DOBI Issues Clarification on Retainer Medicine Arrangements by Network Physicians
April 27, 2012
Posted by Sharlene Hunt
In 2003, the Department of Banking and Insurance (“DOBI”) and the Department of Health and Senior Services (“DHSS”) issued a joint bulletin, DOBI/DHSS Bulletin 2003-02 , which severely limited the ability of physicians who participated with HMOs and other carriers, to require their patients to enter into retainer arrangements. Under a retainer arrangement, patients are required to pay a fee in addition to any copays or other amounts due under their managed care program, in order to receive services in addition to those provided under the managed care plan. DOBI has recently issued a bulletin clarifying in part and rescinding in part the earlier DOBI/DHSS bulletin.
The 2003 bulletin concluded that retainer agreements under which covered beneficiaries are required to pay a fee in addition to any cost sharing under their health benefits plan, was not acceptable. The Departments took the position that many of the services provided under such retainer arrangements were already required under New Jersey law to be covered under most health benefit plans. The Departments also found that retainer arrangements were inconsistent with the requirement under New Jersey law that all provider agreements assure that in network providers do not discriminate in the treatment of covered beneficiaries. The Departments found that requiring a covered beneficiary to enter into a retainer contract was not acceptable when the physician participated in the beneficiary’s network, regardless of whether the services covered under the retainer contract supplemented or duplicated the services already covered under the health benefits plan.
In Bulletin No. 12-02, DOBI concludes that “some mutually beneficial arrangements between patients and doctors have been hindered” by the 2003 bulletin. However, DOBI also stressed that a patient who enters into a retainer agreement with a network physician must continue to be able to receive the full benefit of their health benefit plan and not have to pay extra for already covered services. DOBI concluded that retainer arrangements offered by in network physicians will not be considered a discriminatory practice if the following four safeguards are put in place:
- the participating provider agreement should provide that members cannot be charged in excess of their cost sharing obligations under the health benefits plan. Any retainer agreement requiring an additional payment must be limited to services above and beyond the services covered under the plan, and those additional services must be clearly described by the physician to the patient.
- Health benefit plan members must have an unfettered right to an adequate network of participating providers who have not limited their practice by restricting patients to those who will enter into retainer agreements. Health plans are directed not to include physicians who limit their practices to patients willing to enter into retainer agreements for purposes of establishing network adequacy.
- Plan materials available to members listing network providers should not include practices that are limited to patients buying retainer services unless they are identified as such. Such physicians can either be excluded from the materials or the listing can include the retainer limitation.
- If a patient is already receiving services from a physician when the physician converts to a retainer practice, the patient must be entitled to all of the rights of a patient whose physician drops out of network. This includes the right to continue to receive care for periods set forth in regulatory requirements, without making any retainer payments.
Finally, DOBI recognizes that a physician may limit the number of patients the physician will accept in order to provide the enhanced level of care required under a retainer arrangement. Such limitations will not be considered discriminatory, even if the practice is closed to other patients, so long as the above requirements have been met. Health benefit plans are not required to allow their network providers to limit their practices by retainer agreements, but are allowed to do so so long as the requirements of the bulletin are met.
MEDICARE SOLVENCY: A CONTINUING CHALLENGE UPDATE
April 24, 2012
Posted by Frank Ciesla
The Medicare Board of Trustees the same as last year, projected that the Medicare program will be insolvent in 2024. Unfortunately, just as last year, the news may be even worse than that. If you read pages 277-279 of the Trustee’s report which is the Actuarial Opinion, there are two (2) critical assumptions being made by the Trustees in order for the Medicare Trust Fund to remain solvent until 2024. The first assumption is that the proposed cut in physician payments (effective January 1, 2013) of approximately 30.9% will go into effect, and the second assumption is that additional reductions in payments to other providers, presently provided for in the Patient Protection and Affordable Care Act (PPACA), will be implemented. As the Actuary similarly stated last year and repeated this year states:
“Without unprecedented changes in health care delivery systems and payment mechanisms, the prices paid by Medicare for health services are very likely to fall increasingly short of the costs of providing these services. By the end of the long-range projection period, Medicare prices for hospital, skilled nursing facility, home health, hospice, ambulatory surgical center, diagnostic laboratory, and many other services would be less than half of their level under the prior law. Medicare prices would be considerably below the current relative level of Medicaid prices, which have already led to access problems for Medicaid enrollees, and far below the levels paid by private health insurance. Well before that point, Congress would have to intervene to prevent the withdrawal of providers from the Medicare market and the severe problems with beneficiary access to care that would result. Overriding the productivity adjustments, as Congress has done repeatedly in the case of physician payment rates, would lead to substantially higher costs for Medicare in the long range than those projected under current law.”
As I stated last year regrettably, as can be seen by the Actuarial statement, radical changes will have to be undertaken to maintain the solvency of the Medicare program, and the question is whether those changes will be at the expense of the providers.
“Romneycare” a Precursor of “Obamacare”
March 8, 2012
Posted by Frank Ciesla
As commonly discussed, people look to “Romneycare” to see what steps are occurring in Massachusetts and whether or not those steps are precursors to what will happen under “Obamacare” (PPACA). At two speeches I attended last summer in Boston during the American Health Lawyers Association Annual Meeting, the Governor of Massachusetts praised the increased access and availability of health care to the residents of Massachusetts, but avoided discussions as to the growing cost of health care in Massachusetts. A day later in a speech by a Massachusetts Deputy Attorney General, he described the extraordinary steps taken by the State of Massachusetts to obtain information in regard to the cost of health care. Read more
Job Creation Act
February 29, 2012
Posted by Beth Christian
On Wednesday, February 22, 2012, President Obama signed into law the Middle Class Tax Relief and Job Creation Act of 2012 (Job Creation Act). This new law prevents a scheduled payment cut for physicians and other practitioners who treat Medicare patients from taking effect on March 1, 2012. The new law extends the current zero percent update for such services through December 31, 2012. Once again, this is a temporary solution, and does not provide a physician payment fix on a permanent basis.
Medicare Publishes Proposed Rule Regarding Reporting and Return of Overpayments
February 22, 2012
Posted by Beth Christian
Last week, the Centers for Medicare and Medicaid Services (“CMS”) published in the Federal Register notice of a proposed rule concerning the reporting and return of overpayments to the Medicare program. The proposed rule will require providers and suppliers to report and return Medicare overpayments by the deadlines specified. Providers will need to be very mindful of these deadlines if they discover an overpayment, since the failure to report can give rise to potential liability under the False Claims Act and the Civil Monetary Penalties Law. In addition, any person who knows of an overpayment and fails to report can be excluded from participation in the Medicare or Medicaid programs. Read more
No Valentine to Physicians from Congress as SGR Issue Remains Unresolved
February 14, 2012
Posted by Beth Christian
Physicians may need to gear up again for a potential 27.4% cut in Medicare reimbursement if Congress does not address the sustainable growth rate issue by the February 29th deadline. As you may recall from reviewing our earlier blog post, Congress averted a January 2012 reduction, which was enacted together with an extension of the popular payroll tax cut. However, earlier this week, members of the House Republican leadership announced that they were prepared to decouple the Medicare physician payment fix from pending legislation that would further extend the payroll tax cut. This enhances the possibility that physicians may be faced with a substantial cut in Medicare reimbursement on March 1st if Congress does not act on the matter by its Leap Day deadline.
OIG Issues Alert to Physicians Regarding Medicare Reassignment
February 8, 2012
Posted by Sharlene Hunt
The Office of Inspector General (OIG) today issued an alert to physicians regarding their potential liability on claims submitted by entities to whom the physician has reassigned the right to bill for Medicare payments. The OIG gives an example in which the OIG reached a settlement with eight physicians under the Civil Monetary Penalties Law. These physicians had reassigned their right to Medicare payments to companies providing physical medicine services, in exchange for the physicians serving as medical directors. The physicians did not personally provide or directly supervise any services to patients, however, the companies billed for services as though the physicians had. The OIG criminally prosecuted the owners and operators of the companies, and pursued the physicians under the Civil Monetary Penalties Law after determining that they were “an integral part of the scheme.”
In the alert, the OIG cautions physicians to scrutinize an entity before the physician reassigns his/her Medicare payments to ensure that the entity is a legitimate provider of health care. Any physician who reassigns his or her right to Medicare payment must complete and sign off on a CMS Form 855R. If a physician terminates the relationship giving rise to the reassignment, the physician should also file the CMS Form 855R, indicating that the previous reassignment relationship is terminated. While the entity can file the form terminating the reassignment on its own, physicians should be proactive in this regard to make sure that Medicare has been notified when the relationship terminates.
Physicians should also be proactive by having written agreements with any entity to whom the physician reassigns his or her right to Medicare payments, giving the right to review any bills submitted under the physician’s name to confirm that services are being billed accurately. Under the Medicare reassignment rules, with respect to the Medicare program, both the physician and the billing entity have joint and several liability for any Medicare overpayment relating to a reassigned claim. Under these same rules, the physician has the unrestricted right to access claims submitted by the entity for services provided by the physician.
Ambulatory Surgery Facility Inspection Reports Now Available On Line
February 7, 2012
Posted by Beth Christian
As we have reported in a January 16th, January 18th, and January 30th blog post, legislation which would require the licensure of surgical practices by the Department of Health and Senior Services is currently pending in the New Jersey Legislature. On February 1, 2012, the Department of Health and Senior Services published an update to its website which includes inspection reports for existing licensed multi-room ambulatory surgery centers. A link to the section of the Department’s website where this information can be found is located here: http://www.nj.gov/cgi-bin/dhss/healthfacilities/hospitalsearch.pl. The website includes the statement of deficiencies prepared by the state surveyors, as well as the plan of correction submitted by each individual facility. It is necessary to click on the name of each individual facility in order to reach the results that have been reported for that facility. The Department has also included accreditation information for licensed ambulatory surgery centers.
The Department’s publication of the survey results is another step in the movement towards the transparency of health care facility performance information and the sharing of such information with consumers. This is similar to what CMS is doing for nursing homes and hospitals through its publication of data on the federal Nursing Home Compare and Hospital Compare websites.
Bill to License Single ORs is Reintroduced
January 30, 2012
Posted by Sharlene Hunt
As we reported two weeks ago, Governor Chris Christie pocket vetoed a bill passed by the Legislature in the last legislative session, which would amend the law governing surgical practices and require them to be licensed by the Department of Health and Senior Services. Following a pocket veto, a bill cannot go back to the Legislature for an override vote, but must be reintroduced in the new legislative session.
Last week S-1210/A-1836 was introduced, which would, if passed again by the Legislature and signed by the Governor, require surgical practices to be licensed by the Department. We will continue to monitor this bill and report further action.
Supreme Court Upholds Ruling: PAs Cannot Administer EMGs
January 20, 2012
Posted by Sharlene Hunt
This week the New Jersey Supreme Court issued an opinion in a case of first impression in New Jersey regarding the scope of practice for physician assistants (PAs). In this case, Selective Insurance Co. of America v. Rothman, M.D., the Court held that a PA cannot, under the scope of his/her license, perform electromyography (EMG) tests. The Court held that only a physician licensed to practice medicine and surgery can administer an EMG in New Jersey. Read more
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