As all providers know, healthcare is one of the most heavily regulated industries in the United States. Unfortunately, failure to abide by these regulations may have far more wide-reaching impacts on a physician and a physician’s practice than just administrative penalties and fees. Insurance companies and plaintiffs’ attorneys have been leveraging regulations to seek financial recovery and file suits for years. However, a disturbing new trend is emerging. Whereas historically insurance companies and plaintiffs’ attorneys looked to federal and state laws and regulations, now there is an increased focus on regulations from New Jersey’s medical licensing board.
One such regulation in New Jersey prohibits a physician from directing “the administration by a certified medical assistant of an injection which includes any of the following: any substance related to allergenic testing or treatment.” N.J.A.C. 13:35-6.5-5d. Although this is simply a New Jersey State Board of Medical Examiners (“Board”) licensing regulation, many payers have used this rule to justify the non-payment or recoupment of claims paid to medical practices for allergy services alleged to have been administered by a Certified Medical Assistant (“CMA”). When an insurance company audits a provider’s allergy practices for a potential violating of this rule, they will rely on this Board regulation and use it to not only recoup the dates of services audited but also to generate an extrapolated overpayment demand that can be in the high six-figures.
Similarly, many physicians have run into trouble with the Board’s rules regarding billing patients and patients’ representatives for the reproduction of medical records. N.JA.C. 13:35-6.5(4)(i) states, “[t]he reproduction of records, which shall be no greater than $1.00 per page or $100.00 for the entire record, whichever is less. (If the record requested is less than 10 pages, the licensee may charge up to $10.00 to cover postage and the miscellaneous costs associated with retrieval of the record.)” While most physicians abide by the $1.00/page rule, many charge in excess of $100.00 or apply a flat $10.00 search fee to all records requests. Both practices are violative of the rule, and if applied to an entire class of people, can open the physician up to a class action lawsuit under the New Jersey Consumer Fraud Act, which allows the plaintiff to collect both treble damages and attorney’s fees.
While these are just two examples of recent trends, Board regulations are extensive, and physicians must be well-versed in them. Physicians must now, more than ever, understand the legal aspect of their business practices. Non-compliance with laws and regulation – regardless of intent – can lead to serious financial exposure, or worse.
How Frier Levitt Can Help
If your practice is approached by a payor or plaintiffs’ counsel with demands based on the violation of Board regulations, contact Frier Levitt’s team of lawyers who specialize in defending allegations of violations of Board regulations. Frier Levitt has multiple attorneys experienced with defending audits and class action lawsuits. If you receive an overpayment demand, audit request, or Board complaint, call Frier Levitt today.
