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What Have You Done for Me Lately?

What Have You Done for Me Lately?

“What have the Medical Association and ALAPAC done for me lately?”

It’s a question posed to me often, in various forms, by physicians whom I’m asking to join the Medical Association and contribute to ALAPAC. It’s a tough one to reply to – not for a shortage of answers – but for the difficulty, even for a seasoned communicator like myself, to encapsulate succinctly.

I like analogies, so here’s one to start: a legislative session is like a surgical procedure; hundreds of things can go wrong, and getting through one without incident is deemed a success. To reiterate: when nothing bad happens in a legislative session that is a victory. Preposterous? Allow me to elaborate.

It’s been attributed to everyone from Thomas Jefferson to Mark Twain, but the old adage “no one’s life, liberty or property are safe while the legislature is in session” certainly rings true. The Alabama Legislature may only be in session three days each week for three-and-a-half months (plus special sessions) a year, but just like with a surgical procedure, countless things can go wrong during that time.

Representing physicians at the legislature, the Medical Association is severely outnumbered. There are nearly 600 registered lobbyists in Alabama, many with clients – drug companies, health insurers, personal injury lawyers – interested in health care but whose corporate profits strategy or legislative goals are at odds with those of patients and physicians. I’ve heard physicians say they don’t like politics, that it’s dirty business. This is understandable but frankly, irrelevant. Feelings have no place here. Like it or not, politicians are in your business.

On average, a typical legislative session will see a combined 1,000 House and Senate bills introduced, with roughly 15 percent touching health care in some fashion. Over a four-year legislative cycle, that’s 600 “procedures” to get through with as few complications as possible. Some of these are initiatives the Medical Association supports, others will need tweaking through amendments or substitutes, still others will have no redeeming elements whatsoever and are outright opposed.

If that sounds simple in principle, it is not so in practice. To illustrate the complexity and unpredictability of an average legislative day, picture an emergency physician. At the State House, there is little warning of what daily catastrophes will present themselves or what will have to be triaged depending on severity. Committee testimony, one-on-one meetings with legislators, bill negotiations with opposing parties, these are all part of a typical legislative day. Getting through the day without any bad happenings is a success, even more so all 30 days of the session.

While it is the Medical Association’s role to lobby the legislature on issues important to physicians, it is the role of the Alabama Medical PAC (ALAPAC) to help elect candidates to office with whom physicians and the Medical Association can work on important health-related issues. Over just the past few legislative sessions alone, the Medical Association, with the help of ALAPAC-supported legislators, successfully saw passage of several important bills.

These include “virtual credit card” legislation to help medical practices from unknowingly getting hit with hidden processing fees in electronic payments from health insurers and RCOs; the chemical endangerment “fix” legislation protecting pregnant women and their doctors from prosecution for the issuance of legitimate prescriptions (after the courts issued a new interpretation of Alabama’s chemical endangerment of children law); and, direct primary care legislation, which ensures state government stays out of private contracts between physicians and their patients. The list also includes legislation related to increasing naloxone availability, establishing guidelines for interstate medical licensure, and preventing Medicaid cuts, to name but a few.

On the opposite end of the spectrum, other proposed legislation is so bad there is no “fixing” it, bills like the Patient Compensation System legislation from 2016. The PCS legislation would levy an $80 million tax increase on physicians to fund a new government-administered malpractice claims payout system that would deprive physicians and legitimately-injured patients of their legal rights, undo decades of medical liability reforms and make Alabama doctors appear – on the national claims database – to be practicing sub-standard medicine. This legislation was, with the assistance of ALAPAC-supported legislators, defeated.

In the same vein as the PCS bill, pharmaceutical legislation was introduced in 2017 that would (1) lower biologic pharmaceutical standards in Alabama law below those set by the FDA, (2) withhold critical health information from patients and their doctors and, (3) significantly increase administrative burdens on physicians. This legislation met the same fate as the PCS legislation, but both bills are expected to return in a future session. (Click here for a complete recap of the 2017 legislative session.)

Clearly, the Medical Association and ALAPAC have been hard at work for physicians and patients, from the primary care doctor to the sub-specialist. There is a natural tendency for physicians to associate and support their respective specialties, which they unequivocally should. At the same time however, the collective strength of a unified state medical society representing all physicians of all specialties and the patients they care for is much greater than any individual specialty on its own.

This article began with a question and so it is fitting to end with one: What have you done lately to help the Medical Association and ALAPAC succeed for you?

Posted in: Advocacy

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Fewer Physicians Could Be Audited under a New CMS Program

Fewer Physicians Could Be Audited under a New CMS Program

Fewer physicians will undergo audits under a new Medicare claims review process, according to a Centers for Medicare & Medicaid Services announcement.

CMS will roll out a new approach to claims review nationwide targeting fewer providers and requiring review of fewer claims. The new policy, to take effect later this year, makes it less likely doctors who have sound billing practices will face a Medicare audit.

Under the Targeted Probe and Educate (TPE) program, Medicare Administrative Contractors will focus “only on providers/suppliers who have the highest claim error rates or billing practices that vary significantly out from their peers,” according to the CMS announcement. Providers/suppliers with continued high error rates after three rounds of TPE may be referred to CMS for additional action, which may include 100 percent prepay review, extrapolation, referral to a Recovery Auditor, or other action. Providers/supplier may be removed from the review process after any of the three rounds of probe review, if they demonstrate low error rates or sufficient improvement in error rates, as determined by CMS.

Read the full CMS announcement here

Posted in: CMS

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Have You Properly Obtained Informed Consent?

Have You Properly Obtained Informed Consent?

In June, the Pennsylvania Supreme Court issued a controversial opinion holding that a physician had to have face-to-face interaction with the patient to effectively obtain informed consent. This has raised heightened awareness of a physician’s obligations to obtain informed consent from their patients and caused many to evaluate their own practice of obtaining informed consent.

In Shinol v. Toms, a patient brought a medical malpractice case against a neurosurgeon alleging he failed to obtain informed consent. (2017 WL 2655387). The record and testimony at trial established that the physician met with the patient on two occasions prior to surgery to discuss potential complications. The physician testified that he explained the different approaches and options for surgery. The patient also had a telephone conversation with a certified physician assistant (“PA”) who worked for the physician, and just before surgery, the patient met with the PA who obtained her medical history, conducted a physical examination and obtained an executed informed consent form. The form gave the physician permission to perform “‘a resection of recurrent craniopharyngioma.” The patient’s signature acknowledged that she had discussed the advantages and disadvantages of alternative treatments, that the form had been fully explained to her, that she had an opportunity to ask questions, and that she had sufficient information to give her informed consent.

Despite her signature on the consent form, the patient alleged in the lawsuit that she was not fully informed of her options (total versus subtotal resection of a non-malignant brain tumor). According to the patient, if she had been given the option of a subtotal resection, she would have chosen the less aggressive form of surgery.

After the physician received a jury verdict in his favor, the state supreme court declared a mistrial based on an improper jury instruction related to informed consent. The jury had been instructed that it could consider any relevant information it found was communicated to the patient by “any qualified person acting as an assistant to the physician.” In granting a new trial, the Pennsylvania Supreme Court held that the surgeon himself had to have face-to-face conversations with the patient about the risks of surgery in order for him to have properly obtained informed consent from his patient. In other words, evidence of the discussions with the PA could not be considered by the jury in their deliberations of whether informed consent was properly obtained. The court’s opinion was an extension of a previous opinion that held informed consent could not be delegated to a hospital; the physician was responsible for obtaining it.

Similar to Pennsylvania, Alabama courts have found that a hospital and its staff do not have an independent obligation to obtain informed consent from a patient.  Wells v. Storey, 792 So. 2d 1034 (Ala. 1999). However, this does not necessarily equate to the ruling in Shinol. Based on Shinol’s strict interpretation and possible increased scrutiny as a result of the holding, a review of Alabama law on informed consent is warranted.

It is the duty of the physician to inform the patient of the risks and obtain their consent, and if the physician fails to get informed consent, a patient has a cause of action under the Alabama Medical Liability Act (“AMLA”). Historically, the cause of action for a failure to obtain informed consent evolved through the legal theory of battery. The reason being that a person has the “‘right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.'” See Fain v. Smith, 479 So. 2d 1150 (Ala. 1985) (quoting Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (1914)).

The elements of the claim are:

  1. the physician’s failure to inform the patient of all material risks associated with the procedure, and
  2. a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician.

The test for determining whether the physician has disclosed all material risks to the patient is “a professional one, i.e. whether the physician had disclosed all the risks which a medical doctor practicing in the same field and in the same community would have disclosed. Expert testimony is required to establish what the practice is in the general community.” Giles v. Brookwood Health Services, 5 So. 3d 533 (Ala. 2008).

In one Alabama case, the physician entered into evidence an informed consent form signed by the patient. Although the patient stated she did not give consent, the court found the forms alone sufficient to dismiss the patient’s claims for assault and battery. There was no discussion in the court’s opinion as to how the form was presented to the patient or whether there was detailed discussion between the patient and the physician.

In another Alabama case involving the scope of consent, the physician obtained an executed form from the patient consenting to a specific procedure but also stating that the physician was authorized to perform “such additional operations/procedures during the course of the above as are considered therapeutically necessary or advisable in the exercise of professional judgment.” The patient alleged that the consent form did not give the physician “carte blanche” to perform any procedure. In this case, the physician had mistakenly removed an ectopic kidney the physician thought was a tumor. The Alabama Supreme Court overturned the lower court’s ruling in favor of the patient on the issue of informed consent and stated that there must be expert testimony as to whether the procedure performed by the physician was reasonable in light of the findings during the surgery.

Although the cases and elements mentioned above require the physician to inform the patient, there are no cases in Alabama that specifically require a face-to-face meeting/encounter with the patient to give informed consent (although this is definitely best practice) and certainly nothing in our case law that says a PA or other qualified health care professional may not explain the risks associated with a procedure. The law requires a physician to exercise that level of reasonable care, skill and diligence as a similarly situated physician and this rule should be followed when it comes to informed consent. It would also be wise to review consent forms to ensure they are not too limited in the grant of consent and ensure you are documenting all discussions with patients about the risks of procedures.

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

Posted in: Legal Watch

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A Refresher in the Medicare Claims Appeals Process…

A Refresher in the Medicare Claims Appeals Process…

With the increased audit activity we are seeing among the alphabet soup of Medicare contractors – RACs, ZPICs, SMRCs, CERTs, etc. – now appears to be a good time for a refresher on the Medicare claims appeals process. Due to this increased audit activity, more and more claims are being denied, both under pre-payment review and post-payment review. This article provides an overview on the Medicare claims appeals process, as well as some tips and pointers to keep in mind.

Request for Redetermination

A request for redetermination, the first level of appeal, must be filed within 120 days of receipt of a demand letter from the Medicare carrier (or, if no demand letter is received, within 120 days from the date a Medicare remittance advice shows a claim denial). If the request for redetermination is filed within the shorter time frame of 30 days, recoupment will not be initiated. If the request for redetermination is filed after the 30-day period, recoupment may be initiated, but will be stopped once the appeal has been filed. Interest begins to accrue on the 31st day and continues to accrue, even if an appeal is filed, until the overpayment is repaid or an entirely favorable decision is rendered. Thus, the only way to avoid the accrual of interest completely is to repay the overpayment before the 31st day. However, you still retain appeal rights even if the alleged overpayment has been repaid — you just have to go through the hassle of trying to get the money back from Medicare if a favorable decision is eventually rendered.
To ensure that all the relevant information is included, send a cover letter containing your arguments (with supporting documentation), as well as the request for redetermination form available at

The first level of appeal is reviewed by the applicable Medicare carrier, which for physicians practicing in Alabama is Cahaba GBA. The Medicare carrier has 60 days to render a decision.

Request for Reconsideration

A request for reconsideration, the second level of appeal, must be filed within 180 days of receipt of a decision by the Medicare carrier on
the request for redetermination filing. If the request for reconsideration is filed within the shorter time frame of 60 days, recoupment will not be initiated. If the request for reconsideration is filed after the 60-day period, recoupment may be initiated, but will be stopped once the appeal has been filed. Interest will continue to accrue, even if an appeal is filed, until the overpayment is repaid or an entirely favorable decision is rendered. Importantly, all information must be presented at the request for reconsideration level of appeal, as new information is generally not allowed to be presented at the following levels of appeal.

To ensure that all the relevant information is included, send a cover letter containing your arguments (with supporting documentation), as well as the request for reconsideration form available at

The second level of appeal is reviewed by the applicable Qualified Independent Contractor (“QIC”), an independent party hired by Medicare to review second level appeals. The QIC has 60 days to render a decision.

Administrative Law Judge

A request for a hearing before an Administrative Law Judge (“ALJ”), the third level of appeal, must be filed within 60 days of receipt of a decision by the QIC on the request for reconsideration, assuming the monetary thresholds are satisfied. Importantly, there is no opportunity to stop recoupment at this level of appeal. Thus, recoupment will begin and will continue until a favorable decision is rendered or until the full amount of the overpayment and accrued interest has been offset. Interest will continue to accrue at this level of appeal until the overpayment is repaid, offset through recoupment, or an entirely favorable decision is rendered.

To ensure that all the relevant information is included, utilize the ALJ hearing request form available at

The ALJ hearing is usually conducted by telephone or video conference. By regulation, the hearing is supposed to take place and a decision rendered within 90 days of the appeal request. However, due to backlogs at the ALJ level, it is currently estimated that appeals will not be heard by ALJs for approximately 6-8 years, unless there is Congressional action to resolve the backlog. There is an option to escalate the appeal to the next level if a decision is not rendered timely in light of this delay. However, the success rate for providers at the ALJ level is relatively high, so bypassing this level of review is not always in the provider’s best interest. Nonetheless, despite the delay by the ALJ office, recoupment will continue.

Medicare Appeals Council

A request for review by the Medicare Appeals Council (“MAC”), the forth level of appeal, must be filed within 60 days of receipt of a decision from the ALJ, assuming the monetary threshold is satisfied. The MAC is supposed to render a decision within 90 days. However, due to backlogs, MAC decisions are also taking longer to be issued. There is an option to escalate the appeal to the next level if a decision is not rendered timely. However, such escalation is not always in the best interests of providers.

Judicial Review

A request for judicial review by the appropriate federal district court must be filed within 60 days from receipt of the MAC decision, assuming the monetary threshold is satisfied. From this point, the judicial system will oversee the proceeding.

A couple of points to keep in mind with respect to Medicare claims appeals. Be proactive – review the RAC website for approved audit issues, as well as the most-recent OIG Work Plan for target issues. Develop a formal intake and review process for records requests and demand letters. Always respond to records requests in a timely manner, as the failure to do so will result in an automatic claim denial. Keep track of denied claims and look for patterns. Determine corrective action to take, if applicable, and appeal as necessary and appropriate. If you appeal, file everything by a trackable delivery method and keep copies of all documents that are filed and received. Always ask for confirmation in writing when receiving advice or instruction from the applicable review body.

While the claims appeal process can be frustrating, time-consuming, and costly, providers tend to have a high degree of success. However, many providers simply pay the overpayment amount without challenging the finding due to the associated time and expense. Depending on the amount of the overpayment and the frequency with which you believe the pertinent issue has occurred within your practice, spending the time and effort to appeal may be beneficial.

Article contributed by Kelli Fleming, a partner at Burr & Forman LLP and practices exclusively in the Birmingham office within the Health Care Industry Group. Burr & Forman, LLP is a Bronze Partner with the Medical Association.

Posted in: Medicare

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What is the ProAssurance Legal Defense Endorsement?

What is the ProAssurance Legal Defense Endorsement?

As a ProAssurance insured, did you know that in addition to medical professional liability coverage your ProAssurance insurance policy also has embedded legal expense coverage for a variety of regulatory risk exposures, certain types of disciplinary proceedings, and other types of covered investigations? It’s called the Legal Defense Endorsement, and it is an automatic part of your policy at no additional cost to you. Generally speaking – and subject to applicable deductibles, policy period aggregates, and other terms and conditions – the Legal Defense Endorsement provides up to $25,000 of legal expense coverage on a per claim basis for a laundry list of “covered investigations” specifically listed in the endorsement.*

Many of the covered investigations are of the regulatory risk variety – like HIPAA, EMTALA, the federal Anti-Kickback and False Claims Act statutes, the Patient Protection and Affordable Care Act, and others. In the event of an investigation or proceeding commenced against you by a governmental or regulatory agency charged with the enforcement of compliance with those laws and regulations, call ProAssurance because your Legal Defense Endorsement could provide up to $25,000 of legal expense coverage to help you navigate the investigative process.

Several other covered investigations relate specifically to Medicare and Medicaid. Again, in the event of an investigation or proceeding commenced against you by any federal or state agency charged with the enforcement of compliance with certain laws regulating Medicare or Medicaid and the rules and regulations related to billing and reimbursement for medical services under those programs, your Legal Defense Endorsement could provide up to $25,000 of coverage for legal expenses you incur as a result of such investigations.

Some of the remaining covered investigations include disciplinary proceedings commenced by the state’s medical licensure commission investigating alleged unprofessional conduct that could result in action being taken against your license to practice medicine. Disciplinary proceedings commenced by a hospital or its medical staff for the purpose of suspending, modifying, restricting, revoking, non-renewing, or terminating your staff privileges are also covered investigations under your Legal Defense Endorsement. Many an unwitting physician has tried to represent him or herself in these types of proceedings, only to later regret not enlisting the assistance of legal counsel.

There are additional covered investigations in the Legal Defense Endorsement not mentioned in this article. If you want to read your Legal Defense Endorsement look for the form titled “Professional Legal Defense Coverage Part” in your current ProAssurance policy. The endorsement itself is about two-and-a-half pages. You can always access your policy documents online through the ProAssurance secure customer portal at

Knowing and understanding how the coverage in your Legal Defense Endorsement works can help you to avoid spending money out of your own pocket on legal expenses that could be covered by the endorsement. More importantly, taking advantage of the coverage in your Legal Defense Endorsement can help you to avoid digging yourself into a deeper hole by attempting to handle a covered investigation on your own without the assistance of legal counsel.

For more information about your Legal Defense Endorsement or if you have questions about the coverage in the endorsement, contact your ProAssurance representative for assistance.

*Please note that legal counsel must be either appointed directly by ProAssurance or if selected by the insured, appointed by ProAssurance with prior written approval before their legal expenses can be covered under the Legal Defense Endorsement.

Posted in: Liability

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Close Patient Care/Diagnosis Gaps with New Informational Claim Process

Close Patient Care/Diagnosis Gaps with New Informational Claim Process

Blue Cross and Blue Shield of Alabama now offers a new informational claim process in which you have the option to submit an informational claim through ProviderAccesseClaims to report previously closed patient care/diagnosis gaps. The informational claim is for reporting purposes only.

Effective March 6, 2017, the option to dispute an item on a patient’s Patient Health Snapshot (PHS) has been removed and replaced with the “Guide to Closing Patient Gaps” and “Blue Advantage Guide to Closing Patient Gaps” to assist with closing patient gaps. These documents provide you with an in-depth look at scenarios that may apply to your patients when addressing gaps and submitting an informational claim.

These documents are located on our provider website, Log in and type “Guide to Closing Patient Gaps” in the search box. It will populate both versions of the guide for you.

Note: The absence of an appropriate “history of code for a resolved condition” is the only scenario in which a dispute can still be filed. This option is available for Blue Advantage patients only. Refer to the “Blue Advantage Guide to Closing Patient Gaps” for more details.

Posted in: Blue Cross Blue Shield of Alabama

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