, D.C, FICC, MCS-P I f you are old enough to remember some of the first "infomcrcials." you" 11 recognize the title of this article. For those who do not remember that line, it was from Susan Powter, one of the first women to promote a weight loss program on TV. What docs she have to do with chiropractic and the challenges we face with insurance rules and regulations? A lot! Susan Powter pointed out all the "craziness" surrounding weight loss and we have our own set of "craziness"" to deal with in health care. If you are like most of us. you've spent years preparing yourself to provide the best chiropractic care you can for your patients. You probably didn"t count on or prepare for the complexities of running your practice and the layers of regulatory requirements you face from your board of examiners, your provider agreements, state and federal regulators. CMS/Medicare, and the Office of Inspector General (OIG). For some, the business and compliance side has taken the enjoyment out of practice. I find that most of the frustration we experience docs not come from direct patient care, but from the business and compliance side of practice. If that describes you. then you need to know there is a simple solution to one of the more troubling areas in our practices: our financial policy. or lack thereof. Why is this area so troubling? Many of us use our title of DC as "doctor of creativity" when it comes to our financial policies. The way "we" want to run the financial side of our practices, the way "we" want to attract new patients, and the way "we" want to help those without insurance or limited benefits is often in direct conflict with the rules from our boards, insurance companies, state and federal regulators, as well as CMS and the OIG. There is more than just the conflict of how "we" want to nin things compared to how "they" want us to run things Often there arc confusing and outright conflicting rules and regulations from these various entities. That"s not my opinion. Here arc the key points from Improving Healthcare: A Dose of Competition, published by the Department of Justice and the Federal Trade Commission: "There is: An extensive regulatory framework, developed over decades, at both the federal and state levels of government that affects where and how competition takes place in health care markets. Much of the regulator} framework arose haphazardly, with little consideration of how the pieces fit together. As a significant purchaser in most health care markets, the government uses regulations to influence the price and quality of the sen ices for which it pays. The scope and depth of regulation is also not universal: providers offering competing sen ices arc routinely subject to widely varying regulator} regimes and payment schedules." It is interesting to note that this statement was made in 2004! You can only imagine the additional challenges we face with the complexity of HIPAA. HITECH, and Obamacarc added into the mix. not to mention every time a board or legislature meets. So what is it about our financial policies versus the "rules" that create the biggest problems for us? The three major issues arc: Inducement violations Anti-kickback violations False Claims Act violations These arc familiar terms for many of us. but ironically "we" dont think what "we" arc doing could possibly violate these ominous rules and regulations. After all. we're just trying to help our patients, build our practice, and receive payment from insurance companies. To show how easy it is to trigger one of these violations, lets look at Dr. Marcus Wclby "s Chiropractic Clinic. Yes. I just made Dr. Wclby a chiropractor! You know he always wanted to be one of us. Dr. Welbv versus Inducements, Anti-Kickback, and False Claims Act Violations Dr. Wclby lias a heart of gold. He loves helping patients get off of medications and treating patients naturally. In fact, he goes out of his way to help his patients by "forgiving" a few dcductibles or co-payments here and there for those "special patients." Since he docs this rarely, he isn't concerned about the letters that insurance companies send him that ask how he reflects any type of discount offered on the claim forms he submits. He doesn't think patients will say anything cither since he's trying to help them out. He is such a nice guy that he even gives a special gift to those who refer new patients to him. For those who refer five or more patients, he docs something nice for them, such as a dinner and movie. Since he is getting a few gray hairs himself, he thinks about when he might be on Medicare and how unfair it is that Medicare doesn't cover his chiropractic examination, x-rays, or therapy. So. he "down codes" his exams to a lower level, or perhaps doesn't charge the "normal" fee for his x-rays and therapy. These arc. after all. our senior citizens and he hopes someday someone will give him a break. Then there are his cash patients. We know they have a hard time affording health care and it really isn't fair that they should have to pay his "normal" fees. So he doesn't hesitate to charge more to his personal injury (PI) or workers" compensation patients because he has to wait on the money and haggle with attorneys. In fact, even though his actual costs of collecting from insurance companies is in the 10-15% range, he is such a great guy that he gives his cash patients a "time of sen ice" discount of 30-40%. even if they don't actually pay the same day. "Heck, they don't get paid until the fifteenth, so well wait until then" he says. Dr. Wclby is a nice guy. but these "kind" gestures arc prime examples of how a doctor's good intentions could land him or her in trouble. Let's look at these statutes and then see how they are implicated in the story above. Inducement Violations According to the OIG. under section 1128A(a)(5) of the Social Security Act (the Act), enacted as part of Health Insurance Portability and Accountability Act of 1996 (HIPAA). a person who offers or transfers to a Medicare or Medicaid beneficiary any remuneration tliat the person knows or should know is likely to influence the beneficiary's selection of a particular provider, practitioner, or supplier of Medicare or Medicaid payable items or scnices may be liable for civil money penalties (CMPs) of up to $ 10.000 for each wrongful act. For purposes of section 1128A(a)(5) of the Act. the statute defines "remuneration" to include, without limitation, waivers of copayments and deductible amounts (or any part thereof) and transfers of items or services for free or for other than fair market value. Anti-Kickback Violations The federal Anti-Kickback Statute ("Anti-Kickback Statute") is a criminal statute that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal health care program business. Sec 42 U.S.C. § 132()a-7b. The Anti-Kickback Statute is broadly drafted and establishes penalties for individuals and entities on both sides of the prohibited transaction. Conviction for a single violation under the Anti-Kickback Statute may result in a fine of up to $25,000 and imprisonment for up to five (5) years. See 42 U.S.C. § 1320a-7b(b). In addition, conviction results in mandatory exclusion from participation in federal health care programs. With President Obama's signing of the Patient Protection and Affordable Care Act in 2010. the Anti-Kickback Statute has more teeth than ever before. Now violations of this statute are per sc violations of the False Claims Act. This means even unintentional violations of the statute can be grounds for fraud liability. False Claims Act Violations The False Claims Act makes it unlawful for any person to knowingly present a false or fraudulent claim, record or statement to the government for payment or approval. Sec 31 U.S.C. Jj 3729. The act provides for a civil penalty of between $5,000 and $ 10.000 for each false claim, plus three times the amount of damages the government sustained because of the fraud. Dr. Welby "s first kind gesture of waiving co-payments and/or dcductibles could create inducement violations. This kind of activity isn't uncommon, and in fact, it's commonplace. The OIG"s issue is with "routine" waivers of dcductibles and co-payments. Our problem is determining when it becomes routine, and we should have a written financial policy about when we might waive a deductible or co-payment. It isn't illegal to waive a deductible or co-payment in special circumstances, but to be on the safe side, document "why" and make sure it isn"t a violation of your other provider agreements as well. Your office's financial policy should also include how you handle tnic financial hardships, which can be based on state or federal poverty guidelines. Keep in mind the OIG has determined that it is a violation to not charge "fair market value" or to give away anything of value of more than $ 10.00. or a total of $50.00 in a vcar. The second issue that the good Dr. Wclby has is if he waived a deductible or co-payment, how did he reflect the reduced fees on the claim forms he submitted? Or did he? If he submitted his normal fees and did not report the reduction on the claim form, then he has a False Claims Act violation. Guess what? There is no place on a CMS 1500 form to report a discount, or reduction of charge or co-payment. So you should be sure that if you reduce the charge or patient responsibility, the reduced amount is submitted and passed on to the payer. And. oh by the wav. courts have held if vou dont collect dcductiblcs and co-payments, then the insurance company may be relieved of their responsibility. Kennedy vs. Cigna makes this very clear. Dr. Welby also needs to be more careful in how he says "thank you for referring." While we all appreciate and want to show our appreciation for referrals, we simply must not do anything that could be interpreted as a "kickback" or reward for referring a patient. So a nice tliank you card or a personal phone call is great: tickets to a ballgamc or the theater, or a small flat-screen TV are not so smart. Be aw arc that main states have adopted the same or similar rules and regulations as the Feds have in an attempt to protect the financial integrity of health plans. In fact, states that do adopt rules that help combat federal healthcare fraud are rewarded by sharing in the recovery. The bottom line is if you wouldn't do something in your office because you arc seeing a "federally insured" patient, then you should think twice before you do it for any patient. Finally, charging higher fees for personal injury, workers' compensation, or insurance versus what you charge cash pa- ticnts. or offering "time of sen ice" discounts that arc above your actual cost of billing, is simply asking for trouble. Depending on where you practice, you could be offering a "dual fee schedule" or be in direct violation of state law for charging more to insurance than you do your cash patients. Helping patients is doing the right tiling, but doing it the wrong way can cost you. If you want to document correctly, code correctly, bill correctly, and be able to offer legal discounts to your cash, undcrinsurcd. and even federally insured patients, then you should consider using one of the discount medical plan organizations available to you as a chiropractor. These plans typically allow doctors to have more flexibility in the fees they charge their patients. They help you avoid problems related to dual fee schedules, improper time of sen ice discounts, and can help minimize the risks of "inducement" violations by offering legal, network-based discounts. While discount medical plans don"t solve all our problems, they arc absolutely a great way to help patients without putting you at risk. If you want to "stop the insanity" and practice with more peace of mind, consider joining one of these plans. For many doctors, its the simple solution to a complex problem. Dr. Foxworth is a certified Medical Compliance Specialist and President ofChiroIlealthl.Sl. A practicing Chiropractor, he remains "in the trenches" facing challenges with hilling, coding, documentation and compliance. lie has served as president of the Mississippi Chiropractic Association, former Staff Chiro- praetor at the (i. I. Sonny .1 lontgomery 1.*•1 \ ledical ( enter anil is a Fellow of the International College of Chiropractic, lie founded ConservaCareCorp, the first chiropractic network selected by the State of Mississippi to serve over 195K covered lives in the State Health Plan. You can contact Dr. Foxworth at 1-88S-719-9990, info'achirohealthusa.com or visit the ChiroIIealthU&i website al www.chirohealthusa.com
