Latest blog entries http://mdrxlaw.com/publications/latest Wed, 30 Jul 2014 03:00:17 -0400 Joomla! - Open Source Content Management en-gb Kristina Giyaur and Alec Sauchik - Super Lawyers Rising Stars 2014! http://mdrxlaw.com/publications/kristina-giyaur-and-alec-sauchik-are-selected-to-superlawyers-new-york-rising-stars-in-healthcare-law http://mdrxlaw.com/publications/kristina-giyaur-and-alec-sauchik-are-selected-to-superlawyers-new-york-rising-stars-in-healthcare-law We are pleased to announce that Kristina Giyaur, Esq. and Alec Sauchik, Esq. were recently selected as 2014 Super Lawyers New York Rising Stars in healthcare law. Less than 2.5 percent of New York attorneys receive this honor. These selections for this esteemed list are made by the research team at Super Lawyers, which is a service of the Thomson Reuters, Legal division. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, and a good-standing and disciplinary check.
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asauchik@kspclaw.com (Alec Sauchik) Alerts Tue, 29 Jul 2014 11:18:14 -0400
Joining a Private Practice: What Every Prospective Partner Needs to Consider http://mdrxlaw.com/publications/joining-a-private-practice-what-every-prospective-partner-needs-to-consider http://mdrxlaw.com/publications/joining-a-private-practice-what-every-prospective-partner-needs-to-consider If you are a physician on partnership track or received an offer to become a partner at a private practice you need to consider a number of important factors. Forming or joining a partnership is a major life decision, one that should never be entered into without proper guidance from an experienced healthcare attorney. Partnership considerations, crucial for forming a lucrative partnership, are greatly dependent on the circumstances surrounding each practice. Accordingly, we strongly recommend that potential partners hire an exprienced healthcare attorney with in-depth knowledge of, not only commercial transactions, but the business of a medical practice as well.

Some of the partnership considerations a healthcare attorney must analyze include:

1.      Underlying economics of the practice, its assets, liabilities, risks and prospects.

2.      Financial structure of the practice, ownership rights, and governance documents, as well as, all documents, agreements, and contracts relating to the practice, including payor agreements, hospital agreements, property leases and subleases, equipment leases, management, employment, and other service agreements.

3.      The representations and warranties contained in the Purchase & Sale and/or Buy-Out Agreement and their implications.

4.      Compensation, buy-ins, buy-outs, restrictive covenants, and exit strategies including agreements regarding compensation upon dissolution of the partnership and/or death of a partner. Note that if the practice compensates owners based on their respective production, a healthcare attorney must review the initial structuring and ongoing execution of the arrangement to ensure it complies with the Stark Law, the Anti-Kickback Statute, applicable state laws, Medicare reimbursement regulations, and the Internal Revenue Service’s (IRS) unreasonable compensation regulations. 

Before committing to becoming an owner of a practice, prospective partners should have their healthcare attorney extensively review the agreements and issues involved in joining a practice to ensure a financially successful and generally rewarding partnership

If you have any questions or would like a consultation regarding this or any other healthcare legal issues please do not hesitate to call one of our experienced healthcare attorneys at 212.668.0200 or email us at info@mdrxlaw.com. Our  healthcare partners have years of experience representing physicians in numerous transactions including practice buy-ins and buy-outs, partnership formations and dissolutions, practice mergers and acquisitions as well various types of contracting among healthcare providers. The attorneys at MDRXLAW are here to provide guidance and counsel on any of your healthcare legal matters.
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kgiyaur@kspclaw.com (Kristina Giyaur) Medical Practice Management Mon, 23 Jun 2014 20:17:09 -0400
CMS Must Provide a Proper Explanation When Denying a Claim http://mdrxlaw.com/publications/cms-must-provide-a-proper-explanation-when-denying-a-claim http://mdrxlaw.com/publications/cms-must-provide-a-proper-explanation-when-denying-a-claim One of healthcare providers' worst nightmares is a Medicare request for repayment as a result of an unfavorable overpayment determination or audit.  Frequently, such repayments are based on determinations using extrapolation from a smaller sample. Many claims are denied with nothing but a very general explanation.  Appeals of such determinations can be very cumbersome, and might involve detailed analysis of all claims and the use of statistics. 

Providers who receive unfavorable overpayment determinations have up to five levels of appeal available to them.  First, the provider may request a redetermination from the CMS claims processing contractor.  Second, the provider may appeal to a CMS Qualified Independent Contractor (QIC).  Third, the provider may appeal to a CMS Administrative Law Judge (ALJ).  Fourth, the provider may appeal to the Medicare Appeals Counsel (MAC).  Finally, the provider can request a judicial review in a federal district court.

For each level of appeal, Medicare is required to give the provider a specific rationale for denying its claims or determining that an overpayment was made.  An adequate, specific and detailed explanation for denial of a claim or a finding of an overpayment is an essential procedural component of the appellate process.  It provides the information to effectively dispute the determination and serves as evidence that a contractor properly conducted the review.  If CMS did not require its contractors to provide an explanation for denying a claim, then it would be able to circumvent the appellate process by systematically denying claims and then changing its rationale for denial upon hearing the provider’s defense.  If a determination decision does not include specific reasoning for denial of a claim, the appeals process fails to function properly and denies the healthcare provider a full and fair appeal. 

This same logic applies to overpayment calculations performed through extrapolation from a statistical sample.  Often, CMS or one of its contractors will audit a sample of patient medical records and extrapolate its findings to all claims submitted during the look-back period.  To adequately defend against such an extrapolation, a provider needs to be fully informed of the extrapolation methodology, particularly the sample used.  In The Case of Global Home Care Inc., the MAC declined to review the ALJ’s decision to not use the extrapolation conducted by CMS’s contractor. The ALJ found that because the contractor failed to produce its sampling documentation to the provider, the provider was unable to recreate the “statistically valid random sample,” thereby denying him a full and fair appeal.  Thus, providers are entitled to see the Medicare contractor’s extrapolation methodology documentation.

If you have been audited or an overpayment determination has been made against you do not hesitate to call our firm and speak with one of our experienced healthcare attorneys.  We will ensure that your rights are effectively protected!


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sspektor@kspclaw.com (Simon Spektor) Medicaid and Medicare Sun, 23 Feb 2014 16:22:31 -0500
Avoid the PQRS Confusion http://mdrxlaw.com/publications/avoid-the-pqrs-confusion http://mdrxlaw.com/publications/avoid-the-pqrs-confusion CMS’s Physician Quality Reporting System (“PQRS”) is and should be of utmost importance to physicians and other eligible providers.  With proper guidance, the seemingly overwhelming new system of reporting requirements is quite manageable.  We address the PQRS issue due to the alarming fact that a vast majority of New York physicians have formed a misconception about the PQRS that may result in tangible reduction in the already-reduced Medicare reimbursement rates.

What is key for all physicians to realize is that PQRS is not simply a system of incentives, failure to comply with the new mandates will cause penalties in form of reimbursement adjustments on future claims. These penalties can and should be avoided simply by implementing a proper quality measures reporting system.

To participate in the 2014 PQRS, individual providers must report information on individual PQRS quality measures.  Which measures?  Providers get to select from 287 measures and 25 measures groups within National Quality Standard (NQS) domains such as:
  • Patient Safety,
  • Person and Caregiver-Centered Experience and Outcomes
  • Communication and Care Coordination,
  • Effective Clinical Care,
  • Community/Population Health, and
  • Efficiency and Cost Reduction
If properly implemented, a provider will receive a 0.5% increase to all of their Medicare Part B Fee-for-Service claims. The requirements vary depending on the practice’s size, specialty, and method of reporting.  On the other hand, providers who fail to properly implement the PQRS this year will be subject to a -2.0% payment adjustment on all of their 2016 claims.   

Physicians take note!  The PQRS will serve as the input source for CMS’s Value-Based Payment Modifier (“VBPM”) program.  The VBPM program will apply a value modifier to physicians’ claims under the Medicare Physician Fee Schedule (“MPFS”) based upon the quality of care furnished in relation to total costs.  Accordingly, what a physician reports under the PQRS this year, if anything, will determine how much money he gets two years from now.  Moreover, under the VBPM, physicians who don’t participate in the 2014 PQRS will be subject to an additional -2.0% payment adjustment on all of their MPFS claims.  Thus, physicians who fail to properly implement the PQRS this year will be subject to a 4% penalty plus a value based adjustment depending on the quality and efficiency of their care. 

In addition to determining differential pay, the PQRS provider performance information will be shared with the public online.  In 2015, CMS will begin publicly posting individual physician performance data using the information reported through the 2014 PQRS.

With incentives, significant financial penalties, reimbursement, and public profiles conditioned on properly implementing the PQRS this year, providers have run out of time to procrastinate.  It is important that physicians take the time now to analyze their practices, work flow and PQRS implementation. The experienced health care attorneys of our Health Care Team  are here to address all your questions and concerns with respect to the issue of PQRS or any other legal issues. We can be reached by email at info@mdrxlaw.com or by phone at 212.634-6350 or 718.787.9500.

 


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kgiyaur@kspclaw.com (Kristina Giyaur) Alerts Tue, 11 Feb 2014 19:14:41 -0500
FTC Fining Medical Practitioners for Data Breaches http://mdrxlaw.com/publications/ftc-fining-medical-practitioners-for-data-breaches http://mdrxlaw.com/publications/ftc-fining-medical-practitioners-for-data-breaches As though the administration of a medical practice or a pharmacy establishment has not become a smothering task as things stand now, governmental scrutiny intensifies yet again!  Last week, the Federal Trade Commission (FTC) issued a unanimous ruling extending its authority over HIPAA covered entities, a significant shift from its historic role of protecting consumers and monitoring unfair business practices.  Physicians and other healthcare providers are now exposed to not only HIPAA enforcement actions, but also FTC fines and penalties in the event of a data breach. 

With this recent legislative developments , healthcare practitioners need to be extra vigilant in their HIPAA compliance policies and data protection.  To avoid exposure, every practice is strongly encouraged to implement a comprehensive compliance program in line with the applicable state and federal regulations.

Please contact our experienced healthcare attorneys with any questions pertaining to implementation of a comprehensive compliance plan, for general regulatory and compliance guidance and, immediately, in the event of an audit or an investigation by any state or federal agency.
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kgiyaur@kspclaw.com (Kristina Giyaur) Alerts Mon, 10 Feb 2014 23:37:14 -0500
Documents Collection http://mdrxlaw.com/publications/documents-collection http://mdrxlaw.com/publications/documents-collection We are pleased to bring you a variety of documents relevant to your practice.  Please visit the document archive.  We are constantly updating this section so visit often.
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asauchik@kspclaw.com (Alec Sauchik) Alerts Mon, 10 Feb 2014 11:41:15 -0500
New York Physicians Compliance Program Federal Mandate http://mdrxlaw.com/publications/new-york-physicians-compliance-program-federal-mandate-1 http://mdrxlaw.com/publications/new-york-physicians-compliance-program-federal-mandate-1 The New York State Office of Medicaid Inspector General (“OMIG”) has long required Medicaid providers to implement compliance programs as a condition of enrollment with Medicaid. However, now under Federal law, practitioners, regardless of the size of their practice, will have to develop a comprehensive compliance program. Under Section 6401 of the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”), all healthcare providers enrolled in a federal healthcare program, must implement an effective compliance program. The Department of Health and Human Services (HHS) and its Office of Inspector General (OIG) have consistently cited the following components in guidance materials as the basic elements for inclusion in compliance programs for health care providers:

Implement Written Policies, Procedures, and Standards of Conduct: Practices must maintain documentation that clearly and specifically outlines the policies and procedures for ensuring such compliance. This often includes a comprehensive “Compliance Plan” and separate written policies and procedures. The Compliance Plan should describe compliance expectations as embodied in a code of conduct or code of ethics, implement the operation of the compliance program, provide guidance to employees and others on dealing with potential compliance issues, and identify how to communicate compliance issues to appropriate compliance personnel. A basic outline of an effective compliance program will consist of:
  1. Compliance Officer/Committee Designation and High Level Oversight
  2. Effective Training and Education
  3. Effective Lines of Communication & Whistleblower Protections
  4. Effective System for Monitoring, Auditing and Identification of Compliance Risks
  5. Procedures and System for Prompt Response to Compliance Issues
  6. Well-Publicized Disciplinary Standards
With enforcement initiatives against healthcare providers ever-increasing, physician and practices which have not implemented comprehensive compliance plans, specifically meeting necessary criteria, risk exclusion from government healthcare programs. Additionally, effective compliance programs enable providers to avoid or mitigate the significant penalties associated with violations of existing health care regulations.

For example, a physician who unknowingly violates the PPACA, such as the recent Stark Law amendment requiring physicians to inform patients in writing that they have ownership or compensation relationships with providers of in-office ancillary services, could be subject to penalties of up to $15,000 for each service in violation of the Stark Law. Moreover, violations of the Anti-Kickback Statute now implicate the False Claims Act. Thus a simple gift from a physician to a referrer can subject the physician to monetary penalties of up to $25,000 and/or imprisonment of up to 5 years, as well as a penalty of $11,000 per false claim submitted, plus three times the amount of damages sustained by the federal government.

Physicians and medical practices are strongly urged to obtain proper legal guidance in this time of high regulatory turbulence in the healthcare arena and ever-increasing complexity of the administrative aspects of the practice of medicine. For answers to all of your compliance related questions, as well as with audit resolution assistance, regulatory counsel, liability avoidance guidance or when in need of an expert professional licensure defense attorney please feel free to contact the healthcare group of our firm at info@mdrxlaw.com or by phone at 212.634.6350 or 718.787.9500. For more information on our practice areas and the backgrounds of our experienced attorneys please visit our website www.mdrxlaw.com, a place where healthcare practitioners find answers to their legal questions.

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kgiyaur@kspclaw.com (Kristina Giyaur) Alerts Wed, 29 Jan 2014 12:53:43 -0500
Using Chaperones to Deter & Defend Against Sexual Misconduct Complaints http://mdrxlaw.com/publications/using-chaperones-to-deter-defend-against-sexual-misconduct-complaints http://mdrxlaw.com/publications/using-chaperones-to-deter-defend-against-sexual-misconduct-complaints One of the worst accusations a physician or any healthcare professional can face is a sexual misconduct complaint.  If a physician is contacted by the Office of Professional Medical Conduct (“OPMC”) they should immediately seek legal counsel and avoid engaging in any communications with the investigators prior to securing legal representation. OPMC takes sexual misconduct complaints very seriously and thoroughly investigates even unsupported and plainly baseless accusations.   If you or a physician you know is faced with allegations of sexual misconduct or a complaint has been filed by a patient alleging an incident involving inappropriate sexual conduct our team of experienced health care attorneys are here to answer all your questions and defend you in the event that proceedings are in fact initiated by the Office of Professional Medical Conduct. 

Unfortunately, the accused physician not only faces losing his or her license and even potential filing of criminal charges, but, given the current flawed disciplinary system is likely to suffer harm even if he or she is ultimately exonerated.  The mere filing of a complaint and initiation of any investigation by OPMC brings about not only significant defense expenses, but can actually cause irreparable damage to the provider’s name and reputation leading to loss of patients and referral sources.  Moreover, the innocent physician will forever be required to explain the exonerated accusation to employers, credentialing committees, managed care companies and other entities.       

Given the harsh reality of a false sexual misconduct accusation, physicians and physician assistants, need to implement extensive procedures to deter such accusations; such as properly utilizing a chaperone.  Although, many physicians already use chaperones, most have not updated their procedures to the changing demands of modern times.  Since complaints can now be of a homosexual or transsexual nature, physicians should use chaperones regardless of the patient’s gender or sexual orientation.  Moreover, sexual misconduct is no longer defined exclusively as an act of sexual assault.  Rather, OPMC proceedings as well as criminal investigations may now be based on a wide range of allegations from physical and verbal sexual harassment, suggestive comments, inappropriate comments, and even leering.  

When using a chaperone, the practitioner should ensure that the chaperone’s presence is recorded in the medical record.  By simply recording the chaperone’s initials in the medical record, the medical record could one day serve as essential evidence to refute an allegation.  Additionally, given the chance of the chaperone leaving the practice for employment elsewhere, the medical office should secure extensive contact information so that the chaperone could be reached to corroborate the accused physician’s testimony even if he is no longer employed with the office.  

A chaperone should also remain present during the entire time that the physician interacts with a disrobed or even partially disrobed patient.  If a patient objects to the chaperone, then the physician should not proceed with the examination, unless they can accommodate the patient’s request.  Thorough documentation of the full course of events should be detailed in the patient’s record to further evidence the interaction.

Although utilizing a chaperone does not guarantee prevention of false accusations, it certainly deters sinister patients from bringing forth frivolous claims.  It also serves as good evidence to disprove any accusations, thereby protecting the physician from suffering devastating consequences.  The minimal investment of properly utilizing a chaperone is well worth the decreased risk of harm and should be standard protocol for every medical practice.   

 

 


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kgiyaur@kspclaw.com (Kristina Giyaur) Medical Practice Management Tue, 28 Jan 2014 09:34:03 -0500
Joining a Hospital: What every physician must understand before signing an employment contract http://mdrxlaw.com/publications/joining-a-hospital-what-every-physician-must-understand-before-signing-an-employment-contract-1 http://mdrxlaw.com/publications/joining-a-hospital-what-every-physician-must-understand-before-signing-an-employment-contract-1 It is very often the case that a young physician presented with an employment agreement from a hospital feels that there is absolutely no room for negotiation.  The key, as with any instance of leverage balance between contracting parties, is the initial impression and assessment of the benefit to each respective party.  And while it is true that certain industry-wide accepted provisions may be standard, many important terms of a hospital employment agreement can and should be negotiated.  And notwithstanding acceptance of any changes to the proposed terms of the agreement by the hospital-employer, what is most important for a physician is to fully understand the terms of the contract, which is a legally binding document.  Entering into an employment agreement without guidance of competent legal counsel specializing in healthcare law is a mistake that can impact the physician both financially and professionally. Therefore, a physician reviewing a proposed employment agreement should carefully analyze the terms and conditions of the contract and make sure that it reflects his or her understanding of the position offered.  If a physician discussed and agreed upon the particulars of the position with the employer, such as compensation, amount of call, vacation time, CME reimbursements, malpractice coverage and the like during an interview, all of these details must be accurately reflected in the written agreement. 

The important provisions in any physician employment agreement pertain to compensation, benefits, professional liability coverage, duties, term and termination of the agreement as well as the effects of termination and the scope of the restrictive covenant. These clauses may often seem fairly straightforward. However these and numerous other important clauses in an employment agreement are likely to contain numerous and not so obvious details that may not be clearly understood by the physician and that may often be tweaked somewhat to the benefit of the physician-employee with the help of qualified healthcare counsel.  For instance, every physician considering hospital employment needs to consider what if any, is the bonus structure and will the physician be entitled to prorated bonus compensation in the event of early termination, what is the basis of the hospital compensation calculation and are there any dangerous clauses related to compensation, which simply must be negotiated out of the agreement such as a provision of “clawbacks” of compensation in the Relative Value Units or RUVs are not met.   

In sum, any physician considering hospital employment must be certain that he or she fully understands all the terms in the proposed employment agreement.  Physicians should remember that while it is generally not costly to have an agreement reviewed by an attorney practicing in the area of healthcare transactions but employment disputes occurring as a result of even an unintentional violation of a covenant contained in a contract are often considerable.  Therefore, it is of utmost importance that every physician presented with a hospital employment contract consult with a qualified attorney for clarification and proper counsel with respect to all the rights and obligations created under the terms of the proposed agreement. 


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kgiyaur@kspclaw.com (Kristina Giyaur) Medical Practice Management Mon, 27 Jan 2014 16:14:41 -0500
Enforcement of Restrictive Covenants in Arbitration http://mdrxlaw.com/publications/enforcement-of-restrictive-covenant-in-arbitration http://mdrxlaw.com/publications/enforcement-of-restrictive-covenant-in-arbitration Enforcement of a non-compete provision in an arbitration proceeding rather than through courts has become more efficient through new rules allowing for urgent injunctive relief, which is so often so necessary. Effective October 1, 2013, the American Arbitration Association (“AAA”) has delineated new rules within the Commercial Arbitration and Mediation Procedures of the AAA (“CAMP”) that allow parties to seek injunctive relief directly from an arbitrator prior to the commencement of the arbitration itself. Thus, when an employer seeks to enforce a restrictive covenant, it can now obtain both monetary and injunctive relief from the arbitrator. 

A restrictive covenant is a provision in an employment contract, whereby an employer can restrict an employee’s ability to work in the same occupation or profession upon termination of employment. Restrictive covenants are enforceable in New York, however, courts strictly construe the provision, ensuring that its limitations are reasonable in time, scope, and geographic area. A restraint is considered reasonable if it satisfies the following three-prong test: 1) it is reasonably limited in time and scope and is no greater than is required for the protection of the legitimate interest of the employer and to protect the former employer from unfair competition; 2) it does not impose undue hardship on or dully burdensome to the employee; and 3) it is not harmful to the public. BDO Seidman v. Hirschberg, 93 N.Y.2.d. 382, 289-90, 690 N.Y.S.2d 854 (1999). For instance, a restriction on a former employee’s ability to work for a competitor is invalid unless the employee’s services are “unique or extraordinary” or if the job is considered a “learned profession”, Id.; OTG Mgmt v. Konstantinidis, 40 Misc. 3d 617, 620, 967 N.Y.S.2d 823,825 (Sup. Ct. N.Y. Co. 2013).

When an employer finds it necessary to enforce a restrictive covenant against a former employee, to the extent the employment contract provides for arbitration, the employer would arbitrate seeking money damages and a permanent injunction against the former employee. However, if the employer wanted the employee to stop working immediately (prior to any arbitration or trial), he would seek preliminary injunctive relief from the courts. Thus, when seeking a preliminaryinjunction, parties would often have to take a two-track process, in which a request for injunctive relief would be sought in the courts while the underlying dispute would be handled through arbitration. This two-track process was cumbersome and inefficient since parties would have to litigate in two separate forums, thereby increasing their costs. In an effort to resolve this inefficiency, the AAA has provided a new roadmap for the process, which now allows for an “emergency arbitrator” to directly decide whether a preliminary injunction should be granted. CAMP Rule R-38 (entitled “Emergency Measures of Protection”) describes the new procedure, which includes expedited deadlines for notice, service, and hearings. 

Arbitral rules that expressly provide parties the ability to obtain all of their desired relief from one forum should result in quicker resolutions and lower costs for the parties. Moreover, it will reduce the overall burden on the court system to handle such disputes and the errors that occur from the former disjointed two-track process.

Should you be seeking to enforce a non-compete or struggling to defend a lawsuit or arbitration proceeding to enforce a restrictive covenant do not hesitate to call our firm and speak with one of our experience healthcare attorneys. 


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kgiyaur@kspclaw.com (Kristina Giyaur) Medical Practice Management Mon, 13 Jan 2014 13:55:38 -0500
Medicaid and Emergency Room Use http://mdrxlaw.com/publications/medicaid-and-emergency-room-use http://mdrxlaw.com/publications/medicaid-and-emergency-room-use Study conducted in Oregon and published in the journal Science finds that after getting health insurance under Medicaid, people went to the emergency room more often than their uninsured counterparts; findings cast doubt on the hope that expanded insurance coverage for the poor will help rein in emergency room costs just as more than two million people are gaining coverage under the Affordable Care Act.  See More Source: New York Times.  


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asauchik@kspclaw.com (Alec Sauchik) Medicaid and Medicare Wed, 08 Jan 2014 20:46:33 -0500
Healthcare Providers Responsible for Billers' Violations of Federal and State Laws http://mdrxlaw.com/publications/healthcare-providers-responsible-for-billers-violations-of-federal-and-state-laws http://mdrxlaw.com/publications/healthcare-providers-responsible-for-billers-violations-of-federal-and-state-laws All healthcare providers are advised that pursuant to Section 6503 of the Federal Patient Protection Affordability Care Act (“PPACA”), all providers using third party billing companies or agencies to submit claims to Medicaid on their behalf are responsible for ensuring that those companies are properly registered and compliant with the NYS Medicaid Program as per the regulations promulgated by the Office of Medicaid Inspector General ("OMIG"). Since February 2011, OMIG has made a list of the currently enrolled billing service agencies available for general public on its website. 

To comply with the law, medical billing service companies must be registered with Medicaid and disclose their fee schedules arrangements. Despite popular belief and common practice, NYS law prohibits fee-splitting between medical practitioners and third parties. Therefore, billing/collection service agreements based on a percentage of the amount billed, collected, or any formula based on actual collections are improper. The only permitted billing collection service payment arrangement is one based on the cost and processing of the bills. 

It should be noted that, as Medicaid registrants billing&collection companies are increasingly targeted for audits by the OMIG. This means that healthcare providers and billers should follow the OIG Compliance Program guidance for Third Party Medical Billing companies to make sure they do not violate any federal or state laws.

If you have any questions or need legal guidance in connection with billing service agreements or any other legal questions, please feel free to contact an experienced healthcare attorney by phone at 718-787-9500 or email at info@mdrxlaw.com.


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asauchik@kspclaw.com (Alec Sauchik) Medical Practice Management Tue, 11 Jun 2013 15:55:03 -0400
What every healthcare provider needs to know about new HIPAA rules http://mdrxlaw.com/publications/what-every-healthcare-provider-needs-to-know-about-new-hipaa-rules http://mdrxlaw.com/publications/what-every-healthcare-provider-needs-to-know-about-new-hipaa-rules
Healthcare practitioners need to be aware of revised, heightened patient privacy requirements.  On January 17, 2013, the U.S. Department of Health and Human Services ("HHS") released new rules expanding protections afforded by the Health Insurance Portability and Accountability Act (“HIPAA”).  The rules are expected to place greater burdens on healthcare practices and affiliated entities than ever before.   

The new rule’s focus is two-fold: more individual protections for patients, and higher privacy protection obligations on practices and affiliated entities, with tougher penalties resulting from privacy breaches. 

More Individual Protections for Patients

Under the new rules, patients will have the right to receive electronic copies of their health information.  Practitioners will need to have electronic versions of medical records readily accessible.  Patients will have the added benefit of their treatment being protected from disclosure to health plans where they pay in full for their treatment.  The new rule also prohibits or places significant restrictions on the use of patient data for marketing or fundraising purposes.

Heightened Privacy Protection Obligations and Penalties

Under the new privacy rules, practices now must assume the worst-case scenario in the event of a possible privacy breach. Previous regulations had required a practice to notify affected patients and the federal government only if it determined that a breach involving patient records had occurred and that it carried a significant risk of financial or reputational harm to patients.  The new rules eliminate that standard and replace it with a stricter one. Now any incident involving patient records is assumed to be a breach, and unless a practice conducts a risk assessment that proves a low probability that any protected information was compromised, the breach must be reported.  Such assessments should be conducted in cooperation with knowledgeable counsel specializing in HIPAA-related issues. 

Practices are also going to be responsible for any breaches that occur as a result of actions or inactions of the practices’ business associates.  HIPAA typically has focused on health care professionals, health plans and other entities that process health insurance claims. But because some of the largest security breaches have involved business associates of plans, doctors and other professionals, HHS said it was extending many of the law’s requirements to these entities, as well as their subcontractors.

For healthcare practices, a business associate may be any firm that handles patient data, such as a storage provider or a shredding company. With contractors becoming as fully liable as everyone else affected by HIPAA, healthcare practices will be subject to penalties for actions of their business associates. For example, if someone paid to shred patient files instead throws the documents into a trash bin and causes a breach, the practice also is subject to enforcement violations caused by that business associate.

Potential penalties associated with these violations range from fines up to $1.5 million to criminal penalties in particularly egregious cases.  The government is expected to take a much more aggressive stance in investigating and enforcing potential privacy violations.

HOW TO PREPARE FOR NEW HIPAA REQUIREMENTS

Healthcare practices must urgently and aggressively tackle the new challenges presented by the changed privacy rules.  With the new rules becoming effective as of March 26, 2013, and compliance expected by September 23, 2013, healthcare practices must act fast. 

First, healthcare providers must review and revise all existing business arrangements and agreements with third parties to make sure that the contractors are compliant with the new privacy regulations.  The contactors’ privacy policies need to be carefully examined, and practices need to assure themselves that these policies are in fact followed. 

Healthcare practices will need to revise their notices of privacy practices to explain their relationships with business associates and their new status under the final rule. They also will need to explain the breach notification process. These notices must be displayed in prominent places in providers’ offices and on practices’ websites.

To sum up, healthcare practices must:
  • Conduct a thorough security risk assessment on all activities related to capturing, using, storing or transmitting electronic patient health information.
  • Develop comprehensive breach avoidance and notification procedures and policies. Emphasis should be put on data encryption and stricter password protections.
  • Examine and redesign workflow to handle the new requirements. For example, if a practice has an electronic health records system, patients can ask for copies of their medical records in electronic formats of their choosing. If the practice cannot readily produce a record that way, it must offer another electronic format or a hard copy if that format is rejected.
  • Develop new privacy notices and patient intake procedures to comply with the rules.
  • Discuss with your attorneys the protocol to follow once a suspected breach has occurred.  In such cases, a comprehensive risk assessment must be conducted in the most expeditious fashion.

If you have any questions regarding compliance with the new HIPAA rules, or any other questions concerning legal requirements applicable to healthcare providers, you should contact our healthcare attorneys, Alec Sauchik or Kristina Giyaur, at 212-634-6350 or 718-787-9500.  You can also reach us by email at  asauchik@kspclaw.com or kgiyaur@kspclaw.com.</d


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asauchik@kspclaw.com (Alec Sauchik) Medical Practice Management Mon, 11 Feb 2013 19:06:34 -0500