Health Care Lawyer Blog

It’s no secret that the health care reform legislation steamrolled through Congress late last year has lost much of its momentum. Although the headline-seizing GOP victory in Massachusetts last week only means the loss of one single Senate seat, political commentators and lawmakers have acknowledged this virtually eliminates the chance of a final health care reform bill being passed anytime soon. Indeed, last Tuesday’s events in a tiny state of only 6.5 million has thrown Capitol Hill into a tailspin, with many viewing it as a catastrophic failure of the Democratic party and Newsweek’s latest cover story referring to Obama as the “stymied President of 2010.”

What’s devastating and frustrating is that while everyone agrees the current health care system doesn’t work, apparently no one will agree or take action on how to fix it. Even the anti-health care fraud legislation introduced last year by Senators Ted Kaufman (D-Del.) and Charles Grassely (R-Iowa) hasn’t advanced since October 28 and November 16, respectively, when the bills were referred to Senate committees. Is America so far politically divided that we can’t even agree that unscrupulous practitioners stealing health care funds is wrong and needs to be stopped?

After the jump - why health care fraud affects everyone

Continue reading " Editorial: Stopping Fraud Should Be A First Step in Health Care Reform " »

Each year, the proposed Medicare Physicians Fee Schedule (MPFS) rates threaten to take a nosedive, and each year Congress has stepped in to prevent those cuts from occurring. The 2010 MPFS (originally slated to take effect January 1, but subsequently delayed until February 28) contain cuts of 21.1 percent, which are the most significant since 1992. The Fee Schedule is based on Medicare’s sustainable growth rate (SGR), a formula which is based on the economy’s health and has threatened cuts to physician payments every year since 2003.

The proposed 2010 cuts apply to all practice areas, although those expected to be the most affected include reumathologists, surgeons, pain management specialists, radiologists, and non-invasive cardiologists. For example, payments for echocardiography procedures are expected to plummet 35.5 percent, and payments for MRI spine lumbars will drop around 20.93 percent.

Groups such as the AMA and AARP claim (not surprisingly) that linking physician reimbursement to the country’s gross domestic product growth is a mistake – specifically, such groups argue that the cost of running a medical practice typically grows at a higher rate than the GDP.

The versions of the House and Senate health care reform bills both replace versions of the MPFS with raises – 1.2 percent and .5 percent, respectively. The Senate bill is a one-year “patch” which only defers the program cuts to 2011. The House bill essentially erases accumulated SGR debt and gives physician a 1.2 percent raise based on the Medicare Economic Index, which measures inflation in physician-practice costs. This solution would add more than $200 billion to the federal deficit by wiping out the accumulated SGR debt.

With fate of both the House and Senate health care reform bills unclear after last week’s Massachusetts election, a separate vote may be needed to delay or cancel the 21.2 percent cut. The Senate is expected to vote on a debt-ceiling bill that would contain a permanent fix to the SGR and repeal the physician payment formula.

While news of health care reform has taken a backseat lately to fallout from the Dec. 25 terrorist attempt and the Haiti earthquake, Congressional leaders are continuing efforts to merge versions of the House and Senate health care bills passed last year.

One notable cut took place Saturday, when Nebraska Democratic Senator Ben Nelson agreed to drop the federal subsidy for Nebraska’s Medicaid program. Dubbed the “Cornhusker Kickback”, the subsidy gave special treatment to Nebraska’s Medicaid program in order to induce Nelson to cast the all-important 60th vote needed to defeat a Republic filibuster and pass the Senate health care bill. Given that the CBO estimated that the “Kickback” would cost taxpayers an additional $100 million over ten years, the compromise was not a popular one. Nelson agreed to drop the subsidy, reasoning that it had become a “sticking point” in the negotiations.

Despite winning Nelson’s vote, the Senate may have more problems ahead. Polls show that Massachusetts Attorney General Martha Coakley, the Democratic candidate running for the late Ten Kennedy’s (D-Mass) Senate seat, is slightly behind her Republican opponent, Republican State Senator Scott Brown. If Brown wins and Kennedy’s seat goes to a GOP member, the Senate may again lack the 60 votes needed to pass the health reform bill when it comes out of committee.

After the jump - House/Senate compromises continue

Continue reading " Update on Health Care Reform Legislation " »

If corrupt physicians and other health care providers submitting false claims to Medicare and Medicaid themselves wasn't bad enough, there's a new twist to the health care fraud scheme. According to a CNN.com article today, a new fraud trick where hospital administrators or physicians' assistants actually sell patient data to organized crime groups has become increasingly common.

The crime groups then use patients' medical insurance data and social security numbers to bill Medicare (and private insurers too) for drugs, equipment and treatment which was never actually prescribed. To collect the money, the fraudsters set up "shell" companies which can dissapear easily at the hint of a government investigation. Some criminals even sell patient insurance information to uninsured individuals who are desperate for medical care.

If there are no unscrupulous providers around to sell the information, many crime groups hack into digital medical records in order to siphon patient information. Unfortunately, such crime trends may be on the rise as the use of electronic health records increases.

Bottom line - we not only have to worry health care fraud, but identity theft too. Here's hoping that the increased HIPAA penalties will encourage health care providers to keep patient information safe.

By now, everyone knows (or should know) that under the Stimulus Bill, health care providers are required to make “meaningful use” of electronic health records (EHRs) by 2011 or face penalties in the form of reduced Medicare/Medicaid payments. What has been unknown until recently is what exactly “meaningful use” actually means.

The Centers for Medicare and Medicare Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) issued two proposed regulations December 30, 2009 outlining the terms of the EHR incentive programs, and identifying how providers can make “meaningful use” of EHR and the standards and specifications that will be used to develop “certified” EHR technology.

Both regulations are open to public comment until on or about March 2, 2010 and will take effect sometime in early 2010.

Here are some highlights from the regulations:

Definition of Meaningful User

CMS’s proposed rule defines the term “meaningful user” as an eligible professional or eligible hospital that, during the specified reporting period, meets the following three requirements:
(1) Demonstrates use of certified EHR technology in a meaningful manner;
(2) Demonstrates to the satisfaction of the Secretary that certified EHR technology is connected in a manner that provides for the electronic exchange of health information to improve the quality of health care such a promoting care coordination, in accordance with all laws and standards applicable to the exchange of information; and
(3) Using its certified EHR technology, submits to the Secretary, in a form and manner specified by the Secretary, information on clinical quality measures and other measures specified by the Secretary.

Both the CMS and ONC guidelines make clear that a major consideration of whether “meaningful use” is achieved will be a provider’s ability to securely exchange information among providers, and between providers and patients, using standardized data elements and technologies. The interim final rule issued by ONC set forth these standards and specifications on how to achieve meaningful use; for example, one recognized problem is how providers using EHR actually report patient data. For instance, one provider’s EHR program may list patient demographic information as (PatientAge, Patient Sex, Patient Address), while another provider’s may list similar information in a different way (Date of Birth, Gender, City/State). In order to achieve maximum interoperability, these information models must be reconciled.

After the jump - a phased approach to implementation

Continue reading " CMS/OCN Issue Proposed Definition of “Meaningful Use”, Set Standards for Electronic Health Records " »

The personal health information of thousands of Detroit area patients was compromised recently when five computers and a flash drive were stolen from the Herman Kiefer Health Center in downtown Detroit. The stolen devices contained electronic medical records for approximately 10,000 immunization program patients, including names, addresses, social security and Medicare/Medicaid numbers.

Following this electronic medical records security breach, many health care providers may be wondering how they would respond to a similar crisis. In light of the Congressional push to require health care providers to make “meaningful use” of electronic health records by 2011, the prevalence of electronic records is on the rise and will only increase in coming years. Additionally, the proper handling of such breaches has become even more crucial in light of the security breach notification requirements that were added last year to the Health Insurance Portability and Accountability Act (“HIPAA”).

Given that a medical records security breach is enough to send even the most seasoned health care provider into a panic, practitioners should familiarize themselves with the HIPAA breach notification requirements and establish written policies and operating procedures before a breach occurs. Importantly, providers who fail to adhere to the HIPAA breach notification requirements may face penalties of anywhere from $100 to $1.5 million, depending on the nature of the breach and the mental state of the provider.

After the jump - a crucial checklist for providers

Continue reading " Responding to an Electronic Medical Records Security Breach: What Every Health Care Provider Needs to Know " »