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
A few bills of note for health care providers in New York were introduced in the New York State Senate with the opening of the 2013 legislative session. Each of these bills was formally introduced on January 9 and referred to the Senate Health Committee.
- An act allowing patients to see their laboratory results upon request
S.634-2013, available at http://open.nysenate.gov/legislation/bill/S634-2013
Senator Stavisky introduced a bill that would allow clinical laboratories to report test results to the patients tested. The bill would amend the Public Health Law to create a new section 576-D, which would require clinical laboratories to report test results to patients upon request. Laboratories would have to include disclaimers with these results that caution patients that the reports themselves are not medical advice, and that the reports do not replace communicating with one’s doctor.
- The Safe Patient Handling Act
S.1123-2013, available at http://open.nysenate.gov/legislation/bill/S1123-2013
Senators Maziariz, Grisanti, Boncic, Kennedy, Montgomery, and Perkins introduced the bill. S.1123, the “Safe Patient Handling Act,” which would apply to nursing homes and hospitals, would amend the Public Health Law and Education Law to create a new work group within the New York State Department of Health (“DOH”) to establish safe patient handling guidelines state-wide. The work group would be required to generate a report for the Commissioner of Health by 2016. § 2997-H(4). Furthermore, the Commissioner would be tasked with promulgating new regulations concerning safe patient handling across the state. § 2997(J)(1). Facilities covered would have to file a compliance plan by July of 2017, which DOH would have to accept by July of 2018. § 2997-J(3).
The New York State Senate Health Committee will consider a bill that may ultimately require nursing homes, adult homes, senior centers, and other residential health care facilities to use environmentally-sensitive cleaning and maintenance products. Senator Diaz will introduce the bill on January 9.
The bill, S.866-2013, would require the Commissioner of Health to create “guidelines and specifications” for the use of environmentally-sensitive cleaning supplies in covered facilities, which include nursing homes and adult care facilities. § 1. The act would become part of the Public Health Law and would be effective as of September 1st after the date the bill passes. § 2. The Department of Health would have to consult federal and other relevant environmental guidance documents concerning such supplies before issuing any guidelines. § 1. Continue reading
On Wednesday, August 22, 2012, the New York State Department of Health (“DOH”) agreed to pay the owners of the Beechwood Nursing Home, located in Rochester, New York, $25 million dollars to settle litigation in which a federal jury had already determined that DOH officials had illegally revoked the operating license of the facility in 1999 in a retaliation against its owners, resulting in Beechwood’s closure. The jury was scheduled to decide how much to award in damages when the parties reached a settlement.
The Rochester Democrat and Chronicle filed this report on the settlement. According to that article, the presentation of provocative e-mails, written by DOH officials in the wake of Beechwood’s closure, was a key point in the case. Jurors in the case “pointed to the emails as the proof they needed of the state’s malice.” Although Beechwood’s owners sued multiple DOH officials at the outset of the litigation in 2002, five were eventually found liable for the illegal revocation of the operating license: current Health Department officials Susan Baker and Cynthia Francis, and former officials Laura Leeds, Sanford Rubin, and Sharon Carlo. These individuals will not be personally liable for the $25 million settlement; New York State will pay the award.
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
Today, Governor Andrew M. Cuomo, Senate Majority Leader Dean Skelos, and Assembly Speaker Sheldon Silver announced an agreement on legislation that will establish a new Justice Center for the Protection of People with Special Needs, which will change how the state protects New Yorkers in state-operated, certified, or licensed facilities and programs.
As we previously reported, Governor Cuomo first proposed the “Protection of People with Special Needs Act” on May 7, 2012.
Governor Andrew Cuomo announced on Tuesday, June 5, that New York State will seek to spend $10 billion in Medicaid savings to redesign the state’s health care system.
The state must ask the Federal Department of Health and Human Services (“HHS”) for a waiver that would allow the state to use up to $10 billion of the $17 to $18 billion it is projected to save in its Medicaid redesign program. The state achieved these savings through the Medicaid Redesign Team’s (“MRT”) recommendations; the Governor and Legislature and tasked the MRT with reforming and redesigning the state’s health care system in January of 2011. Continue reading
Increasingly, nursing homes seek guidance on the considerations involved in the use of surveillance equipment in their facilities. On May 22, 2012, the New York State Department of Health issued a “Dear Administrator Letter” (DAL) addressing the use and installation of audio and/or video surveillance equipment in nursing homes. The DAL is available here. Continue reading
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
President Obama’s recently released deficit reduction plan proposes to cut more than $320 billion dollars in Medicare and Medicaid spending over the next decade. Within the planned cuts are proposals designed to curb $42 billion dollars of Medicare reimbursement to SNFs and other post-acute facilities. According to the President, expenditures for services these facilities provide have “increased dramatically” and risen above “the costs of providing high quality and efficient care.” In the end, he argues, reimbursement for these services has placed “a drain on Medicare.” Continue reading