Ober | Kaler Health Law Alert: 2016 Issue 12


OCR Reminds Covered Entities and Business Associates to Check Their Spam!

As we know, the Phase II HIPAA audits are underway for both Covered Entities and Business Associates. In Ober|Kaler’s recent webinar, HIPAA Audits Have Arrived (Again), Jim Wieland and Emily Wein cautioned that OCR’s notification letters regarding audit selection may be erroneously categorized as spam. This concern was validated by a recent message from OCR containing the same warning. Therefore all Covered Entities and Business Associates should search their spam or junk folders for messages from OSOCRAudit@hhs.gov. Covered Entities and Business Associates that do not get the notification or do not respond may still be selected, and such nonresponse will drive OCR to look at publicly available information to answer its initial questions. This also denies the Covered Entity or Business Associate the ability to craft its responses to the initial audit questions, which could create a disadvantage.

650,000 Record Breach: OCR Cautions Covered Entities with Electronic Health Records

In the wake of news that a hacker has accessed over 650,000 medical records, CMS has issued an MLN Matters, Protecting Patient Personal Health Information, to remind physicians and physician practices to report breaches and to keep track of their Business Associates. All Covered Entities should ensure that all Business Associates know of their obligation to report actual or potential security breaches. OCR specifically focuses such caution on Business Associates who provide or support hardware or software related to electronic health records.

Health Law Alert® is not to be construed as legal or financial advice, and the review of this information does not create an attorney-client relationship.

Ober|Kaler also offers Payment Matters, which focuses on Medicare and Medicaid payment issues. Subscribe here.

Copyright© 2016, Ober, Kaler, Grimes & Shriver

100 Light Street
Baltimore, Maryland 21202

Good News, Bad News The Saga Continues

The long awaited update to the CT lung screening NCD was finally released this July.  As you may recall, current smokers who were otherwise eligible were omitted from the NCD covered codes released last year.  That is the really good news.  The really bad news is at least one MAC denied all of the claims submitted for DOS 2/5/15 through current.  The reason seems to be that their system was programmed to require both the diagnosis for a past history of smoking, as well as the diagnosis for a patient who  currently smokes on the same claim for service.  Per the ICD-10 authoritative coding conventions, “Personal history codes explain a patient’s past medical condition that no longer exists and is not receiving any treatment, but that has the potential for recurrence, and therefore may require continued monitoring”.

Not only is this unexpected surprise incredibly frustrating, it is an inordinate amount of work and expense unnecessarily put on providers and their billing companies.  Either every claim must be recoded manually or software must be programmed to automate the process.  For those fortunate enough to have proprietary software and in-house programmers, it is still work but likely more feasible.  In dealing with software vendors, few, if any, are willing to program for “one offs” and significant time may be required.  So, the bottom line is that payments are still withheld until providers do the work to overcome the edit.  And 17 months of unpaid claims is not a small matter.  How this will trickle down to Part C and commercial payors is as yet unknown.  The issue and request for clarification has been brought to the attention of CMS and Dr. Bill Rogers, the ICD-10 ombudsman.  Hopefully, a quick resolution for providers will be the outcome.

This is just one example of the never ending problems with local coverage determinations.  Many still have glaring omissions from the conversions to ICD-10 last year.  For example, no subsequent treatment code choices for intracranial hemorrhages.  In another case, although the LCD states only chronic conditions for a certain procedure are covered, the LCD includes only acute codes.  Conversations with the MAC and the regional offices confirm a formal process is required to have updates to these oversights and omissions.  Simply pointing them out will not suffice.  In fact, one MAC requested a review and listing of every identified issue for each LCD.  My question is why didn’t you do that before it was published?  The industry has been told many times that all NCD and LCD policies are thoroughly reviewed by coding experts prior to publication.  I beg to differ.  Res ipsa loquitor.

At a recent meeting with CMS, HBMA strongly advocated for the end of LCDs.  An enormous amount of time is wasted each and every year by both the MACs and providers in wrestling with inconsistent and/or incorrect interpretations.  This was greatly compounded with the implementation of ICD-10.  When the old LMRPs were retired and LCDs introduced, the major benefit was to be consistency among policies.  That has not even come close to fruition.  HBMA believes this is counterintuitive to the goals of Administrative Simplification.  The good news is that CMS did listen thoughtfully and carefully to the position.  Time will tell if it will result in improvements.

With such a large number of new codes coming this October, more issues seem highly likely.  Close monitoring and review is recommended.  The sooner omissions and errors are brought to the MACs attention, the sooner correct payments will ensue.

As part of their gracious allotment of time and attention, CMS also reminded HBMA attendees that the so called grace period of audit specificity is ending October 1, 2016.  This has been an oft misunderstood and misstated policy.  The requirement for accurate and specific coding is the same as it has always been.  The grace period was for auditing, not coding, and was to allow less than the most specific codes within a family to be accepted, with certain exceptions such as laterality.  Given recent publications outlining significant errors on documentation and coding audits, this should be a very high priority for providers, EHR and coding software vendors.

In closing, the good news is CMS is aware of some of our providers’ most difficult MAC issues and willing to address them.  The bad news is we are still stuck with MAC policies that are inconsistent and not provider friendly.

Holly Louie, RN, CHBME, is the compliance officer for Practice Management Inc. and the 2016 HBMA president.

Ober | Kaler Health Law Alert: 2016 Issue 11


Senate Finance Committee Report Concludes Stark Law Change is Necessary to Drive Health Care Reform

The Senate Committee on Finance has issued a report highly critical of the Stark law in its current form, labeling it “increasingly unnecessary for, and a significant impediment to, value-based payment models.”  The Senate report further outlines suggested changes to the Stark law in order to facilitate and encourage provider participation in alternative payment models. Cathy Martin and Samantha Flanzer explain both the Senate report’s critique of, and suggested changes to, the Stark law. Click to continue…

OIG Permits Copayment Coupon Arrangement for Statutorily Non-Covered Drug in Advisory Opinion 16-07

In OIG Advisory Opinion 16-07, the OIG approved a savings card program that would provide discounts to Medicare Part D beneficiaries for a drug that is statutorily excluded from coverage. Bill Mathias and Matthew Horton explain the OIG’s analysis of the fraud and abuse risks associated with the savings card program. Click to continue…


Health Care Fraud Prosecutions: Strong Seas and High Winds Ahead for Individuals and Corporations

The Department of Justice has indicated through policy pronouncements over the last nine months that it will continue to aggressively carry out civil and criminal health care fraud enforcement efforts. Gina Simms examines the DOJ’s recent activities and suggests several courses of action for individual providers and corporations to protect against the DOJ’s aggressive measures. Click to continue…


Telemedicine Gains Further Acceptance

Recent ethical guidance from the American Medical Association regarding the practice of telemedicine and telehealth, coupled with the incorporation of expanded telehealth payment policies in CMS’s proposed 2017 Medicare Physician Fee Schedule, indicate that telemedicine’s acceptance as a valid and needed model of medical service delivery continues on the upswing. Emily Wein discusses the AMA’s guidelines for using telemedicine as a method of treatment, and highlights the proposed payment changes introduced by CMS. Click to continue…

Health Law Alert® is not to be construed as legal or financial advice, and the review of this information does not create an attorney-client relationship.

Ober|Kaler also offers Payment Matters, which focuses on Medicare and Medicaid payment issues. Subscribe here.

Copyright© 2016, Ober, Kaler, Grimes & Shriver

100 Light Street
Baltimore, Maryland 21202

MLN – Physician Fee Schedule & Outpatient PPS Proposed Rules Released

Physician Fee Schedule: Proposed CY 2017 Changes

Medicare also expands the Diabetes Prevention Program

On July 7, CMS proposed changes to the Physician Fee Schedule to transform how Medicare pays for primary care through a new focus on care management and behavioral health designed to recognize the importance of the primary care work physicians perform. The rule also proposes policies to expand the Diabetes Prevention Program within Medicare starting January 1, 2018.

The annual Physician Fee Schedule updates payment policies, payment rates, and quality provisions for services provided in calendar year 2017. These services include, but are not limited to visits, surgical procedures, diagnostic tests, therapy services, and specified preventive services. In addition to physicians, the fee schedule pays a variety of practitioners and entities, including nurse practitioners, physician assistants, physical therapists, as well as radiation therapy centers and independent diagnostic testing facilities. Additional policies proposed in the 2017 payment rule include:

  • Primary care and care coordination
  • Mental and behavioral health
  • Cognitive impairment care assessment and planning
  • Care for patients with mobility-related impairments

For More Information:

See the full text of this excerpted CMS press release (issued July 7).

Hospital and ASC: Proposed OPPS Changes for CY 2017

On July 6, CMS proposed updated payment rates and policy changes in the Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System. Several of the proposed policy changes would improve the quality of care Medicare patients receive by better supporting their physicians and other health care providers. These proposals are based on feedback from stakeholders, including beneficiary and patient advocates, as well as health care providers, including hospitals, ambulatory surgical centers and the physician community.

Proposed changes include:

  • Addressing physicians’ concerns regarding pain management
  • Focusing payments on patients rather than setting
  • Improving patient care through technology
  • Emphasizing health outcomes that matter to the patient

CMS estimates that the updates in the proposed rule would increase OPPS payments by 1.6 percent and ASC payments by 1.2 percent in 2017.

For More Information:

See the full text of this excerpted CMS press release (issued July 6).

HBMA Washington Report — June Issue

Washington Report – June, 2016

(Covers activity between 6/1/16 and 6/30/16)

Bill Finerfrock, Matt Reiter, Nathan Baugh, Alex Ehat and Carolyn Bounds

 Washington Report — June Issue 

  • HBMA Leaders visit CMS and Capitol Hill
  • HBMA Submits Comments on MIPS/APM Initiative
  • 2017 ICD-10 Codes Available for Download
  • Medicare Board of Trustees Releases 2016 Medicare Trust Fund Report
  • CMS Proposes Changes to Medicare Appeals Procedures
  • OIG Releases Report on CMS’ Provider-Based Requirements
  • DOJ Arrests 301 in National Health Care Fraud Takedown
  • Why Stark, Why Now? Suggestions to Improve the Stark Law to Encourage Innovative     Payment Models
  • Important Reminder about Billing Requirements for Certain Dual-Eligibles
  • MedPAC Releases June Report; Gives Recommendations on MACRA Payment Models
  • SCOTUS Ruling Sets New False Claims Act Precedents
  • MedPAC and AMA Express Concerns over CMS Part B Drug Reimbursement Proposal
  • Aetna-Humana and Anthem-Cigna Mergers Face Criticism
  • Latest ACA Enrollment Figures Released by HHS
  • CMS Updates HIPAA Administrative Simplification Website
  • OIG Releases Report on Senior Medicare Patrols
  • CMS Transmittals