HEALTH LAW SUPPLEMENT Autumn 2018

NGS Medicare begins enforcing ban on handwritten claims. The ban was effective November 13, 2017, but has begun to be enforced just recently. All Medicare claims must be either printed from typewritten fillable pdf’s or submitted electronically. Handwritten claims are being returned with a note stating that they are unacceptable.
Some clients have mistaken the note to mean that they must now submit all claims electronically and therefore, if they weren’t already, become HIPAA compliant. That is not the case. Medicare will still allow “small providers,” that is those with 10 or fewer employees, to submit claims by mail rather than electronically and thus avoid HIPAA compliance*. However, now those mailed claims forms must be printed by computer and not completed by hand.
Fillable CMS 1500 forms for mailing are available online as single documents, often from other Medicare providers, or programs can be bought. And of course, if providers wish they may file claims most directly electronically through NGS Connex, though that necessitates HIPAA compliance.
* HIPAA compliance is mandatory for the entire practice if a provider electronically bills any insurer, whether governmental or commercial.

Are you at risk of an audit by Medicare? In August 2017, the Office of Inspector General announced a program to retroactively review payments for psychotherapy services to “determine whether they were allowable in accord with Medicare documentation requirements.” To determine which Medicare providers to audit, the Centers for Medicare & Medicaid Services (CMS) and its contractors use Comparative Billing Reports (CBR’s). CBR’s are prepared by comparing an individual psychotherapy practitioner to State averages developed by CMS in the following three areas: minutes per visit; visits per beneficiary per year; and charges per beneficiary per year. According to CMS, in New York State the average psychotherapy visit is 47.34 minutes (CPT 90834), the average number of visits per year by any given patient is 13.90, and the average charge per beneficiary per year is $1019.03. If a Medicare provider is statistically significantly higher than the State average in any two of those three metrics, an audit by CMS or one of its contractors becomes more likely.
Audits also become more likely if the psychotherapist is near or above the 50th percentile for annual payments by Medicare ($5,000) or treats 10 or more Medicare beneficiaries in a given year. An audit does not necessarily result in a clawback (demand for monies previously paid for claims to be reimbursed to Medicare). Of course medical necessity must be adequately documented and the lack of it is usually the cause of a clawback. See https://downloads.cms.gov/medicare-coverage-database/lcd_attachments/31887_33/Outpatient_Psych_Fact_Sheet09.18.14.pdf regarding standards for adequate documentation. In my experience, however, the bases for many clawbacks are often procedural rather than substantive, for example, that the practitioner did not sign each progress note, or did not denote starting and ending times for sessions.

New mandate regarding sexual harassment for employers in New York City and State. Effective September 6, 2018, all employers in New York City must display a poster and distribute written information to all employees regarding rights and responsibilities to prevent sexual harassment in the workplace. The poster and informational sheet are available free at https://www1.nyc.gov/site/cchr/index.page.
Effective October 9, 2018, all employers in New York State will be required to adopt an anti-sexual harassment policy and training program that either tracks or exceeds the model policy and program that has yet to be published by the New York State Department of Labor and Division of Human Rights. Also under the new State law, employers may now be held liable to victims of sexual harassment who are contractors (1099); previous legal protections were afforded only to employees (W-2).

HIPAA compliance and payment methods. Quite a number of clients have ventured into new methods of payment. However, clients who are HIPAA compliant should be aware that some of the newer methods are not HIPAA compliant. PayPal is not compliant. Square is. HIPAA compliant practitioners should ask any prospective payment app if it is HIPAA compliant, including whether it is willing to sign a Business Associate Agreement. Although I am aware of no cases as yet, use of a non-compliant payment method by a HIPAA compliant practice could lead to significant penalties imposed on the practice by federal regulators (Health and Human Services/Office of Civil Rights) in the event of a breach, that is, if the payment program were ever hacked and data about patients of the practice released. Non-HIPAA compliant practitioners have more leeway to use non-HIPAA compliant payment programs, but if they do, it is advisable that they obtain informed consent regarding the lack of security or privacy (e.g., for example in mining data) entailed in the use of the programs.

New law mandates mental health education. New York schools are required to provide health education to elementary, middle school and high school students. Required elements of that health education have not heretofore included mental health. Effective July 1, 2018, schools are now required to include mental health in the health education curriculum. See Section 804 of Article 19 of NYS Education Law.

Liability for a clinician who released subpoenaed records. A recent decision by the Connecticut Supreme Court found a doctor liable for complying with a subpoena for patient records that was unaccompanied by a valid authorization of the patient to release the records, Byrne v Avery Ctr, 327 Conn 540 (2018). Upon receipt of the subpoena, the doctor assumed a safe (and, I guess, expedient ) course of action would be just to send the records to the court, and did so. The case serves as a reminder to healthcare professionals that subpoenas are difficult to understand and that blind compliance may lead to liability for breach of confidentiality. Consultation with an attorney is almost always warranted when a subpoena is served.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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