Join us for Upcoming Events

Over the next several months, Daymarck will be at industry shows where we hope to meet you, learn more about your home health agency, and tell you more about how we can make your home care coding as easy and pain-free as possible.

Tomorrow July, 14 we will be attending the NAHC and HHFMA 16th Annual Financial Management Conference & Exposition at the Sheraton Chicago Hotel & Towels. At a NAHC Conference, be sure to participate in user groups meetings, client appreciate receptions, in-booth educational sessions and more.

Nick and George will be at Booth # 301 so stop by for a free cost analysis and don't forget to pick up a calculator. If you are not able to attend, follow @Daymarck during the event for updates.

For the second year in a row, we are sponsors of Decision Health's Home Health Coding Summit at Loews Philadelphia Hotel August 8-12 to join expert coders and network with your peers while participating in an exclusive day of interactive, advanced-level coding and celebration of 2,010 certified coders in 2010! Plus new in 2010: Procedure coding — a new requirement for home health agencies — along with OASIS-C and coding interactions. In addition to being an exhibitor hosting a booth, we will be sponsoring the luncheon session where we are gathering thought leaders in a panel discussion. Stay tuned for more details.

Last, but not least, mark your calenders for October 2-6! Daymarck will be at the 2010 National Association for Home Care & Hospice 29th Annual Meeting & Exposition in Dallas, TX. 

Feel free to reach out to us at anytime with questions. We look forward to seeing you at all of the upcoming events!

Changes in Referral Relationships with Physicians

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Significant changes are likely in the near future in relationships between providers and referring physicians. Trade associations, for example, are providing substantial guidance for their members on this subject. PhRMA, a trade association whose members are pharmaceutical research and biotechnology companies, recently updated its Marketing Code. The revised Code was applicable as of January 1, 2009. Although the Code applies only to members of PhRMA who voluntarily agree to follow it, the Code has helped providers to understand changing standards regarding acceptable marketing practices.

With regard to taking lunches to physicians’ offices, for example, the revised Code says that PhRMA members who elect to adhere to the Code may present information to healthcare professionals and their staff members during the workday, including at mealtimes. In connection with such presentations or discussions, the Code also says that it is appropriate for occasional meals to be offered as a business courtesy to the participants. The presentations must, however, provide scientific or educational value and meals must meet the following standards:

- Modest, by local standards;

- Not part of an entertainment or recreational event;

- Provided in a manner conducive to informational communication; and
- Limited to in-office or in-hospital settings.

Federal regulators have been active for many years in oversight and monitoring of referral arrangements with physicians and will surely continue to do so. The bases for these activities include the federal anti-kickback statute and the so-called Stark laws. Many states have enacted statutes and implemented regulations governing referrals.

State courts have also addressed these issues. In Sloan v. South Carolina Board of Physical Therapy Examiners, No. 26209 (S.C. Sept. 25, 2006), for example, the Supreme Court concluded that a state statute prohibits physical therapists from being employed by physicians who refer patients to them for therapy services. The Court also specifically recognized the right of the state’s Board of Physical Therapy Examiners to enforce the statute against therapists who violate it.

Recent activity seems to indicate that state legislatures and licensure boards are likely to further regulate these relationships even more aggressively. State licensure boards in New Jersey, for example, may require physicians to refuse lunches provided by representatives of pharmaceutical manufacturers. Physicians may also be required to disclose payments of more then $200.00 as a condition of licensure.

There seems to be a perception among state governments that federal regulation of relationships between physicians and providers who receive referrals from them has been ineffective. Consequently, state regulation is likely to become more extensive and frequent. Stay tuned for more information about this important trend.


©Copyright, 2010. Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

NAHC Report Article


Thursday, June 17, 2010

________________________________________

Fifty Representatives Endorse Home Health Care Planning Improvement Act

Bills Would Allow NPs, PAs, and Other Professionals to Sign Home Health Plans of Care

With the help of home care advocates, Rep. Allyson Schwartz (D-PA) has garnered 50 cosponsors for her legislation, the Home Health Planning Improvement Act of 2010 (H.R. 4993). The National Association for Home Care & Hospice (NAHC) thanks all home care advocates who helped encourage their representatives' support for this legislation (NAHC Report, 4/28/10) The bill would allow nurse practitioners (NPs), clinical nurse specialists, and physician assistants (PAs) to order home health services under Medicare in accordance with state law.

Rep. Schwartz -- who serves on the House Ways and Means Committee, which has jurisdiction over Medicare and Medicaid -- and the bill's Republican cosponsor, Walter Jones (R-NC), have been circulating a new, bipartisan "dear colleague" letter describing the bill and seeking cosigners among fellow House members.

"Even though nurse practitioners and physician assistants are currently able to order nursing home care for Medicare beneficiaries, they are not able to order less costly home care services," Schwartz and Jones point out in the letter. "The Home Health Care Planning Improvement Act, H.R. 4993, would ensure that our Medicare beneficiaries get the home health care they need in a timely manner." You can help by downloading the letter and forwarding it to your representative's office -- see below for information to help you do so. In addition, Sens. Susan Collins (R-ME) and Kent Conrad (D-ND) have introduced a Senate companion bill (S. 2814), and NAHC urges all home care advocates to encourage their senators to add their names as cosponsors.

TAKE ACTION: Have your congressional legislators added their names to these important bills?

Click here and enter your zip code to find your federal legislators and their contact information. If your members of the House and Senate have not yet cosponsored H.R. 4993 or S. 2814, respectively, please contact their offices and encourage them to do so. When calling, ask to speak with the staffer who handles Medicare issues. To send an email on this issue to your members of Congress using the NAHC Legislative Action Network, click here.

Why Discharge Planners/Case Managers Need to Know About Legal Implications of Provision of Free Services to Patients

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-Mail: ElizabethHogue@ElizabethHogue.net

Based upon their overriding commitment to patients, case managers or discharge planners may be tempted to “take up the slack” by urging post-acute providers to render free or voluntary services to patients. Case managers/discharge planners may state to post-acute providers that they will not receive additional referrals unless they agree to provide services to so-called “indigent patients,” some of whom may not have a payor source for their care.

Staff members who provide free services and organizations that allow staff members to do so run the risk of engaging in fraudulent conduct. Specifically; to the extent that free or voluntary services are perceived as an inducement to patients to initiate, continue, or re-initiate services with particular providers; organizations and practitioners may run the risk of violation of Medicare/Medicaid fraud and abuse prohibitions, especially the federal anti-kickback statute. Violations may also occur if provision of free services is an inducement for additional referrals, as described above. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), a primary source of enforcement activity, has clearly stated that the provision of free services to beneficiaries may constitute a violation of these prohibitions.

The OIG has also clearly delineated limits on free items and services that may be provided to patients. Providers may give patients only non-cash items of nominal value. Non-cash items, including free services, may not exceed $10.00 in value at a time and $50.00 in value during a calendar year. Most post-acute services, including even one visit to a patient’s home, clearly exceed these limits.

This position may strike discharge planners/case managers as confusing and perhaps contradictory. Since the point of enforcement is to prevent unnecessary costs, shouldn’t the government welcome the provision of free services to beneficiaries by providers that save money, since they are free? Nonetheless, the government’s point of view is that, when free services result in additional utilization of services, there is a potential fraud problem.

The question of whether free services induce beneficiaries to utilize services paid for by the Medicare/Medicaid and other federal and state healthcare programs that they otherwise would not have utilized is certainly a tricky one to answer. In the current environment of hypersensitivity to fraud and abuse, the best course of action for post-acute providers is likely to completely avoid the provision of free services to patients.

In response to these concerns, providers may wish to develop and implement a policy that permits provision of so-called “charity care” after the requirements of the policy have been met. At a minimum, such policies should require providers to bill patients three times before writing off the services as “charity care.” This practice is likely to help “shield” providers from allegations of fraud.

The good intentions and fine motivations of case managers/discharge planners must be acknowledged. The “bottom line,” however, is that the provision of free services is problematic in today’s healthcare environment and should be avoided for all of the above reasons.

©2010

Elizabeth E. Hogue, Esq. All rights reserved.

No portion of these materials may be reproduced in any form without the advance written permission of the author.

The Latest on the Red Flags Rule

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

The Federal Trade Commission (FTC) will begin enforcement of the Red Flags Rule on June 1, 2010. This Rule was created to ensure that certain types of organizations are doing everything in their power to identify, prevent, and reduce incidences of identity theft. Most health care providers are subject to this Rule that requires businesses to develop identity theft Programs tailored to the characteristics of their organizations. Although the FTC will not take any enforcement action before June 1, 2010, providers are still required to comply. (See information below regarding available materials.) There is, however, legislation pending in Congress that may change requirements to comply with the Rule.

Specifically, on October 8, 2009 H.R. 3763 was introduced into the House of Representatives. This proposed bill would amend the Fair Credit Reporting Act to exclude small businesses, including some health care providers, from Red Flags Rule requirements. This legislation was passed by the House of Representatives on October 21, 2009. It is currently being reviewed by the Senate Committee on Banking, Housing, and Urban Affairs. Section 1 of the proposed legislation provides as follows:

(4) EXCLUSION FOR CERTAIN SMALL BUSINESSES – For purposes of this subsection, the term ‘creditor’ shall not include—

(A) a health care practice with 20 or fewer employees;…or

(D) any other business, if the Commission determines, following an application for exclusion by such business, that such business—

i   knows all of its customers or clients individually;

ii   only performs services in or around the residences of its customers; or

iii   has not experienced incidents of identity theft and identity theft is rare for businesses of that type.

(5) DEFINITIONS – For purposes of this subsection:

(A) EMPLOYEE – With respect to a business, the term ‘employee’ means any individual who works for such a business and is paid either wages or a salary.

(B) HEALTH CARE PRACTICE –

(iv) IN GENERAL – The term ‘health care practice’ means a business that’s primary service is providing health care via health care professionals employed by the business.

(v) HEALTH CARE PROFESSIONAL – For purposes of subparagraph (A), the term ‘health care professional’ means an individual engaged in providing health care and licensed under State law, including physicians, dentists, podiatrists, chiropractors, physical therapists, occupational therapists, marriage and family therapists, optometrists, speech therapists, language therapists, hearing therapists, and veterinarians

If this proposed legislation is enacted, the Red Flags rule may not apply to some providers. Some providers may also qualify for an exclusion from the Rule, as indicated above.

There’s always something new in healthcare!

We have developed materials for you to use to meet the requirements of the Rule. The materials are appropriate for use by all providers, including home health agencies; private duty agencies; hospices; HME suppliers; and individual providers, such as therapists, ALF’s/ILF’s, physicians, etc. The materials include a comprehensive Policy, as required by the Rule, which should be used to provide training that is also mandated by the Rule. In addition, the materials include a resolution to be adopted by the governing body per the Rule.

The cost of these materials is $200.00. Please send a check made out to Elizabeth E. Hogue, Esq. to: Fulfillment, 107 Guilford, Summerville, SC 29483. We are unable to accept credit cards. Please be sure to include the name and e-mail address of the person who should receive the materials. We will e-mail them to the designated recipient upon receipt of payment.

©2010
Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Why Discharge Planners/Case Managers Need to Know About Legal Implications of Provision of Free Services to Patients

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-Mail: ElizabethHogue@ElizabethHogue.net

Based upon their overriding commitment to patients, case managers or discharge planners may be tempted to “take up the slack” by urging post-acute providers to render free or voluntary services to patients. Case managers/discharge planners may state to post-acute providers that they will not receive additional referrals unless they agree to provide services to so-called “indigent patients,” some of whom may not have a payor source for their care.

Staff members who provide free services and organizations that allow staff members to do so run the risk of engaging in fraudulent conduct. Specifically; to the extent that free or voluntary services are perceived as an inducement to patients to initiate, continue, or re-initiate services with particular providers; organizations and practitioners may run the risk of violation of Medicare/Medicaid fraud and abuse prohibitions, especially the federal anti-kickback statute. Violations may also occur if provision of free services is an inducement for additional referrals, as described above. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), a primary source of enforcement activity, has clearly stated that the provision of free services to beneficiaries may constitute a violation of these prohibitions.

Part 1 – Health Care Reform: Physicians and Patients’ Right to Freedom of Choice of Providers

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

To date, only hospitals are required to present lists of some types of providers to patients so that they can choose which providers they want to render services to them. Likewise, statutes in some, but not all states, require physicians and other types of providers to give notice to patients if they have financial/ownership interests in providers to which they make referrals. As a result of health care reform, the “picture,” with regard to physicians and patients’ right to freedom of choice, is about to change.

Specifically, physicians who make referrals for certain types of imaging services are required to inform patients in writing at the time referrals are made that patients may obtain services from providers of their choice. Physicians are also required to provide patients with a list of providers who supply such services in areas in which patients reside. It appears that the Secretary of the U.S. Department of Health and Human Services (DHHS) may also have the discretion to apply this requirement to other designated health services (DHS) under the so-called Stark laws, including home health and HME services.