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Archive for the ‘Billing and Coding’ Category

Fraud Allegation for Unnecessary Breast Cancer Index (BCI)Testing

Friday, May 18th, 2018

Unnecessary Breast Cancer Testing Fraud Settlement

False Claim Breast Cancer Index TestingA company will pay around $2 million to settle allegations of making false claims to Medicare for Breast Cancer Index (BCI) tests that were alleged to be not reasonable and necessary for the diagnosis and treatment of breast cancer.

The government accused the company of knowingly promoting and performing BCI testing for breast cancer patients who had not been in remission for five years and who had not been taking tamoxifen.  The government alleged that performing BCI testing under these circumstances was not reasonable and necessary based on published clinical trial data and clinical practice guidelines.

This case highlights the need to assure that there is clinical support for providing and billing for services.  In this case, the government took the position that patients who did not meet certain criteria would not benefit from the BCI testing.

Health Care Compliance Resource Portal Launched by OIG

Tuesday, May 1st, 2018

Office Inspector General Launches New Compliance Resource Portal

by John H. Fisher, II, JD, CHC, CCEP

At a recent Health Care Compliance Association (HCCA) compliance institute, the Office of Inspector General announced it had launched a new resource portal focused on compliance issues.  A trip to the OIG’s web site, and sure enough, there is a brand spankin’ new compliance portal.  You can check out the portal at OIG Portal.

On first brush through the portal, it appears most of the items that are accessible already existed prior to the launch of the portal.  The portal creates some organization that did not previously exist to guide providers to various compliance resources the OIG has made available.

 

Contents  Listing of the OIG Compliance Portal

  • Toolkits
  • Provider Compliance Resource and Training
  • Advisory opinions
  • Voluntary Compliance and Exclusions Resources
  • Special Fraud Alerts, Other Guidance, and Safe Harbors
  • Resources for Health Care Boards
  • Resources for Physicians
  • Accountable Care Organizations

This is a site that compliance officers will want to have bookmarked in their browser.  We are likely to see new developments in compliance posted on the portal.  For example, it already references a toolkit on identification of opioid misuse risk will be coming soon to the portal.

When you get a chance, check out the new OIG resource and the tools that are available on the site.  It is definitely something with which people in compliance should have familiarity.  As usual, if you have any questions regarding compliance or other health care legal issues, please don’t hesitate to contact your Ruder Ware health care attorney.

Health Law Firm Opens Green Bay Office

Tuesday, May 1st, 2018

Green Bay Health Care Lawyer – Opening Office in Green Bay Wisconsin

I just wanted to let readers of our health care blog know that Ruder Ware will be opening a Green Bay office and that three Green Bay attorneys will be joining our firm. This will provide us with a presence in the Green Bay/Appleton Markets that will enhance our community presence and enable us to better serve our client in eastern Wisconsin. Our health care and compliance practice with be greatly enhanced as a result of this move.

This move will provide a local platform through which we can better serve our health care clients.

Health Care Law Practice – Green Bay Health Lawyers Ruder Ware

Ruder Ware has a long history of representing health care clients.  The firm recognizes that the highly regulated and complex nature of the industry demands the attention of a team of attorneys who, as a group, monitor constantly evolving laws and regulations and their impact on our health care clients.  At Ruder Ware, we offer a full-service solution to clients as our focus team consists of health care, business, employment, and litigation attorneys with knowledge of the health care industry.   As a result, we are able to take best practices from other industries and apply them to the health care industry, thereby increasing the ability to respond promptly to the rapidly changing health care environment.

Members of the focus team have served on the governing bodies of various health care organizations.  This service has provided our attorneys with the opportunity to counsel the health care community.  

Our dedicated team of attorneys represents health care providers in various matters including:

 Health Care Business Transactions and Corporate Law

Our attorneys have substantial expertise representing various health care providers such as:

Below is the official press release:

Media Contact:
Jamie Schaefer
COO
Ruder Ware, L.L.S.C.
P: 715.845.4336
E: jschaefer@ruderware.com

For Immediate Release

Attorneys Ronald Metzler, Christopher Pahl, and Chad Levanetz to join
Ruder Ware at its new Green Bay Office

WAUSAU, WI – April 27, 2018 – Ruder Ware is pleased to announce the opening of its Green Bay office and that Attorneys Ronald Metzler, Christopher Pahl, and Chad Levanetz will be joining the firm. The new office will be located at 222 Cherry Street, Green Bay, Wisconsin, which is the current location of Metzler, Timm, Treleven, S.C.

Attorney Ron Metzler – Having practiced law for over 30 years, Ron is a well-respected and well-known commercial attorney with close ties to the banking industry.

Attorney Chris Pahl – With his strong ties to the Green Bay community, Chris has built his practice around real estate development and condominium law as well as commercial transactions and estate planning.

Attorney Chad Levanetz – A seasoned litigation attorney, Chad counsels clients in the areas of real estate, construction, and general business disputes.

Stew Etten, Ruder Ware managing partner, stated, “Ruder Ware is always looking for outstanding attorneys to join our firm. With the opportunity to add Attorneys Metzler, Pahl, and Levanetz, the time was right to open a Green Bay office. We’re very excited to have attorneys of their caliber join our team of professionals.”

About Ruder Ware
Founded in 1920, Ruder Ware is the largest law firm headquartered north of Madison. With offices in Wausau, Eau Claire, and Green Bay over 40 attorneys provide legal and business advice to clients with operations of all sizes. Areas of practice include: Employment, Benefits & Labor Relations, Litigation & Dispute Resolution, Business Transactions, Trusts & Estates, and Fiduciary Services. Ruder Ware, Business Attorneys for Business Success. www.ruderware.com

Media Contact:
Jamie Schaefer
COO
Ruder Ware, L.L.S.C.
P: 715.845.4336
E: jschaefer@ruderware.com

CMS Position On Texting Physician Orders

Monday, January 29th, 2018

Texting of Physician Orders : CMS Statement Clarifies Position on Texting

Physician Order Texting RegulationsThe CMS Center for Clinical Standards and Quality/Survey & Certification Group recently released a Memorandum clarifying its position regarding texting of health care information. In S&C 18-10-ALL, dated December 28, 2017, CMS clarifies the following issues:

  • Texting of PHI Within Health Care Team.  CMS says that this is permissible on a secure platform.  Providers should develop policies covering texting among the care team.  Providers may want to consider special conditions, or even limiting or prohibiting this practice.  CMS, HIPAA and other standards need to be considered when developing provider specific policy.  State laws may differ and certain types of information may be subject to special restrictions.
  • Texting of Patient Orders.  Even though texting communication between care team members is permissible, CMS clarifies that texting patient orders is always prohibited; even on a secure platform.
  • Preferred Use of CPOE.  CMS clarifies that Computerized Provider Order Entry (CPOE) is the preferred method for a provider to enter a patient order.  Providers should review their policies regarding acceptable order platforms.  Special attention should be paid to texting practices.  Verbal orders are also an area of significant compliance and liability concerns.  Over-use of verbal orders and non-compliance with authentication requirements is very common and is a significant risk area.

You can reference the CMS Texting Guidance Letter on this issue directly.

I have been posting a series of articles on compliance issues relating to physician orders that you can also reference for additional guidance.  And as always, if you have additional questions, please do not hesitate to contact me thhrough the contact form on this blog or directly through contact information on my law firm web site.

 

Physician Orders Legal and Regulatory Article Series

Physician Order Reimbursement Issues

Physician Orders – Why Are They So Important?

The Verbal Order Minefield

Authenticating Verbal Orders : Compliance Requirements

Third Party Authentication of Verbal Orders

Physician Order – CMS Guidelines on Texting Physician Orders

 

Verbal Orders Documentation and Authentication

Wednesday, January 24th, 2018

The Verbal Order Minefield

Authenticating Verbal OrdersPhysicians often provide orders over the telephone in cases where action must be taken immediately. For example, verbal orders must be given by a physician who is on call or off duty but an issue arises that requires staff to take immediate action. Physician orders are generally effective when they are given, subject to appropriate documentation. Verbal orders are effective when provided verbally, but must be properly recorded in the medical records and authenticated or signed by the ordering physician.

Verbal Order Policies and Procedures

Normally, the facility will have policies in place that provide guidance on how staff should handle verbal orders. Those policies will define who is authorized to receive a verbal order from a physician as well as the process for taking a verbal order. Many facilities use a “read-back” requirement that requires the provider who receives the order to read the order back to the physician and receive confirmation. The receiving provider is required to document the receipt of the verbal order in the chart.

Over-use of Verbal Orders

Medicare policy (and many state laws) clarifies that verbal orders are not to be used as common practice. Verbal orders are not to be used for the convenience of the physician, but only when the patient’s condition or status requires immediate attention and when it is impossible or impractical to enter the order without creating unacceptable delays in needed treatment. Even though verbal orders are to be used infrequently under Medicare policy, their use has become very commonplace in many facilities. Frequent use of verbal orders increases risk in a variety of ways. Verbal orders leave room for error. This can be mitigated by using a read-back process, but risk of misinterpretation or incorrect fulfillment will be enhanced when verbal orders are used. Verbal orders contribute significantly to the risk of medication error and a variety of other potential adverse patient incidents.

Another significant risk of using verbal orders relates to the need to meet authentication requirements. CMS rules direct medical reviewers to disregard orders that are not properly authenticated. All orders, including verbal orders, are required to be dated, timed, and authenticated promptly by the ordering practitioner.

Authentication of Verbal Orders by Ordering Physician

In terms of timing, Medicare guidance requires the ordering physician to sign the verbal order promptly. Some states, such as Wisconsin, require the ordering physician to sign the order within 24 hours of providing the verbal order. Medicare ties into state law requirements in this area. This is an area of significant potential risk for a facility where physician’s routinely use verbal orders during off-shift times. It can be days before the physician is back at the facility. It used to be that reviewers provided a lot of slack on the followup physician signature requirement. With the integration of electronic medical records and the use of electronic signatures, the timing requirements for physician signatures on verbal orders are enforced strictly.

CMS has gotten a bit more lenient on certain delayed medical record entries. Amendments, corrections, and delayed medical record entries are now given credit in medical review. This leniency does not apply with respect to certain types of physician orders. For example, late or corrected entries to support orders for inpatient admission or outpatient observation services are not accepted and are treated as they do not exist on medical review. Again, failure to properly and timely authenticate an “order” in contrast to an “entry,” has reimbursement implications. This makes it critical to assure that orders are completely documented. Verbal order use should be limited to appropriate cases. Verbal orders are over-used in many facilities. When verbal orders are used, prompt authentication requirements should be enforced. Strict time limitations may exist under state law. For example, Wisconsin requires verbal orders to be be signed by the ordering provider within 24 hours.

Physician Orders Legal and Regulatory Article Series

Physician Order Reimbursement Issues

Physician Orders – Why Are They So Important?

The Verbal Order Minefield

Authenticating Verbal Orders : Compliance Requirements

Third Party Authentication of Verbal Orders

Physician Order – CMS Guidelines on Texting Physician Orders

Physician Orders : Why Are They So Important?

Wednesday, January 24th, 2018

The Importance of Physician Orders in Health Care

importance of physician ordersIn my last article on physician orders, I more or less ranted about the lack of a clear regulatory definition of physician orders. Yet, physician orders serve a variety of important purposes including communicating the physician’s direction for ancillary services and required diagnostic tests and securing the ability to receive reimbursement for services that flow from the physician’s encounter with the patient. The systematic use of physician orders also serves as proof that the physician is directing services to the patient and that conditions of participation of the facility, which require a physician driven process, are being complied with on a systematic basis.

Physician Orders as Conditions of Participation

Medicare law draws a distinction between conditions of participation and conditions of payment. Conditions of participation are compliance items, failure of which can result in corrective action and citations on survey. Failure of physician orders can result in survey deficiencies. The good news here is that a facility will normally be able to take action to correct a cited deficiency. If the failure of physician orders is systematic, other sanctions can attach; even including exclusion from governmental health program. But the garden variety, relatively isolated failure of a physician to timely sign an order can normally be corrected without devastating consequences.

Physician Orders As Condition of Payment

Physician orders can also be conditions of payment for specific services flowing from the physician’s encounter with the patient. This is where the real, serious regulatory exposure for failure to document physician orders occurs. Where an order is a condition of payment, claiming and accepting reimbursement results in an overpayment that should be repaid to Medicare. Failing to repay within 60 days of identification of the overpayment results in significant False Claims Act penalties that can far outweigh the original overpayment amount. Identification occurs when a provider “should know” that an overpayment exists which is why health care providers need to proactively look for missing physician orders as an identified risk as part of their compliance programs.

Physician Order Documentation Requirements

Health care providers will be familiar with the adage that “if it is not documented, it didn’t happen.” The same is true with respect to physician orders. A physician order that is not properly documented will be treated by payors as if the order does not exist. Even failure of seemingly technical failures to sign orders on a timely basis can result in payment denial or overpayment claims. In these cases, the provider is not entitled to reimbursement. If reimbursement is received, an overpayment will exist and I describe above the consequences of not repaying overpayments.

So it is important for physicians and other providers to understand the requirements for physician orders as they pertain to the services that they provide. Not getting it right can have very serious consequences. False Claims Act penalties are triple the original overpayment, plus up to $22,000 per claim. A systematic failure to properly use physician’s orders can result in draconian levels of damages under the False Claims Act.

Physician Orders Legal and Regulatory Article Series

Physician Order Reimbursement Issues

Physician Orders – Why Are They So Important?

The Verbal Order Minefield

Authenticating Verbal Orders : Compliance Requirements

Third Party Authentication of Verbal Orders

Physician Order – CMS Guidelines on Texting Physician Orders

Physician Orders – Definition and Reimbursement Implications

Wednesday, January 24th, 2018

Physician Orders – Big Implications but Few Definitions

Physician Ordering Services Physician OrdersI wanted to talk a bit about physician orders. Physician orders hold a great deal of significance in health care. The root purpose of a physician order is to direct other providers to furnish certain services. Services ordered by a physician might include things like therapy services, skilled nursing services, home health, diagnostic testing, and a variety of other therapeutic and/or diagnostic services that might flow from the physician’s examination of the patient.

In addition to the practical application of directing care, health care payors look to physician orders to make payment determinations. The Medicare program places a great deal of importance on physician orders to support claims for ancillary and diagnostic services. Certain services require a physician’s order as a prerequisite to payment on a claim for service. In other cases there may be no direct, fee-for-service payment implication to a physician’s order, but they are still critical to patient safety and to communicate matters that may impact care and treatment of patients.

A few weeks back, my trials and tribulations as a health care compliance lawyer resulted in my need to locate a definition of what constitutes a physician’s order. I looked in the Medicare regulations and was surprised to find that there is no statutory or regulatory definition of what constitutes the order of a physician. This seemed odd given the importance of physician orders as conditions for payment of many Medicare claims. There are references throughout the regulations that require physician orders. I was finally able to locate a definition in a CMS Policy Manual. But if push comes to shove in the context of a case, these policy manuals are not binding on the interpretation of regulatory terms. CMS may define physician orders internally, but that does not necessarilly mean that a court will uphold that definition.

Some states do a better job than Medicare at defining what constitutes a physician’s order. Medicare policy sometimes defers to state law, particularly regarding some of the technical aspects of physician orders such as what constitutes a valid electronic signature. State law should always be referenced when determining issues relating to physician orders, attestation, signatures, and other issues. This does not always provide clarification and, in fact, sometimes it causes confusion. But it is necessary for a full analysis and identification of where there may be uncertainty.

So no I am inspired to do some further exploration on physician orders. When are they necessary? When are they required? What technical requirements apply? Stay tuned to this blog for additional articles and hopefully some fairly comprehensive coverage of physician orders.

Physician Orders Legal and Regulatory Article Series

Physician Order Reimbursement Issues

Physician Orders – Why Are They So Important?

The Verbal Order Minefield

Authenticating Verbal Orders : Compliance Requirements

Third Party Authentication of Verbal Orders

Physician Order – CMS Guidelines on Texting Physician Orders

Medicare’s New Low Volume Settlement Process

Tuesday, January 23rd, 2018

Expressions of Interest Can Lead to Medicare Settlement for Eligible Appellants

The Centers for Medicare and Medicaid Services recently announced that beginning February 5, 2018, it will begin accepting what it terms as “expressions of interest” for a limited settlement from providers who have fewer than 500 appeals pending at the Office of Medicare Hearing and Appeals and the Medicare Appeals Council.  The option is made available to certain Medicare fee-for-service providers, physicians and suppliers.  The new administrative settlement process will be to settle portions of pending appeals that involve $9,000 or less total billed amounts.  The trade-off would be a timely partial payment of 62% of the net new amount that is approved by Medicare.

Providers and suppliers who meet qualifications can commence the process by submitting an Expression of Interest (EOI) using the process established by CMS.

Eligible appellants include Medicare Part A and Part B providers, physicians, and suppliers that have less than than 500 appeals pending.  Some appellants are ineligible for participation in the program.  Ineligible appellants include beneficiaries, enrollees, their family members, or estates. State Medicaid Agencies, Medicare Advantage Organizations (Medicare Part C), those that filed for bankruptcy or expect to file for bankruptcy, some appellants who may have had False Claims Act problems or other program integrity issues.

The details of the program and various forms and guidance are included on the CMS website.  Medicare Low Volume Appeal Program

Self Disclosure Settlements Help Identify Compliance Risk Areas

Friday, January 27th, 2017

Self Disclosure Settlements Indicate Areas of Compliance Risk

Compliance officers can identify areas of potential compliance risk in a number of ways.  One way is to examine self disclosure settlements under the Stark Law and OIG self disclosure process.  This helps indicate issues that other providers are disclosing to the government and can help identify potential risk areas within your organizations.

Here are a handful of self disclosure settlements that have been published:

A Massachusetts hospital settled several Stark law violations involving failure to satisfy the requirements of the personal services arrangements exception with department chiefs and medical staff for leadership services, and for arrangements with physician groups for on-site overnight coverage for patients at the Hospital. Settlement Amount – $579,000.00

An Ohio physician group practice settled two Stark law violations involving prescribing and supplying a certain type of DME that did not satisfy the requirements of the inoffice ancillary services exception. Settlement Amount – $60.00

A Mississippi critical access hospital settled several violations of the Stark law relating to its failure to satisfy the requirements of the personal services arrangements exception for arrangements with hospital and emergency room physicians. Settlement Amount – $130,000

A California hospital settled two Stark law violations that exceeded the annual nonmonetary compensation limit for physicians. Settlement Amount – $6,700

A hospital in Georgia settled violations involving two physicians and the annual nonmonetary compensation limit. Settlement Amount – $4,500

A physician group practice in Iowa settled Stark law violations after disclosing that its compensation for certain employed physicians failed to satisfy the requirements of the bona fide employment relationship exception. Settlement Amount – $74,000

An Arizona acute care hospital settled a Stark law violation after disclosing a single physician arrangement that did not meet the personal service arrangements exception. Settlement Amount – $22,000

A hospital located in North Carolina settled six Stark law violations for $6,800 after disclosing that it exceeded the calendar year nonmonetary compensation limit for two physicians during three consecutive years. Settlement Amount – $6,800

An Alabama hospital resolved a Stark violation involving a rental charge formula that did not satisfy the requirements of the rental of equipment exception. Settlement Amount – $42,000

A hospital in Maine settled potential Stark law violations relating to arrangements with a physician and physician group practice that failed to satisfy the requirements of the personal services exception. Settlement Amount – $59,000

A Massachusetts hospital settled violations concerning arrangements with two physician practices for call coverage that did not satisfy the personal service arrangements exceptions. Settlement Amount – $208,000

A hospital located in Florida resolved arrangements with three physicians that did not satisfy the personal service arrangements exception. Settlement Amount – $22,000

A Missouri hospital settled Stark law violations involving two physicians for the provision of dental services that did not meet the requirements of the personal service exception. Settlement Amount – $125,000

A North Carolina-based general acute care hospital and its hospice agreed to settle several Stark law violations involving arrangements and payments that failed to meet the physician recruitment, fair market value, and personal services arrangement exceptions. Settlement Amount – $584,700

A hospital in California settled a Stark law violation, which arose from its failure to meet the physician recruitment exception. Settlement Amount – $28,000

An acute care hospital in California settled a violation of the Stark law after disclosing that it failed to meet the personal service arrangements exception for an on-call arrangement with a physician. Settlement Amount – $1,600

A South Carolina general acute care hospital settled several violations of the Stark law involving arrangements with physicians and physician group practices that failed to satisfy the requirements of the FMV compensation exception, the personal services arrangements exception, and the rental office space exception. Settlement Amount – $256,000

A Massachusetts acute care hospital settled several Stark law violations involving arrangements with physicians that failed to satisfy the definition of “entity”, the rental office space exception, and the personal services arrangement exception. Settlement Amount – $199,400

A Louisiana acute care hospital used the SRDP to resolve violations related to professional service arrangements with physicians, a professional staffing organization, and a physician group practice. Settlement Amount – $317,620

A Minnesota hospital agreed to settle a Stark violation that stemmed from a recruitment arrangement that failed to satisfy the requirements of the physician recruitment exception. Settlement Amount – $760.00

A Texas rehabilitation hospital resolved several Stark violations through the SRDP involving arrangements for ownership interests held by certain physicians that failed to satisfy the whole hospital exception. Settlement Amount – $23,730

A general acute care hospital in New York agreed to settle a violation of the Stark law that involved an arrangement that failed to satisfy the requirements of the rental office space exception. Settlement Amount – $78,500

A Florida acute care hospital settled several Stark violations relating to arrangements with multiple physicians for emergency cardiology call-coverage that did not satisfy the requirements of any applicable exception. Settlement Amount – $109,000

A general acute care hospital in Florida settled several Stark violations involving arrangement with a group practice to provide residency program services, a physician to provide electronic health records subject matter expert services, a physician to provide Medical Director services, and a physician to provide leadership services for a hospital committee, none of which satisfied applicable exceptions. Settlement Amount – $76,000

An Alabama acute care hospital resolved a violation of the Stark law involving an arrangement with a physician group practice for the rental of office space that did not satisfy the exception. Settlement Amount – $187,340

A Wisconsin critical access hospital used the SRDP to resolve a violation of the Stark law relating to an arrangement with one physician for the provision of emergency room call coverage services at adjacent walk-in clinics that failed to satisfy any applicable exception. Settlement Amount – $12,724

A Tennessee acute care hospital settled a Stark violation involving an arrangement with one physician for the supervision of cardiac stress tests that failed to satisfy the requirements of any applicable exception. Settlement Amount – $72,270

An acute care hospital in Pennsylvania resolved several Stark violations related to arrangements for Medical Director services with certain physicians and a physician practice that did not satisfy the personal services exception. Settlement Amount $24,740

A general acute care hospital in Ohio used the SRDP to settle violations of the Stark law that involved arrangements with certain physicians for EKG interpretation, medical director services, Vice-Chief of Staff services, and hospital services that did not satisfy the requirements of any applicable exception. Additional violations stemmed from arrangements with certain physicians and a physician group practice for the donation of EHR items and services that failed to satisfy the applicable exception. Settlement Amount $235,565

A Texas acute care hospital settled a Stark violation involving an arrangement for case management physician advisor services with a physician that did not satisfy the requirements of any applicable exception. Settlement Amount – $54,108

A physician group practice in Louisiana resolved a Stark violation relating to arrangements with two physicians that failed to satisfy the requirements of the in-office ancillary services exception. Settlement Amount – $13,572

A non-profit community hospital in Minnesota settled a violation of the Stark law that involved an arrangement with a physician group practice for the rental of office space and provision of support services that failed to satisfy the requirements of any applicable exception. Settlement Amount – $9,570

A California acute-psychiatric hospital resolved two Stark violations relating to arrangements with two physicians for the provision of psychiatric services that did not satisfy the requirements of any applicable exception. Settlement Amount – $67,750

A North Carolina acute care hospital used the SRDP to settle several violations of the Stark law relating to arrangements with a physician to provide Medical Director Services, a physician group practice to provide medical coding and consulting services, and a physician and a physician group practice for the lease of office space, that failed to satisfy the requirements of any applicable exception. Settlement Amount – $87,110.00 19.

A general acute care hospital in Texas resolved a Stark violation involving an arrangement with a physician to provide utilization review services that did not satisfy any applicable exception. Settlement Amount – $82,055 20.

A California acute care hospital resolved several violations of the Stark law involving arrangements with three physicians for the provision of on-call services to the Hospital’s emergency department that did not satisfy the requirements of any applicable exception. Settlement Amount – $42,630 21.

An acute care hospital in Oklahoma used the SRDP to settle several Stark violations relating to arrangements with four physicians for the provision of electrocardiogram interpretation services that failed to satisfy the requirements of the personal services exception. Settlement Amount – $124,008

Off-Campus Provider-Based Departments Neutrality

Friday, December 23rd, 2016

Off-Campus Provider-Based Departments Site-Neutrality

The 21st Century Cures Act contains new provisions that prohibits the Centers for Medicare & Medicaid Services (CMS) from paying different rates for services provided in for services furnished in off-campus provider-based department (PBD) of a hospital.    The CY 2015 Outpatient Prospective Payment System Final Rule (79 FR 66910-66914) created a HCPCS modifier for hospital claims that is to be reported with every code for outpatient hospital items and services furnished in an off-campus provider-based department of a hospital. This 2-digit modifier was be added to the HCPCS annual file as of January 1, 2015, with the label ‘‘PO.’’ Reporting of this new modifier was voluntary for CY 2015, with reporting required beginning on January 1, 2016.

The 21st Century Cures Act revises this policy beginning January 1, 2017, with some exceptions. One exception is for OPBDs that billed for services furnished as of November 2, 2015 (the date the law was enacted). The 21st Century Cures Act expounds on this exception and permits providers to be grandfathered under the old rules if the Secretary received a properly filed provider-based attestation for the site from the provider prior to December 2, 2015.  Furthermore, if  an off-campus provider-based department was in development as of November 2, 2015 and made a timely filing of a certification to CMS,  the old rules can be applied even though the department was not operating as of the cut-off date.

John H. Fisher, CHC, CCEP is a health care attorney at the Ruder Ware law firm.  John is actively involved representing clients on legal and compliance issues.  He has represented clients in creating compliance programs and in a variety of operational issues.  He also assists providers in addressing risk areas and potential compliance issues including preparing self-disclosure and working with the government to resolve disclosed compliance issues and overpayment.  John consults as a subject matter expert and provider legal backup to other attorneys and law firms from around the country on specialized compliance, regulatory and health care issues.  John has followed legal issues impacting health care provider for over 25 years.  As such, he is knowledgeable on the current legal standards as well as the historic perspective that is often relevant to an appropriate analysis.  

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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The Health Care Law Blog is made available by Ruder Ware for educational purposes and to provide a general understanding of some of the legal issues relating to the health care industry. This site does not provide specific legal advice and you should not use the information contained on this site to address your specific situation without consulting with legal counsel that is well versed in health care law and regulation. By using the Health Care Law Blog site you understand that there is no attorney client relationship between you and Ruder Ware or any individual attorney. Postings on this site do not represent the views of our clients. This site links to other information resources on the Internet; these sites are not endorsed or supported by Ruder Ware, and Ruder Ware does not vouch for the accuracy or reliability of any information provided therein. For further information regarding the articles on this blog, contact Ruder Ware through our primary website.