The Centers for Medicare and Medicaid Services (CMS) has just issued a proposed rule that will make it more difficult than ever for anesthesiologists and pain physicians to qualify for the Medicare or Medicaid electronic health records (EHR) incentive.  There will be a 60-day comment period, after which CMS will review the feedback and publish a final rule this summer.BackgroundUnder the Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, eligible health care professionals and hospitals can qualify for Medicare and Medicaid incentive payments when they adopt certified EHR technology and use it in a meaningful way. What is considered “meaningful use” is evolving in three stages:Stage 1 (which began in 2011 and remains the starting point for all providers): “meaningful use” consists of transferring data to EHRs and being able to share information, including electronic copies and visit summaries for...

??When asked why he robbed banks, Willie Sutton responded, “Because that’s where the money is.”Ambulatory surgery center (“ASC”) owners, often surgeons, seek to obtain a share of anesthesia fees for the same reason. But instead of a gun, many are turning to a new model of money extraction, the so-called “company model.”The abrupt bank robber approach to demanding a kickback is clearly illegal: “Bob, if you want to provide anesthesia at Greenacres ASC, you’ve got to pay us thirty cents on the referred dollar”.Although there are far more ASC owners willing to take the bank robber approach than the industry likely will admit, some ASCs are choosing a slightly softer approach — forcing the anesthesiologists working independently at the ASC to instead work for an ASC affiliated entity that distributes a share of the anesthesia fees back to the ASC owners.“Bob, if you want to provide anesthesia at Greenacres ASC, you’ve...

Have you heard about the federal privacy and security compliance audit pilot program?  The Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the 2009 stimulus package, requires the Department of Health and Human Services (HHS) to conduct periodic audits to ensure covered entities and business associates are complying with the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules and Breach Notification standards.  To implement this mandate, the HHS Office of Civil Rights (OCR) is piloting a program to perform up to 150 audits of covered entities to assess privacy and security compliance. The pilot phase began in November 2011 and will conclude by December 2012. The HITECH Act enhances HIPAA’s privacy and security provisions by requiring “covered entities” such as physicians and their business associates to provide for notification in the case of breaches of unsecured protected health information (PHI).  The breach...

Written by: Neda Mirafzali, Esq. and Kathryn Hickner-Cruz, Esq.The Health Law Partners, P.C., Southfield, MIIn the Summer 2011 issue of the Communique, we analyzed the then-new Medicare Shared Savings Program (“MSSP”) accountable care organization (“ACO”) proposed rule (“Proposed Rule”) (issued by the Centers for Medicare and Medicaid Services (“CMS”) on April 7, 2011) as it related to anesthesiologists. At that time, physicians’ desire for involvement in the MSSP (which was born as part  of President Obama’s healthcare reform law) was bleak, at best.  The Proposed Rule introduced barrier after barrier after barrier that left the medical community disappointed and angry.  Anesthesiologists were left with no clear understanding of the role they would play in the new push for better care for individuals, better health for populations, and lower growth in expenditures—CMS’ three-part aim for ACOs.  Anesthesiologists were dubious as to whether they would actually enjoy a piece of the Medicare shared savings...

In any financial transaction, the person holding the money is at an advantage.  Getting money back from someone who should not have been paid is harder than not making the payment in the first place.   CMS knows this, and that is why it is placing a new emphasis on prepayment review of claims.  Originally slated to begin on January 1, 2012 the prepayment review initiative will now formally launch in June.  The number of prepayment reviews is going to increase from 1.2 million to 2.7 million claims per year. There is a large amount of taxpayer dollars at stake.  In 2011, the Medicare fee-for-service improper payment rate was 8.6 percent, or $28.8 billion in estimated erroneous claims payments.  Medicaid adds another $21.9 billion.  During 2011, CMS recovered $5.6 billion in fraudulent payments, an increase of 167 percent over 2008. The increase in recoveries is attributable in major part to the $350...