TOUGH LAW LOVE

Providers and healthcare executives committing healthcare fraud, especially if in a position of power and trust, are looking at longer sentences.  The Third Circuit of the U.S. Court of Appeals, late last year, backed a district court’s decision to raise a radiologist’s criminal sentencing for paying illegal kickbacks.

In 2012, Dr. Babaria pled guilty to paying kickbacks to physicians in exchange for patient referrals.  The district court applied a two level adjustment including one level for abuse of a position of trust and sentenced Dr. Babaria to 46 months in prison.  This upward adjustment is a result of the 2012 sentencing commission change which increased federal sentencing guidelines for security fraud, drug offenses and changed the definition of abuse of trust.  Some have questioned the decision as applying the “abuse of trust” enhancer in a case where this doctor did not have any extraordinary position such as chief of staff or president of a healthcare insurer or hospital.  Those criticizing the enhancement decision indicate that based on the facts of this case, any healthcare fraud involving more than one physician could have this sentence enhancement apply.

LET’S TALK

One of the largest (but not the only) criticisms of the effort over the last few years to create electronic health records is the failure to require vendors to have the ability to talk to other systems (interoperability).  This has resulted in, literally, billions of dollars being invested in EHR systems that do not talk or do not easily talk to other systems.  Last week the Office of National Coordinator for Health Information Technology (ONC) released its draft roadmap for fixing the incredible mistake that did not require this in the first place.  The draft of “2015 Interoperability Standards Advisory” is an “open draft” intended to “begin” an interactive process that will “ultimately result” in interoperability.  Apparently the ONC thinks this may take up to 10 years.  The interoperability standards would not be widely effective until the end of 2027.

We had noted before the practical issues of establishing who wants to see the records, what they are going to use the records for and should I trust them for EHR?  Apparently, while taking care of the technical requirements, ONC intends to ponder these practical issues over the next several years.

For those who wish to review the standards, please click on the following link: http://www.healthit.gov/standards-advisory.

IS ANYONE HOME?

In Illinois a whistleblower continues to try to propose a false claims act complaint against Fine Skin Dermatology (FSD), and Renuka H. Bhatt, M.D.  This is a whistleblower action where the claim is made that services rendered by NPPs were billed by the physician.  However, the Court has pointed out that the services described were “entirely compatible with lawful conduct under Medicare guidelines” as incident to billing.  The applicable law requires that in order to use the incident to billing requirement, the physician personally performed the initial service, remained actively involved in the course of treatment, and directly supervised the performance of the service or had another physician in the group supervise the NPP services.

The court’s ruling allows the whistleblower to try one more time to offer a complaint that facially indicates a violation by FSD and Dr. Bhatt.  One of the problems of defending whistleblower complaints is that many of them are poorly prepared, and even where poorly prepared, can cost a provider thousands of dollars in simply getting the court to agree that the whistleblower’s claim is, at best, inadequate.

GOOD, BETTER OR BEST?

HHS continues to propose that a greater share of tax sourced healthcare payments, such as Medicare or Medicaid, pay doctors and hospitals for quality, not quantity.  The basic assumption is that paying for outcomes rather than a flat fee per service will result in better, if not less expensive, health outcomes.  Sounds reasonable right?

The problem is determining quality and value.  In healthcare, what is quality?  Is it always a cure?  Is it simply reducing a patients’ suffering?  Is it extending the life expectancy of a patient? 

It would seem obvious that the definition of “quality” depends on the patient, the disease or condition and the resources available to deal with such a disease or condition.  It is still complicated.

Over 30 different care programs within Medicare used a combined 1,676 quality reporting measures last year, many of which were unique to just a single program.  Could help be on the way?

Since 2010, the National Quality Forum has convened panels of experts to review, discuss and recommend how to measure quality across Medicare programs rewarding providers.

I believe everyone in healthcare gets just how difficult measuring quality, much less value, is in healthcare.  Many people believe that with the advent of “big data” and its promise of incredible slice and dice metrics for measurement, that if we stare at big data long enough, we will come up with standards that apply.  This is so-called measurement science.

The problem is deeper though, we can measure the rate of infection, we can measure blood pressure, we can measure objective factors, but much of medicine and medical treatment involved are not only objective factors, but patient perception of the process, the treatment and the care.  How do we measure the response of a patient to the question of are you feeling better?  My conversations with physicians and healthcare executives indicate a great deal of interest in measurement science for healthcare, and equally, a great deal of skepticism as to whether measurement science is developed and mature enough to serve as a basis for determining reimbursements to individual providers or hospitals.

It is likely that there will be a bumpy and difficult transition to outcome/value based reimbursement over the next several years.  My recommendations to my clients are to be open minded, skeptical and ready to review these proposals.  The steps in doing so include:

• Be aware of the discussion – the discussion is going on now at CMS and in large clinic providers like Mayo Clinic and Kaiser Clinic, and also at NQF.  Listen to the debate and discussion and learn.
• Truly review your payor contracts regularly.  In some of the provider contracts my clients have asked me to review, there are small changes occurring each year where it appears, for many reasons, some of which are legitimate, some of which are hard to explain as being justified.  Some others appear to be the gradual introduction of value/quality based measurements and standards in payor contracts.  In many cases, provider contracts are modified or updated much more frequently than annually by amendments and addenda.  It is important that you watch and be aware of these contracts and these contract changes.
• Evaluate your options – providers asked to participate in narrow or mid-narrow networks as a result of healthcare exchange enrollment may face lower payment rates than standard or HMO plans.  Look at the plans thoroughly and see what your opportunities are as long as you make sure that high deductible plans do not negatively affect your practice.

MD HAS BACK PAIN

A physician practice in Michigan and California is alleged to have performed spinal fusions, but did not bother implanting a critical device to those surgeries.  Aria Sabit, M.D. has been accused of billing Medicare, Medicaid and others for tens of millions of dollars for procedures inadequately and improperly performed.  Dr. Sabit faces false claims lawsuits along with other companies and their owners who allege to have been involved.  One of the physician owned distributor ships, Apex Medical, and others, apparently paid physicians, including Dr. Sabit, to get them to use reliant spinal implants.  Apparently, after surgery by Dr. Sabit, several patients complained and had other physicians examine them.  The other physicians determined that no screw or any medical device was inserted in the spinal column of the patient, nor was any laminectomy performed on the vertebrae.

Apparently, Dr. Sabit billed his various payors $32.7M for these procedures.  It is not explained why this claim fraud went on for years without being caught or reviewed.

IRS CALLING

The latest scam being perpetrated on physicians and others is people calling and claiming to be representing the Internal Revenue Service.  Often these wonderful human beings have phone spoofing that makes caller ID state that the call is coming from the IRS.

In most cases, the caller will claim that the person or the person’s business has overdue taxes and insists that if they are not paid immediately, the recipient’s home, business or bank accounts will be seized immediately.

What to do?  First of all you should have received at least six to twelve months of letter after letter after letter from the IRS before any assets are seized.  If this is the first time you have heard of this claim, it is certainly a scam.

What else to do?  Normally, if you tell the IRS that you have an attorney and that you are turning this over to the attorney, the IRS will back away, and allow you to obtain counsel and file any collection due process appeals or other matters.

If you get a phone call, do not give your social security number, your credit card, your bank account number or any other information over the phone.  If you have a qualified attorney, give them your attorney’s name and phone number, and suggest they call them.

If someone is on the telephone and claims to be from the IRS, the very, very, very great odds are they are not from the IRS and that you are a potential scam victim.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.