As far back as 2004, a bulletin for providers published by the Department of Justice and the Federal Trade Commission stated that “…much of the regulatory framework arose haphazardly, with little consideration of how the pieces fit together.” The misalignment of state and federal regulations is not the fault of any particular agency, however, it is still your job and responsibility to know these rules and regulations and to have a plan in place to make sure that you are running a compliant practice. Healthcare providers across the country feel frustrated by conflicting information they receive when it comes to billing, coding, documentation, and compliance rules and regulations from experts at seminars and conventions. Unfortunately, a lot of the confusion and misinformation is a result of this misalignment between the state and federal agencies who made the rules.
I was speaking with a doctor recently who was venting her frustration about not knowing who to believe or trust as an authority when it comes to being in practice today. She goes to different seminars because she wants to improve herself personally and professionally. Her problem? The conflicting information she receives from various “experts” at each seminar. How, she asked, can they all be right if they all say different things? I could appreciate her position because I am a bit of a skeptic myself. In fact, that’s how all this started for me. I was a chiropractor in practice, just like you, trying to maximize my insurance payments so I wasn’t leaving money on the table while still working to come up with a way my uninsured patients could afford those fees.
TRUST me when I tell you there are risks involved with dual fee schedules, improper time-of-service discounts, and offering inducements to federally insured patients (Medicare, Medicaid, Federal BCBS, etc.) But, VERIFY what I say is true. Utilizing the expertise of our legal counsel and two independent attorneys affiliated with the National Association of Chiropractic Attorneys, we have performed extensive research on discounts, dual fee schedules, and state and federal regulations.
Dual Fee Schedules
It is not appropriate to have a separate fee schedule for Insurance versus private-pay patients. Having a separate, and presumably lower fee schedule, for private-pay patients, yet representing to insurance companies that you are billing them your standard “usual and customary” fees, has clear implications of insurance fraud. This is an area of growing concern. In July 2016, two major auto insurance payers filed suit in Federal Court against a chiropractor alleging fraud. What sets this apart from other cases is the payers appear to be alleging that the doctor was charging lower fees to cash-paying patients, advertising for free consultations and free massages, just to name a few. National Association of Chiropractic Attorney’s member Larry Laurent has said, “You cannot charge one fee for insurance cases (e.g. PI) and a lower fee to cash patients – despite the obvious fact that your cash patients require lower overhead (no ‘cash discounts’)!”
The “inducement” element (Section 1128A(a)(5)) of the offense is met by any offer of valuable (i.e., not inexpensive) goods and services as part of a marketing or promotional activity, regardless of whether the marketing or promotional activity is active or passive. For example, even if a provider does not directly advertise or promote the availability of a benefit to beneficiaries, there may be indirect marketing or promotional efforts or informal channels of information dissemination, such as “word of mouth” promotion, by practitioners or patient support groups. In addition, the OIG considers the provision of free goods or services to existing customers who have an ongoing relationship with a provider, likely to influence those customers’ future purchases. The OIG has interpreted the prohibition and permits Medicare or Medicaid providers to offer beneficiaries inexpensive gifts (other than cash or cash equivalents) or services without violating the statute. For enforcement purposes, inexpensive gifts or services are those that have a retail value of no more than $15 individually, and no more than $75 in total during the year per patient.
The law (42 USC § 1320a-7b(b)) prohibits offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate Federal health care business. Price discounts can also lead to Anti-Kickback issues. This includes a waiver of co-pays, price discounts, pre-payment discounts, and bulk discounts. Paying for, or offering, a service or prize for the referral of other patients could also fall under this law. There are criminal and civil penalties associated with violations of this law. If found guilty, criminal penalties can include fines of up to $25,000 per violation and up to 5 years in prison per violation. Civil and administrative penalties can include exclusion from all federal health care programs, potential civil money penalties of up to $50,000 per violation and a civil assessment of up to three times the amount of kickback.
I became a Certified Medical Compliance Specialist (MCS-P) so that skeptics like me could get a breath and feel at ease. As an MCS-P, I’m quite simply held to a higher standard. I must be able to quote chapter and verse about why any possible fee or activity is, or isn’t, compliant. We know there is a wealth of inaccurate information disseminated in our profession. I’m sad to say that I have to agree with my frustrated colleagues when they vent about all the conflicting advice they receive. That’s why ChiroHealthUSA has relationships with many MCS-Ps; to help get accurate, reliable information out there.
Being a part of ChiroHealthUSA is not the one-stop solution to being compliant in practice, but simply a piece to the larger puzzle. It is important that every person working in your practice understands the rules and regulations and understand why you chose to participate in ChiroHealthUSA. We have providers who believe that their practices are utilizing ChiroHealthUSA only to find out months, and even years, later that their staff is not utilizing it correctly or even offering it at all. One ChiroHealthUSA-participating practice discovered hundreds of federally insured patients were being offered discounts outside of ChiroHealthUSA on non-covered services after conducting an internal audit. What kind of disaster might that have been in the event of a Medicare audit? Now they have checks and balances in place each day to confirm that the correct charges are billed for each patient and that ChiroHealthUSA is in place for all patients who are receiving discounts. 90 days later, they have fewer patients dropping out of care, they are converting more new patients from shopper calls and seeing more families, all while being more compliant.
I started ChiroHealthUSA because I needed to solve a problem in my practice, similar to the problems that had many of you to become part of the network. I was a chiropractor in practice trying to maximize my insurance payments so I wasn’t leaving money on the table while still working to come up with a way my uninsured patients could afford those fees. My intention was to never expand outside of my home state. Looking back, I can see how shortsighted I was. I now know that taking ChiroHealthUSA to a national audience, to protect all chiropractic practices in the country, was the vision I should’ve had at the start. I’m glad I had an encounter with one of my fellow MCS-P’s who helped me realize this bigger vision.