From simple pre-printed forms, through digital transcription to an electronic medical record, ample resources exist that can document the level of services rendered, confirm the medical necessity for those services and bar both retrospective repayment demands and prospective denials of payment.

Physicians who are willing to realize that billing and coding in today’s medical practice management environment are so obscenely complex that they require ongoing advice from expert specialists will have taken an enormous first step in avoiding coming under review and the potentially devastating impact of a retrospective audit.

Mathew J. Levy is a Partner of the firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has particular experience in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, healthcare fraud & billing fraud, insurance carrier audits including prepay and post payment review, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-926-3320 or email:


Joint Commission MS.01.01.01: A Golden Opportunity for Physicians to ‘Level the Playing Field’ at Intra-Hospital Hearings

By: David A. Zarett
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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.

Imagine this very realistic, and unfortunate, scenario: A physician client comes into your office one day with a certified mail letter from the only hospital where he has a medical staff appointment, advising that all of his privileges have been “summarily suspended, effective immediately.” The letter continues that this action was taken by the Departmental Director (who happens to be your client’s number one competitor), after he determined that despite a 15 year unblemished professional record, your client has suddenly become an “imminent risk of harm” to patients, having just experienced his first meaningful complication in the operating room.

As the physician’s attorney, you must explain to him that as a result of the action by the hospital—taken before he even knew there was an “investigation” on going in the first place—he is no longer able to admit patients to the hospital, a restriction that could last for months. As this is the only hospital where he has privileges, it will have the effect of practically shutting down his medical practice. Even worse, you’ll explain that: (1) he will likely be reported to the National Practitioner Data Bank, where information about the summary suspension is forever accessible by any hospital, licensing agency, professional board, or health care organization to which he applies in the future;1 (2) he has already been, or will most likely be, reported to the Department of Health’s Office of Professional Medical Conduct (“OPMC”), which will initiate its own investigation, potentially resulting in charges of professional misconduct;2 (3) the summary suspension may eventually have to be disclosed to the New York Physician Profile website, where it will be available to anyone who “Googles” his name;3 (4) the summary suspension could be relied upon by the managed care plans to remove him from their panels; (5) the summary suspension could be used by his malpractice insurance carrier to nonrenew or terminate his liability coverage; and (6) even if he had been smart enough to get privileges at more than one hospital, if both are part of a larger “health system,” his privileges at the other hospital within the same system could be adversely affected as well.

To make matters even worse, you must explain to your physician client that due to the scarlet-letter effect of a “summary suspension”—which is only supposed to be implemented when a physician truly poses a real, tangible and imminent risk of harm to patients—he will most likely not get privileges at a “substitute” hospital at least until the summary suspension is removed or resolved. Finally, you may not be able to immediately run to Court to seek an injunction to challenge the suspension, since in virtually all instances you must first exhaust the “procedural due process rights” set forth in the hospital’s medical staff bylaws and an administrative review process before the New York State Public Health Council—which could take months.4

Rather, your client’s only hope to right this wrong is to go forward with the intra-hospital hearing process to challenge the “summary suspension” internally, and hope to prove that the Departmental Director either jumped the gun based on faulty conclusions; or worse, is acting out another agenda having nothing to do with your client’s skills as a physician. Thus, you and your client sit down and crack open the hospital’s Medical Staff Bylaws to determine his “rights” at the hearing, and the ground rules applicable to this “due process” procedure.5 And this is where you will likely have to explain to your client that the procedure leading up to the imposition of the suspension and the process for challenging it could be characterized as far from fair. For example, you learn that prior to implementing the summary suspension, neither the Departmental Director nor anyone else at the hospital had an obligation to advise the physician of the investigation, get your client’s input on the matter, or have an outside independent expert review of the chart. You may also learn that at the upcoming hearing:

• The physician is presumed guilty, and it is his burden to prove by “clear and convincing” evidence that the action by the hospital was “unreasonable” or “arbitrary and capricious.”

• The physician has no rights to pre-hearing disclosure, so the hospital is not required to provide you with any information in advance, such as the medical records at issue or any exculpatory information that would prove the suspension was not warranted in the first place.

• The physician is not guaranteed an advance preview of any outside expert reports obtained by the hospital, or knowledge of what information was provided to the outside “expert” if one was obtained (oftentimes, relevant information is not received by the hospital’s outside expert, such as office records and diagnostic tests, which would have led to differing conclusions of the care rendered by the target physician).

• To your chagrin, while allowing you to “represent” your client at the hearing, some hospitals limit the lawyer’s role to attending only, but not speaking at the hearing.

So much for “due process,” your client says, as he heads home to share the news with his spouse and loved ones.6

While we are not questioning the legitimate value and importance of meaningful and effective peer review and quality assurance, one wonders why medical staff members throughout the state have allowed such inequities in the process to persist for years when so much is at stake. This problem persists due to a trend for medical staff members to avoid active involvement in their own bylaw process. Fortunately, the Joint Commission has recently implemented new requirements that are effectively requiring all hospitals to revamp their medical staff bylaws to implement a series of changes designed to give more power and control to the medical staff body as a whole. Specifically, in March 2010, the Joint Commission approved a revised “Medical Staff Standard” MS.01.01.01 (formerly MS.1.20), which addresses the organized medical staff’s self-governance and its accountability to the governing body.7 According to the Joint Commission, the new standard “contributes to patient safety and quality of care through the support of a well-functioning, positive relationship between a hospital’s medical staff and governing body.”8 All hospitals and critical access hospitals are expected to be in full compliance by March 31, 2011.9 The revised MS.01.01.01 will require significant changes to most hospitals’ medical staff bylaws, and other similar governance documents, to be made over the next few months.

While a large portion of the Joint Commission’s requirements pertain to the parliamentary aspects of medical staff bylaws, and attempts to re-balance the power sharing between the medical staff rank and file versus the few elected committees thereof (such as “Medical Board” or the “Medical Executive Committee”), the practical result of MS.01.01.01 is that all hospitals, and their lawyers and administrators, are going to be hustling to substantially revise their bylaws and make major revisions to comply with the new Joint Commission standard.

This is therefore a perfect opportunity for members of the medical staff (i.e., your physician clients) to effect more than just the bare minimum changes to comply with MS.01.01.01—but also meaningful changes to the bylaws to enhance the procedural protections to a “target” physician in a peer review hearing. These modifications could include: (i) adding a “presumption of innocence” in favor of the target physician, and requiring the hospital to carry a burden of proof justifying the imposition of its disciplinary action and penalties; (ii) requiring the hospital to make reasonable information available to the target physician in advance so that he can prepare for the hearing (such as being given prior access to the medical records and expert reviews); and (iii) requiring that the hospital produce exculpatory evidence. The modifications could also require that before a physician is summarily suspended, he be given an opportunity to “meaningfully” respond to the charges of misconduct. “Shoot first and ask questions later,” is not a responsible way to manage the professional career of medical staff members.

If the purpose of a hospital’s due process rules is to get to the truth of matter, then a fair hearing process is the only way to achieve such goals if one accepts the basic premise of an adversary system of justice. Indeed, like any system of justice, procedural fairness helps to assure the integrity of the process as a whole. The medical staff bylaw overhaul required by MS.01.01.01 presents a golden opportunity for the physicians of the organized medical staff to propose amendments to the medical staff bylaws to address these inequities. The organized medical staffs of hospitals should take this opportunity to implement changes to the bylaws to protect the rights of all its members so that fair hearings will take place.

Remember, no matter how popular, well-liked, or “in” your physician client may be with the hospital crowd today, the tables can and always do turn. Your client could find himself being the recipient of a “summary suspension” letter, which with the stroke of a pen will adversely affect the rest of his professional career. Now is the opportunity to implement changes to the rules of the road so that a hearing to challenge this potentially catastrophic disciplinary action is done in a fair, even-handed and objective fashion.


1. The National Practitioner Data Bank (“NPDB”) is an electronic repository of all payments made on behalf of physicians in connection with medical liability settlements or judgments, as well as adverse “peer review” actions against medical licenses, clinical privileges, and professional society memberships of physicians and other health care practitioners. The NPDB was established by Congress as part of the Health Care Quality Improvement Act of 1986 (“HCQIA”). 42 U.S.C. §§ 11101, et seq.

2. 10 N.Y.C.R.R. § 405.3(e); N.Y. Pub. Health Law § 230(10)(a).

3. N.Y. Pub. Health Law § 2995-a.

4. Public Health Law § 2801-b(2) sets forth the appropriate procedural framework whereby an aggrieved physician may invoke the jurisdiction of the Public Health Council when the governing body of a hospital terminates or impairs a physician’s privileges “without stating the reasons therefor, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.” Public Health Law § 2801-b[1]. New York courts have repeatedly dismissed actions brought by physicians who sought to have their medical staff privileges restored without first pursuing their administrative remedies before the Public Health Council. Gelbard v. Genesee Hosp., 87 N.Y.2d 691, 664 N.E.2d 1240 (1996).

5. The following is a hypothetical set of procedures and guidelines that we typically see in medical staff bylaws when representing physicians in these types of matters. However, medical staff bylaws do vary from hospital to hospital.

6. The Health Care Quality Improvement Act establishes a minimum threshold for procedural due process for professionals subject to peer review by providing those involved in the peer review process with near complete immunity from claims for monetary damages arising from peer review actions, so long as these standards are met. In order to receive this immunity, only the following four safe harbor provisions set out in 42 U.S.C. § 11112(a) must be met: that the professional review action was taken (1) in a reasonable belief that the actions was in furtherance of a quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3).

7. Approved: Revision to Medical Staff Standard MS.01.01.01, 30(4) Perspectives, The Offi cial Newsletter of the Joint Commission 1 (April 2010), at 1.

8. Revisions to Hospital Medical Staff Standard S.01.01.01 (formerly MS.1.20) (presentation slides), The Joint Commission, available at CA04-4DC6-905B 64449A76339B/0/MS010101FINAL40810.pdf (last visited September 27, 2010).

9. Approved: Revision to Medical Staff Standard MS.01.01.01, 30(4) Perspectives, The Offi cial Newsletter of the Joint Commission 1 (April 2010), at 1.


New York State Physician Profile: A Practitioner’s Guide

By David A. Zarett, Esq.

After some highly publicized cases involving “bad outcomes” by physicians with prior disciplinary histories which were otherwise unknown to the public, in particular the Lisa Smart matter of 1997, the New York State Legislature passed and Governor George Pataki signed into law, the New York Patient Health Information and Quality Improvement Act of 2000 (the “Act”), creating what we now know as the New York State Physician Profile (“the Profile”).1

The Act can be found at New York Public Health Law § 2995 et seq. (“the Profile Statute”) and its regulations can be found at Title 10 N.Y.C.R.R. 1000 et seq. (hereinafter, the “Profile Regula-tions”). In general the Profile is a publically available online database which contains a wealth of information about every physician licensed in New York State, including background on a physician’s medical education and training, board certification, medical staff privileging, and legal actions taken against the physician such as medical malpractice awards or settlements.2 In February 2002, some two years after the Act was signed, the Profile went live.3 The stated purpose of the Profile is to provide patients with information about health care providers and thereby improve the quality of health care in New York State.4

Data Collected-Initial

Data and Updating Requirements The data collected in the Profile spans from “required data,” such as education and board certification, to “optional data” such as publications and a statement by the physician. Significantly, New York Public Health Law § 2995-a (7) states that a physician who provides materially inaccurate information to the Profile is guilty of professional misconduct. One explanation for this particular provision is that the information maintained by the Profile is based on the information reported by the physicians in their initial profile submission upon licensure (10 N.Y.C.R.R. 1000.4) and pursuant to the physician’s self-updating requirements (10 N.Y.C.R.R. 1000.5).

Physicians can update their Profile information by contacting the Profile customer service center and obtaining a Physician Survey Form. The Physician Survey Form is a ten-page form which lists all the information a physician will find in their Profile and allows for modifications which are then submitted to the Profile for updating.7 There is also an online updating option which requires that the physician obtain a username and password from New York State.8

How is the Profile Utilized?

The Profile is utilized by patients, insurance payors, hospitals and physician rating/review websites (such as and, amongst others. The Profile has vastly increased the amount of data available to the public regarding physicians licensed in the State of New York. While many utilize the Profile, the information on the Profile is primarily based on self-reported data.9 Failure of physicians to timely self-report to the Profile has an obvious negative effect on the ability of patients to make informed decisions regarding their choice in practitioner and puts into question the accuracy of the information presented by physician ratings websites. It also puts physicians at risk for not following the Profile updating requirements. Attorneys representing physicians would be wise to remind their physician clients to confirm the accuracy of their profiles and to timely update their profiles. But that is easier said than done due to the lack of regulatory guidance about Profile updating.

Practical Guidance

There is confusion about what information needs to be updated to the Profile and when such updating responsibilities are triggered. One such area of confusion which we have encountered in our practice relates to New York Public Health Law § 2995-a(1)(d), the reporting of hospital privileges restrictions. Any restriction or loss of a physician’s hospital privileges constitutes non-optional information which requires updating to the Profile within 30 days.10 Recognizing physicians’ due process rights to challenge a disciplinary action taken against their privileges by a hospital, New York Public Health Law § 2995-a(1)(d) states that a physician must submit to the Profile “a statement of any loss or involuntary restriction of hospital privileges or a failure to renew professional privileges at hospitals within the last ten years, for reasons related to the quality of patient care delivered or to be delivered by the physician where procedural due process has been afforded, exhausted, or waived, or the resignation from or removal of medical staff membership or restriction of privileges at a hospital taken in lieu of a pending disciplinary case related to the quality of patient care delivered or to be delivered by the physician …” (emphasis).

In our practice we have faced this issue when representing physicians who have their hospital privileges summarily suspended, sought appeal of the suspension via the hospital due process hearing rights, and were successful in reversing the suspension through the intra-hospital hearing process. Upon review of the Profile Statute and Regulations, along with consultation with representatives at the Profile, we advised our clients that an update was not necessary even though they had been suspended from clinical practice at their respective hospitals for an extended period of time during the pendency of the internal due process hearing process. From a tactical standpoint, the ability to delay the updating or potentially avoid the updating of a hospital privileging adverse action can be very beneficial when representing a physician who is facing such a predicament. As a result of the paucity of regulatory guidance on the specifics of Profile updating in nuanced situations such as these, we have found it necessary to request two opinions from the Profile to determine whether a physician-client’s Profile updating obligations had been triggered. Requesting an opinion from the Profile on reporting obligations for your physician clients is a worthwhile avenue for attorneys to evaluate a physician’s updating obligations especially when an update would have the potential to damage a practitioner’s reputation. We have also found it helpful at times to call the Profile and speak to one of their knowledgeable staff members on specific client related issues.

Finally, on multiple occasions we have assisted physicians who received notice from the Profile of a posting of a malpractice award, with an appeal pursuant to 10 N.Y.C.R.R. 1000.3, requesting reversal of the decision to publish the award.11 This written appeals process permits the physician to submit factual clinical information to the Department of Health, which reviews the submission under the standard of whether the settlement/award is “relevant to patient decisionmaking.”12 In our practice, we represented a physician who had a substantial money damages verdict against him. Though it was his first settlement/award the Profile sought to post the award pursuant to 10 N.Y.C.R.R. 1000.3(b)(2)(i) as the plaintiff had suffered a permanent injury. We successfully appealed the decision to post the award to the Profile. While the jury found our client liable, the Profile (through the panel set up to review Profile appeals pursuant to 10 N.Y.C.R.R. 1000.3(b)(2)(ii)(a)) agreed that, “…despite the awarding of payment to a complaining party, appropriate provision of patient care was provided.”13 It is important to note the 30-day time limit by which the appeal must be submitted is based on the date of the Profile notice, not the date of receipt of the notice.14


If you are an attorney who represents physicians it is important for you to consider Profile related issues when representing your client in a wide array of matters. From the benign situation of a physician resigning privileges at one hospital in order to take a new position at another institution, to the more serious and career-threatening situation of a physician facing criminal charges, each may trigger a Profile update obligation. For those attorneys who represent physicians before the Office of Professional Medical Conduct (“OPMC”), one of the first things mentioned at the physician’s Interview by the OPMC investigator is the physician’s need to update their Profile. Ideally as a result of your counsel, your client will be able to inform OPMC that they are in full compliance with their Profile updating obligations. Furthermore, as explained, it is also critical that the physician’s Profile information be accurate as misleading information to the Profile constitutes professional misconduct.15 A relatively simple way to verify your client’s accurate reporting to the Profile is to assist them with the completion of their Physician Survey Form. Finally, if your client is faced with the obligation to update a negative change to their Profile (such as a criminal conviction) you may want to consider submitting an optional statement in which the physician can explain the conviction and potentially limit the reputational damage that can understandably result from such an update.

David A. Zarett, Esq., Weiss & Zarett, P.C. New Hyde Park, New York, representing physicians in “Profile” issues and related proceedings.


1. See Buettner and Sherman, New York Daily News, March 8, 2000, “Fight For Law To Open Malpractice Records.”

2. See Public Health Law § 2995-a, which lists the information collected by the New York State Physician Profile.

3. The New York State Profile is located at

4. New York Public Health Law § 2995(1).

5. The non-optional information that a physician must update to the Profile within thirty days of any such change includes education and certification, board certification, teaching appointments, hospital privileges, participation in state or federal health insurance programs, translation services offered at their office, malpractice award payments, license actions, hospital privileging limitations, and criminal convictions. The optional information that a physician must update within 365-days of any such change includes practice office location, publications, professional community service activities, health plan contracts or other affiliations, and the physician concise statement which is an optional statement a physician can include on their Profile.

6. New York Public Health Law § 2995-a (4).

7. The Profile Customer Service Center can be reached at (888) 338-6999.

8. To obtain e-access for Profile updating online contact the New York State Health Provider Network at (866) 529-1890 to apply for an HPN account.

9. Physicians are required to report malpractice judgments and/or settlements pursuant to 10 NYCRR 1000.3, and those judgments or settlements are also separately reported by professional liability carriers pursuant to N.Y. Ins. Law § 315.

10. N.Y.C.R.R. 1000.5(a).

11. A physician is able to appeal a malpractice settlement/award posting to the Profile if they have two or fewer awards/settlements within the most recent 10 years. 10 N.Y.C.R.R. 1000.3(b)(1).

12. 10 N.Y.C.R.R. 1000.3(b)(2)(ii)(a).

13. 10 N.Y.C.R.R. 1000.3(b)(2)(ii)(a).

14. 10 N.Y.C.R.R. 1000.3(b)(2)(ii)(b).

15. See New York Public Health Law § 2995-a (7).