NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
MAY, 2011 - Volume 2, Issue 5 |
|
|
|
|
|
Compliance Programs Can Reduce Likelihood of False Claims Lawsuits - Qui Tam Lawsuits |
The following story is based upon an actual lawsuit handled by David S. Barmak, Esq. of our firm involving an outpatient rehab clinic, as well as his numerous discussions with the US Attorneys' office and the NJ Medicaid Fraud Unit.
A physical therapist worked for Moosehead Physical Therapy*. The physical therapist alleged that Moosehead's Director often met with her and demanded that she change her documentation in order to increase the billing for certain services rendered to her patients. The physical therapist claimed that she always refused because she was aware that improper documentation could result in upcoding and improper payments for services rendered by the physical therapist. Moosehead's Director, of course, denied ever pressuring the physical therapist into falsifying her documentation. The Director correctly acknowledged that false documentation and upcoding would violate federal and NJ laws that required Moosehead to bill only for services actually provided. Eventually the Director fired the physical therapist.
The physical therapist sued Moosehead Physical Therapy for wrongful termination claiming that the Director had fired her for refusing to falsify documentation that would have resulted in upcoding certain services rendered which, in turn, would have increased reimbursement. She also simultaneously filed a NJ False Claims Act lawsuit and a Federal False Claims Act lawsuit against Moosehead Physical Therapy claiming that the practice had benefited from years worth of fraudulent upcoding and reimbursement.
The wrongful termination lawsuit settled; however the NJ False Claims Act and Federal False Claims Act lawsuits still needed to be addressed. Moosehead found out about these lawsuits, even though they were under seal, during the employment settlement negotiations. The US Attorneys' office and the NJ Medicaid Fraud Unit ultimately declined to "intervene" or "take on" these false claims lawsuits. Their primary reason was the fact that Moosehead Physical Therapy had an effective compliance program.
The key to persuading federal and state fraud units to walk away from a false claims lawsuit brought against your practice by a patient, family member or employee is to have an effective compliance program. Your compliance program must have the following basic components to be deemed effective:
- You must designate a compliance officer and compliance committee;
-
You must have effective communication between your employees and upper management, including some sort anonymous reporting system, like an 800 telephone number, to report complaints. -
You must create a system for maintaining complete and accurate medical record documentation. -
You must conduct effective compliance training and education for staff. -
You must require employees to promote and adhere to the elements of the compliance program as part of evaluating the performance of all employees. -
You must enforce the compliance program standards through well-publicized disciplinary guidelines. -
You must create an auditing and monitoring system. -
You must respond to detected offenses and develop corrective action plans. -
You must periodically assess your compliance program. -
You must have policies and procedures, including a statement of corporate philosophy and code of conduct.
For further information on how we can assist and guide you in developing an effective compliance program please contact us.
*Not the true name of the practice written about in this article |
|
|
Question:
To what extent can a PT who works for a Workers Compensation Insurance Company reduce the visits requested by a physician? Does the board allow such practice?
Response:
First and foremost, please understand that "the visits requested by a physician" really have little bearing on our claims, from both a legal and reimbursement standpoint. It is a serious mistake to think otherwise, because a physical therapist is responsible for determining the necessity of their own services. We could really only explain this point adequately by having a conversation. Please give us a call if you wish to discuss this.
The NJ Board of Physical Therapy Examiners has discussed the issue of review of care by insurers on multiple occasions, without any real resolution or conclusion on the matter. While there are some in State government who opine that the review of physical therapy care does constitute the practice of physical therapy, others seem to disagree on the basis of the Board having no jurisdiction over insurance companies. In fact, this subject was discussed by the Board at their March 2007 meeting without any concrete action being taken.
Unless and until the Board adopts regulations addressing the review of PT care, or some other law definitively states otherwise, the Board will have no impact on such review.
Reference highlighted: http://www.nj.gov/lps/ca/pt/minutes/pt327.htm
C. Letter from Karen Tiligian
RE: Insurance Issues
Karen Wilk recused herself from this matter, moved away from the table and did not participate in the discussion.
Ms. Tiligan advised the Board that she had surgery for a broken bone and believes she would benefit from physical therapy three times a week but her insurance company will only authorize two visits a week. Ms. Tiligan inquired whether she could use a second prescription from the same doctor and go to a different facility that is out of network once a week and pay out of pocket to supplement the limited number of visits authorized by her insurance company. Ms. Tiligan also inquired if there was a source where she could verify a physical therapist's license and credentials.
The Board will advise Ms. Tiligan that the New Jersey State Board of Physical Therapy Examiners does not have jurisdiction over insurance companies...
Question:
I have been advised previously with MC patients that we cannot estimate their costs and have them pay as they go along. Is this still true?
Response:
This is not true, and never has been. There is no prohibition on calculating the patient responsibility for a Medicare claim and collecting it at time of service delivery, but the amount collected may need to be adjusted and a refund immediately made, if the patient portion is less than your calculation.
This calculation is critically important, and more difficult, when there is a payer acting secondary to Medicare. Failure of the provider to make required refunds "promptly, can resort in sanctions upon the provider.
Reference:
Indemnification Situations
(Rev.12, Issued: 10-22-04, Effective: 04-01-05, Implementation: 04-04-05)
Under 1879 of the Act, a beneficiary is not responsible for payment of the Part B deductible or coinsurance for items or services that are neither reasonable nor necessary to diagnose or treat the illness or injury, nor to improve the functioning of a malformed body member. If the provider knew, or should have known, that Medicare considered such services medically unnecessary, but failed to inform the beneficiary before furnishing them, the provider is held liable for their cost. If the beneficiary made payment for such items or services, he/she can be indemnified for them. In most cases, however, funds can be collected while awaiting the outcome.
Question:
For an ERISA plan, who do we complain to?
Response:
ERISA plans are regulated by the US Department of Labor (DOL), not by the States. Disputes and complaints about ERISA plans are likewise reviewed by the DOL.
More information about these regulations can be found here: http://www.dol.gov/ebsa/faqs/faq_claims_proc_reg.html
DOL Regional Offices in NJ
New Jersey (northern)
New York Regional Office
33 Whitehall St, Ste 1200
New York, NY 10004
Tel 212-607-8600
Fax 212-607-8681
New Jersey (southern)
Philadelphia Regional Office
170 S Independence Mall West
Ste 870 West
Philadelphia, PA 19106-3317
Tel 215-861-5300
Fax 215-861-5347
|
|
|
|
|
Mailly Inglett & Barmak, LLC |
|
|
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, and as a Rehabilitation Agency Medicare Surveyor.
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:
|
|
| © Copyright, 2011. 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. |
|
|
|
