Archive
‘Navigator’ flaws compound new health care law’s glitchy start
A program intended to help educate uninsured people in Western Pennsylvania about Obamacare started sluggishly because ‘navigators’ are not trained, and several positions remain vacant nearly two weeks after online insurance marketplaces went live.
Seriously, there is no way that a program this big trying to help so many people in the face of so many obstacles would not have start-up issues. Making things better should be the focus, rather than the rants of the Tea Party Congressmen.
See on triblive.com
Florida Cares About Healthcare … Not
I have been very remiss about posting for the last several weeks.
Being a Floridian is very depressing. Florida’s elected and administrative leaders have done everything they can to misinform Floridians about Obamacare, to keep the needy from accessing care, to prevent the uninsured from being able to purchase affordable health insurance, and to force healthcare providers to provide unreimbursed care.
Earlier today, Health News Florida reported on how politics over healthcare reform has become more important than either healthcare or meaningful reform.
- The New York Times reported on Tuesday that “Gov. Rick Scott and the Republican-dominated [Florida] Legislature have made it more difficult for Floridians to obtain the cheapest insurance rates under the exchange and to get help from specially trained outreach counselors.”
- The Miami Herald reported also on Tuesday that HHS Secretary Kathleen Sebelius, stated that Florida officials are “keeping information from people” in a political effort to foil the effort to enroll Floridians for health insurance.
- Florida AG Pam Bondi and CFO Jeff Atwater have also joined in the campaign of misinformation and deceit.
The list of wasted Florida tax dollars and loss of Federal funding in trying to impede Obamacare was reported by Health News Florida earlier this week. Florida’s list of shame includes the following:
- Leading the court challenge on the constitutionality of Obamacare in 2010 soon after it was signed into law. Attorney General Pam Bondi made it one of her high-profile issues, becoming a regular guest on Fox News to attack it.
- After the Supreme Court ruled the law was constitutional, the Florida Legislature told state agencies not to implement it because lawmakers felt sure the Republican party Presidential candidate, Mitt Romney, would win the election in 2012 and repeal the law.
- After Romney lost the election, governor and legislature pressured the agencies not to apply for grants related to the law; some agencies had to give back grants they had already been awarded.
- The Legislature this year voted against Florida having its own electronic marketplace for health-plan shopping, even though the state had already spent five years and several million dollars building an online shopping site, Florida Health Choices, that has yet to be used.
- After months of hearings and negotiations, the Florida Senate came up with a compromise plan on Medicaid expansion that would accomplish several things — reduce the number of uninsured Floridians by about 1 million by using federal funds, save millions of state dollars now being spent on the uninsured, and continue privatization of the Medicaid program, already well under way. But the House said no.
- The Legislature voted to strip the Insurance Commissioner’s authority to regulate health premiums for two years.
- Insurance Commissioner Kevin McCarty issued a report that predicted health premiums in Florida’s individual market would soar 30 to 40 percent, thereby producing scandalous headlines. Later, others would note that the figure failed to make adjustments for the tax credits most of those shopping in that market would qualify for. He also failed to mention that the sector he was describing accounts for only 5 percent of policies.
It’s all really quite pathetic and disgusting. It’s time to vote the bastards out.
Physician Payment Sunshine Act
The vilification of physicians continues …
The Physician Payment Sunshine Act has been around for a while now, but things are getting ready to heat up. On August 1, the federal regulations implementing the Physician Payment Sunshine Act go into effect.
The regulations were finalized last February, to “implement the requirements in section 6002 of the Affordable Care Act … . That provision requires applicable manufacturers of drugs, devices, biologicals, or medical supplies covered under [Medicare or Medicaid or CHIP] to report annually to the Secretary certain payments or other transfers of value to physicians and teaching hospitals. [The Act] also requires applicable manufacturers and applicable group purchasing organizations to report certain information regarding the ownership or investment interests held by physicians or the immediate family members of physicians in such entities.”
Medical Economics published a very good summary of the Sunshine Act, “Sunshine Act: 7 things you need to know.” Manufacturers and GPOs on August 1 will start gathering data on physicians with whom they have made a specified payment or other transfers of value or who have investment or ownership interests in the manufacturers or GPOs. The nearly 80 triple-columned pages of regulations define the various terms and explain how the data is to be gathered and reported. The data will be reported to CMS electronically by March 31, 2014 and will be available online to patients and others.
In a related story, Medical Economics reported yesterday that there is now an app for physicians to track reports made regarding them pursuant to the Act.
Thousands Of Mississippi Consumers May Not Be Offered Insurance Subsidies – Kaiser Health News
Tens of thousands of uninsured residents in the poorest and most rural parts of Mississippi may be unable to get subsidies to buy health coverage when a new online marketplace opens this fall because private insurers are avoiding a wide swath of the state. No insurer is offering to sell plans through the federal health law’s marketplaces in 36 of the state’s 82 counties, including some of the poorest parts of the Delta region, said Mississippi Insurance Commissioner Mike Chaney. As a result, 54,000 people who may qualify for subsidized coverage would be unable to get it, estimates the Center for Mississippi Health Policy, a nonpartisan research group.
See on www.kaiserhealthnews.org
Private commercial insurance companies are making this decision to deny healthcare coverage to thousands of poor rural Mississippians. This is not the fault of Obamacare. What is the solution – to give those people access to healthcare or not. State legislatures can no longer ignore the poor — the point is why should the private healthcare insureres be allowed to pick and choose like this – if they want to be licensed in Mississippi, they should be required to provide coverage throughout the state.
“Physician-owned hospitals seize their moment” – amednews.com
Physician owned and operated facilities are not necessarily bad places to go for healthcare.
American Medical News, amednews.com, reported in April 29, 2013:
When the federal government sorted through the first round of clinical information it was using to reward hospitals for providing higher-quality care in December 2012, the No. 1 hospital on the list was physician-owned Treasure Valley Hospital in Boise, Idaho. Nine of the top 10 performing hospitals were physician-owned, as were 48 of the top 100.
Yet, physicians can no longer own hospitals to which they refer their patients and are severely restricted from expanding those hospitals whose physician ownership was grandfathered.
The continued distrust of physicians and their vilification by Congress and most every state legislature hurts healthcare. It’s time to unburden physicians from lawyer mandated restrictions that never made any sense — repeal the Stark Law and every other restriction on physicians’ referring their patients to entities that they have an ownership in. The laws and the regulations that have been put into place are beyond comprehension and require physicians who are trying to be compliant to spend unnecessary dollars on lawyers. There are many appropriate tools for dealing with fraud and abuse by physicians who over utilize, or bill for services not performed, or who perform sub-par medicine — they can be professionally disciplined, lose their license, go to jail, fined. On the private side, they can be sued. Congress adopts these strict liability patient referral restrictions because they are easy to enforce. That should not be the basis for interfering with an entire industry.
Court Determines Whether Marketing Rep Was Really a Bona Fide Employee
From Akerman’s Health Law Rx Blog:
POSTED BY MICHAEL GENNETT ON FEBRUARY 14, 2013
In January, a Federal District Court in Oklahoma issued a ruling in favor of a former marketing representative of a medical equipment distributor. The Court determined that Gary Weaver was, in fact, engaged on an independent contractor basis, not as an employee, and therefore his employment agreement with Joint Technology, Inc. was an unenforceable illegal contract under the Federal Anti-Kickback Statute. Mr. Weaver was being sued by the company in order to enforce the terms on a non-compete provision in his employment agreement.
Health care providers often take advantage of the “bona fide employee” exception to the Federal Anti-Kickback Statute in order to engage marketing representatives and incentivize them to create business by paying bonuses and commissions. In addition, many states also have similar “mini” anti-kickback statutes that apply whether or not reimbursement is from Medicare or Medicaid. These exceptions allow employers to incentivize employees by paying them a portion of the business generated – something employers could not do legally with persons engaged as independent contractors.
In Weaver’s case, this was not a particularly difficult conclusion to make. His “employment agreement” had a provision which specifically said that he would not be deemed an “employee”. He was also treated as an independent contractor for tax purposes.
Whether or not someone is an independent contractor or an employee is determined by statutory and common law rules. The common law analysis is set out on the IRS’ website here. The test turns largely on control. Employers have the right to control where, when and how their employees work, whereas independent contractors control themselves. The issue is important for tax purposes (withholding, eligibility for retirement benefits, etc.), for enforcing the terms of engagement, as well as for making sure that payments to representatives are legal under the Anti-Kickback Statute.
In 1996, a Florida court came to a similar conclusion in the case of Medical Development Network, Inc. v. Professional Respiratory Care/Home Medical Equipment Services, Inc. In that case, it was the marketing company suing for non-payment, and the medical equipment company defending under the theory that the agreement was illegal and unenforceable. The Court agreed with the defendant, and disagreed with the plaintiff’s argument that the Anti-Kickback Statute only applies to health care providers. The Medical Development Network case remains good law and is a warning to healthcare providers in Florida not to pay their independent contractor marketers on a commission basis.
11th Circuit Upholds Florida’s Patient Self-Referral Act
From Akerman’s Health Law Rx Blog:
POSTED BY JOSEPH W. N. RUGG ON FEBRUARY 4, 2013
Last month, in the case Fresenius Medical Care Holdings, Inc. et al. vs. DVA Renal Healthcare, Inc., the 11th Circuit Court of Appeals upheld the constitutionality of the Florida Patient Self-Referral Act of 1992.
The Florida Legislature modeled the Florida Act after the federal Physician Self-Referral Prohibitions, or Stark law, that was passed in 1989. The Stark law has gone through a number of revisions and clarifications over the last 23 years, but the Florida Legislature has not kept the Florida Act up to date with the many changes in the Stark law. The result is that the Florida Act contains provisions that are either inconsistent with, or in some instances more burdensome than, the Stark law. This makes it difficult for healthcare businesses to operate in Florida, as Fresenius discovered.
Fresenius and the related appellants are out-of-state corporations that provide renal dialysis services in Florida, both directly and through subsidiary corporations, to patients suffering from end stage renal disease. Fresenius wanted to use a vertically integrated business model in Florida and refer all the patients’ blood work to associated laboratories. Fresenius stated that such a business model would be more efficient and better for patients. However, because the employee-physicians of Fresenius had a financial interest in the associated laboratories, they were prohibited by the Florida Act from referring their patients there for blood work.
Fresenius sued the Secretary of the Florida Department of Health and the members of the Florida Boards of Medicine and Osteopathic Medicine, arguing that the Florida Act is unconstitutional because it is (1) preempted by federal law, (2) violative of the dormant U.S. Constitution’s Commerce Clause, and (3) violative of substantive due process.
The Court of Appeals was not persuaded by any of the legal arguments made by Fresenius and upheld the constitutionality of the Florida Act.
The important take away from this case is that in Florida, as in many states, there are legal restrictions on a physician’s ability to refer patients to entities in which the physician may have an investment interest. Compliance with the Stark law is not enough. The Florida Act is much more restrictive. Moreover, Florida has its own versions of the anti-kickback and the false claims statutes. When physicians do business transactions in Florida, it is critical that all of the relevant statutes are carefully considered.
Akerman’s Health Law Rx Blog
I am pleased to announce my firm’s new health law blog, Health Law Rx Blog.
Akerman’s Health Law Rx Blog provides timely updates on the latest health law issues, keeping the firm’s clients, friends, and readers up to date on pertinent legal developments. Akerman attorneys regularly update the blog with changes in the law and other relevant news. As this is meant to be an interactive site, your comments and contributions are appreciated. I am one of the contributors, so I hope you will visit the blog often and participate in any discussions that interest you. I plan to shadow post articles from the blog that I think you will find interesting.
Content on Akerman’s Health Law Rx Blog is intended to inform you about legal developments, including recent decisions of various courts and administrative bodies. It should not be construed as legal advice or a legal opinion, and you should not act upon the information without seeking the advice of legal counsel.
With more than 550 lawyers and government affairs professionals and a network of 19 offices, Akerman is ranked among the top 100 law firms in the U.S. by The National Law Journal NLJ 250 (2012). The firm’s Healthcare Practice Group includes over twenty attorneys and professionals representing health systems, physicians, health insurers, and other clients in all aspects of healthcare law across Florida and throughout the United States.
USDOJ S.D. Florida: Owner of Miami Home Health Company Sentenced to 37 Months in Prison for $60 Million Health Care Fraud Scheme
The owner of a Miami health care agency was sentenced today to 37 months in prison for his participation in a $60 million home health Medicare fraud scheme, announced U.S. Attorney Wifredo A. Ferrer of the Southern District of Florida; Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division; Michael B. Steinbach, Acting Special Agent in Charge of the FBI’s Miami Field Office; and Special Agent in Charge Christopher B. Dennis of the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG), Office of Investigations Miami office.
Rodolfo Nieto Jr., 40, of Miami, was sentenced today by U.S. District Judge Cecilia M. Altonaga in the Southern District of Florida. In addition to his prison term, Nieto was sentenced to serve three years of supervised release and ordered to pay $1.1 million in restitution.
On Aug. 14, 2012, Nieto pleaded guilty in the Southern District of Florida to one count of conspiracy to defraud the United States and to receive health care kickbacks.
Nieto was the owner and operator of Ronat Home Health Care Inc. According to court documents, during the time of the conspiracy, Ronat was a Florida home health “staffing agency” that purported to provide home health care and physical therapy services to eligible Medicare beneficiaries. Ronat subsequently became a home health agency.
According to court documents, from approximately January 2006 to approximately November 2009, Nieto accepted kickbacks in return for recruiting Medicare beneficiaries to be placed at Nany Home Health Inc., a Miami home health agency that purported to provide home health care and physical therapy services to eligible Medicare beneficiaries. The owners and operators of Nany paid Nieto kickbacks in return for allowing Nany to bill the Medicare program on behalf of the patients Nieto had recruited through Ronat. Specifically, as part of the scheme, Nany billed Medicare for home health services purportedly provided by Ronat.
See on www.justice.gov
USDOJ E.D. California: Third Physician Sentenced To Lengthy Prison Sentence In Medicare Fraud Case
Dr. Ramanathan Prakash, 65, of Northridge, CA, was sentenced today by United States District Judge Morrison C. England, Jr. to a statutory maximum 10 year prison sentence. The defendant had been found guilty of Conspiring to Commit healthcare fraud, and three counts of healthcare fraud by a jury on July 8, 2011. Judge England also imposed a $75,000 fine and ordered Prakash to pay $607,456.80 in restitution.
According to testimony presented at trial, from February 2006 through August 2008, Vardges Egiazarian, 63, of Panorama City, owned and controlled three health care clinics in Sacramento, Richmond, and Carmichael. Egiazarian and others recruited doctors to submit applications to Medicare for billing numbers. Prakash participated in the establishment of a clinic in Sacramento, although he lived in the Los Angeles area. He established the Medicare provider number for the clinic, signed the lease and established a bank account for the clinic. He only visited the clinic twice.According to evidence at trial, Prakash never treated a single patient at the clinic. Clinic patients, almost all of whom were elderly and non-English speaking, were recruited and transported to the clinics by individuals who were paid according to the number of patients they brought to the facilities. Rather than being charged a co-payment, the patients were paid for their time and the use of their Medicare eligibility, generally $100 per visit. False charts were created stating that each patient received comprehensive exams and a broad array of diagnostic tests. Few of these tests were ever performed, none were performed based on any medical need, and clinic employees filled out other portions of the charts using preprinted templates. Some clinic employees admitted to performing various tests on themselves, and placing the results in patient files.
Patient files were then transported to Los Angeles where Prakash signed them indicating he provided or approved the treatments. In all, the three clinics submitted more than $5 million worth of fraudulent claims to Medicare, $1.7 million of which was actually paid. In return for their roles, Prakash and the other physicians received 20 percent of the billings paid under their provider numbers.
See on www.justice.gov
For an aggregation of other articles on Hot Topics in Healthcare Law, go to my magazine on Scoop.it – Hot Topics in Healthcare Law and Regulation and my newspaper on Paper.li – Hot Topics in Healthcare Law.
For an aggregation of other articles on improving healthcare, go to my internet magazine Scoop.it! Changing Health for the Better.
Joseph Rugg's Health Law Blog 