Matthew S. McBride Attorney at Law

1. Recent Issues in Claims Reimbursement Matthew S. McBrideAttorney at Law Lashly & Baer, P.C.714 Locust StreetSt. Louis, Missouri 63101 mmcbride@lashlybaer.com 314.621.2939

2. Are You In-Network? Benefits • Patients are directed to you • Some certainty that claims will be paid

3. Are You In-Network? Detriments • Patients also directed to competitors and everyone else that is in-network • Payment rates are typically lower than out-of-work • Insurers try to drive payments even lower • Bundle • Re-price • Even more innovated ways for insurers to “save” • Must deal with co-pays and deductibles • Consequences if waive co-pays or deductibles

4. Are You Out-of-Network? Benefits • Higher reimbursement rates • Music to one’s ears: • Reasonable • Customary

5. Are You Out-of-Network? Detriments • Insurers will still at times treat you as in-network • Is this accidental? • Is it intentional? • Are there “bugs” in the computer programs? • Subject yourself to driving down of costs • Bundling • Re-pricing • Must deal with co-pays and deductibles • Consequences if waive co-pays or deductibles

6. Cross-Plan Offsetting Another attempt to driving down insurance costs Definition: . . . Not paying a benefit due under one plan in order to recover an amount believed to be owed to another plan because of that plan’s purported overpayment. Found to be impermissible in January 2019 Eighth Circuit decision

7. Missouri Prompt Pay Act Mo. Revised Statutes section 376.383 Carriers must send acknowledgement of electronic claims within 48 hours of receipt. Within 30 processing days of receiving a claim: • Carriers must notify claimant whether the claim is clean or if more information is needed, • Carrier must pay or deny claim if “clean.” Additional timelines apply regarding additional information requested by carrier. If the insurer does not pay a claim within 45 processing days, they owe the claimant interest and a penalty. The interest is 1% per month, and the penalty is equal to 1% of the claim per day. The claimant is not required to submit another claim to collect the interest and penalty.

8. Referenced-Based Pricing Agree to a multiple of a baseline from which to calculate payment Typically, from Medicare rate (140% . . . 200% . . . You get the idea) Finding that employers are trying to sneak this in through certain cards May be improper write-down under ERISA Cases are pending on both coasts

9. Termination of Participation in Insurance Plan Why? • Cannot terminate patients, but can terminate providers • Medicare Advantage plans are the worst How? • Terms of the Plan Agreement • Contract of adhesion? Probably • Enforceable? Also yes What to do? • Plan Agreement also requires the strict adherence of certain steps • Timely file appeals • Negotiate the arbitration requirements

10. Audits Insurers (government or private) may want to look under the hood and assure that providers are meeting the requirements Typically look for: • Patient obligations • Co-pay and deductible requirements • No waiver; etc. • Patient records match claims

11. How to Respond to State Licensure Actions: Do’s and Don’ts Michael R. BarthAttorney at Law Lashly & Baer, P.C.714 Locust StreetSt. Louis, Missouri 63101 mbarth@lashlybaer.com 314.621.2939

12. Overview of the Process • Focus today on Missouri • Illinois has slightly different procedures • Very broad overview • Complaint process • Informal meetings with investigators • Interactions with other agencies • Formal hearing process • Discipline

13. Regulated Professions • Missouri Department of Professional Regulation • 38 Professional Boards • Protect citizens of state through licensing • Duty to investigate all complaints • Each one has own statutes and procedures • Operate very differently • Most active Boards are Board of Healing Arts and Board of Nursing • Focus today on Healing Arts and Nursing • Basically covers most health care professionals

14. Board of Healing Arts Composition • 8 physicians and 1 public member • Appointed by the Governor and confirmed by Senate • Meets formally 4 times per year • Have various subcommittees • Investigators

15. Board of Healing Arts Professions • Physicians and Surgeons • Anesthesiology Assistant • Assistant Physicians • Athletic Trainers • Audiologist & Speech Language Pathologists • Perfusionists • Physician Assistants • Physical Therapists/Physical Therapist Assistants

16. Board of Nursing Composition • 8 nurses and 1 public member • Also appointed by Governor and confirmed by Senate • Meet quarterly • Also various subcommittees • Investigators

17. Board of Nursing Professions • Registered Nurses (RN) • Licensed Practical Nurses (LPN) • Advanced Practice Nurses (APRN) • Includes APRN Certifications

18. Practice Act’s Set the Grounds for Violations • Each Board has a set of statutes and practice act • These set for the grounds for discipline • Impairment is most common issue • Missouri Physician Practice Act, Chapter 334 • §334.100 sets for the reasons for discipline • Around 38 different grounds • Missouri Nursing Practice Act, Chapter 335 • §335.066 sets for the reasons for discipline • Around 48 different grounds

19. Overview of Procedure • Most common is a patient complaint • Are other ways such as medical malpractice claim, termination of privileges, etc. • Investigation process • Informal vs. Formal • Filing of complaint with Administrative Hearing Commission • Determine factual disputes and if cause for discipline • Back to the individual Board for discipline • Appeals process

20. First Step Is The Letter From Board • Letter and subpoena from Board with complaint requesting medical records and written statement • Do not ignore and get counsel involved immediately • Sets the stage for everything that happens • Too often provider thinks they can handle on own • Deadline to respond • Craft a narrative response with counsel • Art to answering • Don’t be defensive • Don’t blame patient

21. Informal Interview • Next step is typically an interview with investigator • Do not do this alone – get counsel • Many times called after written statement and after interview already occurred • Let counsel figure out if there are clinical issues with care or other issues with behavior • Usually 20 to 30 minute interview • Investigator is reporting back to Board • Need to make sure answer all questions • Judging your credibility

22. Board Then Decides Next Steps • Process is typically slow • Generally around 1 year from complaint to resolution • Boards can close the case • Get form letter • Board can request more information • Bring you in for an informal hearing • Board can issue settlement proposal for discipline • Board can file complaint with Administrative Hearing Commission

23. Disciplinary Action • Range of punishment • Private letter of concern • Only non-public option • Censure • Probation • Suspend license • Restrict license • Revoke license

24. Current Trends • Boards share information with one another and other agencies • Have to consider impact with multiple agencies • Violation of one Board can cause issues for others • Boards can refer for criminal prosecution • State and Federal • Need for criminal counsel • Enforcement of Opioid Epidemic • Bureau of Narcotics and Dangerous Drugs (BNDD)

25. Common Examples • Patient complaint about opioid prescriptions • Request for controlled substances records by BNDD • Typically just show up at office and demand records • Have to allow you time to respond • Don’t allow immediate access • Issues with controlled substances registration • Other state licensure actions • Electronic charting issues • Even seeing issues supervision other health care providers such as residents and employees

26. Takeaways • Enforcement actions are up • State licensure bodies are very active • Potential federal implications (criminal and civil) • Political pressures to be tough on providers • All Boards operate differently • Involve counsel immediately • Don’t go it alone • Your license is your livelihood

27. Government Investigations and Enforcement Actions Matthew J. EddyRichard W. Hill, IIIAttorney at Law Lashly & Baer, P.C.714 Locust StreetSt. Louis, Missouri 63101 meddy@lashlybaer.comrhill@lashlybaer.com 314.621.2939

28. Important Fraud and Abuse Statutes • False Claims Act • Anti-Kickback Statute • Stark Law • Controlled Substances Act • Food, Drug, and Cosmetic Act

29. Federal Government False Claims Act Recovery

30. False Claims Act 31 U.S.C. § 3729 • Cannot knowingly submit a false claim for payment to the federal government • Intent to defraud the government is not required. • Liability can attach if practitioner acts with deliberate ignorance or reckless disregard of the truth. • Cannot hide head in the sand and avoid liability • Must report and repay an overpayment within 60 days • Penalties • Repayment plus interest • Penalties of $5,500 to $11,000 per claim • Treble (or three times) damages • Exclusion from Medicare/Medicaid

31. False Claims Act • Statute of Limitations • Six years from the date of payment of claim, or • Three years from date of discovery by an official with authority to take action • But never more than 10 years after submission of the claim

32. False Claims Act • Qui Tam Suits: private individuals or entities (e.g. employees, patients, providers, competitors, etc.) may sue the healthcare provider under False Claims Act on behalf of the government. • Government may or may not intervene • Qui tam relator • Receives a percentage of any recovery • Recovers their costs and attorney’s fees

33. False Claims Act: Examples • Claims for services that were not provided or were different than claimed (factually false) • Failure to comply with quality of care • Express or implied certification of quality • Provision of “worthless care” • Failure to comply with conditions of payment or relevant fraud and abuse laws. • Express or implied certification of compliance upon claim submission • Supreme Court’s Escobardecision

35. False Claims Act Predicates • Anti-Kickback Statute and Stark Law • Medicare Overpayments • Controlled Substances Act • Food, Drug, and Cosmetic Act

36. False Claims Act Predicates • Anti-Kickback Statute and Stark law • US ex rel Drakeford v. Tuomey • Avanti Hospitals LLC Settlement (1/28/2019) • https://www.justice.gov/opa/pr/avanti-hospitals-llc-and-its-owners-agree-pay-81-million-settle-allegations-making-illegal • Wheeling Hospital; R&V Associates (12/21/2018) • https://www.justice.gov/opa/pr/united-states-joins-false-claims-act-lawsuit-against-wheeling-hospital-r-v-associates-and

37. False Claims Act Predicates • Medicare Overpayments • Obligation to return – 42 C.F.R. § 401.305 • Jefferson Medical Associates (2/12/2019) • https://www.justice.gov/usao-sdms/pr/laurel-based-physicians-group-and-neurologist-agree-pay-almost-one-million-dollars

38. False Claims Act Predicates • Controlled Substances Act • Appalachian Regional Prescription Opioid Strike Force Takedown • Over 350 Thousand RXs; over 32 Million Pills • 60 charged defendants • 31 doctors; 7 pharmacists; 8 NPs; and several other types of providers • No outright mention of False Claims Act, but potential for civil liability • https://www.justice.gov/opa/pr/appalachian-regional-prescription-opioid-arpo-strike-force-takedown-results-charges-against

39. False Claims Act Predicates • Food, Drug, and Cosmetic Act • Dr. Sen and his wife, Patricia • https://www.justice.gov/opa/pr/physician-and-wife-pay-12-million-settle-false-claims-act-allegations-they-billed-medicare • L&B Client Example – Practice defrauded into purchasing misbranded medications

40. How Do These Issues Start?? • No standard format • Subpoenas from State or Federal Investigators • Warrant and Warrant-less Inspections • State or Federal Criminal Investigations / Indictments

41. What Do I Do? • Isolate the source of potential liability • Consider whether to suspend payments or problematic conduct • Investigate issues per compliance plan • Contact attorney to advise