Federal Health Care Leaders Write Governors About New Direction for Medicaid

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.”

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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Providing Insight on March 30: ACA-Related Litigation and Impact of New Administration at AHLA Institute on Medicare and Medicaid Payment Issues

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.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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March 22 Webcast: Employer’s Risk & Responsibility in Preventing Violence in the Workplace

Employer’s Risk & Responsibility in Preventing Violence in the Workplace

March 22, 2017 | 3:00-4:00pm EST

Register here.

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.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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Caution About Fake Phone Calls from Health Care Agencies

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).

 

Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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March 2 Webcast: What the New Federal Discrimination Laws Mean to You

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.

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Robb Leandro

Robb Leandro

Robb Leandro assists his client with a broad range of legal issues relating to health care, administrative law and public policy. His legal practice focuses on helping health care providers navigate the minefield of regulations that they face in their practices. Robb routinely assists his clients with issues including Medicaid and Medicare regulations; Medicaid and Medicare audits; Certificate of Need Applications and litigation; licensure, surveys, and certification issues; and HIPAA and privacy laws. Robb also provides counsel to health care providers with complex government contract procurement issues.

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Feb. 27 Webcast: The 60 Day Rule & What It Means for Your Home Health & Hospice Agency 

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.

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Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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First Episode of Parker Poe Rapid Response: CMS Final Rule on Nursing Home Arbitration Agreements

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.

Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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U.S. Supreme Court Rules in Favor of Implied Certification Using a Fact-Intensive Materiality Standard

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

Annette K. Ebright & James C. Lesnett Jr.

Annette Ebright is a litigator practicing in the areas of Complex Civil Litigation, Government Investigations, White Collar Criminal Defense and Criminal and Regulatory Compliance. Jamie Lesnett focuses his practice on complex business litigation and government investigations. Mr. Lesnett has extensive experience litigating complex business disputes in federal and state courts throughout the United States, including litigation involving contract disputes, business torts, unfair competition and trade secret misappropriation.

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New Exclusion Guidance Includes Presumption of Compliance Plan

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.

Joy Hord

Joy Hord

Joy Hord focuses her practice on regulatory and compliance matters specifically related to the health care industry. Her clients include hospitals, physicians, pharmacies and other health care providers. Ms. Hord also has significant experience representing health care professionals and organizations with business law and transactional issues, such as mergers, acquisitions and joint ventures. Ms. Hord leads Parker Poe’s Health Care Practice, which includes attorneys from the firm’s North Carolina and South Carolina offices.

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Court Dismisses Major False Claims Act Case Against Hospice Provider: Ruling Mere Difference of Medical Opinion is Insufficient to Prove a Claim is False

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.

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Jamie Lesnett

Jamie Lesnett

Jamie Lesnett focuses his practice on complex business litigation and government investigations. Mr. Lesnett has extensive experience litigating complex business disputes in federal and state courts throughout the United States, including litigation involving contract disputes, business torts, unfair competition and trade secret misappropriation. Mr. Lesnett also has extensive experience representing clients in internal investigations, government investigations and enforcement actions regarding business crimes and civil frauds, including healthcare fraud, securities fraud, the False Claims Act and government contract fraud.

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