The Rise of the Worthless Services Theory in Federal False Claims Act (Whistleblower) Cases – A Look to the Future

The theory of “worthless services” has yet again been tried by whistleblowers in the federal False Claims Act context, this time resulting in a large settlement with the federal government.  We saw this argument made previously in Ashber v. Momence, which we discussed in a prior article here.  Now, Extendicare Health Services Inc., and its subsidiary Progressive Step Corporation (collectively “the Defendants”), have agreed to settle two federal False Claim Act (whistleblower or qui tam) actions for $38 million.  Continue reading

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Filed under False Claims Act, Fraud and Abuse, HHS OIG, Medicare Fraud

New Reporting Requirements under the IMPACT Act for Post-Acute Care Providers

President Obama signed into law on October 6th, 2014 the “Improving Medicare Post-Acute Care Transformation Act of 2014”, also known as the “IMPACT Act of 2014”.  The IMPACT Act of 2014 amends the Social Security Act to require home health agencies, skilled nursing facilities, inpatient rehabilitation facilities, and long-term care hospitals to report on a variety of measures including, standardized patient assessment data, quality measures, and resource use.  The IMPACT Act of 2014 will be phased-in over the next several years, with the first reporting requirements beginning in 2016 for certain data points for skilled nursing facilities, inpatient rehabilitation facilities and long-term care hospitals.  The other data points will be implemented and all reporting requirements for these facilities will be required by October 1, 2018.  The reporting requirements for home health agencies will not begin until January 1, 2017 and will be implemented over the years with all data points being required by January 1, 2019.  Continue reading

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Filed under Health Care Reform, Home Health Agency, Long Term Care, Nursing Homes

CMS Issues 2015 Managed Care Rate Setting Consultation Guide

On Wednesday, October 2, the Centers for Medicare and Medicaid Services (“CMS”) issued its  2015 consultation guide for states to use when setting reimbursement rates with respect to any Medicaid managed care program subject to actuarial soundness requirements in 42 CFR 438.6 during rating periods starting January 1, 2015.  The guide “describes information that CMS expects states to provide when developing the actuarial rate certifications.”   Continue reading

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Filed under Health Care Reform, Managed Long Term Care

New Nurse Practitioner Rule on Track

The New York State Education Department (“SED”) issued a proposed rule to allow nurse practitioners (“NPs”) with 3,600 hours of experience to have collaborative agreements with hospitals, as opposed to individual physicians.  We wrote about the amendment to the Education Law in April of this year.  This first notice of proposed rulemaking appears to put SED on schedule to allow these new collaborative arrangements to be effective by January 1, 2015, as scheduled. Continue reading

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Filed under Professions

Who’s Looking Out for Patients? OIG Recommends more CMS Oversight of Medicaid Managed Care Programs

Office of the Inspector General of the federal Department of Health and Human Services (“OIG”) has issued a report that suggests that most states that offer Medicaid through Managed Care Organizations (“MCOs”) have widely-variable and possibly inadequate oversight of the organizations providing care to Medicaid beneficiaries.  Given OIG’s findings, beneficiaries, providers, and Medicaid MCOs should not be surprised if federal guidelines or regulations emerge that move toward standardizing access requirements and compliance assessments in Medicaid managed care. Continue reading

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Filed under Managed Long Term Care, Medicaid

IOM Provides Support that Focus is Needed on Advance Care Planning

Many studies have been done demonstrating that many individuals have not talked to providers or loved ones about end-of-life care.  However, studies also demonstrate that for individuals who discuss their wishes for decisions to be made at the end-of-life, the individual experiences an increased quality of life and both the individual and family have greater peace and satisfaction.  Despite the advent and push for completion of advance directives most individuals do not discuss their wishes.

The importance of discussing end-of-life preferences has once again been addressed, this time by the Institute of Medicine (IOM).  The Institute of Medicine is an independent, not-for-profit organization that is an arm of the National Academy of Sciences, which commissions studies and produces reports on healthcare issues.  The IOM released a report earlier this month, Dying in America: Improving Quality of Life and Honoring Individual Preferences Near the End of Life, which speaks to the “pressing need to improve end-of-life care.”  Link to the Report Found HereContinue reading

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Filed under Health Care Reform, Long Term Care, Uncategorized

An Ever Widening Gap: Circuit Split on the Applicable Pleading Standard for the False Claims Act

Many areas of the False Claim Act are subject to legal interpretation and have been subject to Circuit splits, sometimes resulting in rulings from the Supreme Court.  In the United States, there are thirteen federal circuit courts that provide intermediate appellate review of the federal district courts in several states.  The decision by a circuit court has binding authority on the district courts within its jurisdiction.  When there is a conflict between circuit courts on an important issue it creates the basis for review by the Supreme Court.

One such area that is currently subject to a Circuit split is the standard to which a relator or the government must plead their case for the False Claims Act.  The Federal Rules of Civil Procedure, Rule 9(b), requires that when alleging fraud or mistake, “a party must state with particularity the circumstances constituting fraud or mistake.” F.R.C.P. Rule 9(b). Continue reading

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Filed under False Claims Act, Federal Case Updates, Fraud and Abuse

Expanding Their Arsenal: Criminal Prosecution of HIPAA Breaches on the Rise

Over the past year, the Office of Civil Rights (“OCR”) has taken a more aggressive stance in enforcing the provisions of the Health Insurance Portability and Accountability Act (HIPAA).  The largest settlement for a data breach to date was just announced earlier this year between OCR and New York Presbyterian Hospital and Columbia University. However, high civil penalties are not the only concern anymore – individuals who commit a breach are also subject to criminal prosecutions. Continue reading

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Filed under HIPAA

FDA Seeks to Regulate Laboratory Developed Tests

On July 31, 2014, the Food and Drug Administration (“FDA”) announced that it would begin regulating laboratory developed tests (LDTs).  According to the FDA, LDTs are designed, manufactured, and used within a single lab, and include some genetic tests and tests that are used by various health care professionals.  These tests are developed by hospitals, academic, and clinical laboratories in response to unmet clinical needs to ensure patients receive the best possible care.  The FDA considers these tests to be medical devices.

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Filed under Laboratories

Absher v. Momence: A Mixed Decision—Limiting and Expanding the False Claims Act

In the ever-expanding area of the federal False Claims Act, the recent decision by the 7th Circuit in Absher v. Momence Meadows Nursing Center Inc., limited pursuing a False Claims Act violation under the worthless services theory but potentially expanded what administrative reports do not trigger the public disclosure bar of the False Claims Act.

Former nurses of the nursing home brought a qui tam suit against Momence Meadows Nursing Center, Inc. (“Momence”), an Illinois nursing home, alleging that Momence had submitted “‘thousands of false claims to the Medicare and Medicaid program”.  U.S. ex rel. Absher v. Momence Meadows Nursing Center, Inc., 2014 WL 4092258, *3 (7th Cir. 2014).    The case went to trial and earlier in February 2014, a jury found that Momence had violated the False Claims Act and provided worthless services, with the court entering a verdict of $9 million.  Momence appealed to the 7th Circuit, which issued its ruling on August 20, 2014.  The 7th Circuit addressed several issues including public disclosure, the scope of the worthless services theory, and scope of false certification under the False Claims Act.  The 7th Circuit ultimately vacated the decision and remanded.  Continue reading

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Filed under False Claims Act, Fraud and Abuse