Archive for October, 2011


Change to Criminal Scoresheets in Florida

Wednesday, October 19th, 2011

The Florida Supreme Court has recently approved a change to the Florida criminal scoresheet.  (See SC11-1381.)  Effecticve September 28, 2011, the Supreme Court has INCREASED the total sentence points from 52 to 60 or less, for which a court may place a defendant into a treatment-based drug court program.

Here is the language that should be added on scoresheets:

“If total sentence points are 60 or less and court makes findings pursuant to both Florida Statutes 948.20 and 397.334(3), the court may place the defendant into a treatment-based drug court program.”

**FYI to defense attorneys:  you should see this language at the bottom of the box where the sentence computation is made.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

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Hospice Care and the 2012 OIG Work Plan

Tuesday, October 18th, 2011

Those working in hospice settings will want to take notice of the 2012 OIG Work Plan.  Here are 5 ways the Work Plan affects hospice care:

1.  Acute-Care Hospital Inpatient Transfers to Inpatient Hospice Care

The government will review Medicare claims for inpatient stays for which the beneficiary was transferred to hospice care and examine the relationship, either financial or common ownership, between the acute-care hospital and the hospice provider and how Medicare treats reimbursement for similar transfers from the acute-care setting to other settings.

2.  Hospice Marketing Practices and Financial Relationships with Nursing Facilities

The government will review hospices’ marketing materials and practices and their financial relationships with nursing facilities. Medicare covers hospice services for eligible beneficiaries under Medicare Part A. (Social Security Act, § 1812(a).) In a recent report, OIG found that 82 percent of hospice claims for beneficiaries in nursing facilities did not meet Medicare coverage requirements. MedPAC, an independent congressional agency that advises Congress on issues affecting Medicare, has noted that hospices and nursing facilities may be involved in inappropriate enrollment and compensation. MedPAC has also highlighted instances in which hospices aggressively marketed their services to nursing facility residents. They will focus their review on hospices that have a high percentage of their beneficiaries in nursing facilities.

3.  Medicare Hospice General Inpatient Care

The government will review the use of hospice general inpatient care from 2005 to 2010. They will assess the appropriateness of hospices’ general inpatient care claims and hospice beneficiaries’ drug claims billed under Part D. Federal regulations address Medicare CoPs for hospice at 42 CFR Part 418. They will review hospice medical records to address concerns that this level of hospice care is being misused and to determine the extent to which drugs are being inappropriately billed to Part D.

4.  Duplicate Drug Claims for Hospice Beneficiaries (Medicare Part D)

The government will review the appropriateness of drug claims for individuals who are receiving hospice benefits under Medicare Part A and drug coverage under Medicare Part D. They will determine whether payments under Part D are correct, supported, and not duplicated in hospice per diem amounts. They will also determine the extent of any duplication found and identify controls to prevent duplicate drug payments. Medicare Part D drug plans should not pay for drugs that are covered under the Part A hospice benefit. CMS publishes hospice payment rates, which include prescription drugs used for pain relief and symptom control related to the beneficiary’s terminal illness. (Medicare Claims Processing Manual, Pub. No. 100-04, ch. 11, § 30.2.) Hospice providers are paid per diem amounts, which include payments for these drugs. A drug prescribed for a Part D beneficiary shall not be considered for payment if the drug was prescribed and dispensed or administered under Part A or Part B.

5.  Hospice Services: Compliance With Reimbursement Requirements

The government will determine whether Medicaid payments for hospice services complied with Federal reimbursement requirements. Medicaid may cover hospice services for individuals with terminal illnesses. (Social Security Act, § 1905(o)(1)(A).) Hospice care provides relief of pain and other symptoms and supportive services to terminally ill persons and assistance to their families in adjusting to the patients’ illness and death. An individual, having been certified as terminally ill, must elect hospice coverage and waive all rights to certain otherwise covered Medicaid services. (CMS’s State Medicaid Manual, Pub. 45, § 4305.) In FY 2010, Medicaid payments for hospice services totaled more than $816 million.


(Disclaimer–This post is not intended as legal advice nor does it create an attorney-client relationship.)



HIPAA Loophole–Are law firms “covered entities”?

Monday, October 17th, 2011

Recently, a Baltimore medical malpractice law firm lost a portable drive that contained medical records for 161 stent patients, patient names, addresses, dates of birth, social security numbers and insurance information.  It appears as though the law firm represented a cardiologist being sued for alleged malpractice.

According to a Baltimore Sun article, the portable hard drive was “taken home nightly as a security precaution in case of fire or flood…though the portable information was not encrypted–among the most stringent security precautions that is standard practice for health professionals dealing with medical records.”

The law firm employee lost the hard drive while traveling on the Baltimore light rail.  She returned for it within 10 minutes but it was already gone.

HIPAA & Covered Entities

The protection of patient information is regulated by HIPAA, which applies to “covered entities”.  Under HIPAA, a “covered entity” is defined as being:

  • a health care provider that conducts certain transactions in electronic form (called here a “covered health care provider”)
  • a health care clearinghouse
  • a health plan

Here’s the legal question: Should law firms be included in the definition of covered entities?


(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)


~At Matthews Law Firm, P.A., we practice health law~

Cost for Mental Health & Substance Abuse Hospital Stays

Thursday, October 13th, 2011

Included in the September 2011 edition of HealthLeaders magazine is some information on hospital costs for mental health and substance abuse (MHSA)  issues.  Here are some interesting statistics:

“Over the past decade, the average length of stay for MHSA diagnosis has dropped about 10%, but the number of discharges with a principal MHSA diagnosis has increased about 14%.”

Average Cost of a Hospital Stay

Schizophrenia/other psychotic disorders……………………….$7,500

Attention-deficit/conduct/disruptive behavior disorders…$7,200

Bipolar Disorders…………………………………………………………….$5,600

Alcohol-related disorders………………………………………………..$5,000

Drug-related disorders……………………………………………………$4,900


Anxiety disorders……………………………………………………………$4,500

Pregnancy-related MH disorders…………………………………….$3,500

Adjustment disorders…………………………………………………….$2,800

(Source: U.S. Dept. of Health & Human Services, Agency for Healthcare Research and Quality, HCUP Facts and Figures, 2008, exhibit 5.10.  Costs reflect all costs associated with stay, not solely those associated with the principal diagnosis.)


~At Matthews Law Firm, P.A., we practice health law~

Nursing Home Compliance Plans

Friday, October 7th, 2011

Nursing homes should now have increased motivation to draft and implement a compliance plan. The reason?  Nursing home compliance plans are now listed in the 2012 OIG Work Plan, and will be a target for enforcement.  Specifically, the provision states in full:

Nursing Home Compliance Plans (New)

We will review Medicare and Medicaid-certified nursing homes’ implemention of compliance plans as part of their day-to-day operations and whether the plans contain elements identified in OIG’s compliance program guidance. We will assess whether CMS has incorporated compliance requirements into Requirements of Participation and oversees provider implementation of plans. Section 6102 of the Affordable Care Act requires nursing homes to operate a compliance and ethics program, containing at least 8 components, to prevent and detect criminal, civil, and administrative violations and promote quality of care. The Affordable Care Act requires CMS to issue regulations by 2012 and SNFs to have plans that meet such requirements on or after 2013. OIG’s compliance program guidance is at 65 Fed. Reg. 14289 and 73 Fed. Reg. 56832. (OEI; 00-00-00000; expected issue date: FY 2013; new start; Affordable Care Act)

As you read, according to the Work Plan, a nursing home (and skilled nursing facility) compliance plan should have at least 8 components.  And just what ARE the 8 components?  For that answer, we look to Section 6102 of the Affordable Care Act.  That law states the 8 components are:

REQUIRED COMPONENTS OF PROGRAM —The required components of a compliance and ethics program of an operating organization are the following:

(A) The organization must have established compliance standards and procedures to be followed by its employees and other agents that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under this Act.

(B) Specific individuals within high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures and have sufficient resources and authority to assure such compliance.

(C) The organization must have used due care not to delegate substantial discretionary authority to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in criminal, civil, and administrative violations under this Act.

(D) The organization must have taken steps to communicate effectively its standards and procedures to all participation in training programs or by disseminating publications that explain in a practical manner what is required.

(E) The organization must have taken reasonable steps to achieve compliance with its standards, such as by utilizing monitoring and auditing systems reasonably designed to detect criminal, civil, and administrative violations under this Act by its employees and other agents and by having in place and publicizing a reporting system whereby employees and other agents could report violations by others within the organization without fear of retribution.

(F) The standards must have been consistently enforced through appropriate disciplinary mechanisms, including, as appropriate, discipline of individuals responsible for the failure to detect an offense.

(G) After an offense has been detected, the organization must have taken all reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect criminal, civil, and administrative violations under this Act.

(H) The organization must periodically undertake reassessment of its compliance program to identify changes necessary to reflect changes within the organization and its facilities.

And remember, having a compliance plan is not merely having written policies.  Anyone could copy and paste the 8 components into a document and call it their “compliance plan”.  A compliance plan is a living, breathing document that should be implemented and followed everyday.  It is a “way of life” for an organization, from top administration, to full-time staff members, to part-time employees, and even to third-party business associates.  A compliance plan includes not only talking the talk, but walking the walk.  In order to be compliant, an organization needs to do both by talking it AND walking it.

~At Matthews Law Firm, P.A., we help clients draft & implement compliance plans that suit their needs~

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

2012 OIG Work Plan

Thursday, October 6th, 2011

The 2012 OIG Work Plan has been released!  Click here to access the full document. (Beware, the Work Plan is 165 pages long…may take a second to download.)

For those that are unfamiliar with this document, the OIG Work Plan comes out every October and explains what types of activity the government will be monitoring and reviewing for the next year.  Basically, it works as a “cheat sheet” to those involved in healthcare as to what to expect with government enforcement and audits.  From an attorneys perspective, the Work Plan helps in advising clients as to what areas to pay particular attention to in regards to compliance for the next year.

Happy reading everyone!

~At Matthews Law Firm, P.A., we practice health law.~

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Florida Drug Offenses in a State of Uncertainty

Tuesday, October 4th, 2011

The Florida Supreme Court is one step closer to deciding on the constitutionality of Florida’s primary drug statute, 893.13.

Florida’s 2nd DCA has just certified the case up to the Florida Supreme Court in an opinion released on September 28, 2011.  (State v. Adkins, 2D11-4559)

In July of this year, a federal court in Florida held the statute to be unconstitutional. (Shelton v. Secretary, Dept. of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011)). The uncertainty lies in state courts, where it is unknown if the statute will also be declared unconstitutional there as well.  If it is, it is possible that thousands of inmates will be eligible for immediate release.

The 2nd DCA realized the importance of getting this case to the Supreme Court quickly, stating:

“Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida.  Moreover, cases pending on appeal and on motions for postconviction relief will be subject to similar uncertainty.  It will be difficult to reach a final resolution in many of these cases until the issue is resolved.”

The issue was certified because it is one of great public importance and will have a great effect of the proper administration of justice throughout the state.

Until the Florida Supreme Court decides this case, it is likely that many drug cases proceeding through the court system will come to a standstill.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we practice criminal defense and health law.~