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Article 1 - click to read
Limit Your Exposure and Reduce Your
Liability: Write Your Plan of Correction Carefully |
Article 2 - click to read
Top ten tips for dealing with the Texas State Board of Medical Examiners |
Article 3 - click to read
Stark 101: What Every Physician Needs To Know |
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Article 1
Limit Your Exposure and Reduce Your Liability: Write Your Plan of Correction Carefully
There is no way of getting around
writing a plan of correction following a negative
survey outcome. You can, however, be deliberate
and careful in choosing the language used in
your plan of correction. The language used in a plan of correction is
important because a deficiency can be brought
up later in a negligence suit or civil lawsuit
against a facility. In the worst situation, a
deficiency may be connected to the very issue
that is the cause for the lawsuit. It can be
just as detrimental though if a facility has
been cited for a deficiency involving the same
issue, but a different resident.
There are several strategies you can use to
make sure your Plan of Correction language limits
your liability and exposure in the event that
a lawsuit is later brought against your facility. |
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1. Always include a statement at the beginning
of your plan of correction which states your
intentions in completing the plan.
“This Plan of Correction constitutes
my written allegation of compliance for the
deficiencies cited. However, submission of
this Plan of Correction is not an admission
that a deficiency exists or that one was
cited correctly. This Plan of Correction
is submitted to meet requirements established
by state and federal law.
It is the policy of ___________ (facility
name) to provide residents with the appropriate
treatment and services to prevent and maintain
achievable levels of functioning.”
2. Include a statement which shows you dispute
the deficiency as cited in the 2567.
For example, say, “The resident was
provided with adequate nutrition and hydration…” Then
to indicate your plan to prevent any further
problems, say “However, in order to
maintain continued compliance, the facility
has done the following: . . . ”
3. Avoid phrases that admit guilt, like “Provider
will ensure that…”, “responsible
nurse was terminated,” “policies
and procedures were revised and corrected,” and “corrective
actions will be monitored by…”
4. Phrase your POC in ways that avoid admission
of guilt, and focus instead on a review of
the facts and circumstances brought up in
the deficiency.
5. Confirm the facility’s goal of
maintaining compliance. |
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A well-written
Plan of Correction can be a good defense tool
for a facility, and can help to limit a facility’s
exposure in the event of a civil law suit. If
you have any questions, feel free to contact
John Rivas or Nicole Goldstein at (512) 481-8000.
This article is informational only and is not
intended as legal advice. Should you have any
questions or a situation requiring advice, please
contact an attorney. |
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Article 2
Top ten tips for dealing with the Texas State Board of Medical Examiners
John J. Rivas, Esq.
Nicole Goldstein, Esq.
Rivas Goldstein, LLP
www.rivasgoldstein.com
Austin, Texas
1. Be aware.
The Informal Settlement Conference is not informal. In attendance at the Conference are two attorneys from the Board. The Board's attorney speaks first and reads the allegations of misconduct like an indictment at a criminal trial to the Panel. The Panel is comprised of two members of the Board. One of the Panel members is oftentimes not a doctor. The Panel does not have the authority to render a sanction, only dismiss the complaint or recommend an Agreed Order or recommend the case be sent to the State Office of Administrative Hearing for a contested case.
2. Be prepared.
If you are invited to attend an Informal Settlement Conference, it is likely that Board staff has already determined that you have committed an act that violates the Medical Practice Act.
3. Prepare a written response.
Do not just appear and expect to defend yourself by "enlightening" the "uninformed" Panel. Pay special attention to the Summary of Allegations. This Summary contains the allegations and basis for such allegations. Prepare a response that addresses each of the points raised. Include articles from relevant and reliable medical journals that support your case. Submit your written materials to the Board at least 5 days prior to the ISC in order to ensure that your response is considered by the Panel before the ISC. Board rules allow the Board to issue an administrative penalty if you do not timely submit your response!
4. Be concise.
At the ISC, you have a limited amount of time to plead your case, so stay on point, have a plan and practice what you plan to say before the ISC. Do not ramble. Do not open Pandora's Box.
5. Be humble.
The Governor appoints members to the Board. Members often consider this appointment a high honor and should be given the same type of respect as you would a Judge. The Board does not expect you to fall on the sword, but when appropriate, admit shortcomings or fault. The Board often is influenced on whether or not you have learned from your experience and by what corrective measures you have already taken. The worst thing to do is appear arrogant or insulted. This behavior will almost certainly result in a recommended sanction.
6. Don't be surprised.
Especially where allegations of boundary violations exist, do not be surprised if the complainant appears in person or by phone. You or your attorney should contact the Board's staff attorney ahead of time and inquire whether any witnesses will appear in person or by phone. This tip also applies in quality of care cases. Sometimes the patient or family member of a deceased patient will appear and give tearful and sympathetic testimony. You don't want to be caught off-guard in this circumstance.
7. Don't be fooled.
Don't be fooled by the friendly investigator or staff attorney who wants to "help" you. Remember a proposed sanction of merely requiring you to complete additional CME is still a sanction for purposes of seeking and retaining privileges and for remaining on approved provider lists. The most commonly used tactic by Board staff is the threat that, by not taking the proposed sanction, the Board will seek revocation and you will have to pay thirty to fifty thousand dollars in attorney fees.
8. Don't bring a knife to a gunfight.
When preparing your response to the Board, hire an expert witness to render an opinion favorable to your case. At the Informal Settlement Conference, the Panel will be presented with a report from an unidentified expert. Sometimes these experts are not even Board certified in the area for which they purport to render an opinion.
9. Follow the money.
It is no accident that the largest section of every Board Journal contains a list of disciplined doctors. The legislature has given the Board millions to hire more staff, investigators and lawyers. In return the Board is expected to produce numbers; don't be one of them.
10. What the State giveth, the State may take away.
You invested blood, sweat, time and money to earn your license. Keep your contact information updated at the Board and DO NOT IGNORE THE LETTERS FROM THE BOARD, especially the ones that come by certified mail. Remember, you may be well known in your community and by your colleagues as an exceptional doctor. The Board, however, has never heard of you and will not give you the benefit of the doubt. The Board is charged with protecting the public, not with protecting your hard earned license and reputation.
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Article 3
Stark 101: What Every Physician Needs To Know
John J. Rivas, Esq.
Nicole Goldstein, Esq.
Rivas Goldstein, LLP
www.rivasgoldstein.com
Austin, Texas
1.
What is Stark?
Physicians may not refer:
- Medicare or Medicaid Patients for designated health services (DHS) to an entity which physician or immediate family member has a financial relationship
2. What are designated health services?
Clinical laboratory services
Physical therapy services
Occupational therapy services
Radiology, not including nuclear services
Radiation services and supplies
Durable medical equipment and supplies
Parenteral and enteral nutrients, equipment and supplies
Prosthetics, orthotics and prosthetic devices and supplies
Home health services
Outpatient prescription drugs
Inpatient and outpatient hospital services
A complete list of DHS is attached—”List of CPT/HCPCS Codes”
3. What is a referral?
Stark regulations define referral broadly to include any indication by a physician, in any form, that he or she believes the service is necessary. Any request for, order of, certification or recertification of the need for or establishment of a plan of care that includes DHS payable by Medicare is a referral.
A referral does not include personally performed services within a physician's office.
Example: If Doctor has an X-ray or MRI in his office, he may bill for the technical and professional components of providing such tests, if certain conditions are met.
4.
What is an imputed referral?
An imputed referral is a referral by individuals controlled by the physician (nurse practitioner, physician assistant).
5. What is a financial relationship?
A financial relationship can be direct or indirect.
A direct relationship means direct
- A owns DHS entity
An indirect relationship means indirect
- A owns B owns DHS entity
- DHS entity has knowledge of or reckless disregard of A's interest
6.
Ownership and Compensation Exceptions
Physician Services
In-office ancillaries
Prepaid health plans
Academic medical centers
Implants in ASCs
EPO and other dialysis drugs in ESRD
Preventative screening services, immunizations, vaccines
Eyeglasses and lens following cataract surgery
Intra-family rural referrals
7. Ownership Only Exceptions
Publicly held companies
Rural providers
Whole hospitals (moratorium in MMA)
Hospitals in Puerto Rico
Does not protect compensation arrangements
8.
Compensation Only Exceptions
Space rentals
Equipment rentals
Employment
Personal services
MD recruitment
Isolated transactions
Services unrelated to DHS
Pre-1990 group practice arrangements
Payments by a MD
Charitable donations by an MD
Non-monetary compensation <$300
Fair Market Value compensation
Med staff incidentals
Risk-sharing arrangements
Compliance training
Indirect compensation arrangements
Referral services
OB malpractice
Professional courtesy
Retention payments in underserved areas
Community wide HIT
9.
In Office Ancillary Services Exception
Very commonly used exception
The exception that swallows the rule
Does not apply to most DME and enteral and parenteral nutrients, supplies, equipment
Three tests
- Supervision - Referring MD, group MD, or Physician in Group
- Same standard as billing and coverage
- Physician in Group on premises
- Building
- Same building where MD or group practices
- Centralized building for Group practice's DHS
- Billing - supervising MD, the Group, or an entity wholly owned by such MD or Group
- Example: Doctor wants to provide physical therapy services to his patients and bill for these services. All three above tests must be met.
10.
Space and Equipment Leases
Fair Market Value definition
- Value in arms length transactions, consistent with general market value
- With respect to rentals or leases, the value of the property for general commercial purposes (not accounting for intended use)
- In the case of space lease, where the lessor is a potential source of referrals to the lessee, not adjusted to reflect the additional value to the lessee of the proximity or convenience to the lessor.
11. Sanctions
Denial of payment
Refund of amounts collected as a result of improper billing
Civil money penalties of $15,000 per Item or Service plus 2X the amount claimed
Civil money penalties of $100,000 for each arrangement or scheme )“Circumvention Schemes”)
Program Exclusion
Strict Liability Standard - Intent is not relevant
False Claims Act / Qui Tam liability?
12.
ADDITIONAL CONCERNS
Even if compliance with Stark regulations is achieved, an arrangement must also be analyzed under federal and state anti-kickback laws, Medicare billing rules, Boards rules and the Medical Practice Act.
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p. 512.481.8000 | f. 512.481.0022 |
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