August - December 2011

Announcements:

The attorneys of the HLP regularly author articles in publications nationwide.  We invite you to read a selection of the articles we have published since August of this year regarding developments in healthcare law and what it can mean for your future business decisions.  As always, we encourage you to visit our website and our blog for timely guidance on regulatory developments and government actions, as well as contacting us directly by phone or e-mail to address your specific needs.

CMS Publishes the 2012 Physician Fee Schedule Final Rule

by Adrienne Dresevic, Esq. and Carey F. Kalmowitz, Esq., AHRA Link, December 2011.

On November 28, 2011, the Centers for Medicare & Medicaid Services (CMS) published the 2012 Physician Fee Schedule Final Rule in its effort to ensure that the present Medicare payment system reflects changes in medical practice and the relative value of medical services. The publication of the Final Rule follows in the wake of the heavily debated 2012 Physician Fee Schedule Proposed Rule issued in July of this year. A number of noteworthy modifications brought about by the Final Rule are of special interest to providers and suppliers of radiology services and should be carefully reviewed as the January 1, 2012 Final Rule implementation date fast approaches.  Learn more >

ACO Final Rule and Guidance Documents Released

by Adrienne Dresevic, Esq. and Carey F. Kalmowitz, Esq., AHRA Link, November 2011.

On October 20, 2011, the Centers for Medicare & Medicaid Services (CMS) released the Accountable Care Organizations (ACOs) Final Rule. The highly anticipated release comes in the wake of the April 7, 2011 publication of the ACO Proposed Rule, which elicited a significant (and primarily negative) response from the provider community. According to CMS, the changes implemented within the Final Rule reflect its efforts at reducing participation burdens and costs for potential ACOs in light of concerns often expressed by stakeholders during the Proposed Rule comment period.  Learn more >

Anesthesiologists Targeted in CMS' Review of Existing Rules

by Neda Mirafzali, Esq., Communique, Fall 2011.

On August 22, 2011, as a result of a directive from President Obama, the US Department of Health and Human Services (“HHS”) issued its  Plan for Retrospective Review of Existing Rules (“Plan”).  The Plan includes a review from all HHS operating and staff divisions (e.g., the Centers for Medicare and Medicaid Services (“CMS”)) that establish, administer and/or enforce regulation.  HHS’ Plan aims to review “existing significant regulations to identify those rules that can be eliminated as obsolete, unnecessary, burdensome, or counterproductive or that can be modified to be more effective, efficient, flexible, and streamlined.”  While, on its face, a review of unnecessary regulations appears to be beneficial, looking below the surface reveals that the review may create fundamental changes in medical and anesthesia practice.  CMS is contemplating reviewing the conditions of participation (“CoPs”) for anesthesia services (42 CFR 482.52) to eliminate the certified registered nurse anesthetist (“CRNA”) supervision requirement, which  could significantly impact anesthesiologists, CRNAs, their practices and their patients. Learn more >

CMS Published the Medicaid RAC Final Rule

by Adrienne Dresevic, Esq. and Carey F. Kalmowitz, Esq., AHRA Link, October 2011.

In light of governmental efforts aimed at cutting federal agency waste, the Centers for Medicare & Medicaid Services (CMS) published the Final Rule regarding the Medicaid Recovery Audit Contractor (RAC) program on September 16, 2011. Since the Medicaid RAC program is projected to recover $2.1 billion over the next five years, it is crucial that radiology providers are familiar with the Final Rule and take steps now to prepare themselves in the event that they are subjected to such an audit in the future. The implementation date for the Final Rule is set for January 1, 2012, and all states are projected to have their Medicaid RAC programs instituted at that time. Learn more >

Use Care with Social Media to Project Professionalism, Protect Patients

by Robert S. Iwrey, Esq. and Stephanie P. Ottenwess, Esq. Michigan Medical Law Report, Fall 2011.

Medical practices, like all businesses, face competition from other offices in their area and thus often seek to differentiate themselves by portraying value and quality to their prospective patients.  The use of social media outlets like Facebook and Twitter, or collaboration tools like blogs or wikis, have provided a place for patients to learn about a physician’s practice and decide on the value and quality of the practice before they become a patient.   As a result, healthcare providers are more frequently utilizing social media to market their practices and to dispense health information.  In doing so, however, it is critical for any physician or practice to ensure that the use of social media outlets does not inappropriately invade the physician-patient relationship or erode a continued positive internet presence for healthcare providers.  Learn more >

ER Call Pay Highly Regulated and Can Be Quite Restrictive

by Robert S. Iwrey, Esq. Michigan Medical Law Report, Fall 2011.

A physician’s duty to undertake hospital emergency department call and whether or not the hospital is required to pay for such call coverage (and if so, how much) is a complicated and evolving matter with vast ethical, legal and medical implications.  Typically, hospitals require physicians within certain specialties to share in some minimal amount of emergency department call coverage in order for the hospitals to meet certain federal and state quality of care requirements (e.g., EMTALA) and therefore mandate that these physicians provide some minimal call coverage in order to obtain and maintain medical staff privileges at the hospitals.  However, over the years, in certain geographic areas, there has been a reduction in the willingness of physicians to provide such coverage, in part, due to an increase in the number of uninsured patients receiving their only care in emergency rooms, a shortage of certain specialty physicians, falling reimbursement for certain specialty physician services, and a perceived increase in the risk of lawsuits to the physician if the physician provides such coverage.   Learn more >

CMS Transmittal 380: Enrollment Procedures for Advanced Diagnostic Imaging Accreditation

by Adrienne Dresevic, Esq. and Carey F. Kalmowitz, Esq., AHRA Link, September 2011.

The Centers for Medicare & Medicaid Services (CMS) issued Transmittal 380 on August 3, 2011 in order to update CMS enrollment application forms (ie, CMS 855 I and CMS 855 B) to reflect information regarding Advanced Diagnostic Imaging (ADI) accreditation. Transmittal 380 does not require ADI suppliers that are currently enrolled and accredited by a CMS recognized body to take any action.  Learn more >

In fiscal year 2010 alone, the Government Accountability Office estimates that $70 billion in improper Medicare and Medicaid payments were made. In March 2010, President Obama issued a Memorandum directing federal agencies to expand their use of recovery audits in an effort to reduce such improper payments. Days later, the Patient Protection and Affordable Care Act (“PPACA”) was signed into law, expanding the Recovery Audit Contractor (“RAC”) program to include claims submitted under Medicare Part C (i.e.,Medicare Advantage), Medicare Part D (i.e., prescription drug benefit), and Medicaid. Although implementation of the statutory mandate to expand the RAC program has been slower than expected, the Centers for Medicare & Medicaid Services (“CMS”) is now actively moving forward with RAC program expansion. Legal counsel representing healthcare providers and suppliers ought to be mindful of this forthcoming claims scrutiny.   Learn more >

August - December 2011