facebook

Healthcare Provider Marketing and Management Arrangements

Healthcare providers interested in entering into marketing or management arrangements with companies must structure these arrangements in such a way that they don’t violate any federal or Florida healthcare laws. Providers should avoid entering into any marketing and management arrangements, which gives the impression that they offered, paid, or solicited cash, or any other type of remuneration in exchange for referring patients to that provider. Failure to do so may result in an Anti-Kickback violation if the arrangement does not fit squarely within an Ant-Kickback Statute Safe Harbor.

Safe harbors that might be available to a healthcare provider, depending on the terms of the marketing or management arrangement, include, but, are not limited to the (1) referral; (2) personal services and management contract; and (3) referral arrangements for specialty services.

Providers may want to consider establishing relationships with lead generation companies for advertising purposes, rather than referral arrangements with marketing companies because they typically face less scrutiny than the latter.

Any payments made to the marketing and management companies must be for fair market value for the services that will be provided. Payments to the management and marketing companies must not fluctuate based upon the expectation or referrals or business that will be paid in whole or in party by a federal healthcare program.Percentage-based arrangements are looked at unfavorably by regulators and face significant scrutiny. Therefore, it is always safer to agree to fixed-fee or flat-fee (non-variable) compensation for management and marketing services.

Many providers believe that if they are not paying the management company directly that they are safe from potential liability. That is simply not true. Especially if the marketing or management company is also the owner of a healthcare clinic that benefits from the arrangement. These types of relationships look highly suspect. Providers must not enter into any contract with a practice management company if that management company receives any financial incentives form the referring provider for increasing outside referrals for designated healthcare services.

This informational article provides a brief overview of factors to consider prior to entering into these types of arrangements. However, there are many additional factors to consider. At Jones Health Law we careful scrutinize all potential marketing and/or marketing arrangements that our clients are contemplating. We counsel our clients on structuring the arrangement in such a way that it fits within an Ant-Kickback Statute Safe Harbor or an exception to the Stark Law (i.e. “Fair market value compensation” or “indirect compensation arrangement”). Further, we analyze whether the proposed arrangement could potentially violate any additional Health Law, business law, or agency rules. Additionally, we will help you draft a marketing and management agreements that best suits your needs.

Medicare Audit by Zone Program Integrity Contractor

If you’re reading this article it’s probably because you or your medical office has received a letter from a Zone Program Integrity Contractor (“ZPIC”) for The Centers for Medicare & Medicaid Services (“CMS”) alleging that you may have improperly billed Medicare for the provision Medicare Services to your patients.

 

What is a ZPIC?

There are seven ZPIC zones. It is possible for providers to hear from more than one ZPIC since the seven ZPICs focus on different aspects of the Medicare program. ZPIC Zone 7 includes Florida, Puerto Rico, and the U.S. Virgin Islands in its geographic scope. The Zone 7 – Zone Program Integrity Contractor was established to identify, research, and investigate cases of Medicare Program fraud relating to Parts A and B, DMEPOS, home health and hospice, and claims for dually eligible Medicare and Medicaid recipients.  Fraud may include:

  • Billing for services not rendered
  • Double-billing or over-billing
  • Soliciting, offering, or receiving a kickback or rebate for patient referrals
  • Billing non-covered or non-chargeable services as covered.

 

ZPICs responsibilities include reviewing the accuracy and justification of all services reimbursed by the program, and if necessary, take action to ensure any inappropriate Medicare payments are recovered.

Periodically ZPICs are required to conduct reviews of providers to ensure that Medicare claims have been appropriately billed. Occasionally, a ZPIC may determine based on an analysis of your claims data that you may be billing inappropriately for services. Once that determination is made, the ZPIC will begin its investigation to determine whether you have in fact billed inappropriately.

 

How does the ZPIC investigate?

ZPICs may conduct announced or unannounced on-site inspections at which time they will retrieve certain Medicare beneficiary records and other related business records. ZPICs will provide a list of affected Medicare beneficiaries and you will be required to produce documentation that supports the billed services, including, but not limited to:

  • All Medical Findings
  • Progress Notes
  • Doctor’s Orders
  • Office Notes
  • Operative Reports and Notes
  • Patient History and Physical Exam
  • Laboratory Test Results
  • Radiology Reports
  • Billing Statements
  • Superbills
  • Patient Information Sheet
  • Patient Encounter Forms
  • Patient Consent Forms
  • Advance Beneficiary Notice
  • Copy of Beneficiary Card and Photo Identification

 

During or after the on-site visit ZPICs may: (1) interview certain members of your staff; (2) perform a medical review; (3) Determine the need for administrative actions, such as payment suspensions and prepayment or auto-denial edits; (4) interview beneficiaries and/or (5) refer your case to law enforcement.

Law enforcement includes the OIG, FBI, or the U.S. Attorney’s Office. Prior to alerting law enforcement, ZPICs are required to take all other appropriate administrative actions. In some cases, law enforcement agency may not prosecution due to lack of evidence, insufficient, etc.

ZPICs will also look to determine whether the provider received prior audits or provided educational letters in the past by other CMS contractors.

Once the ZPIC has collected and analyzed enough data that has been obtained from the provider, they will determine whether the information indicates billing error or something more sinister such as Medicare fraud, waste or abuse. If ZPICs determine that no fraud has occurred then they will normally treat the matter as an overpayment and close the case. The ZPIC will then refer the matter to the Medicare Administrative Contractors (“MAC”) for further administrative action. Examples of administrative action include the following:

  • Educational letters
  • Revocation of a provider’s assignment privileges
  • Mandatory Prepayment Review or Post-payment Review
  • Suspension of Provider Payments
  • Referral to State licensing boards and other professional societies.

 

There is a significant chance that one or more of your claims will be audited in the future by a ZPIC. ZPICs have been aggressively reviewing and investigating provider and supplier medical records to identify improper billing and payments. Most providers and suppliers are identified for audit and/or investigation through an analysis of their billing practices. Our firm recommends that you consult with an experienced Healthcare Attorney if you are being audited by CMS’s Zone Program Integrity Contractors or if you have been placed on any type of corrective action. Contact us so that we can create a defense against the allegations while ensuring that you comply with the audit investigation.

Healthcare is the Next Cryptocurrency Frontier

What is Cryptocurrency?

Cryptocurrency is a virtual currency designed to work as a medium of exchange. It uses cryptography to secure and verify transactions as well as to control the creation of new units of a particular cryptocurrency. Essentially, cryptocurrencies are limited entries in a database that no one can change unless specific conditions are fulfilled. Bitcoin is the most popular cryptocurrency on the market but there are well over 1000 other “altcoins” in existence. The value of each cryptocurrency is largely speculative similar to stocks on an index. It has no intrinsic value or legal tender status and is only worth what individuals are willing to pay for it.

 

Who is going to regulate it?

There’s no hard and fast rule as to who has authority to regulate cryptocurrency, but several federal agencies have stepped up to the plate. These agencies include: (1) the Securities and Exchange Commission (“SEC”); (2) Commodity Futures Trading Commission (“CFTC”); (3) Internal Revenue Service (“IRS”); (4) Department of Treasury; (5) the Federal Reserve; and (6) States. For example, The CFTC has designated bitcoin as a commodity. The CFTC announced that fraud and manipulation involving bitcoin traded in interstate commerce and the regulation of commodity futures tied directly to bitcoin is under its authority. Treasury Secretary Steven Mnuchin stated last year that he had formed groups in the Treasury Department who were tasked with examining bitcoin “very carefully.” The SEC and CFTC held a joint-meeting stating that the two bodies would work in unison to develop a regulatory framework with varying degrees of strictness for regulations for Initial Coin Offerings (“ICO”), blockchain and other digital ledger tech. The White House has stated that they are still studying and trying to understand cryptocurrencies and are not close to the regulation stage. As the cryptocurrency market grows many will ask the SEC and other agencies for protection regulations.

Several states across the country have taken the matter into their own hands by drafting or passing legislation that aims to regulate how blockchain and cryptocurrency can be used. Organizations like the National Conference of Commissioners on Uniform State Laws are taking steps to create a model act that provides for the regulation of cryptocurrency businesses at the state level.

 

Why should it be regulated?

Cryptocurrencies operate largely outside of the traditional financial system, which increases the likelihood of money laundering, tax evasion, and fraud.

 

How is it Regulated?

The IRS says that cryptocurrencies like bitcoin must be treated as property for tax purposes. The result is that capital gain or loss should be recorded as if it were an exchange involving property. It should be treated like inventory if it is held for resale. The IRS stated that if the cryptocurrency is used as payment, it should be treated like currency but must be converted, and its fair market value checked on an exchange.

Many states have not passed laws designed to significantly regulate or provide guidance on how to use cryptocurrency. A few states have tried to define cryptocurrency as a form of legal tender subjecting it to the same rules and requirements as traditional money. These states have attempted to accomplish this through amendments to existing definitions of money to include or exclude digital currency, and other states have provided opinion letters or some other form of guidance.

In June 2017, Governor Rick Scott signed House Bill 1379, which expands the Florida Money Laundering Act to expressly prohibit the laundering of cryptocurrency. The new law defines cryptocurrency or virtual currency as “a medium of exchange in electronic or digital format that is not a coin or currency of the United States or any other Country.” This bill took effect on July 1, 2017.

The IRS has stated that in some environments, cryptocurrency operates like “real” currency, but it does not have legal tender status in any jurisdiction. Therefore, cryptocurrency must be treated as property for U.S. federal tax purposes. In other words, general tax principles that apply to property transactions apply to transactions using cryptocurrency. This means that:

  • Wages paid to employees using virtual currency are taxable to the employee, must be reported by an employer on a Form W-2, and are subject to federal income tax withholding and payroll taxes.
  • Payments using virtual currency made to independent contractors and other service providers are taxable and self-employment tax rules generally apply.  Normally, payers must issue Form 1099.
  • The character of gain or loss from the sale or exchange of virtual currency depends on whether the virtual currency is a capital asset in the hands of the taxpayer.
  • A payment made using virtual currency is subject to information reporting to the same extent as any other payment made in property.

 

Benefits of Cryptocurrency

Healthcare providers can save money by using blockchain technology and cryptocurrency. Providers can reduce or eliminate banking fees since cryptocurrency bypasses the middleman, which in this case is the banking institution. The money saved can be significant and might be used to purchase new equipment, remodel the office, or stored in the practice’s digital wallet to hopefully accrue value and interest. The cryptocurrency market is very volatile due to several reasons, such as regulatory concerns. Providers may want to keep that in mind before deciding to accept cryptocurrency as payment for services.

Many big players, such as Microsoft, PayPal and DISH Network are already on board with the blockchain-cryptocurrency revolution. Alphabet (parent company of Google) has an artificial intelligence department called DeepMind that is building a blockchain system that is intended to be used by healthcare providers.

 

Dark side of Cryptocurrency

It is becoming commonplace for hackers who hold hospital computers and other technology ransom to request payment in the form of cryptocurrency. Cryptocurrency works by using a mix of public and private keys to maintain security and anonymity of payments. This is problematic if you can see where the money goes and to which wallet it is deposited into but can’t identify the person linked to the wallet. Law enforcement would have a very difficult if not impossible task of trying to track down individuals who are exchanging cryptocurrency. That means that any cryptocurrency that is stolen can never be found and victims will never have it returned to them. One way for providers to try to prevent this is by storing cryptocurrency offline on flash drive-like devices.

Hackers are also capable of using Trojan malware to change the wallet address from a provider’s computer to their own, essentially diverting the funds away from the provider or their intended recipient.

 

As we have seen in the cryptocurrency world, early adopters usually reap massive rewards. It remains to be seen if the same rewards for cryptocurrency could spill over into the healthcare sector. Many questions about the future of cryptocurrency remain unanswered.  Providers would like to know if they can accept cryptocurrency as payment from their patients for rendering health care services? Can Healthcare providers pay their business associates in cryptocurrency? Will commercial insurers and federal program payors reimburse providers in cryptocurrency? To find out the answers to these questions and more you should consult Jamaal R. Jones, Esq., a healthcare attorney who understands the changing landscape of cryptocurrency and blockchain. Mr. Jones can be reached at jrj@joneshealthlaw.com or (305)877-5054.

Does Blockchain Belong in Healthcare?

Healthcare providers have been slow to implement blockchain into their practice. Providers are hesitant due to: (1) unfamiliarity with this technology and how it works; (2) some don’t see its practical application to healthcare; (3) others are employing the wait and see approach to determine if it is financially rewarding; and (4) some are put off by the lack of regulation, which could expose their patient records to cybertheft.

 

What is Blockchain?

In 2009, blockchain stormed on the scene as the foundation for swapping digital currency. Blockchain is a permanent record of online transactions or exchanges that are logged publicly and in chronological order with corresponding time-stamps. A blockchain is comprised of a series of “blocks” or information that grows over time to create a chain. Blocks cannot be altered or deleted which allows users to follow the “crypto trail” or transaction record. Blockchain is appealing to many in the healthcare community because of its potential for data security.

Credentialed users can add to the transaction record, which can then be dispersed or shared across networks. Users on the network can validate and confirm each block of data in the chain. The key element of blockchain is that it is not housed in a central database and all transactions must be encrypted and verified by the network.

 

How will Blockchain revolutionize healthcare?

Data security and data interoperability are two of the most popular uses for blockchain in healthcare, but there is the potential for many other applications. Blockchain can be used to create a uniform database of protected health information (PHI) that is easily accessible by healthcare providers regardless of the type of electronic health systems that they use. Blockchain will provide greater security and privacy for patient records, it will reduce administrative processes which will allow for more time spent with patients, and it will facilitate the free flow of medical research from between providers in the treatment of diseases.

Blockchains do not have to be publicly available to everyone. A healthcare facility can limit its network to users that they authorize, such as HIPAA-covered entities and other trusted collaborators. To increase data security, a healthcare provider may place restrictions on what is on the blockchain while choosing to keep some data off the blockchain. Additionally, safeguards must be in place to protect personally identifiable information (PII) without significantly inhibiting the transfer of protected health information.

More functional data sharing between healthcare providers increases the likelihood of accurate diagnoses and better treatment while reducing the cost of delivery. Also, you can be sure that the information on the blockchain is accurate and secure. Blockchain will revolutionize health information exchanges by providing patients with direct continuous access to their records. Providers will be able to access healthcare databases on a large scale. It will also facilitate communication between primary care providers, specialists, and pharmacies who all coordinate care for a patient. All providers, payors, and pharmacies can record information about a specific patient, such as patient visits, prescribed treatment, and diagnosis onto the same ledger, which they all can access. This communication reduces abuse, misuse, and readmissions.

 

Is blockchain safe?

Transactions are conducted over several computers and not a single server, which makes it much more difficult to change, hack, or forge. Cybercriminals have already found a way to abscond with millions of dollars’ worth of coins in several creative ways, but experts believe that blockchain can be a much more secure method of storing patient records and other information. Blockchain wouldn’t eliminate data breaches but if the right procedures are implemented it could significantly reduce the occurrence on a large scale as we’ve seen in the past with companies like Target and Aetna.

However, many questions related to HIPAA and blockchain remain. For example, providers are unsure of how to incorporate patient bill of rights in HIPAA through blockchain and who would have right of access to records maintained on the blockchain. Many contracts will have to be amended to allow for blockchain before they can surmount many lingering legal obstacles.

As of today, federal and Florida legislators have not passed any laws that regulate blockchain in any meaningful way, but that will change as more providers adopt this technology.

 

You need an experienced healthcare attorney who understands blockchain and data privacy to ensure that your practice isn’t violating  HIPAA, HITECH and state/federal agency rules. For more information call or email Jamaal R. Jones Esq. at (305)877-5054 or jrj@joneshealthlaw.com

Jamaal Jones, Esq. speaks at 9th Annual Interdisciplinary Conference

On February 21, 2018, Jamaal R. Jones, Esq. spoke in front of an audience of Health Professionals at Nova Southeastern University’s 9th Annual Interdisciplinary Conference.

Mr. Jones discussed “Telemedicine and its Intersection with mHealth an Innovation of Things”.

Some attendees included Anesthesiology Assistants, athletic trainers, behavioral scientists, dental hygienists, nurse practitioners, physicians, physician assistants, and physical therapists to name a few. 

Jamaal Jones Presents at Master Class on Telemedicine

On December 8, 2017, Jamaal Jones, Esq. discussed his presentation called “Health and Wearable Technology Issues in Remote Medicine” in front of other Healthcare Attorneys and Professionals at the Rosen Centre in Orlando, Florida.

If you would like to find out more information about Mr. Jones and his presentation please email him at jrj@joneshealthlaw.com or call him at (305)877-5054.