By John H. Fisher II
April 7, 2017
Medical practices that routinely use laser technology are subject to some of the same legal issues as other types of practices. Use of lasers creates additional compliance issues and highlights certain compliance risk areas. Our special coverage issue contains articles on some of the legal issues impacting these practices.
• Compliance Program Operation. All medical practices should have an active compliance program effective at identifying risk areas and taking steps to ensure compliant practice. Risk areas specific to the practice should be integrated into a continuously operating compliance program.
• Fraud and Abuse. Fraud penalty calculations under the False Claims Act (FCA) result in exorbitant penalties, even based on otherwise reasonable overpayment amounts. There has been a steady flow of fraud and abuse cases involving practices using lasers, even where there is no actual knowledge of a non-complying practice.
• 60-Day Repayment Rules. Federal law provides an overpayment not repaid within 60 days after discovery becoming a false claim and exposes the practice to the draconian remedies under the FCA summarized above. This requires practices to establish standard policies identifying how overpayments are handled. Mistakes made in this area can be extremely costly.
• Whistleblower Risks. The recent fraud cases are being used aggressively as advertising by attorneys who focus on whistleblower cases. Whistleblower lawyers take their cases on a contingency fee basis and encourage cases be brought under the Draconian damage provisions in the federal FCA.
• Supervision of Physician Extenders. Proper supervision of physician extenders is dictated by state law and reimbursement requirements (for example “incident to” rules under Medicare). Every medical practice using physician extenders should have written policies on supervision which clearly communicate requirements to physicians and staff. Documentation of appropriate supervision is also necessary.
• Tele-dermatology Issues. The use of telehealth technologies is rapidly increasing. Dermatology is one specialty area that benefits from the expansion of telehealth using both real time and “store and forward” technologies. The use of telehealth in the practice of dermatology facilitates expert consultation and long distance examination reaching into remote areas.
• HIPAA Stage 2 Audits. As OCR continues to move forward with its multi-stage audit program, the consequences of OCR finding a deficiency in HIPAA practices are becoming more serious. A systematic review of HIPAA policies and procedures should be conducted to ensure all required elements are covered.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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