The New York State Office of the Medicaid Inspector General (OMIG) has released its 2013 Annual Report (“Report”). The OMIG announced that it has recovered a record $879 million in Medicaid overbillings for 2013. More than $226 million of Medicaid overbillings were identified through audit activities. According to the Report, over the last three years, the OMIG recovered $1.73 billion in Medicaid overbillings, a 34 percent increase over the prior three-year period. Continue reading
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
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
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
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
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
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 Here. Continue reading
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
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
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.