Through their Health Care Fraud Abuse Control program (“HCFAC”), the United States Departments of Justice (“DOJ”) and the United States Department of Health and Human Services (“HHS”) have recovered more than $19 billion from health care providers over the last five years. A report released on February 26 shows that the program’s three-year return on investment in fraud and abuse investigations is $8.10 for every dollar spent—this is a record high for the 17-year-old program. These numbers suggest that the federal government’s interest in investigating and prosecuting health care fraud and abuse is as strong as ever.
For perspective, the current five-year recovery amount—$19.2 billion—is more than double the $9.4 billion recovery for the previous five-year period. All of this is despite the loss of $30.6 million as a result of the budget-related sequestration in 2013.
HCFAC is a creation of the 1996 HIPAA statute, and is a joint project of DOJ and HHS. Moreover, the high reported return on investment illustrates that HCFAC is a money-maker for Medicare—HCFAC’s appropriations come from the Medicare Hospital Insurance Trust Fund, also known as the Medicare Part A Trust Fund.
In the last year alone, DOJ filed 137 cases in this area, and charged 345 individuals with crimes. It secured 234 guilty pleas and 46 convictions. Defendants sentenced in the 2013 fiscal year served an average of 52 months in prison.
Not to be outdone, the Centers for Medicare and Medicaid Services (“CMS”) have banned over 225,000 individuals and entities from billing Medicare between March 2011 and September 2013.
The OIG Report may be accessed here: http://oig.hhs.gov/publications/docs/hcfac/FY2013-hcfac.pdf
The HHS Press Release may be accessed here: http://www.hhs.gov/news/press/2014pres/02/20140226a.html
Caitlin Monjeau and David Ross contributed this post.
Today, CMS issued a Press Release announcing that it is conducting a demonstration project with New York State known as the Fully Integrated Duals Advantage (FIDA) demonstration. Under this capitated demonstration, approximately 170,000 New Yorkers who are people eligible for Medicaid and Medicare in NYC, Long Island and Westchester County will be able to join a health plan that includes all the benefits of under Medicare (Parts A and B, and Part D) and Medicaid and additional support for care coordination and community living. Those who are eligible can opt in starting in July 2014 for community based individuals and October 2014 for individuals living in nursing homes. Continue reading
The Centers for Medicare and Medicaid Services (CMS) approved waivers for New York and New Jersey under Section 1135 of the Social Security Act. The waivers ease certain legal requirements on healthcare providers who are serving those impacted by Sandy. The Section 1135 waiver for New York is available here. The waivers relax the rules for providers in areas like recordkeeping, patient relocation and billing in order to ensure that individuals enrolled in federal programs like Medicare and Medicaid receive the health care items and services that they need. New York’s waiver is retroactive to Oct. 27. Continue reading
In U.S. ex rel. Williams v. Renal Care Group, Inc. (Case No. 11-5779) (October 5, 2012), the Sixth Circuit Court of Appeals reversed a grant of summary judgment in favor of the United States on two main False Claims Act (FCA) claims relating to Medicare reimbursement of dialysis supplies. In doing so, the Court issued an important decision distinguishing the applicability of the FCA between noncompliance with payment and participation regulations.
The United States alleged, inter alia, that defendants violated the FCA by submitting claims which they knew were not in compliance with DME supplier standards set forth by statute and regulation relating to conditions of participation (i.e. to honor warranties, fill orders, and maintain an appropriate place of business), which impose independent sanctions and potential exclusion.
The Sixth Circuit reasoned that “[t]he False Claims Act is not a vehicle to police technical compliance with complex federal regulations.” As such, the Court agreed with the defendants that noncompliance with participation regulations does not render a claim materially false, irrespective of the whether the regulation is violated, because payment is not expressly or impliedly conditioned upon compliance with participation conditions.
This decision could have a further relevance in the context of Medicare and Medicaid provider audits for improper payments. In opposing audit tactics, our firm has always maintained that disallowances based on noncompliance with conditions of participation are unwarranted and inconsistent with the structure and purposes of the Medicare and Medicaid program. This decision adds support and justification to the validity of this argument in suggesting that payment is not expressly or impliedly conditioned upon compliance with participation conditions.
This post is contributed by Charles Dunham
On May 17, 2012, the U.S. Department of Health and Human Services, Office of Inspector General (OIG) released a report that found Medicaid overpayments to New York State-operated developmental centers. The OIG concluded that, in 2009, State-operated facilities for the developmentally disabled received $1.7 billion in Medicaid payments in excess of the reported costs of these facilities. The Medicaid rates paid to these New York State-operated facilities were ten times higher than the rates paid to private Intermediate Care Facilities in New York, which the OIG found comparable. The OIG determined that these overpayments had occurred for two decades and that they are still occurring in 2012. In fact, in fiscal year 2011, the daily payment rate to New York’s developmental centers was $5,118, which represented a 24 percent increase since 2009 and means that State-run developmental facilities are being paid approximately $1.9 million per year for each individual patient. This surprising increase was triggered by the formula for Medicaid payment rates for patients in developmental centers, which allows State-operated facilities to collect roughly two-thirds of the total Medicaid payment after an individual who has left the facility. Continue reading
As of January 1, 2012, all healthcare providers were required to transition from version 4010/4010A to version 5010 standards for submitting electronic transactions, and the failure to comply may result in claim denials or a government investigation. CMS has repeatedly postponed enforcement, but it appears the agency will begin to enforce civil monetary penalties against non-compliant medical practices, hospitals and other healthcare entities as of July 1, 2012.
If you are compliant, you may have noticed that not all public and private payors are currently compliant and able to accept transactions in version 5010 standards. This means that you will have to continue submitting transaction forms in both version 4010/4010A and version 5010 standards until all payors complete the transition. It is important that you contact each payor and establish a relationship with their HIPAA compliance department to determine their compliance level and promote a fluid transition to version 5010 standards.
If you are not currently in compliance, it is imperative that you begin to develop a transition plan to incorporate the steps your practice will take to become compliant by the enforcement date. In developing your plan, you should be in contact with your payors to provide you with valuable assistance. Continue reading
The Office of Inspector General (“OIG”) released a report yesterday based on its review of the reimbursement rates for New York State-operated developmental centers. The report found that the Medicaid daily rate for state-operated developmental centers was inflated, and that New York State (State) received $700 million more in federal funding in fiscal year 2009 than was needed to provide services to the residents of those facilities. That finding is significant because it could mean that the State has failed to comply with the federal requirement that payment for services be consistent with efficiency and economy. Continue reading
The U.S. Department of Health and Human Services (HHS) recently selected 32 Accountable Care Organizations (ACOs) to participate in the Pioneer ACO Model designed by the CMS Innovative Center to test the impact of several innovative payment arrangements to support these organizations in achieving the goals of better care and outcomes at a lower cost. Continue reading
Today, CMS published its final rule implementing the part of the Affordable Care Act governing Accountable Care Organizations (ACOs). A copy of the rule is available here.
The portion of the Affordable Care Act implemented under this new rule requires the establishment of the Medicare Shared Savings Program. The Shared Savings Program, in turn, encourages the development of Accountable Care Organizations (ACOs) in Medicare, which aim to change the way health care is delivered in the United States. In short, ACOs are charged with ensuring the provision of better care, creating healthier populations and controlling the growth of Medicare Parts A and B expenditures. The new rules will be effective 60 days after publication.
We will post more in-depth analysis of this rule and ACOs in the future.
This post was contributed by Kurt Bratten.