Like them or loathe them, no one disputes that large venture capital-funded mega-groups have irrevocably altered the business of private mental health practice. But I have an uncomfortable question, one I’m not sure has yet been asked publicly:
What happens when the seemingly unstoppable force of the mega-groups crashes headlong into the immovable object known as Original Medicare?
In physics, it’s a paradox. The immovable object and the unstoppable force cannot exist simultaneously.
Private insurers favor mega-groups because they take over the expensive burden of credentialing and contracting. These outfits also guarantee the level of member access that the insurer needs to show its customers that they offer an “adequate” network. As a reward, the insurance company offers a higher reimbursement rate to the group than to private practitioners. They can even legally steer referrals and/or design benefit plans that preferentially favor the mega-groups.
None of that applies to Original Medicare. And my money as to the eventual winner of the coming clash is on Medicare, the immovable object. Let’s find out why.
If you’re a clinician who’s contracting with one or more of the mega-groups now, or if you’re thinking about doing so in the future, please read this carefully (and share with colleagues) before agreeing to take Medicare through one of the mega-groups.
My goal is to ensure you have access to information the mega-group might not make you aware of. It will help you:
- Keep your license
- Keep your billing privileges
- Stay out of an orange jumpsuit
Medicare is different from private insurance. It’s a federal government program funded by taxes, not a voluntary contract. As a clinician with a license eligible to bill Medicare, you’re subject to these laws whether or not you choose to enroll in Medicare (which is why formally opting out is so important if you want to see Medicare clients for cash pay only).
Clinicians in the mega-groups who bill Medicare need to become aware of a trio of federal fraud & abuse laws. Then, read your contract with the mega-group carefully (preferably in consultation with an experienced healthcare attorney).
- The False Claims Act
- The Anti-Kickback Statute
- The Physician Self-Referral (Stark) Law
The False Claims Act 31 USC § 3729-3733
The Office of the Inspector General (OIG) is the government’s compliance enforcement agency.
In the words of the OIG:
When you submit a claim for services performed for a Medicare or Medicaid beneficiary, you are filing a bill with the Federal Government and certifying that you have earned the payment requested and complied with the billing requirements.
Signing a “reassignment” agreement so that one of the mega-groups collects for your services doesn’t release you from liability in the eyes of the government, if it can be proved that you knew the group was billing improperly. The OIG would go after the group, but you could be dragged in as well. Mega-groups have lawyers funded by their venture capital moneybags to defend them. Will those lawyers defend YOU?
You should make it your business to know:
- If you code a session 90832 or 90834, is that the code the group’s billing office submits? Will you have access to what’s submitted?
- If an unlicensed clinician under your supervision is performing services, is the group billing these under your rendering NPI number?
- If you’re a licensed master’s-level clinician, is the group billing you as incident-to a psychologist? (so that Medicare will reimburse at 100% of the PFS rather than 75%)
- If you’re fully licensed but not yet enrolled in Medicare, is the group billing your services under another clinician as incident-to rather than waiting on Provider Enrollment to finish?
The OIG would consider all of the above to be violations of the False Claims Act.
All it takes is one alert client who reads their EOB from Medicare, calls Medicare up and says, “I didn’t see Dr X, I saw a student.” Or, “I was only with Dr Y for 30 minutes, not 60.” Or “my counselor’s name was Susan, I never saw a Dr A.”
The Anti-Kickback Statute 42 USC § 1320a-7b(b)
What if one of the mega-groups made you this proposal?
“We can’t pay you more than the Medicare allowable, but what if in exchange for us doing your enrollment and billing, you agree that any Medicare client referred to you is seen through us?”
Or:
“In exchange for doing your provider enrollment and billing Medicare under our group TIN, we’ll ensure that you get plenty of referrals through us.”
If you hear either of these…run! Or blow the whistle.
These propositions would likely be viewed as a violation of the Anti-Kickback Statute (AKS). It’s very clear:
- You can’t take money or receive rewards/incentives from people you refer clients to.
- You can’t pay others to refer clients to you.
- Trading services where the means of exchange involves referrals is off-limits.
The AKS covers not only monetary inducements, but also services, favors, gifts or anything else which could be viewed by the government as a means of influencing referrals.
In the first proposal, the mega-group does something for you (provider enrollment and billing) if you agree that Medicare clients are only seen by you while working for them. In addition to the kickback angle, the government would argue that this arrangement violates the client’s freedom of choice.
In the second, the mega-group promises you referrals in exchange for letting them bill and completing your provider enrollment.
Let’s be clear: paying for credentialing or billing isn’t a violation of the AKS. You can pay a flat fee, a per-claim or per-enrollment fee, an hourly rate, even a percentage of collections (in states where it’s legal). But billers and/or credentialers acting only in those capacities can’t steer referrals either to or from your practice. That’s where the mega-groups are not billing and/or credentialing services. Despite their claims to the contrary (pun intended).
The Physician Self-Referral Law aka Stark Law 42 USC § 1395nn
Stark is less likely to apply to most mental health practitioners – unless you decide to start a mega-group or invest in one. The law prohibits referrals to entities that you either own, or have made a financial investment in. (This is why you’re always asked these questions during credentialing).
Since Stark has a lot of exceptions, and I’m not sure of the extent to which it applies to mental health, if you have any questions or concerns you should contact a knowledgeable attorney.
Penalties
First are the career-killing penalties.
- Exclusion
- National Practitioner Data Bank
- CAQH
What’s Exclusion?
Under 42 USC § 1320a-7, the OIG excludes anyone convicted of fraud or other actions deemed injurious to federal healthcare programs. Including, but not limited to, Anti-Kickback, Self-Referral, and False Claims.
When you’re excluded, you’re not able to bill (or work for anyone who bills) any government program: Medicare, Medicaid, Tricare, the VA.
I can anticipate responses along the lines of “I don’t want to take Medicare or any of those anyway in my private practice!“
So opt out. But opting out doesn’t change the other serious consequences.
Did I mention that exclusion is a matter of public record?
National Practitioner Data Bank
The government also maintains a more comprehensive database, the National Practitioner Data Bank.
What information is in the database?
And who looks at it?
By law, certain entities (referred to as “eligible entities”) report to the NPDB, query the NPDB, or both. Eligible entities include medical malpractice payers, hospitals and other health care entities, professional societies, health plans, peer review organizations, private accreditation organizations, quality improvement organizations, and certain federal and state agencies. Health care practitioners, entities, providers, and suppliers are authorized to query on themselves for information reported to the NPDB, since they may be the subjects of NPDB reports.
Want to see what they have on you?
Ok so there’s this database. Who do you think checks it?
You guessed it: CAQH.
Next time you log into CAQH, check the Standard Authorization, Attestation & Release form you signed when you first created your profile. Did you read it?
Authorization of Third-Party Sources to Release Information Concerning Application for Participation. I authorize … individuals, agencies, medical groups responsible for credentials verification, corporations, companies, employers, former employers, hospitals, health plans, health maintenance organizations, managed care organizations, law enforcement or licensing agencies, insurance companies, educational and other institutions, military services, medical credentialing and accreditation agencies, professional medical societies, the Federation of State Medical Boards, the National Practitioner Data Bank, and the Health Care Integrity and Protection Data Bank, to release to the Entity and/or its Agent(s), information, including otherwise privileged or confidential information, concerning my professional qualifications, credentials, clinical competence, quality assurance and utilization data, character, mental condition, physical condition, alcohol or chemical dependency diagnosis and treatment, ethics, behavior, or any other matter reasonably having a bearing on my qualifications for Participation in, or with, the Entity. I authorize my current and past professional liability carrier(s) to release my history of claims that have been made and/or are currently pending against me.
Authorization of Release and Exchange of Disciplinary Information. I hereby further authorize any third party at which I currently have Participation or had Participation and/or each third party’s agents to release “Disciplinary Information,” … “Disciplinary Information” means information concerning (i) any action taken by such health care organizations, their administrators, or their medical or other committees to revoke, deny, suspend, restrict, or condition my Participation or impose a corrective action plan; (ii) any other disciplinary action involving me, including, but not limited to, discipline in the employment context; or (iii) my resignation prior to the conclusion of any disciplinary proceedings or prior to the commencement of formal charges, but after I have knowledge that such formal charges were being (or are being) contemplated and/or were (or are) in preparation.
Fine, I won’t take any insurance. I’ll do self-pay.
That works if you practice in an area where people are wealthy enough to afford to self pay, if you are great at marketing, and have a specialty people need.
But what happens if your client who pays cash and asks for a superbill is then refused reimbursement because the insurance company found you have a record?
It doesn’t stop with career-killing penalties. There are also financial and criminal penalties.
False Claims Act: fines up to 3x the loss to Medicare plus $11,000 per false claim filed. And this is if they only charge you under the civil FCA. If they decide that your knowledge was more than just being aware, but constituted a deliberate attempt to defraud the government, you can go to prison if convicted. (18 USC $ 287)
AKS: penalties can include exclusion, prison, and penalties of up to $50,000 per kickback plus triple the amount of money paid by Medicare for the claims.
Self-Referral: fines, jail time, exclusion.
My advice: whatever deal the mega-group offers to work with Medicare clients under them: Just Say No.
Unless you look good in orange.
I’m Susan, your PsychBilling Coach. If you have a burning issue or problem with Medicare, private insurance, billing, credentialing, or other practice topics, you can schedule a consultation here.
