One of the lingering questions about the Health Insurance Marketplace created under the Affordable Care Act is whether plans on the Marketplace are considered part of a Federal health care program, thus opening up potential liability under the Anti-Kickback Statute. There was concern that the broad language defining a “Federal health care program” would apply to the Exchanges because of the federal tax subsidizes provided to individuals on the private market. Under 42 U.S.C. 1320a-7b(f)(1), a “Federal health care program” is defined as “any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government.” This presented the possibility that, by virtue of the inclusion of federal subsidy payments, even private insurance plans on the Marketplace and the state Exchanges would constitute Federal health care programs and necessitate compliance with the entire array of federal legal requirements. Continue reading
Tag Archives: Federal Law
This afternoon, the Department of Health and Human Services posted a long-awaited, 563-page omnibus final rule under HIPAA, which will be published in the Federal Register on January 25, 2013, and which makes a variety of modifications to HIPAA’s Privacy, Security, Breach Notification, and Enforcement Rules. According to the executive summary of the rule, these modifications are necessary “to strengthen the privacy and security protections . . . for individual’s health information maintained in electronic health records and other formats. This final rule also makes changes to the HIPAA rules that are designed to increase flexibility for and decrease burden on the regulated entities, as well as to harmonize certain requirements with those under the Department’s Human Subjects Protections regulations.”
Note that while the effective date of the final rules is March 26, 2013, covered entities have until September 23, 2013, to achieve compliance.
We will have further analysis on this final rule in the coming days.
In a recent audit of the New York State Department of Health (DOH), the Office of the Inspector General of the United States Department of Health and Human Services (OIG) found that several New York City area providers billed Medicaid for services that did not meet state and federal requirements. OIG recommended that DOH refund nearly $7.8 million to the federal government and that the both DOH and the New York State Office for People with Developmental Disabilities (OPWDD) alter its policies and procedures. Continue reading
The federal government’s Office of the Inspector General (“OIG”), part of the United States Department of Health and Human Services, is considering revising its self-disclosure protocol to provide additional guidance to federal health care program providers. The OIG is soliciting comments from all sources on the process by which health care providers can report overpayments and potential fraud.
The current OIG self-disclosure protocol was issued in 1998 and is available here. The OIG Provider Self-Disclosure Protocol established the process by which providers self-reported overpayments and potential fraud thereby satisfying their obligation to do so under federal law. Continue reading
The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) recently released their Annual Report for Fiscal Year 2011 under the Hart-Scott-Rodino Antitrust Act. In brief, the Hart-Scott-Rodino Act allows the DOJ and FTC to block transactions believed to be harmful to competition and consumers. The Annual Report reviews the enforcement activities undertaken by these federal agencies during the prior year.
Under the power granted by the Hart-Scott-Rodino Act, the DOJ and FTC identify and intervene early in transactions viewed as anticompetitive. This means that a relatively small number of challenged transactions require litigation. For instance, of the 17 transactions challenged in 2011 by the FTC, only three matters required court action. While healthcare transactions are becoming an increasingly common target for these challenges, the number of hospital mergers reviewed last year under the Hart-Scott-Rodino Act were essentially the same as the prior year. Thus, it appears that the DOJ and FTC are now reviewing a wider array of transactions in the healthcare industry. Continue reading
Tax Dollars at Work: Federal Government Spent $102 million in Auditing Fees to Identify Less Than $20 Million in Medicaid Overpayments
The Government Accountability Office (“GAO”) has released a report following its review of the National Medicaid Audit Program. The GAO has determined that this program, designed to fight Medicaid fraud, has cost the United States at least $102 million in auditing fees since 2008 while identifying less than $20 million in overpayments. Analysis of the GAO’s findings will soon follow.
This post was contributed by David Ross.
On May 10, 2012, the United States Court of Appeals for the Ninth Circuit issued its opinion in United States v. Zhou, No. 10-50231 (9th Cir. May 10, 2012), and held that the criminal misdemeanor provision of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), located at 42 U.S.C. § 1320d-6(a)(2)—which penalizes the mere unauthorized access to patient documents—does not require a defendant to know that his or her actions were illegal under the statute.
According to press accounts, the defendant, Huping Zhou, was hired as a research assistant at the UCLA Health System in February of 2003. On October 29 of that same year, UCLA issued a notice of intent to dismiss Zhou, citing poor performance. That evening, Zhou, for reasons that were not made clear, allegedly accessed the patient records of co-workers and well-known actors, including Tom Hanks, Drew Barrymore, and Arnold Schwarzenegger, without authorization. UCLA terminated the defendant from his job on November 14, 2003, after a formal internal grievance hearing. 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
“Fighting Fraud. Improving Integrity and Quality. Saving Taxpayer Dollars.”
This phrase appears on each page of the newly released New York State Office of the Medicaid Inspector General (OMIG) State Fiscal Year 2012-2013 Work Plan.
On the Executive Summary page, the OMIG’s stated mission is to “enhance the integrity of the New York State Medicaid program by preventing and detecting fraudulent, abusive and wasteful practices within the Medicaid program and recovering improperly expended Medicaid funds while promoting high-quality patient care.”
Fraud is generally defined in the Medicaid context as intentional acts of improper billing. Matters involving actual fraud—which are criminal in nature—are typically referred by the OMIG to the New York State Attorney’s General’s Medicaid Fraud Control Unit pursuant to a memorandum of understanding between the two agencies, or referred to other criminal law enforcement authorities. Matters involving “abuse” or “waste” are different matters entirely, and involve unintentional, inadvertent acts, or even negligent acts, of erroneous or improper Medicaid billing.
Of course, if the OMIG limited itself to fighting actual fraud, most Medicaid providers would breathe a sigh of relief, as those pesky OMIG audits, which seek extrapolated recoveries of overpayments based largely upon technical deficiencies in record keeping, would disappear. Will the new Medicaid Inspector General, James Cox, steer the agency away from the OMIG’s historical tendency to impose, sometimes retroactively, hypertechnical interpretations of regulations or policies upon providers? Only time will tell. Continue reading
Supreme Court Upholds Applicability of Federal Arbitration Act to Predispute Nursing Home Arbitration Agreements
The use of arbitration clauses in nursing home admission agreements is a growing trend. In some states, however, there is bias against the enforcement of such clauses, particularly those adopted prior to the occurrence of the events that give rise to the dispute. Some state courts have gone so far as to hold that predispute arbitration clauses in nursing home admission agreements are unenforceable as a matter of public policy. This was the conclusion, albeit an erroneous one, in a pair of recent decisions from the Supreme Court of Appeals of West Virginia. Continue reading