Healthcare Law Blog

Coronavirus: Section 1135 Waivers Bring Relief to Healthcare Providers

Invoking powers under the National Emergency Act and the Stafford Act on March 13, 2020, the President declared a national emergency, which, in turn, authorized the Secretary of Health and Human Services to waive conditions of participation requirements for payment for healthcare providers through waivers provided under Section 1135 of the Social Security Act.  The 1135 waivers do not replace 1115 waivers that require states to individually submit requests for waiver of selected Medicaid requirements, but the 1135 waivers are designed to temporarily give healthcare providers more flexibility in providing services during the pandemic crisis. The 1135 waiver is very helpful but does not address all situations or answer all questions, and it creates ambiguity in certain circumstances.   More >

"Incident to" Billing - Easy to Get Wrong

Billing for medical services is never easy. Despite attempts by the Centers for Medicare & Medicaid Services (“CMS”) to simplify the rule regarding “incident to” billing for Medicare services, it remains misunderstood by a large swath of providers. This proves problematic, as incorrect billing practices may lead to overpayments and False Claims Act violations. Billing for “incident to” services is an important mechanism to reflect the actual value of mid-level services provided under the specific plan of a physician. When properly followed, the “incident to” rules allow physicians to bill for services provided by non-physician practitioners as if they were performed by the physician at physician reimbursement rates. Additionally, the non-physician provider can be an employee, an independent contractor or even a leased employee, provided that they are supervised by a physician and the requirements are met. Because of the confusing nature of allowing a physician to bill for services he or she did not directly provide to the patient, serious landmines exist that can create problems if the rules are not scrupulously followed and documented. More >

Watch out MCOs--What to do with Medicaid Managed Care Organizations’ Payment Denials. Medicaid’s Findings of Alleged Overpayments—Relief?

With reported revenues in the billions of dollars and net profits not far behind, insurance companies providing a Medicaid Managed Care product are making huge profits on Kentucky’s Medicaid business.  Across the country, lawsuits are being filed that go so far as to allege that these Medicaid Managed Care Organizations (“MCOs”) have been unjustly enriched and have made fraudulent misrepresentations, as well as negligent misrepresentations to providers and their staff. WellCare, in particular, is the subject of a new action in Florida based, in part, on its Kentucky Medicaid business.  While these lawsuits create a very important way to address reimbursement issues, Kentucky providers have a new avenue to pursue claims against MCOs.  In April of 2016, the Kentucky legislature directed that health care providers have a process by which a Medicaid MCO’s final decision denying a healthcare service or claim could be reviewed and appealed.  Under the statute, providers could receive an independent, third-party review of denied Medicaid managed-care claims, as well as an administrative process for review. Prior to the new process in Senate Bill 20, the only avenue for appeal was to the MCO itself or through the Department of Insurance’s policy of reviewing claims regarding failure to make prompt payment, which was a process established by policy, not regulation.   Finally, in December 2016, the final regulations implementing the statute and providing the process for appeal were promulgated by Kentucky’s Department for Medicaid Services (“DMS”), making available long-awaited relief for health care providers facing denied claims from Medicaid MCOs.  More >

Recap of the Webinar, "What Providers Should Know: Overpayments and the False Claims Act"

On May 24th and 25th, 2016, McBrayer held a webinar on what providers should know regarding overpayments and the False Claims Act.  Lisa English Hinkle and Chris Shaughnessy, McBrayer healthcare law attorneys, guided participants through the interplay between overpayments from various federal healthcare programs and violations of the False Claims Act that can accrue heavy penalties. For further information on this webinar, contact McBrayer’s Marketing Director, Morgan Hall.

Some of the information shared by the presenters is also summarized below. More >

Webinar - What Health Providers Should Know: Overpayments and the False Claims Act

When CMS released its Medicare Fee-for-Service 2015 Improper Payments Report, Kentucky’s projected overpayment rate was a hefty 15.4%, bringing Kentucky in among the top ten states for overpayment. As healthcare providers should know, failure to report identified payments can lead to violations of the False Claims Act. CMS recently finalized the infamous “60-day rule,” which governs how overpayments can become False Claims Act violations, and practitioners should be fully aware of how overpayments are identified and reported for the purposes of the rule, lest they be subject to extreme penalties. With these fraud and abuse rules working together to provide stiffer penalties for overpayments, what can practitioners do to prevent them?  More >

New Stark Law Exception Breathes Life into Primary Care, Especially in Underserved Areas

With the recent and significant shortages of primary care providers, the Centers for Medicare & Medicaid Services (“CMS”) recently created a rather important exception to the Stark Law as a means to expand access to primary care and mental health care through incentives for non-physician practitioners.  The Stark Law prohibits referrals for Medicare and Medicaid services from physicians to other entities if the physician has a financial relationship with that entity, such as ownership, investment or a structured compensation arrangement. Under the new exception, hospitals, federally qualified health centers (“FQHCs”) and rural health clinics (“RHCs”) may give financial assistance to a physician or a physician practice to hire a non-physician provider (“NPP”), and this relief opens the door for expanded practices in primary care and mental health at a time when the need is critical. More >

CMS finalizes the 60-day overpayment rule and providers can breathe a little easier

The wait is over – in February, the Centers for Medicare & Medicaid Services (“CMS”) released its Final Rule on identifying, reporting, and returning overpayments to the Medicare and Medicaid programs. This rule is the result of provisions in the Patient Protection and Affordable Care Act (“ACA”) which created a 60-day safe harbor during which providers can identify overpayments by the two major federal healthcare programs. If a provider fails to report an overpayment within 60 days of the date that it was identified, the overpayment may be considered a violation of the federal False Claims Act (“FCA” - for more information on the FCA, please read my earlier blog posts). The Final Rule implementing this provision became effective on March 14, 2016. More >

Supreme Court Rejects Private Suits to Challenge Medicaid Rate Reductions

One of the areas of healthcare impacted heavily by the Great Recession beginning in 2007 was Medicaid reimbursement. Cash-strapped states, in an attempt to alleviate budgetary issues, reduced Medicaid provider reimbursement rates. These rates often fell below the actual cost of care to the providers themselves, which in turn limited the ability of providers to provide care and Medicaid beneficiaries to access care. In response, healthcare providers challenged these rate cuts using a provision of federal law that requires states that accept Medicaid funds to “assure that payments…are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population of the geographic area.”[1] Over the years, providers have mounted challenges to rates using this provision – referred to colloquially as Section 30(a) – with varied results as the law itself change over the years. With the decision in Armstrong v. Exceptional Child Center, Inc.,[2] in March of 2015, however, the U.S. Supreme Court effectively ended the use of Section 30(a) as a viable means to challenge reduced reimbursement rates.

[1] 42 U.S.C. §1396a(a)(30)(A).

[2] Armstrong v. Exceptional Child Center, Inc., 135 S.Ct. 1378 (2015). More >

Primary Care Providers – Are you feeling the pinch?

It was nice while it lasted – due to a provision of the Patient Protection and Affordable Care Act (“ACA”), services furnished by certain primary care providers (“PCPs”) were subject to an enhanced payment rate for Calendar Years 2013 and 2014. These PCPs had to have (a) been Board certified in the specialty designation of family medicine, general internal medicine or pediatric medicine or have a subspecialty designation recognized by specific boards or associations, or (b) furnished more than 60% of claims in specific evaluation and management or vaccine administration services under certain codes to have been eligible for these enhanced payments.[1] The payments were raised to the level of the Medicare Part B fee schedule rate (unless the actual billed charge for the service was lower), and providers had until April 1, 2013 to self-attest to being eligible.[2] The increase applied to both fee-for-service and managed care Medicaid plans. More >

RHCs and FQHCs – It’s time to take a second look at Alternate Payment Methodology

In July of 2014, Kentucky Medicaid established an Alternate Payment Methodology (“APM”) for all Federally-Qualified Health Centers (“FQHCs”) and Rural Health Clinics (“RHCs”) as an alternative to the all-inclusive encounter rate per patient under the standard prospective payment system (“PPS”) of 42 U.S.C. 1369a(aa). The APM allows for qualified centers to be reimbursed at a rate of 125% of the 2014 Medicare Upper Payment Limit for RHCs in place of the PPS system ($99.75 per covered visit). There are more advantages to APM than meet the eye, however, and qualified centers currently using PPS method should at the very least reevaluate APM, as proposed changes will make APM even more attractive and potentially risk-free. More >