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South Shore Physicians Hospital Organization in Kickback Scheme — Did DOJ Get it Wrong?

February 1, 2015 Leave a comment

In its news release on January 20, the U.S. Attorney’s Office for the District of Massachusetts announced that that the South Shore Physician Hospital Organization in South Weymouth has agreed to pay $1.775 million to settle allegations of operating a recruitment grant program through which it paid kickbacks to its physician members in exchange for patient referrals.  The news release talks about false claims as if the care was not given, but the claims were only “false” because of the kickback taint.

There is great pressure on physicians and hospitals to form networks to capture patients, improve care, and reduce costs.

Without knowing, I am guessing that the grant program by SSPHO was intended to build the network and reward physicians who joined (and referrals were probably required to be made to the hospital and other physician network members). I can see how this could be construed to be a kickback, but we need these networks and I suspect that no harm was done to the Medicare or Medicaid programs.

Even if my guess about the SSPHO is wrong, it’s still time that we allowed healthcare innovators and entrepreneurs to act like real business people and recruit and reward participants in a sensible and straightforward manner — without calling it a kickback.

 

CMS Leaves its Finger in the Dike by Extending its Temporary Moratoria on Enrollment

February 1, 2015 Leave a comment

On January 29, CMS announced last week that it would extend the “temporary moratoria on the enrollment of new ambulance suppliers and home health agencies (HHAs) in specific locations within designated metropolitan areas in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey to prevent and combat fraud, waste, and abuse.”  The Federal Register will publish this announcement on February 2, 2015.

The ACA allows the HHS Secretary to impose a temporary moratorium on the enrollment of new Medicare, Medicaid or CHIP providers and suppliers to prevent (or combat) fraud, abuse, or waste.  The moratorium is for six months and can be extended in 6-month increments.

The war on healthcare fraud is a lot like fighting roaches in Florida.  You can be very vigilant, keep a clean house, and use pesticide regularly, but there will always be roaches — bigger and stronger ones to replace the ones you kill.  Likewise, we spend lots of money and devote significant resources to fighting healthcare fraud, and no matter how many fraud mongers we put out of business, there are always more to take their places.

The dike has to many leaks.  One wonders how much more legitimate healthcare could be given if so much wasn’t siphoned off by bad guys, but is there a practical solution?

ICYMI: Last 2 Weeks’ Hot Stories in Health Law

October 3, 2014 Leave a comment

In the roller coaster world of health law, there are always a lot of hot stories — many more than what I list.  And my list will be different from yours.

In any event, here are 20 stories from the last 2 weeks that you would not want to have missed (in no particular order) (why 2 weeks?  because I got so busy dealing with my own hot stories in health law that I missed last week) :

  1. HHS issues guidance on same sex spouses and HIPAA — “The HIPAA Privacy Rule contains several provisions that recognize the integral role that family members, such as spouses, often play in a patient’s health care. …   The term marriage includes both same-sex and opposite-sex marriages, and family member includes dependents of those marriages.”  The bureaucracy churns along in an objective, nonjudgmental manner to give practical meaning to the Supreme Court’s decision in United States v. Windsor (which held DOMA unconstitutional).
  2. Think Further — I have read about the The Fred Alger Management Team’s Think Further project.  Recently, they have asked what innovative changes would be expected that the medical and healthcare industry will be going through over the next 50 years.  A number of bloggers are talking about the results.  I think you will them interesting also.
  3. Medicaid expansion gain momentum in initially reluctant states — As Reuters says “money talks” and Medicaid expansion has meant big federal subsidies.  The bottom line, of course, even for the jaded Republican flatworlders, is to reduce the uninsured and somehow move from sick care to health care.  In addition, the New York Times reports more insurers are expected to enter the exchanges , and Health News Florida reports that four new insurers have entered the Florida marketplace.  Alabama gubernatorial candidate Parker Griffith has expressed his desire to expand Medicaid — by taking advantage of the funds available from the Affordable Care Act.  (OK — expanding healthcare has always been the goal, and that’s a good thing.  But the funds have always been there, so why the 4-year delay?)
  4. Four more hospital systems recently have dropped out of the Pioneer Accountable Care Organization program — “Three years after the Centers For Medicare & Medicaid Services selected 32 groups to participate in the Pioneer Accountable Care Organization Model program, they are down to 19 players. Officials say that navigating the program’s rules has proved challenging.”  Frankly, ACOs work best with physicians who try to control costs by reducing unnecessary, expensive hospital procedures and admissions, so hospitals dropping out of ACOs should not surprise anyone.  And, as an aside, hospitals have been engaging in full-scale war against physicians for some time — they have the time, the money, and the manpower to marginalize the independent role of physicians in healthcare, and that would be an unfortunate outcome for America.
  5. Obamacare reduces hospitals’ uncompensated care costs — The Washington Post’s Wonkblog reports  “The Obama administration is projecting that hospitals will face $5.7 billion less in uncompensated care costs than they otherwise would have in the first full year of the Affordable Care Act’s coverage expansion.  It is no surprise that the reduction has been larger in those which have expanded Medicaid.
  6. ACO “experiment” rewards better health care at lower costs — The major goal of Obamacare was to incentivize patients and healthcare providers to care about health care rather than sick care.  ACOs were an important component of that goal.  It seems that they may be working.
  7. Involving patients in their care can result in better, more efficient health care outcomes — According to the Health Affairs Blog,   “There is growing evidence that patients, once engaged, take better care of themselves. They’re more likely to monitor their own health, take their medicines, and communicate more thoroughly with their care providers. They have a better understanding of the treatment strategy. And they are more likely to participate in clinical studies or other research to find better, more efficient treatments.”
  8. 7th Circuit Court of Appeals rejects physician lawsuit challenging the delay of Obamacare’s employer mandate — The Association of American Physicians and Surgeons, which brought the lawsuit, argued that the delay could hurt doctors financially.  The physicians’ case is similar to the one that House Republicans plan to file against the President.  The appeals court’s opinion was the equivalent of asking the plaintiffs, “seriously?”
  9. Gynecologists continue to employ morcellators after FDA warning — WSJ reports that “[d]octors nationwide are still using a gynecological tool [morcellators] months after the U.S. Food and Drug Administration warned that it can spread undetected cancer…”  Morcellators are used to remove common benign uterine growths known as fibroids, often in minimally invasive hysterectomies.  The FDA warned that the tool can spread undetected cancer.
  10. Consumer Group Sues 2 More Calif. Plans Over Narrow Networks — Kaiser Health News reports about two lawsuits filed in Los Angeles by a consumer advocacy group, Consumer Watchdog, against insurers Cigna and Blue Shield of California because they “misled consumers about the size of their networks of doctors and hospitals, leaving enrollees frustrated and owing large bills.”  One of the ways insurers are controlling costs (and the cynical say fighting Obamacare) is to reduce their network size.
  11. Debut of the “Open Payments” Website — CMS launched its national databank containing information on the financial relationships between physicians (which includes dentists, chiropractors, and other physician specialties) and teaching hospitals, applicable manufacturers, and group purchasing organizations as required by the Physician Payments Sunshine Act.  I have previously blogged about Open Payments and transparency.
  12. Oklahoma District Court Rules Against Subsidies for Federal Exchanges — This is another case in the controversy (previously commented on) of whether consumers in states that refused to set up their own insurance exchanges are entitled to federal subsidies when they purchase health insurance from the federally run exchange.  These cases will likely put Obamacare in the crosshairs of the U.S. Supreme Court again.
  13. OIG Proposes Revisions to Anti-Kickback Safe Harbors and Civil Monetary Penalties — OIG states that its goal in proposing the revisions “is to protect beneficial arrangements that enhance the efficient and effective delivery of health care and promote the best interests of patients, while also protecting the Federal health care programs and beneficiaries from undue risk of harm associated with referral payments.”  The proposed rules also contain a revised definition of “remuneration.”
  14. Medicare Fraud, Abuse, and Waste — Apparently a number of folks have not gotten the message that cheating the government and billing and collecting for services not performed will cost you a lot of money and may also land you in jail.  Not surprisingly, home health seems to be the fraudulent activity of choice.  Here are a few examples from last week:  (a) Two Detroit-area residents were arrested today on charges related to a Medicare fraud scheme in which they are alleged to have referred Medicare beneficiaries to home health care agencies in exchange for kickbacks. (b) The owner of a Miami home health care agency was arrested in connection with an $8 million health care fraud scheme involving Acclaim Home Healthcare Inc.  (c) Six South Florida residents were indicted for their alleged participation in a $6.2 million Medicare fraud scheme involving defunct home health care company Professional Medical Home Health LLC.   (d) Caremark L.L.C., a pharmacy benefit management company agreed to pay the United States $6 million to settle allegations that it knowingly failed to reimburse Medicaid for prescription drug costs paid on behalf of Medicaid beneficiaries who also were eligible for drug benefits under Caremark-administered private health plans.
  15. Canceled Health Plans — Kaiser Health News reports that “Thousands of consumers who were granted a reprieve to keep insurance plans that don’t meet the federal health law’s standards are now learning those plans will be discontinued at year’s end, and they’ll have to choose a new policy, which may cost more.”
  16. 13 Of 20 Texas Abortion Clinics Likely To Close After 5th Circuit Court of Appeals Ruling — Last August, a U.S. District Judge ruled that the purpose of part of a 2013 Texas law requiring abortion clinics to implement hospital-level upgrades at great cost was to make access to abortion difficult, and he suspended the upgrades requirement.  On October 2, the 5th Circuit Court of Appeals allowed Texas to immediately begin enforcing the required upgrades, which is expected to lead to the closure 13 out of 20 abortion facilities.
  17. Medicare Fines 2,610 Hospitals for Excessive Readmissions — Pursuant to the provisions of the Affordable Care Act, Medicare will be penalizing 2,610 hospitals for having too many patient readmissions.  This is the third year such penalties have been imposed.
  18. CMS Releases Report on FY2013 Results of RAC Audits — The purpose of the Recovery Audit Program “is to identify and correct Medicare and Medicaid improper payments through the efficient detection and collection of overpayments made on claims for health care services provided to Medicare and Medicaid beneficiaries, and the identification of underpayments to providers so that [CMS] and States can implement actions that will prevent future improper payments.”  For fiscal year 2013, “the Recovery Auditors identified and corrected $3.75 billion in improper payments. There were $3.65 billion collected in overpayments and $102.4 million in identified underpayments paid back to providers.”
  19. GAO Report to Congress:  Largest Issuers of Health Coverage Participated in Most Exchanges, and Number of Plans Available Varied — On September 29, the GAO released it Report to Congress examining “the number and types of issuers participating in both the individual and small-business exchanges beginning in 2014, as well as how this compared with issuer participation in the individual and small-group markets prior to the exchanges.”  The Report stated that “Most of the largest issuers of health coverage from 2012 participated in the exchanges that the Affordable Care Act required be established in all states in 2014. Previously, in 2012, while a large number of issuers participated in state individual and small-group markets, a small number of these participating issuers held a majority of the market share in terms of enrollment.”  The Report also found that the participating issuers represented a mix of larger, smaller, and new issuers.
  20. Philly immigrant group joins in discrimination complaint against HHS over language hurdle — This lawsuit was filed by Southeast Mutual Assistance Associations Coalition, Inc., a Philadelphia group that has helped immigrants sign up for health coverage on the federal exchange, for the purpose of blocking HHS from canceling the coverage as a result of issues from “data matching.”  According to CMS,  “A citizenship or immigration data matching issue can happen when the information reported in a consumer’s application, such as a Social Security or Permanent Resident Card number, is incomplete or different than the information the government has on file.”  Similar suits have been filed by the National Immigration Law Center and the Chicago-based Illinois Coalition for Immigrant and Refugee Rights.
Categories: Hot Topics

CMS launches database of manufacturer and GPO payments to physicians

October 3, 2014 Leave a comment

The following post will also be published today on the Akerman Health Rx blog.

The Affordable Care Act contains a provision known as the Physician Payments Sunshine Act, which requires the Centers for Medicare and Medicaid Services (“CMS”) to establish a national databank containing information on the financial relationships between physicians (which includes dentists, chiropractors, and other physician specialties) and teaching hospitals, applicable manufacturers, and group purchasing organizations (“GPOs”).  CMS launched its Open Payments website on September 30, 2014 , making its database available to the public.

The database is populated by information reported to CMS by applicable manufacturers and GPOs regarding their payments or other transfers of value to physicians and teaching hospitals.  It is important to note that this reported information specifically includes any ownership or investment interest that physicians (and their immediate family members) have in the manufacturers and GPOs.

CMS encourages physicians and teaching hospitals to register with the Open Payments website.  While registration is voluntary, the reported information is made available to registrants before being made public, and registrants are given an opportunity to dispute any reported information.  In fact, there is a mobile app (and other resources) that allows physicians, teaching hospitals, manufacturers, and GPOs to track provider and industry contact details, share information, and track payments and other transfers of value.

According to CMS and as reported, 4.4 Million payments valued at nearly $3.5 billion were made to 546,000 individual physicians and 1,360 teaching hospitals in the last five months of 2013.  The website will provide future reports on an annual basis.  Beginning in June 2015, it is expected to report twelve full months of data.

We know that the public, and in particular the press, will access the Open Payments database, and there will likely be a high level of misunderstanding and misinformation.  One cannot forget the feeding frenzy that arose when CMS released physician Medicare billing data  earlier this year.  Any physician who receives payments from a manufacturer or GPO would presumably want advance notice of any disclosure regarding payments to that physician.   Accordingly, any physician who does receive such payments should register on the Open Payments website and check the accuracy of all information reported about them, and be prepared to answer questions they may be asked.

The King Case and the Reach of State Legislatures

September 21, 2014 Leave a comment

On September 11, 2014, the Third Circuit Court of Appeals decided the case of King v. Governor of the State of New Jersey.

The King case deals with a New Jersey statute that prohibits licensed counselors from “sexual orientation change efforts” with clients under the age of 18.  The plaintiff-appellants, who provide licensed Christian-based counseling to minor clients seeking to reduce or eliminate same-sex attractions, challenged the N.J. statute as improperly violating their First Amendment freedoms of speech and religion.

The court affirmed the lower court’s upholding of the statute but on the basis of a much more conservative/protective analysis of the First Amendment rights.

The 3rd Circuit’s holding is in line with recent holdings from the 4th, 9th, and 11th Circuits that establish special rules for the regulation of speech that occurs pursuant to the practice of a licensed profession. (The 11th Circuit case dealt with the Florida gun-gag law on doctors.)

Though, unlike the other Circuits, the 3rd Circuit in King held that the statute must be subjected to “intermediate scrutiny” (as opposed to a more deferential review or no review) in order to “adequately protect the First Amendment interests inherent in professional speech.”

The take away here for me is that the reach of state legislatures has gotten bigger.  State legislatures are enacting laws that challenge/support the influence of religious groups (challenge, as in the King case) or political groups like the NRA (support, as in the Florida gun-gag case).  The Constitution has been a shield upholding intrusive laws that support very specific political agendas (e.g., pro-gay, pro-gun).  The politics of a state’s legislators, and the views of their supporters, will likely continue to trickle down to impact on what may be said to patients/clients by their counselors and by any other regulated professions.  I suspect that legislators will explore new ways to intrude on matters of individual choice and conscience that should be outside their interest or concern.

Last Week’s Hot Topics in Health Law

September 20, 2014 Leave a comment

The days speed by and so much happens, that it’s good to regroup over the weekend and, while enjoying a cup of coffee, see what you may have missed.  In no particular order, here are some items to be aware of:

  1. AMA Calls for Design Overhaul of Electronic Health Records to Improve Usability — The AMA, with the help of the RAND Corporation, has figured out that physicians are struggling with their EHR systems.
  2. Despite Progress, Problems—New And Old—Pop Up In Florida’s Medicaid Managed Care Program — Problems challenge Florida’s new Medicaid Managed Care system.  In other news about the struggles with Medicaid, Kaiser Health News reported on ways states game the Medicaid system.
  3. Healthcare costs in South Florida and the Nation are often Shrouded in Secrecy — The Miami Herald and WLRN-Miami Herald News have been exploring secrecy in healthcare pricing.  Interestingly, some states, e.g., New Hampshire, have better healthcare pricing transparency.
  4. USF Medical School extends deal with Tampa General — USF med students and faculty continue their relationship with TGH.  In related news, USF severed its relations with The Villages Health.
  5. OIG Issues Special Advisory Bulletin, Report on Manufacturer Copayment Coupons — Pharmaceutical manufacturers do not have adequate safeguards in place to prevent their copayment coupons from being used to fund copayments for drugs paid for by Medicare Part D.
  6. Florida Home Health Care Company and its Owners Agree to Resolve False Claims Act Allegations for $1.65 Million — A Plus Home Health Care, Inc. located in Ft. Lauderdale and its owners settle allegations against them that they hired spouses of referring physicians in a kickback scheme.   In another healthcare fraud case, Dr. Farid Fata, a Detroit-area cancer specialist, pleaded guilty to putting some of his patients through unnecessary chemotherapy treatments and then billing insurers.
  7. CMS Says ACOs Have Saved Medicare Millions and Improved Care — In a press release, CMS issued quality and financial performance results showing that Medicare ACOs “have improved patient care and produced hundreds of millions of dollars in savings for the program.”
  8. Health care still big in midterms — Healthcare issues continue to burn up the political campaign airwaves.  The Tampa Bay Times reported on some of the facts and fictions used in campaign rhetoric.
  9. 7.3 Million Who Picked Exchange Plans Paid Their Premiums — The New York Times, Bloomberg, and other news sources reported that 7.3 million people who had signed up for health insurance had paid their premiums and remained covered.
  10. More Doctors Optimistic About Future Of Medicine — More doctors are optimistic about their profession even if they remain skeptical of healthcare reform efforts.

Of course, the feeds on the right always provide a handy resource of what’s happening in health law.

Categories: Hot Topics

AMA President-Elect Wakes Up in 21st Century

September 18, 2014 Leave a comment

On Tuesday, the AMA issued a press release “AMA Calls for Design Overhaul of Electronic Health Records to Improve Usability” about its landmark study with the Rand Corporation, “confirming that discontent with electronic health records … is taking a significant toll on physicians.”  Steven J. Stack, president-elect of the AMA was quoted extensively in the release.

One has to wonder whether Steven “Rip Van Winkle” Stack has been sleeping for the past 5 years or was just off visiting relatives on a distant planet.  Same for the Rand Corporation.  One also has to wonder how much the study cost.  One can sure, however, that if the government had done the study, it would have been a clear contender for a Golden Fleece Award.

Physicians in this country have been abandoned and left alone to deal with the thousands of software charlatans selling inadequate EHR products.   Many physicians are on their second EHR system, and some are still looking for something that works.

EHRs and the data that they can produce are critical in dealing with questions of population health and focusing on prevention rather than procedures, all of which will promote more cost-effective health care.

Hopefully, now that the AMA in on task, something useful can be derived from the desolate software environment.

Vascular Access Centers: A Complex Picture

September 18, 2014 Leave a comment

Physicians are under a lot of pressure to improve their bottom line. In office procedures as described in this blog, as well as investments in surgery centers and other business ventures, all bring levels of needed regulatory compliance and increased regulatory scrutiny. From the business side, there are many stories of corporate partners from Hell! Before getting involved in any of these “opportunities,” physicians should work closely with their legal and financial advisors.  An ounce of legal prevention is worth a pound of very expensive legal cure.

Florida Healthcare Law Firm Blog

bcbs lawsuitBy: Jeff Cohen

Vascular access centers are a common ancillary service offered by a variety of physicians, mostly nephrologists.  They provide a unique setting for patients requiring interventional vascular services in connection with things like oncology, dialysis, nutritional delivery, wound healing, pain management and more.  Unlike many surgical services, however, they are typically not provided via a surgery center, but rather as part of (and inside) the physician’s practices.

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Federal Government Report Summarizes Health Care Privacy Compliance Efforts

August 31, 2014 Leave a comment

The blogger below summarizes recent reports from HHS on privacy issues. These reports demonstrate (at least, to me) that protecting the privacy of patient health information in the manner prescribed by the HIPAA (and applicable state) laws and regulations may be largely unattainable.  I have concluded that privacy does not merit the emphasis being placed on it or the financial burdens required of the health care industry in order to comply.  The task is a lot like filling up a sieve. There are more important things to worry about in American healthcare.

Wyatt HiTech Law Blog

government buildingThe U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued two reports to Congress required by Section 13402(i) of the Health Information Technology for Economic and Clinical Health (HITECH) Act:

–“Annual Report to Congress on Breaches of Unsecured Protected Health Information For Calendar Years 2011 and 2012” (the Breach Report); and

–“Annual Report to Congress on HIPAA Privacy, Security, and Breach Notification Rule Compliance For Calendar Years 2011 and 2012” (the Compliance Report).

Both of OCR’s reports (as well as previous annual reports) may be accessed here. This post discusses the Compliance Report. We summarized the Breach Report in a separate post entitled “Federal Government Report on Data Breaches in Health Care.”

OCR is the office responsible for administering and enforcing the HIPAA Privacy, Security, and Breach Notification Rules. The Compliance Report summarizes OCR’s compliance and enforcement activity with respect…

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Harvard’s Bill of Health Blog: Contraceptive Mandates and Conscience – All Objections Are Not Equal

August 30, 2014 Leave a comment

The Harvard Law School Blog, Bill of Health, recently posted an article entitled “Contraceptive Mandates and Conscience – All Objections Are Not Equal.”

… studies show that medical professionals may object to services based on clinically false information. …  If medical professionals make decisions based on ignorance, one can suspect that lay employers and patients do as well.

This suggests that individuals often lack the information necessary to truly assess their stance on morally controversial services.  While the law does (and should) play a role in protecting conscience, it seems unsatisfying when such protection is granted to those holding underdeveloped views, and at the expense of (and detriment to) those seeking legal medical services.

This seems so simple and logical.  We do not let employers make other health-related decisions for their employees, why do we let some employers make reproductive decisions for their employees based on a religious view not shared by their employees?

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