From: Scott Tenner [Scott.Tenner@downstate.edu]
Sent: Thursday, June 12, 2008 8:00 AM
To: DrTenner@BrooklynGI.com
Subject: All Endoscopy Based Offices Must Halt Facility Fee Billing
It
is with suprise, regret, and a deep sense of injustice that I must report to
you that The Department of Health appears to have reversed their decision on
Office Based Endoscopy Facility Fee Billing. Please see the DOH
Website. Until
further clarified, all accredited offices billing a fee for providing a
facility should halt this practice.
As
many of you know, over two years ago, as an officer of the New York
Society for Gastrointestinal Endoscopy (NYSGE), I was invited by the
DOH to attend the final meeting of the Committee for Public Safety that
had drafted the legislation to force offices to obtain accreditation. I
was not given an opportunity to speak openly. However, I did address many
members of the committee in private about the need to address how we would be
paid for providing accredited office facilities. The issue was extremely
important in NY. Although other states allowed ASCs to be obtained,
such as Maryland, Texas, California which boast well over 1000 such
facilities, in NY, less than 60 allowed endoscopy. Office based
endoscopy had proliferated accounting for more than half of colonoscopies. Despite
the costs of maintaining an accredited facility, despite the
fact that offices were to provide endoscopes, processors,
cleaning machines, snares, biopsy forceps, stretchers, recovery unit, etc. and
now be accredited, NY State had not addressed the issue of reimbursement.
Many offices survived by cost-cutting techniques that accreditation would make
impossible.
Forcing
offices to become accredited, though beneficial from a Safety standpoint, would
pose even more increase costs. The offices were alread under financial
pressure as Oxford and other carriers dropped the OFAC codes allowing
additional payments to offices for providing a facility. Carriers began
paying only a handful of select offices a small bonus to maintain office
facilities.
In
order to meet the task, on behalf of the NYSGE and The
American College of Gastroenterology, I met with legal council from
the MSSNY, Donald Moy, Esq and Scott Einiger, Esq, a health care
attorney who had expertise in facility fee billing. It was at this time
that Validare, a company that represented the office based endoscopy model
presented to members of the NYSGE. It appeared that a cost effective and
legal strategy existed for offices to become accredited and bill a
facility fee.
To
verify this, Scott Eininger, Esq, Donald Moy, Esq, members of the Validare
team, other attorneys, physicians and myself went to Albany to verify
the legality of this approach. Meeting with members of the New York State
Dept of Health, including the lead council, Donald Berens, and Office of
Professional Misconduct, we were led to believe that "billing private
carriers did not violate the Article 28 law (designed for to protect Medicare
and Medicaid dollars - eg need for Certificate of Need).
After
this meeting, and several others to follow, we moved foward.
It
became the policy of the NYSGE to support office accreditation to promote
safety and adherence of our Society's Guidelines for practice (eg ASGE, ACG,
AGA).
The
plan was to solve the problem that existed for Office Based Endoscopy and
promote the ability to provide a safer, more effective environment to provide
endoscopy. Now, offices would become accredited and recieve a fair
payment for the services provided.
Almost
a year has passed and almost 60 offices providing endoscopy have had the
courage to become accredited. Most of these offices also bill a
facility payment to cover the costs. As President of the NYSGE, I
have met with many carriers to negotiate a fair payment for these office
facilities. Some contracts were to start June 1, such as with HIP/GHI.
Almost
6 weeks ago, I had traveled again to Albany to meet with the new lead Council
to the DOH, Thomas Conway, Esq. and the physician who heads the office
based endoscopy program, John Morely MD. We had spent time discussing the
issues of accreditation, billing a facility fee, and the concern that only a
handful of offices had become accredited with only 13 months left before
unaccredited offices would need to close their doors. We explained the
Validare model, and at that time both Mr. Conway and Dr. Morely appeared to
support our goals. They claimed that although they supported our position
the Dept of Health could not force carriers to pay a facility payment. We
proposed that a meeting be set up between carriers and the NYSGE (and other
office surgery groups) to demonstrate the fairness of a negotiated facility
payment and the benefits of this cost effective model in promoting colorectal
cancer screening. Both Mr. Conway and Dr. Morely agreed.
We
inquired when the meeting would occur, weeks past. Then this appeared on
the DOH website:
Reimbursement
43. Does accreditation status result in the ability of an
office-based surgical practice (OBS practice) to receive a "facility
fee"?
Accreditation status alone does not require a third party insurer to pay a facility fee. Whether a third party insurer will pay a facility fee is a matter of negotiation between the insurer and the OBS practice. Neither Medicaid nor Medicare will pay a separate facility fee for OBS.
44. Can an OBS practice bill third party insurers for a
facility fee under a different corporate entity such as a business corporation
or a professional corporation? [Revised as of June 5, 2008]
No, this might be illegal if the rate has not been negotiated with the third party insurer. In order to collect the facility fee, the different corporate entity, with its own taxpayer identification number, might be holding itself out as a professional entity. Under State Education Law (SEL) § 6513, the unauthorized use of a professional title is a crime. In addition, this might also be considered billing fraud. Both of these possible criminal actions might affect the entity billing the facility fee as well as the OBS practice itself. Only the OBS practice should be submitting bills to third party insurers.
45. May an OBS practice contract with an entity that
promises to collect a facility fee and a professional fee from third party
insurers? [New as of June 5, 2008]
Yes, but only through open negotiations with the third party insurers. There must be a written agreement between the OBS practice and the negotiating entity. Since the rate has been openly negotiated, billing should be done by the OBS practice, as directed by the insurers. As above, neither the negotiating entity nor a separate entity should be submitting any bills to the insurers.
46. May an OBS practice contract with an entity which
provides billing services and/or collection services only? [New as of June 5,
2008]
OBS practices may contract with a billing services company to do their billing, pursuant to a written agreement. The bills would be submitted in the name, on behalf of, and for the benefit of, the OBS practice. The insurer must make payments in the name of the OBS practice. The billing Services Company cannot have access to the revenue and can only be paid a flat fee. The OBS practice and the billing services company must enter into a business associate agreement pursuant to the requirements of the HIPAA.
OBS practices may also contract with a collection agency to attempt to collect some portion of payment on a severely delinquent account. Again, this could only be done through a written agreement with the OBS practice. The collection agency is usually authorized to negotiate a payment arrangement or amount with the patient or insurer. The collection agency is usually paid a percentage of the amount paid, which would otherwise be written off as a bad debt. This is the only circumstance under which a percentage fee is allowable. Again, the OBS practice and the collection agency must enter into a business associate agreement pursuant to the requirements of HIPAA.
We have currently scheduled a meeting with
representatives from the DOH and the Medical Society of the State of New York
(MSSNY) for July 14, 2008 in order to obtain further clarification on this
issue. In light of the confusion based on these new questions provided by the
DOH, we recommend that until further clarification is obtained, physicians should
refrain from submitting facility fees and seeking reimbursement from the
carrier, unless the provider has a contract with the carrier.
Once again, I am deeply saddened about this injustice. I am also very concerned about what effect this will have on decisions regarding accreditation, the future of office based endoscopy, and the ability for our profession to continue to provide access for colorectal cancer screening.
I will continue to keep you updated, especially after our July 14 th meeting with the DOH. As always, please feel free to contact me if there are any questions.
- Scott
Scott Tenner, M.D., M.P.H.
President, NYSGE
Associate
Professor of Medicine,
State University of New York - Health Sciences Center
2211 Emmons Ave
Brooklyn, NY 11235
718-368-2960
718-368-2249 Fax
DrTenner@BrooklynGI.com