::Suffolk County Medical Society/Suffolk Academy of Medicine::

How Long are You Required to Retain Your Patients' Medical Records?
Some physicians may be unaware that there is a statute of limitations, under the federal False Claims Act, that allows the federal government to look back up to ten years to investigate an alleged violation of the Act. Therefore, in order for a provider to ensure that he or she can defend against False Claims Act lawsuits, records of patients whose treatment was reimbursed by a federal health care program, such as Medicaid or Medicare, should be maintained for ten years. Medicare Advantage payors and providers in their networks are required, at a minimum, to make their records related to services to Medicare Advantage beneficiaries available to CMS for ten years following the end of the contract term or following the completion of an audit, whichever is later, and even longer in certain situations where the government decides the retention period should be extended. Physicians are encouraged to prepare a written medical record retention policy and train staff accordingly to ensure compliance with the law and to maintain prudent risk management practices.
It is important for physicians to retain medical records long enough to ensure that they have the written documentation needed to defend against potential audits, malpractice actions and other professional practice investigations, while also complying with record retention regulations. New York State requires that medical records be retained for a period of six years, unless a specifically applicable law provides otherwise. Obstetrical records and records of a minor patient must be retained for at least six years, and until one year after the minor reaches 21 years of age. Medical malpractice insurance carriers and managed care companies may have additional requirements for retention of medical records.

Health Law Alert From RuskinMoscouFaltischek.PC

www.rmfpc.com

April 2010

Court Concludes NYS Comptroller Lacks Authority To Audit Out-Of-Network Medical Providers

RMF was recently retained by an orthopedic practice to challenge an audit conducted by the NYS Comptroller. The audit was the result of the Comptroller’s statewide practice of auditing financial records of out-of-network providers that treat individuals insured by the State’s Empire Plan as the basis for recovering millions of dollars from these providers.

In a major victory for providers, New York’s Supreme Court agreed with RMF and held that the Comptroller’s audit powers do not extend to such providers because they are “not a political subdivision of the State and do not directly receive State money.” While others recommended that their clients capitulate to the State’s demands, RMF spearheaded the successful and groundbreaking attack on the Comptroller’s power to audit out-of-network practices. RMF’s multi-disciplinary team is uniquely equipped and experienced to assist providers targeted by the Comptroller or providers that fall into United’s crosshairs.

Final Electronic Health Records Rules Expected in Late Spring 2010

Recently, the Department of Health and Human Services (DHHS) published two sets of regulations related to the economic stimulus law incentive payments for eligible users of electronic health records (EHRs). One of the regulations defines certification of the systems, and the other defines how health providers and hospitals can qualify for incentive payments for "meaningful use" of EHRs.

The Centers for Medicare and Medicaid Services (CMS) will pay up to $17 billion beginning in 2011 to health providers and hospitals that meet these standards. Eligible health providers may receive incentive payments totaling up to $44,000 over a five year period and eligible hospitals may receive several million dollars. Health providers and hospitals would see their Medicare reimbursements cut if they aren’t “meaningful users” by 2015. EHRs are the inevitable next step and we advise professional and hospitals to remain abreast of these regulations.

Medicare Fraud Strike Forces Just Getting Started

The Justice Department recently released a report explaining that the number of people charged with Medicare fraud has barely increased since the formation of Medicare Fraud Strike Forces in 2007. Some argue the strike forces have been largely ineffectual because the report shows that federal prosecutors charged 803 people with defrauding medical insurers this past year which accounts for a 2% increase since "strike forces" were instituted. We believe that argument is shortsighted.

For one, a close examination of the Justice Department report reveals that the statistics do not include the number of investigations that are pending this year versus 2007. Further, the strike force has recently announced a number of arrests and indictments across the country and that it would expand operations and add investigators and offices in additional cities, including Brooklyn. Based on this information, we believe strike force efforts are just getting started and Medicare fraud will remain a top priority.

May 2010

New Federal Crackdown on Medicare and Medicaid Waste and Abuse

President Obama recently signed a presidential memorandum in support of a renewed effort by the federal government to crack down on waste and fraud in Medicare, Medicaid and other government programs through the expanded use of payment recapture audits. This newly announced effort will also include the use of bounty hunters, known as RACs (Recovery Audit Contractors), who typically get to keep from 9 to 12 percent of the total amount they recover for the government.

Given this renewed focus by the federal government, together with incentives available to RACs, it should come as no surprise that doctors and hospitals will be subject to greater scrutiny in the coming months and years. Penalties for Medicare and Medicaid fraud can range from return of the monies improperly or fraudulently obtained to more significant penalties, including exclusion from participation in federal programs and jail time for major offenders. As a result, providers need to be cognizant of this federal crackdown and need to understand their rights and obligations.

Integrity Provisions within the Patient Protection & Affordable Care Act

The Patient Protection & Affordable Care Act (PPACA) includes a number of new integrity provisions that you should be aware of, including a tougher screening process and additional disclosure requirements.

Tougher Screening

For providers and suppliers enrolling or re-enrolling in Medicare or Medicaid, the PPACA requires Health and Human Services (HHS) to determine the level of screening according to the risk of fraud, waste and abuse with respect to each category of provider or supplier. Should you be deemed to pose a special risk, you may be forced to submit to fingerprinting and criminal background checks and be subject to unannounced site visits. At a minimum, all providers and suppliers will be subject to licensure checks. Further, pursuant to the PPACA, we fully expect HHS to develop additional screening procedures within the next 6 months

Additional Disclosure

Additionally, you may not be aware that the PPACA will also require additional disclosure when enrolling or revalidating your existing enrollment. Effective one year after enactment of the PPACA, providers and suppliers are required to disclose current or previous affiliations with any provider or supplier that has uncollected debt, has had their payments suspended, has been excluded from participating in a Federal health care program or has had their billing privileges revoked. Enrollment may be denied on the basis of these affiliations. We will continue to bring relevant provisions of the PPACA to your attention and we advise providers and suppliers to become familiar with these important aspects of the newly enacted health care law as well.

Comptroller's Audits Knocked Out: Down 2-0, the State Goes to the Bullpen

As Major League Baseball resumes play after the All-Star break, it appears that New York State is borrowing a page out of a big league manager's playbook by replacing its starting pitcher, the Comptroller's office, with the State Insurance Department in an effort to continue examining out-of-network healthcare providers.

In a previous Alert, we wrote about South Island Orthopedic Group, P.C. v. DiNapoli, wherein a Supreme Court judge in Albany agreed with the arguments raised by Ruskin Moscou Faltischek on behalf of South Island and concluded that the New York State Constitution does not empower the Comptroller to audit private medical entities that provide out-of-network treatment to patients insured by the State's Empire Plan.

In June, the judge in a similar case handled by RMF, Martin Handler M.D., P.C. v. DiNapoli, agreed with the South Island decision and invalidated the Comptroller's audit of billing records relating to the State’s claim that the practice failed to collect the correct amount from out-of-network Empire patients. Both the South Island and Handler courts made it clear that the Comptroller's constitutionally flawed audits cannot serve as the basis for future action against the practices. These decisions are two important “runs” that RMF scored against the State on behalf of medical providers.

Now, it appears that the State has gone to the bullpen and called upon a reliever to replace the Comptroller in an effort to keep the State in the game. RMF has recently been contacted by several providers who have received demand letters and subpoenas from the Frauds Bureau of the Insurance Department in connection with this issue. This is not the first time that RMF has faced off against the Insurance Frauds Bureau. Our innovative and successful challenges to the State in South Island and Handler put us in a unique position to defend against the bureau's inquiries, and it is recommended that providers who receive any correspondence from the bureau contact us before responding.

All inquiries should be directed to either Alexander Bateman, Chair of the Health Law Department, or Matthew Didora of RMF's Litigation Department, at (516) 663-6600.