Health Law Advisor

Thought Leaders On Laws And Regulations Affecting Health Care And Life Sciences

OIG Extends Comment Period for Proposed Rule Regarding Permissive Exclusion Criteria

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The Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”) has extended the deadline, to December 28, 2014, for comments to the non-binding criteria used by OIG in assessing whether to impose a permissive exclusion, which were first published in 1997.  See our previous blog post for information on the OIG’s initial solicitation for comments.

Please reach out to George BreenJonah Retzinger, or Marshall E. Jackson, Jr., for assistance with the preparation and submission of comments.

Need for Home Health Companies Pro-Active Advocacy with State Medicaid Agencies

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By Clifford E. Barnes and Marshall E. Jackson, Jr.

Recent enforcements in home health fraud have highlighted the need for home health companies of every state to engage the State Medicaid payment agency in pro-active affirmative discussion to work together to identify issues related to fraud and abuse.  Such discussions will provide home health companies further insight regarding compliance with federal and state fraud and abuse laws. That being said, recent enforcement actions have shown that home health companies may be liable under fraud and abuse laws, despite efforts to comply with such laws.  

On September 9th Lewis J. Levine a chiropractor practicing in Washington, DC pleaded guilty to signing fake prescription for services to be provided by DC Medicaid in exchange for cash.  According to the plea agreement, Dr. Levine prepared prescriptions and approved and recertified plans of care for Medicaid beneficiaries brought to him by Personal Care Aids who worked for several home care agencies.  Dr. Levine was paid by beneficiaries and personal care aids $75 to $150 for each home health service he prescribed.  The home care agency was unaware of the payments to the Dr. Levine.  Under District of Columbia law, only physicians and advanced practice registered nurses can order home health services for Medicaid.  As a chiropractor, Dr. Levine was neither a physician or advanced practice registered nurse and cannot practice medicine.  In addition, Dr. Levine was not enrolled as a provider in DC Medicaid.  Nevertheless for more than 2 years Dr. Levine and company were able to execute a scheme against home health companies and the DC Medicaid Agency.  Even though Dr. Levine was not legally or medically qualified and could not determine whether the services prescribed were medically necessary, Dr. Levine signed intakes and plans of care.

For the home health companies whose services are denied and who did not participate in the scheme, it does not matter for the State Medicaid Agency that such companies were totally unaware of the scheme and could not reasonably know of such scheme.  For these non-participating companies, it is incumbent to not only remain diligent in efforts to comply with fraud and abuse laws, but to also develop a dialogue with the State Medicaid Agency to find ways in which they can work together to detect fraud and ensure that providers referring for home health services are legally and medically qualified to determine if such services are necessary. 

Is your home health agency involved in proactive discussions with your Medicaid policy office?

Industry Leaders to Discuss Value-Based Purchasing and Other Employee Initiatives

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Epstein Becker Green and EBG Advisors, as part of the Thought Leaders in Population Health Speaker Series, will host a complimentary webinar titled The Impact of Value-Based Purchasing and Other Employee Initiatives on Population HealthThis session will discuss several approaches for population health managers to reduce costs and improve health care.

The webinar, scheduled for November 20, 2014, at 12:00 p.m. ET, will be led by Laurel Pickering, MPH, President & CEO of Northeast Business Group on Health, and David Lansky, PhD, President & CEO of Pacific Business Group on Health. Adam Solander of Epstein Becker Green will moderate the session.

For more information, click hereTo register, click here.

Home Care Fraud and Abuse on the Radar Screen of Federal and State Enforcement

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Healthcare Fraud and Abuse is an ever growing problem.  The Federal government has taken several steps in its enforcement efforts to cut down on health care fraud.  It is estimated that health care fraud costs the United States about $80 billion per year.  And it continues to rise in an alarming manner, as total U.S. health care spending continues to rise, currently topping $2.7 trillion.

In the last year, spending on home health care has increased over 5 percent from previous years.  Since 2000, the senior population has increased by 15.1% versus 9.7% for the population as a whole.  According to the 2014 FBI press release, these trends led to Medicare reimbursements for home-based care totaling $18.4 billion in 2011 and state Medicaid program reimbursements of $12.7 billion for beneficiaries’ personal-care services.  According to the Centers for Medicare & Medicaid Services (CMS), approximately 12 million individuals receive in-home care, much of which is provided by more than 11,600 Medicare-certified home health agencies.

In the past year, federal and state law enforcement officials have increased their efforts in combatting fraud and abuse in the home health industry.  This has included targeting providers referring patients for home care services, owners of home care agencies, nurse staffing agencies, and personal care aides across the country.  One of the largest enforcement efforts this year has been in the Washington, DC area, culminating in the arrest of over 20 individuals accused of fraudulently billing the District of Columbia’s Medicaid program.  Similarly, in Dallas, Texas, federal indictments were handed down against hundreds of home health agencies accused of Medicare Fraud that was mastered-minded by a single physician.  As noted in the indictment, the agencies wrote “visit notes to make it appear that they provided skilled nursing to the Recruited Beneficiaries when no skilled nursing was provided.”

Because fraud and abuse enforcement by both Federal and State agencies is increasing, effective compliance programs for home health companies are needed to better distance the home health company from the fraud activities.  At minimum, home health care agency’s compliance programs should include:

  • The development and distribution of written standards of conduct, as well as written policies and procedures that promote the home health agency’s commitment to compliance and address specific areas of potential fraud;
  • The designation of a compliance officer and other appropriate bodies, charged with the responsibility for operating and monitoring the compliance program;
  • The development and implementation of regular, effective education and training programs for all affected employees;
  • The creation and maintenance of a process, such as a hotline or other reporting system, to receive complaints, and the adoption of procedures to protect the anonymity of complainants and to protect whistleblowers from retaliation;
  • The development of a system to respond to allegations of improper/ illegal activities and the enforcement of appropriate disciplinary action against employees who have violated internal compliance policies, applicable statutes, regulations, or Federal health care program requirements;
  • The use of audits and/or other evaluation techniques to monitor compliance and assist in the reduction of identified problem areas; and
  • The investigation and remediation of identified systemic problems and the development of policies addressing the non-employment or retention of sanctioned individuals.

As a home health agency do you know whether your compliance program is effective?  If you have questions regarding the effectiveness of your compliance program, please contact Clifford E. Barnes or Marshall E. Jackson, Jr.


Industry Leaders to Highlight an Integrated Approach to Population Health Management

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Epstein Becker Green and EBG Advisors, as part of the Thought Leaders in Population Health Speaker Series, will host a complimentary webinar titled Moving to an Integrated Population Health Management Model. This session will highlight several approaches to help manage populations to promote better clinical outcomes, more cost savings and enhanced patient satisfaction.

The webinar, scheduled for October 30, 2014 at 12:00 p.m. ET, will be led by Sarika Aggarwal, MD, Senior Vice President and Chief Medical Officer of Fallon Community Health Plan, and Julie O’Brien, RN, BSN, MS, Senior Vice President and Chief Operating Officer of Alicare Medical Management, and moderated by Mark Lutes, Chair, Epstein Becker Green.

For more information, please click here.  To register, please click here.


Epstein Becker Green Attorneys Author Bloomberg BNA Portfolio on Provider Risk Sharing Arrangements

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Epstein Becker Green today announced that Lynn Shapiro Snyder and Tanya Cramer have written a newly released topical Portfolio for Bloomberg BNA on provider risk sharing arrangements entitled, “Accountable Care Organizations and Other Provider Risk Sharing Arrangements, 2nd edition.” The Portfolio discusses the federal and state regulatory schemes for accountable care organizations (ACOs), integrated delivery systems, and other provider organizations that assume some or all of the financial risk for providing covered health care benefits to patients.  For more information, click here.

Decision of a United States District Judge for Eastern District of Oklahoma Continues the Debate Over Provisions in the ACA

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By Stuart Gerson

The September 30, 2014 decision of a United States District Judge for Eastern District of Oklahoma in the case of State v. Burwell  adds an interesting wrinkle to the debate over whether the provision in the Affordable Care Act that authorizes federal subsidies (tax credits) applies to individuals who are covered by  a qualified health plan that is enrolled through an Exchange established by the Federal government, not a State.  An IRS Rule (26 C.F.R.§ 1.36B-1(k)) allows this, while the ACA itself bases eligibility on participation in a plan that was “enrolled in through an Exchange established by the State . . . .”  26 U.S.C. §36B(b)(2)(A). These provisions also affect ACA subsidies that relate to employers.  Holding to the literal language of Affordable Care Act itself, the Oklahoma District Court held that the IRS rule was unlawful.

As we’ve previously noted, there had been a split in the United States Courts of Appeals created on the same day when a panel of the DC Circuit took the same literalist approach in Halbig v. Burwell as did the District of Oklahoma, but the 4th Circuit ruled in King v. Burwell that “Exchange” meant any Exchange and held that the ACA subsidies were available to anyone who was a subscriber to a health plan in a state that had not established its own Exchange but where the Federal government had. This split, however, was quickly erased when the DC Circuit, as a whole, vacated the panel’s decision and voted to rehear the case en banc, which it has yet to do.  Without any split to rely upon, a factor that increases the probability of Supreme Court review, the 4th Circuit plaintiffs nevertheless have petitioned for cert., claiming that the case should be taken because it presents an important question of federal law that must be resolved at some point.  The Supreme Court has not yet acted on that petition.

The District Court in Oklahoma stayed its order and the Obama administration will file an expedited appeal.  If the 10th Circuit affirms the case quickly, that would create a new Circuit split and very well could serve as a catalyst for Supreme Court review.  We’ll keep you posted as this is a matter that affects both employers and employees in the States that have not established Exchanges.

HIPAA Update: Insights from NIST and OCR

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Our colleagues Adam Solander and Ali Lakhani provide an update on the HIPPA Conference last week in Washington, DC. 

On September 23 and 24, 2014, the National Institute of Standards and Technology (“NIST”) and the Department of Health and Human Services Office of Civil Rights (“HHS OCR”) hosted their annual HIPAA conference “Safeguarding Health Information: Building Assurance through HIPAA security.”

OCR officials and key industry leaders engaged in dialogue regarding developments and trends in data breach incidents with respect to health information as well as stakeholder responses and best practices to mitigate risk and respond to potential incidents.

For the full post, please visit the TechHealth Perspectives blog.


Update on Immigration ~ Issues for Health Care

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Epstein Becker Green colleagues Robert S. Groban, Jr. and Matthew S. Groban provide an update to the health care industry in the Immigration Alert: September 2014, including an update on the Sixth Circuit Expanding the Liability of Health Care Employers for Sponsorship Costs.

Based on the Kutty decision, health care employers can expect more aggressive enforcement activity in connection with their employment of foreign nationals (“FNs”) generally and foreign medical professionals sponsored for H-1B classification and J-1 waivers of the two-year foreign residence requirement that many J-1 residents face.  For the full client alert, click here.

Five ACA Issues that Employers Should Be Following

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Our Epstein Becker Green colleagues have released a new Take 5 newsletter: “Five ACA Issues that Employers Should Be Following” by David W. Garland, Adam C. Solander, and  Brandon C. Ge.  Below is an excerpt:

Employers have about three months to finalize their employer mandate compliance plans under the Affordable Care Act (“ACA”). While most employers are in the final stages of planning, this month’s Take 5 will address five ACA issues that employers should be aware of as they move forward:

  1. ACA-related litigation
  2. Employer mandate reporting
  3. Section 510 liability
  4. Alternatives to traditional plan offerings
  5. The looming Cadillac tax

Read the full newsletter here.