While much of the attention related to health care this week is focused on our nation’s capital, all 50 state governors have received a letter from recently confirmed U.S. Health & Human Services Secretary Tom Price and Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma. The letter begins by noting the challenges facing Medicaid. The authors describe Medicaid expansion as “a clear departure from the core, historical mission of the program” and as creating “an incentive to deprioritize the most vulnerable populations.” The letter then commits to working with expansion states (31 plus the District of Columbia) and non-expansion states (19) on a “solution that best uses taxpayer dollars to serve the truly vulnerable.”
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.
Read more here.
March 22, 2017 | 3:00-4:00pm EST
Violence is a more common source of injury in healthcare than other industries and Home Care employers have many workplace challenges. The Home Health Care Industry carries unique risks and hazards and the environment is uncontrolled and more highly varied than traditional health care facilities. Home health workers may also be at risk from the community surrounding the home (robbery, car theft, vandalism). In a recent OSHA enforcement action against a home care agency, the agency was found not to take the steps needed to address employee exposure to workplace violence in a patient’s home.
Individuals should be cautious about sharing personally identifiable information when contacted via phone, including by health care agencies. The Centers for Medicare & Medicaid released an alert earlier this week warning of identified scams related to the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG).
March 2, 2017 | 3:00-4:00pm EST
Section 1557 prohibits health care providers that receive Medicare, Medicaid or other federal funding sources from discriminating on the basis of race, color, national origin, sex, age, or disability. The requirements of the Section 1557 Rules, which were recently adopted by DHHS, requires providers to take many affirmative steps to comply with the law including, adopting nondiscrimination policies, providing free language assistance to individuals with limited English proficiency, and accommodating individuals with disabilities.
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.
The Centers for Medicare and Medicaid Services (“CMS”) recently adopted a new final rule banning nursing homes that receive federal funding (such as Medicare or Medicaid) from entering into pre-dispute arbitration agreements with their residents. WATCH Parker Poe Attorneys Robb Leandro, Brad Overcash, and Matt Wolfe discuss the final rule and its impact for nursing homes (and other providers). A link to the rule is available here.
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
Section 1128 of the Social Security Act (42 U.S.C. 1320a–7) (available here) established mandatory and permissive authority for exclusion of health care providers from federal health care programs based on provider conduct. In April 2016, the Office of Inspector General of the Department of Health and Human Services (“OIG”) issued an updated list of non-binding criteria for evaluation of provider exclusion under the permissive exclusion authority (the “Exclusion Guidance”). The new Exclusion Guidance is available here. The Exclusion Guidance (i) establishes a presumption of exclusion for any provider who defrauds a federal health care program, (ii) contemplates that the presumption may be rebutted, and (iii) sets forth a list of criteria to be used by the OIG in making a determination whether to seek exclusion.
In applying the Exclusion Guidance, the OIG assesses whether the entity presents a future risk to a federal health care program One of the considerations is an evaluation of the provider’s history of compliance. Lack of a preexisting compliance plan that incorporating the U.S. Sentencing Commission Guidelines Manual’s seven elements of an effective compliance program (available here) indicates that a provider presents a higher risk to the federal health care program supporting exclusion. On the other hand, if the provider has a history of “significant self-disclosures made appropriately and in good faith,” the provider presents a lower risk. The fact that the provider has a preexisting compliance plan alone (in the absence of a history of self-disclosures) does not impact the risk assessment.
Health care providers are subject to a broad range of laws and regulations requiring the development of internal policies and plans to ensure training, ongoing compliance and appropriate response to suspected violations. Parker Poe’s attorneys understand the complex requirements of these laws and regulations and work closely with our health care clients to conduct a risk assessment to identify the appropriate scope of compliance plans, to design and implement those plans, to design training for staff, and to develop procedures to monitor for compliance. When suspected violations of the compliance plan are identified, we work with clients to appropriately investigate and address any non-compliant activity.
On March 31, 2016, the United States District Court for the Northern District of Alabama in U.S. ex rel. Paradies v. AseraCare, Inc. dismissed a major False Claims Act case against a national hospice provider after ruling that a mere difference of medical opinion is not enough to prove a claim is false.
The case involved allegations that hospice provider AseraCare had submitted false claims to Medicare by certifying patients as eligible for hospice care even though they did not have “a life expectancy of 6 months or less if the terminal illness runs its normal course” as required by federal regulations. The court had previously decided to bifurcate the trial into two phases: phase one would focus on whether the claims were legally false, and phase two would focus on all remaining issues, including AseraCare’s mental intent and the Government’s alleged damages.