CALIFORNIA HEALTHCARE LAW

United States Attorney Benjamin B. Wagner Eastern District of CaliforniaPsychiatric Solutions Inc. And Universal Health Services Inc. Agree To Jointly Pay $3.45 Million To Settle Allegations Of Fraud

            SACRAMENTO, Calif. — United States Attorney Benjamin B. Wagner announced that Psychiatric Solutions Inc. (PSI) and Universal Health Services Inc. (UHS) have agreed to jointly pay $3.45 million to the United States to settle allegations that subsidiary BHC Sierra Vista Hospital Inc. defrauded the Medicare program. PSI owned Sierra Vista when the alleged conduct occurred; UHS acquired PSI and subsidiary Sierra Vista in November of 2010 and is jointly responsible according to the purchase arrangement.            

Sierra Vista owns and operates a psychiatric facility at 8001 Bruceville Road in Sacramento. The facility provides both inpatient and outpatient psychiatric services to Medicare beneficiaries and others. The United States contends that Sierra Vista failed to provide the number of services to certain patients required to qualify for per-diem payment under Medicare’s Partial Hospitalization Program. Sierra Vista then fraudulently billed for these unqualified patient visits from January 2003 through September 2009.            

The Partial Hospitalization Program is an intensive outpatient program of psychiatric services provided to patients as an alternative to inpatient psychiatric care. It is intended for patients who have an acute mental illness. Regulations require outpatient hospitals to provide at least three defined services each day for payment under this program. This requirement is meant to assure consistency in the level of program intensity among providers.            

Other alleged conduct resolved by this settlement agreement includes billing for outpatient treatment where beneficiaries attended only sporadically. There was also a failure to meet conditions required for payment, including: obtaining approval of certain outpatient treatment, documenting individual outpatient therapy sessions, obtaining physician orders for certain lab work and obtaining physician certification for certain admissions.            

As part of this resolution, Sierra Vista has entered into a five-year Corporate Integrity Agreement with the Office of the Inspector General for the Department of Health and Human Services (HHS OIG). The Corporate Integrity Agreement requires Sierra Vista to establish and maintain a designated Compliance Program that includes oversight by a Compliance Officer and Committee, designated training and education, and annual reporting to HHS OIG.            

This settlement also resolves allegations contained in a whistleblower lawsuit filed by a former Sierra Vista Utilization Review Coordinator under the qui tam provisions of the False Claims Act. The whistleblower provisions of the False Claims Act permit private citizens with knowledge of fraud against the government to bring an action on behalf of the United States and to share in any recovery. As part of today’s resolution, the whistleblower will receive a percentage share of the recovery in the amount of $587,000.            

“Today’s settlement demonstrates our continuing commitment to protect the integrity of the Medicare program, both by assuring appropriate care to beneficiaries and by recovering improperly paid funds,” said U.S. Attorney Wagner.            

This settlement is the result of an investigation by the U.S. Attorney’s Office for the Eastern District of California and the U.S. Department of Health and Human Services, Office of Inspector General. Assistant United States Attorney Catherine Swann handled the matter for the United States.

Submitted by Matthew L. Kinley who comments: “This is interesting because it was initiated by a whistle-blower. The whistle-blower received almost $600,000 for making the reports on this issue.”

Doctors have only the best intentions in mind when they examine a patient and issue recommendations after the meeting. However, years of medical education and training – as extensive as it is – does not concern itself with the legal ramifications that ripple from mundane tasks such as writing a doctor’s note.

I observed this phenomenon recently while defending a pregnancy discrimination and wrongful termination case. There, the doctor had scribbled on cartoon stationary prohibiting plaintiff from lifting more than 11 pounds. At the time, plaintiff was a certified nursing assistant at a convalescent hospital that required regular hands-on care. In fact, many of its patients were bedridden and rendered immobile. Not surprisingly, the hospital requested clarification on this note.

Unfortunately, this tiny piece of paper became a seed of litigation.

It would therefore be useful to know that California Code of Regulations, Title 2, section 7291.10, subdivision (b) allows the employer to require medical certification before granting pregnancy disability leave or transfer, as long as the employer requires certification of other similarly situated employees. A “certification” is defined in 7291.2, subdivision (d) as a written communication from the health care provider that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or duties.

The requirements are further laid out in section 7291.2, subdivision (d) as follows:

(1) The certification indicating disability necessitating a leave should contain:
(A) The date on which the woman became disabled due to pregnancy;
(B) The probable duration of the period or periods of disability, and
(C) An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons.

(2) The certification indicating the medical advisability of the transfer should contain:
(A) The date on which the need to transfer became medically advisable;
(B) The probable duration of the period or periods of the need to transfer; and
(C) An explanatory statement that, due to the woman’s pregnancy, the transfer is medically advisable.

For employers, it would be wise to create a form sheet containing these questions to be answered by the doctor. For doctors, adhering to these requirements may just take preventative care to a whole new level.

Written by Matthew L. Kinley

The United States Office of Inspector General maintains a list that contains persons and entities that are banned from working for any program which receives federal health care dollars, including most prominently Medicaid or Medicare.

If any healthcare provider hires an employee or subcontractor from this list, they can not be paid any federal money, even for work not associated with the employee or subcontractor, and there can be penalties. It doesn’t matter that you had no knowledge about the list or the fact that the person or entity was on the list.

As stated by the OIG: “OIG’s List of Excluded Individuals/Entities (LEIE) provides information to the health care industry, patients and the public regarding individuals and entities currently excluded from participation in Medicare, Medicaid and all other Federal health care programs. Individuals and entities who have been reinstated are removed from the LEIE.”

This Special Advisory Bulletin describes the effect of exclusion. If a healthcare provider discovers an excluded individual or entity in their midst, they must self report in order to avoid penalties under the anti-kickback statute and the physician self-referral (“Stark”) law. The moral is: Before you hire an employee or subcontractor, check the list.

Make sure that your application for employment and the contract with the subcontractor provides self-disclosures by the individuals and entities if they have ever been on the LEIE and that you have the necessary information to check the list.

Here’s the link: “List of Excluded Individuals and Entities.”

Written by Matthew L. Kinley

Most patients have certain expectations when they go to the doctor. They generally expect to see an actual physician. However, the reduction in medical payments from Medi-Care and private insurance has necessitated changes in the usual physician/patient relationship. One change that has created big changes in the relationship has been the use of nurse practitioners.

The nurse practitioner (NP) is a registered nurse who possesses additional education and training in physical diagnosis, psycho-social assessment, and management of health-illness needs in primary health care. The NP has been prepared in a program that conforms to Board standards as specified in California Code of Regulations and Standards of Education.

Primary Health Care

Primary health care is when a consumer makes contact with a health care provider who assumes responsibility and accountability for the continuity of healthcare regardless of the presence or absence of disease. (California Code of Regs., § 1480 (b).) In primary health care, the NP may be the only health professional to see the patient. The NP will employ a combination of nursing and medical functions approved by standardized procedures. The NP must be clinically competent and he or she will possess and exercise the degree of learning, skill, and care ordinarily possessed and exercised by a member of the appropriate discipline in clinical practice. (California Code of Regs., § 1480(c)).

Legal Authority for Practice

The NP acts utilizing standardized procedures to perform medical functions (California Code of Regs.,
§ 1485).   § 2725 of the Nursing Practice Act (NPA) provides authority for nursing functions that are also essential to providing primary health care which do not require standardized procedures. Examples include physical and mental assessment, disease prevention and restorative measures, performance of skin tests and immunization techniques, and withdrawal of blood, as well as authority to initiate emergency procedures. In order to exceed the scope of a RN, they must utilize standardized procedures. Without standardized procedures the NP is legally very vulnerable, regardless of having been certified as a RN, who has acquired additional skills as a certified nurse practitioner.

Certification

Registered nurses who have been certified as NPs by the California Board of Registered Nursing may use the title nurse practitioner and place the letters “R.N., N.P.” after their name. Additionally a NP could be registered with other expertise, including adult nurse practitioner, pediatric nurse practitioner, obstetrical-gynecological nurse practitioner, and family nurse practitioner. (California Code of Regs.,
§ 1481). Since 2008, any new applicant will be required for initial qualification to possess a master’s degree in nursing, a master’s degree in a clinical field related to nursing, or a graduate degree in nursing, and to have satisfactorily completed a nurse practitioner program approved by the board. (Business and Professions Code § 2835.5.)

Furnishing Drugs and Devices

The law also authorizes NPs to obtain and utilize a “furnishing number” to furnish drugs and devices. Furnishing or ordering drugs and devices by the nurse practitioner is defined to mean the act of making a pharmaceutical agent or agents available to the patient in strict accordance with a standardized procedure. Furnishing is carried out according to a standardized procedure. All nurse practitioners who are authorized pursuant to § 2831.1 to furnish or issue drug orders for controlled substances shall register with the United States Drug Enforcement Agency.

Controlled Substances must be furnished under physician and surgeon supervision. Standards are contained at Business & Professions Code § 2836.1. A prescription pad may be used as transmittal order forms as long as they contain the furnisher’s name and furnishing number. Pharmacy law requires the nurse practitioner’s name on the drug and/or device container label. The name of the supervising physician is no longer required on the drug/device container label. (Business & Professions Code
§ 1470 (f).)

Dispensing Medication

Business and Professions Code § 2725.1 allows registered nurses to dispense (hand to a patient) medication upon the valid order of a physician in primary, community, and free clinic. Business and Professions Code § 2725.1 was amended to extend to furnishing nurse practitioner authority to dispense drugs, including controlled substances, pursuant to standardized procedures or protocols in primary, community, and free clinics.

Other Areas Where Nursing Practitioners Work

Through collaboration among administrators and health professionals, including physicians, surgeons and nurses, pursuant to § 2725, standardized procedures may be implemented that authorize a nurse practitioner to do any of the following:

(1) Order durable medical equipment, subject to any limitations set forth in the standardized procedures.

(2) After performance of a physical examination by the nurse practitioner and collaboration with a physician and surgeon, certify disability pursuant to § 2708 of the Unemployment Insurance Code.

(3) For individuals receiving home health services or personal care services, after consultation with the treating physician and surgeon, approve, sign, modify, or add to a plan of treatment or plan of care.

Sign for the Request and Receipt of Pharmaceutical Samples and Devices

Certified furnishing nurse practitioners are authorized to sign for the request and receipt of complimentary samples of dangerous drugs and devices identified in their standardized procedures or protocols that have been approved by the physician. (Business & Professions Code § 4061 [Pharmacy law].)

Treating STDs

§ 120582 of the Health and Safety Code provides:

(a) Not withstanding any other provision of law, a physician and surgeon who diagnoses a sexually transmitted chlamydia, gonorrhea, or other sexually transmitted infection, as determined by the Department of Health Services, in an individual patient may prescribe, dispense, furnish, or otherwise provide a prescription antibiotic drugs to the patient’s sexual partner or partners without examination of that patient’s partners.

(b) A nurse practitioner practicing as a certified nurse-midwife may dispense, furnish, or otherwise provide a prescription antibiotic drug to the sexual partner or partners of a patient with a diagnosed sexually transmitted infection, as determined by the Department of Health Services, without examination of the patient’s sexual partners.

Workers’ Compensation Reports

Labor Code § 3209.10 gives nurse practitioners the ability to cosign a Doctor’s First Report of Occupational Injury or illness for a worker’s compensation claim to receive time off from work for a period not to exceed three (3) calendar days if that authority is included in standardized procedure or protocols. The treating physician is required to sign the report and to make a determination of any temporary disability.

Veterans with Disabilities Parking Placards

The Vehicle Code is amended to include nurse practitioners, nurse midwives and physician assistants as authorized health care professionals that can sign the certificate substantiating the applicant’s disability for the placard. Existing law authorizes the Department of Motor Vehicles to issue placards to persons with disabilities and veteran with disabilities and temporary distinguishing placards to temporary disabled persons, to be used for parking purposes. Prior to issuing the parking placard or temporary placard, the Department of Motor Vehicles requires the submission of a certificate, signed by an authorized health care professional providing a full description substantiating the applicant’s disability, unless the disability is readily observable and uncontested.

Medical Examination School Bus Drivers

Vehicle Code § 12517.2 allows NP to examine school bus drivers for an original or renewal certificate to drive a school bus, school pupil activity bus, youth bus, general public paratransit vehicle, or farm labor vehicle.

Informing Patient: Positive and Negative Aspects of Blood Transfusions

The Health and Safety Code authorizes the nurse practitioner and the nurse-midwife who is authorized to give blood to provide the patient with information by means of a standardized written summary as developed or revised by the State Department of Public Health about the positive and negative aspects of receiving antilogous blood and direct and nondirected homologous blood to volunteers. Previous law required that the need for a blood transfusion be determined in most cases by a physician.

Medi-Cal Billing: Nurse Practitioner Nationally Certified in a Specialty

Welfare and Institutions Code allows that services provided by a certified nurse practitioner shall be covered under Medi-Cal to the extent authorized by federal law, and subject to utilization controls. The department shall permit a nationally certified nurse practitioner to bill Medi-Cal independently for his or her services. If a nationally certified nurse practitioner chooses to bill Medi-Cal independently for his or her service, the department shall make payment directly to the nurse practitioner. For the purposes of this section, “certified” means nationally board certified in a recognized specialty.

Supervision

Supervision of the NP performing an overlapping medical function is addressed in the standardized procedure and may vary from one procedure to another depending upon the judgment of those developing the standardized procedure. As an example, in one women’s clinic the supervision requirement for performing a cervical biopsy was that a physician must be physically present in the facility, immediately available in case of emergency. For all other standardized procedure functions, the supervision requirement was for a clinic physician to be available by phone. The furnishing or ordering of drugs and devices by nurse practitioners occurs under physician and surgeon supervision. Physician and surgeon supervision shall not be construed to require the physical presence of the physician, but does include (1) collaboration on the development of the standardized procedure, (2) approval of the standardized procedure, and (3) availability by telephonic contact at the time the patient is being examined by the nurse practitioner. For furnishing purposes, the physician may supervise a maximum of no more than four (4) NPs at one time. (Business & Professions Code § 2836.1.)

Supervision of Medical Assistants

Nurse Practitioners and Certified Nurse-Midwives may supervise Medical Assistants in “community clinics” or “free clinics” in accord with approved standardized procedures and in accord with those supportive services the Medical Assistant is authorized to perform (Business and Professions Code
§ 2069(a)(1); and Health and Safety Code § 1204(a) & (b).) Examples of violations resulting in citation and fine are using the title “nurse practitioner” without being certified as a NP and failing to have standardized procedures when performing overlapping medical functions. NPs are encouraged to comply with all sections of the NPA to avoid discipline.

Written by Matthew L. Kinley