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[Author’s Note: This article is based on my presentation at the 2016 Advanced Institute for Anesthesia Practice Management.] The OIG Advisory Opinion (Advisory Opinion) process allows parties of actual or proposed transactions to obtain the opinion of the Office of Inspector General (OIG) of the U.S. Department of Health & Human Services as to whether that transaction violates the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (AKS). There’s an official process for obtaining an OIG Advisory Opinion. Then there’s the actual way that the process works. And, then there are the secrets and strategies that can be used in connection with opinions. For decades, I considered Advisory Opinions as a set of guideposts as to how the OIG, as the primary agency charged with enforcing the federal AKS, thinks as to the application of that statute. But then I realized that there was a very different way to think of them,...
An anesthesiologist recently received a several-year prison sentence for prescribing controlled substances without a legitimate medical reason. One of this physician’s patients died from taking hydrocodone, which the physician had prescribed for no legitimate medical purpose. This is an extreme case involving criminal behavior. Still, any allegation of Medicare or Medicaid fraud or abuse surely ranks at the top of an anesthesiologist’s—any physician’s--list of nightmare scenarios. It behooves anesthesiologists, as well as nurse anesthetists and anesthesia practice managers, to know the “red flags” of fraud and abuse that could lead to civil, criminal or enforcement liability. Failure to understand current laws or how to take the appropriate steps could expose you to risk without your even realizing it. Did you know, for example, that the Affordable Care Act (ACA) requires physicians to establish a compliance program and to designate a compliance coordinator in their practices? Or that the ACA established an Open...

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When most practice administrators started in anesthesia billing operations, collecting for services was markedly different than it is today, even if you are relatively new to the special. There are a variety of factors including government regulations, The Patient Protection and Affordable Care Act of 2009 (ACA), bundled payments, high deductible health plans, out-of-network payers and new plan designs, to name a few. The Patient Protection and Affordable Care Act “THE GREAT RACE TO THE BOTTOM” The Patient Protection and Affordable Care Act (ACA), or the ‘Great Race to the Bottom’ as some have coined it, brought massive change to the insurance market. Since the signing of this 2,000- page law in March of 2010, thousands of pages of regulations have been written and implemented. Moreover, additional regulations are on the way as the law gave the Secretary of the Department of Health and Human Services vast latitude to implement the...
We would like to say it isn’t so, but ransomware attacks haven’t tapered off; they’ve soared.  So far in 2016, ransomware attacks have risen 300 percent since 2015 (from 1,000 to 4,000 attacks daily), according to a government report.1  The healthcare sector—anesthesia providers included—is especially vulnerable. More than half of hospitals responding to an April survey by the Health Information and Management Systems Society (HIMSS) and Healthcare IT News reported that they had been attacked by ransomware in the previous year.  An additional 25 percent of hospitals said they were either unsure whether they had been attacked, or had no way of knowing.  When it comes to data security, healthcare still lags far behind other industries, including banking and high-reliability fields such as nuclear energy, power utilities and aviation. This susceptibility makes hospitals and practices prime targets for hackers.  Personal health information is 50 times more valuable on the black market...
Press releases following a recent publication in the British Medical Journal (BMJ) hysterically echoed the article’s headline: “Medical error—the third leading cause of death in the U.S.”1 The authors used a variety of published sources on the incidence, lethality and preventability of medical errors to produce an estimate of 251,000 deaths per year attributable to medical error, out of a total of about 2.6 million. As a cause of death this would rank behind only heart disease (611,000) and cancer (585,000). While the purpose of the authors was to advocate for improved coding of the cause of death in vital statistics, the purpose of the commentary was to alarm the public regarding the current state of healthcare. Should we panic? I think not. Here’s why: First, understand that I’m not a criminal or even an apologist. I hate medical errors and I have devoted my career to their eradication. We should...
The final rule implementing Section 1557 of the Affordable Care Act, Nondiscrimination in Health Programs and Activities, offers important civil rights protections for individuals.  Anesthesia practices should understand the final rule, train staff in its provisions (or check with their hospitals on their plans for doing so) and make sure they are on target to meet the final rule’s procedural requirements. An anesthesiology group decides not to provide labor epidural anesthesia to women with limited English proficiency (LEP).1 A nurse ignores an African-American woman in the ER who needs medical attention and makes her wait for an hour, but provides prompt attention to a white male who enters the ER after her. A hospital refuses to treat men with breast cancer because it believes doing so would make female breast cancer patients uncomfortable. As you’ve probably guessed, these scenarios illustrate examples of discrimination under Section 1557 of the Affordable Care Act (ACA)....
SUMMARY The misuse and abuse of prescription opioids has become a serious public health problem in the United States and is a major factor in the recent increase in heroin addiction.  Practices can help to curtail this problem by staying abreast of new developments and guidelines stressing the prudent use of narcotics. The death in April of the musician Prince from an accidental overdose of fentanyl is only one of the more highly publicized instances of a public health problem in the United States that has reached epidemic scale.  According to the Department of Health and Human Services (HHS), 44 people die every day in the U.S. from an overdose of prescription painkillers. A recent analysis of more than 800,000 prescriptions written in 2013 showed that pain specialists and anesthesiologists wrote the most opioid prescriptions of any group of healthcare professionals—an average per physician of 900 - 1,100 and 500 prescriptions, respectively. ...
SUMMARY The U.S. Department of Veterans Affairs (VA) has issued a proposed rule to allow advanced practice registered nurses to practice within their full authority at veterans’ hospitals across the country, preempting certain State laws prohibiting the practice.  Although certified registered nurse anesthetists (CRNAs) have not yet been given the green light to furnish anesthetics, the VA continues to consider this issue. Introduction Few are unfamiliar with the general state of veterans and healthcare in our country.  According to statistics recently released by the VA, an average of 20 veterans died from suicide in 2014.1  Further, there is a backlog of nearly 500,000 veterans waiting 30 days or longer to receive care at VA facilities across the U.S.  This is higher than the numbers from one year ago when reports were released that showed veterans dying while waiting for care as a result of the backlog.2  In an effort to combat these...
Introduction To hospitals, the Centers for Medicaid & Medicare Services (CMS) is acting like the terrible Wicked Witch of the West from the movie the Wizard of Oz because of their proposed plans for site-neutral rate reductions.  The proposed modifications in reimbursement are included in the 2017 Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System (CMS-1656-P) proposal submitted on July 6, 2016.  The law provides for payment system policy changes, quality reporting provisions, and reduced pay rates that many hospitals would prefer to douse with water and have them disappear like the Wicked Witch rather than have payments reduced at their off-campus facilities. CMS is proposing a number of policies they believe will improve the quality of care Medicare patients receive.  A key piece of the 2017 proposed legislation is the implementation of Section 603 of the Bipartisan Budget Act of 2015, which will affect how...
Prior to addressing the main topic of today’s alert, we felt it necessary to inform our readership of the recent proposed changes made by the Centers for Medicare and Medicaid Services (CMS) in its CY 2017 Proposed Physician Fee Schedule (PPFS).  In the CY 2016 PPFS, CMS proposed reexamining the anesthesia codes reported in conjunction with colonoscopy procedures (i.e., 00740 and 00810) as potentially misvalued.  In the CY 2017 PPFS, CMS continues to maintain that 00740 and 00810 are misvalued and it “look[s] forward to receiving input from interested parties and specialty societies for consideration during future notice and comment rulemaking.”  Moreover, CMS notes that although sedation services are included in certain endoscopic procedures, that anesthesia is being separately reported.  As such, “[i]n the CY 2017 PFS proposed rule, CMS is proposing values for the new CPT moderate sedation codes and proposing a uniform methodology for valuation of the procedural codes...

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The transition to the International Classification of Diseases and Related Health Problems 10th revision (ICD-10) appears to have gone well so far, despite widespread anxiety that it would wreak havoc across healthcare as providers struggled to comply with the new coding structure, heightened specificity and documentation requirements.  The Centers for Medicare and Medicaid Services (CMS) reports that total claims denials and other claims metrics remained essentially unchanged from the historical baseline to the fourth quarter of calendar year 2015. In a blog post, Andy Slavitt, CMS acting administrator, likened the healthcare industry’s anticipatory concerns surrounding ICD-10 to the Y2K information technology disaster that never took place.  “With preparation, planning, a focus on the customer, collaboration, clear accountability, and metrics, the dire Y2K fears didn’t come to pass.  Instead, ICD-10 became like what actually occurred on Y2K, an implementation and transition most people never heard about,” he said. So far, so good. Nonetheless,...
All physicians, group practices and other providers who participate in Medicare are required to resubmit and recertify the accuracy of their enrollment information every five years through a revalidation process. Section 6401 (a) of the Affordable Care Act established new screening requirements for providers; required them to be revalidated under those new requirements, and reinforced the revalidation regulations at 42 CFR §424.515.  The first cycle of enrollment revalidations ended as the second cycle began in March 2016. Required Actions Physicians and other clinicians must submit their revalidation applications by the last day of the month in which they are due.  Your Medicare Administrative Contractor (MAC) is expected to notify you of the due date within two to three months of your revalidation deadline, by email or by regular mail.  Generally, this due date will remain with you throughout subsequent revalidation cycles.  Centers for Medicare & Medicaid Services (CMS) also maintains a list...
The ASA adopted its Statement on Principles for Alarm Management for Anesthesia Professionals at its annual meeting in October 2013.  The introduction to the Statement provides as follows: As Anesthesia Professionals, we interact with many different types of monitors, machines, infusion pumps and other equipment; many of these devices have audible and/or visual alarms.  We rely on alarms to signal us when set parameters/ thresholds are violated and/or when a potentially abnormal situation has occurred.  A given alarm’s clinical usefulness depends on numerous factors including attributes of the patient (e.g., baseline clinical status and vital signs), the clinical situation at the time (e.g., anesthetic and procedural factors), the intended recipient(s) (e.g., experience, hearing acuity), unintended recipients (who may be distracted or worried), and the physical environment (e.g., noise and light levels).  Management of these alarms becomes challenging, especially in that we must rapidly discern when a trigger is trivial, meaningful or...
In the Winter 2016 issue of The Communique, we offered Part I of a summary of state laws (Alabama through Iowa) involving the peer review process. Here we are continuing that summary with the remaining states (Kansas through Wyoming).1     ...
Have you ever found that you could not make heads or tails of a Medicare regulation?  Have you wondered whether even CMS could decipher and coherently apply its own rules?  The sheer volume of regulations makes it difficult to be certain of one’s interpretation: Medicare is, to say the least, a complicated program. The Centers for Medicare & Medicaid Services (CMS) estimates that it issues literally thousands of new or revised guidance documents (not pages) every single year, guidance providers must follow exactingly if they wish to provide health care services to the elderly and disabled under Medicare’s umbrella. Currently, about 37,000 separate guidance documents can be found on CMS’s website. Caring Hearts Personal Home Services, Inc. v. Burwell (No. 14-3234) (10th Cir. 2016).  Caring Hearts, a home health agency, had been ordered to refund more than $800,000 to CMS on the grounds that some of the physical therapy or skilled nursing services...

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One of Robert Frost’s most popular poems is The Road Not Taken. It is about two paths that diverge in the woods. It is a wonderful and powerful metaphor for the decisions we make in life. By selecting one option we inevitably forgo another. More often than not this results in endless speculation as to whether it was the right choice. And so it is with the strategic decision to sell one’s anesthesia practice. The allure of being part of a bigger, stronger and better-managed entity is a powerful draw but does it really result in a more secure practice situation? That is the question of the day. Anesthesia providers are a curious breed. They are credited with having the shortest decision cycle in medicine. They routinely make critical life and death decisions in a matter of seconds. Ironically, despite their facility in the operating room, when presented with major strategic...
Most anesthesiologists know in general fashion that there are "compliance" issues with professional courtesy, co-payment waivers and discounts for cash payments.  Yet confusion persists about exactly how to handle these situations. The legal principles have not changed in the nearly two decades since the HHS Office of the Inspector General (OIG) issued its Compliance Program for Individual and Small Group Physician Practices.  The basic standards are still as spelled out by the OIG: In general, whether a professional courtesy arrangement runs afoul of the fraud and abuse laws is determined by two factors:  (i) How the recipients of the professional courtesy are selected; and (ii) how the professional courtesy is extended.  If recipients are selected in a manner that directly or indirectly takes into account their ability to affect past or future referrals, the anti-kickback statute—which prohibits giving anything of value to generate Federal health care program business—may be implicated.  If...
Given the heightened level of interest in acquisitions of independent anesthesiology groups, physician shareholders are being confronted with a myriad of questions. Many are finding that anesthesiology groups in the local region are being acquired by larger medical groups. What should their practice do? What would be the value of their practice if they sought to be acquired? What does the acquisition process look like and how could maintaining a steady course of non-action not result in the best long term outcome? Your Practice has Equity Value Over the years, long-standing relationships have been developed with other healthcare providers and service contracts have been established with medical facilities, securing work for all the practice-employed physicians. A practice will accumulate a substantial amount of sweat equity, which has an equally substantial amount of economic value associated with it. Opportunity currently exists to monetize the value of this equity, and depending on regional...
For patients who undergo a surgical procedure, the anesthesiologist’s bill sometimes comes as a surprise.  If the hospital and the surgeon are participating in the patient’s health plan but the anesthesiologist is not in the network and bills the difference between his or her full charge and what the health plan paid, the amount that the patient owes can be a nasty shock.  Large balance bills are often stressful for patients and are a major source of medical debt. Balance billing is a significant issue across the U.S.  As insurance companies have narrowed provider networks to keep premiums down, the number of patients who inadvertently receive out-of-network care has jumped at hospitals, particularly with regard to contracted physicians such as anesthesiologists. In March 2015, the Consumer Reports National Research Center conducted a survey of 2,200 adults that revealed that nearly one third of privately insured Americans received a surprise medical bill...
Computers and improvements in modern anesthesia delivery have gone hand-in-hand. In 1952 Himmelstein and Scheiner reported that they began using an instrument called the cardiotachoscope and found it useful during surgery. In 1958 Ben Ettelson and James Reeves started Spacelabs to develop systems for the United States Air Force for monitoring vital signs of U.S. astronauts.1 This technology returned to earth, with the 1970s witnessing the expansion of digital electronics in operating rooms (ORs) and critical care units (CCUs). The 1980s saw clinical penetration of modularity and utilization of saturation and end-tidal carbon dioxide monitoring. As pharmaceuticals developed shorter and shorter clinical half-lives and microprocessor technology continued to improve, the concepts of closed-loop (CL) anesthesia, targeted-controlled infusion (TCI) devices and other computer controlled delivery systems moved from theoretical possibilities to clinically relevant systems.2 In the late 1990s Dr. Randy Hinkle, an anesthesiologist, formulated the initial concept that ultimately became Computer- Assisted...