HEALTH LAW SUPPLEMENT Fall 2017

The duty to investigate Medicare overpayments. Clients sometimes ask if they need to take any action when they think that they may have been overpaid by Medicare either because of an error in billing by the practitioner, or an error by the carrier, NGS. Yes, they must and the consequences for failure to do so are significant. The Affordable Care Act includes a 60-day repayment rule that was recently confirmed in final federal regulations. Under that Rule, if repayments of known overpayments are not made within 60 days of discovery, penalties in the amount of three times the overpayment can be assessed. The 60 days begins to run when the practitioner “identifies” the overpayment. Identification occurs upon actual discovery, or when the practitioner “should have” identified the overpayment through “reasonable diligence.” From the latter is derived a duty to investigate. Thus, whenever there is any credible evidence of overpayment, an investigation by the practitioner should ensue promptly, and if any overpayment has occurred, a refund sent. Medicare has a form that accompanies refunds of overpayments: https://www.ngsmedicare.com/ngs/wcm/connect/5ea07b7f-0367-4bf5-884f-3b7939824572/648_0315_Vol+Refund+Form_JKB_508.pdf?MOD=AJPERES.

Nurse Practitioners growing in number, the issues of multi-disciplinary practice and liability for collaborating physicians. The number of Nurse Practitioners in New York State increased by nearly 15% in 2016, and by my observation, a significant portion of that growth is in the specialty, Nurse Practitioner in Psychiatry (NP-P’s). NP’s have full prescribing privileges in New York State. Among non-prescribing mental health professions in NYS, only psychologists may form jointly-owned multi-disciplinary practices, PLLC’s, with NP-P’s. (In NYS, jointly owned NP-MD and PhD-MD practices are prohibited.) One factor inhibiting the growth of such multi-disciplinary practices seems to be uncertainty regarding the potential liability of the physicians who collaborate with NP’s. NYS requires that NP’s have a written practice agreement with a collaborating physician until the NP has 3600 hours of experience, and thereafter the NP (called an “independent” NP) must have a “collaborative relationship,” though not a written agreement with a collaborating physician or facility. In a recent article on Medscape, (“Physicians who work with NP’s: What’s the liability risk?” By Carolyn Buppert, MSN, JD, 09/01/2017) a researcher found nationally only 6 cases of collaborating physician liability. Four involved actual conjoint treatment of a patient by an NP and MD. Two involved physicians not in compliance with state regulations governing oversight. The definition of a “collaborative relationship” required for independent NP’s in NYS is so vague, i.e., according to the New York State Education Department, it is “…for the purpose of exchanging information in order to provide comprehensive care or to make referrals, as necessary,” that it appears little oversight or actual collaboration by an MD on any given case is necessary. The Webscape commentator opined that to reduce, if not eliminate risk, collaborating physicians should simply avoid becoming involved in individual cases of an NP.

New York State’s new Paid Family Leave Law, effective January 1, 2018. This new law will require employers of any size to provide a paid family leave benefit; the New York State Department of Labor calls it, “the nation’s strongest and most comprehensive paid family leave policy. “ NYS paid family leave supplements federal FMLA and provides coverage for: parents during the first 12 months following the birth, adoption, or fostering of a child; employees caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition; and employees assisting loved ones when a spouse, child, domestic partner, or parent is deployed abroad on active military duty. Eligible employees include: employees with a regular work schedule of 20 or more hours per week after 26 weeks of employment; employees with a regular work schedule of less than 20 hours per week after 175 days worked. Insurance coverage will typically be included as a rider to an employer’s existing mandatory disability insurance policy (NYS DBL), and can be fully funded by employees through payroll deductions. Paid family leave will be phased in over four years, beginning January 1, 2018. In 2018, employees may take up to eight weeks of paid leave at 50% of an employee’s average weekly wage up to 50% of the New York State Average Weekly Wage. That increases to 12 weeks of paid leave in 2021 paid at 67% of an employee’s average weekly wage up to 67% of the New York State Average Weekly Wage.

As of July 1, 2017, employers are being advised to immediately contact their NYS DBL carriers to ensure coverage will begin on January 1, 2018, and also, if they so wish, to begin employee deductions at that time. Perhaps the most difficult aspect of the law involves the requirement imposed upon small employers that they reserve positions for their employees who take paid leave.

Mental health providers’ participation in managed care networks. In a recent national study, it was found that 58.4% of primary care providers participated on managed care panels. A lesser percentage, 42.7%, of psychiatrists participated. Even lower was the percentage of nonphysician mental health practitioners who participate in networks, 19.3%. The authors of the article cite barriers erected by the managed care networks as the reason for low participation by mental health professionals, and consequently question the commitment of networks to mental health parity. Zhu, J, Zhang Y and Polsky, D, Networks in ACA marketplaces are narrower for mental health care than for primary care. Health Affairs, V 36, No 9, 09/2017.

Prevalence of Mental Illness in US. A recent study of households found that from 2012-2014, among adults 18 years and older who were asked if they had any mental illness in the past year, 18.3% answered “yes.” New Jersey was the state with the lowest percentage of positive responders with 15.83%. The highest responding state was Oregon with 22.72%. New York State had almost the same percentage as the national average, 18.23%. The authors note that the percentages reflect only those who reported mental illness (presumably some would deny it), and not military personnel, the homeless and those in jails and hospitals. State and sub-state estimates of any mental illness form the 2012-2014 national surveys on drug use and health, SAMHSA.

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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