HEADLINES
Wednesday, August 11, 2010

• New guidance issued on access for disabled persons
• Announcing the New CCH Health Reform Toolkit
• Use of invalid prescriber identifiers is a significant program vulnerability, OIG
• Obama signs bill to reduce improper payments by $50 million

• The Impact of Health Reform on M&A Activity in the Healthcare Sector 
by David E. Matyas, JD, and H. Carol Saul, JD

In addition to regularly featured columns such as electronic resources, HIPAA, best practices, coding and billing, and physician compliance, the July/August 2010 issue of the Journal of Health Care Compliance includes the following articles:

• State Offices of Medicaid Inspector Generals: Implications for Medicaid Fraud Enforcement, written by Jack Wenik, discusses the trend toward state Offices of Medicaid Inspector Generals, the implications for self-reporting and anti-fraud and waste efforts, and their effect on compliance programs.
• The Health Care Reform Bill: Compliance Implications for Behavioral and Mental Health Services, written by Dinh Nguyen, discusses the changes in the behavioral and mental health services climate and proactive approaches that can be taken to mitigate potential exposure to increasing regulatory liability.
• Medicaid Integrity Program - What You Need to Know, written by Joanne B. Erde, provides an overview of what to expect from a Medicaid Integrity Audit, including the establishment of a Medicaid Integrity Program (MIP) and how the MIP process works: from data review, through the audit, to recoupment.
• Medication Management for Medical Practices and Physicians, written by D. Scott Jones, discusses the prevalence of medication errors; how Medicare Part D has increased the focus on the prescribing practices and utilization of doctors; and additional regulatory scrutiny regarding CDC vaccine management guidelines, OSHA bloodborne pathogen standards, and FDA labeling requirements.

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A new technical guidance prepared to assist medical providers in helping patients with mobility disabilities has been issued by the Department of Justice’s Civil Rights Division and HHS’ Office of Civil Rights. Access to Medical Care for Persons with Mobility Disabilities will help providers understand how the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 apply to them. The guidance provides an overview of ADA requirements, commonly asked questions, and illustrated examples of accessible facilities, examination rooms, and medical equipment.

The ADA prohibits discrimination against individuals with disabilities in everyday activities, including medical services. Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination against individuals with disabilities in programs that receive federal financial assistance, including health programs.

Both Title II and Title III of the ADA and Section 504 require medical care providers to supply individuals with disabilities: (1) full and equal access to their health care services and facilities; and (2) reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to disabled individuals, unless the modifications would fundamentally alter the nature of the services. The ADA sets requirements for new construction of and alterations to buildings and facilities, including health care facilities. In addition, all buildings, including those built before the ADA went into effect, are subject to accessibility requirements for existing facilities.

The guidance provides answers to frequently asked questions (FAQs). The FAQ information can be partly summarized for providers as follows:

• You cannot deny service to a patient whom you would otherwise serve because he or she has a disability.
• Examining a patient in his or her wheelchair usually is less thorough than on the exam table, and does not provide the patient equal medical services.
• When a disabled patient comes to an appointment alone, you must provide reasonable assistance to the individual.

Features that make an exam room accessible include: (1) an accessible route to and through the room; (2) an entry door with adequate clear width, maneuvering clearance, and accessible hardware; (3) appropriate models and placement of accessible examination equipment; and (4) adequate clear floor space inside the room for side transfers and the use of lift equipment. An accessible doorway must have a minimum clear opening width of 32 inches. The exam table must have sufficient clear floor space next to it so that an individual using a wheelchair can approach the side of the table for transfer onto it. The room should also have enough turning space for a wheelchair to make a 180-degree turn.

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In response to the new health reform laws—Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010—Wolters Kluwer introduces the CCH Health Reform Toolkit, a complete suite of electronic workflow tools for navigating the nearly 3,000 pages of legislation through easy-to-understand topics related to the hospital, pharmaceutical, and legal industries.

The Toolkit will further keep you abreast of all future Health Reform impact by automatically tracking related amended regulations, rules, new legislation, and primary source documents, providing access to full text documents and weekly email notifications so that you can keep on top of all guidance and changes that the government agencies release.

The CCH Health Reform Toolkit is available with links to the CCH Medicare and Medicaid Guide laws, regulations and explanations, incorporating industry trusted content with new workflow tools; or as a stand-alone product incorporating the e-version of the CCH Law, Explanation & Analysis book on these health reform laws.

To learn more about the CCH Health Reform Toolkit, please go to http://health.cch.com/Products/Health-Reform-Toolkit.asp; or contact your local sales rep at 888-224-7377.

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Recent work by the HHS Office of Inspector General (OIG) illustrates that Medicare has paid a substantial number of questionable claims for prescription drugs under Medicare Part D and durable medical equipment (DME) under Part B. OIG's June 2010 report, Invalid Prescriber Identifiers on Medicare Part D Drug Claims, reveals that CMS and its plan sponsors have not adequately ensured that drugs were prescribed by a physician. As a result, Part D sponsors and beneficiaries paid pharmacies $1.2 billion in 2007 for claims in which the prescriber identifiers listed on the claims did not correspond to practicing physicians.

2007 data examined. In its June 2010 report, OIG found that more than 18 million prescription drug event (PDE) records contained invalid prescriber identifiers in 2007, representing 2 percent of the one billion PDE records submitted to CMS. In addition, identifiers on 17 percent of the drug claims with invalid prescriber identifiers did not conform to format specifications. These PDE records represented $213 million in payments by sponsors and beneficiaries in 2007. One invalid prescriber identifier that did not meet format specifications was a string of nine zeros (000000000). This single invalid identifier accounted for almost 40,000 PDE records worth $3.7 million in 2007.

Further review needed. OIG believes that Part D claims with invalid prescriber identifiers should be subjected to further CMS review. OIG recommends that rather than implementing prepayment edits (which could prevent beneficiaries from getting needed medication), CMS should conduct periodic reviews to ensure the validity of prescriber identifiers used on PDE records. CMS could also require sponsors to institute procedures that would identify and flag for review any Part D claims with invalid identifiers in the prescriber identifier field.

OIG recognizes that the movement by CMS toward National Provider Identifiers (NPls) is a positive step, as the use of a single identifier will facilitate efforts to validate prescriber identifiers listed on claims. Nevertheless, OIG believes that NPls will not completely eliminate the vulnerabilities.

OIG intends to continue the monitoring the use and effect of invalid prescriber identifiers on Medicare claims.

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President Obama has signed the Improper Payments Elimination and Recovery Act (IPERA) (S. 1508), which will help reduce wasteful, improper payments by $50 billion between now and 2012.

Since taking office, the Administration has taken steps to reduce payments. For example, in November 2009, the President issued an executive order laying out a strategy to reduce improper payments through boosting transparency, holding agencies accountable, and creating strong incentives for compliance. In March 2010, he also directed all federal departments to intensify and expand payment recapture audits, and in June ordered the establishment of a federal Do Not Pay List, creating one source for agencies to check for the eligibility status of an individual or contractor.

IPERA will help improve agency efforts to reduce and recover improper payments in several ways, including:

• Identification and estimation of improper payments. IPERA requires agencies to conduct annual risk assessments, and if a program is found to be susceptible to significant improper payments, then agencies must measure improper payments in that program.
• Payment recapture audits. The bill expands the types of programs that are required to conduct payment recovery audits, and lowers the threshold for programs and activities that must conduct these reviews if cost-effective.
• Use of recovered improper payments. IPERA also authorizes the use recovered funds for additional uses, including financial management, to support the Office of Inspector General, and for the original intent of the funding.
• Compliance and non-compliance. Under IPERA, there is a list of actions that an agency must take to be in compliance with the law, and the agency Inspector General is responsible for determining whether the agency is in compliance with the law.

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