Healthcare Attorney Representing Providers Nationwide
The healthcare industry is one of the most tightly-regulated in the country. All types of healthcare providers, ranging from large health systems to single-physician practices, are subject to a complex web of federal and state regulations. And these regulations touch on virtually every aspect of a provider’s operations from patient safety to patient information privacy to billing. Penalties for non-compliance with these regulations can be severe and adversely impact a provider’s bottom line or even the provider’s ability to continue operating in the industry. Our attorneys represent all types of providers before federal and state agencies, courts, and administrative tribunals around the country in issues related to regulatory compliance, reimbursement, enrollment, transactions, and licensing. Given the ever-increasing regulatory burdens placed on healthcare providers, it is critical that providers seek the advice of experienced counsel when it matters most.
Federal and state agencies, along with commercial insurance carriers, have grown increasingly aggressive in recent years when it comes to the investigation of regulatory non-compliance and suspected waste, fraud, and abuse. These enforcement actions can take the form of audits, large overpayment assessments, terminations, revocations, the imposition of civil monetary penalties, and exclusions. In civil or administrative cases, providers are frequently targeted for violations that include but are not limited to:
- Billing for services that do not meet applicable coverage criteria.
- Filing false claims.
- Failure to maintain complete and up-to-date enrollment information with all insurance payors, including Medicare and Medicaid.
- Failure to adequately safeguard confidential patient information.
- Referral of certain types of services to an entity, such as a lab or a home health agency, in which the physician has a financial interest.
- Relationships where something of value, whether in cash or in kind, is exchanged for the purpose of inducing referrals.
Civil and administrative investigations in the healthcare field are never conducted at random. Through the use of sophisticated data analysis tools, government agencies and commercial insurance payors are able to identify and target suspect providers with precision. Providers should educate themselves regarding the types of regulatory violations that most often trigger healthcare audits and enforcement actions and know when to consult with a qualified healthcare attorney. If you have any questions or concerns regarding these issues, contact Calhoun Bhella & Sechrest to set up a consultation.
The intricate web of laws and regulations that govern the healthcare field adds a layer of complexity to transactions that isn’t present in many other industries. Our experienced team of transaction attorneys represents all types of providers to guide them through all aspects related to entity formation, corporate governance, due diligence, mergers, and acquisitions.
We negotiate, draft, and advise clients on all types of agreements, such as employment contracts, purchase agreements, leases, non-compete agreements, third-party biller contracts, and management services organization (MSO) agreements – just to name a few. If you are contemplating a transaction or want a contract drafted or reviewed, contact one of our experienced healthcare attorneys today to request a consultation.
Frequently Asked Questions
- Your firm does not have an office located in my state. Can we still work together?
Absolutely. In fact, many of our clients are located in states where we do not have offices. We represent healthcare providers all around the country.
- Are there any types of providers with whom you do not work?
No – we represent all types of providers, including but not limited to hospitals, home health agencies, hospices, physicians and other individual practitioners, labs, outpatient therapy clinics, psychiatric treatment facilities, ambulatory surgical centers (ASCs), dentists, chiropractors, community mental health centers (CMHCs), skilled nursing facilities (SNFs), comprehensive outpatient rehabilitation facilities (CORFs), ambulance suppliers, dialysis centers, pharmacies, diagnostic imaging centers, and durable medical equipment, prosthetics, and orthotics suppliers (DMEPOS).
- Are there certain states or geographic areas where healthcare investigations, audits, and enforcement actions are more prevalent than others?
Generally, yes. The Centers for Medicare and Medicaid Services (CMS), HHS Office of Inspector General (OIG), and the Department of Justice (DOJ) have identified several “hotspots” for healthcare fraud around the country. These areas include, but are not limited to, parts of New York, Florida, Michigan, Illinois, Texas, Louisiana, Oklahoma, Nevada, and California.
- Can I request a consultation with an attorney?
Yes. We will be pleased to discuss your case with you during a free, initial consultation to answer any questions you may have.
- What is a healthcare audit?
All insurance payors, including Medicare, Medicaid, TriCare, and commercial insurance companies, have the right to conduct audits of claims submitted to them for reimbursement. These claims can occur on a pre-payment or post-payment basis. In a pre-payment audit, the payor will examine documentation supporting the claims before they are processed for payment. In a post-payment audit, the payor will review the documentation for claims previously paid. In either case, the audit can have significant financial repercussions for the provider.
- What are Unified Program Integrity Contractors?
Unified Program Integrity Contractors (UPICs), formerly known as Zone Program Integrity Contractors (ZPICs), are entities that contract with CMS to perform certain audit and investigation functions. These contractors are primarily tasked with unearthing potential waste, fraud, and abuse in the Medicare and Medicaid programs. UPICs perform “program integrity” functions with respect to both Medicare and Medicaid providers within their jurisdictions, whereas their ZPIC predecessors only performed Medicare-related investigations and audits.
- I have received a letter in the mail stating that my Medicare / Medicaid / commercial insurance claims will be subject to pre-payment review. What does this mean?
Pre-payment review is a process whereby an insurance payor requests and reviews documentation prior to making a decision on whether a claim should be paid. The pre-payment review process can dramatically slow down – or in some cases even hold up completely – a provider’s reimbursement. Generally, pre-payment reviews are initiated when the insurance payor suspects that a large number of the provider’s claims may not meet requirements for coverage and payment.
- Is there a limited amount of time that my claims will be subject to pre-payment review?
No. There are no rules that limit how long Medicare, Medicaid, or a commercial insurance carrier can review your claims on a pre-payment basis.
- Can I appeal the decision to place me on pre-payment review?
No. However, if your claims are denied as part of the pre-payment review process then you retain appeal rights as to those individual claim decisions.
- Should I just stop billing my claims until the pre-payment review process ceases?
No. Providers subject to pre-payment review should carefully review all documentation before their claims are submitted. If the insurance payor approves most of the claims and the provider’s “error rate” (i.e., the percentage of claims denied versus approved) is relatively low, the pre-payment review will likely stop.
- Representatives from CMS, a UPIC, or my state’s MFCU have come to my office unannounced. What should I do?
The most important thing to keep in mind is that you are obligated by law to cooperate with these types of investigations or on-site audits. Your failure to cooperate could result in the imposition of a wide variety of administrative sanctions, such as suspension of your Medicare / Medicaid payments or revocation of your Medicare / Medicaid billing privileges.
With that being said, the activities and requests of the auditor / investigator should be reasonable. They should not significantly disrupt the normal day-to-day activities of your office, demand to speak with a physician when he / she is seeing patients, or the like. If they do, you should politely propose a less disruptive alternative.
In most cases, the auditors / investigators will ask to interview the owners or managing employees. If the owners or managing employees are not comfortable with this, they should politely request to reschedule the interview when the provider’s attorney can be present or to respond to the questions in writing. If the owner or managing employees elect to speak with the auditors / investigators, they should pay close attention to the types of questions that are asked during the interview.
The auditors / investigators will also likely hand-deliver a letter to you seeking certain records from your office and often ask that the documentation be produced while the auditors / investigators are present. Providers should politely request to submit all or most the records via mail at a later date. It is critical that the provider not rush to produce the records to the auditor / investigator.
Unannounced site visits often indicate that the provider is the subject of a fraud investigation. If a representative from Medicare or Medicaid comes to your office seeking to interview staff or requesting records, you should contact qualified legal counsel immediately.
Healthcare Claim Appeals
- I have received a letter in the mail from Medicare, Medicaid, or a commercial insurance company stating that I owe money back to them. What can I do?
In almost every case, an appeals process is available to the provider to contest the alleged overpayment. This process is generally uniform for Medicare overpayments and varies by state / insurance payor for Medicaid and commercial insurance overpayments.
- Can you generally describe the Medicare claim appeals process?
The Medicare claim appeals process consists of five stages, as summarized below.
Appeal Stage Reviewing Entity Time Limit for Filing Redetermination Medicare Administrative Contractor 120 days Reconsideration Qualified Independent Contractor 180 days ALJ Hearing Administrative Law Judge 60 days DAB Review Medicare Appeals Council 60 days Judicial Review Federal Court 60 days
- I missed the deadline for filing an appeal in my case. What can I do?
In many cases, the law allows for “good cause” exceptions for late filing. This means that you may still be able to submit an appeal in cases where you have a good reason for not filing on time.
- The letter I received is asking for hundreds of thousands or millions of dollars back, but Medicare / Medicaid / the commercial insurance carrier only reviewed a relatively small number of claims. How is that possible?
In such cases, the claims were likely part of a statistically valid sample of your claims from the audit period. This means that the auditors assumed that the claims they reviewed were representative of your overall billing practices, and any overpayments identified as part of the sample could be “extrapolated” using statistical sampling methodology.
If a provider elects to appeal an overpayment, it can almost always challenge the statistical validity of any sampling methodology used to project the overpayment as well. To do so, the provider will need to retain a qualified statistician and should also consult legal counsel.
- Can Medicare or Medicaid recoup monies from my existing reimbursement to offset an alleged overpayment?
Generally speaking, yes. In some cases, providers can forestall recoupment for a limited amount of time while they appeal the overpayment. Eventually, however, the recoupment will commence irrespective of whether the provider continues to appeal the overpayment.
In many cases, the provider can request a repayment plan to repay the overpayment in monthly installments. As long as the provider continues to make the payments according to the repayment arrangement, its existing payments should not be subject to recoupment.
- Will Medicare, Medicaid, or a commercial insurance company allow me to settle an overpayment assessment?
It depends. In most cases, Medicare will not settle an overpayment assessment and expects the provider to contest the overpayment through the administrative appeals process. With that being said, CMS has announced various pilot initiatives aimed at settling a limited number of Medicare overpayment assessments that are the subject of pending appeals. You should contact an attorney to discuss whether your case may qualify for one of these initiatives.
Medicaid and commercial insurance companies, by comparison, are more likely to entertain settlement offers. The likelihood of settling your case and the amount of the settlement will probably depend on the circumstances surrounding the overpayment assessment.
- I received a letter from Medicare, Medicaid, a commercial insurance company, or another payor stating that my payments would be suspended. What should I do?
You should carefully review the correspondence you received notifying you about the suspension and the basis for the action. The letter will also explain what, if any, processes are available for you to contest the adverse action.
In most cases, providers are required to respond to payment suspensions within a relatively short period of time. In addition, the longer the provider waits to challenge the payment suspension the longer it will take for payments to be reinstated. You should act promptly and, if necessary, seek the assistance of qualified counsel.
- Do I have the right to a hearing on my payment suspension?
It depends on the government agency or payor that imposed the suspension. Medicare providers do not have a right to a hearing in payment suspension cases. In many states, Medicaid providers may request a hearing.
- How long will the payment suspension last?
It depends. In Medicare cases, suspensions are imposed in 180-day increments. At the conclusion of that initial window, the suspension may be renewed or terminated.
- I think my payments were suspended due to a misunderstanding. Should I just call the government agency or insurance company that sent the letter to explain my case?
Probably not. Payment suspensions are rarely, if ever, enacted based on misunderstandings or mistakes. In addition, suspensions are sometimes implemented concurrently with civil or criminal fraud investigations. Providers should be very careful when communicating with government agencies or insurance companies without the assistance of counsel after their payments have been suspended.
Healthcare Enrollment and Revocation Issues
- I received a letter in the mail saying that my Medicare or Medicaid billing privileges have been revoked. What should I do?
You should contact an experienced attorney immediately. In many cases, providers incorrectly assume that revocations are based on misunderstandings, which is rarely the case. As a result, providers may unknowingly forfeit legal rights or otherwise impair their ability to challenge the revocation action.
The Medicare and Medicaid programs afford providers the right to contest revocations through an administrative appeals process. Appeals usually must be filed within a short timeframe, and the appeals processes often have very specific rules of procedure or evidence.
In almost every case, a revocation will not be delayed by the submission of an appeal. This means that the fastest way to restore your Medicare / Medicaid billing privileges will be to successfully challenge the decision on appeal.
- I received a letter in the mail from a commercial insurance carrier stating that it was terminating my provider agreement. What should I do?
You should contact an attorney to evaluate the situation. The question of whether and how commercial insurance companies can terminate agreements with existing providers usually depends on the laws of the state where the provider is located and the terms of the provider agreement with the carrier.
- My Medicare or Medicaid enrollment was revoked. Can’t I just re-enroll as a provider?
No. Almost every revocation is accompanied by a “re-enrollment bar” that precludes the provider from re-enrolling with the program for a certain period of time. For Medicare providers, a re-enrollment bar could range from 1 to 3 years depending on the basis for revocation.
- My Medicare or Medicaid billing privileges were revoked retroactively. What will happen to all of the reimbursement I have received between the effective date of the revocation and the date I received the notice letter?
In some cases, a provider’s enrollment is revoked as of a date in the past. Medicare providers, for example, can be revoked retroactively to the date of a felony conviction or the date they were determined to be non-operational as based on a site inspection. In these cases, several weeks, months or even years may elapse between the effective date of the revocation and the date the provider receives notice of the revocation. This means that any services billed by the provider in the interim will be considered an overpayment and subject to recoupment.
- Are some providers more likely to be revoked than others?
Generally, yes. Physicians, home health agencies, and durable medical equipment suppliers are the most frequently targeted types of providers in Medicare revocation actions.
- Can my Medicare billing privileges be revoked for any reason?
No. The regulations only allow revocation for the following enumerated reasons:
- Non-Compliance with Medicare laws, rules, and regulations.
- The provider, an owner, or a managing employee is excluded, debarred, or suspended from participation in a Federal healthcare program or procurement activity.
- The provider, an owner, or a managing employee has been convicted of a felony in the last 10 years.
- The provider has supplied false or misleading information on its Medicare application forms.
- CMS determines the provider is not operational as part of an on-site review.
- Issues related to provider screening requirements.
- The provider misuses its Medicare billing number.
- The provider abuses its Medicare billing privileges.
- The provider fails to timely report changes in its enrollment information to CMS.
- The provider fails to give CMS access to certain documentation.
- A home health agency does not meet initial reserve operating funds requirements.
- A physician or other practitioner’s DEA prescribing authority has been revoked or suspended.
- A physician or other practitioner demonstrate improper prescribing practices.
- What are the most frequent bases for revocation from the Medicare program?
In the majority of cases, providers are revoked because: (1) a site inspection has determined they are not operational (i.e., not able to furnish Medicare-covered items or services to beneficiaries during posted business hours); or (2) they have failed to timely update their enrollment information, such as their practice address, with CMS.
- My Medicare enrollment was revoked. Will I also be terminated from Medicaid or vice versa?
Yes, unless the revocation is reversed on appeal.
- What is a compliance plan?
A compliance plan is a written document maintained by a healthcare provider that establishes the provider’s commitment to high quality patient care, ethical business operations, and adherence to governmental laws, rules, and regulations.
- Are there certain things that every compliance plan should include?
Yes, there seven elements of every effective compliance plan:
- Implementing written policies, procedures, and standards of conduct.
- Appointing a compliance officer to oversee the provider’s compliance efforts.
- Effective education and training.
- Developing and maintaining effective channels of communication.
- Internal monitoring and auditing.
- Enforcing standards and rules through well-publicized guidelines.
- Responding promptly to detected offenses and undertaking corrective action.
- Has the government released compliance program guidance for my provider type?
Probably. The HHS Office of Inspector General (OIG) has issued compliance guidance for many types of providers, including physician practices, home health agencies, hospices, hospitals, nursing homes, ambulance companies, labs, and even third-party billers.
- Are compliance plans mandatory?
The Affordable Care Act contains a provision whereby the Secretary of the Department of Health and Human Services may require that providers, as a condition of participation in the Medicare and Medicaid programs, implement effective compliance plans. To date, the Secretary has not promulgated regulations to effectuate this mandate.
- Why should I develop a compliance plan?
There are several key benefits to the implementation of an effective compliance program, which include:
- Reducing billing errors.
- Identifying risks or potential problems before they become systemic in nature.
- Avoiding conduct that may be construed as potential waste, fraud, or abuse.
- Promoting patient safety and quality of care.
- Ensuring confidential patient information is kept secure.
- Improving the results of audits or reviews performed by the OIG, CMS, or any of CMS’ contractors.
- What is the federal anti-kickback statute?
The anti-kickback statute is a criminal law that prohibits the exchange of anything of value for the purpose of inducing or rewarding the referral of services that will be paid under a federal healthcare program.
- Are there any cases where the anti-kickback statute does not apply?
Yes. There are several specific exceptions, known as “safe harbors,” where the government does not believe that conduct, relationships, or arrangements would constitute a violation of the anti-kickback statute. These safe harbors are extremely complicated, and any provider with questions should contact an experienced healthcare lawyer to learn more.
- What is the Stark law?
The Stark law precludes physicians from referring patients participating in federally-funded healthcare programs to certain types of providers with which the physicians have financial relationships. The types of items or services covered by the Stark law, which are known as “designated health services,” include clinical laboratory services, outpatient therapy, certain diagnostic imaging services, radiation therapy and related supplies, durable medical equipment, parenteral and enteral nutrition equipment and supplies, prosthetics, orthotics, home health services, outpatient prescription drugs, and hospital services.
- Are there any exceptions to the Stark law?
Yes. There are a host of specific, narrowly-tailored exceptions to the self-referral prohibitions under the Stark law. These exceptions are complex, and any provider with questions should contact an experienced healthcare attorney with questions about arrangements or relationships that may implicate the Stark law.