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Health Law Pointers - Volume XV, No. 1

Health Law Pointers

Volume XV, No. 1
Tuesday, February 5, 2013

Brought to you by Hurwitz & Fine, P.C.
Editor: Lawrence M. Ross
[email protected]

As a public service, we are pleased to present this issue of our periodic health law newsletter addressing the specific legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail or call the Editor, Lawrence M. Ross, at (716) 849-8900.

Professional Practices and High Deductible Medical Plans

A recent cost containment strategy has seen the growth of “high-deductible” health insurance plans that offer covered enrollees the prospect of more affordable premiums, but at the price of accepting an increased share of the cost of medical procedures through high deductibles. Not surprisingly, this trend may affect professional practices billing and payment arrangements with patients. A growing number of professional practices must now contend with patients defaulting on their out-of-pocket costs for expensive surgical procedures when surprised by an unexpectedly large deductible.
The trend toward high deductible plans may thus necessitate adoption of a new payment or financial policy requiring payment of the deductible on or before the date of the procedure. The new policy should probably contain the following elements:
1.         Determining eligibility and estimates of covered benefits in collaboration with the third party payer;
2.         Requiring any estimated out of pocket costs to be paid in full on or before the date of service, or at some lesser agreed upon percentage as set forth in the policy;
3.         Authorizing payment via credit card; and
4.         Requiring any remaining balance to be due within a fixed period of time following the date of the procedure.
Like other office policies, this payment policy should be properly disclosed to patients and implemented in a uniform, non-discriminatory manner. However, policies like this should be adopted only on the advice of counsel as third party payers routinely object to the prepayment as a breach of the participating provider agreement in place between the health care plan and the physician.
To counter any resistance from third party payers that may object to the prepayment, citing contractual provisions limiting payments prior to the date of service, practices may wish to consider characterizing the payment as a “deposit” or form of retainer and place the funds in a separate account until the date of service.
Patient Chart Maintenance
May a professional practice delete selective parts of an active patient’s medical record? The question may involve severance of the diagnostic test section of the medical record because of the passage of time from the date of the diagnostic tests. For the reasons described below, this is not a good idea:
1.         The medical record of a patient is considered a single, unified item rather than something with discrete and separable parts.
2.         There does not appear any basis in New York State law, or an accepted course of conduct, which would support this type of selective editing or removal.
3.         Taking this action may interfere with or impair a practice’s ability to defend against a malpractice action.
4.         The action may also raise coverage questions with a practice’s professional liability (malpractice) insurance carrier.
5.         Taking this action may very well require (i) patient notice and consent or, alternatively, (ii) affording the patient an opportunity to claim the portion of his/her chart before it is permanently discarded.
6.         Severance of the diagnostic test section of the medical chart may violate statutory rules on retention as well as implicate the contractual requirements imposed by third party payers.
New Versus Established Patient
Many practitioners are familiar with the CMS definition of “new patient,” and understand that reimbursement for a new patient visit is greater than the charge for an established patient. To qualify as a new patient, the individual should not have received any professional services from the physician or physician group practice within the last 3 years.
Practitioners in surgical specialties also understand that pre-operative visits, the surgical procedure itself, procedures related to complications, supplies, pain management as well as post-operative visits are reimbursed under the “global surgical package” rules requires billing under a single code, for major surgery. For this purpose, the global period is 90 days.
What happens, though, in the event of a practice acquisition and established patients transfer their care to the acquiring medical practice, and are seen by a different doctor within that group practice? Assume for this purpose that the selling physician becomes an employee of the acquiring practice. May the initial patient visit with the acquiring practice be billed as a new patient visit?
The existing guidance is sparse but the proper billing procedure seems to require that the initial visit to the practice be charged with an established patient E & M code even if (1) the patient is seen by a different doctor (not the selling physician) or (2) there is a formal “transfer of care” to a different acquiring practice physician.
This situation does not differ materially from cases where an established patient transfers to another practice in the community, or relocates elsewhere, and the patient chart is forwarded to the new or successor physician. Later, before 3 years lapses, the patient resumes care with his initial treating physician. In this instance, too, established patient codes are indicated.

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