Join the American Health Lawyers Association in Baltimore for the Institute on Medicare and Medicaid Payment Issues. Parker Poe’s Matt Wolfe will be providing an overview of ACA-Related Litigation and Impact of New Administration at a joint luncheon sponsored by AHLA’s Behavioral Health Task Force and AHLA’s Health Care Reform Task Force on March 30.
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February 27, 2017 | 3:00-4:30pm EST
Under the Affordable Care Act, any health care provider that identifies an overpayment from Medicare or Medicaid has a legal requirement to return the overpayment. The Act requires that the overpayments must be reported and returned by the later of 60 days after the date identified or the date any corresponding cost report is due. This has left providers confused about what is meant by identifying an overpayment and how far back providers should “look back” when investigating possible overpayments. In 2016, CMS published final regulations clarifying how Medicare Part A and Part B providers are expected to audit for and fully investigate potential overpayments.
On November 10, 2016, the Office of Inspector General (“the OIG”) of the U.S. Department of Health and Human Services (“DHHS”) released its 2017 Work Plan. Published annually and updated throughout the year, the Work Plan identifies the OIG’s key areas of focus as it carries out its mission of protecting the integrity of programs within DHHS. The OIG is charged with ensuring the integrity of more than 100 programs administered by DHHS, including those within the Centers for Medicare and Medicaid Services, Center for Disease Control and Prevention, the Food and Drug Administration, and the National Institute of Health. The OIG Work Plan summarizes the OIG’s current activities – comprised of both new and revised activities — along with information regarding previously identified activities that have been completed, postponed, or cancelled.
The Work Plan highlights new and continuing priorities applicable to various provider types, including hospitals, nursing homes, hospices, home health, clinical laboratories, physicians and other health professionals, medical equipment suppliers and manufacturers, pharmaceutical manufacturers and other providers and suppliers.
The 2017 Work Plan is available here.
The following is a sampling of some of the new and ongoing efforts highlighted in the Work Plan:
On July 27, 2016, the Overall Hospital Quality Star Ratings were released on Medicare’s Hospital Compare website. The Star Ratings represent a summary compilation of individual hospital performance on 64 measures designated by CMS to represent the quality of care delivered at over 4,000 Medicare-certified hospitals. Star ratings are on a scale of one to five, with a five-star rating being the best.
Medicare’s instructions to patients regarding how to use the Hospital Compare website describe the ratings as one factor to be taken into account by patients when determining where to seek non-emergent care.
According to Medicare, the purpose of the star ratings is to not only provide a tool to consumers, but also to encourage hospitals to improve the quality of care that they provide. Industry groups and others have criticized the rating system for a lack of transparency, as well as failure to take into account different hospital types for purposes of compiling the comparative information. CMS delayed release of the information in Spring 2016 following letters signed by 60 Senators and 225 members of the House of Representatives urging reconsideration of the ratings system. CMS was not convinced to extend the delay, however, despite a bill introduced on July 26, 2016 to prevent release of the Star Ratings for another year.
The CMS Compare sites are the official sites for information published by Medicare regarding the quality of health care providers. Quality of care ratings for nursing homes, home health, dialysis facilities, group practices, and other health professionals have previously been issued by CMS on the Compare websites and can be accessed here.
Parker Poe’s healthcare practice group works closing with the firm’s government relations team to represent our client’s interests on the federal and State levels. Our government relations and lobbying practice encompasses activities such as formulating strategy, drafting legislation, appearing before legislative committees and study commissions, and intervening directly with legislative officials.
The legal landscape for False Claim Act (“FCA”) cases recently shifted when the United States Supreme Court announced its decision in Universal Health Services, Inc. v. U.S. ex rel Escobar, No. 15-7, 2016 WL 3317565 (U.S. June 16, 2016) (“Escobar”). Whistleblowers (also known as relators) and health care providers alike have been eagerly awaiting this decision. Although each side hoped for a bright-line ruling, what they got was something of a mixed bag. In Escobar, the Court resolved a split in the U.S. Circuit Courts of Appeals over the application of the “implied certification theory” of False Claims Act liability.Read More
The Affordable Care Act (sometimes referred to as Obamacare) included a requirement for providers to report and return all Medicare and Medicaid overpayments within 60 days of identification. Although this requirement has been in effect since 2010, the Centers for Medicare and Medicaid Services (“CMS”) has proposed but failed to promulgate rules serving to further clarify this requirement. On February 12, 2016, CMS published a final rule, which went into effect March 14, 2016. The final rule applies to Part A and Part B of Medicare.
On March 11, 2016, CMS proposed implementation of a new two-phase model for drugs reimbursed under Part B of the Medicare Program (“the Proposed Model”). Drugs reimbursed under Part B include drugs administered in hospital outpatient departments or in physician offices. The purpose of the Proposed Model is to test alternative drug payment designs with the goal of (i) reducing overall costs to the Medicare program, and (ii) enhancing quality of care.Read More
The Office of Inspector General’s (“OIG”) recent release of OIG Advisory Opinion No. 15-02 is an important reminder that providers must be vigilant in complying with prohibitions against receiving payment for items or services provided by excluded individuals or entities.
A laboratory proposing to enter into an exclusive relationship with physician practices has been advised that the arrangement may violate federal law. The laboratory sought advice from the Office of Inspector General (“OIG”) of the Department of Health and Human Services on an arrangement in which the laboratory would contract with physician practices to provide all laboratory services to the practices’ patients, without regard to the patients’ health insurance coverage. The requesting laboratory would not bill those patients whose health plans — so-called “exclusive plans” — require them to use other laboratories (nor would the lab bill the practices themselves). In its Advisory Opinion posted on March 25, 2015, the OIG concluded that the arrangement may violate the Anti-Kickback Statute and subject the laboratory to administrative sanctions, including exclusion from federal health care programs (e.g., Medicare and Medicaid).
In May 2014, the American Hospital Association filed suit against the United States Department of Health and Human Services seeking to compel Administrative Law Judges (ALJs) to comply with applicable statutory deadlines for deciding Medicare claim appeals.
By law, ALJs are required to render a decision within ninety days of a request for hearing to appeal the second-level reconsideration determination (in the case of claims appeals) and the first-level reconsideration determination (in the case of entitlement appeals). ALJs are currently not in compliance with this requirement. The backlog of appeals is significant. The number of appeals made to the ALJ increased by over 500% from the 2011 fiscal year to the 2013 fiscal year, largely driven by the appeal of determinations by Recovery Audit Contractors. The number of appeals outstanding in July 2014 was 800,000. While both the Office of Medicare Hearings and Appeals and the Centers for Medicare and Medicaid Services have implemented a number of projects and pilot programs to try to reduce the number of appeals currently before the ALJ, many providers expect to wait years for an ALJ hearing.
In December 2014, the United States District Court for the District of Columbia determined that the delay did not warrant judicial intervention and granted a motion to dismiss the lawsuit. In a letter published in response to the decision, the AHA announced its intent to appeal the decision.