Articles August 1, 2014

2011 Promises to Be a Year of Hyper-Enforcement – Act Now to Make Sure Your Records and Compliance Plans Are Up To Date

By Stuart E. Hoffman, DC, FICA
ChiroSecure President

With the start of every new year, new rules, laws and regulations take effect in both public and private health coverage programs. The rules and regulations covering the delivery of and payment for health care services are becoming increasingly stringent and detailed and are being enforced by a highly driven bureaucracy with greater authority than ever before. The current economic crises in state and federal government programs is a strong motivator for more and more stringent enforcement because managers of those programs have discovered that fines and re-payment of benefits is a major source of new revenue. According to an October 10, 2011 US Department of Health and Human Services (HHS) press release, “In 2009 alone more than a billion dollars in health care fraud monies have been recovered under the False Claims Act.” States are following suit and looking for every possible means to delay payments for covered services in their Medicaid programs, reduce payments or demand repayment sometimes on the flimsiest of premises. Private insurance is perhaps embracing the repayment or denial wave with the greatest gusto. Most DCs have gotten the letters demanding repayment based on some new policy or finding.

The federal government is massively beefing up its fraud and enforcement efforts. In May of 2009 the US Department of Justice (DOJ) and HHS announced the creation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT) and the Obama Administration has announced that fraud prevention and enforcement is a “cabinet level” concern. To learn more about HEAT visit: More federal agents and contractors will be on the job. A new joint DOJ-HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of “Medicare data analysis techniques and an increased focus on community policing.” In a similar vein, HHS has also established what they call their Senior Medicare Patrol (SMP) Program through tens of thousands of senior citizen volunteers are being mobilized to supplement anti-fraud efforts.

These efforts are not without sometimes dramatic results. On October 13, 2010, the US Department of Justice announced that 73 individuals had been charged:

“…with various health care fraud-related crimes involving more than $163 million in fraudulent billing in the largest Medicare fraud scheme ever perpetrated by a single criminal enterprise. The defendants were charged with engaging in numerous fraud activities, including highly-organized, multi-million dollar schemes to defraud Medicare and insurance companies by submitting fraudulent bills for medically unnecessary treatments or treatments that were never performed. According to the indictments, the defendants allegedly stole the identities of doctors and thousands of Medicare beneficiaries and operated at least 118 different phony clinics in 25 states for the purposes of submitting Medicare reimbursements.”

All organizations and individuals in the chiropractic profession absolutely detest fraud and genuine abuse. I encourage any patient or provider who observes genuine fraud to report it immediately. What is alarming, however, is that now, disputes over “medical necessity” are being thrown into the same category as billing for a service that was never delivered or some other outright criminal act. Here is how the CMS website defines “fraud & abuse”:

What Is Fraud & Abuse?

Fraud occurs when someone intentionally falsifies information or deceives Medicare. Abuse occurs when doctors or suppliers don’t follow good medical practices, resulting in unnecessary costs to Medicare, improper payment, or services that aren’t medically necessary.

What this means is that someone’s opinion about “necessity” if it happens to disagree with yours, places you in jeopardy like never before. This means that your clinical records will not only need to document your findings and the rationale for care for case management and reimbursement, but to defend yourself against a new wave of financially driven “necessity” claims. As has always been the case, your patient records are your first and best line of defense.

There are a lot of other traps you will need to be proactively working to avoid in 2011. Among the more dangerous ones, and one about we here very little these days, is the Stark law and other anti-kick-back statutes. The federal anti-kickback statute known as the Stark law (after the bill’s author, California Congressman Fortney Stark) is a broadly worded statute that makes it a crime to pay or receive remuneration of any kind for referrals or services “compensable” under any federal or state health care program. More specifically, the anti-kickback statute makes it a felony, punishable by up to five years in prison and a $25,000 fine, to “knowingly and willfully” solicit, receive, offer or pay any remuneration in return for (1) referring or arranging for services payable by any federal or state health care program, or (2) purchasing, leasing, ordering or arranging for any goods, facilities or services which may be paid for in whole or in part by any federal or state health care program.

Recently, anti-kick back laws have been getting a broader interpretation by the courts and here is an example which you will want to take note of. Some cases are more straightforward than others. One court case going on in South Carolina has alleged that a hospital is in violation of Stark rules “by providing compensation in excess of fair market value and that took into account the volume or value of the referrals or other business the physicians generated.” (U.S. ex rel Drakeford v. Tuomey Healthcare System, Inc., Civ. No. 3:05-2858 (D.S.C.) Not so obvious, a New York court recently found a doctor guilty of violating anti-kick-back laws when he entered into an agreement with a landlord to pay a percentage of his fees as rent for the office space. Even more astounding are cases in which non-compete clauses in contracts between health care providers and facilities have been found to be in violation of Stark law pr0visions since such limitations erode patient choice. (New Castle Orthopedic Associates v. Burns, the Supreme Court of Pennsylvania).

Be exceedingly careful when offering any patient or colleague any incentive to seek or continue care. This includes free services, incentives for referrals from current patients, transportation to and from your clinic if the cumulative value exceeds a modest limit, not collecting required co-pays or deductibles. One respected ICA doctor with an extensive Medicare practice has even placed a sign on his front desk stating:

Stark Law

It is illegal to waive deductibles and co-payments for Medicare, Medicaid and other patients. .
To perform services for no charge or free is against the law.
Doctors must charge a fair market value.
Not to charge for these services is a violation of the Gift and Inducement portion of the Stark Law.
Please do not ask for discounted fees or to waive any fees.

I am not necessarily recommending that you have a similar sign but it highlights the risk you may be taking by not closely following the anti-kickback rules. As always, seek legal advice if you have any questions.

The watchword for 2011 in chiropractic is going to have to be “compliance.” Are you in compliance with Medicare? Are you HIPAA compliant? Are you in compliance with the Federal Trade Commission’s (FTC) long-simmering credit card security rules? Are you in compliance with the rules of your jurisdiction’s regulatory board rules? And, by the way, are you up to date in your federal and state tax filings? In fact, we have had reports of insurance representatives actually asking to see copies of various compliance plans (HIPAA etc.) since the contract providers signed stated that they would be in compliance with all required rules and regulations. These challenges and many more may make or break you and hundreds of our colleagues in 2011.

With these issues in mind, now is a good time to invest some serious new attention to the details of the legal and regulatory environment in which we are obliged to operate. Consider the following:

New Years Resolution # 1: Review and strengthen your record keeping procedures. Now is the perfect time to examine your office procedures and to see how you can strengthen and enhance your patient records efforts. It is a basic responsibility as a doctor-level professional, and the right thing to do for your patient. You will also be making a positive and proactive contribution toward meeting a new wave of scrutiny and record keeping demands which all practices will be confronting in the coming months.

New Years Resolution # 2: Know theofficial rules! Official regulatory boards all have adopted specific rules on record keeping. Most state or provincial boards have those rules readily available on official websites and you should read and understand, as well as download those rules and maintain a paper file as to those requirements. Periodically check for changes.

New Years Resolution # 3: Know what you have agreed to do. Find and download Medicare’s documentation rules as well as review the requirements of any managed care or insurance carriers where you have signed a provider contract. These are your baseline documentation and compliance requirements.

New Years Resolution # 4: Have a written, up-to-date HIPAA compliance plan. Are you HIPAA compliant? The HIPAA law (Health Insurance Portability and Accountability Act) requires much greater control over the storage and distribution of information in patient records. All doctors of chiropractic in the United States are covered under this law. Every doctor of chiropractic should have a written HIPAA compliance plan that is understood by all parties involved in the practice. Your HIPAA plan need not be complex or voluminous. It should, however, outline office security measures, identify which employees and under what circumstances those employees have access to those records, and how patient consent to address simple and practical things like sign-in sheets, appointment reminders and even billing are established. The good news is that your patients can consent to do things they way you want to operate in your practice. Your obligation, however, is to get that consent on file.

New Years Resolution # 5: Keep your records current. Record keeping must be contemporaneous to the delivery of care. Do not make the mistake of thinking that you can always go back and beef up the file if questions are asked down the road. You can never play catch-up ball quickly or convincingly enough. Do it as you go along.

New Years Resolution #6: Know your signature requirements and follow them in every case. Be aware of the demand in Medicare and increasingly in private insurance for original, clear and complete signatures by the attending provider on all patient records. In fact, signature issues were recently cited by one Medicare official as the most common reason for rejecting all categories of claims by that federal program. Find out if your jurisdiction has an electronic signature law, a law that allows the e-mailing or faxing of a signature on a document by you as a health care professional to serve as an official submission. Do not find put the hard way that you are being accused of non-compliance with any official request because you did not provide an original signature, thinking that the fax or e-mail was enough.

You are not alone. With the new health reform law and continually growing financial pressure on all third-party payment programs, the hyper-enforcement trend will only continue to grow. Your best bet is to be proactive, stay informed and do what needs to be done to protect your practice and your patients’ rights. These are things you do not need to do all on your own. Join and keep in touch with your national and state chiropractic associations. There is strength in numbers and enormous value in the timely information streams these organizations provide on key issues. Also, as every doctor of chiropractic should know by now, a reliable malpractice insurance carrier is your best partner in protecting your practice and yourself from charges and claims of “non-compliance al the way to malpractice claims. In that process, ChiroSecure stands ready to serve and assist in making sure that you have the coverage you need, and in implementing risk management procedures that will provide the best possible firewall to jeopardy.

Shop around, compare and see what you find. Then, call ChiroSecuretoday and find out how you can have the best protection on the market, at highly competitive rates. The result will be both excellent coverage and peace of mind. You deserve both. Call ChiroSecure toll-free today at 1-866-80-CHIRO or 1-866-802-4476, or visit ChiroSecure on the web at