NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY, INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
JANUARY, 2010 - Volume 1, Issue 1 |
|
|
| In This Issue |
Physical Therapists Beware: New Jersey Physical Therapy Practices Must Be Professional Corporations and Owned Only by Licensee
The American Recovery & Reinvestment Act ("ARRA") Expands and Extends HIPAA Provisions
For Your Information - Q & A
"When Someone Comes Knocking On Your Door" | |
|
| Welcome Readers |
|
Welcome to the first issue of our complimentary newsletter. News and Views for PTs will provide you with pertinent information relative to your profession, news briefs and answers to questions facing physical therapists in the daily operation of their practices. The principles of our firm are two extremely experienced physical therapy practitioners and a health care attorney.
We feel that our services and knowledge are quite unique, in that we combine extensive physical therapy practice management knowledge with legal evaluation and assistance. As any practitioner today realizes, the legal and regulatory issues in physical therapy practice have become front and center in health care service delivery. It is now almost impossible to separate these issues in practice, and having useful feedback and guidance in these areas has become essential. Our combined experience, knowledge, skill and understanding can be of valuable assistance to you as you strive to operate an efficient, profitable, and legally compliant physical therapy practice.
We are hopeful that you find this inaugural issue of News and Views for PTs and those that follow informative and helpful.
|
| Physical Therapists Beware: New Jersey Physical Therapy Practices Must Be Professional Corporations and Owned Only by Licensee |
| Clarity is not a usual adjective describing the law. In particular, the law regarding the corporate practice of physical therapy has been muddled by seeming overlapping statutes and lack of direction from regulators and even by legal advisors. Now, these 'thousand points of light' have gained focus from some recent actions in New Jersey.
New Jersey courts have affirmed that which should have been clear to Physical Therapists and their attorneys:
- New Jersey physical therapy practices must be set up as either a sole proprietorship, partnership or professional corporation;
- New Jersey physical therapy practices must not be owned, in part or in whole, by non-licensed professionals. For example, non-licensed spouses, grandparents and business people, among others, may not be owners.
The rationale of New Jersey court decisions, and the underlying statutes and regulations, rest on serious considerations. Non-licensee owners are not bound by the professional standards of licensees, and as a result, patient care may be at risk. Secondarily, the sharing of profits among non-licensees and licensees constitutes fee splitting, and is, per se, not legal.
While these points seem straightforward, many advisors, such as lawyers and accountants, have not been too clear on these issues and their ramifications, since many Physical Therapy practices are set up as regular business corporations, some with non-licensed owners. Adding insult to injury, the mix of licensed and non-licensed owners opens the door for payers to bring a lawsuit against practice under the New Jersey Insurance Fraud Prevention Act ("Fraud Act"), the underlying fraud being the mixed ownership structure. The Fraud Act provides that an insurance company can recover compensatory damages including attorney's fees and costs. Treble, or triple damages, may also be recovered under certain circumstances.
|
|
|
|
| The American Recovery & Reinvestment Act ("ARRA") Expands and Extends HIPAA Provisions |
| ARRA, better known as the federal economic stimulus act signed into law by the President on February 17, 2009, includes language that substantially strengthens the Health Insurance Portability and Accountability Act ("HIPAA").
In the past, business associates, firms that perform function for or furnish services to a health care provider that transmits individually identifiable health information in electronic form, were covered by the HIPAA Privacy and Security Rules but in a less stringent way than the health care provider itself was covered.
The extended clout of ARRA'S HIPAA amendments now impose on business associates many of the basic requirements of HIPAA such as the need to appoint security officials, develop written policies and procedures and train their workforce in the correct manner to handle protected individual health information.
Under the new more rigorous provisions, business associates now have to conform to many of the core requirements of HIPAA, not just agree by contract to impose safeguards on its use of individually identified health information.
The new act ("ARRA") also expands and significantly increases the civil monetary penalties available to the government for HIPAA violations. For instance, previously the penalty was typically $100 for each violation, now the penalty has been increased up to $1,000 per violation due to "reasonable cause and not willful neglect" with a maximum of $100,000 and even higher penalties for violations due to willful neglect.
An additional extended provision of ARRA requires HHS to conduct periodic audits to ensure that both health care providers and business associates are in compliance. In addition state attorney generals may now bring enforcement action against a covered entity or business associate that violate HIPAA Privacy & Security Rules and attorneys' fees may be assessed against the violators.
|
| For Your Information - Q & A |
| Question: I am somewhat confused as to whether every Medicare beneficiary should fill out an ABN before any treatment in our office, or just based on diagnosis, $ amount of cap used? Please clarify who should be filling out this form.
Response: You should absolutely not have every Medicare patient complete an ABN. The Advanced Beneficiary Notice of Non-coverage (ABN) (Form CMS-R-131), formerly the "Advanced Beneficiary Notice", is to be used when you believe that a claim for service will not be covered by Medicare, and is required when this is the case. If you believe that your patient may require services in excess of the "cap", you may use the ABN to inform the patient of this fact, but it is not specifically required by the Medicare regulations, but notifying the patient of this fact is required by the NJ PT regulations.
If you were to use the ABN 100% of the time, you would be telling the Medicare contractor and your patients that you believe your services are never covered or necessary, which could obviously create substantial compliance and legal issues, at both the state and federal level. Also note that this issue is not related solely to Medicare claims and notification is required of you, not your patient.
We encourage you to visit the CMS Website for more information.
Question: Can you tell me if Physical Therapy Assistants need an NPI number?
Response: Under the NPI Final Rule (69 FR 3434), health care providers who are covered entity under HIPAA were required to obtain an NPI and to use it to identify itself as a health care provider in HIPAA transactions as of May 23, 2007. Since these transactions would not normally list a PTA as the provider of service (particularly Medicare claims) they would not be a "covered entity." Thus, Physical Therapist Assistants are not explicitly required to obtain an NPI, but they would probably be best advised to obtain one just the same.
Lastly, the correct term is physical therapist assistant, not physical therapy assistant.
Question: Are there specific reporting requirements in NJ for PTs, like for when a PT is disciplined by another state or has been convicted of some crime?
Response: The NJ Administrative Code requires PTs to report any disciplinary action taken by another state (jurisdiction) within 30 days of receiving a notice of such action. While there may be no requirement in the PT regulations to report a criminal conviction when it occurs, information on such convictions can be requested at any time, such as when licenses are renewed. In addition, while the licensee him/herself may not be required to report such information prior to renewal, others with knowledge related to such convictions are required to report that knowledge under what is commonly referred to as the Cullen law.
References:
N.J.A.C. 13:39A-3.7 Notification of change of address; service of process
(c) All licensees shall, within 30 days of receiving a notice of disciplinary action taken against the licensee in another jurisdiction, report to the Board in writing his or her receipt of such notification.
N.J.S.A. 45:1-37 Notification to division of impairment of health care professional.
12. a. A health care professional shall promptly notify the division if that health care professional is in possession of information which reasonably indicates that another health care professional has demonstrated an impairment, gross incompetence or unprofessional conduct which would present an imminent danger to an individual patient or to the public health, safety or welfare. A health care professional who fails to so notify the division is subject to disciplinary action and civil penalties pursuant to sections 8, 9 and 12 of P.L.1978, c.73 (C.45:1-21, 45:1-22 and 45:1-25).
Note: Responses to questions appearing in this newsletter are for educational purposes only, and cannot be construed as legal advice. Legal advice and opinion can only be provided by a licensed attorney in the state in which you practice.
|
| "When Someone Comes Knocking On Your Door" |
|
Regulated licensed healthcare practitioners are obligated to provide certain information upon request by both federal and state agencies.
Some of the agencies that could be requesting information, for various reasons, could be insurance companies, attorneys, State Board of Physical Therapy Examiners, Medicare, Division of Fraud, and yes even the IRS.
The most important thing you can do when something is requested is to not do anything at all. Many practitioners have a tendency to feel somewhat intimidated and provide the agency with the information requested without even thinking about the purpose of the request (would you agree to an IRS audit without consulting with your accountant?). It is extremely important that the practitioner analyze and determine the purpose of the information and then to seek consultation on the appropriateness of the request. The worst thing you can do is provide an agency with information without understanding what they are looking for and the purpose of the request.
Who are you going to call? Certainly at the very least, you should check with a knowledgeable physical therapist in your state and there are many physical therapist consultants throughout the country that have an intimate knowledge of the laws in physical therapy and can direct you on how to best respond. There is a good chance you will need legal advice since many of the requests received by physical therapists are based on problems in many areas such as billing, documentation, utilization of appropriate personnel, etc. One of the biggest requests, by the Board of Physical Therapy, is information regarding "Your Global Practice in Physical Therapy" after a complaint has been filed by a consumer or another physical therapist. A large number of the complaints have been based on a complaint from someone observing the practitioner utilizing ancillary personnel in an inappropriate fashion. There have been large corporations that have been sanctioned by the federal government based on whistle blower suits for this action.
Here are some common sense suggestions to follow when information is requested:
- Don't engage in any telephone or any written communications until discussing the request with your advisors.
- Always keep meticulous records, both patient records and any other communications regarding your physical therapy practice.
- Seek more information if you don't understand exactly why the agency is requesting this information.
In summary, the best action one can take is no action at all until you discuss the request with your advisors. There are many physical therapists that have run into severe problems because they are not knowledgeable in the laws and how they affect them. The best money that can be spent would be on a physical therapist consultant and/or an attorney to guide you through these requests with the final result being the best possible outcome without any fines, or punitive action. Physical therapists have to have intimate knowledge of the Rules and Regulations that they have to follow both on the state level and federal level to be able to provide services to their patients in a safe, effective and legal manner.
The following websites may be of interest:
It is incumbent on each and every physical therapist to read, understand, and follow the Rules and Regulations. There is no agency that tolerates the answer "I didn't know" when this information is available to all through the various agencies including information that can be obtained very easily off their websites.
|
|
Mailly, Inglett & Barmak, LLC | |
|
Ken Mailly, PT, NJ Lic. # NJ40QAOO335900
Ken is a graduate of the State University of New York at Downstate Medical Center, and is completing his Master's in Public Administration at Seton Hall University, with a concentration in Health Care Policy and Management. He is also certified as an Ergonomic Specialist.
In addition to his graduate studies, with well over 2,500 hours of continuing physical therapy education, Ken has amassed an extremely diverse and extensive knowledge of the clinical practice of physical therapy, rehabilitation, and practice management. Ken's primary clinical focus is in orthopedics, chronic soft tissue disorders, and management of patients with bleeding disorders.
Along with this clinical knowledge base, Ken has devoted the last 10 years to the study of regulation, legislation, and reimbursement for physical therapy & rehabilitation services. He has served as an expert witness, on behalf of both plaintiffs and defendants, in numerous malpractice cases. He has also been consulted on state, federal, and third party payer inquiries regarding physical therapy and rehabilitation billing, regulatory, and legal issues.
Ken is a partner in Mailly & Inglett Consulting. His focus is on compliance with professional standards, state and federal regulations, as well as practice management strategies.
Barry G. Inglett, PT, CHT, Cert. MDT, NJ Lic # NJ40QA00146200
Barry is a graduate of Columbia University, a Certified Hand Therapist and a Credentialed McKenzie Therapist. He is a physical therapist and co-owner of Wayne Physical Therapy & Spine Center, a private practice established in 1977. Barry is also a partner in Mailly & Inglett Consulting, working with both physical therapists and Payers.
Barry is a guest lecturer for UMDNJ's Physical Therapy Program as well as a clinical instructor for several colleges including Columbia University, New York University, Temple University, Stockton State College, Kean College and the University of Medicine and Dentistry's Physical Therapy Program. He is also an instructor for HMW (Human Mechanical Wellness) Seminars, specializing in mechanically oriented treatment programs for the spine and extremities.
Barry has been retained by numerous insurance companies as well as the New Jersey Attorney General's Office offering expert witness testimony in physical therapy practice. He has been involved in utilization review and reimbursement issues in physical therapy for over 20 years. Barry also instituted, and was retained as the lead expert, in the largest PT fraud case in NJ history (Cobo v. MTF). He also served as a physical therapy consultant from 1997-2005 for Horizon Healthcare running the NJ Plus pre-certification program. Barry has served on the New Jersey Board of Physical Therapy for the past eight years and has also served as the Chairman of the Board of Physical Therapy.
David S. Barmak, Esq.
David S. Barmak, Esq. received a JD from Cornell University and a BA from Duke University. The Law Offices Of David S. Barmak, LLC was established in 1984. David is licensed to practice law and has clients in the states of New York, New Jersey, Pennsylvania and Connecticut.
David's legal focus is in the areas of corporate compliance, risk management, human resources and operational legal affairs.
David has a strong background in operations, having served as both the Associate Administrator and General Counsel for a large New York Certified Home Health Agency, initiating and directing a New York Licensed Home Care Services Agency as well as owning and operating a Durable Medical Equipment company. David also provides defense of enterprises, directors, officers and other professionals accused of misconduct.
For more information, please contact us:
|
|
| © Copyright, 2010. Mailly, Inglett & Barmak, LLC. All rights reserved. No portion of these materials may be reproduced by any means without the advance permission of the author. | |
|
|
