NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
JULY, 2010 - Volume 1, Issue 7 |
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| Highlights of the Fraud & Abuse Provisions of the Health Care Reform Act of 2010 |
The Office of Inspector General of the Department of Health and Human Services is responsible for the oversight and implementation of the Patient Protection and Affordable Care Act referred to as the Healthcare Reform Act of 2010 as it relates to the Department of Health and Human Services (DHHS).
Following are some of the highlights of the Act's fraud and abuse provisions:
FRAUD PREVENTION:
A compliance and ethics program must be implemented and all employees and agents must follow it. The program must help prevent and detect criminal, civil and administrative violations.
FRAUD DETECTION:
The DHHS may enter into data sharing agreements to identify fraud, waste and abuse as well as to perform enforcement and oversight activities with appropriate Federal agencies. This creates a mechanism for data sharing among the DHHS, the Attorney General and representatives of health plans. Expansion of the Recovery Audit Contractor (RAC) program to detect and correct improper Medicare payments will be expanded to Medicaid. Providers and suppliers will have to continue to be careful with their coding and billing compliance.
FRAUD INVESTIGATION:
The Secretary of the DHHS has the authority to subpoena documents or testimony for program exclusion investigations. In addition with regard to criminal penalties involving health care programs a person need not have actual knowledge of the legal provision creating the action or the specific intent to commit a violation. The new law allows the DHHS Secretary to more easily suspend payments to a Medicare provider or supplier. DHHS may also suspend payment to a Medicaid provider or supplier during a pending fraud investigation if a state fails to suspend such payments.
FRAUD PROSECUTION:
An additional $100 million in annual funding has been appropriated for fraud and abuse enforcement activities. Fraud sentencing guidelines are enhanced, the intent requirement for fraud under the anti-kick statute is changed and the subpoena authority relating to health care fraud is increased. Persons who fail to grant the Office of Inspector General (OIG) timely access to documents for audits, investigations, evaluations or other statutory function will be subject to a civil monetary penalty (CMP) of $15,000 for each day or failure. A $50,000 CMP per violation will be established for persons who knowingly make use, or cause to be made or used any false statement to a federal health care program.
The above are just some of the Fraud and Abuse Provisions of the recently passed Health Care Reform Act of 2010. A complete understanding and implementation of this new law will take some time.
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| Medicare and Medicaid Overpayments Must be Reported and Returned Within 60 Days |
Under provisions of the recently enacted Patient Protection and Affordable Healthcare Act of 2010 (PPAHA) healthcare providers and suppliers must report and return Medicare and Medicaid overpayments within 60 days after the overpayment was identified. Report of the overpayment must be made to DHHS/CMS, the State, and intermediary/carrier as appropriate. Failure to report and return overpayments within 60 days is a violation of the civil monetary penalties law. The penalty is $10,000 per claim or exclusion. In a civil action the burden of proof is lighter than in a criminal action and this makes it easier for the government to win the case.
In addition under the false claims act there is an obligation to report the overpayment. Failure to report and repay knowingly is transformed into a False Claims Act violation creating a potential for a whistleblower's suit with penalties 3 times damages plus over $10,000 per violation. Make certain overpayments are reported and returned within the time restraints of the PPAHA.
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| For Your Information - Q & A |
Question:
My name is on a "welcome letter" for a membership packet from an association to which I belong. I am the membership chair to that association. I was told that I should include my license # under my name. It is sent out nationally including NJ. Do I need it there? I am signing it with my PT credential in the closing. Thanks!
Answer:
This is an example of a question that can only be reliably answered with an interpretation by the NJ Board of Physical Therapy Examiners, but they have generally applied a very broad definition of "advertising" when faced with such questions. As such, they would likely interpret this letter as an advertisement and thus require that you include your license number along with your credentials.
Keep in mind that one of the major reasons for the existence of this regulation in the first place, is the prevalence of unlicensed practitioners in our state. This regulation is an attempt to address this fact.
Reference:
N.J.A.C. 13:39A-8.1Advertising and solicitation practices
(a) The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.
1. The term "advertisement" means any attempt directly or indirectly by publication, dissemination, or circulation in print or electronic media which directly or indirectly induces or attempts to induce any person or entity to purchase or enter into an agreement to purchase services, treatment, or goods related thereto from a Board licensee.
N.J.A.C. 13:39A-8.5 Use of professional credentials and certifications
(b) A licensee shall use the designation "physical therapist" or "physical therapist assistant" or the abbreviation "PT" or "PTA" in conjunction with the use of his or her name and license number. Academic degree designations may be placed after the name and the title.
Question:
I just have a quick question. A description on CPT codes was recently brought to my attention by an employee who used to work for a competitor. She said that they had given her this description as a guideline for billing. The description is different then what I had ever seen in the past. I have been trying to confirm these descriptions on the APTA web site with no success. All I have found is a book I can purchase for $140. Do you have anything or know where I can find the CPT code descriptions?
Keep in mind that CPT codes are copyrighted by the AMA, as are the descriptions of these codes. As such, they cannot be redefined or be given different "descriptions" by anyone. If this competitor is using these codes improperly, they may find the need to defend against an accusation of abusive or fraudulent billing.
The official source for information related to these codes is really the print publication from the AMA, which every practice should have, but they do maintain a free website to look up both these codes and their descriptions. They are also provide references to other AMA publications, such as "CPT Assistant", that contain further information and explanation regarding particular codes and categories of codes.
We would urge caution in adopting the coding "strategies" of others, unless you have first verified the legitimacy of such strategies.
Question:
Can you remind us of how we can submit complaints to the Department of Banking and Insurance regarding NJ insurers? We have been seeing more and more problems lately, especially with Horizon.
Answer:
Complaints can be filed with the Commissioner of the NJ Department of Banking and Insurance online via the link below:
Or in print by downloading the PDF file linked below:
If you would like assistance in formulating this complaint, please contact us. Do make every effort to involve your patient in this process, because they are the consumer, and you are permitted to file complaints on their behalf. Consumer complaints have much more weight than those from providers, in the political sense and practical sense as well.
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| The Internal Revenue Service is Scrutinizing the Use of
Independent Contractors | |
The United States Internal Revenue Service (IRS) is renewing its efforts to ensure that individuals are properly treated as employees instead of independent contractors. The critical difference between the two classifications is that employees have social security and Medicare taxes credited to their social security record by the employer instead of doing so on their own.
Tip offs for the IRS that workers are improperly classified include, but are not limited to the following: The worker was treated previously by the employer as an employee and is now classified by the employer as an independent contractor even though the services performed are done in a substantially similar capacity by the worker under substantially similar direction and control by the employer; co-workers performing substantially similar services under substantially similar direction and control are treated as employees by the employer; co-workers performing substantially similar services under substantially similar direction and control have received determinations from the IRS that they are to be considered employees.
There are a number of defenses for a company to sustain its treatment of workers as independent contractors and not as employees. All such defenses revolve around a company's ability to show a reasonable basis for its classification decision. To establish a reasonable basis it is critical that policies and procedures as well as contracts with independent contractors and the business practices of the company be reviewed and tailored to support the various reasonable basis that the IRS has historically accepted as legitimate defenses.
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| New Jersey Medicaid Fraud Control Unit Investigates and Prosecutes Fraudulent Activities Against the Medicaid Program | |
The New Jersey Medicaid Fraud Control Unit, ("MFCU"), is located within the Office of the Attorney General's Division of Criminal Justice.
The MFCU investigates and prosecutes:
- Fraudulent activities by providers against the Medicaid program.
- Fraud in the administration of the program.
- Investigate and prosecute fraud against other federally funded health care programs where there is a Medicaid nexus.
- Complaints of patient or resident abuse or neglect in health care facilities receiving Medicaid funding such as nursing homes. Also those Medicaid beneficiaries who reside in any other setting outside their home where care is provided to them. Abuse and/or neglect means both physical abuse or neglect and fiscal pertaining to money or property abuse or neglect.
- Violations of the Civil False Claims Act, where the alleged fraud impacts Medicaid.
Fraud Examples - Medicaid Fraud:
- It's illegal to participate in a scheme to offer or receive kickbacks in connection with the furnishing of items or services which are billable to the Medicaid program.
- It's illegal to over bill Medicaid for services provided.
- It's illegal to receive more Medicaid benefits than you're entitled to.
- These are violations of N.J.S.A. 30:4D-17.
- Punishable by up to 3 years in prison and a $10,000 penalty.
- They may also be violations of the Health Care Claims Fraud Act and other criminal statutes.
Fraud Examples - Health Care Claims Fraud:
- It's illegal to submit a false claim form to an insurance company in order to be paid for health care services which were not received or provided.
- This is a violation of the New Jersey Health Care Claims Fraud Act, N.J.S.A. 2C:21-4.2 and 2C:21-4.3.
- In addition, this person can be required to pay a fine of up to $150,000 or up to five times the amount of the claim.
- A person, who is not a doctor, chiropractor, etc., could be sentenced to 3 to 5 years in jail for filing just one false claim.
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Please Note Class Action Suit May Be Of Interest
Re: The American Medical Association, et al v. United Healthcare Corporation, et al. Class Action Settlement | |
We want to alert you to a Class Action Settlement in which you may be eligible. This matter involves the payment by United Healthcare Corporation (now known as United Health Group) and its subsidiaries and affiliates to qualified providers of out-of-network healthcare services and supplies. Claims may be made for insufficient repayment of covered out-of-network supplies and services due to the use of the flawed Ingenix Database in determining the reimbursement amount at any time from March 15, 1994 through November 18, 2009. Claims must be submitted no later than October 5, 2010.
Claims are being handled by Berdon Claims Administration LLC (hereinafter "Berdon"). Any provider who is questioning whether or not its claim(s) qualifies should complete and submit the form entitled "Information Request Form" that can be obtained on line at www.berdonclaimsllc.com\unitedhealthcare.
You may also call Berdon direct at 1 (800) 443 -1073 for additional information.
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Mailly Inglett & Barmak, LLC |
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Ken Mailly, PT, MPA, NJ Lic. # NJ40QAOO335900
Ken is a graduate of the State University of New York at Downstate Medical Center, and completed 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 Examiners in the past for eight years and has also served as the Chairman of the Board of Physical Therapy Examiners.
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:
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| © 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. | |
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