Palm Beach Post Feature: Lake Clarke Shores Man was Part of Bobby Kennedy’s Brief Moment

Jonathan Schuman at his home in Lake Clarke Shores on June 5, 2018. (Bruce R. Bennett / The Palm Beach Post)

Jonathan Schuman at his home in Lake Clarke Shores on June 5, 2018. (Bruce R. Bennett / The Palm Beach Post)

ake Clarke Shores man was part of Bobby Kennedy’s brief moment

Jonathan Schuman stood at Arlington National Cemetery. Fifty yards away stood everyone who was anyone in Washington, from the president of the United States to the second woman in five years to become a Kennedy widow.

The “Florida kid” from Palm Beach High had been the No. 4 spokesman for what might have been the shortest serious presidential campaign in modern history. He’d been hired just a few days after it started in March 1968.

It had lasted 82 days. It ended with a gravely wounded Bobby Kennedy flat on the floor in the kitchen of a Los Angeles hotel, a stunned busboy cradling the man’s bloody head.

Schuman was 22.

We are a great country, an unselfish country and a compassionate country … So my thanks to all of you, and it’s on to Chicago, and let’s win there.
— Robert Kennedy moments before he was shot

“I slept in this morning,” he said on Tuesday, the 50th anniversary of the shooting. He knew morning shows would be all about Bobby, and “I didn’t want to wake up to see the news. I just had flashbacks.”

Schuman had moved with his family from the Bronx as a second grader, he said Tuesday from the living room of his Lake Clarke Shores home. He graduated Palm Beach High. Barely.

“I was an F (and) D student through 11th grade,” the semi-retired lawyer, now 72, recalled.

But, he said, he began a love of newspapers and television news, religiously devouring The Palm Beach Post, The New York Times and CBS’ Walter Cronkite. And he was inspired by a teacher who got him on the debate team. That, he said, “changed my life.”

At Florida State University, he became mostly a straight-A student and earned a Ford Foundation grant that got him into the School of International Service at American University in Washington.

‘You’re not going to believe …’

Just shy of his Ph.D., he met someone, who knew someone, who suggested him to Pierre Salinger, who was the spokesman for the nascent campaign to send Bobby Kennedy to the White House.

Salinger had plenty of staffers who were ensconced well inside the beltway. When young Schuman was able to answer a question for Salinger, an intense baseball fan, about a recent trade between the San Francisco Giants and Chicago Cubs, he was hired. It was just a few days after Bobby had announced on March 16.

Back at Palm Beach High, Schuman had skipped class to see then-President John F. Kennedy in Palm Beach. He didn’t believe then front-runner Gene McCarthy had a chance to defeat the resurgent Richard Nixon, and he believed in Bobby. He’d have been all in even without the whopping $150 a week pay.

A black-and-white framed photo belonging to Jonathan Schuman of Lake Clarke Shores. “It was taken in Washington, D.C., in 1968 for a campaign brochure” for Robert F. Kennedy, he said. (Bruce R. Bennett / The Palm Beach Post)

A black-and-white framed photo belonging to Jonathan Schuman of Lake Clarke Shores. “It was taken in Washington, D.C., in 1968 for a campaign brochure” for Robert F. Kennedy, he said. (Bruce R. Bennett / The Palm Beach Post)

He remembers calling his parents back in West Palm Beach and saying, “you’re not going to believe … ” The rest of the school year, and his Ph.D., would wait. As it turned out, he never would attain it.

Schuman’s job was research assistant. In those days long before the internet, he would dig through a roomful of file cabinets to help write position statements that the campaign would sent to reporters.

“If I had not read newspapers all my life, I would not have gotten that job,” he said.

He also would regularly monitor the old-fashion teletype machines that loudly spit out wire service stories chunk-a-chunk on a paper roll, letting people know with a series of bells that big news was breaking. And the $25,000 telecopier that could send one page across the continent in a downright-supersonic six minutes.

He said he wasn’t starstruck by the politicians he met because he felt they were plain old people. Even Bobby, whom he finally met in Los Angeles just days before RFK was killed.

“I said, ‘I’m the kid from Florida who works with Salinger,’ ” he recalled. He said Bobby asked if Schuman ever had been to Palm Beach’s iconic Green’s Pharmacy, a regular Kennedy hangout. Which Schuman of course had.

‘He said the senator had been shot’

In his time with the campaign, Schuman had left Washington just that once: for the California primary. On June 5, the day of the vote, he boarded an afternoon red-eye flight back to D.C. to prepare for the coming Democratic convention in Chicago. Flight attendants had spotted the “RFK staff” luggage tag, and when the plane stopped in Chicago, a stewardess motioned for him to see the pilot in the cockpit.

“He said the senator had been shot,” Schuman recalled. “I was numb. Horrified. I didn’t believe it. I then started processing how it could have happened.”

He also recalled thinking perhaps the wounds had not been grim. They had.

A Secret Service pass for access to Robert F. Kennedy’s grave at Arlington National Cemetery belonging to Jonathan Schuman. It was photographed at Schuman’s home in Lake Clarke Shores Tuesday, June 5, 2018. (Bruce R. Bennett / The Palm Beach Post)

A Secret Service pass for access to Robert F. Kennedy’s grave at Arlington National Cemetery belonging to Jonathan Schuman. It was photographed at Schuman’s home in Lake Clarke Shores Tuesday, June 5, 2018. (Bruce R. Bennett / The Palm Beach Post)

He doesn’t remember much of the ensuing hours. Departing O’Hare. Landing at Washington National. Walking into RFK headquarters.

“It was silent. Some people gathered around TVs and wire machines,” he recalled.

He remembered seeing a neurologist from New York declare on television that even if Bobby survived, he’d be in a permanent vegetative state. Staffers scrambled to push wire services to quash the story.

It didn’t matter, At 1:44 a.m. on June 6, the campaign staff, many of whom had not slept in the 26 hours since Bobby’s triumphant ballroom remarks, watched press secretary Frank Mankiewicz announce from California that Bobby was dead.

“Total silence,” Schuman recalled. “But not surprise. By then we knew the seriousness of it.”

He recalled his first reaction was that he’d lost an opportunity to work in the White House. Then he chided himself for his selfishness. And recalled how days earlier he’d played in the pool with Bobby’s children at the senator’s home in Northern Virginia. But he said he was too young to share the overpowering despair for the nation that others had professed.

Senator Kennedy has been shot!...Get the gun! Get the gun! Get the gun! Stay away from the guy! Get his thumb! Get his thumb! Break it if you have to! Get the gun, Rafer [Johnson]! Hold him! We don’t want another Oswald!
— Radio reporter Andrew West

And there was work to do. There was a funeral service in New York. And the burial at Arlington National Cemetery.

The more senior staffers, people who’d known RFK for decades, wept, some hysterically, and some simply could not function. Many of those who could work were put on the train that would meet Bobby’s body in New York when it flew in from California and, then, after the funeral service, would ride the train to Washington.

So people such as 22-year-old Jon Schuman were told to step up. He suddenly found himself in charge of the limited-space credentials for the press and notables.

‘We have work to do’

“It automatically went from grief and shock to, ‘We have work to do,’ ” he said.

He recalled running into Bill Moyers in, of all places, the men’s room. The future CBS reporter was at the time on the press staff of then-President Lyndon Johnson. Schuman said he had no experience that could help with any of this. He said Moyers told him, “Don’t worry. I’ll get you through this.”

Bobby had been one of New York’s two U.S. senators. New York Gov. Nelson Rockefeller loaned a private jet to fly RFK staffers to New York. At St. Patrick’s Cathedral, Schuman helped check entry passes, then stood in the back of the packed church and wept as Teddy Kennedy, his own voice choking, said of his brother, “Those of us who loved him, and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.”

The Rockefeller jet raced Schuman and other staffers to Arlington, where they waited for the train that took Bobby Kennedy on that historic and emotional last ride from New York. The thousands who lined the track made the train run four hours late, and by the time the funeral began, night had fallen. It’s the only nighttime funeral in the cemetery’s history.

Schuman stood between reporters and the brain trust of the entire world, gathered to honor Bobby.

“I have a visual recollection of everything,” he said.

A Western Union telegram belonging to Jonathan Schuman of Lake Clarke Shores. “This was the only way anyone could get in to (RFK’s) funeral at St. Patrick’s and interment in Arlington.” (Bruce R. Bennett / The Palm Beach Post)

A Western Union telegram belonging to Jonathan Schuman of Lake Clarke Shores. “This was the only way anyone could get in to (RFK’s) funeral at St. Patrick’s and interment in Arlington.” (Bruce R. Bennett / The Palm Beach Post)

What he doesn’t remember is who gave him a ride home so he could get his first decent sleep in many days. He was back at RFK headquarters for two or three more days. And then the campaign folded up shop and the lights were turned out.

Schuman stayed in Washington, working for investigative reporter I.F. Stone, then writing for the National Journal, then got a law degree at FSU.

He worked on the campaign for Florida Attorney General Bob Shevin, then worked on health care for Gov. Reubin Askew. He then worked back in Florida for Richard Stone’s U.S. Senate campaign before returning to Washington to work for the federal agency that prosecutes Medicare fraud.

He came back to West Palm Beach around 1985. He’s been married 25 years and has four children and five grandchildren. He’s semi-retired; his biggest legal client is a trade organization for Florida’s acupuncturists, which is in a pending lawsuit against physical therapists.

One of his prized possessions is a photo Ethel Kennedy sent to friends for Christmas 1968. It was of her husband, dead now for about six months. It had been taken in Oregon just three days before he was killed.

It says, “To Jonathan Schuman. With so much thanks. Ethel.”

A black-and-white framed photo belonging to Jonathan Schuman of Lake Clarke Shores. “This was the last formal photo of Robert F. Kennedy, which is why Ethel sent it out to the staff as a Christmas present in 1968,” he said. (Bruce R. Bennett / The Palm Beach Post)

A black-and-white framed photo belonging to Jonathan Schuman of Lake Clarke Shores. “This was the last formal photo of Robert F. Kennedy, which is why Ethel sent it out to the staff as a Christmas present in 1968,” he said. (Bruce R. Bennett / The Palm Beach Post)

How Acupuncturists Can Be Paid For Evaluation and Management Services

There is a myth going on that an acupuncturist cannot be paid for an initial office visit, an evaluation and management code, either separately or on the same day as an acupuncture service under 97810-14 CPT codes. 

The key to being paid for an evaluation and management service code (E/M) is to understand the key for E/M decisions is in the COMPLEXITY of the medical decisions being made.  Most acupuncturists do not purchase the CPT code book because they only use four CPT codes in addition to the E/M codes.  However, the preamble to the E/M section in the CPT code book goes into a lengthy explanation of how to properly use the evaluation and management codes.

Let’s be candid. Not all patients who see a physician will have the same complexity of signs and symptoms requiring the identical clinical medical decision making.  Depending on the problems presented, some new patients only require medical decision making of moderate complexity; others may present with only a low complexity of medical decision making; and from an audit perspective only a few patients require medical decision making of high complexity.  See CPT codes 99201-99205 for the full explanation.

The Federal Government and private insurers look for physicians to bill in a “bell shaped” curve, a distribution of all E/M codes.  Thus, a patient with an already diagnosed problem of sciatica may only have low complexity or straightforward medical decision making.  Converting all patients into Level Five new patient visits asks for trouble.

So the key to avoiding or prevailing on an audit or chart review is good clinical documentation. Just changing a few words around on medical software is NOT sufficient documentation.

Most state ethics or regulations require documentation which substantially justifies the items and services rendered.  Failure to correctly document your notes can lead to both Federal and State criminal and civil fines or other penalties. See 42 USC 1320(a)et seq. for example.

What is substantial documentation? It comes down to good old fashion SOAP notes.

Follow this example, as a physician: 
A patient comes to you with a history of a triple spinal fusion at C 4/5; 5/6 and 6/7 that is twenty years old; the fusions are stable, but were performed two decades prior. The patient complains (Subjective) to you of pain down his entire right arm, down the neck, across the right shoulder with numbness in half his middle finger, pointer and thumb. You examine the patient and find four (4)  plus muscle spasms down the affected areas coupled with numbness and weakness along the affected anatomy, with specific locations of trigger point pain which the patient responds to upon examination.  Your (Objective) findings were just found by you. Now comes your (Assessment): Is this cervical radiculapathy or is it an ulnar nerve?  Remember those finger complaints.  So you exam the elbow. Tap it and pain radiates into those same three fingers.

This is NOT a Level Five office visit because the nature of presenting symptoms does not have any comorbidity factors, nor a high probability of severe, prolonged functional impairment. (Remember, the patient has a 20 year problem; no new falls or new acute symptoms or recent injury), so this is most likely a Level Four E/M code - medical decision making of moderate complexity.  You did a comprehensive examination and took a detailed history.  Remember, by CPT coding rules, Time is NOT a deciding factor in selecting an appropriate CPT code.

Face-to-face time is an explicit factor done to ASSIST in the selection of an appropriate CPT code.

You formulate a (Treatment) plan. The patient needs physical therapy, perhaps an EMG for the possible carpel tunnel syndrome, and acupuncture. If you render any of those services on the same day as the office visit, you may have to use a coding modifier attached to the E/M code. If this patient had acute new pain into his hand and fingers, and is loosing new functions with that hand, this probably can justify a Level Five visit. See the CPT code book for complex medical decision making discussions.

If you submit this SOAP note to insurers you should be paid for the Level Four office visit.

If you are constantly denied E/M Billings, ask Medicare or private insurance to give you an educational visit.  They will do so and they love the opportunity to actually visit a provider who wants advice on billing instructions.

You can also combine claims and get a Medicare or private insurance reopening of denied claims.  Providers rendering too many Level Five codes face a great risk of audits.  Once the audit begins, they can go back four to six years in your paid claims under some Federal and or State rules. 

The time to hire an attorney is when you see a pattern of denied claims.  An experienced attorney can sometimes speak with utilization managers or medical directors to resolve issues.

How is a provider audited?
That answer is simple. Insurers and Medicare keep track of every time you use a CPT code compared to your peers. Once you exceed screening parameters, you may face an audit. The second way most providers are audited is when the patient calls your office to contest a charge or service rendered.  If your office manager or you ignore that patient inquiry. that patient can become irate and call Medicare or private insurance and thus the audit results.

Providers should read the CPT book for correct E/M Billings and consult their experts before problems arise. This article is not intended as specific legal advice, and all opinions are of this author.

For more in-depth explations of how physicians and acupuncturists can be paid for Evaluation and Management Services, contact Jonathan Schuman at jdschuman34@gmail.com. 

Jonathan D Schuman, Atty
West Palm Beach, FL
Florida Bar
American Health Lawyers Association
Formerly employed by Office of General Counsel, Medicare Attorney
JDSchumanlaw.com

Physical Therapists Warned by Federal Government

On March 24, 2018, the Office of Inspector General (OIG) for Center for Medicare Services (CMS) busted physical therapists for $367 million in Medicare overpayments. Medicare conducted a stratified random sample of 300 claims and found 184 of them did not comply with Medicare requirements.

OIG is establishing mechanisms to better monitor the appropriateness of outpatient Physical Therapy (PT) services and is educating providers about Medicare requirements for submitting outpatient PT claims for reimbursement. Additionally, Medicare is instructing its various contractors to notify individual Physical Therapists of potential overpayments.

Let's get to the elephant in the room.  It is against the law to bill Medicare under any CPT code for physical therapy services such as Dry Needling (DN). More specifically, in States where Dry Needling is legal, there is no CPT code for dry needling. You cannot disguise DN by using the 97140 CPT code, nor by using any other CPT codes.  Doing so will subject you to investigation by the Office of Inspector General Office. The OIG is informed of dry needling fraud in various states in America.  The agency has already busted several PT groups for illegal CPT coding or false documentation when DN is used.

If you took an educational course on dry needling, I tell my clients to ignore any advice those courses may teach about DN CPT coding. Govern yourselves accordingly.

Physician Overpayments: Mandatory Disclosure

I recently received a $66 refund from my physician that was held by his group for five months.  In simple terms, for a hundred and fifty days the doctor was holding onto an overpayment and did not return my insurance "excess" payment coupled with my payment longer than Federal rules allow.

In case you do not know it, physicians have a MANDATORY DUTY to disclose Medicare overpayments to the Federal Governmentwhich are over sixty days old after the date on which the overpayment was identified or the date any cost report is due. An overpayment is identified when a physician or his entity "has determined or should have determined through the exercise of reasonable diligence, that a provider has received an overpayment.”

The statutory language for this is found at 42 C.F.R. 401.305(a)(2).  Failure to report and return an overpayment creates an obligation under the FALSE CLAIMS ACT in the form of triple damages and can lead to EXCLUSION from the Medicare Program.  This applies to Medicare Parts A and B.

Reasonable diligence includes both good faith compliance, and reactive and timely good faith investigation in response to credible information of a potential overpayment. When is your overpayment identified?  Not until the overpayment is quantified.

Physicians are urged to self-report overpayments.  They should establish a mandatory compliance program which looks for overpayments.  A physician should look at their reimbursements and identity overpayments and set up a program for reporting and returning the overpayment. 

Physicians should have in place a compliance plan.  In the event of overpayments or other program irregularities, the Office Of Inspector General may consider the provider’s compliance plan as a mitigating factor in determining program sanctions. For those of you looking for the source of this law look towards section 6402(a) of the Affordable Care Act which requires any person who received  Medicare or Medicaid overpayments to report and return the overpayment to the government and to notify the Government in writing of the reason for the overpayment.

Inpatient vs. Observation Status While in a Hospital

Patients need to know if they are actually admitted into a hospital under Medicare Part A or are they just "in" the hospital facilities but under observation care status. 

Effective August 6, 2016 patients have to be told in writing if their stay is inpatient or observation.  President Obama signed the law one year ago in July 2015 but it's effective date does not apply until August 2016. 

This means that a patient is to be told, within 36 hours, the correct status of their hospital stay.  The patient then has a right to challenge that admission IF he or she did not receive the notice.  No other appeal rights are allowed as of the date this article was posted. 

As a patient you would not know the difference but the status of your admission,  "in-patient" versus "observation" status, is important.  First, after being "admitted" the patient is required to have a three day stay in the hospital past midnight to qualify for Medicare nursing home coverage.  Having a three day observation status does not qualify for a nursing home covered stay under Medicare. 

Second, without Part A benefits extended to the patient, many hospital charges, including certain drugs and biological sciences, may also not be covered.  Most  hospitals prohibit patients from bringing to the hospital prescription drugs.

To change the status, the physician must write "in-patient admission, discharged from observation."  The hospital case review manager should be asked to see if the patient qualifies for Part A in -patient benefits.

Don't be fooled, patients with post hip fractures have been placed in observation status rather than full part A admission benefits.  If a physician believes the patient needs to be in the hospital at least past midnight for two days, the physician should fully admit the patient as an inpatient stay. 

Remember, if a nursing home decides to discharge a patient before the 100 days of Medicare coverage expires, that decision can be appealed to the local quality improvement organization.  Every state has one and they must render a decision within 72 hours, and in most cases within 24 hours.

 

Urology Supervision Requirements

Urologists may be audited for having their patients give a urine specimen BEFORE being seen by the physician.  The theory of these audits is that Medicare medical necessity is being determined in advance of face to face physician or P.A. patient encounters.  By analogy, chiropractors who order X-rays on every patient before seeing them may also be subject to charges of rendering  unnecessary services.

What is a medically necessary item or service is NOT based upon the clinical judgment of the physician but is determined instead by the governments, or by an after-the-fact medical necessity determination made during an investigation or audit.  Over the years doctors have been convicted for implanting cardiac stints,  for doing unnecessary angioplasty, and for rendering not medically necessary diagnostic tests conducted before examining the patient.  

What is more discerning for all physicians is that Medicare does not clearly define what is a Medicare necessary item or test.  Medicare is only specific in saying that a physician attests to rendering reasonable and necessary items and services for the diagnosis or treatment of an illness or injury, or to improve the functioning of a malformed body member.  This is the certification a physician signs when submitting claims for payment.  Physicians also certify that they rendered the services personally of their employee.

Providers who do not document to substantially justify the items and services rendered may be subject to civil or CRIMINAL charges or physicians may be subject to both proceedings at the same time.  With the new ICD-10 coding system ( which increases the number of diagnostic codes from 13,000 to 69,000 possible choices of diagnostic menus), providers must be very precise in their selection of codes and have correct documentation.  Even an honest mistake could lead to civil fraud, which carries substantial penalties.

If you are frightened of Medicare audits and believe that filling your patient population with private insurance patients is better than Medicare, remember that many private insurance companies use Medicare guidelines when they make payment.  The bottom line is, providers must use correct and honest documentation of the patients' subjective complaints, objective findings, and test results accurately recoded in the physicians clinical notes.


The use of computer records alone never is a substitute for individual documentation.  While chiropractors and urologists may see a host of patients with similar complaints this does not obviate the need for individualized record keeping.
 

 

Does Medicare pay for PET scans for dementia?

IDTF and Medicare for Beta Amyloid PET in Dementia and Neurodegenerative Disease

As you know, effective for claims with service dates after 9-27-13, CMS will only allow AB imaging through coverage with evidence of development to develop better treatments or prevention strategies for Alzheimer's Disease or to resolve clinically difficult differential diagnoses. For example, front temporal dementia vs AD where the use of PETAB imaging appears to improve health outcomes when the patient is enrolled in an approved clinical study under CED.

But if you own an IDTF in Florida, the local carrier has been denying claims. This does not facially comport with the national coverage determination. The American College of Radiology needs to clarify this with CMS Baltimore and resolve the issue.

The Difference Between State License Laws and Medicare Billings for Physical Therapy Assistants

You are urged to read 42CFR section 410.26(b)(1)-(7) and CMS Medicare Benefit Policy

Manual Pub 100-4 ch 15,sec 60.1-69.5.

Please remember the incident to provisions of the HCFA CMS 1500 Claims Forms.

Remember that when billing for services under a physical therapy license and NPI in box 31 of the 1500 form you certify:

1. That the items and services are medically necessary and reasonable;

2. The CPT codes used are accurate and documented in your clinical records;

3. That you provided the services or the non licensed PTA provided the items and services under your direct onsite supervision.

Remember, how many patients PT can supervise in one setting depends upon state not federal

rules.

Practice tip: I remember years ago that a Miami Teaching Hospital once had one board certified

anesthesiologist supervise eight surgeries. CMS determined no one physician could supervise

all those services and it recouped money going back four years from that hospital. Apply the

analogy to your PT practice and err on the side of caution.

 

The answer to al, RAC audits, ZONE audits or FI audits is quality of documentation.

Be it Web-PT of any other reputable clinical recorder program nothing beats personalized

individualized PT progress or initial evaluation notes that do not read all the same.

Be AWARE of 97002 CPT codes audits for Re-evaluations; too many cause audits.

In this writer's opinion, CMS never fully funded for the Jimmo settlement agreement and how

much money that costs the program nationwide, even using the G and G-59 and KX modifier.

 

How to Avoid or Prevail on a Physical Therapy Audit

PhysicalTherapy Re-evaluations:   CPT code 97002

Physical therapists should be careful when using the 97002 code.  The office of Inspector General is starting nationwide investigations for those using this code frequently.  The Medicare requirements on when to bill for re-evaluation 97002, Medicare Benefit Policy Manual Chapter 15 Section 220, says a Re-evaluation is providing additional objective information not included in other documentation.  Re-evaluation is separately payable and is PERIODICALLY ADDED and indicated during an episode of care when the professional assessment of a clinician indicates a significant improvement, or decline, or change in the patient's condition or functional status that was not anticipated in the plan of care......Routine weekly assessments of expected progression in accordance with the plan are not payable as re-evaluations.

Assessment for Jimmo purposes, 97002 usage

 "Assessment determines changes in the patient's status since the last visit/treatment day andwhether the planned procedure or service should be modified.  Based on the assessment data the professional may make judgments about progress towards goals and or determine that a more complete evaluation or re-evaluation is indicated.  Routine weekly assessments of expected progression in accordance with the plan are not payable as re-evaluations."  Same citation as above, the Medicare Benefits Policy Manual, chapter 15, section 220. 

How to Contest a Hospital Discharge Order

When a patient is being discharged, often times social workers, serving as discharge case officers tell the physician that their patient no longer meets Medicare criteria for remaining in the hospital.  What this really means is that the patient no longer qualifies for part A benefits and should be discharged into an appropriate lesser or step down facility such as a nursing home or rehab center or simply home.

But the patient has a right for the local quality assurance organization to review the discharge decision by the social worker talking to the MD.

Discharges often happen on days preceding major holidays such as Labor Day, a religious holiday, or Thanksgiving etc., or even an upcoming weekend because the MD or DO does not want to provide patient coverage on weekends.

There are standards which apply when a patient appeals a discharge decision.  By law, the case manager or discharge officer is supposed to assist the patient in contesting a discharge the family thinks is premature and, on the other hand, the discharge officer works for the hospital and may feeling pressured to discharge the patient to please the physician or to protect the hospitals bottom line.

Discharge decisions for Medicare patients should be made using Medicare standards for part A admission criteria.  But many hospitals, such as Tenant, have developed their own discharge criteria.  Medicare part A medical policy supersedes  the "private" medical Policy developed by Tenant, for example.

Sometimes hospitals forget when reviewing a patient's medical chart, that records must be evaluated according to Medicare part A standards and not the standards set by for profit or some not for profit hospitals.

All hospitals really have five types of patients:  Commercial patient pay, private insurance, Federal Medicare, Medicaid and so Affordable Care Act (Obama Care) patients.

Each of these patients have a legal right to have their discharge decisions decided by the appropriate discharge standards.

Hospital medical directors need reminding of the type of patient they are reviewing a contested discharge.

Discharging a patient too early can have serious financial consequences for the hospital by way of penalties and fines.

Hospital social workers and nurses acting as discharge planners need to be very aware of which standards to apply before discharging them.

Family members contesting a discharge should remember to ask the hospital staff which medical policy they used when making discharge or observation status decisions.

Jonathan Schuman
Fla. Bar Health Law subcommittee
AHLA member

How to Avoid or Prevail on a Medicare Audit

Originally published July 2005 in South Florida Hospital News

How to Avoid or Prevail on a Medicare Audit
by Jonathan D. Schuman, Esq.

It Won’t Happen to Me
When I speak to physicians about the possibilities of obtaining preventative advice in order to survive a Medicare audit, the most common response is: "I will not be audited. My clinical records are OK and I do not bill for services not rendered." What the provider means, of course, is the mis-perception that the FBI or the Office of Inspector General (OIG), Department of Health and Human Services, audit providers who never see the patient or they mostly bust providers who are not licensed. The assumption today is that the FBI is so involved in terrorism that it is no longer auditing Medicare providers. Thus physicians can take leeway in the rendition of items and services and that you can render them frequently. This is not true. As discussed later, on the OIG work plan for 2005-2006 is the audit of provider use of the 25 modifier and up-coding of CPT codes by physicians. 

When speaking with an allergist (case study), I ask the physician "Are you in your offices everyday from 12:30 to 2 p.m.? They tell me "No." I then ask the physician if the nurse administers antigen injections to patients during those times and the physician says "yes." 

This is a violation of the Medicare statute. The administration of allergy immunotherapy requires the physician be available and on the premises for direct supervision of the nurse. Direct supervision means in the office suite, not making hospital rounds of your hospital patients. It does not matter if the hospital and the physician’s office building are connected by a walkway. In response to this, the allergist tells me, "Everybody does it. I will not be caught." The physician may not be correct. This type of situational ethics by the physician or office manager does not change the jail time actually spent by the Hawaii allergist and his office manager-wife who were sentenced to jail for this exact violation. 

The defense to this charge of billing for allergy injections without a physician on the premises is that a level one office visit does not require the presence of the physician in his premises. However, this does not apply when rendering allergy injections. The same is true for the provider who is watching his or her cardiology practice and, at the same time, billing out for cardiac rehabilitation. A provider cannot do both. The provider must provide direct supervision of his cardiac rehab patients and not be in a nearby office suite rendering day in and day out evaluation and management codes. 

Thus, one way to avoid a Medicare audit is to be certain that you are complying with the direct supervision rule. 

With new business arrangements such as MD/DC groups, the chiropractor must be directly supervised if taking X-rays, or rendering physical therapy, at the specific request of the fully licensed MD or DO. This is difficult to do if you own multiple clinics and the MD/DO is at one clinic and the DC is at another clinic when services are rendered that require direct supervision. The allergist who prepares multi-dose antigens at one office setting and at the same time bills for office visits at another office setting, is likewise in violation of federal and state laws. (Actual case study) 

Likewise, most private insurance claims for MD/DO services use the Medicare definitions of direct vs. indirect supervision when determining the validity of submitted claims. There is a distinction between billing for services not provided for as claimed and billing for services not rendered. Billing for services not "provided for as claimed" is a violation of the Medicare statute. It occurs when a physician actually renders a service but the service is provided in a manner not fully disclosed to the Government. For example, an internist or allergist rendering IV nutritional therapy to boost an immune system, but only reporting the billing of the IV without disclosing what is contained in the actual drip. Or, billing out for a lower extremity Doppler study but using a non FDA approved medical device. Or, when a provider submits a claim and actually has his staff render the services, but the provider was not on his premises. Thus, unlike an easy fraud case where the provider bills for services never rendered, billing for services not provided for as claimed is a more technical violation of the Medicare statue and regulations, but nevertheless, a complete violation in its own right. The failure to have medical (clinical) records substantiating the medical necessity of the services billed is another example of billing for services, not provided for as claimed. 

What are medically necessary services and where do you find them? 

If Medicare ran the interstate highway system, you would be allowed to drive as fast as is reasonable and necessary under all circumstances, and the Florida Highway patrol would not post that a reasonable and appropriate road speed is 55 or 65 MPH. By further analogy, the Florida Highway Patrol would attempt to promote highway safety by refusing to disclose speed limits. This same analogy applies to your rendition of Medicare services (My thanks to Tim Blanchard, Attorney San Francisco, for the idea of this analogy). How do you know what is a medically necessary item? Where do you find it published? Just as you do not expect to receive a speeding ticket for going 48 in a 65 MPH speed zone, neither do you expect to receive an audit letter for rendering too many evaluation and management codes for your patients if the parameters are not published. If the national Medicare carriers in the various states could be expected to promulgate a state speed limit statute in general terms (for example, "...drive as fast as is reasonable and necessary under the circumstances, subject to interpretation and enforcement by local authorities using undisclosed criteria)," this would be akin to the vagueness of the federal Medicare statute you function under today. 

Do you really know where to find Medicare coverage rules and regulations? You look to statutes, regulations, national coverage decisions, and coverage discussions in part B updates or other carrier or FI publications, local coverage determinations, court cases and OIG advisory opinions. It is not likely you can know or do all of this without an attorney or other expert specializing in this area of law. Remember, your coding consultant has been retained by you to enhance your billings, an attorney is not concerned with your revenue but is ethically bound to be certain that all monies paid you were legally billed and documented. National and local coverage decisions and the appeals process have all changed. Effective now and in January 2006 are new rules and regulations, which affect the way you should be prepared to avoid or prevail on a Medicare or other insurance audit. Remember, once you put your claims in the mail, you are dealing with Federal mail statutes. Physicians need to be aware they may have clout with their State Representatives and Senators but that is not the same for U.S. Congressmen and Senators who all voted on legislation to reduce Medicare fraud and or abuse. If you ask them for intervention, they will not help. The FBI and Office of Inspector General are highly trained and more experienced at investigating Medicare and other insurance fraud, as is the Federal Health Care Strike Task Force, situated in Philadelphia, Pa. 

Inspector General 2005 work plan

If you want to know what the government will focus on in 2005, its work plan was recently published. Among the list of "flags" and audit attention-getters is the proper use of the CPT modifier 25. That modifier requires that the physician must document that on the day a procedure or service was performed, the patient also had a significant, separately identifiable evaluation and management service above and beyond the usual post operative care or pre operative care associated with the procedure that was performed. (AMA holds a copyright to the "CPT" codes. CPT is a registered and protected symbol.) 

A physician can correctly comply with the 25 documentation requirement by listing the symptom, complaint or condition for which an evaluation and management of an office visit code was needed. For example in your dermatology practice, on the same day as a scheduled visit for removal of a basil cell carcinoma, the patient complains of a sore throat, has a temperature of 101, and feels nauseous and the dermatologist treats those complaints with an appropriate level office examination for a UTI (upper respiratory infection) and prescribes appropriate medication. In this example, the 25 modifier would be appropriate if the clinical work-up was documented. 

In 2005, the government will be auditing physicians for overuse of the 25 modifier not supported by required documentation. According to Lewis Morris, Chief Counsel to the Inspector General DHHS, his office is currently looking at a criminal audit of oncologists for over use of the 25 modifier. If you are an oncologist reading this article, I suggest that you review your office notes for patients you have billed using the 25 modifier and be sure that your office documentation is correct. Remember, the government typically goes back four years in paid claims when it attempts overpayment recovery actions; and for intentional fraud, in effect, there may be no limit. 

In 2005, the OIG physicians work plan also includes investigations into relationships between providers and billing companies, (do you pay a fixed rate or a percentage of billed service?), focused medical review on cardiology and echo-cardiology services, an upgraded look into correct CPT coding, and whether ALL modifiers are being used correctly or for a purpose of getting around the national coding initiative. 

How to appeal an audit

If audited, the new Medicare appeals are as follows: A provider/supplier has 120 days to appeal an initial determination and within 60 days, you should expect a decision. Second level appeals: if you do not prevail at the review of the initial determination, you have 180 days to file a reconsideration with the Qualified Independent Contractors (which replaces the carrier fair hearing effective for appeals of initial determination made on or after October 2, 2002). If you do not prevail at this level, you finally reach an administrative law judge at the third level. 

You have 60 days to file an adverse decision by the QIC. The fourth level is directly to the Department Appeals Board (again within 60 days of an adverse QIC decision that must be rendered within 60 days). Last, is an appeal to federal court. For federal court, the amount in dispute must be $1,000 or more; for appeals after the second level, the dollar amount must be $100 or more and you can combine claims to make that amount. 

I urge and warn all physicians to be careful before paying an attorney a large sum of money to obtain an injunction to stop the appeals process by declaring medical policy, local or national, invalid. Less than 5% of all injunctions against the DHHS prevail. It is elementary law that providers must exhaust administrative remedies before going to federal court. I suggest any provider being told to first attempt an injunction as a method of stopping an audit to obtain a second legal opinion. I also urge all clients that once the OIG is involved do not wait for it to render an opinion to the U.S. Attorney. During the time the OIG is investigating your case, have an attorney remain actively engaged in the case. I recently had a client who five years ago hired a highly regarded criminal attorney. The lawyer allowed the OIG to speak with provider patients, talk to the physicians office staff, obtain internal physician information, and only into the fifth year was he informed that "your client is facing a criminal indictment." Five years ago that client did not want to spend $3,000 a month for three months to end the case; now she faces legal fees of over $100,000, adverse publicity, and potential loss of license. Be certain that you obtain a clearance letter from the Government, only then do you know the case is closed. 

First defense to an audit

Your best defense to an allegation of rendering unnecessary medical services or rendering them too frequently (not reasonable), is the quality of your clinical records. But the government will not tell you how to document your records and what is approved documentation If you are a rheumatologist, how carefully do you document the medical necessity of your routine depro medrol marcaine injection to the shoulder? "Pt complains of pain in right shoulder, cortisone injection given,". Will that suffice as an acceptable clinical record if audited? 

Second defense to an audit

You can challenge the validity of the statistical sample that led to the audit. An audit started by a statistical sampling of your practice must be done according to due process requirements. This simply means that the contractor has correctly followed the CMS guidelines for drawing a correct statistical sample of a providers practice. 

Third defense to an audit

Challenge the way local coverage determinations were made. CMS has guidelines that the "contractor" must follow, often times they do not. Let me give an illustration of a win I was lucky to obtain for a pro bono client. In the mid 90s, IDET orthopedic surgery was denied as being experimental and investigational. 

When I did discovery against the Florida contractor at that time, I found out that in another State the same contractor had written a letter to an orthopedic surgeon saying this surgery was reasonable and necessary and not experimental as the Fla. Carrier had published. The Federal Administrative law judge gave me the win in a written decision. The message here is two fold: first, trust with some hesitation local medical policy, and second, do not give up a fight for reimbursement for a procedure you perform often and hopefully for the next twenty years of your practice without making sure that the local medical policy was correctly adopted, and the carrier has not written contradictory letters about the item or procedure in dispute. If a physician accepts a denial for a procedure performed every week, and you expect to bill out that code for the rest of your professional surgical/medical career, fight the initial denial. It is not worth only the money denied, but it is potentially worth a win for every time you bill out that procedure or office visit. 

Advanced beneficiary notices
Fourth defense to an audit

Do you have a copy of an Advanced Beneficiary Notice. (ABN). The purpose of an ABN is to be certain that the beneficiary is notified before he or she receives a service that Medicare will not pay for this particular item or service. It allows beneficiaries to make an informed decision whether or not to receive your care with knowledge that they may have to pay out of pocket for the item or service. The typical reason for using an ABN is when the service may not be covered because it is not medically reasonable or necessary or it is always excluded by Medicare. While ABNs must be reported to the CMS on your claims form, remember, that an item or service never covered by Medicare in theory does not have to be reported to Medicare. Thus a plastic surgeon would not have to report a facelift to the Medicare program when done for aesthetic purposes only. If you told the Medicare beneficiary that his or her B12 injections or IV nutritional drips used by certain environmental allergists are not covered, if audited, the advanced beneficiary notice in your files saves you from returning that money to the government. 

Who should use advance beneficiary notices 

If a provider knew or should have known by prior denials, receipt of CMS/HCFA notices, Fla. Part B updates or other local contractor bulletins, you have a duty to use ABNs. A provider is presumed to know constructively, what is or is not a covered item or service or its frequency limitations; where as a beneficiary is presumed not to know. While new rules do not require beneficiary signatures, the best evidence is to obtain those signatures on an ABN each and every time you see the patient. An ABN cannot be given in an emergency (EMTALA) situation, or if the beneficiary is perceived to be in duress 

Remember, that generic ABNs are not acceptable, nor are blank ABNs. You cannot say that you "never know whether Medicare will deny." 

Make sure that your office staff knows the coding that goes with ABNs . GA modifier - Likely to deny as not reasonable and/or necessary, or an ABN on file; GZ modifier - Medicare is likely to deny as not reasonable and necessary, no ABN on file; and GY - the item or service is excluded by statute or not a covered Medicare benefit. A provider can bill full charges with a valid ABN. 

There are two major benefits to using ABNs. It protects your appeal rights, and you avoid loss of money for denied claims. If you use an ABN to shift liability for claims that are partially bundled, as it is illegal to use an ABN to cover up a service the provider knows is free, such as double billing for bundled services. This is another example of an ABN: a 67-year-old male received a screening PSA test in 2004 that was normal, but the patient had prior digital rectal exams in 1999 or 2000 but remains concerned but has not had clinical symptoms. You see the patient now and perform a digital exam and a screening PSA and the patient continues to report no clinical symptoms and you find none on your examination. Example two: your out of state snow bird had a routine physical in June and had no complaints. He sees you now and says, "I am in Boca for the winter. I just want to make sure that everything is OK." This is a non-covered item or service. The patient is not seeing you for any complaints. You need to fill out an ABN. I am stunned by how many Florida physicians dictate in December, "pt. lives in NY 9 months a year, presents today for a physical to make sure his blood and cardiac enzymes are normal." There is no basis for a covered Medicare service in June. He/she previously received a yearly screening physical allowed by his HMO, PPO, or Medicare, if applicable. 

ABNs used illegally 

I recently heard of a business arrangement whereby a physician deliberately renders covered and non-covered services on the same day, and plans on charging a fixed rate of $70 for the non-covered services by having the patients sign an ABN notice with the GZ modifier. The physician told me, "some of my colleagues are doing this and charging $120," per visit. "The OIG won’t go after me," he said. " I am just small time." 

I spoke to this provider’s office staff. They have NEVER used ABNs, itself unusual in an office practice; additionally, this provider is a non-participating physician. There is an erroneous assumption that non-participating physicians are not audited by the government because there is no money the government can recoup from them. In non par practices, the patients receive the checks and not the doctor. This does not stop the government from filing false claims actions against the provider. If the non par provider does not have ABNs, the government can recoup all money paid the doctor in addition to filing any ancillary actions. 

The government also has the power to suspend your provider number, an act that will trigger the state licensing agency to take away your license. Furthermore, the Government can ask the IRS to attach your assets. Non-participating physicians should remember they still caused a bill to be submitted to Medicare (who actually receives the payment does not matter). 

Physicians should not confuse dropping out of Medicare and charging what you want, with being a non participating physician and still having to comply with all Medicare coding, coverage and documentation requirements. For example, the OIG is on the lookout for non par providers using modifiers to get around national coding initiatives, or using modifiers as the sole basis for issuing ABN notices to their patients. Charging patients for otherwise bundled services is illegal and potentially fraud. An ABN is not a defense for illegal billings. If an item or service should be bundled, you cannot get around the bundling provisions by issuing an ABN. 

Denying claims based on your clinical records

After more than 20 years of handling provider audits in more than 37 states, I remain stunned how often a physician receives a letter asking for 18 charts and the doctor sends them off without consulting a lawyer first. The doctor does not know that the government may extrapolate the results of those 18 charts to the universe of his or her patient population in a post payment review. All sampling has not been discontinued as many providers believe. There are five ways the government can deny your claim based on your submitted medical records. First, the medical services you render may not be necessary. Second, the items or services are medically necessary but you have failed to submit sufficient documentation to support the necessity for the items and services you billed. Third, you have provided sufficient documentation and the items and services you have rendered are necessary, but you have rendered them unreasonably. That is, too many physical therapy modalities, or too many office visits, or x-rays procedures, or blood studies, are claimed. They were rendered but in an unreasonable (too frequent) manner. Fourth, the items and services you have rendered are experimental, or not provided for as claimed (lack of supervision, no coverage for EPD if you are an environmental allergists and billed out as immunotherapy). Fifth, you have rendered services that are not within the scope of your license, i.e., a physicians assistant writing admission orders alone; a chiropractor drawing blood and billing it to Medicare as venipuncture; a nurse follows office protocol and alone orders x-rays for patients presenting with certain complaints. The doctor is not in the office and taking x-rays saves physician time. 

Have you listed your correct specialty with Medicare? 

Every item and service you render is marked in your Medicare Part B Provider Profile Analysis. Every CPT code you use is profiled and compared to your sub-specialty peers. This is why it is important that you list your specialty correctly with Medicare Are you an allergist rendering many 95115 codes; or is your practice really that of ENT rendering many procedure codes consistent with using a diagnosis of ear infections and ear lavage? How you list your specialty with the government determines which peer group you are checked against for utilization screens and frequency parameters. By comparing items and services by specific sub-specialty groups, the profiles the Government takes into account large vs.small groups. It is the number of items and services per patient per year that you render that is tracked by the DHHS. Thus, some audits start when your use of a specific CPT code falls out and off of the allowed "aberrance rate" for that code. Alternatively, an audit may start when your use of the code is simply the highest one or two percent of all providers submitting that code, and the Medicare contractor is REQUIRED to audit you as a condition of its contract with the CMS. 

I urge physicians not to ask for a copy of their provider profile analysis unless they have first consulted an attorney. This profile analysis is a 10-page computer-generated document. It is not the line chart graph that the Fla. carrier has issued to Fla. physicians. This Medicare Part B Provider Profile Analysis is an excellent tool for seeing how your practice compares to your peers. It is also the best document the government has to illustrate educational contact and warning. If you see that you have billed out two views of each hip including the pelvic view (actual case study) 400 times a year and your next closest peer has used that CPT code only 289 times, you can learn and see (by the print out of CPT codes), how your medical practice is similar or different from your peers. 

All audits should have a component to them that includes educational contact and warning, (ECW); it is a requirement of all Medicare carriers imposed upon them by CMS. By this provision, I urge physicians and suppliers not to be frightened to ask a Medical Director or Utilization Review nurse to "scope" your practice and have a meeting with you so you learn how your use of the CPT codes compares to your peers. In more than 20 years of practice, I have never had a carrier start an audit after the physician has asked for a copy of their provider profile analysis or for an ECW meeting. To the contrary, I find that many clients are frightened to ask for a such a meeting. 

Have your patients fill out subjective history forms each visit as a way of avoiding or prevailing on an insurance or Medicare audit. A provider should use subjective history forms. Why should the CMS believe you? Why should an FBI agent look at the number of x-rays you take and believe they were all necessary? One way to help make the case of medical necessity is to have your patients fill out a subjective history form each visit. This pits the government vis-à-vis its own insured. By completing a subjective history form, the patient is stating their own medical necessity for the visit. Subjective complaints today: Your patients are in the waiting room - have them update not only their financial and personal information (home address, telephone number, and insurance identifier). There is a presumption that patients do not go to physician offices without a medical reason for the visit Have the patient support your clinical records with a statement in their own words, "What is your chief complaint today? You can also add a list of subjective symptoms the patients claim they have today by posting the most frequent complaints on a patient follow up form. If audited, this pits the government against their own insured 

Conclusion

Providers who want to know more about the tendency and intent of the Inspector General and its contractors should review the OIG full 2005 work plan. The information contained in this article are those of the author alone and do not reflect those of this publication. Physicians are urged not to practice law, just as I urge lawyers not to practice medicine. If you receive a letter from the Government or a host of denials for items and services you render, you need to contest these governmental actions. More than 60 percent are reversed upon appeal. The scope of any audit should be commensurate with the alleged harm. Physicians should not rely upon their own analysis of legal issues. Your PI or transactional attorney may not have "in the trench experience" in avoiding or prevailing on a Medicare or other insurance audit. What is a medically necessary item or service is a legal decision, not a medical one. An attorney who has met with medical directors and knows the internal policy of the carrier, is best able to tell you if your clinical records suffice, if audited. The most difficult task of many lawyers who handle Medicare audits or overpayment cases is to convince the physician to accept preventative advice. 

A tax lawyer or CPA can tell you how to better document business and lunch meetings from personal business. An attorney with CMS experience can tell you which five words you need to add to your clinical records to support the medical necessity and reasonableness of the services you render; an on-site audit can inform you how to correctly use your ABNs; a review of your EOBs can inform you of lost revenue; and by examining paid claims the attorney can tell the physician how to beef up clinical documentation for those claims. 

Most important, by having an independent audit of your practice, your office manager is freed up to disclose business practices that you may have been deaf to hearing. It is not uncommon that during on-site audits the office manager suddenly remembers old letters CMS has sent you pertaining to certain CPT codes. The office manger recalls which patients threatened to go to CMS to make complaints about your practice. Suddenly the office manager produces a list of denied services for which you continue to bill (this needs resolution); or the office manager knows of an aberrant office practice they are afraid to discuss with you, but they readily tell the lawyer. 

The opinions in this article are those of mine alone, and not the editor or publisher of this publication. Physicians are urged to contact their own lawyers and not rely upon this article or any other on the correct way to run your practice. Obtain firsthand knowledge on the status of your medical practice. Once in your professional career obtain an internal base line audit for your use only. The goal is not to obtain reimbursement, but to obtain reimbursement that is not recouped four to seven years after being paid. Taking a class in one state and applying those facts to billing and coding in Florida is not wise. Listening to a billing consultant or colleague discussing reimbursement and coding rules for Maryland, is not useful when billing in Florida. 

Medicare is not a uniform national program, but is more than 50 different programs each with different local coverage, coding, frequency, and documentation requirements. You are charged with knowing local and national Medicare medical policy and how to comply with all Medicare requirements. Every day you drive on a Medicare interstate highway system that does not always list its speed limits; yet, you are subject to a "ticket" (audit) and possible arrest (recovery of paid claims) four years AFTER you have arrived at your destination and been paid. Govern yourselves accordingly.

What is a Medicare Medically Necessary Service?

Urologists may be audited for having their patients give a urine specimen BEFORE being seen by the physician.  The theory of these audits is that Medicare medical necessity is being determined in advance of face to face physician or P.A. patient encounters.

By analogy, chiropractors who order X-rays on every patient before seeing them may also be subject to charges of renderingunnecessary services.

What is a medically necessary item or service is NOT based upon the clinical judgment of the physician but is determined instead by the governments after the fact medical necessity determination made during an investigation or audit.

Over the years doctors have been convicted for implanting cardiac stints,  for doing unnecessary angioplasty, and for rendering not medically necessary diagnostic tests conducted before examining the patient.

What is more alarming for all physicians is that Medicare does not clearly define what is a Medicare necessary item or test.  Medicare is only specific in saying that a physician attests to rendering reasonable and necessary items and services for the diagnosis or treatment of an illness or injury; or to improve the functioning of a malformed body member.  This is the certification a physician signs when submitting claims for payment.

Providers who do not document to substantially justify the items and services rendered may be subject to civil or CRIMINAL charges or physicians may be subject to both proceedings at the same time.

With the new ICD-10 coding system (which increases the number of diagnostic codes from 13,000 to 69,000 possible choices of diagnostic menus), providers must be very precise in their selection of codes and have correct documentation.  Even an honest mistake could lead to civil fraud which carries substantial penalties.

JDSchuman

Patient Discharge Rights

When a patient is being discharged, often times social workers serving as discharge case officers tell the physician that their patient no longer meets Medicare criteria for remaining in the hospital.  What this really means is that the patient no longer qualifies for part A benefits and should be discharged into an appropriate lesser or step down facility such as a nursing home or rehab center or simply home.

But the patient has a right for the local quality assurance organization to review the discharge decision by the social worker talking to the MD.

Discharges often happen on days preceding major holidays such as Labor Day, a religious holiday, or Thanksgiving etc., or even an upcoming weekend because the MD or DO does not want to provide patient coverage on weekends.

There are standards which apply when a patient appeals a discharge decision.  By law the case manager or discharge officer is supposed to assist the patient in contesting a discharge the family thinks is premature and, on the other hand, the discharge officer works for the hospital and may feeling pressured to discharge the patient to please the physician or to protect the hospitals bottom line.

Discharge decisions for Medicare patients should be made using Medicare standards for part A admission criteria.  But many hospitals, such as Tenant, have developed their own discharge criteria.  Medicare part A medical policy supersedes  the "private" medical Policy developed by Tenant, for example.

Sometimes hospitals forget when reviewing a patient's medical chart, that records must be evaluated according to Medicare part A standards and not the standards set by for profit or some not for profit hospitals.

All hospitals really have five types of patients:  Commercial patient pay, private insurance, Federal Medicare, Medicaid and so Affordable Care Act (Obama Care) patients.

Each of these patients have a legal right to have their discharge decisions decided by the appropriate discharge standards.

Hospital medical directors need reminding of the type of patient they are reviewing a contested discharge.

Discharging a patient too early can have serious financial consequences for the hospital by way of penalties and fines.

Hospital social workers and nurses acting as discharge planners need to be very aware of which standards to apply before discharging them.

Family members contesting a discharge should remember to ask the hospital staff which medical policy they used when making discharge or observation status decisions.

Jonathan Schuman
Fla. Bar Health Law subcommittee
AHLA member