Ohio Hospital Association
Compliance
Update
May
21, 2002
www.ohanet.org
In
this Issue:
1.
CMS Proposes Changes to EMTALA and Provider-Based Rules
2. OIG Approves DME Consignment
Closet Arrangement
3. Physician Group Restructuring
Will Not Lead to Sanctions
4. Washington to Take a Closer Look
at Group Purchasing Organizations
5. Michigan Emergency Physicians
Settle False Claims Case for $1.6M
6. Tales of Fraud and Malfeasance
at HHS
OHA
Meetings, Seminars & Announcements
Compliance on the Internet
Compliance Quote of Note
The
Centers for Medicare & Medicaid Services May 9 issued its proposed inpatient
prospective payment system (PPS) hospital rules for fiscal year 2003. The rules
include proposed improvements and simplifications to the Emergency Medical
Treatment and Labor Act (EMTALA) and the provider-based designation regulations.
OHA
Bulletin 02-006 summarizes the major provisions.
Highlights
of the proposed EMTALA changes include:
ü
The
proposed rules clarify that EMTALA does not apply to hospital inpatients or
off-campus provider-based facilities, unless they are dedicated emergency
departments.
ü
The
proposal introduces the concept of a “dedicated emergency department,”
defined as a specially equipped and staffed area of the hospital that is used a
significant portion of the time for initial evaluation and treatment of
outpatients for emergency medical conditions.
In the new rule, CMS assumes a patient who presents to a location that is
not a dedicated emergency department is not seeking emergency services unless
the patient requests them.
ü
In
addition, the proposed rules recognize that hospital-owned ambulances may
operate under an emergency medical services system (EMS) in transporting
patients pursuant to EMS protocols, instead of only transporting patients to the
owner-hospital emergency department.
ü
Hospital
property is still defined to include property within 250 yards of the main
buildings, but it specifically excludes non-hospital property such as physician
offices, rural health centers, skilled nursing facilities and restaurants and
shops.
ü
The
rules incorporate earlier guidance from the OIG that a hospital may not seek, or
direct a patient to seek, prior authorization form an insurer until a screening
and any necessary stabilizing treatment is initiated.
ü
A
hospital must contact the Medicare+Choice plan to obtain pre-authorization for
any post-stabilization care for enrolled beneficiaries.
Among
other changes, the proposed rule included provisions regarding provider-based
determinations, including:
ü
Facilities
treated as provider-based will be grandfathered until the start of the
hospital’s first cost reporting period beginning on or after July 1, 2003
(instead of the previous effective date of October 1, 2002).
ü
Instead
of submitting a provider-based determination application, providers may seek
advance determination by submitting an attestation that the facility meetings
the applicable criteria to be considered provider-based.
If the facility is located on the hospital’s main campus, the hospital
must maintain documentation of meeting the criteria and make it available to CMS
upon request. If the facility is
not on the main campus, it must submit the documentation to CMS when it submits
its attestation.
ü
CMS
proposes to simplify the requirements applicable to facilities located on the
main campus of the hospital.
ü
A
facility that is not located on the campus of the main provider cannot be
considered provider-based if the facility is owned by two or more providers
through a joint venture.
ü
In
addition to the previously identified facilities, independent diagnostic testing
facilities that furnish only services paid under a fee schedule, such as
facilities that furnish only screening mammography services or only clinical
laboratory tests or a combination of these services are exempt from the
provider-based rules.
The
proposed rule was published in the Federal Register May 9 at www.gpo.gov/su_docs/aces/aces140.html.
CMS is soliciting comments on several specific proposals.
Comments will be accepted until July 8 and a final rule will be published
later this year.
In
advisory
opinion 02-4, the OIG concludes that a durable medical
equipment (DME) company’s portable oxygen equipment consignment closet would
not generate any remuneration; and, therefore, would not violate the
anti-kickback statute.
Under
the arrangement at issue, the DME company will place an inventory of its
portable oxygen equipment on-site at certain hospitals, physician offices and
clinics for distribution to patients pursuant to a written agreement.
The patients would be bound for home, have physician orders and have
elected to obtain the equipment from the DME company.
The hospital, physician or clinic will notify the DME company of the
patient’s name and insurance information so the DME company can bill the
patient and/or the insurer for the equipment.
In addition, participating hospitals, physicians and clinics will provide
a list of local DME suppliers to patients in order to protect patient freedom of
choice.
In
a short opinion, the OIG notes that no
remuneration flows between the DME supplier and its potential referral sources,
the hospitals, physicians and clinics. Therefore,
the arrangement does not implicate the anti-kickback statute.
The
OIG will not impose sanctions on two physicians who propose to reorganize their
radiation oncology practice to separate the professional and technical
components of the organization. In advisory
opinion 02-5, the OIG stated the mere reorganization of
an existing, unified group practice into two legal entities does not create a
substantial risk of fraud or abuse when the practices’ ownership and
operations remain substantially the same. However,
in approving the restructuring, the OIG cautioned that any difference in
ownership or operations might lead to a different conclusion.
In addition, the OIG expressed no opinion regarding the application of
the Stark laws to the arrangement.
In
testimony
April 30 before the Senate Judiciary Committee’s antitrust and competition
subcommittee, the General Accounting Office (GAO) said that hospitals’ use of
group purchasing organization (GPO) contracts does not guarantee that providers
will save money. In fact, according
to the GAO report, hospitals often can get better prices on products by
contracting on their own with manufacturers.
This trend seems especially true for large hospitals.
Further, even when hospitals are able to save by using a GPO, price
savings seems to have little to do with the size of the GPO and more to do with
its relationships with key manufacturers of particular health care products.
Discussions
in the Senate committee hearing stemmed from allegations that GPOs have become
gatekeepers in the medical supply industry, using their influence to allow
favored manufacturers to win contracts while stifling competition and innovation
from other manufacturers. The GAO
pledged to investigate group purchasing activities in further studies this year.
Members of the Senate committee urged the GPO industry to self-regulate
and create a code of conduct to prevent questionable practices and conflicts of
interest, while Senators Herb Kohl (D-WI) and Mike DeWine (R-OH) asked the
Justice Department and Federal Trade Commission to re-examine guidelines that
have to date protected GPOs from federal antitrust scrutiny.
To
see the Senate Judiciary committee hearing transcript, click
here or contact OHA.
In
a press
release issued May 13, the Department of Justice’s
(DOJ’s) Civil Division announced a $1.6 million settlement with Medical Center
Emergency Physicians, P.C., an emergency physician group practice in Michigan.
Through a whistleblower’s qui tam
suit, the Department of Justice learned of alleged billing irregularities,
including upcoding and billing for services more extensive than those actually
provided. The whistleblower, a
former employee of the group practice’s billing vendor, will receive
approximately $280,000. The DOJ
said this settlement is the latest in a series of settlements with other clients
of the billing vendor, Emergency Physicians Billing Services of Oklahoma City.
The
DOJ worked cooperatively with the Office of Inspector General of the Department
of Health and Human Services, the Federal Bureau of Investigation, the Defense
Criminal Investigative Service, the Program Integrity Branch of the TRICARE
Program, the Department of Defense, the Office of Personnel Management and the
Michigan Medicaid Fraud Control Unit in conducting the investigation.
6.
Tales of Fraud and Malfeasance at HHS
According
to Janet Rehnquist, Inspector General for the Department of Health and Human
Services (HHS), some government employees could be misusing government debit
cards and checkbooks.
In
testimony this month before a House oversight subcommittee, Rehnquist updated
Congress on an ongoing Office of Inspector General (OIG) investigation into
employees’ use of International Merchant Purchase Authorization Cards (IMPACs).
HHS began issuing the debit-style cards and checks to allow its various
agencies and offices to make small, incidental office purchases without having
to complete cumbersome purchase order paperwork.
But in some cases, employees have used the cards for personal reasons –
at grocery stores, jewelers, restaurants, and movie theatres.
To
date, the Inspector General has reviewed hundreds of department transactions and
has deemed 21 cases worthy of further inquiry that could culminate in criminal
prosecution. The investigation has
uncovered many other purchase irregularities generally resulting from
administrative errors. Rehnquist
blamed these errors on the department’s lack of centralized policy guidelines
regarding the use of IMPACs. The
OIG plans to continue its investigation, pursue criminal allegations where fraud
is discovered, and work with the Department to develop clear purchase procedures
to educate its employees. Click
here or contact OHA for a copy of Rehnquist’s
testimony.
It’s
not too late to register for the 2002 OHA Compliance Briefing Series!
The series features seven sessions on targeted topics for hospital
compliance officers and others. The
one-hour sessions take place via teleconference, and fees are paid per phone
line — so many hospitals use the
briefings to train staff. Contact
OHA’s Center for Education (614/221-7614)
for more information. May’s
session featured an inside view of Medicaid Fraud Investigations by Bob Cochran
of Schottenstein, Zox & Dunn, a former Assistant Attorney General with
valuable information about the state’s role in fraud investigations. Upcoming
topics include:
ü
June
11, 11:00 a.m., “Development of Local
Medical Review Policies,” Melanie Alexander, Director of Fiscal
Intermediary Medical Review/Medical Policy, AdminaStar Federal, Cincinnati
ü
July
9, 11:00 a.m., “Anti-Kickback Issues,”
Mike Phillips, Calfee, Halter & Griswold, Cleveland
ü
September
10, 11:00 a.m., “Inpatient Coding
Compliance: Key Issues,”
Charlene Wolf, Quality Management Consulting Group, Columbus
ü
October
8, 11:00 a.m., “Compliance Issues
Concerning the Pharmaceutical Industry,” John Green, Porter,
Wright, Morris & Arthur, Dayton
ü
November
12, 11:00 a.m., “The Changing EMTALA
Landscape: Off Campus Facilities and Other Considerations,”
Gretchen McBeath, Bricker & Eckler, Columbus
ü
December
10, 11:00 a.m. Topic TBA
Compliance
Officers to Meet at OHA Annual Meeting
The
OHA Compliance Officers Network and the Society of Ohio Healthcare Attorneys (SOHA)
will co-present a luncheon as part of the OHA 2002 Annual Meeting: “limitless
vision, boundless opportunities.”
This annual event will be held at the Greater Columbus Convention Center
in Columbus June 3 & 4.
Join fellow compliance officers at the luncheon, which will be held
Monday June 3rd and will feature a discussion of HIPAA pre-emption of
Ohio privacy rules.
OHA
has an impressive roster of speakers for the many tracks for this year’s
annual meeting. Tuesday’s
dedicated Compliance Track couldn’t be timelier with Seth Wolf, an attorney
with Rolf & Goffman Co., LPA, discussing EMTALA Compliance and Karen Smith
of Bricker & Eckler discussing provider-based determinations – two hot
topics with pending federal regulatory changes.
The Compliance Track also features Scott Taebel of vonBriesen, Purtell
& Rope, s.c., with “What Happens When the Feds Come Calling and What You
Can Do About It” and Quintin Lindsmith of Bricker & Eckler on the growing
threat of whistleblower suits.
In
addition, Diane Signoracci of Bricker & Eckler will lead two sessions in the
Finance Track on Monday, June 3 -- one on DRG claims investigations, and another
on medical necessity, documentation and Advance Beneficiary Notices.
Peter Pavarini of Schottenstein, Zox & Dunn and Richard Cameron of
Clark/Bardes Consulting will help participants re-assess hospital-physician
relationships in the Physician Relations Track.
You
have to see the program to believe the many speakers and sessions being offered
at the OHA Annual Meeting! The
registration fee for OHA members is only $60 for
both days (the Compliance Network/SOHA Luncheon is extra) or $50 for a single
day: a real bargain considering the quality of programming – most of which is
eligible for continuing education credits.
Check out the program and registration materials online at http://www.ohanet.org/education/2002intro.htm
"Practice
makes perfect" is the theme of this hands-on, technical, full-day education
program. You will practice how to
code and submit claims for several outpatient services, including ambulatory
surgery, emergency services, and IV therapy.
The patient care examples include complex procedures with problems
written into them. Your challenge,
lead by national expert Andrea Clark, is to improve documentation, strengthen
proper use of modifiers, claims submission, reporting and reimbursement. In
addition, you will learn ways to fine-tune your APC auditing and expand auditing
capabilities. Join OHA either June 11, 2002, Holiday Inn French Quarter in
Perrysburg or June 12 at the Holiday Inn Columbus East.
Contact the OHA Center for Education for registration
information and materials.
The
OHA Compliance Update is now sent
to your individual e-mail address. If
you would like to receive your own copy or would like to be removed from our
mailing list, please send your e-mail address to Brenda Slagle at OHA (brendas@ohanet.org).
All issues of the OHA Compliance
Update are also available in the OHA
Compliance Center
at http://www.ohanet.org/compliance/
Federal
Bureau of Investigation, Health Care Fraud Unit
(http://www.fbi.gov/hq/cid/fc/hcf/hcf.htm).
Check out the FBI’s slick Web site.
It includes short descriptions of several criminal health fraud
prosecutions involving home health agencies, nursing homes, physicians and more.
Also
take a look at their health care fraud video, “Shattered Faith:
White Collar Crime in America – Health Care Fraud.”
The video starts out, “Many of the players in health care fraud schemes
are people you'd never expect to be criminals: doctors and pharmacists, nurses
and physical therapists. Health
care frauds have risen astronomically, now costing government and private health
insurers upwards of $95 billion a year. Government
health programs, like Medicaid and Medicare, are the targets for about 44
percent of this fraud. Private
insurers bear the rest.” Wow.
“We
believe there are a number of misconceptions in the provider industry concerning
the extent to which EMTALA requires physicians to provide on-call coverage. . .
. We also note that there is no predetermined “ratio” that CMS uses to
identify how many days that a hospital must provide medical staff on-call
coverage based on the number of physicians on staff for that particular
specialty. In particular, CMS has
no rule stating that whenever there are at least three physicians in a
specialty, the hospital must provide 24 hour/7 day coverage.”
Centers
for Medicare & Medicaid Services
67 Fed.Reg. 31478 (May 9, 2002)