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Payor Auditing Activities

Posted by Mallory Camerio on July 20, 2021

By: Kelli Carpenter Fleming

During the height of the COVID-19 pandemic, the Centers for Medicare & Medicaid Services (“CMS”) suspended certain payor audit and oversight activities. However, now that communities are beginning to reopen, so are the audit activities. CMS and other third-party payors are increasing their audit activities, including claims filed during the public health emergency.

Providers who are the subject of a billing audit must take such investigations seriously. Providers should identify one person in the organization to handle audit responses, calendar deadlines, and track findings and appeals. This avoids missing a deadline and helps ensure effective use of personnel resources.

Providers should respond to any records request in connection with an audit in a timely manner, which may be more burdensome these days due to staffing shortages. The failure to timely provide requested records will, in most instances, automatically result in the denial of the claims. Providers should retain a copy of any records and information submitted in response to the document request, and, if sending by mail, obtain confirmation of delivery.

In responding to any records request, it is wise to conduct an “internal self-audit” to determine if there are any areas of risk. This not only helps determine if there is a repayment obligation to the payor, but also helps gather information and arguments for appeal if necessary.

Lastly, depending on the scope of the audit or the type of the audit, providers may want to consider putting both their insurance carrier and their legal counsel on notice of the audit. There are some steps that can be taken upfront, as well as some traps to avoid, in connection with the audit response process, and the insurance carrier and legal counsel may be able to assist in that regard.

Kelli Fleming is a partner at Burr & Forman LLP and works exclusively in the Healthcare Industry Group. Kelli may be reached at 205-458-5429 or kfleming@burr.com.

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Physician Recruitment Agreements – What You Need to Know

Posted by Mallory Camerio on April 12, 2021

by Howard E. Bogard

Both the federal Anti-kickback Statute and the Stark Law allow a hospital to provide certain financial assistance to aid a medical practice in its efforts to recruit and hire a new physician. Financial assistance can take many forms, including a collection guarantee, net income guarantee and/or payments with respect to a physician’s moving expenses, school debt and marketing. A recruitment agreement reflecting financial assistance is typically signed by the medical practice, physician and hospital and is structured as a loan that is forgivable as long as the physician practices medicine in the hospital’s service area for a defined time period. The amount of financial assistance cannot take into account past or future referrals from the recruited physician (or medical practice) to the hospital.

In order for a hospital to provide a medical practice financial assistance to recruit and hire a new physician, the hospital must first determine that there is a documented need in the community for the physician’s specialty. Once confirmed, the arrangement must be in writing and the physician must “relocate his or her medical practice” to the “geographic area served by the hospital” to become a member of the hospital’s medical staff. With some exceptions for hospitals located in rural areas, the geographic area served by a hospital is the area composed of the lowest number of contiguous zip codes from which the hospital draws at least 75 percent of its inpatients. A physician will be considered to have relocated his or her medical practice if the physician moves his or her practice at least 25 miles and into the geographic area served by the hospital or the physician moves his or her practice into the geographic area served by the hospital and the physician derives at least 75 percent of revenues from patients not seen or treated by the physician at his or her prior medical practice site. There are also exceptions for residents or physicians who have been in practice one year or less or for physicians who meet other requirements. The main point is that it is not permissible for a hospital to provide recruitment assistance with respect to a physician who is already working in the hospital’s service area.

A common form of recruitment assistance is a collection or net income guarantee that runs for one or two years after the physician is first employed by the medical practice. In either case, the recruitment agreement “guarantees” that the physician will generate a certain amount of revenue to satisfy a collection “target” or a net income “target”. If the physician’s collections are not high enough in a particular month to meet the target amount, the hospital pays the difference. With respect to a net income guarantee, the target is based on the physician’s collections after certain “direct expenses” are subtracted. By law, direct expenses can only consist of new, incremental expenses incurred by the medical practice by virtue of the physician’s employment. Examples of new, direct expenses include the cost of the physician’s compensation and benefits, license fees and dues, malpractice insurance and other costs incurred by the medical practice to the extent that such expenses increase directly as a result of the physician’s employment. Existing expenses, such as office rent and personnel costs, cannot be included as a direct expense.

When reviewing a physician recruitment agreement, it is important to not only review the financial terms of the assistance but also to consider the following:

Commitment Period – What is the length of time the recruited physician must practice in the hospital’s geographic service area for the recruitment assistance loan to be forgiven? The typical time period is one to three years after the financial assistance period ends.

Repayment Obligations – It is important to review whether the medical practice, physician or both are obligated to repay the loan upon a default of the recruitment agreement. Oftentimes, if the physician is the direct recipient of the loan proceeds, such as moving expense reimbursement and payments for student loans, the physician will be solely responsible. However, a collection or net income guarantee will often obligate both the physician and medical practice to repayment in the event of a default. A promissory note is often signed by the physician and sometimes the medical practice to secure the repayment of the loan.

Physician Obligations – While the physician will need to remain on the medical staff of the hospital during the term of the recruitment agreement, it is important to determine if other obligations are imposed on the physician. Often, during the term of the recruitment agreement the physician will be obligated to certain hospital call obligations and restricted from having an ownership interest in a provider that competes with the hospital.

Security Interest – To secure the recruitment agreement loan sometimes the hospital will want a security interest in the medical practice’s accounts receivable generated by the recruited physician. These provisions must be carefully reviewed since medical practices often pledge their accounts receivable as collateral to a bank or other financial institution.

A physician recruitment agreement can provide a medical practice significant financial assistance with the recruitment and hiring of a new physician. However, the agreement may also impose significant financial restrictions and penalties on both the medical practice and physician if the terms of the agreement are breached. Any recruitment agreement should be carefully reviewed and negotiated.

Howard Bogard is a Partner at Burr & Forman LLP and chairs the firm’s Health Care Practice Group. He can be reached at 205-458-5416 or at hbogard@burr.com.

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Are You Ready for Your PPP Loan Audit?

Posted by Mallory Camerio on February 15, 2021

By: Jim Hoover, Burr & Forman

PPP loans received by individuals and businesses under the CARES Act will be audited (“reviewed”) by the SBA. PPP loans of $2 million or more will automatically be audited by the SBA. Many PPP loans of less than $2 million will also be audited.

Borrowers will often receive notification of the audit through their lending bank, but the SBA is directly notifying PPP borrowers as well. The SBA is receiving support from the Internal Revenue Service and other federal agencies in these audits such as the Department of Justice. There have been several criminal investigations resulting from these audits.

PPP loan audits request documents and information from the borrower, including income and employment tax returns, payroll records, financial statements, and bank account statements including deposit and payment information in order to verify information reported by the borrower on its PPP loan application. However, the SBA PPP loan audits focus on much more.

SBA audits of PPP loans have thus far focused on whether the individual or business was eligible to receive a PPP loan, and whether the borrower correctly calculated its PPP loan amount. Specific issues being reviewed by the SBA in these audits include “economic necessity” for a PPP loan, and “head-count” related issues including affiliation with other businesses, the appropriate “NAICS” code for the business, and whether the business counted all employees – full-time, part-time, and even temporary – in filing the loan application. The SBA is also looking at other “business-specific” issues of the borrower.

The PPP loan application contains a borrower certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant“. This same certification is also required in new PPP loan applications under the “Economic Aid Act”. For borrowers that received PPP loans of less than $2 million, the borrower is deemed by the SBA to have made this “economic necessity” certification in “good faith.” As a result, the SBA may not be looking specifically at this issue for borrowers that received loans of less than $2 million. However, for PPP loans of $2 million or more, borrowers are not eligible for this “good faith economic necessity presumption”, and the SBA is auditing this certification issue.

Without being an alarmist, false certifications is the keystone issue for most False Claims Act prosecutions. Accordingly, it is important for borrowers to carefully review and gather the documentation that supports the certification.

The SBA is beginning many audits by sending out a “Loan Necessity Questionnaire” (SBA Form 3509), which the SBA first sends to the lending bank and then the bank sends the questionnaire to the borrower. The borrower has a limited amount of time, 10 days, to complete and return the questionnaire to the bank, and the bank then provides the completed questionnaire to the SBA.

If a borrower applies for forgiveness of a PPP loan, the forgiveness application may be separately reviewed by the SBA and, as a practical matter, if a borrower files for forgiveness this will likely trigger or at least accelerate a full SBA audit of the PPP loan.

Once an SBA PPP loan audit is completed, and where an adverse audit determination is made by SBA, including that the borrower may not qualify for the loan, the borrower then has administrative appeal rights within the SBA to have the audit determination reviewed, which can lead to a hearing before a federal administrative law judge. Those appeal rights are the subject of a future article.

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Jim Hoover is a partner at Burr & Forman LLP and works exclusively within the firm’s Health Care Practice Group and predominantly handles healthcare litigation. Burr & Forman has a dedicated team to counsel individuals and businesses in government audits, investigations and defense-related to the PPP under the CARES Act, and also new PPP loans under the Economic Aid Act. The PPP and CARES Act Audit, Investigations and Defense Team represents and advises clients in audits and investigations involving PPP loans and tax benefits that may have been claimed under the CARES Act. This multidisciplinary team combines more than 230 years of legal experience and attorneys with previous government positions, including attorneys with IRS Chief Counsel, the United States Department of Justice, and United States Attorneys’ Offices. More information can be found at www.burr.com.

Posted in: Coronavirus, Legal Watch, Management, MVP

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The Perfect Storm for Litigation Resulting From the Paycheck Protection Program (PPP) and Coronavirus Aid, Relief and Economic Security (CARES) Act

Posted by Mallory Camerio on November 10, 2020

By: Jim Hoover

Millions of American businesses and self-employed individuals applied for and received Paycheck Protection Program (PPP) loans authorized by the CARES Act. PPP loans are obtained from a bank and guaranteed by the Small Business Administration (SBA). The processes for obtaining loans and loan forgiveness are ripe for many types of possible litigation including administrative, civil, and criminal.

Businesses and individuals were required to provide documents and information and make important certifications to their bank when they applied for a PPP loan. The certifications included the eligibility of the business or individual for a PPP loan meeting the many requirements of the CARES Act. In a PPP loan application a borrower also had to certify that “[c]urrent economic uncertainty make this loan request necessary to support the ongoing operations of the Applicant.”

The CARES Act also allows PPP loans to potentially be forgiven subject to many conditions. Businesses and individuals seeking PPP loan forgiveness must provide additional documents and yet more certifications through an application filed with their PPP lending bank. It is the responsibility of the borrower to provide an accurate calculation of loan forgiveness and to attest to the accuracy of its reported information.

PPP loans under the CARES Act will be audited. The Department of the Treasury announced that all PPP loans over $2 million will be audited; other PPP loans will also certainly be audited. For example, borrowers that seek forgiveness of a PPP loan increase their likelihood of being audited, and not limited just to forgiveness, but eligibility of the borrower for the loan and the accuracy of certifications made by the borrower in the borrower’s PPP loan application.

The SBA also reserves the right to review and audit all PPP loans and related loan issues, including eligibility, borrower certifications, and forgiveness. The SBA may review whether a borrower calculated its loan amount correctly and whether the borrower used loan proceeds for allowable purposes. The SBA issued guidance stating that a borrower who received a PPP loan of less than $2 million will be deemed to have made this required certification in good faith. For borrowers who received a PPP loan of $2 million or more, the borrower may have to prove that its application was based on current economic uncertainty and that the PPP loan was necessary to support ongoing operations of the borrower. If the SBA determines in the course of its audit/review that a borrower lacked an adequate basis for the required certification concerning the eligibility of the loan request, the SBA will seek repayment of the outstanding PPP loan balance and determine that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification, the SBA has announced that it will not pursue administrative enforcement or make referrals for enforcement to other agencies.

Applicable to forgiveness, the SBA states that, to receive loan forgiveness, a borrower must complete and submit the Loan Forgiveness Application (or equivalent bank form) to the PPP lending bank (or the lender that is servicing the PPP loan). The bank will review the application and make a decision regarding loan forgiveness. Banks are expected to perform a good-faith review, in a reasonable time, of the borrower’s calculations and supporting documents concerning amounts eligible for loan forgiveness. The lender must issue a decision to the SBA regarding a loan forgiveness no later than 60 days after receipt of a completed loan forgiveness application.

That decision may take the form of an approval (in whole or in part), denial, or (if directed by the SBA), a denial without prejudice due to a pending SBA review of the loan for which forgiveness is sought. In the case of a denial without prejudice, the borrower may subsequently request that the bank reconsider its application for loan forgiveness, unless the SBA has determined that the borrower is ineligible for a PPP loan. If the bank determines that the borrower is entitled to forgiveness of some or all of the amount applied for, the SBA will, subject to any SBA audit or review of the loan or loan application, remit the appropriate forgiveness amount to the bank. If the bank denies forgiveness, in whole or in part, the bank must notify the borrower in writing that the lender has issued a decision to the SBA denying the loan forgiveness application. The SBA reserves the right to review the bank’s decision in its sole discretion. Within 30 days of notice from the bank, a borrower may request that the SBA review the bank’s decision.

In the event the SBA reviews or audits a borrower’s PPP loan, the SBA will notify the bank, who is required to notify the borrower in writing within five (5) business days of receipt of notice from the SBA and to request information from the borrower. The SBA may also request information directly from the borrower. A borrower’s failure to respond to the SBA may result in a determination that the borrower was ineligible for a PPP loan or ineligible to receive the loan amount or loan forgiveness.

If the SBA determines in the course of its audit or review that the borrower was ineligible for a PPP loan, the loan will not be eligible for forgiveness. If only a portion of the loan is forgiven, or if the forgiveness request is denied, any remaining balance due on the loan must be repaid by the borrower on or before the two-year maturity of the PPP loan.

The CARES Act created the new “Office of the Special Inspector General for Pandemic Recovery,” whose task is to “conduct, supervise, and coordinate audits and investigations” of the financial assistance programs for businesses. Administrative appeal remedies from disputed PPP audits, including resulting litigation, are presently unclear. While adverse decisions of the Office of Hearings and Appeals are appealable to federal courts, more guidance from the SBA concerning PPP audits and appeal remedies will be issued.

Borrowers must also be aware of the Federal False Claims Act (“FCA”). Under the FCA, a claim generally means any request or demand, whether under a contract or otherwise, for money or property that–(i) is presented to an officer, employee, or agent of the United States; or (ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, or (iii) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded. 31 U.S.C. § 3729. Federal courts have ruled that loan applications are “claims” for FCA purposes. Thus, a PPP loan and any corresponding forgiveness is subject to the “False Claims Act.” In fact, government authorities are beginning to focus substantial resources on CARES Act fraud and abuse. Although the U.S. Department of Justice began indicting borrowers in connection with PPP fraud as early as May of this year, on September 10, 2020, federal authorities charged 57 people in jurisdictions across the U.S. with “stealing” $175 million from the PPP. Additionally, a government report issued in September found “tens of thousands of loans could be subject to fraud, waste, or abuse.” The U.S. Government Accountability Office further reported to the U.S. House of Representatives that the SBA’s fraud hotline had received more than 42,000 reports of alleged fraud.

Because of the many types of litigation, it is important that recipients of PPP loans and other financial assistance programs, carefully review their applications and requests for forgiveness to ensure they have met all of the programs’ requirements.

Jim Hoover practices with Burr & Forman LLP and works exclusively within the firm’s Health Care Industry Group and primarily handles healthcare litigation and compliance matters.

Posted in: Coronavirus, Legal Watch, Management

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Phase 3 Provider Relief Funds Announced by HHS

Posted by Mallory Camerio on October 28, 2020

On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in funding for healthcare providers to assist with losses and changes in operating expenses caused by the current COVID-19 pandemic. This additional funding is a result of the CARES Act and the Paycheck Protection Program and Health Care Enhancement Act. Not only can providers who have already received Provider Relief Fund payments apply for additional funds during Phase 3, but previously ineligible providers may also apply during Phase 3. For example, providers who began practicing between January 1, 2020 and March 31, 2020, as well as additional behavioral health providers (e.g., addiction counseling centers, mental health counselors, and psychiatrists) can apply for payments during Phase 3. Providers who previously received Provider Relief Funds equating to approximately 2% of annual revenue from patient care can apply for an additional payment during Phase 3.

For eligible providers, the payments will be allocated as follows:

All applications will be reviewed to determine if the applicant has previously received a Provider Relief Fund payment equal to 2% of patient care revenue.
If an applicant has not received a previous Provider Relief Fund payment equal to 2% of patient care revenue, the applicant will receive a payment designed to bring the total payments to the applicant (when all payments are combined) to 2% of patient care revenue.
If an applicant has received a previous Provider Relief Fund payment equal to 2% of patient care revenue, the applicant may receive an additional add-on payment, as determined equitable and appropriate by the Health Resources and Services Administration (“HRSA”).
With regard to the additional add-on payment, payments will be made to applicants based on the following considerations: changes in operating revenues from patient care, changes in operating expenses from patient care, and payments already received through the Provider Relief Fund.

The application period for Phase 3 Provider Relief Funds runs through November 6, 2020. All providers receiving a Phase 3 payment will be required to attest to its receipt and accept the applicable terms and conditions.

For more information, visit https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html.

Posted in: Coronavirus, Management

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Five Things to Consider When Selling Your Practice to a Private Equity Firm

Posted by Mallory Camerio on September 4, 2020

By Howard Bogard, Burr Forman

A growing number of physicians are selling their medical practices to private equity firms in order to “monetize” their practice, as well as to access capital and obtain operational efficiencies. In the Southeast, we are seeing consistent private equity activity in the specialties of anesthesiology, gastroenterology, dermatology, ophthalmology, oncology, ENT, and internal medicine, as well as others.

Private equity firms generally use capital from wealthy individuals, pension funds and university endowments to invest in various industries with the goal of obtaining a return on investment of 20% or more. To start, the private equity firm will purchase a large, well-managed (“platform”) medical practice and thereafter will acquire additional practices in order to increase the number of employed physicians throughout a defined geographic area. The goal is to grow revenue and decrease cost and then sell the practices within three to seven years of acquisition.

If you are considering a sale to a private equity firm, there are several things to consider:

Valuation of the Practice. A private equity firm generally determines the purchase price for a medical practice based on a multiple of EBITDA (earnings before interest, taxes, depreciation, and amortization) as a measure of the operating performance of the practice. The multiple can run anywhere from 4 to 12 times EBITDA, with a platform or larger practice obtaining a multiple on the higher end of the range.
Payment of the Purchase Price. The purchase price is typically a combination of cash plus “roll-over” equity in the buyer from 10% to 30% of the total purchase price. For example, if the total purchase price is $10 million, $8 million could be paid in cash at closing and $2 million paid as equity in the buyer. When the buyer sells, the physicians receive a return on their roll-over equity. A portion of the purchase price may also be paid by a promissory note with payment contingent on the physicians meeting certain revenue benchmarks.
Expect a Change in Compensation. After closing, the physicians will become employees of the private equity buyer. In return for a large up-front purchase price, typically a physician will be paid less in annual compensation as compared to pre-closing compensation amounts, although “guaranteed” salaries for a period of time can be negotiated. Compensation is based on a variety of factors, including collections from personally performed services, plus a percentage of ancillary revenue and/or a percentage of overall profits. Physicians considering a private equity sale should analyze and compare their expected compensation over a three to five year period in private practice versus the same period under a private equity model, to include the up-front payment.
Penalties for Early Departure. Typically, a private equity firm will require the selling physicians to sign a five-year employment agreement. In the event a physician leaves employment for certain reasons within a defined time period, the departing physician will be required to repay some of the purchase price he or she received (a “claw-back”). Typically, the claw-back period runs from three to five years after the start of employment, with more money repaid in the first year of the claw-back as compared to the last year. In addition, the selling physicians are required to sign non-compete and non-solicitation/no-hire agreements that restrict the physician’s ability to compete with the private equity buyer in the event the physician leaves the practice.
Loss of Control. One of the benefits of being in private practice is that the physician owners make the decisions. If a practice sells to a private equity firm, a management company (owned by the private equity firm) will manage the practice and will have authority to make essentially all operating decisions, other than clinical/medical decisions, which remain within the control of the physicians. Oftentimes, there is a clinical management board or committee comprised of physicians and private equity representatives that has authority to address certain issues. However, if the practice is well run and profitable (hence the reason the private equity firm is interested in the practice), in my experience, the private equity firm does not make significant changes without first consulting with the physicians.

Howard Bogard is a Partner at Burr & Forman LLP and chairs the firm’s Health Care Practice Group. Howard can be reached at 205-458-5416 or at hbogard@burr.com.

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Identifying The Proper Documentation For End of Life Care

Posted by Mallory Camerio on July 31, 2020

By Angie C. Smith

In the midst of this global pandemic, there have been stories about prioritizing patient care based on the patient’s ability to recover. The stories are heartbreaking and highlight the need for people to have important discussions regarding advance care planning before they get sick and are unable to direct their own care. Further, it is essential that the patient’s choice for end of life care be the driving force for withdrawing or withholding life-sustaining treatment. To ensure that occurs, healthcare practitioners need to be able to identify the documentation necessary to implement patient choice regarding end-of-life care. This article will examine the most common types of documentation that a healthcare practitioner can look for when implementing end-of-life care.

Advance Directive/Living Will

The most obvious documentation for expressing a patient’s wishes for end-of-life care is the Living Will or Advance Directive. Under Alabama Code § 22-8A-4, any competent adult may execute a living will directing the providing, withholding, or withdrawing of life-sustaining treatment. If a healthcare provider determines that a patient has a living will, the provider should confirm that it meets the following requirements:

In writing;
Signed by the person making the advance directive or in the person’s presence and at his direction;
Dated; and
Signed by two or more witnesses who are at least 19 years of age, neither of whom shall be the person who signed the advance directive on behalf of the person making the advance directive, appointed as the health care proxy in the advance directive, related to the declarant by blood, adoption, or marriage, entitled to any portion of the estate of the declarant, or directly financially responsible for declarant’s medical care.

Once a healthcare provider or facility confirms the living will meets the above requirements, it will then need to determine whether the advance directive is in effect. For the living will to take effect, the patient’s attending physician must make a determination that the patient is no longer able to understand, appreciate, and direct his or her medical treatment, and two physicians – one the attending physician and another physician – personally examine the patient and diagnose and document in the medical record that the individual has a terminal illness or injury or is in a state of permanent unconsciousness.

After determining the advance directive applies, next establish the patient’s wishes. Sounds easy enough but sometimes the forms can be incorrectly checked or the statement by the patient may be vague. If the patient used the form contained in Alabama’s statute, there are Yes or No questions that guide the provider. The form covers terminal illness and permanent unconsciousness and whether the patient wants life-sustaining treatment, defined as “drugs, machines, or medical procedures that would keep [the patient] alive but would not cure [the patient], or artificial food and hydration.”

Another important provision on Alabama’s form Advance Directive is the designation of a healthcare proxy. A health care proxy is a competent adult designated to make decisions regarding providing, withholding, or withdrawing life-sustaining treatment and artificial hydration and nutrition. If a health care proxy is designated, the advance directive form also provides instructions for the health care proxy. There are three options: (1) the health care proxy must follow the instructions on the form; (2) the health care proxy should follow instructions on the form and make any decisions not covered by the form; and (3) allows the health care proxy to make the final decision even if contradictory to what the patient requests.

Durable Power of Attorney

A durable power of attorney or health care durable power of attorney may also provide guidance to a healthcare provider in evaluating a patient’s end of life care. If a patient has a durable power of attorney that designates a health care proxy, a healthcare provider should ensure that the language in the power of attorney specifically allows the attorney-in-fact/agent to make health care decisions providing, withholding and withdrawing life-sustaining treatment. To say that the agent can make health care decisions alone is not sufficient to allow the agent to make decisions related to withdrawing life support or providing artificial hydration nutrition, as examples. Additionally, the durable power of attorney should be executed in the same way that an advance directive is executed. In other words, it must have two witness signatures who are not related by blood or marriage, not entitled to take under the patient’s estate and are not financially responsible for the patient’s healthcare.

Surrogate
If a patient does not have an advance directive or the advance directive does not apply to the circumstances or the patient does not have a healthcare proxy as described above, another option for making end of life decisions for a patient who is unable to make those decisions is a health care surrogate. Under Alabama law, an individual can act as a health care surrogate in consultation with the patient’s attending physician. If a family member wishes to make end-of-life decisions regarding withholding and withdrawing life-sustaining treatment, she must complete a certification and may determine whether to provide, withdraw or withhold life-sustaining treatment or artificially provided nutrition and hydration. The law dictates a hierarchy for choosing the appropriate person to serve as a surrogate as follows:

a guardian where the order of guardianship authorizes the guardian to make decisions regarding withholding of life-sustaining treatment;
the patient’s spouse, unless legally separated or party to a divorce proceeding;
adult child;
one of the patient’s parents;
adult sibling;
any one of the patient’s surviving adult relatives who are of the next closest degree of kinship; or
if the patient has no known relatives and none can be found after reasonable inquiry, an ethics committee acting unanimously may make those decisions. Where an ethics committee is convened to make decisions regarding life-sustaining treatment, the health care provider is required to notify the Alabama Department of Human Resources.

The surrogate must certify under oath that she has contacted the persons in a class equal to or higher than the surrogate and that person has either consented or expressed no objection to the surrogate acting as a surrogate or to the decision. The certification should be included as part of the medical record. The form can be found here.

Portable Do Not Resuscitate Order
Although commonly used by health care providers in the state for years, it was not until 2016 that there was a reference in Alabama’s laws to “Do Not Resuscitate” orders, which allow health care providers to withhold cardiopulmonary resuscitation to a patient who is experiencing cardiac arrest. Since 2016, Alabama not only defines a DNR order but also allows for a Portable DNR to follow a patient from facility to facility. Upon admitting a patient to a facility, a health care provider should ask the patient or the patient’s family if a Portable DNR exists. There is a specific form that must be used and requires proper execution to be implemented. The form can be found here.

A properly executed Portable DNR requires the signature of one of the following: the patient; a representative of the health care provider based on instructions in an advance directive; a health care proxy or an agent under a health care POA, or a surrogate (discussed above). A physician must also sign the form, and it should be maintained in the patient’s medical record along with any supporting documentation, e.g. the advance directive or power of attorney. Once properly executed, it can be used by any health care provider.

Although this list may not be exhaustive, and certainly a verbal request related to end of life care should be honored, these are some of the most common forms of documentation that can assist healthcare providers in implementing the wishes of their patients.

Angie Cameron Smith is a partner at Burr & Forman, LLP practicing exclusively in the firm’s Health Care Industry Group.

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Provider Relief Fund Update

Posted by Christina Flack on June 19, 2020

Last week, HHS launched an application portal to distribute $15 billion in CARES Act Provider Relief Fund payments to eligible Medicaid and CHIP physicians and organizations. The payment will be at least 2 percent of reported gross revenue from patient care, and the final amount will be determined based on submitted data, including the number of Medicaid patients served. Eligible physicians and organizations have until July 20, 2020, to submit their application and report other necessary information, such as annual patient revenue data.

HHS is hosting two webcasts at 2 pm EST on Tuesday, June 23 and Thursday, June 25 for physicians and other health care professionals who are interested in learning more about the application process. Registration is required.

Please find answers to two relevant questions posted in the FAQs on June 12, 2020.

Q: Why is there a new Provider Relief Fund Payment Portal?

A: Portal will initially be used for new submissions from Medicaid and Children’s Health Insurance Program (CHIP) providers seeking payments under the Provider Relief Fund starting Wednesday, June 10, 2020. At this time, this portal will serve as the point of entry for providers who have received Medicaid and CHIP payments in 2017, 2018, 2019 or 2020 and who have not already received any payments from the $50 billion Provider Relief Fund General Distribution.

Q: What is the difference between the first Provider Relief Fund Payment Portal and the Enhanced Provider Relief Fund Payment Portal for the Medicaid Targeted Distribution?

A: The first Provider Relief Fund Payment Portal was used for providers who received a General Distribution payment prior to Friday, April 24th. These providers were required to submit financial information in order to receive approximately 2% of gross revenues derived from patient care.
HHS has developed the new Enhanced Provider Relief Fund Payment Portal for providers who did not receive payments under the previous General Distribution, including those providers who bill Medicaid and CHIP (e.g., pediatricians, long-term care, and behavioral health providers.)

Posted in: Coronavirus, Management

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Chronic Care Management in the Coronavirus Pandemic

Posted by Mallory Camerio on April 7, 2020

Article contributed by: Tammie Lunceford, CMPE CPC with Warren Averett

Chronic Care Management Expands Care

Several years ago, the Center for Medicare and Medicaid Services released Chronic Care Management to assist in improving patient outcomes, extend care, and improve quality in chronic illness. The initial chronic care code, 99490 allowed for 20 minutes of non-face to face phone communication with clinical staff per month which reimbursed forty-two dollars per month. The patient had to agree to be enrolled in the program and agree to an $8 co-pay. Only one physician can enroll a patient and the patient must have at least two complex chronic conditions lasting more than twelve months. Most physicians did not adopt chronic care management due to the low reimbursement, the physician had to treat all chronic conditions which excluded most specialists from participating.

Some large practices outsource chronic care management and share the reimbursement. Whether the practice uses internal staff or outsourced staff, CCM services provide additional care and coordination to the most chronically ill. The patients receiving this service feel more connected to their provider and a change in their status is identified quickly. If the practice also has telemedicine, a non-face to face service can quickly become a face to face visit to address concerns. Due to the recent COVID-19 pandemic, these interactions could provide the care needed to protect the chronically ill from being exposed to the deadly virus.

The 2020 Final Medicare Physician Fee Schedule added some provisions to Chronic Care Management services. The addition of Principle Chronic Management allows a patient with a single high-risk chronic condition lasting more than 12 months to qualify for the program. PCM should increase the use of chronic care management with specialists, such as cardiologist and pulmonologists. Also approved for 2020, is G2058 which is an add-on code to allow an additional 20 minutes of time spent in continuous communication with the patient. The add-on code reimburses $37.89 and can be billed concurrently to 99490, two times monthly, per beneficiary. The total possible reimbursement for 60 minutes of non-complex CCM is $118.01.

The new opportunities to provide chronic care management and principle care management will allow specialists managing hundreds of patients with chronic conditions, such as, COPD or diabetes to improve the overall health of the patient, improve patient engagement, improve quality and receive reimbursement worthy of the effort.

Practices are currently working to provide many modes of communication to serve patients without seeing them in the office. Patient portals have failed in the past because many portals were not user friendly or practices failed to make them valuable by offering valid information through the portal. In times of crisis, such as COVID-19, it is quite possible for the phone lines to be full but utilizing the patient portal and offering CCM and PCM allows a practice to fulfill many patient’s needs without a physician or mid-level providing the interaction.

We are in crisis as COVID-19 cases increase across the nation, but we have seen monumental change through the emergency expansion of telemedicine. As administrators and physician leaders review the options to expand communication through technology and ongoing medical management, we will be better prepared for crisis situations in the future.

Posted in: Coronavirus, Management, Members

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The Privacy Vulnerabilities of Zoom Software and Potential Alternatives

Posted by Christina Flack on April 2, 2020

Over the past month, as more nationwide “Shelter at Home” orders have been issued and more companies have transitioned to telework, the need for online meetings and webinars has skyrocketed. To accommodate this new way of doing business, many have turned to a platform called Zoom. The problem? No one bothered to read the fine print.

For those in the healthcare field, privacy is paramount. Yet, by using Zoom, users are seceding any and all content displayed or vocalized to the company. In Zoom’s own privacy statement, some of the “Customer Content” it collects includes “information you or others upload, provide, or create while using Zoom.”[i] Additionally, Zoom also collects personal information like your name, physical address, email address, phone number, job title, employer.[ii] And, even if you don’t make an account with Zoom, it will collect and keep data on what type of device you are using, and your IP address.[iii]

Now, while Zoom has recently updated its privacy policy and is taking steps to make the platform more secure, there are issues beyond the data mining mentioned above. On Monday, for instance, the Boston office of the Federal Bureau of Investigation issued a warning[iv] saying that it had received multiple reports from Massachusetts schools about trolls hijacking Zoom meetings with displays of pornography, white supremacist imagery and threatening language — malicious attacks known as “zoombombing.”[v]

So, what’s the solution? Below are a few good alternative platforms to use instead Zoom: