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					       monday, may 11, 2009                                                                           health law                                                                                         S1

                             H E A LT H L AW
 L                                   LAW                                                       Ticked
                              S p e c i a l S e c t i o n o f t h e C o n n e c t i c u t L a w Tr i b u n e

 t h e C o n n e c t i c u t L a w Tr i b u n e

            The Collection
            Service May
            Come Calling
            Feds enlist extra help in identifying
            improper Medicare payments
            By PATRICK J. MONAHAN II
            and WILHELMINA A. de HARDER

            I  n 2005, the Centers for medicare & medicaid Services
               (CmS) introduced a three-year demonstration project
            in California, Florida, and new york using Recovery au-
            dit Contractors (RaCs) to assist medicare in identifying
            improper payments made to health care providers.
               These private contractors were paid a contingent fee              Attorney general
            based on a percentage of overpayments recovered. The
            purpose of the demonstration project was to determine                challenges controversial
            whether the use of RaCs would be a cost-effective meth-
            od to discover and correct improper medicare payments.
                                                                                 Lyme disease guidelines
            as of march 2008, RaCs identified more than $1.03 bil-
            lion in medicare improper payments (from a total of $317
            billion in medicare claim payments available for review)
            at a cost of 20 cents for each dollar collected.
               RaCs analyze claims data using their proprietary tech-
            niques to identify claims that either clearly contain errors
            or likely contain errors, resulting in improper payments.                                               By ELLIOTT B. POLLACK and CHRISTINE COLLYER
            RaC review claims involving physicians, hospitals,
            skilled nursing facilities, inpatient rehabilitation, clinical
            laboratories, and durable medical equipment. Improper
            payments generally result from lack of documentation to
                                                                                         a    generation ago, most physicians would have doubted that antitrust rules and the
                                                                                              clinical practice of medicine could intersect. attorneys were of the same view
                                                                                         about their profession until 1975 when the U.S. Supreme Court decided Goldfarb v. Vir-
            support the service/claim; non-covered services (includ-
            ing services that are not reasonable and necessary); incor-                  ginia State Bar and threw out minimum fee schedules on restraint of trade grounds.
            rectly coded services; and duplicate services.
               In the case of improper overpayments resulting from                       now, fast-forward 31 years to november 2006 when Connecticut attorney General
            clear errors, RaCs use a process called “automated re-
            view” to identify and recoup the overpayment amounts.
                                                                                         Richard Blumenthal initiated an investigation of the Infectious diseases Society of
            For instance, RaCs could use information systems to                          america (IdSa). more particularly, the attorney general sought information about
            search for claims for two or more identical surgical                         the development process of the IdSa’s 2000 and 2006 guidelines on the diagnosis
            procedures for the same beneficiary on the same day at
            the same hospital. as duplicate surgical procedures are
                                                                                         and treatment of lyme disease.
            clearly not medically necessary, the hospital should not
            have billed twice and should not have been paid twice                        the investigation did not attack the science behind the guidelines but, rather,
            by the medicare claims processing contractor.                                sought to determine whether IdSa engaged in exclusionary and monopolistic con-
               RaCs perform an automated review only when the
                                                                                         duct during their development. Blumenthal’s inquiry was whether IdSa excluded
            improper payment was obvious, such as a duplicate

                                    SEE PAGE 6                                                                                         See PaGe 4

                                                                                                      alSo InSIde

             Giving Birth                                On Alert                              Refusal Rights                         Crackdown On                            Getting Lost
            To Controversy                             For Red Flags                           For Providers?                       ‘Exclusion Billing’                      In Translation
             more and more couples who                 don’t be surprised if your               Forty-seven states, including      The federal government keeps a list      Under federal law, most health
         cannot conceive are using surrogate        physician’s office requests photo         Connecticut, have some sort of       of health care professionals and or-     care providers that take part in
          parents to make their dreams of a         identification at your next visit.       conscience clause legislation that    ganizations that are excluded from     federal reimbursement programs
         family a reality. But state courts are     Federal law requires businesses,          protects the rights of health care     billing medicare, medicaid and          must find ways to effectively
            in a state of disarray regarding          including many health care              providers that refuse to provide     other federal health care programs.     communicate with patients who
             the pre-birth agreements that           providers, to establish identity        certain procedures or services for     Federal authorities are pursuing         are hearing impaired or who
           accompany these arrangements.              theft prevention programs.                 moral or religious reasons.            those who continue to bill.             speak limited english.
                    SEE PAGE 2                                SEE PAGE 4                               SEE PAGE 4                             SEE PAGE 7                            SEE PAGE 8
S2                                                                                                health law                                                                         monday, may 11, 2009

    Surrogate Parenting Gives Birth To Controversy
                                                     the past six months, the state department of            parents lived                                       dress this issue is though the legislative pro-
    Courts divided on how to                         health has objected to the Superior Court is-           in Romania,                                         cess and not the courts. If the legislature does
                                                     suing orders unless the intended parents are            they were un-                                       choose to address this issue, the constituency
      handle cutting-edge                            genetically related to the child or the children.       able to obtain                                      can then decide how best to clarify this legisla-
       reproduction issue                               at the Superior Court level, there is a split of     jurisdiction                                        tion as opposed to judges, clerks and lawyers
                                                     authority regarding whether Conn. Gen. Stat.            for a co-                                           who attempt to infer intent through legislative
                                                     §7-48a, as written, allows this form of relief. The     parent adop-                                        histories. If the statute is not clarified, numer-
   By CHRISTOPHER M. GALLAGHER                       Connecticut attorney General’s office, through          tion or enter                                       ous issues will continue to serve as problems
                                                     the department of health and Judge John d.              into a same                                         for parties to a gestational carrier agreement.

a     gestational carrier agreement is an agree-
      ment covering the birth of a child through
surrogacy, wherein an individual or a couple
                                                     Boland in Oleski v. Hynes (2008), has advocated
                                                     that the law only allows for a genetic parent to
                                                     be named on a replacement birth certificate and
                                                                                                             sex adoption
                                                                                                             based upon
                                                                                                                                                                     This office has lobbied legislators to clarify
                                                                                                                                                                 Conn. Gen. Stat. §7-48a. Rep. Thomas drew
                                                                                                                                                                 (d-Fairfield) introduced house Bill 1137
enters into an agreement with a woman to             that the correct procedure for a non-genetic            law. accord-                                        which sought to clarify this law. The bill would
carry and give birth to their child.                 parent to obtain parental rights is through a co-       ingly,      the                                     authorize a court of competent jurisdiction to
   In some cases, the two intended parents are       parent adoption in the Probate Court.                   non-genetic                                         make a finding of intended parentage for par-
the genetically related parents of the child to         to the contrary, Judge lloyd Cutsumpas, in           father has no                                       ents of children conceived through assisted
be born. In other cases, the intended parent or      Griffiths v. Taylor (2008), and an overwhelm-           legal parental     Christopher M.                   reproduction, and pursuant to a gestational
parents use an egg and/or sperm donor and            ing number of Superior Court judges have ad-            rights until       Gallagher                        carrier agreement. Currently, the bill awaits
therefore, at least one of the intended parents is   vocated that Connecticut allows for a finding           app el l ate                                        action by the state Senate. hopefully, the leg-
not genetically related to the child to be born.     of intended parentage and have signed orders            Court rules on the state’s appeal.                  islature will take action to ensure that courts
In either case, counsel has brought complaints       supporting the same. Recently, however, once                Until the appellate Court hears argument on     are provided with guidance in implementing
seeking the issuance of pre-birth orders pursu-      these orders are issued, the state appeals the          these matters and issues a decision, no represen-   these orders and are not subject to analyzing
ant to Connecticut General Statute §7-48a for        ruling of the Superior Court, thereby delaying          tations can be made regarding the ability of any    and interpreting legislative intent.
genetic and non-genetic intended parents of          the implementation of the Superior Court’s              attorney to obtain a pre-birth order without the        more and more individuals who either
children being carried by gestational carriers.      order and leaving the gestational carrier as the        matter being appealed. even after the appellate     cannot conceive or cannot carry children to
   Currently, Connecticut is in a state of dis-      legal parent.                                           Court rules, the party denied relief can petition   term are utilizing assisted reproductive clinics
array regarding the issuance of these pre-              This office currently represents two intended        the Supreme Court. In the final analysis, the       to make their dreams of a family a reality. to
birth orders by the Superior Court. For about        parents at the appellate Court level (See Rafto-        time frame for a binding ruling from a higher       ignore this new and progressive field of medi-
                                                     pol v. Ramey, et al). at the trial court level, Judge   court could take more than two years.               cine does a disservice to the children conceived
    Christopher M. Gallagher is an associate         James G. Kenefick, granted the intended par-                even with the difference in viewpoints,         through this form of technology and the in-
  in the law firm of Victoria T. Ferrara P.C.,       ents’ petition for a pre-birth order and the state      both the courts and opposing counsel to these       tended parents who seek to raise their children
                 in Fairfield.                       subsequently appealed. Because the intended             actions agree that the correct manner to ad-        in a loving home.                                n

       Watching Out For Those Who Are Incapacitated
                                                     agent” are still in full force and effect provided      is not specifi-                                     Living Wills
  Subtle differences between                         they were executed before oct. 1, 2006. with            cally granted                                           multiple levels of forethought are a telltale
                                                     these grandfathered documents, there is no              to the con-                                         sign of competent legal work—especially with
  ‘health care representative’                       need, legally speaking, to execute the new ap-          servator is                                         regard to a person’s living will. however, what
       and ‘conservator’                             pointment of health care representative. how-           retained by                                         makes that document shine to a lawyer can
                                                     ever, practically speaking, hospitals and nurs-         the individu-                                       make it unwieldy to a health care provider—
                                                     ing homes sometimes look at you cross-eyed              al who is free                                      those who apply the meaning of the document
          By ANDREW S. KNOTT                         with an old power of attorney covering health           to keep it or                                       in an emergency.
                                                     care, so it’s good to have the statutory citation       delegate it to                                          Consider this situation: a patient is suf-

w       hether an attorney handles estate tax
        planning or medicaid planning, both
types of work involve human beings as clients
                                                     that validates these documents handy: General
                                                     Statutes, 19a-580f.
                                                        and then there are conservators. when
                                                                                                             anyone he
                                                                                                             may wish.
                                                                                                                 also, an
                                                                                                                                                                 fering from cardiac arrest and there is a five-
                                                                                                                                                                 page living will in the chart that has yet to
                                                                                                                                                                 be consulted. does anyone really think that
who require planning for sickness and inca-          explaining to clients the difference between a          individual                                          the living will would be consulted before any
pacity. In recent years, our legislature has been    conservator and a health care representative, I         can execute                                         medical procedures are begun? and leaving
tinkering with statutes covering this subject,       quip: “a conservator is a health care represen-         a “designa-                                         that aside, at a Connecticut Bar association
causing a lack of understanding of the various       tative on steroids.”                                    tion of con-                                        elder law section meeting last year, a hand-
health care documents—even amongst practi-                                                                   s e r v a t o r,”    Andrew S. Knott                ful of practitioners mentioned that they
tioners.                                             Key Differences                                         which is a                                          encountered physicians who automatically
   let’s start out with the basics: Under cur-          For purposes of this article, a conservator of       document                                            assumed that a living will was a “do not
rent law, an appointment of health care rep-         the person has all the authority of a health care       that requests that the probate court appoint        Resuscitate/do not Intubate” order, which
resentative is the document that designates          representative. The key difference between              a particular individual as conservator in the       is flat wrong.
who will make medical decisions on anoth-            the two is that a conservator is appointed by           event the court is inclined to appoint one.             Consider another scenario: dad has died,
er’s behalf when that person is no longer ca-        the probate court and acts as its agent, while a        In fact, the court pretty much has to ap-           and mom is failing to the point where she
pable to do so—to the exclusion of powers of         health care representative is appointed by the          point the designated individual unless there        needs 24-hour care. The children move mom
attorney. a power of attorney allows a per-          individual and acts as his agent without any            is good cause for an alternate appointment.         to a nursing home, which would like to see her
son to handle only financial transactions on         court involvement.                                      many clients ask why they should have a             on dnR/dnI status, but the family disagrees.
behalf of another. This is a departure from             additionally, a conservator has a duty to act        designation of conservator when they al-            The nursing home consults the living will and
the way things were done for many years              on behalf of the conserved person whereas the           ready are executing an appointment of a             interprets it as requiring dnR/dnI status.
when the power of attorney statutory form            health care representative has the right, but           health care representative. The trite answer        each side lawyers up and the issue is forced on
specifically included health care decisions,         not the duty, to so act. oftentimes, a conser-          to that question is the need for redundancy         a probate judge to decide mom’s fate.
and it is still a source of confusion for some.      vator is appointed because an existing health           due to murphy’s law.                                    In both situations, the living will is inter-
   It must be noted, though, that a power of         care representative is not exercising his right.            It should be noted that whenever a person is    preted by someone other than the health care
attorney that included health care decisions         But it must be noted that although the ap-              fulfilling his role as the medical decision-maker   representative—the person for whom the doc-
as well as the old “appointment of health care       pointment of a conservator typically trumps             – in whatever form – it is emphatically not the     ument is meant. It is for these reasons that I
                                                     any existing health care representatives in ef-         job of such person to substitute his judgment       counsel clients to hold onto the living will and
     Andrew S. Knott, a partner at Knott &           fect, it does not necessarily. The language of          for that of the incapacitated person. Rather, he    only provide it to the health care representa-
Knott LLC in Cheshire, is co-chair of the Young      the probate court’s decree of appointment               must work to implement the wishes of the per-       tive, so a health care provider takes direction
Lawyers Sections of the Connecticut Bar Asso-        should specify the authority which the court            son for whom he is making decisions. This is        from the health care representative, who in
  ciation’s Estates and Probate Committee.           grants to the conservator; any authority that           where the living will comes into play.              turn takes orders from the living will.         n
monday, may 11, 2009                                                                        health law                                                                                               S3

 Helping Consumers Through The Managed Care Mire
                                                   newer form of focused, higher-dose radia-                                                S i n c e       in an acute hospital for three days prior to
  State advocacy office helps                      tion treatment to prevent further damage to                                          2001, oha           the residential treatment.
                                                   Claire’s lungs and heart. The oncologist re-                                         has assisted     ■ P.a. 08-171, established a Commission on
   insured residents get the                       quested prior authorization for the treatment                                        more than           health equity whose mission is to elimi-
    treatment they deserve                         as required by Claire’s insurer. an approval                                         8,000 people        nate “disparities in health status based on
                                                   would guarantee that the insurer would not                                           and returned        race, ethnicity and linguistic ability, and
                                                   argue that the treatment was not medically                                           $14.5 mil-          to improve the quality of health for all of
           By VICTORIA VELTRI                      necessary. a denial would guarantee a de-                                            lion back to        the state’s residents.”
                                                   lay in treatment at best, or no treatment at                                         c onsu me rs     ■ P.a. 08-132, requires insurers to cover

h      ealth reform and access to health insur-
       ance coverage are the talk of the state
and the country. extending insurance cov-
                                                   worst. Claire, like many others before her,
                                                   hit a major roadblock. her insurer rejected
                                                   the oncologist’s request for prior authoriza-
                                                                                                                                        when denials
                                                                                                                                        of care are
                                                                                                                                                            therapies for autism spectrum disorders
                                                                                                                                                            to the same extent they are covered for
                                                                                                                                                            physical illnesses.
erage to the tens of millions of americans         tion for the procedure, calling the procedure                                        last      year   ■ P.a. 07-75, incorporates a definition of
and the hundreds of thousands of Connecti-         experimental and investigational, despite its                                        alone, oha          medical necessity into the individual and
cut residents without it is certainly a widely     frequent and effective use for repeat cancer                                         saved con-          group health insurance statutes.
shared goal—there are multiple bills under         patients with organ damage.                                                          sumers $5.2      ■ domenici-wellstone mental health Par-
consideration in the state legislature that           after oha convinced the insurer to re-            Victoria Veltri                 million with        ity act. For more information, see U.S.
would move us much closer to that goal.            open Claire’s appeal and to have an appro-                                           an 85 per-          Sen. Christopher dodd’s comments in the
   nonetheless, we need to make it a prior-        priately trained provider review the request       cent success rate of getting care denials over-       Congressional Record:
ity to focus also on the many inconsistencies      based on Claire’s individual circumstances,        turned. Referrals come to oha from all areas          congress/record.xpd?id=110-s20070918-
and barriers to care faced by consumers who        including the compromised status of her heart      of the state, from legislators, state agencies,       53&person=300036
are currently insured so we don’t duplicate        and lungs, the insurer overturned its denial.      our congressional delegation, hospitals, pro-         These “mini-fixes” reflected in legislation
our mistakes on a systemic basis. daily,           Claire started her focused radiation treatment     viders, and, most importantly, from previous       must be addressed as we take on a new health
Connecticut’s commercially and publicly in-        the next day and is doing very well.               consumers.                                         care system. one of oha’s near-term goals will
sured residents struggle to understand their          The overriding concern in managed                  as general counsel for oha, in addition         be to outline the access-to-care issues insured
insurance coverage, their financial responsi-      health care is whether requested health care       to other duties, I have the responsibility of      residents now face so that these same issues are
bilities and how to challenge decisions that       services or treatments are “medically neces-       developing and advocating for the legislative      not perpetuated in any future model.
deny medically necessary care. The office of       sary.” The concept of medical necessity has        agenda that we set each year. while we have           In Connecticut, if you or someone you rep-
the healthcare advocate (oha) helps con-           been the subject of complex litigation and         several pieces of legislation moving through       resent is having difficulty selecting an insurance
sumers navigate these confusing processes.         multiple pieces of state legislation to protect    this year’s legislative session, recently we       plan, getting approval for a service, challenging
   oha is an independent, non-partisan             providers and consumers, and to reinvigo-          succeeded in pushing these bills through the       a denial or has general questions about health
state agency with one overriding mission: to       rate and codify the deference due to health        legislature or Congress:                           care or health care insurance, please call the
provide assistance to consumers who may            providers when they render care to patients.       ■ P.a. 08-125, eliminates an arcane legal re-      State of Connecticut, office of the healthcare
be confused about health care in general and       however, at its core it is an individual issue        quirement prohibiting coverage for men-         advocate (oha) toll-free at 1-866-hmo-4446
                                                   affecting individual consumers.                       tal health residential services unless one      or contact us at for the help or
                                                      to be sure, insurers approve the major-            is at an acute or crisis level of care and is   information you need.
 The Office of Healthcare                          ity of requested treatments. Sadly, however,

  Advocate is right in the                         Claire’s experience with a denial of medically
                                                   necessary treatment was repeated over 60,000
   middle of the medical                           times last year for individual health care poli-
necessity, claim denial and                        cyholders in Connecticut. approximately 17
                                                   percent of the 358,000 advance requests for
 other health care battles.                        treatment last year were denied. These statis-
  We fight for individuals                         tics do not include insurers’ other denials of
                                                   claims based on a lack of medical necessity
like Claire who face death                         for services or treatments that do not require
     or serious illness.                           advanced approval. nor do they include data
                                                   on claim denials for other reasons such as a
need help in working through managed care          patient’s use of an out-of-network provider.
issues. Since its inception, the office has pro-      oha is right in the middle of the medical
vided free services to consumers in investi-       necessity, claim denial and other health care
gation of their complaints, appealing denials      battles. we fight for individuals like Claire
of coverage by insurance plans and assisting       who face death or serious illness in the mir-
residents in the selection of plans. oha pur-      ror, and whose choices are limited to either
sues legislative or systemic remedies when         doing everything they can to get their medi-
individual casework identifies ongoing bar-        cally necessary treatment, or going without,
riers to health care. State and national offi-     because their insurers fail to look at them
cials, and officials from other states, consult    as individuals with unique circumstances.
with our staff on a regular basis to discuss       nowadays, an insurer not paying for prom-
emerging federal health care issues and to         ised medically necessary care is tantamount
seek our input on proposed legislation.            to an actual denial of care.

Cancer Case                                        Increased Demand
   one person who was caught in a man-                 Skyrocketing health care costs, a rough
aged care mire is Claire, a 63-year-old wom-       economy, the clamping down on approvals of
an who thought her battle with breast cancer       requests for health care coverage, and the esca-
ended more than 15 years ago. Instead, it          lating numbers of people requesting coverage
returned with a vengeance and she needed           for mental health services, surgical interven-
immediate treatment to save her life. She          tions and effective medications have only in-
underwent major surgery, chemotherapy              creased demand for the free legal, individual
and radiation during her first go-around,          and systemic advocacy services that the office
but one of her lungs and her heart were af-        of the healthcare advocate provides to Con-
fected by the massive doses of radiation. her      necticut residents. we try each day to restore
new and experienced oncologist suggested a         the balance between the consumer’s need for
                                                   health care, the provider’s need for respect for
    Victoria Veltri is general counsel in the      his or her medical judgment and the need to
   state’s Office of Healthcare Advocate.          control health care costs.
S4                                                                                            health law                                                                        monday, may 11, 2009

                Providers Must Be On Alert For ‘Red Flags’
                                                      regardless of                                                                        ties that have    after the completion of services, including for
    New federal law requires                          size and re-                                                                         a low risk        the balance of medical fees not reimbursed by
                                                      gardless of                                                                          of identity       insurance; or allows the creation of payment
      policies to prevent                             whether the                                                                          theft — for       plans after the services have been rendered.
         identity theft                               health care                                                                          example,             If, however, the health care provider re-
                                                      provider is                                                                          health care       quires payment in full before or at the time
                                                      a for-profit                                                                         providers         of service; or accepts only direct payment
        By KRISTIN CONNORS                            or not-for-                                                                          who know          from medicaid or similar programs; or ac-
       and EDWARD SPINELLA                            profit entity.                                                                       their patients    cepts credit cards as the form of payment,
                                                         amidst                                                                            personally –      then the health care provider is not a “credi-

d     o not be surprised if your physician’s of-
      fice staff requests photo identification at
your next visit. Federal law requires certain
                                                      ongoing de-
                                                      bate regard-
                                                      ing whether
                                                                                                                                           comply with
                                                                                                                                           the rule. no
                                                                                                                                           further de-
                                                                                                                                                             tor” and is not subject to the rule.
                                                                                                                                                                a “covered account” is an account used
                                                                                                                                                             primarily for personal, family or household
businesses and organizations that extend              the rule is                                                                          tails regard-     purposes that involves multiple payments or
credit, which includes many health care pro-          written too                                                                          ing the tem-      transactions.
viders, to establish and enforce written iden-        broadly, the                                                                         plate were
tity theft prevention programs. These health          FtC       has    Kristin Connors                   Edward Spinella                   immediately       ‘Suspicious Documents’
care providers must be on the alert for “red          (for a sec-                                                                          available.           Red flags are a “pattern, practice, or spe-
flags” — patterns, practices or specific activi-      ond time) delayed enforcement until aug.                                                               cific activity that indicates the possible risk
ties that indicate possible identity theft.           1, 2009. on april 30, FtC Chairman Jon            Covered Providers                                    of identity theft.” examples of “Red Flags”
    The Fair and accurate Credit transac-             leibowitz, stated in a press release: “Given         The rule is applicable to any entity that         include, but are not limited to:
tions act of 2003 (FaCta) directed fi-                the ongoing debate about whether Congress         meets the definition of “creditor” and main-         ■ alerts, notifications or warnings from a
nancial regulatory agencies, including the            wrote this provision too broadly, delaying        tains “covered accounts.” a “creditor” is de-           consumer reporting agency.
Federal trade Commission, to promulgate               enforcement of the Red Flags Rule will allow      fined as any entity that regularly extends,          ■ Suspicious documents, such as a change of
rules regarding the establishment of iden-            industries and associations to share guid-        renews or continues credit, or arranges for             address notice, that is followed by a request
tity theft prevention programs. In novem-             ance with their members, provide low-risk         others to do so; and includes all entities              for new credit or an application that appears
ber 2007, the FtC, along with other agen-             entities an opportunity to use the template       that regularly permit deferred payments for             to have been forged, altered, or reassembled.
cies, issued the “Red Flags Rule” requiring           in developing their programs and give Con-        goods or services.                                   ■ Suspicious personal identifying informa-
“creditors” and “financial institutions” with         gress time to consider the issues further.”          The FtC considers a health care provider             tion, such as a Social Security number
covered accounts to implement programs                   The FtC also announced that the agency         to be a creditor if the health care provider
to identify, detect and respond to red flags          will soon release a “template” to help enti-      regularly provides services and bills patients                                n continued on PAGe 8

  n From ticked on PAGE 1                              ters for disease Control and Prevention lists    that his investigation uncovered “seri-             lines to determine whether they should be up-
                                                       the IdSa guidelines on its website. In three     ous flaws” in IdSa’s guideline process. he          dated or revised. none of the panelists who sat
  legitimate but contradictory evidence and            disciplinary proceedings before the Con-         stressed that medical groups, such as IdSa,         on the 2006 panel are permitted to serve again.
  opinions on the existence of chronic lyme            necticut medical examining Board, the de-        have both a “legal and moral duty to use ex-        IdSa must hold an open application process.
  disease. This is believed to be the first time       partment of Public health has offered expert     acting safeguards and scientific standards.”        all applicants are to be screened for potential
  a state has relied on antitrust principles to        witnesses who espouse the IdSa guidelines        The panelists who draft the guidelines must         conflicts by the ombudsman approved by the
  investigate a medical society’s guideline            in its prosecution of physicians who believe     be free of conflict, he stated, and should not      attorney General’s office.
  process. however, it is not the first time           in and treat chronic lyme disease.               exclude divergent views unless unsupported              after the new panel is established, it must
  that antitrust law has been used to chal-                Blumenthal’s investigation caused a ma-      by evidence. These were the very concerns           hold an open scientific hearing, which has
  lenge a medical entity’s clinical stance.            jor stir in the medical community national-      of lyme disease activists who brought Id-           yet to be scheduled, to consider information
      In 1978, dr. Chester wilk and four other         ly. Some, like the lyme disease association,     Sa’s actions to Blumenthal’s attention and          from “interested parties” approved by the at-
  chiropractors sued the american medical              applauded because it believed that IdSa had      who were the catalyst for his investigation.        torney general’s office and the ombudsman.
  association, among others, alleging Sher-            improperly excluded evidence about the ex-          Some of the serious flaws uncovered by           however, the hearing is not open to the pub-
  man act violations because the ama’s rules           istence of chronic lyme disease. IdSa sup-       the attorney general’s office were: (1) pan-        lic — which has raised some eyebrows in the
  prohibited allopathic doctors from referring         porters argued that Blumenthal overstepped       elists with undisclosed financial interests         lyme disease community. In lieu of a public
  patients to or even coordinating care with           his bounds and was improperly interfering        were not discovered because IdSa failed             hearing, IdSa is required to broadcast the
  chiropractors. nine years later, a U.S. district     in scientific matters.                           to conduct a conflict of interest review; (2)       hearing on its web site. after the hearing,
  Court found that the ama had tried to elimi-                                                          panelists refused to consider information           the reviewers will decide whether the 2006
  nate the chiropractic profession; essentially, it    Two Schools Of Thought                           concerning the existence of chronic lyme            guidelines are supported by the evidence.
  had orchestrated a group boycott. The court             a person unfamiliar with the controversy      disease and removed a physician who dis-                It is too early to tell whether the “redo”
  ordered the ama to revise its rules. The Su-         that surrounds lyme disease and chronic          agreed with the majority opinion; (3) IdSa          demanded by Blumenthal will produce a
  preme Court upheld its decision.                     lyme disease might not understand the            blocked appointments of scientists and              different result. lyme activists have ex-
      It is not unusual for a professional medi-       significance of the attorney general’s thrust.   physicians who believed in the existence of         pressed doubt that it will. The most im-
  cal organization to draft clinical guidelines.       Briefly, there are two schools of thought on     chronic lyme disease by telling them the            portant lesson of the attorney general’s/
  These guidelines pack a mighty punch be-             the diagnosis and treatment of lyme dis-         panel was full even though it was later ex-         IdSa settlement is that regulators can no
  cause they are frequently employed to de-            ease. Physicians adhering to the school re-      panded; and (4) IdSa appointed a chair-             longer be expected to hang back in the face
  fine the relevant standard of care. doctors          flected in the IdSa guidelines believe that      man who was so biased about the non-ex-             of exclusionary practices by medical clini-
  apply them in their practice and often base          lyme disease is easy to diagnose and treat.      istence of chronic lyme disease he used his         cal standard-setting bodies. The credence
  treatment decisions on them. Insurance               They contend that short-term antibiotics are     position to appoint like-minded individu-           given to IdSa’s lyme disease guidelines
  companies rely on them to determine cov-             the appropriate therapy. They do not believe     als without oversight committee approval.           by regulatory, reimbursement and profes-
  erage and to deny reimbursement. State reg-          that chronic lyme disease exists. They stress                                                        sional medical groups, coupled with the
  ulatory agencies use them in licensure and           the importance of positive laboratory tests      Credibility Issues                                  hostility showed by IdSa adherents to dif-
  disciplinary proceedings against doctors.            to confirm a lyme disease diagnosis.                These flaws called the guidelines’ credibility   fering views, was dramatically exposed by
      The IdSa lyme guidelines have had a                 Physicians subscribing to the school re-      into question. IdSa and the attorney general’s      the attorney general’s efforts. legislation is
  sweeping impact on the diagnosis and treat-          flected in the International lyme and asso-      office entered into a settlement agreement          currently pending at the General assembly
  ment of lyme disease, especially in Connecti-        ciated diseases Society’s guidelines believe     under which IdSa agreed to an extensive re-         addressing the lyme disease controversy
  cut, a highly endemic area for the disease and       that the diagnosis and treatment lyme            examination of its 2006 guidelines. a review        which will be the subject, if enacted, of a
  whose quaint shoreline town gave the disease         disease is complex. They maintain chronic        panel will be created to “scrutinize” the guide-    future article.                              n
  its name. Insurance companies such as Unit-          lyme disease is quite prevalent and may
  ed healthcare, health net and others regu-           require long-term antibiotic treatment,               Elliott B. Pollack is a member of Pullman & Comley in Hartford where represents
  larly rely on them to dispute the existence of       sometimes intravenously. They dispute the        health care providers. Christine Collyer is an associate in the firm’s Hartford office where
  chronic lyme disease and to deny coverage            accuracy and utility of available testing.         she handles health care litigation. The authors represent a physician charged by the
  for long-term antibiotic treatment. The Cen-            on may 1, 2008, Blumenthal announced            Department of Public Health with improperly diagnosing and treating Lyme disease.
monday, may 11, 2009                                                                         health law                                                                                                                            S5

             Do Health Providers Have ‘Right to Refuse’?
                                                  tion appears in the Public health Code, and                                             cal interven-                 refusing, on religious grounds, to provide in-
  ‘Conscience clauses’ allow                      states that “no person shall be required to                                             tion and life-                vitro fertilization to same-sex couples. (North
                                                  participate in any phase of an abortion that                                            sustaining                    Coast Women’s Care v. Benitez, Ct. app. 4/1
    hospitals to opt out of                       violates his or her judgment, philosophical,                                            t re at m e nt ,              d045438).
  abortions, other procedures                     moral or religious beliefs.” (Conn. agen-                                               even if the
                                                  cies Reg. § 19-13-d54) Some states (such                                                institutional                 New Federal Regulations
                                                  as arkansas, delaware, and Florida) give an                                             and individ-                      on aug. 21, 2008, the department of health
        By JENNIFER N. WILLCOX                    unfettered ability to individuals and institu-                                          ual caregiv-                  and human Services issued a proposed regu-
                                                  tions to opt out of any procedure that results                                          ers involved                  lation that would deny federal funding to any

R     ecent stories about pharmacists’ refusal
      to provide contraception, and plans by
President Barack obama’s administration
                                                  in the “termination of a pregnancy,” while
                                                  other states place restrictions on the types
                                                  of procedures to which providers can object
                                                                                                                                          object. many
                                                                                                                                          cases, how-
                                                                                                                                          ever, balance
                                                                                                                                                                        hospital, clinic, health plan or other entity that
                                                                                                                                                                        “subject[s] any institutional or individual health
                                                                                                                                                                        care entity to discrimination on the basis that
to withdraw last-minute regulations on pro-       or the types of institutions that can refuse to                                         the health                    the health care entity does not provide, pay for,
vider rights of conscience left behind by for-    provide treatments.                                                                     care provid-                  provide coverage of, or refer for, abortion.”
mer President George w. Bush have put the            more recently, states such as arkansas,                                              er’s or facil-                    an earlier draft of the regulation that was
issue of conscientious objection to health        Georgia, mississippi, and South dakota have                                             ity’s right to                leaked to the media included language that de-
care treatment in the spotlight.                  passed laws that explicitly give pharmacists            Jennifer N. Willcox             conscience                    fined abortion (for the first time in a federal
   technological advances often outpace our       the right to refuse to dispense drugs related                                           against the                   law or regulation) as anything that interferes
ability to develop ethical guidelines about how   to contraception, while others (California            individual patient’s interests, and require                     with a fertilized egg after conception. That
these technologies will be put to work, and the   and Illinois) have passed laws mandating that         that the objecting provider assist in transfer-                 language was deleted, but commentators said
health care system must grapple with the colli-   pharmacies or institutions fill or dispense such      ring the patient to another provider that will                  that the final regulations were broad enough
sion between the individual rights of providers   prescriptions.                                        carry out the patient’s wishes. (See Brophy v.                  to protect health care providers who decline
and the health care needs of patients.               Some states, including Connecticut, re-            New England Sinai Hospital Inc., 497 n.e.2d                     to provide oral contraception, the “morning
                                                  quire hospitals or other facilities to provide the    626,633 (mass. 1986)). Recent cases also                        after” pill and other types of contraception.
Background                                        “morning after pill” to rape victims who pres-        have imposed damages for failure to follow                          Industry officials and state and federal legis-
   almost before the ink dried on the Roe         ent for treatment, as long as certain require-        a patient’s instructions that were contrary to                  lators called for the rule to be withdrawn, and
v. Wade decision, Congress responded in           ments are met. (See Conn. Gen. Stat. § 19a-11e        the moral or ethical beliefs of the provider. In                Connecticut attorney General Richard Blu-
1973 with the Church amendment, which             (Public act 07-24)).                                  texas, a jury imposed a $42 million verdict                     menthal brought suit to block its implemen-
provides that the receipt of federal funds in        a few states have expressly adopted “con-          on a hospital for disregarding parental objec-                  tation. Shortly after obama took office, the
various health programs does not require          science protections” that go beyond abortion          tions and providing life-sustaining treatment                   department of health and human Services
hospitals or individuals to participate in        and contraception. maryland’s “conscience             to a premature infant born after 23 weeks of                    issued a proposal that would rescind the pro-
abortions if they object on moral or religious    clause” legislation extends to artificial insemi-     gestation. on appeal, the verdict was over-                     vider conscience regulations. Comments were
grounds. So-called “conscience clauses” af-       nation as well as sterilization and termination       turned. (Miller v. HCA, 118 S.w.3d 758 (tex.                    due by april 9, 2009, and a final rule has not yet
ter the Church amendment have extended            of a pregnancy. States such as Indiana, Penn-         2003)). and last summer, the California Su-                     been issued. Until the “Rescission Proposal” is
protection to other types of health care pro-     sylvania, Idaho and texas provide some pro-           preme Court concluded that the state’s anti-                    finalized, the Bush administration regulations
viders, and expanded the grounds on which         tections for health care providers who refuse                                        physicians from
                                                                                                        discrimination laws prevent4/13/09 10:36
                                                                                                          CT_Law_5x6.5:3312009                                          remain in effect.
                                                                                                                                                                       AM Page 1                                         n
such clauses can be invoked. The hyde-            on moral grounds to implement the instruc-
weldon amendment of 2004 prohibits a              tions of patients regarding end-of-life issues.
government program from receiving certain
federal funds if it “subjects any institutional   Case Law
or individual health care entity to discrimi-
nation on the basis that the health care entity
                                                     Several cases have addressed the intersec-
                                                  tion of providers’ conscience rights and the                Webster’s Attorney Package.
does not provide, pay for, provide coverage       needs of patients. In Doe v. Bolton, a com-
of, or refer for abortions.” (Public law no.      panion case to the better-known Roe v. Wade,                Webster offers a tailored package of financial services to help you
108-447, § 508(d)).                               the Supreme Court reviewed a Georgia statute
   States have been even more active in the       that, among other things, required a panel of               manage costs and run your practice more efficiently. We offer your
arena of provider conscience protections,         three physicians to approve all abortions.                  firm business checking options suited to your needs, no-fee IOLTA
                                                                                                              Checking1, and competitive rates on business loans and lines of
  Maryland’s ‘conscience clause’ legislation extends to                                                       credit2 to manage your firm’s cash flow, and sub-accounting to
                                                                                                              monitor all your clients’ funds. And our Bank at Work program
  artificial insemination and sterilization. Pennsylvania
                                                                                                              offers WebsterOne Relationship Checking3 for all of your employees.
   provides some protections for health care providers
     who refuse on moral grounds to implement the                                                             Open your IOLTA Checking account with Webster Bank today.
  instructions of patients regarding end-of-life issues.                                                      For more information contact Jordan Arovas at 203.782.4656
                                                                                                              or via email at
and have taken widely varying approaches               Speculating that the provision was to protect
to addressing the problem. at present, 47         the hospital, rather than the woman’s informed
states have some sort of conscience clause        choice, the court noted in dicta that “the hospi-
legislation that protects the rights of health    tal is free not to admit a patient for an abortion.
care providers (individuals or institutions)      . . . Further a physician or any other employee             Voted best bank for attorneys to do
that refuse to provide certain procedures or      has the right to refrain, for moral or religious            business with by the readers of the
                                                                                                              Connecticut Law Tribune.
services; alabama, new hampshire and Ver-         reasons, from participating in the abortion pro-
mont have no such statutes. These laws vary       cedure.” (410 U.S. 179, 197-198 (1973)).
in the types of providers covered, the nature          There have been myriad cases involving                                                                                           
of the procedures to which providers may ob-      moral or religious refusals to withdraw life-
                                                                                                            IOLTA Checking - Miscellaneous fees may apply.
ject, the process that must be followed, and      sustaining treatment, from the new Jersey               2
                                                                                                            All credit products, pricing and overdraft protection are subject to the normal credit approval process. Some appli-
the permissible grounds for refusal.              Supreme Court’s decision in In re Quinlan                 cations may require further consideration and/or supplemental information. Certain terms and conditions may apply.
   The majority of state conscience clause        (355 a.2d 647 (1976)), to the 2006 controversy            SBA guaranteed products may also be subject to additional terms, conditions and fees.
                                                                                                            WebsterOne Relationship checking: minimum opening deposit of $50 required. Normally there is a $15 (or $13
legislation addresses abortion or abortion-       about terri Schiavo, the severely brain-dam-              with direct deposit) monthly service charge if combined monthly average balance of $4,000in checking, savings
related procedures. Connecticut’s protec-         aged Florida woman whose husband and par-                 or money market accounts or $20,000 in combined deposit (checking, savings, CDs or money market) or home
                                                                                                            equity and installment loan balances is not maintained. This fee will be waived as long as your employer remains
                                                  ents fought in court over whether she should              a Webster Bank at Work customer. Direct deposit of your paycheck is also required. Miscellaneous fees may apply.
                                                  be taken off life support.                                Webster will not charge any fees for using non-Webster ATMs and will rebate you if another financial institution
     Jennifer N. Willcox is a partner in the           most cases conclude that an otherwise                charges you a fee for using its ATM.
        Health Care Department at                                                                         The Webster Symbol, Webster Bank and Webster We Find a Way are registered in the U.S. Patent
                                                  competent adult has the right to refuse medi-           and Trademark Office. Webster Bank, N.A. Member FDIC. Equal Housing Lender.                           04/09
           Pullman & Comley LLC.
                                                                                                         B&P Banking - CT Law     4/10                      Size: 1/4 Page (5” x 6.5”)
                                                                                                         Studio Number: 003312009 GD: JM                    Color: BW
                                                                                                         AD CODE: WFC-BPB-0235                              MM: Joanne
S6                                                                                          health law                                                                          monday, may 11, 2009

      Understanding How To Deal With Overpayments
                                                   be diligent                                                                        efits,”      and      medicare overpayment, odds are there will
        Practices obligated                        in watching                                                                        i nt e r v i e w -    also be private payer overpayments which
                                                   payments                                                                           ing         staff.    should also be resolved via repayment. These
       to return undeserved                        received                                                                           Specialty-            situations, particularly when the amounts
           federal funds                           from payers,                                                                       specific cod-         are small, can be made with a very general
                                                   especially                                                                         ing require-          explanation. Counsel and the provider
                                                   medicare.                                                                          ments and             should anticipate and have a more careful
        By ANDREW P. GAILLARD                      Just because                                                                       rules should          explanation in hand, however, should any
          and HELEN HADLEY                         a payment                                                                          be discussed          payers seek more details.
                                                   has      been                                                                      with          the        more significant dollar amounts, par-

o     ne of the more difficult questions con-
      fronting health care providers and their
counsel is how best to handle what we will
                                                   made does
                                                   not neces-
                                                   sarily mean
                                                                                                                                      practice to
                                                                                                                                      determine if
                                                                                                                                      billing per-
                                                                                                                                                            ticularly if there are factors that suggest
                                                                                                                                                            impropriety on someone’s part, may be best
                                                                                                                                                            resolved via the office of Inspector General’s
call “overpayment” situations. Those are situ-     it was paid                                                                        sonnel have           self-disclosure protocol (see the oIG web
ations where it is discovered that the provider    correctly. Ul-                                                                     the knowl-            site, http://oig.hhs/gov/fraud/selfdisclosure.
has received payments it should not have.          timately, the                                                                      edge         that     asp for details).
There are a variety of overpayment situations      practice is        Andrew P. Gaillard                Helen Hadley                  promotes                 In recent years the office of the Inspec-
that can arise. Some are a result of minor bill-   responsible                                                                        clean claims          tor General has sought to promote voluntary
ing or coding errors, while others may be the      for billing and coding services accurately,        and proper billing. Counsel and consultants           compliance efforts by the provider commu-
result of a long-running fraud. many will fall     and has the obligation of returning funds          will want to regularly reference the depart-          nity by rewarding those who self-disclose
somewhere between these two extremes.              when the claim is paid incorrectly.                ment of human Services’ office of the In-             with lesser financial penalties. The office
   Identifying the extent of such overpay-            Keeping a close eye on “explanation of          spector General’s “work Plan and the local            has a specified format and procedure for
ments is generally time-consuming and              Benefits” is the first step in identifying over-   medical Review Policies” in an effort to pre-         the self-disclosure, but great care must be
expensive. and then even, once they are            payments. every claim that is paid incorrectly     pare for these discussions.                           taken to fully and accurately describe the is-
fully identified and understood, there are a       warrants investigation, but overpayments                                                                 sues. opening the door to the office of the
variety of ways to resolve them. while there       may have resulted from duplicate claim sub-        What To Do With Them                                  Inspector General is a serious step, and in-
is often no clearly “right” way of handling        mission or submission of the incorrect service         once an overpayment situation is iden-            accurate or incomplete disclosures will only
the overpayment, there are most certainly          (CPt code). Running regular “credit balance”       tified, the obvious question is what to do            make the situation far more problematic and
“wrong” ways. Given the potential pitfalls         reports may reveal overpayments that have          about it. The provider’s first reaction may be        difficult to resolve.
of mishandling such situations — including         been posted and not yet resolved. Investigat-      to ignore the overpayment altogether, and                If the overpayment situation involves
termination of provider status, civil penalties    ing the credits can uncover myriad issues.         hope it never comes up. when the amounts              substantial amounts of money, and/or the
and damages, criminal charges, and even ex-           overpayments may unwittingly have               are small, and the costs of identifying them,         underlying facts indicate clear-cut fraud on
clusion from medicare and other healthcare         occurred when a practice learns that it has        repaying the various payers, and fixing the           someone’s part, the best course may be to self-
programs — overpayment situations must             been coding services incorrectly. This can         provider’s books, are high, the temptation            report the situation directly to the U.S. attor-
be handled very carefully.                         happen when: (1) the providers are selecting       will be strong to hope the problem goes away          ney’s office. This course should only be taken
                                                   a higher level of service than was rendered,       by itself. This is never a good option. The fact      when it is clear the matter will be of interest
How To Identify Them                               (2) the wrong CPt code was selected, or (3)        is that the provider has received funds that          to civil and criminal health care fraud pros-
   It is obviously preferable that the provider    the service should not have been billed at all.    belong to someone else. If a payer, especially        ecutors. This tactic requires a very carefully
office identifies overpayments itself rather       each of these billing/coding errors is seri-       a government payer, discovers the problem             thought out proposal for what the “end game”
than learn of them via insurance company           ous, and suggests that the providers and staff     and then learns the provider knew of it but           should look like. The end result will certainly
audits, government inquiries, whistleblower        have not educated themselves on appropri-          decided to ignore it, the consequences are            be painful, but almost certainly less painful
actions, or other third parties. to this end,      ate coding and billing procedures. Periodic        certain to be more severe.                            than the outcome if the government learns of
practices and their billing managers should        training, as well as routine reassessment or           In the simplest situations, where the over-       the situation through a whistleblower or one
                                                   review of the practice’s procedures and sys-       payment is the result of a billing or coding          of the other means described above.
                                                   tems, are important means of avoiding over-        error that has been caught and corrected by
   Andrew P. Gaillard is a Stamford-based
  partner in Day Pitney’s White-Collar De-         payments in the first place.                       the provider, repayment of the funds to those         Conclusion
 fense and Internal Investigations Practice           when counsel or consultants are engaged         who overpaid them is relatively straightfor-             overpayment situations are legal mine-
   Group. Helen Hadley is president and            by a provider group, overpayments can be           ward. medicare contractors have an over-              fields. It is possible to navigate them carefully
founder of VantagePoint, a Hamden-based            uncovered by running the credit reports, re-       payment form and a process for practices to           and safely. But they can also severely harm,
        health care consulting firm.               viewing a sampling of “explanation of Ben-         use for repaying overpayments. If there is a          or even destroy, the careless or unwary. n

   n From when on PAGE 1                            certain types of claims and certain types of      2006 made the RaC program permanent                  quest letters or other correspondence.
                                                    providers may see more RaC auditing ac-           and required that the Centers for medicare              Second, the provider should assemble
   claim, or when there is a deviation from a       tivity than others.                               & medicaid Services to implement the pro-            a team to develop a process for handling
   written medicare policy, medicare article, or       during the demonstration program, 85           gram in all states by Jan. 10, 2010. Based on        RaC audits. The provider should consider
   medicare-sanctioned coding guideline that        percent of overpayments were collected            the most recently published schedule, the            involving counsel in this process so that
   precisely describes the coverage conditions.     from inpatient hospital claims; 6 percent         RaC program could begin in Connecticut               nothing falls through the cracks. The pro-
                                                    from inpatient rehabilitation facility ser-       by aug. 1, 2009. Before RaCs begin their             vider should identify the RaC in Connect-
   Complex Review                                   vices; 4 percent from outpatient hospital         auditing activities in Connecticut, provider         icut and watch for correspondence from
      In the case of claims that likely contain     claims; and the remaining from physicians,        outreach programs, including educational             that company. The RaC for Connecticut
   errors, RaCs generally request medical re-       skilled nursing facilities, durable medical       meetings and town hall gatherings, will be           (Region a) is diversified Collection Ser-
   cords from the provider to further review the    equipment suppliers and ambulance, labo-          conducted in late June or July.                      vices (1-866-201-0580).
   claim. Based on a review of the record, RaCs     ratory or other providers. most overpay-              There are a number of steps that provid-            Third, the provider should be educated
   make a determination as to whether payment       ments occurred when providers submitted           ers (with assistance from their counsel) can         on RaC response times and have a system in
   of the claim was correct or whether there was    claims that did not comply with medicare’s        take to prepare for a possible audit.                place to monitor such times. RaC deadlines
   an overpayment or an underpayment. This          coding or medical necessity policies.                 First, a provider’s staff should attend out-     are strict and failure to file timely appeals will
   process is called a complex review.                                                                reach programs in the provider’s area. The           prevent an appeal of an improper denial.
      although there is no way to forecast          RAC In Connecticut                                Centers for medicare & medicaid Services                Fourth, a provider and its legal coun-
   which providers will be targeted for review,       The tax Relief and health Care act of           contact person for Connecticut (Region a)            sel should keep current with Centers for
                                                                                                      is listed as ebony Brandon (410-786-1585).           medicare & medicaid Services announce-
        For more than 20 years, Patrick J. Monahan II has represented hospitals, businesses, and      during these educational meetings (or                ments and other pertinent publications,
     other clients in corporate and regulatory compliance matters, government relations, and          shortly thereafter), providers will likely           which can help guide compliance efforts.
   litigation. He is the partner in charge of the Stamford office of Garfunkel, Wild & Travis P.C.    have an opportunity to identify the precise          In conducting reviews, RaCs are guided
      Wilhelmina A. de Harder, an associate with the firm’s Litigation and Arbitration Practice       address and contact person to whom the               by medicare policies, regulations, national
      Group, advises clients on a range of health care related litigation and compliance issues.      RaC should send any medical record re-                                        n Continued on PAGe 7
monday, may 11, 2009                                                                      health law                                                                                                       S7

     Government Cracks Down On ‘Exclusion Billing’
                                                 cussed an exclusion billing settlement in-         about how                                                                              p er for me d
      Providers must screen                      volving walnut hill Care Center, a skilled         frequently                                                                             to      ensure
                                                 nursing facility based in new Britain. In          providers                                                                              continued
       employees to ensure                       2005, walnut hill hired a nursing supervi-         should con-                                                                            compliance;
   eligibility for federal funds                 sor. after the nurse’s license was revoked in      duct exclu-                                                                            (2) the con-
                                                 another state, the facility learned that she had   sion checks.                                                                           tractor’s re-
                                                 been excluded from medicare and medicaid.          Some pro-                                                                              sponsibility
         By MAUREEN WEAVER                       after a lengthy investigation into potential       viders per-                                                                            to notify the
          and JODY ERDFARB                       False Claims act liability, walnut hill, with-     form them                                                                              provider if
                                                 out admitting any wrongdoing, entered into         quarterly;                                                                             the contrac-

“e      xclusion billing” is now a govern-
        ment enforcement priority, warned
assistant U.S. attorney Richard m. molot at
                                                 a civil settlement with the government, pay-
                                                 ing $222,419, and also entered into a Certi-
                                                 fication of Compliance agreement with the
                                                                                                    others check
                                                                                                    twice a year.
                                                                                                                                                                                           tor or any
                                                                                                                                                                                           of its em-
                                                                                                                                                                                           ployees are
a november 2008 health Care enforcement          office of the Inspector General.                   officials have                                                                         excluded;
Roundtable sponsored by wiggin and dana.             more recently, the Connecticut U.S. at-        indicated in-                                                                          and (3) the
exclusion billing is the unlawful billing of     torney’s office announced an exclusion-            formally that                                                                          p r o v i d e r ’s
medicare, medicaid and other federal health      related settlement with Silver hill hospital,      screening          Maureen Weaver                        Jody Erdfarb                  right to im-
care programs for services provided by in-       a psychiatric hospital in new Canaan. In           should occur                                                                           mediate ter-
dividuals or entities, including employees or    2004, Silver hill hired a full-time registered     systematically at least annually. Providers            mination in the event the contracting entity
contractors, that are excluded from partici-     nurse. although the nurse’s Connecticut li-        should decide on a time frame, incorporate             is excluded.
pation in federal health care programs. mo-      cense had recently been reinstated, she still      it into policy and check the databases regu-               Take immediate action if an employee
lot said that Connecticut has seen an uptick     appeared on the inspector general’s exclu-         larly. evidence that a provider conducted              or contractor appears on the exclusion list.
in investigations into exclusion billing, and    sion list. Silver hill employed the nurse for      regular checks can be crucial to avoiding or           If an employer learns that an employee or
whistleblowers have alerted the government       four years before learning that she was ex-        mitigating penalties if it is discovered that an       contractor appears on the exclusion list, it is
to many of these cases.                          cluded. without admitting liability, Silver        excluded individual was on the employment              best to consult with counsel. The first step
   Who are excluded individuals and en-          hill settled for $60,338.                          rolls, or that one of the provider’s vendors is        may be to immediately stop any billing for
tities? The U.S. department of health and            What can health care providers do?             excluded.                                              services provided by the employee or con-
human Services’ office of Inspector Gen-         Providers and their counsel can take a few             Address exclusion in contracts. agree-             tractor. There are many complex rules for
eral is required to exclude individuals or       simple steps to mitigate risk:                     ments with outside contractors should in-              calculating when exclusion takes effect and
entities under certain circumstances, such           Check government exclusion data bases          clude provisions addressing: (1) the contrac-          how long after that date claims may still be
as upon conviction of a criminal offense         for all prospective employees and contrac-         tor’s representation that neither the entity           processed. In most circumstances, an inter-
related to the delivery of an item or service    tors. every health care organization’s corpo-      nor any of its employees are excluded and              nal review followed by self-disclosure to the
under medicare or of certain drug related        rate compliance program should contain a           guarantee that periodic exclusion checks are           government is the recommended course. n
felonies. The inspector general has sweep-       policy and procedures addressing exclusion.
ing permissive authority to order exclusion      The policies should require that all prospec-         Maureen Weaver is chair of the Executive Committee and a partner in the Health Care
in a variety of other circumstances, includ-     tive employees and outside contractors be            Compliance Practice Group at Wiggin and Dana LLP. Jody Erdfarb is an associate in the
ing fraud, breach of fiduciary responsibility,   screened against the office of the Inspector                            firm’s Health Care Compliance Practice Group.
financial misconduct, unlawful kickbacks,        General’s list of excluded Individuals or en-
or interference or obstruction of a criminal     tities, available at
investigation.                                   exclusions/exclusions_list.asp and the U.S.
   How can excluded individuals and enti-        General Services administration’s excluded
ties affect health care providers? The Bal-      Parties list System, available at www.epls.
anced Budget act of 1997 authorized the          gov/. The Connecticut department of Social
inspector general to impose civil monetary       Services also requires that prospective em-
penalties on any business that employs or        ployees and outside contractors be screened
contracts with excluded individuals or enti-     against the state administrative action list,
ties to provide services or supplies that are    available at
reimbursed by federal health care programs.          Develop a policy and practice for regular
Penalties for exclusion billing can include      exclusion updates. In addition to checking
fines of up to $10,000 for each billed item or   state and federal databases upon hire or prior                   Each
service furnished by the excluded individual     to entering into contracts, providers should
or entity, recoupment of reimbursement re-       require that exclusion databases be checked
ceived for such services, civil monetary pen-    on a regular basis to determine whether cur-
alties of up to three times the amount of the    rent employees or contractors have been ex-
claims submitted, and program exclusion. In      cluded. Policy and procedures should also
some cases, providers may face liability un-     address training of human resources staff
der the federal False Claims act.                on exclusion billing and on the process for
   How is the law enforced? at the health        regular exclusion checks. Federal officials
Care enforcement Roundtable, molot dis-          have not made any formal recommendation
                                                                                                                      DEDICATION      TO   TRIAL LAW. PASSION              FOR    JUSTICE.
 n Continued from PAGE 6                         sel to properly draft appeals to challenge
                                                 denials. Under the RaC program, pro-
 coverage determinations and local cover-        viders will have the same appeal rights                   For many years, we at RisCassi and Davis have been privileged to help support Coach Jim
 age determinations. In instances where          they would have if Centers for medicare                   Calhoun's charitable work throughout Connecticut. On Saturday, June 13th, Coach will be
 there is no medicare policy, RaCs review        & medicaid Services or a carrier or fiscal                  riding in his annual event to combat cancer – the Jim Calhoun Cancer Challenge Ride.
 claims based on accepted standards of           intermediary identified the alleged over-
 medical practice at the time of the claim’s                                                               We encourage all of our colleagues, their families and friends to register to ride with Coach
 submission.                                        Providers subject to RaC (as well as
                                                                                                           on June 13 in Simsbury. The Ride benefits The Carole and Ray Neag Comprehensive Cancer
    In addition, review of office of Inspec-     other medicare audits and claim denials)                         Center at the University of Connecticut Health Center and Coaches vs. Cancer.
 tor General and Comprehensive error Rate        may have a number of strategies available                         Please help Coach stop cancer now. Register to ride, donate or volunteer at
 testing reports indicates where improper        to them during the appeals process to over-               today or call 860-674-1500 for more information.
 payments have been found, and by reviewing      turn or limit an adverse decision. In addi-
 this information, a provider can be proactive   tion to advocating the merits of a claim,
 and correct or improve areas of potential       various legal defenses are available that
 concern prior to being subject to an audit.     have proven valuable for providers chal-
    Fifth, providers should work with coun-      lenging medicare audit determinations. n
S8                                                                                          health law                                                                      monday, may 11, 2009

 Doctors’ Explanations Can’t Get Lost In Translation
                                                    nicate with the patient. The ada also pro-        language in-                                                                         interpreters.
        Laws mandate sign                           hibits providers from passing the cost of the     terpreter for                                                                        In other geo-
                                                    language assistance on to the patient.            a patient, a                                                                         graphic ar-
         language, foreign                             however, the ada does not require a            new Jersey                                                                           eas, Spanish
       language interpreters                        sign language interpreter every time services     case recently                                                                        may be the
                                                    are provided to a hearing impaired patient.       demonstrat-                                                                          predominant
                                                    Providers are required only to ensure that        ed how dif-                                                                          language
           By LISA M. BOYLE                         hearing impaired patients are able to effec-      ficult it is for                                                                     and Spanish-
         and B. MOSES VARGAS                        tively communicate with their health care         providers to                                                                         speaking
                                                    provider. how the provider accomplishes           demonstrate                                                                          interpreters

F    ederal law prohibits certain health care
     providers from denying care to patients
based on their need for language assistance.
                                                    that is not mandated by the ada; but if the
                                                    communication is determined to be ineffec-
                                                    tive, the provider’s choice will be subject to
                                                                                                      an      undue
                                                                                                      burden. The
                                                                                                      court in Ger-
                                                                                                                                                                                           may be re-
The americans with disabilities act pro-            scrutiny and a violation of the ada may be        ena v. Fogari                                                                        providers
hibits providers that offer care in a place         found. to determine what sort of language         held        that                                                                     with limited
of public accommodation from denying                assistance is appropriate, providers should       it was not                                                                           budgets are
services to individuals because of their dis-       consult with the patient, take into consid-       an      undue     Lisa M. Boyle                     B. Moses Vargas                  not expected
ability. hospitals, physicians’ offices, health     eration the patient’s abilities, and recognize    burden for                                                                           to provide
centers and other health care providers that        that the type of language assistance will         a solo physician to pay more for a sign lan-      the same level of language services as larger
accept patients from the general public are         likely vary depending on the nature and           guage interpreter than he was receiving from      providers with greater resources. a provider
considered places of public accommodation           complexity of the communication involved.         the patient’s insurer. while this case may be     offering only outpatient services has a lesser
under the ada. In addition, title VI of the         a more complex communication (i.e. pre-           an aberration, it highlights that all provid-     burden than a hospital. If the service being
Civil Rights act of 1964 says that health care      surgery instructions or informed consent)         ers must ensure appropriate communication         offered is not urgent, and the provider’s re-
providers that receive federal financial assis-     would likely require the provider to obtain       with hearing impaired patients.                   sources and frequency of contact with low
tance, other than only medicare Part B pay-         a sign language interpreter, whereas the use                                                        english proficiency patients are low, then
ments, cannot deny individuals with limited         of written notes would likely suffice for sim-    Foreign Language Interpreters                     such providers may not be required to employ
english proficiency meaningful access to            pler communications (i.e. routine examina-           title VI requires health care providers to     staff interpreters. Instead, the provider could
health care services based upon their inabil-       tions).                                           provide patients with limited english profi-      use telephonic interpreter services or share
ity to speak english.                                  Small providers and solo practitioners have    ciency with meaningful access to their ser-       language assistance services with other pro-
   to provide appropriate care, health care         argued in court that providing language as-       vices. a provider must apply a four-factor        viders. health care providers have the burden
providers must be able to communicate with          sistance is financially burdensome, especially    analysis to determine what language servic-       of determining the level to which language
patients who are hearing impaired or who            in light of decreasing reimbursement rates        es it must provide to patients. The provider      services are necessary and reasonable and of
speak limited english. what’s difficult for         from government and commercial payors.            must consider: (1) number or proportion of        providing such services in a timely manner.
providers covered by the ada and/or title           The ada says that that if a health care pro-      limited english proficiency patients served          Providers often have patients who want to
VI is ascertaining the effort they must make        vider demonstrates that offering language as-     or encountered in the geographic area; (2)        use a family member or friend as their inter-
to facilitate this communication. Recent            sistance would fundamentally alter the nature     frequency with which these types of patients      preter. In these circumstances, providers need
case law and other guidance suggest that the        of the services being offered or result in an     are served; (3) the nature and/or urgency of      to inform the patient that he has the option of
burden on a provider may be considerable            undue burden (i.e. a significant difficulty or    the provider’s services (i.e. emergency sur-      receiving outside interpreter services at no cost.
and that the size of the provider will rarely       expense), then the provider can substitute an     gery, routine examinations, etc.); and (4) a      a provider cannot rely on the patient’s family
provide an exemption.                               alternative type of language assistance, if one   provider’s available resources and costs.         or friends to provide interpreter services if the
                                                    exists. In determining whether the language          Specifically, a health care provider must      patient wants an independent interpreter. If a
Sign Language Interpreters                          assistance would cause an undue burden, pro-      consider the predominant languages spoken         friend or family member is suggested as an in-
   Under the ada, providers cannot deny             viders need to consider, among other things,      in the area served and the number of patients     terpreter, the provider must consider whether
services to hearing impaired patients sim-          the nature and cost of the language assistance    speaking only those languages. For example,       the interpreter is competent, appropriate, will
ply because they do not have language as-           needed and the provider’s overall financial       a provider in an area with a significant popu-    maintain confidentiality, and whether the in-
sistance (i.e. qualified interpreter, note taker,   resources. while this may suggest that small      lation of Chinese-speaking individuals may        terpreter has a conflict of interest. If the inter-
etc.) readily available to effectively commu-       providers will not be required to hire a sign     be required to provide Chinese-speaking           preter is determined to be inappropriate, the
                                                                                                                                                        health care provider should strongly recom-
                                                                                                                                                        mend the use of an independent interpreter.
  n From providers on PAGE 4                        tions adopted pursuant to the health In-          regular and limited patient base might be            Providers have some flexibility in deter-
                                                    surance Portability and accountability act        justified in adopting a “more limited pro-        mining whether they have to provide sign
    that matches a Social Security number           (hIPaa). Federal officials counter the rule       gram” than a large metropolitan clinic that       language and foreign language interpreters
    submitted by another person;                    is flexible and only calls for reasonable and     serves a high volume of patients. In the          for patients. Under both the ada and title
  ■ Unusual use of, or suspicious activity          effective measures, adding that the rule          case of a larger sized health care provider,      VI, providers are allowed to consider their
    relating to, a covered account, including       deals with patient accounts while hIPaa           the provider’s board of directors must ap-        resources when determining how to ensure
    the use of an account that has been in-         deals with medical records.                       prove the policy.                                 meaningful access. The predominance of pa-
    active for a long period of time                    health care providers should not risk            Regardless of the provider’s size, several     tients speaking a particular foreign language
  ■ notices from customers, victims of iden-        fines of up to $3,500 per violation while         general compliance actions should always          in the community will increase the obliga-
    tity theft, law enforcement authorities,        this disagreement is unresolved. Identity         be taken. These include:                          tion of the provider. In both cases, covered
    or other businesses about possible iden-        theft detection and prevention programs           ■ Create a written identity theft preven-         providers should have a process in place for
    tity theft in connection with covered ac-       must be put in place by the aug. 1, 2009             tion policy.                                   obtaining some type of language assistance
    counts.                                         deadline.                                         ■ train employees with respect to the policy.     for its hearing impaired and low english pro-
                                                        health care providers that extend credit      ■ Identify red flags relevant to your practice.   ficiency patients. as for sign language inter-
  Continued Debate                                  should implement a written identity theft         ■ establish procedures to respond to red          preters, recent case law suggests that the bar
     Various groups representing organized          policy to detect, prevent, and mitigate              flags (including when a response is not        is high for demonstrating that the provision
  medicine, such as the american medical            identity theft. The rule allows covered en-          needed and documenting the reason for          of sign language interpreters for hearing im-
  association, continue to debate the FtC           tities to design and implement reasonable            the decision).                                 paired patients would be an undue burden.
  on the application of the rule to health care     policies and procedures that reflect the          ■ Periodically update the identity theft          Providers must identify the language needs
  providers.                                        size, complexity, and environment of each            prevention program.                            of their community and patients and be pre-
     The ama claims the rule burdens health         particular business.                              ■ assess the identity theft prevention pro-       pared to provide appropriate assistance. n
  care providers by duplicating preexisting             In an official letter to the ama, the FtC        gram.
  identity theft provisions found in regula-        noted that a small medical practice with a           health care providers should note that              Lisa Boyle is a partner and the chair of
                                                                                                      while the rule is flexible and calls for rea-         Robinson & Cole’s Health Law Group.
      Kristin Connors is a partner in Carmody & Torrance’s litigation group where she has             sonable efforts, each “creditor” will be held        She represents health care providers in
     extensive experience in health care litigation. Edward Spinella is an associate in the           accountable for the overall effectiveness of       regulatory and transactional issues. Moses
                                firm’s business services group.                                       the customized program.                       n     Vargas is a member of Robinson & Cole’s
                                                                                                                                                                      Health Law Group.

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