Singularity Health Law Blog

“DEATH PANELS” REDUX

CMS indicates that it is again considering compensating physicians for discussions and advice with patients concerning end of life decisions. The American Medical Association requested consideration of the issue last fall. 

OIG APPROVES PLAN FOR CALL-PAY

More and more physicians who used to accept on call duty at a hospital as part of their obligations of being part of the medical staff are insisting on receiving some form of remuneration for the inconvenience. On October 30, 2012 the Office of Inspector General of HHS posted an advisory opinion No. 12-15 approving a hospital’s plan to pay for on-call services of physicians on its medical staff.  These are for consulting physicians, not those physicians called on a regular basis to assist the ER, like intensivists, hospitalists, interventional cardiologists, etc. The concern of the OIG was the likely implication of the federal antikickback statute.  The personal services and management contracts safe harbor at 42 CFR Section 1001.952(d) doesn’t apply because it requires the aggregate amount of compensation to be identified in advance.

BACK TO THE FUTURE IF THE INSURANCE MANDATE FAILS.

 

If the Supreme Court decides to tank the Affordable Care Act and returns us to the past system, James Carville may just be right that it will be a long term boon for Democrats.   Health Care costs rose from 12% to 17% of GNP from the 1970s to the present.  An estimated 45,000 uninsured die each year over inadequate health care.  The uninsured population is approaching 50,000,000.  People with pre-existing conditions will continue to be uninsurable.  Insurance companies will continue to make money but denying coverage to keep their medical loss  ratios low and their stock prices and bonuses high. 

 Cost shifting will continue to be the major financing vehicle for hospitals and physicians to cover deficits in service shortfalls in funding from Medicare, Medicaid and the uninsured care.  Medical bankruptcy’s will continue to grow from the current 60% of bankruptcy’s.  The cost of private insurance will continue to climb as the consolidation of hospitals exercise increasing leverage to cover their costs and gain a tidy profit. The number of uninsured will continue to rise as employers continue their effort to shift the cost increases to individual employees.

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.

"SNOW" BACHMANN AND THE SEVEN FOOT DOCTORS.

It was to say the least startling to watch the Utube video of Rep. Michele Bachmann holding forth in another otherworldly tirade against “Obamacare” in Webster City, Iowa. It was even more scary to see the audience sitting their calmly, politely and acceptingly as if “chewing the cud” while her fantasies poured fourth.  This is no joke. She told her audience that a seven foot plus doctor told her that he waited on the phone for 2 hours and 15 minutes with the IRS awaiting for approvals of care for “a little lady in my office,” while patients stacked up in his waiting room.

 

MEDICARE SHARED SAVINGS PROGRAM: TWO ACO TRACKS

The final Accountable Care Organization (“ACO”) rules to be published next months continue to provide two alternative ACO “tracks” for participation, but have made one of the options more user friendly.  The Medicare Shared Savings Program (“MSSP”) is a new conceptual provision of the Obama Administration’s Accountable Care Act (“ACA”) that permits physicians and hospitals who are serving Medicare patients on a fee for service basis to band together to achieve greater efficiency and accountability through the opportunity to benefit from any cost savings to the program.

To qualify for the MSSP program ACOs must agree to take at least 5000 patients for a period of three years.  They must also select one of two tracks for providing care. The first track originally provided for a sharing of savings only for the first two years with a risk sharing for losses in the third year. The purpose of this track was to provide a level of protection for fledgling ACOs to get acclimated to the program before going at risk.  The final rules extend this option for all there years of the initial contract.

The second track if for those ACOs who already have experience with clinically integrated systems who are “spade ready” and prepared to undertake both benefits and risk for the entire program.  Second track participants have the opportunity to share in a greater amount of the savings (60%) than track one ACOs (50%).  The amounts of the savings bonuses to be paid are to some extent performance driven by 4 categories of quality measurements that the ACOs must report to the government.

For a comparison of the draft rule and final rule see below.

http://www.cms.gov/aco/downloads/Appendix-ACO-Table.pdf

 

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.

 

WASHINGTON MEDICAID ER ACCESS BANS CHALLENGED.

It looks a little messy at the moment in the State of Washington where the state legislature directed a ban on Medicaid patients using emergency rooms for non-emergent care, which is off course an expensive delivery site.  Like the austerity protests in Greece, the Washington Chapter of the American College of Emergency Physicians has mounted the battlements and filed suit to interdict the legislative decree. See Washington Chapter of the American College of Emergency Physicians v. Washington Health Care Authority, Wash. Super. Ct.,No. 11-2-0219, filed 9/3011.

 

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.