Archive for the ‘Medicare and Medicaid’ Category

Whistleblower Settlements Increase Compliance Risk for Providers

Thursday, April 23rd, 2020

By Fisher, JD, CHC, CCEP

Dermatology Risk Areas Fraud and Abuse

Recent Fraud Settlements Emphasize Risk of Whisttleblowers

One of the reasons why compliance officers and health care attorneys read fraud settlements is to identify the issues that the government is focused on.  The cases that the government decides to pursue are very indicative of the areas of fraud enforcement that they feel are important.  These are not the only issues that should be considered, but government enforcement actions certainly tell us what types of arrangements the government considers important.

The misfortune of the defendants involved in these cases hold a potential learning experience for everyone else.  Others have an opportunity to focus on their own operations to identify whether they are at risk in any of the areas involved in these cases.

An ancillary lesson that these settlements hold is that each was initially raised by a whistleblower.  The False Claims Act gives whistleblowers a portion of the settlement in cases where the government decides to intervene.  This in effect creates a universe of potential claimants that can include almost anyone with original knowledge of the alleged practice.

Common whistleblowers include former or disgruntled employees.  It really does not matter of the employee is or was the worst employee in the world, they can

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Coronavirus Checklist for Nursing Homes and Hospitals

Thursday, April 23rd, 2020

By John Fisher, JD, CHC, CCEP

Follow the links below to download from the CDC.

A coronavirus preparedness checklist for hospitals, including long-term acute care hospitals are available from the CDC.

Interim Infection Prevention and Control Recommendations for Patients with Confirmed Coronavirus Disease 2019 (COVID-19) or Persons Under Investigation for COVID-19 in Healthcare Settings:

Strategies to Prevent the Spread of COVID-19 in Long-Term Care Facilities (LTCF):

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Investment Interest in Radiation Therapy Anti-kickback Statute Settlement

Thursday, April 16th, 2020

By Fisher, JD, CHC, CCEP

Anti-kickback Statute Radiation Therapy Investments

Radiation Therapy Referral Kickback Arrangements with Investors.

A national operator of radiation therapy centers, has agreed to settle a False Claims Act action alleging that it submitted claims violated the Anti‑Kickback Statute by paying of $11.5 million and entering into a 5 year Corporate Integrity Agreement with the Office of Inspector General.  The arrangement involved payments to investors who were allegedly targeted because of their referral potential to the therapy centers.  The challenged arrangement involved a series of leasing companies that accepted investments from referring physicians.  The investment interests resulted in the payment of investment returns that the government considered to be remuneration for referrals in violation of the Anti-Kickback Statute.  The whistleblower who originally raised the issue will receive up to $1.725 million.

This case involves a garden variety claim of a kickback by investment interest.  The typical investment case involves targeting potential investors who are in a professional position to make referrals to the company in which they are asked to invest.  The referral source has a financial incentive to increase referrals.  This might be an excellent financial investment scenario, but the problem is that the investment return might well be an illegal kickback; which is potentially a federal felony.

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Treatment Center Plead Guilty to Anti-kickback Statute Violations Involving Alcohol and Drug Addiction Treatment Centers

Thursday, April 16th, 2020

By Fisher, JD, CHC, CCEP

Treatment Center Fraud Plea

Substance Abuse Treatment Center Fraud Scheme Results in Guilty Plea

The Department of Justice recently announced the guilty plea of two individual alcohol and substance abuse treatment center owners for their participation in what DOJ labeled a “multi-million dollar health care fraud and money laundering scheme.”  The two individuals owned a licensed substance abuse service provider (or treatment center) offering clinical treatment services for persons suffering from alcohol and drug addiction. The treatment center also offered medication-based treatment for opioid addiction.

The government had accused the two owners of paying illegal kickbacks/bribes to “sober homes” in exchange for the referral of the sober homes’ insured residents to treatment program. The sober homes provided safe and drug-free residences for individuals suffering from drug and alcohol addiction. This made them a prime source of potential referrals to the treatment program.

The accusations against these defendants read like a laundry list of thinly veiled kickback schemes.  Some of the specific accusations included:

  1. Providing funds used to purchase or rent several sober home properties under purchase agreements or leases that were in the names of other parties so as to disguise the source of funds.
  2. Paying remuneration for referrals in the form of free or reduced rent, insurance premiumRead more here: Health Law Blog

      

RCS-1 Model Worksheet Gives a Glimpse of a World Without RUG

Monday, March 12th, 2018

By Fisher, JD, CHC, CCEP

RCS-1 Sample Worksheet

RUG System for Skilled Nursing Facility Reimbursement – Time is Running Out

It is currently anticipated that the RUG system, which is currently used to calculate reimbursement for Medicare Part A skilled nursing services, will be changed over the next year.  CMS is currently considering a new Resident Classification System that will completely change the way SNFs are reimbursed for their services.

Providers are getting glimpses of what may be included in the new calculation system.  CMS issued a draft sample worksheet using the RCS-1 system.  The stated purpose is to give providers a description of how the new system would work.  The worksheet gives a description of how a manual calculation would take place using the RCS-I methodology.

The sample draft worksheet that was issued by CMS is available here.  RCS_I_Logic-508_Final

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Wisconsin Home Health Quality Regulations – HHA Attorney Wisconsin

Tuesday, February 14th, 2017

Wisconsin Home Health Quality Reporting Requirements-  OASIS Data Item Set 

The reporting of quality data by home health agencies (HHAs) is mandated by Section 1895(b)(3)(B)(v)(II) of the Social Security Act (“the Act”).  This statute requires that ‘‘each home health agency shall submit to the Secretary such data that the Secretary determines are appropriate for the measurement of health care quality. Such data shall be submitted in a form and manner, and at a time, specified by the Secretary for purposes of this clause.’’

OASIS reporting is mandated in the Medicare regulations at 42 C.F.R.§484.250(a), which requires HHAs to submit OASIS assessments and Home Health Care Consumer Assessment of Healthcare Providers and Systems Survey (HH CAHPS) data to meet the quality reporting requirements of section 1895(b)(3)(B)(v) of the Act.

Home Health Quality Reporting Requirements

OIG Releases Annual Work Plan for 2017

Monday, January 23rd, 2017

OIG Annual Work Plan for 2017 – Topics Covered

The Health and Human services Office of Inspector General (OIG) recently released its 2017 Annual Work Plan.  Work planning is an ongoing project within the OIG.  Every year, the OIG publishes a work plan that consolidates the OIG audits and evaluations that are being conducted or planned within the organization.  The annual work plan has become a source that compliance officers look to as a tool for the identification of potential risk areas or areas of emphasis within their organization.  It is obviously not the only source for identifying compliance risk areas, but is certainly one reliable source that providers can draw on when setting their annual compliance priorities.

The 2017 OIG Work Plan can be download through the OIG site.

Ruder Ware’s health care group will continue to put out blogs and articles on various issues identified in the 2017 Annual Work Plan.  We will focus primarily on issues that were introduced for the first time in this year’s plan.

Ambulatory Surgery Centers – Federal Settlement Highlights Safe Harbor Requirements

Tuesday, June 2nd, 2015

By John Fisher, JD, CHC, CCEP

ASC Investments Safe Harbors

A Tennessee based ambulatory surgery center company has agreed to pay damages to a former employee who filed a suit alleging that physician investments in local surgery center entities violated the Anti-kickback Statute.  The case highlights some of the unique kickback issues that are present in ambulatory surgery center structure.  Specifically, the case demonstrates how investment terms that are intended to assure compliance with the safe harbor regulations under the Medicare Anti‑Kickback Statute (42 U.S.C. § 1320a-7b(a)-(b)) can create evidence of non-compliance if the initial terms of the offering relate, in whole or in part, to the volume or value of expected referrals from the investor in the ASC venture.

In order to comply with safe harbor requirements, ASCs must generally require investing physicians to use the facility as an extension of their medical practices.  However, if the terms of the investment are based on the volume or value of referrals, those same requirements become evidence that referrals are being required in exchange for remuneration.  In the Tennessee case, the ASC management company purchased controlling interests in local surgery center entities at a high multiple of earnings.  Physicians who were referral sources were offered investments at less than 1/3 of the

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Voluntary Self Disclosure Decisions Can Be Complicated

Tuesday, April 8th, 2014

By John Fisher, JD, CHC, CCEP

OIG Self Disclosure Decisions

Provider Self Disclosure Decisions – Voluntary Disclosure Process

The decision whether or not to voluntarily disclose to the government can be very difficult.  Not every case is clear.

Clearly not every situation where there has been a billing error amounts to fraud or wrongdoing requiring use of the self-disclosure protocol.  Many over-payments that are identified through audit can be dealt with at the intermediary level.  Where investigation raises questions about whether incorrect bills are “knowingly” submitted, the self disclosure process may provide some mitigation of potential loss.  Situations where the provider perhaps “should have known” raise more difficult issues of analysis.

The situation is also complicated because a potential whistle-blower may view a situation much differently than a provider who finds what it believes to be an innocent mistake through the audit process.  A provider may sincerely believe that there was no “wrongdoing” and that a simple mistake has been identified.  Finding such a mistake may actually be evidence that the provider’s compliance efforts are working.  On the other hand, there is a whole legal profession out there now that is advertising for people to come forward with these types of mistakes.  With potential recover under the False Claims Act of 3 times

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Personal Care Service Providers and Wisconsin Medicaid

Friday, February 14th, 2014

By John Fisher, JD, CHC, CCEP

Personal Care Service Providers – Wisconsin Medical Assistance

Wisconsin Statute § 49.45(42)(d)3 describes the types of organizations that qualify to receive Medicaid reimbursement for “personal care services.”  Qualified entities include licensed home health agencies and other entities that are certified under section (2)(a)(11) to provide personal care services under section 49.46(2)(b)6j.  The DHS does not appear to have implemented regulations that specifically describe the criteria that “other entities” must meet in order to become qualified to receive reimbursement from Medicaid for the provision of personal care services.

The applicable provisions of section 49.45(2)(a)(11) do not contain specific criteria that “other entities” must meet but simply refers to the requirement that DHS promulgate rules establishing qualifications of providers.  The referenced statutory provision does not refer specifically to the requirements that “other entities” must meet in order to qualify to receive reimbursement for personal care services.

The requirements that must be met in order to become a licensed home health are more extensive than the personal care services entity.  However, becoming licensed as a home health agency will qualify you to provide and bill for personal care services directly.  It would also permit you to bill private pay patients for skilled nursing and other

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