Stark Law Application to Medicaid Claims: While the Stark Law on its face applies only to Medicare, recent court decisions have found that a Medicaid claim filed in violation of the Stark Law also constitutes a false claim. Courts have now found False Claims Act liability for Medicaid claims filed in violation of the Stark Law. Historically, the federal government had focused enforcement efforts on Medicare claims. Carving out Medicaid referrals and claims in health care transactions is no longer prudent. All contracts and transactions should be reviewed for compliance with the Stark Law even if the contract only applies to services for private pay or Medicaid patients.
Medicaid Integrity Contractor Audits: As the Medicaid review auditors are finalizing their review of the big data to identify providers who fall outside billing standards, these reports are being released to Medicaid for provider audits and collection of overpayments. Challenging overpayments must be made through Kentucky’s Medicaid appeal process, which establishes important deadlines for requesting a dispute resolution meeting when an overpayment is identified. If a DRM is not requested, then repayment is due in 30 days. Providers should pay close attention to these deadlines and exercise their ability to challenge overpayments.
Measuring Quality: As CMS’ Physician Compare website joins the nursing facility and hospital compare websites, physicians must be ever mindful that quality scores will ultimately affect reimbursement for all payors, not just Medicare and its incentive payments. Physician groups as well as all providers should carefully develop their quality measures. As ACOs, hospital systems and payors develop their own quality measures, individual physicians must be aware of those measures and how they affect them. Participation in networks, ACOs, and even Medicaid may become tied to performance. All physicians, even those who are employed by health systems, should be careful in their contracting and knowledgeable about their individual quality and performance.
Medical Staff Membership and Credentialing: Changes in Joint Commission for Accreditation of Health Care Organization’s requirements for medical staff credentialing have made evaluation of a physician’s quality of care an element of the credentialing and recredentialing process. How this evaluation takes place and the factors that are considered are left to the medical staff, which, in effect, usually means administration. The information about this evaluation becomes a permanent part of a physician’s records. Every physician should be aware of this, find out about evaluation results, and challenge them if necessary. A challenge does not mean that a physician impairs his/her privileges, but rather seeks to maintain an accurate credentialing file.
Expansion of Medicaid Beneficiaries: With Kentucky’s successful rollout of its Health Insurance Exchange and the possibility of 308,389[i] new Medicaid beneficiaries, what is the health care provider’s duty to take on more Medicaid patients? Should a provider establish express limits on the number of Medicaid patients that a practice will accept as patients? Does this create liability under provider agreements with Medicaid Managed Care payors? These issues will become even more important as the number of beneficiaries increases.
Prescribing Controlled Substances in Kentucky: The war on prescription drug abuse has taken a terrible toll on physicians as House Bill 1 and the implementing regulations issued by the Kentucky Board of Medical Licensure have forever changed how and when a physician may prescribe controlled substances. While the regulations have been slightly tweaked, physicians must take extraordinary efforts to build the procedures and processes required for prescribing into their day- to- day practice. Physicians should be aware that the Drug Control Branch of Kentucky’s OIG routinely reviews KASPER data and reports the highest prescribers of controlled substances to the KBML for investigation. Physician responses to these investigations must be careful and complete with the understanding that there is little recourse if a violation is found.
In conclusion, 2014 promises to be anything but boring.
[i] Small Area Insurance Estimates (2010), U.S. Census Bureau
McBrayer, McGinnis, Leslie & Kirkland, PLLC