HIPAA Expert Witness Michael Arrigo provides the following Healthcare Policy Update: CMS Suspends Payment on Certain ICD-10 Claims
CMS Systems Not Ready for All NCDs and LCDs
We may be seeing one of the first latent indicators of the financial impact of ICD-10 with today’s announcement. CMS stated in a November 20th 2015 email that its systems are being updated to accommodate ICD-10 NCDs and LCDs. This also resulted in “temporary” suspensions of payments for LCDs. CMS states, “Claims affected by these edits were temporarily suspended.”
Despite promises from CMS that payments would be processed even if there were deficiencies in how the claims are submitted for Medicare Part B providers, this may be the first significant area where CMS is unable to fulfill that commitment. CMS stated that a permanent fix won’t be ready for about 40 days. According to an FAQ from CMS published July 6, 2015 and updated September 22, 2015:
National Coverage Determinations (NCD) and Local Coverage Determinations (LCD) often indicate specific diagnosis codes are required. Does the recent Guidance mean the published NCDs and LCDs will be changed to include families of codes rather than specific
No. As stated in the CMS’ Guidance, for 12 months after ICD-10 implementation, Medicare review contractors will not deny physician or other practitioner claims billed under the Part B physician fee schedule through either automated medical review or complex medical record review based solely on the specificity of the ICD-10 diagnosis code as long as the physician/practitioner used a valid code from the right family of codes. The Medicare review contractors include the Medicare Administrative Contractors, the Recovery Auditors, the Zone Program Integrity Contractors, and the Supplemental Medical Review Contractor.”
CMS Systems Impacted
The U.S. Centers for Medicare and Medicaid (CMS) published clarifications regarding National Coverage Determination (NCD) and Local Coverage Determination (LCD) policies. Medicare national and local coverage policies are translated for the new medical coding standard, International Classification of Diseases, version 10 (ICD-10), and to receive payment, providers must bill using ICD-10 codes for services rendered on or after October 1, 2015.
This impacts Medicare Coverage Database (MCD) which contains all NCDs and LCDs, local articles, and proposed NCD decisions. The database also includes several other types of National Coverage policy related documents, including National Coverage Analyses (NCAs), Coding Analyses for Labs (CALs), Medicare Evidence Development & Coverage Advisory Committee (MEDCAC) proceedings, and Medicare coverage guidance documents. The deficiency was reported by Medicare Administrative Contractors.
National Coverage Determinations Require Interim Fix to CMS Systems
CMS stated, “Interim solutions are currently in place to permit appropriate claims payment. In most cases, claims were automatically reprocessed, and no action is required. A permanent systems update will be in place by January 4, 2016.” Information about specific claim types and the reprocessing of claims is available on your Medicare Administrative Contractor (MAC) website.
Local Coverage Determinations and Claim Suspensions
CMS explained in the email that, “… after implementation, some Medicare Administrative Contractors (MACs) identified LCDs that needed further refinements for ICD-10 diagnosis codes. Claims affected by these edits were temporarily suspended and automatically reprocessed. Curiously, CMS stated, “No action is required. Questions about specific LCDs should be directed to the appropriate MAC.”
Expected Legal and Fiscal Impacts to Health Care Providers
Health care providers should have heeded early industry advice to take out a line of credit as a hedge against revenue disruption. Quasi government entities such as MACs who are fiscal intermediaries as well as Medicare Advantage plans that have a fiduciary duty to manage funds on behalf of the U.S. Government’s HHS and CMS departments will have to evaluate their payment policies. This potentially impacts hundreds of $millions of health care claims.
- Bickham v. Coca Cola Refreshments USA, Inc. – United States District Court – Southern District of New York – November 18th, 2015 – This case involves a negligence claim against Coca Cola related to an object allegedly swallowed during the ingestion of a soft drink. The plaintiff hired Darrel Suderman, Ph.D., a food expert witness. The defendant filed a motion to exclude this testimony and the court granted the motion.
- Aide Sepulveda Torres v. Carnival Corporation – United States Court of Appeals for the Eleventh Circuit – November 20th, 2015 – This is an alleged negligence action stemming from a fall on a cruise ship. The plaintiff sued the defendant for negligence in Florida Southern District Court and hired Kevin Rider, a human-factors engineering expert witness. The defense filed a motion to exclude Mr. Rider’s testimony, which was granted, along with summart judgment in favor of the defendant. The plaintiff appealed to this court and the appeals court affirmed the lower court opinion.
- Vaughn v. Safeway, Inc. – United States District Court – District of Colorado – November 20th, 2015 – This is an employment discrimination case. The plaintiff has sued his employer stating that they have discriminated against him in violation of the American with Disabilities Act (ADA). In order to assist in their case, the plaintiff has hired Rita Laitres a human resources expert witness, which was subsequently challenged by the defendant. They state that her opinion is not reliable, she is not qualified, and her testimony will not assist the trier of fact. The court denied the motion to exclude.
- Bio Med Technologies Corporation et al v. ELA Medical, Inc. – United States District Court – District of Colorado – November 19th, 2015 – In this breach of contract (as well as other actions) case, the plaintiff sued the defendant for not satisfying an Independent Sales Representative Agreement. The defendant filed a motion to exclude the testimony of Jon Karraker, a forensic accounting expert witness. The defendants motion was denied.
- Campo v. Sternberger – Court of Appeal of Louisiana – Fifth Circuit – November 19th, 2015 – This case involves damage to a newly constructed home. The trial court awarded a judgment against the defendant builder. The builder subsequently appealed the judgment as well as the admittance of expert witness Michael Gurtler, a structural engineering expert witnesses. The court affirmed the admittance of the expert witness testimony.
- Moore v. Cottrell, Inc. – Court of Appeals of Georgia – November 20th, 2015 – This is a products liability case involving a car hauler. In the trial court, the defendant filed a motion to exclude the testimony of Dr. Harvey Cohen, an accident reconstruction & safety expert witness, which the trial court granted. They also appeal the exclusion of testimony of John S. Morse, Ph.D., P.E. (engineering expert witness). The appeals court affirmed both ruling from the lower court.
- Bruska v. Bunting Bearings – United States District Court – District of Minnesota – November 17th, 2015 – In this products liability case involving automobile brakes, the defendants’ challenge the expert witness testimony of James Brusso, a metallurgy expert witnesses. They argue that his testimony is unreliable, over speculative and not based on reliable data. The court disagreed and denied the motion.
- Nester et al v. Textron, Inc. et al – United States District Court – Western District of Texas – November 17th, 2015 – This is a personal injury/products liability case involving a Workhorse cart. The plaintiffs claim that the vehicle malfunctioned and caused injury to Ms. Nester. Expert witnesses were called by both parties. The defendants have moved to exclude thetestimony of Dr. William Vigilante (Human Factors Engineering Expert Witness), Herbert Newbold (Mechanical Engineering Expert Witness), and Dr. Lara McKenzie (personal injury expert witness). Plaintiffs have moved to exclude the evidence of Dr. David Bizzak (Mechanical Engineering Expert Witness). The court opined as follows: Denied in part and granted in part the motion to exclude the testimonies of Dr. Lara McKenzie, Herbert Newbold, and Dr. David Bizzak. The court denied in full the motion to exclude the testimony of Dr. William Vigilante.
- Scottsdale Ins. Co. v. Deere & Co – United States District Court – District of Kansas – November 16th, 2015 – This case involves a combine that caught fire while harvesting wheat. Scottsdale Insurance Company, the subrogee for the owners of the combine filed a lawsuit against John Deere, the maker of the combine. Scottsdale filed a motion to exclude the expert witness testimony of Michael Senneff and Josh Oltrogge, both fire expert witnesses. The court denied in part and granted the motion in part.
In this title insurance dispute involving the construction of a ski resort in Idaho, the plaintiffs challenged the expert witness testimony of two experts. The court granted one motion to exclude in part and denied the other in full.
- Brooks, et al. v. Ripley, Union, Lewis, Huntington School District, et al. – United States District Court – Southern District of Ohio – November 10th, 2015 – In this alleged racial discrimination case at a school, the defendants’ filed a motion to exclude the expert witness testimony of Dr. Edward Dragan, an education & schools expert witness based on unreliability and relevancy. The court denied the motion to exclude on all counts except that Dr. Dragan could not opine that the defendants were “deliberately indifferent” or “severely indifferent” to plaintiff’s racial harassment.
- Roberts v. General Motors LLC – United States District Court – Eastern District of Missouri – November 10th, 2015 – This is a motor vehicle design defect case. Both parties have hired expert witnesses and both have filed motions to exclude the testimony of those witnesses. The defendant, General Motors, has filed a motion to exclude the testimony of Larry Sicher (mechanical engineering expert witness) and Joseph Burton, M.D (biomechanics expert witness). The plaintiff has filed a motion to exclude the testimony of Jeya Padmanaban (statistics expert witness). The court denied the motion to exclude the expert witness testimony of Mr. Sicher and Dr. Burton and granted the motion to exclude the expert witness testimony of Ms. Padmanaban.
- Alsip v. Wal-Mart Stores East, LP et al – United Sates District Court – Southern District of Alabama – November 12th, 2015 – This case involves a slip & fall out side of a Walmart. The plaintiff hired Russell Kendzior (slip, trip & fall expert witness) to opine on the traction of the surface. The defendant filed a motion to exclude this testimony based on reliability and relevancy. The court granted the motion to exclude.
- Hillerich & Bradsby Co. v. Charles Prods., Inc. – United States District Court – Western District of Kentucky – November 13th, 2015 – This is a contract case involving imported gift products into the United States. The plaintiff filed a motion to exclude the testimony of Quin D. Dodd, a consumer products expert witness, on the grounds of qualifications and reliability. The court denied the motion to exclude.
- Valdes v. Miami-Dade County et al – United States District Court – District of Southern Florida – November 6th, 2015 – This case involves an alleged violation of civil rights. The plaintiff sought to exclude the expert witness testimony of Dr. Jason Buchwald, a forensic & laboratory testing expert witness, based on speculative and conclusory opinions as well as lack of qualification. The motion to strike the expert witness testimony was denied by the court.
- Bailey v. Stanley Access Techs., Inc – United States District Court – District Court of Northern Mississippi – November 6th, 2015 – In this personal injury case involving an automatic sliding door in a hotel, numerous experts were called to produce testimony. The defendants filed a motion to exclude the testimony of Warren Davis, Phd as a physics expert witness. The plaintiff has filed a motion to exclude the testimony of David Sitter, an electrical engineering expert witness. In addition, one defendant (Stanley) objects to four parts of Michael Panish, the other defendant’s doors expert witness. All three expert witness testimonies were granted in part and denied in part.
- Michael F. Abrams, et al., Plaintiffs, -vs- Nucor Steel Marion, Inc. – United States District Court – Northern District of Ohio – November 9th, 2015 – This property damage/trespass case involves the release of manganese from a steel plant. The plaintiffs have hired Dr. Jonathan Rutchik (a neurology expert witness), Lance Traves (an environmental expert witness), Craig Cantrall (a real estate agent expert witness). The defendant filed motions to exclude the testimony of each witness.
Both plaintiffs and defendants hired expert witnesses in this proposed class action. In one piece of the case, the defendants filed a motion to exclude the testimony of an expert in marketing. The court denied the motion.
A summary of recent Daubert opinions.
- Ponce v. Mountaineers – Court of Appeals of Washington – Division One – November 2, 2015 – This case involves a sledding accident. The plaintiffs appeal a lower court opinion which allowed the defendant’s sports and recreation expert witness, Chris Stoddard. They claim that he lacked sufficient foundation. The appeals court confirmed the lower court opinion.
- Federal Deposit Insurance Corporation v. Attorneys Title Insurance Fund, Inc. – United States District Court – Middle District of Florida – November 4th, 2015 – In this title insurance fund related to residential loan transactions, the defendant filed a motion to exclude the testimony of J. Richard Harris, a mortgages expert witness. The defense stated that the Mr. Harris does not employ a reliable methodology and that his testimony would not help the trier of fact. The court denied the motion.
- Deflecto, LLC v. Dundas*Jafine Inc – United States District Court – District of Missouri – Western Division – November 3rd, 2015 – In this patent infringement case, the court issued three separate orders regarding motions to exclude expert witness testimony. The first order was on a motion by the defendant to exclude the testimony of Marshall Honeyman as a patent expert witness. The court granted this motion in full. The second order was on a motion filed by the plaintiff to exclude the testimony of Dr. Terry Faddis as a mechanical engineering expert. This motion was granted in part and denied in part. The third order was on a motion filed by the defendant to exclude the expert testimony of Marc Vianello, a forensic accounting expert witness. This motion was also granted in part and denied in part.
- Stetson Petroleum Corp. et al v. Trident Steel Corporation – United States District Court – Eastern District of Texas – November 4th, 2015 – This case involves a casing pipe failure. The third party defendants filed a motion to exclude the expert witness testimony of Thomas M. Wadsworth, P.E, a professional engineering expert witness as untimely and unreliable. The court denied this motion. The plaintiff’s have filed a motion to exclude the expert witness testimony of John E. Slater, Ph.D., P.E., a professional engineering expert witness stating that his opinion is based on speculation and is not reliable. The court denied that motion as well. The plaintiffs also move to exclude the testimony of Kenneth P. Malloy, P.E. another professional engineering expert witness as unreliable. The court also denied this motion.