Legal: Attorneys brace for fallout

Monday, March 21, 2016

YARMOUTH, Maine – With more scrutiny than ever from Medicare for popular back, knee and ankle braces, some HME providers are getting a little too creative to capture business in this market, industry attorneys fear.

Some providers who are trying to improve their chances of obtaining and qualifying Medicare beneficiaries for braces are setting up questionable arrangements with companies that provide leads and companies that provide remote physician services, says healthcare attorney Jeff Baird, chairman of the Health Care Group at Brown & Fortunato in Amarillo, Texas.

“We’re seeing everyone and their mother looking to put these types of arrangements together,” he said. 

What makes arrangements between HME providers and lead generation and telehealth companies problematic is how the telehealth companies get paid, Baird says. In a properly structured arrangement, the telehealth companies are management companies, not medical practices or healthcare providers; and they’re paid by group health plans, self-funded employers and patients, he said.

HME providers can’t directly pay telehealth companies for orders, or indirectly through lead generation companies, Baird says.

“We’re seeing some attorneys approve these types of arrangements, which is nuts,” he said. “It’s only a matter of time before we see a whistleblower lawsuit or the Department of Justice intervene.”

Even if providers are steering clear of arrangements with lead generation and telehealth companies, they’re still under a microscope, which makes billing Medicare for braces increasingly difficult, says Neil Caesar, president of the Health Law Center in Greenville, S.C.  

“We’ve seen it affect turnaround time, or the amount of supplementary records that they want to see,” he said.

Ultimately, braces could be Medicare’s next “code killer,” like power wheelchairs and diabetic testing strips before it, Baird says.

“This party is starting to come to a halt,” he said.