Edward L. Vishnevetsky, an associate at Munsch Hardt, focuses on health law and commercial litigation. He routinely argues before state and federal courts in areas of health law, employment law, and complex commercial litigation, and also represents various healthcare entities. Vishnevetsky currently sits on the executive board of the Texas Alliance of Home Care Suppliers and serves as the organization’s outside general counsel.

Can Insurance Carriers Perform Audits The Same Way Medicare Does?

Within the last year, I have seen a significant increase in the number of insurance carriers (“insurers”) that perform prepayment and post-payment audits on providers’ claims. Moreover, many of these insurers have taken a page out of Medicare’s book by performing statistical extrapolations, which results in astronomical overpayments. Full Story

Can A HIPAA Violation Give Rise to a Private Cause of Action?

Enacted in 1996, the Health Insurance Portability and Accountability Act (HIPAA) requires covered entities to maintain the confidentiality of patients’ medical records and other protected health information. Individuals do not have a private right to sue covered entities for violations of HIPAA. However, individuals have found a way to circumvent this preclusion by filing causes of action in state courts. Full Story

CMS Has Egg on Its Face

Over the past several years, there has been a noticeable change in how the Medicare administrative appeals process has changed. Increasingly, Medicare contractors are unilaterally interpreting vague provisions in Medicare manuals and policies to support prepayment and post-payment audit claim denials. Subsequently, administrative law judges and the Medicare Appeals Council are deferring to the contractors’ interpretations, and upholding the payment denials. Most providers do not appeal the denials to federal court, because they are penniless from a prolonged recoupment, which may exceed two years before a final administrative decision is reached. Luckily, one provider decided to pursue their appeal to… Full Story

Changes to Program Integrity Manual May Benefit Medicare Providers

These days, if you are a Medicare provider, the phrase “lack of medical necessity,” most likely, makes you twitch with anxiety. That is because, for the past five years, Medicare auditing contractors (i.e., ZPIC, MAC, and RAC) have denied more Medicare Parts A and B claims for “lack of medical necessity” than for any other reason, thus costing providers hundreds of millions of dollars in free services and products. Importantly, claims denied for “lack of medical necessity” are rarely deemed fraudulent, but instead considered “technical violations.” The reason more claims are denied for “lack of medical necessity” than anything else… Full Story

OIG Report Poses Potential Problems For Medicare Providers

On Nov. 14, 2012, the Department of Health and Human Services’ Office of the Inspector General released a report entitled “Improvements Are Needed at the Administrative Law Judge (ALJ) Level of Medicare Appeals” (OEI 02-10-00340).  The report, which addresses changes made to the Medicare appeals system in 2005, has significant implications for all Medicare providers that may use the appellate system to combat alleged overpayments, especially considering the recent proliferation of Medicare audits (i.e. ZPIC, RAC). The Medicare appeals system is comprised of four basic levels.  Level 1 is decided by a regional Medicare Administrative Contractor.  Level 2 is decided… Full Story