Healthcare Law Blog

Webinar - What Health Providers Should Know: Overpayments and the False Claims Act

When CMS released its Medicare Fee-for-Service 2015 Improper Payments Report, Kentucky’s projected overpayment rate was a hefty 15.4%, bringing Kentucky in among the top ten states for overpayment. As healthcare providers should know, failure to report identified payments can lead to violations of the False Claims Act. CMS recently finalized the infamous “60-day rule,” which governs how overpayments can become False Claims Act violations, and practitioners should be fully aware of how overpayments are identified and reported for the purposes of the rule, lest they be subject to extreme penalties. With these fraud and abuse rules working together to provide stiffer penalties for overpayments, what can practitioners do to prevent them?  More >

Good News, Providers: A Mere Difference of Medical Opinion Does Not A False Claim Make

FINALLY, some good news for providers related to false claims. In a very important Alabama case, a federal trial court granted summary judgment to AseraCare, Inc., in a False Claims Act[1] action where it had been alleged that the hospice program had knowingly submitted false claims to Medicare for patients who were allegedly not terminally ill. In its opinion, the U.S. District Court ruled that the Government may not prove falsity for purposes of the False Claims Act based solely upon the opinion of one medical expert who disagrees with the certifying physician and the patient's treating physicians about whether the medical records reported eligibility for the hospice benefit. In a ruling that all health providers can cheer, the court held that "[a] mere difference of opinion between physicians, without more, is not enough to show falsity."[2]

[1] 31 U.S.C. §§ 3729–3733

[2] United States v. AseraCare, lnc., No. 2:12-CV-245-KOB (MD

Alabama March 31, 2016) at 2. More >

HHS Finalizes Exception to HIPAA Privacy Rule for Firearm Background Checks

In January of 2016, the Department of Health & Human Services (“HHS”) issued a final rule modifying the HIPAA Privacy Rule.[1] This modification allows certain covered entities to disclose the identities of certain individuals to the National Instant Criminal Background Check System (“NICS”), a database maintained by the FBI. The information disclosed by the entities would pertain to an individual’s mental health, preventing those subject to a federal “mental health prohibitor” from possessing or receiving a firearm. Such a disclosure naturally creates a tension in the patient-provider relationship, however, and critics contend it could potentially discourage mentally ill individuals from seeking treatment.

[1] 45 C.F.R. §164 (2016) More >

New Stark Law Exception Breathes Life into Primary Care, Especially in Underserved Areas

With the recent and significant shortages of primary care providers, the Centers for Medicare & Medicaid Services (“CMS”) recently created a rather important exception to the Stark Law as a means to expand access to primary care and mental health care through incentives for non-physician practitioners.  The Stark Law prohibits referrals for Medicare and Medicaid services from physicians to other entities if the physician has a financial relationship with that entity, such as ownership, investment or a structured compensation arrangement. Under the new exception, hospitals, federally qualified health centers (“FQHCs”) and rural health clinics (“RHCs”) may give financial assistance to a physician or a physician practice to hire a non-physician provider (“NPP”), and this relief opens the door for expanded practices in primary care and mental health at a time when the need is critical. More >