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Archive for June, 2012

Owner and Employee of Miami Home Health Company Sentenced to Prison in $22 Million Medicare Fraud Scheme

June 22, 2012 Leave a comment

See on Scoop.itHot Topics in Healthcare Law and Regulation

The owner and an employee of a Miami home health care agency were sentenced on 6/19/12 to 108 months and 46 months in prison, respectively, for their participation in a $22 million Medicare fraud scheme, announced the Department of Justice, the FBI and the Department of Health and Human Services.

See on www.justice.gov

Categories: Fraud and Abuse

Use of Electronic Health Record Systems in 2011 Among Medicare Physicians Providing Evaluation and Management Services

June 22, 2012 Leave a comment

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The OIG found that 57 percent of Medicare physicians used an EHR system at their primary practice location in 2011. Twenty-two percent of physicians first began using EHR systems to document E/M services in 2011, the year that CMS commenced its incentive program. Additionally, three of every four Medicare physicians with an EHR system used a certified system to document E/M services. Finally, although many EHR systems can assist physicians in assigning codes for E/M services, the OIG found that most Medicare physicians manually assigned E/M codes.

See on oig.hhs.gov

Oversight of Quality of Care in Medicaid Home and Community Based Services Waiver Programs

June 22, 2012 Leave a comment

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Seven of the twenty-five States that the OIG reviewed did not have adequate systems to ensure the quality of care provided to beneficiaries. Although CMS renewed the waiver programs in all seven of these States, three did not adequately correct identified problems. Not only did these States fail to correct these problems before renewal of their programs, they also had still not adequately addressed the problems long after renewal. In addition, CMS did not consistently use the few tools it has to ensure that States correct problems related to quality of care.

See on www.oig.hhs.gov

Fee-for-service medicine on the way out? | HNF Stories | Health News Florida

June 22, 2012 Leave a comment

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Fee-for-service medical practice is dying, even if the Supreme Court strikes down the entire federal health law, an increasing number of health-business analysts say.

See on www.healthnewsflorida.org

Physician’s Own Use of Hydrocodone Warrants Medicare Exclusion

June 22, 2012 Leave a comment

Health care fraud is not limited to financial misconduct.  Improper drug use can lead to exclusion from Medicare. 

In the unpublished opinion from last week reproduced below, the U.S. Court of Appeals (4th Cir.) affirmed a district court’s decision that barred a West Virginia doctor from practicing in Medicare programs for five years after the doctor diverted hydrocodone samples for his personal use.,  This case has limited precedential value but physicians and other healthcare providers should be aware of how their personal conduct can have serious repercussions.

(By the way, if this were a Florida physician, he would not be allowed to renew his license in Florida by virtue of being on the excluded entities list. New thing as of 7/1/12.   The conviction, as well, could knock him out.)

              

Morgan v. Sebelius

       U.S. Court of Appeals, Fourth Circuit

       10-2270

       June 14, 2012

       (Unpublished)

       May 17, 2012

BRETON LEE MORGAN, M.D., Plaintiff-Appellant, v. KATHLEEN SEBELIUS, Secretary of Department of Health and Human Services, Defendant-Appellee.

Case History and Disposition 
Appeal from the United States District Court for the Southern District of West Virginia, at Huntington, Robert C. Chambers, District Judge.        

Affirmed by unpublished per curiam opinion.
                                   

Opinion Text
              

PER CURIAM:
       

Breton Lee Morgan appeals a district court order dismissing his action challenging the decision of the Secretary of the United States Department of Health and Human Services (“the Secretary”) to exclude him for five years from participating in Medicare, Medicaid, and all other federally sponsored health care programs pursuant to the applicable terms of 42 U.S.C.A. §  1320a-7(a)(3) (West 2011). Finding no error, we affirm.
       

I.
       

Morgan is a physician licensed to practice medicine in West Virginia. In March 2007, he pled guilty to one count of violating 21 U.S.C. §  843(a)(3), which proscribes “knowingly or intentionally … acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” 21 U.S.C.A. §  843(a)(3) (West 1999). His plea was based upon several occasions in which Morgan obtained free hydrocodone samples from pharmaceutical representatives for his personal use by leading the representatives to believe that he would be giving the samples to his patients for medical purposes. As a result of the plea, Morgan was sentenced to 30 days’ imprisonment and three months of supervised release.
       

On May 30, 2008, the Inspector General (“I.G.”) of the Department of Health and Human Services (“HHS”) wrote Morgan, notifying him that he would be excluded for five years from participating in Medicare, Medicaid, and all other federal health-care programs pursuant to the applicable terms of 42 U.S.C.A. §  1320a-7(a)(3). This statute requires the Secretary to impose such an exclusion on “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service” if that offense consists of a “felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.” 42 U.S.C.A. §  1320-7(a)(3).
       

Morgan appealed the I.G.’s decision in a proceeding before an Administrative Law Judge (“ALJ”) in HHS’s Departmental Appeals Board (“DAB”) Civil Remedies Division. The ALJ found that the I.G. had a sufficient basis to exclude Morgan and that the five-year term of the exclusion was not unreasonable in light of applicable law.
       

Morgan then appealed the ALJ’s decision to the DAB Appellate Division on April 3, 2009. In his proceeding before the Appeals Board (the “Board”), Morgan argued, as is relevant here, that to warrant an exclusion under 42 U.S.C.A. §  1320a-7(a)(3), a conviction must be for an offense that relates to financial misconduct. Morgan maintained that his fraud conviction was not related to “financial misconduct” since he neither had a corrupt motive nor received any substantial pecuniary benefit in committing the crime to which he pled guilty. The Board rejected Morgan’s argument, finding that Morgan was excludable under §  1320a-7(a)(3) because his conviction constituted “fraud” within the plain meaning of the statute regardless of whether it was related to financial misconduct. The Board additionally concluded, in any event, that his crime was related to financial misconduct insofar as he “derived some unquantifiable measure of pecuniary value by illegally diverting the controlled substances.” 
       

Morgan subsequently brought an action in federal district court, asserting that the Board erred in failing to recognize that §  1320a-7(a)(3) applies only to offenses relating to financial misconduct. Concluding that the statute unambiguously is not limited to offenses relating to financial misconduct, the district court dismissed Morgan’s action.
       

II.
       

Reiterating his argument that §  1320a-7(a)(3) is limited to offenses relating to financial misconduct, Morgan argues that the district court erred in dismissing his suit. We disagree.
         

“We review questions of statutory construction de novo.Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003). Because the Secretary is charged with administering §  1320a-7(a)(3), the established rules of deference in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), guide our analysis. Under Chevron, if a statute is unambiguous regarding the question presented, the statute’s plain meaning controls. See Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). However, “[i]f … the statute is silent or ambiguous with respect to the specific issue before us, the question for this court becomes whether the [Secretary’s] interpretation ‘is based on a permissible construction of the statute.’” Id. (quoting Chevron, 467 U.S. at 843).
       

Under Chevron’s first step, we “employ[] traditional tools of statutory construction” in considering whether Congress addressed “the precise question at issue.” Chevron, 467 U.S. at 842, 843 n.9. In doing so, “we begin with the text and structure of the statute.” National Elec. Mfrs. Ass’n v. United States Dep’t of Energy, 654 F.3d 496, 504 (4th Cir. 2011).
       

Congress required the Secretary to exclude from participation in federal health-care programs any person who has been convicted of an offense “in connection with the delivery of a health care item or service” if that “offense consist[s] of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.” 42 U.S.C.A. §  1320-7(a)(3). It is undisputed that Morgan was convicted of a felony relating to fraud and connected to the delivery of health care. He nevertheless maintains that his conviction was not for “a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct” since his offense did not relate to financial misconduct. That is incorrect.
       

The applicable language makes clear that to warrant mandatory exclusion, an offense need only relate to at least one of five categories: (1) fraud, (2) theft, (3) embezzlement, (4) breach of fiduciary responsibility, or (5) other financial misconduct. The argument that the presence of the fifth category, “other financial misconduct,” somehow narrows the meaning of “fraud” from its ordinary usage is unpersuasive. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996) (explaining that unless there is “explicit legislative intent to the contrary,” we must give words in a statute their “plain and ordinary meaning”). Morgan maintains that if the presence of the word “other” did not have this narrowing effect, “there would be no reason to have the word ‘other’ in the statute.” Appellant’s brief at 11. But that is simply not correct. That the fifth category is “other financial misconduct” reflects the fact that the other four categories can, themselves, relate to financial misconduct. In this way, the presence of “other” eliminates the possible confusion that could have resulted from a statute that applied to “embezzlement… or financial misconduct.”
       

In fact, it is Morgan’s interpretation that would render much of the language surplusage. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (explaining that a court should “avoid a reading which renders some words altogether redundant”). Had Congress intended that an offense must relate to financial misconduct for the mandatory exclusion to apply, then it could have omitted the terms “fraud,” “theft,” “embezzlement,” and “breach of fiduciary responsibility” and simply required the exclusion for offenses “relating to financial misconduct.”
       

Furthermore, Morgan’s interpretation would not serve the statute’s purposes. See, e.g., United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (explaining that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy” (internal quotation marks omitted)). Congress enacted the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), of which 42 U.S.C. §  1320-7(a)(3) is a part, “to combat waste, fraud, and abuse in health insurance and health care delivery.” Pub. L. No. 104-191, 110 Stat. 1936, 1936 (1996). In fact, the legislative history to §  1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals and to “provide a clear and strong deterrent against the commission of criminal acts.” * S. Rep. 100-109, at 5 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686. These purposes indicate that Congress was targeting fraud generally, not simply fraud relating to financial misconduct, and none of the purposes would be served by narrowing the scope of the statute as Morgan urges.

——————————————————————————————

          

* As originally enacted, the statute made exclusion from the federal programs only optional as opposed to mandatory.

——————————————————————————————

       

Finally, it is worth noting that the Senate Report that accompanied the statute as originally enacted described the provision as applying to “a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility or financial abuse.” S. Rep. No. 100-109, at 6 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 687; see National Elec. Mfrs. Ass’n, 654 F.3d at 504-05 (“[W]e have described legislative history as one of the traditional tools of interpretation to be consulted at Chevron’s step one.”). Considering that the word “other” did not even appear in the description, there was no suggestion that Congress intended that “fraud” would have anything other than its ordinary meaning.
       

For all of these reasons, we hold that regardless of whether the district court correctly concluded that the statute unambiguously does not require that any fraud relate to financial misconduct in order to warrant the mandatory five-year exclusion, the Secretary’s construction was, at the very least, a permissible one to which we must defer.
       

III.
       

Finding no error, we affirm the district court’s dismissal of Morgan’s case.
       

AFFIRMED.

Unraveling the IT Productivity Paradox — Lessons for Health Care — NEJM

June 18, 2012 Leave a comment

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There is ongoing debate about the wisdom of the $27 billion federal investment driving the adoption of health information technology (IT) under the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. Proponents expect IT to catalyze the transformation of health care delivery in the United States from a fragmented cottage industry plagued by poor quality and high costs to a highly organized, integrated system that delivers high-quality care efficiently. Skeptics suggest that the productivity benefits of health IT have been overstated, arguing that it may create safety problems and could even increase costs.
See on www.nejm.org

10 things you hate about your EMR | Healthcare IT News

June 18, 2012 Leave a comment

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The great debate concerning electronic medical records continues to this day, and as more systems are implemented, the more issues providers and professionals have with them. That’s why we asked readers and experts alike to share with us some of their biggest gripes concerning EMRs.

See on www.healthcareitnews.com

Categories: Uncategorized

EHRs widely used but fall short of federal standards

June 15, 2012 Leave a comment

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California physicians are finding themselves cornered in an EHR catch-22, a new report finds. The data shows that although a majority of the state’s physicians now use EHRs – technology pushed by the federal government – most of the implemented systems fail to meet new federal meaningful userequirements. The report, conducted by the University of California at San Francisco (UCSF) in conjunction with the California Medical Board and the California Department of Health Care Services, comes as a disappointment for the state’s medical community.

See on www.healthcareitnews.com

Categories: Uncategorized

Escaping the EHR Trap — The Future of Health IT — NEJM

June 15, 2012 Leave a comment

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Perspective from The New England Journal of Medicine — Escaping the EHR Trap — It is a widely accepted myth that medicine requires complex, highly specialized information-technology (IT) systems. This myth continues to justify soaring IT costs, burdensome physician workloads, and stagnation in innovation — while doctors become increasingly bound to documentation and communication products that are functionally decades behind those they use in their “civilian” life.

See on www.nejm.org

9 Best Practices For Hospital Data Security in a “Bring Your Own” Era | Healthcare Information Technology

June 9, 2012 Leave a comment

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The mobility of patient data — made possible by new technologies and the proliferation of mobile devices in the workplace — is a leading factor in data breaches.
See on www.beckershospitalreview.com

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