Health Law Alert – April 2018

Health Care Providers Beware: Consumer Finance Regulations Apply to Medical Debt Collection

While the prosecution of consumer banks and other lenders is the type of federal regulation that typically makes the headlines, many of the same debt collection regulations also apply to the collection of medical debts. Formed in the wake of the 2008 financial crisis, the Consumer Financial Protection Bureau (CFPB) began as an agency focused on the collection practices of financial institutions and other lenders. However, as early as 2014, the CFPB began scrutinizing the collection and reporting of medical debt.

In its December 2014 study, the CFPB determined that more than 43 million Americans have overdue medical debt reported on their credit reports. The tremendous volume got the attention of the CFPB, which then placed the medical establishment squarely in its crosshairs. Enforcement actions against collectors of medical debt were initiated shortly thereafter.

Authored by:
Jake Adams, 615.726.5631,
Linda S. Finley, 404.589.3408,


STOP: Text Message Lessons from the Outcome Health Settlement

Outcome Health has agreed to settle a class action lawsuit for $2.9 million for alleged violations of the Telephone Consumer Protection Act (TCPA) arising from the transmission of automated text messages to users who had expressly opted out of receiving such messages. The TCPA prohibits, among other things, the making of certain calls, including SMS text messages, or using an auto-dialer or an artificial or prerecorded voice to a wireless telephone number without prior express consent.

Outcome Health, formerly ContextMedia Inc., provides interactive digital devices to physician offices and hospital systems that are intended to educate patients through viewing videos, photos and other materials. In this case, the lead plaintiff watched a program playing in the waiting room of a doctor’s office and opted in to receiving automated text messages containing nutrition tips. According to the complaint, after receiving several text messages, the plaintiff decided she no longer wanted to receive these messages so she replied “STOP” as requested by the text messages for those individuals wishing to opt out. Despite her numerous attempts to revoke consent, she continued to receive the text messages. Under the TCPA, consumers are permitted to revoke prior express consent to receive text messages and the opt-out can be done in writing such as through a responsive text message. In this case, the plaintiff asserts that her reply of “STOP” to a text message should have been sufficient to cease further communications. Outcome Health denies that it violated the TCPA but has agreed to settle the claims to avoid the cost of continued litigation.

Authored by: Ashley L. Thomas, 202.508.3429,


Is the Health Care Industry Ready for I-9 Audits? What You Need to Know About Compliance

The health care industry accounts for the largest segment of the U.S. labor market and, as such, is positioned for heightened scrutiny from federal agencies tasked with regulating and enforcing rules on employment. That includes the Immigration and Customs Enforcement agency (ICE), which has indicated it will be stepping up the number of I-9 audits targeting U.S. employers.

Late last year, Tom Homan, ICE’s Acting Director, announced that he has instructed his agency to dramatically increase the number of I-9 audits. According to news reports, Director Homan indicated that the scope of the investigations would be to find employers who fail to properly comply with the I-9 Employment Eligibility Verification requirements, thereby enabling undocumented workers, and also to arrest workers found to be undocumented as a result of the investigations.

Authored by: Dilnaz Saleem, 713.210.7435,


OIG April 2018 Work Plan Update

The OIG’s April 2018 Work Plan update added six new items to its active list of scheduled audits, inspections, and evaluations. The OIG indicates its intention to review beneficiary access to drugs under Part D, as well as CMS’s implementation efforts to improve its monitoring, tracking, and collecting of overpayment recoveries. Building on Work Plan audits from several years ago, the OIG will review the flow and utilization of federal matching funds for Medicaid nursing home supplemental payments and related intergovernmental transfers. In addition, the OIG proposes to audit both the Head Start Program and the Refugee Resettlement Program and, based on congressional request, to review HHS email policies. The updates are summarized in this article and listed in the accompanying table.

Authored by: Thomas J. Bonura, 713.286.7181,
Reviewed by: William T. Mathias, 410.862.1067,


Upcoming Events

National Institute on Health Care Fraud

May 2 – 4  – Seminar
San Francisco, CA
Learn more


How to Avoid Long Term Care Litigation

Tuesday, May 8 – Webcast
1:00 – 2:00 p.m. Central
2:00 – 3:00 p.m. Eastern
Learn more

When the Patient Becomes the Harasser

Thursday, May 10 – Webcast
10:30 – 11:30 a.m. Central
11:30 a.m. – 12:30 p.m. Eastern
Learn more

Jonell B. Beeler

Catherine A. Martin

HBMA Washington Report – March Issue

Washington Report – March, 2018
(Covers activity between 3/1/18 and 3/31/18)
Bill Finerfrock, Matt Reiter, Nathan Baugh, Ryan Mash and Carolyn Bounds

Washington Report – March Issue

  • HBMA GR Committee Holds Conference Call with ONC to Discuss EHR Burden Reduction
  • Congress Passes FY 2018 Omnibus Appropriations Bill
  • CMS Announces New Patient Data Initiatives
  • MedPAC Recommends Eliminating MIPS but Congress is Unlikely to Act on Proposal in 2018
  • CMS Holds Listening Session on Updating Evaluation and Management Guidelines
  • Reminder: CMS Will Begin Issuing New Medicare Cards to Beneficiaries in April
  • MedPAC Analysis: Physician Payment Rates and Access to Care are “Adequate”
  • Administration Releases Initial 2018 ACA Enrollment Report
  • CMS Will Automatically Reprocess Claims Impacted By Bipartisan Budget Act of 2018
  • House Health Subcommittee Holds Hearing on MACRA and Physician Payments
  • Cigna Acquiring Express Scripts
  • Arkansas Becomes Third State to Implement Medicaid Work Requirements
  • CMS Transmittals

MedPAC votes to cut payments for free-standing ERs

The Medicare Payment Advisory Commission voted unanimously to cut reimbursement for some stand-alone emergency departments in urban areas. The proposal could save Medicare up to $250 million annually if adopted by Congress.

Hospital industry stakeholders immediately slammed the idea, arguing the cuts could undermine access to care.

When Will Medicare Get Its Priorities Straight?

By Frustrations arise over inconsistent guidance from MACs and CMS.

Every single day, I get numerous email notices from the Centers for Medicare & Medicaid Services (CMS) and the Medicare Administrative Contractor (MAC) for our jurisdiction on a wide variety of “priorities:” correct coding, quality measures, new reporting initiatives, and a never-ending reminder of the myriad things physicians are required to do, document, and report, now and in the future.

Included in these messages are warnings about progressive corrective action, Comprehensive Error Rate Testing (CERT) findings, incorrect coding and billing, and the need to protect the Medicare trust fund from all the improper claims.

Wouldn’t it be nice if CMS and the MACs were held to the same high standards of accurate claims adjudication? Wouldn’t it be nice if the same draconian penalties were applied when they made patterns of errors? I think every physician I know would like to know when accountability will be fair and equal to all parties. To this end, let’s take a look at the first two and a half months of 2018.

CMS has created new modifiers to describe the patient-physician relationship: the so-called X modifiers. Although they are slated to be mandatory in the future, in 2018, reporting is voluntary. Presumably, this constitutes important quality information CMS needs, outlining the details of care by different beneficiary providers.

Our company prepared for this reporting, our physician clients all prepared for this reporting, and on Jan. 1, 2018, we did report to our MAC on every claim. On 100 percent of them, we received a remittance notice that the claims could not be electronically crossed to secondary payers because they could not process the X modifier.

Hundreds of letters from the MAC stating that fact arrived. And so the due diligence began. Only one secondary payer (Medicaid) was unable to process the X modifiers. All other payers had foreseen the issue, and programming was completed in 2017. Not one of the secondary clearinghouses had any issue. Many hours of research resulted in just one consistent answer: it’s a MAC problem. The end result is an unacceptable amount of lost time, delayed payments, and system reprogramming – all so we could stop the voluntary reporting. I wish that was the target of a CERT audit.

CMS requires provider-based, off-campus facilities to report place of service 19. A new problem reared its ugly head when the new CPT® codes for 2018 were billed in that location. Apparently, the MAC incorrectly programmed, resulting in 100 percent of the radiology interpretations for imaging in place of service 19 being incorrectly denied. Yes, they know and have known since January. An estimated date for the fix is sometime in April. I wonder why delaying legitimate, medically necessary physician reimbursement for four months is acceptable? I wish physicians could correct mistakes when they could work it into their busy schedules, without fear of repercussion.

Not surprisingly, the code updates for National Coverage Determinations (NCDs) again had issues. The October 2017 ICD-10 updates of breast mass codes were finally correctly updated on Jan. 1, 2018 – again, three months after implementation. However, the 2018 new anesthesia codes for upper and lower gastrointestinal endoscopic procedures, including screening for colonoscopy, were not updated correctly for Jan. 1, 2018 dates of service. Perhaps of more concern is that all these incorrectly processed claims were adjudicated as being entirely the patient’s responsibility. As above, a correction is estimated for sometime in April.

Last on our 2018 list is the fact that the MAC has just notified us that they will reprocess all the new 2018 mammography codes that also were incorrectly denied due to their system update errors.

So, let’s recap. If you are CMS or a MAC, it is perfectly acceptable to make high-volume patterns of errors that incorrectly negatively impact provider payment, without penalty or provider recourse. There is no definitive timeline to correct the revenue disruption the errors caused. We know that in some cases, it took more than a year to resolve. Perhaps if the priority was on getting it right, testing programming, and validating accuracy, less burden would be unfairly placed on providers.

I wonder what would happen if CMS and its contractors were held to the same level of scrutiny and accuracy providers are? Maybe physicians need the equivalent of CERT: progressive corrective action and integrity auditors to evaluate CMS and MAC performance and initiate penalties for errors.

I wonder what would happen if the focus was on getting what we have now right, rather than issuing a tsunami of new requirements and initiatives? I wonder what would happen if the focus was really on correctly paying physicians for medically necessary services instead of building confusing, complex payment systems of dubious validity?

CMS, when will you get your priorities straight?