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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
Article 4 - click to read
How Health Care Bill HR 3200 May Affect Physicians

Article 5 - click to read
Areas of Inquiry of Health Integrity (ZPIC) Investigations

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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.
 

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.
 

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.

http://www.stark.house.gov

 
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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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    Article 4

    How Health Care Bill HR 3200 May Affect Physicians

    To: Physicians and Interested Parties
    From: John J. Rivas, Esq.
    Date: August 7, 2009

    The proposed Health Care Bill HR 3200, which was just passed by the United States House and will be considered by the Senate in September, contains many provisions that may affect physicians and their practices.  The following are the most relevant provisions for physicians and their practices.

    PROMOTING ACCOUNTABLE CARE ORGANIZATIONS

    An "Accountable Care Organization" is an organized group of physicians who are rewarded for providing high quality care at low cost over a sustained period of time.  Section 1301 directs the Secretary of Health and Human Services to create an alternative payment model by establishing a comprehensive ACO pilot program and authorizes the continued expansion of the program where it proves successful in improving quality and keeping costs under control.

    PROMOTING PAYMENT BUNDLING

    Hospital and physician incentives can be restructured by paying a lump sum for an episode of care ("bundling" payments), rather than paying separately for each service provided. Section 1152 directs the Secretary to establish pilot programs to test the effectiveness of payment bundling across the nation in a wide array of formats in order to learn the best way to bundle payments to encourage efficiency and ensure quality.  Section 1152 converts the existing Acute Care Episode demonstration to a pilot program that expands the program to include bundling of payments to hospitals and post acute providers.

    REDUCING HOSPITAL READMISSIONS

    Section 1151 uses new financial incentives to encourage hospitals and post-acute providers to undertake reforms needed to reduce preventable readmissions, which will improve care for beneficiaries and rein in unnecessary health care spending.

    REWARDING HIGH-QUALITY AND EFFICIENT CARE

    Section 1162 provides for increased payments to Medicare Advantage plans that demonstrate high quality of care and outcomes and plans that significantly improve quality.

    PROMOTING THE "MEDICAL HOME" MODEL

    Section 1302 directs the Secretary to establish a pilot program to reward physicians and nurse practitioners who make their offices a "medical home" for patients by being fully available to patients and by ensuring that patient care is coordinated and comprehensive. The Secretary is authorized to expand the medical home concept if it proves effective in improving quality of care and holding down costs.

    PROMOTING "SHARED DECISIONMAKING"

    Section 1235 directs the Secretary to establish a demonstration program to evaluate the benefits of having doctors spend more time consulting with their patients about various treatment options.

    PROMOTING PRIMARY CARE

    Since primary care providers can provide lower cost and higher quality care for many ailments, Section 1303 increases payment rates for primary care physicians by 5% and provides an additional 5% payment increase for primary care physicians in health shortage areas.  Section 1121 provides for preferential updates for payment rates for primary care services in Medicare.  Section 2212 expands scholarships and Section 2211 creates a new loan repayment program to train more primary care physicians.  Section 2201 builds on current expansions to the National Health Service Corps to get more physicians to health shortage areas, and this expansion in the Corps could eliminate 40% of the current estimated deficit in primary care providers.  Sections 1501 and 1502 encourage more training of primary care medical residents and advance training in the outpatient setting, where most primary care is delivered.

    DISCLOSING FINANCIAL RELATIONSHIPS

    Section 1451 requires manufacturers of drugs and devices to report their financial relationships with health entities, including physicians, pharmacies, hospitals and other organizations.  Physicians are also required to disclose ownership in hospitals or any agency that bills Medicare.

    UPDATED PAYMENT RATES

    Sections 1101 and 1102 freeze payment rates to skilled nursing facilities and inpatient rehabilitation facilities for 2010.  Section 1154 adopts payment changes to Home Health Prospective Payment System.  Sections 1103, 1131 and 1155 adjust payments so that providers, such as skilled nursing facilities, are encouraged to increase productivity.

    MORE AND BETTER HEALTH CARE DATA

    The transition to a more efficient, higher-quality health care system depends on obtaining more data about the clinical effectiveness of medical procedures. Section 1401 invests $2.9 billion in comparative effectiveness research. Sections 1124, 1441 and 1443-1145 expand physician and hospital reporting of quality measures.  Section 2531 creates a registry to track the use of medical devices.  Section 1442 directs the Secretary to develop improved measures of health care quality.  Section 2402 creates the Assistant Secretary for Health Information to provide ongoing monitoring and reporting on critical population health data.

    DEVELOPING NEW INNOVATIVE PRACTICES TO IMPROVE QUALITY

    Section 2401 creates the Center for Quality Improvement at the Agency for Healthcare Quality and Research in order to identify existing best practices, develop new best practices and disseminate successful models around the country. 

    LIMITATION ON PHYSICIAN OWNED HOSPITALS

    Section 1156 prohibits physician ownership in new hospitals as of January 1, 2009, grandfathers physician owned hospitals existing prior to January 1, 2009 and places limits on growth of existing physician owned hospitals.

    PAYMENTS FOR COST EFFICIENT AREAS

    Section 1123 provides incentive payments in the Medicare Program to physicians practicing in areas that are identified as being the most cost-efficient areas of the country.

    Rivas Goldstein, LLP is a Health Care law firm located in Austin , Texas that focuses on legal and compliance issues affecting health care providers and entities.

    P. (512) 481-8000

    www.RivasGoldstein.com

    References:

    http://www.slate.com

    http://thomas.loc.gov

    http://www.physiciansnews.com

    http://www.stark.house.gov

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    Article 5
    Health Integrity (ZPIC) Areas of Inquiry

    Recently, many of the larger home health agencies (HHA) in the Rio Grande Valley have been visited and audited by investigators from Health Integrity, LLC.  Health Integrity, LLC was awarded a contract from Medicare to be the Zone Program Integrity Contractor (ZPIC) for Region 4 which includes Texas , Colorado , New Medico and Colorado .  Health Integrity, LLC has been charged to do the following tasks:

  • Performing Data Analysis and Data Mining
  • Conducting Medical Reviews in Support of Benefit Integrity
  • Supporting Law Enforcement and Answering Complaints
  • Investigating Fraud and Abuse
  • Recommending Recovery of Federal Funds through Administrative Action
  • Referring Cases to Law Enforcement

    The Health Integrity investigators in the Rio Grande Valley appear to be currently focusing on the first two tasks.  Health Integrity is utilizing several methods of Data Analysis and Data Mining.  Heath Integrity is requesting charts for 40-60 past and present clients of the HHA and is conducting interviews of the agency's staff including the Administrator, the DON and HR and Marketing Directors.

    • It is important to note that Health Integrity is not a Recovery Audit Contractor (RAC).  These investigations are not part of the RAC investigations that have been heavily publicized recently.  RACs are focused on and are highly motivated to identify overpayments and other improper payments, as the RACs are compensated on a contingency-fee basis, based upon the principal amount collected from and/or returned to Medicare providers or suppliers resulting from improper payments.  Health Integrity is not conducting investigations for RAC purposes.

    Health Integrity's areas of inquiry are as follows:

  • The relationship between the owners of the HHA and other related health care companies and any referrals between the entities
  • The identities of physicians as sources of referrals and the number of referral sources
  • The marketing efforts and payment and bonus schemes of the HHA
  • Insulin dependent patients and efforts to identify willing and able caregivers
  • Questions to owners and staff about the definition of “Homebound” to ensure that all concerned are familiar with Medicare's definition
  • The number of Medical Directors and their rates of pay
  • The number of branches and locations
  • The admission process
  • The HHA's referral process and the source of those referrals
  • The existence of any leases with other types of Providers
  • The HHA's patient complaint process
  • The existence of a Quality Improvement (QI) or Quality Assurance (QA) department and the management of the QI/QA department
  • The HHA's procedures for maintaining compliance with current Medicare regulations
  • The percentage and number of patients with diabetes who are administered insulin by the HHA nurses

    These are the questions that you can expect to be asked if Health Integrity initiates an investigation at your facility.  It is wise to consider your answers to these questions before Health Integrity arrives at your facility. 

    ________________________________________________________________________

    Rivas Goldstein, LLP is a Health Care Law firm based in Austin, Texas . 

    • To contact us by email, please click here.
     
    1601 East 5 th Street, Suite 101 | Austin, TX 78702
    p. 512.481.8000 | f. 512.481.0022