2010 OIG Work Plan

The Office of Inspector General ("OIG"), Department of Health & Human Services, released its Work Plan for fiscal year 2010.  The Work Plan describes the work the OIG plans to initiate or continue in the coming year. 

A copy of the Plan is here oig.hhs.gov/publications/workplan.asp

Do you think Stark has enforcement teeth?

You damn well better believe it because this week it was announced that Covenant Medical Center in Iowa has agreed to pay the U.S. government $4.5 million to settle allegations of health care fraud regarding the center's financial relationship with five doctors. The settlement resolves allegations that Covenant submitted false claims to Medicare by engaging in financial relationships with five physicians in violation of the federal law. The government alleged that Covenant violated the law by paying commercially unreasonable compensation far above fair market value to five employed physicians who referred their patients to Covenant for treatment.

"These physicians were among the highest paid hospital-employed physicians not just in Iowa, but in the entire United States," the U.S. Attorney''s Office said in the release.

For the local article on this, go to:

http://www.wcfcourier.com/articles/2009/08/25/news/breaking_news/doc4a94156271f78380125347.txt

 

OSHA Back in the Enforcement Business

Sherman & Howard LLC is telling its clients to expect more federal workplace safety actions under the Barack Obama administration, possibly including more ergonomic inspections and sanctions against businesses.

The Denver-based law firm tells clients in a new white paper that the Occupational Health & Safety Administration will be much more aggressive under Obama than his predecessor, President George W. Bush. That includes more regulatory enforcement, an increased budget and the new administration’s ties to labor unions and other organizations that want more scrutiny and rules on workplace equipment and operations.

To read the advisory, go here:

http://www.shermanhoward.com/NewsAndEvents/View/2D5B4852-5056-9125-636C652430BA4704/

What does the physician referral law prohibit?

The physician referral law (section 1877 of the Social Security Act) prohibits a physician from referring patients to an entity for a designated health service (DHS), if the physician or a member of his or her immediate family has a financial relationship with the entity, unless an exception applies. (The exceptions are specified in 42 CFR Part 411, Subpart J.) The law also prohibits an entity from presenting a claim to Medicare or to any person or other entity for DHS provided under a prohibited referral. No Medicare payment may be made for DHS rendered as a result of a prohibited referral, and an entity must timely refund any amounts collected for DHS performed under a prohibited referral. Civil money penalties and other remedies may also apply under some circumstances. Additional information is available at 

www.cms.hhs.gov/PhysicianSelfReferral/01_overview.asp#TopOfPage

Red flag rule postponed again

As you have probably already heard, the FTC is delaying enforcement of the Red Flags Rule until November 1, 2009 to give “small business[es] and other entities more time to develop and implement written identity theft prevention programs.”

The FTC also announced that it will “redouble its efforts” to educate small businesses and other entities about compliance with the Red Flags Rule. The FTC anticipates creating a special link on the FTC website for small and low-risk entities, with guidance and direction regarding compliance with the Red Flags Rule. See www.FTC.gov/redflagsrule. This response from the FTC is a result of the House Appropriation Committee’s request that the FTC defer enforcement for health care providers and small businesses that have a low risk of identity theft problems.

By the way, don't forget to vist my micro blog on Twitter: www.twitter.com/rtacpa.

 

Fraud and abuse update

On May 20, 2009, President Barack Obama signed the Fraud Enforcement and Recovery Act into law, introducing sweeping changes to the False Claims Act and providing hundreds of millions of dollars for enforcement. Also on May 20, 2009, Attorney General Eric H. Holder Jr. and Health and Human Services Secretary Kathleen Sebelius announced a new and aggressive interagency task force called the Health Care Fraud Prevention and Enforcement Action Team (HEAT) to combat Medicare and Medicaid fraud. Health-care fraud enforcement is clearly a top priority of President Obama's administration. Providers should expect to come under increased scrutiny. The attached Alert provides details on the enacted legislation and HEAT initiatives.

Click here to read the full article on nixonpeabody.com.

Remember OSHA?

Everybody talks about HIPAA lately but it seems OSHA has been forgotten topic of interest. So do you know that the Occupational Health and Safety Administration (OSHA) imposes guidelines and rules designed to protect you on the job?

For example, OSHA has rules to protect medical office staff against getting certain infectious diseases, such as hepatitis B. So ask yourself: Do I ever help out in the clinical area by cleaning the lab or taking patients back? Even if the answer is that you only do such things rarely, you should consider getting the hepatitis B vaccination series. While OSHA doesn’t require receptionists who don’t have patient care contact or duties to get the hepatitis B vaccination, some offices are offering it to these personnel.

Front desk staff who have direct patient contact (rooming patients or working in the lab) must follow their office’s policies and procedures for wearing gloves and protective equipment, such as goggles, gowns, masks and, in some cases, even respirators. OSHA requires offices to provide this equipment for staff to protect themselves against communicable diseases.

Your office should have an eyewash station for staff who might splash or rub something hazardous into their eyes. In your case, that might include ink or liquid paper or a cleaning solvent. So make sure you know where the eye wash station is and how to use it.

In addition, you and your office should pay attention to ergonomics, which can prevent back and neck injuries and what’s known as “repetitive motion” injuries. The latter usually only occur when someone does intensive data entry or types on the keyboard many hours every day. To prevent such problems, make sure your workstation is comfortable and doesn’t strain your back, neck or arms unnecessarily. For example, you don’t want a chair that requires you to hunch over the keyboard or a keyboard that’s too high or low.

You can also help prevent injuries by taking mini stretch breaks throughout the day. OSHA has information on ergonomic solutions for computer workstations available at:http://www.osha.gov/SLTC/etools/computerworkstations/checklist.html.

Mandatory Disclosure of Physician Ownership in ASCs Required by the Medicare Conditions for Coverage Effective May 18, 2009

The final Medicare Conditions for Coverage were published October 30, 2008 and will become effective May 18, 2009. One of the most significant changes in the Conditions for Coverage is the requirement for ASCs to provide patients with certain verbal and written notification of rights and of ownership in advance of the date of the service. The notice must be provided in a language in any manner that the patient or the patient's representative understands. ASCs specifically must:

1. Post the written notice of patient rights set forth in the Conditions for Coverage in a place or places within the ASC likely to be noticed by patients (or their representative, if applicable) waiting for treatment. The ASC's notice of rights must include the name, address, and telephone number of a representative in the State agency to whom patients can report complaints, as well as the Web site for the Office of the Medicare Beneficiary Ombudsman.
2. Disclose physician financial interests in the ASC. Disclosure of information must be in writing and furnished to the patient. This disclosure, which had previously been a safe harbor requirement, is now a requirement for all centers. Further, disclosure must be provided in advance of the procedure - i.e., generally made prior to the date the patient has the procedure.
3. Provide the patient or, as appropriate, the patient's representative, in advance of the date of the procedure, with information concerning its policies on advance directives, including a description of applicable State health and safety laws and, if requested, official State advance directive forms. The ASC must also inform the patient or patient's representative of the patient's right to make informed decisions regarding the patient's care and must also document in a prominent part of the patient's current medical record whether or not the individual has executed an advance directive.
4. Establish a grievance procedure for documenting the existence, submission, investigation, and disposition of a patient's written or verbal grievance to the ASC and notify the patient of the same.

The requirement that such notice be provided "in advance" is generally considered to be at least the day before the procedure is scheduled for all of the above notifications. If the patient is not scheduled for an initial appointment at the ASC before the date of surgery, the ASC may be able to meet the advance requirement by (a) providing verbal notice over the telephone and (b) mailing the written materials to the patient (or instructing the patient to download the materials from the ASC website) and, on the date of the procedure, having the patient bring the notice materials with a signed acknowledgement that they were provided in advance of that day. There is no requirement that all of the above notices be included in the same documentation, but it will be critical for the ASC to ensure that the above verbal and written notices are provided and properly documented in patient records. 

Hospital Gainsharing Programs—Ten Years of Guidance

Over the last ten years, measuring from the date the Department of Health and Human Services Office of Inspector General (OIG) first addressed the issue of gainsharing arrangements in a Special Advisory Bulletin issued July 8, 1999, the OIG has offered analysis of several proposed gainsharing arrangements. Although the OIG advisory opinions cannot protect other hospitals structuring shared savings programs with physicians, most opinions offer guidance on necessary safeguards to avoid sanction under the Civil Monetary Penalty Law and Anti-Kickback Statute. The opinions provide no protection under the Stark rule; however, there has been no Stark enforcement against the gainsharing programs approved by the OIG.

As a follow up to my prior related blog post, this is an excellent summary by the law firm of King & Spalding (www.kslaw.com):

http://www.kslaw.com/portal/server.pt?space=KSPublicRedirect&control=KSPublicRedirect&PublicationId=1906#HH1

Red Flags Rule guidance published

The Federal Trade Commission (FTC) published guidance to help organizations comply with the May 1 enforcement deadline on the Red Flags Rule, which forces hospitals to implement a documented identity theft prevent program.

The report offers four steps to complete compliance with the rule:

• Include reasonable policies and procedures to identify the “red flags” signaling potential identity theft
• Design your program to detect red flags that you have identified
• Spell out appropriate actions you’ll take when you detect red flags
• Address how you will re-evaluate your program periodically

Read the complete FTC report.