Orthopedics

What do you do if you are at a seminar and lawyer suggests something that your current lawyer says is illegal? What do you do? How do you decide what information is correct?

First, you might want to consider whether the two sources are truly providing contradictory information. It may be that one lawyer is talking about federal law, but not considering a factor that applies only in your state. Or perhaps one is discussing a rule that applies to Medicare, while another is discussion situations with no government patients involved. But the reality is that with the complexity of health care regulation, contradictory opinions abound.

On March 26, 2013, the Office of Inspector General of the Department of Health and Human Services issued a special fraud alert about physician-owned distributorships. Physician-owned distributorships (PODs) are entities owned by physicians that sell implantable medical devices that are used by the physician owners. These entities have sprung up as hospitals and physicians seek ways to lower device costs, and physicians seek avenues to address falling compensation.

The legal framework surrounding PODs has always been somewhat murky. In April 2008, CMS specifically solicited comment about PODs. Since then, several prominent law firms have indicated that they believe PODs are defensible, while others have offered unrelenting criticism. The fraud alert suggests that both sides may have a point. The fraud alert is clearly designed to throw cold water on the use of PODs, although the alert does not claim that PODs are always illegal. Instead, it characterizes them as “inherently suspect” under the Medicare Anti-kickback Statute.

One provision in the American Taxpayer Relief Act of 2012, or the “fiscal cliff” bill, received little attention in the press, but will have a major impact on health care organizations. It expands the time limit on recovering overpayments, and presumably the time limit for making refunds. Since its inception, the Medicare law has waived recovery of overpayments when the recipient of the payment is “without fault.”

The law includes a presumption that a recipient is “without fault” after the passage of time. Until now, the presumption took effect “3 years after the year in which payment was made.” The amendment increases the time to 5 years after the year in which payment was made.

The start of a new year is a great time to consider your compliance plan. If you don’t have one, then it is time to fix that. If you do have one, then consider a few easy things you can do to improve your odds of faring well in the event of an audit.

Compliance plans were born out of the federal sentencing guidelines. If a corporation is convicted of a crime, then the presence of a compliance plan can lower the company’s penalties. But the real reasons to adopt a compliance plan are not based on the sentencing guidelines. They are more practical. First, a good compliance plan may avoid billing errors. Second, if you do make an error, then a good plan may convince the government that any error is inadvertent.

If you have had a Medicare overpayment appeal, you are likely to cheer the title of the Office of Inspector General report, “Improvements are Needed at the Administrative Law Judge Level of Medicare Appeals” (See: https://oig.hhs.gov/oei/reports/oei-02-10-00340.asp), but reading the report is likely to curb your enthusiasm. The report is not about the seemingly growing delay in having a hearing or receiving a decision. (In my experience, 12-month to 18-month waits are common). In fact, the report claims that while cases were decided slowly in 2005 and 2006, “timeliness improved” thereafter.

On Sept. 28, 2012, the Government Accountability Office issued a report entitled “Higher Use of Advanced Imaging Services by Providers Who Self-Refer Costing Medicare Millions.” The Government Accountability Office (GAO) tried to compare the number of scans ordered by physicians who were ordering imaging supplied by the same entity that employs them with the number of scans ordered by physicians who sent patients to scanning equipment at outside entities. The report also attempts to...

Many physician groups have had a rough few weeks notifying patients about possible contamination in drugs purchased from the New England Compounding Center. You have probably heard that public health authorities suspect some sort of contamination that caused patients to contract fungal meningitis.

This is only one example of a surprise that can disrupt your practice. Government investigations, lawsuits, high profile patients or other surprises may suddenly thrust you into the limelight. Here are things to carefully consider now to prepare for an unexpected event.

One of the tougher questions facing physicians right now is whether to stay independent. There is a great deal of uncertainty in the health care marketplace, and that uncertainty understandably breeds fear. That fear contributes to a bit of a “run on the bank” mentality, as physicians join systems.

I got another call this week from an orthopedic physician with a problem. A major insurance company was refusing to pay for imaging on their scanner. These sorts of calls are quite common. In the typical case, a group has an ambulaory surgery center, MRI or other ancillary and a payer is refusing to cover treatment there.

A case in California will make major news whichever way it is decided. Aetna has sued several ambulatory surgery centers (ASCs), as well as the owners and managers of the ASCs, including individual surgeons, claiming that the way the ASCs handle out of network patients is fraudulent. There are several different theories articulated in the complaint, but the one that may be most interesting is that the ASCs are committing fraud when they fail to collect the entire beneficiary liable portion of a fee. According to the complaint, under Aetna’s plans, when the ACS bill Aetna for a surgery, the patient would typically be responsible for paying between 20% and 50% of the bill.