Legal Aspects 4-6 Flashcards by Alex Stein

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Examples of federal enforcement agencies

DOJ
OIG
CMS
Office of medicare hearings and appeals
Department appeals board
Office of civil rights
Office for national coordinator of health information technology

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Examples of federal enforcement agencies - DOJ

Department of Justice - especially oversight on criminal justice, false claims act

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Examples of federal enforcement agencies - OIG

Office of inspector general - good resource for compliance related info

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Examples of federal enforcement agencies - CMS

Center for medicare and medicaid services

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Examples of federal enforcement agencies - Office of medicare hearings and appeals

Defending a denied claim will lead you to maybe get involved with this

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Examples of federal enforcement agencies - Office for civil rights

Enforcement - HIPAA, non discrimination

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Examples of federal enforcement agencies - Office for national coordinator of health information technology

More relevant in the last couple of years because of standardized communication with health care providers and also use of EMRs

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Health care laws - purpose

Protection of the public
Integrity of government health care programs
Establish conditions of participation for providers to follow when participating in government health care programs
Create basis for monetary/criminal penalties

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Health care laws and PT practice

A PT must be reasonably familiar with health care laws

State licensure laws
Fraud and abuse laws
HIPAA privacy, security and breach notification laws

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Fraud vs. Abuse

Primary difference is intention!

Fraud - when someone intentionally deceives or makes misrepresentations to obtain money or property of any health care benefit program

Abuse - when health care providers or suppliers perform actions that directly or indirectly result in unnecessary costs to any health care benefit program

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Common fraud and abuse in PT

Billing for more minutes of therapy than is actually provided
Billing for services that were never rendered
Upcoding
Unbundling
Failure to maintain documentation to support medical necessity
Ramping up - to achieve higher reimbursement category then immediately dropping services down

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Federal false claims act

FCA - dates back to civil war

Intent is to deter bad actors from submitting bad claims to federal government

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Federal false claims act - liability for certain acts - in general - any person who

1 knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval
2 knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim

Don’t submit claims to the government that there is no support for

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State false claims act - a person who commits any of the following

Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval
Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim

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Fraud and abuse - APTA code of ethics- Principle 4

PTs shall demonstrate integrity in their relationships with pts/clients, families, colleagues, students, research participants, other health care providers, employers, payers, and the public

PTs shall provide truthful, accurate, and relevant information and shall not make misleading representations

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Fraud and abuse - PT licensure - the board may impose any disciplinary sanctions when board determines that the license is guilty of:

Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of PT or engaging in unethical conduct or practice harmful or detrimental to the public

Proof of actual injury need not be established

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Duties of licensees -

A licensee has a continuing duty to report to the licensing board by whom the person is licensed those acts or omission specified by rule of the board when committed b another person licensed by the same licensing board

A license who willfully fails to comply commits a violation of this chapter for which licensee discipline may be imposed

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Duties of licensees - Grounds for discipline

The board my impose any of the disciplinary sanctions provided
Failure to report another licensee to the board for any violations listed in the rules

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False claims act and overpayments - Two laws amended the federal false claims act to address and clarify reporting and repaying “overpayments”

Fraud enforcement and recovery act of 2009 (FERA) - Reverse false claim

Pt protection and affordable care act (ACA) - time date (60 days) once you identify an overpayment to get it paid back

Key aspects of FERA and PPACA - FERA of 2009

Amends FCA
Broadens liability to require repayment of overpayment
Reverse false claim
Easier to prosecute and to bring whistleblower claim
Program exclusion applies

Key aspects of FERA and PPACA - ACA of 2010

Amends SSA
Requires repayment within 60 days of identification
Links retention of overpayments to FCA
Additional money penalty for failure to report

Overpayment - defined

Any funds that a person receives or retains to which the person, after applicable reconciliation is not entitled

Examples of overpayment - could include

Medicare payments for non covered services
Medicare payments in excess of the allowable amount for an identified covered service
Errors and non reimburseable expenditure in cost reports
Duplicate payments
Receipt of medicare payment when another payer had the primary responsibility for payment

EXAM!!!

Reverse false claim is what

When providers knowingly retain medicare or medicaid overpayments they are not entitled to

Extends FCA liability to the retention of overpayments received, whether you specifically intended to receive them or not

Once you identify you’ve been overpaid by the gov, you have an obligation to repay the overpayment back

How can a PT create a reverse false claim? When he/she discovers what

A failure to maintain supporting documentation of services Duplicate billing for services Clear billing errors Payment for services that were never rendered Payments stemming from kick backs or stark violations Once you identify you've been pain beyond what you should, you have a duty to report and repay within 60 days

Current process to report an overpayment

Providers must use applicable claims adjustment, credit balance, self reported refund, or another appropriate process to satisfy the obligation to report and return over payments

EXAM!!! Whistleblower is what

Usually an employee who reports employer illegality to governmental or law enforcement agency Many laws protect the actions of legitimate whistleblowers

Whistleblowing in PT practice -

False representation of PT services delivered by a PT Claims submitted to gov for individual tx when group tx provided PT claims to gov as a result of inc amounts of PT to hit medicare reimbursement targets

Anti kickback and stark laws - what kind of laws are they

These are federal fraud and abuse laws

EXAM!!!? Anti kickback and stark laws - what are they

They prohibit the payment to induce referrals that are otherwise paid for in whole or in part by a federal gov health care program such as medicare and medicaid

Anti kickback and stark laws - violation

Violation of anti kickback law or stark law can result in either criminal and/or civil penalties

Anti kickback and stark laws - violation - example

A referring physician cannot receive compensation directly or indirectly based on their referrals for medical services where those services could possible be reimbursed by federal or state health care dollars Physician is defined as including any immediate family member of physician

OIG exclusion authority

OIG has the authority to exclude individuals and entities from federally funded health care programs pursuant to sections of the social security act Exclusions are imposed for number of reasons - but all under category of - mandatory exclusions - permissive exclusions Not paying back student loans! Licensure ones can be indefinite! Once period is over - reinstatement is NOT automatic

Effecive compliance programming FSG OIG

Federal sentencing guidelines (FSG) - Effective compliance programming is the goal - Education - Diligence (credentials) - Reporting (timely) - Responsive - Enforcement - Establish compliant culture OIG seven elements of effective compliance program: - written policy and procedures - compliance officer - effective training of workforce - effective communication (hotline) - internal monitoring and auditing - enforce standards - prompt response to issues

Appeals process - medicare claim denial - Original medicare has 5 levels of appeal

``` Redetermination Reconsideration Administrative law judge hearing Medicare appeals counsel review Judicial review in federal district court ```

Appeals process - private health plans

Will vary but here are some common elements - Explicit time frames for responding - Most plans have two levels of internal appeal - Most states allow for 3rd level external appeal

Appeals process - private health plans - try to avoid denial by

Ensuring preauthorization requests include accurate and complete patient demographics as well as the proper diagnosis and procedure codes Good documenation!!!

NCD vs. LCD National coverage determinations Local coverage determinations

These rules specifiy the services that are allowed for certain diagnoses NCDs are medicares standard, national rules LCDs are local carriers versions of NCDs

NCD vs. LCF - medicare coverage is limited to items and services that are considered ____ and ____ for the diagnosis or treatment of an illenss or injury

reasonable and necessary

NCDs originate from ____ NCD vs. LCD

CMS and apply to all medicare jurisdictions NCD decisions are binding on all medicare contractors and LCD policy can be no more restrictive than NCD, although it can be less restrictive

In the absence of NCD

an item or service is covered at the discretion of the medicare contractors based on a LCD

HIPAA

Health insurance portability and accountability act

PHI

Protected health information of indicudal patients

HIPAA - four main rules improtant to health care providers

Privacy rule Security rule Breach notification rule Final omnibus rule

HIPAA trends - DHHS must now

periodically audit covered entities and business associates to assure they are complying with the HIPAA privacy and security rules and breach notification standards

Perfoamnce audits - HIPAA

OCR was charged with establishing and implementing a HIPAA performance audit protocol