Singularity Health Law Blog

HAZARDS OF “CLONED” MEDICAL RECORDS.

One of the “advantages“of computerized medical records is the easy ability in some programs to develop templates for the development of physician history and physicals and other documentation requirements for billing Medicare and other third party payors for services provided or in some cases not provided in order to increase payments. According to a recent article in the New York Times there has been a substantial increase in Medicare payments as the result of computer based upcoding of Medicare payment requests due to the cut and paste of various unrelated medical records to develop documentary support for higher levels of reimbursement.

 

Proposed Overpayment Rule Expands Exposure.

On February 16, 2012, the Secretary of Health and Human Services, Katherine Sebelius published a proposed new rule to implement Section 6402(a) of the Accountable Care Act that requires Medicare providers to report and repay government overpayments within the later of 60 days of being “identified” or of the date of submission of a required cost report.  The term “identified” is not defined in the Act and is the critical trigger for commencing the running of the 60 day period and the exposure for False Claims and Civil Monetary Penalty liability.

 

PPACA : 60-DAY TICKER REFUNDING MEDICARE OVERPAYMENTS.

 During the course of a compliance audit a Medicare overpayment issue arises when the auditor determines that the documentation for certain CPT codes is inadequate to justify  billing for the same. What to do and when to do it?  There is of course an obligation to return funds that constitute an overpayment by the government.  The Patient Protection and Accountable Care Act (“PPACA”) Section 6402(D)(2) provides that the money must be returned within 60 days after the date on which the report was identified; or the date any corresponding cost report is due. Failure of comply with the time frame under the PPACA can of course lead to False Claims Act liability.

DEAD PEOPLE DON’T NEED NO PSYCHOTHERAPY

The Medicare Fraud Strike Force working with the Department of Justice has been particularly active in Detroit and in Miami, two of the eight cities singled out for special attention by the government for fraud of the government.  There seems to be some kind of special axis between Detroit and Miami perhaps reflected by the recent by the migration of Cuban emigres Caridad and Clara Guiarte, who operated a medicare fraud scheme in Miami before moving to Dearborn, Michigan when things got too hot, both literally and figuratively, in Miami. They bilked the government  out of millions of dollars for providing (or not providing as the case may be) infusion therapy for treatment of the AIDS virus. Most of these schemes involve paying kickbacks to “patients” for the use of their Medicare numbers and money laundering. The sisters Guiarte were recently sentenced to 14 years in prison following their arrests in Columbia. Interesting Medicare continued to pay for a therapy that has been obsolete for a decade due to the development of new antiretroviral drugs.

FALSE CLAIMS ACT “IMPLIED CERTIFICATION” RULE UNDER FIRE

The Federal False CLaims Act, 31 USC 3729, also known as Mr. Lincoln’s law, provides greater opportunity than “Jeopardy” or any other game show for that matter, for a get rich quick windfall for plaintiffs with knowledge of false claims paid by the government and the resources to sue the malefactors on behalf of the government and the good luck to win. The penalties and potential recoveries are steep as the FCA provides for treble damages and penalties of $5000. to $10,000. for each false submission. In 2010, the federal government brought 138 FCA cases and netted about $620 Million.  There were 574 qui tam cases brought by private citizens netting $2.5 Billion of which the plaintiffs were able to share a sizable win fall percentage of recovery with the U.S. There has been a judge made evolution in the  scope of exposure under the FCA because of the adoption in certain circuits of the “Implied Certification” Rule that permits the imposition of liability on providers and manufacturers for receiving payment for services actually provided but, where there has been a failure of strict compliance with other statutes and regulations.

 

 

In Blackstone Medical Inc. v. United States ex. rel. Hutcheson, U.S. No. 11-269 and U.S. ex rel. Hutcheson v. Blackstone Medical, Inc.,  1st Cir., No. 10-1805, Mr. Hutcheson alleged that Blackstone violated provisions of the Medicare and Medicaid by providing kickbacks to doctors for using their surgical products. Blackstone itself provided no claim to the government. The federal circuit and the 1st circuit imposed FCA liability on Blackstone under a theory of implied certification even though Blackstone itself made no express certification of compliance and made no implied certification by applying for payment from the government.  The 3rd, 5th, 8th and 10th Circuit Courts of Appeal have declined to extend FCA liability as far under an implied certification theory setting up a dispute among the circuit courts which should be resolved by the U.S. Supreme Court. Certainly no one condones Blackstone’s business practices for which they should be held to account, but the larger question is whether it was the intent of Congress to create a monster liability statute that could exact such Draconian penalties for conduct so far removed from the submission of a claim.

 

CONCIERGE MEDICINE | MEDICARE OVERLAP TRAP

According to a GAO report in 2005 approximately seventy five percent of those physicians providing concierge medicine services do not opt out of Medicare, but provide some services either as a participating or non-participating physician. Those physicians must be very careful to assure that they do not charge concierge customers for any service that might be otherwise covered by Medicare which can create a potential claim for over-billing for medicare services in violation of the False Claims Act.

MEDICARE PROVIDERS | THE “OPT OUT” OPTION.

There is a fair amount of confusion afoot concerning the obligation or not of physicians to accept Medicare patients.  There is no requirement that any physician accept Medicare patients or refrain from limiting the number of Medicare patients accepted into the physician’s practice. There are circumstances when it may be in the best interest of a physician to “opt out” of Medicare.  The growth of concierge medicine  in some respects makes it safer for physicians to “opt out” of Medicare in order to avoid stepping afoul of the Medicare fee limitations by charging for services that might be construed by CMS or the OIG as being extra contractual charges which might implicate the federal false claim statute. According to 2005, General Accounting Office Survey of providers of concierge medicine, only about 25% of them had opted out and were practicing on the cash only high wire without the Medicare safety net.

 

HOME HEALTH GAMING MEDICARE?

Shocking though it might be, the U.S. Senate Finance Committee discovered recently that companies primarily organized to provide home health care services to Medicare recipients tend to tailor their care to meet government payment incentives. The care tends to follow the money to the surprise of almost no one except perhaps the finance committee. Three large home health companies and their patterns of distribution of services were reviewed by the committee. The committee found that Gentiva Health Services, Amedisys,Inc.,  and LHC Group, Inc. encouraged employees to make enough home visits to trigger incentive bonus payments offered by the government.  

 

BED, BASH & BEYOND|MEDICARE FRAUD NIGHTMARE

Hill-Rom Company, Inc., a Durable Medical Equipment Supplier has agreed to settle a Qui Tam  Medicare fraud case for $41.8 Million dollars. The suit, United States of America, ex. rel. Laurie Salmons and Lisa Brocco v. Hill-Rom Company, Inc., No. 3:05 CV 210 was filed in the U.S. District Court for the Eastern District of Tennessee in 2005. This was a citizen private attorney general case brought on behalf of the U.S. Government under the federal False Claims Act, 31 U.S.C. 3729 et seq. The plaintiffs, nurses and former employees of Hill-Rom will share millions of dollars in the settlement, the majority of which will go to the federal treasury.

IS DISCLOSURE OF PERSONAL HEALTH INFORMATION CREATED BY A FAKE DOCTOR A HIPAA VIOLATION?

Matthew Paul Brown, 30, plead guilty yesterday to a number of counts of health care fraud and criminal HIPAA violations yesterday in Federal District Court in Atlanta, Georgia.   Mr. Brown, from November, 2009 and August, 2010 persuaded a number of physicians to bill Medicare, Medicaid and private health insurance companies using their own Medicare numbers for allergy related care allegedly provided by Brown. The total amount billed was approximately 1.2 Million dollars. Brown would provide his services in physician offices or at health fairs and the physicians would pay him  50 to 85% of the charges the legitimate physicians would bill for.