Healthcare Law Blog

CMS Executes About-Face on Pre-Dispute Arbitration Ban

The Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule on June 5, 2017, that serves as an effective course reversal on pre-dispute arbitration agreements in a long-term care (“LTC”) setting. This caps off an effort by many in the healthcare and nursing home industry to stop the prior rule, which banned such agreements, from taking effect. More >

"Incident to" Billing - Easy to Get Wrong

Billing for medical services is never easy. Despite attempts by the Centers for Medicare & Medicaid Services (“CMS”) to simplify the rule regarding “incident to” billing for Medicare services, it remains misunderstood by a large swath of providers. This proves problematic, as incorrect billing practices may lead to overpayments and False Claims Act violations. Billing for “incident to” services is an important mechanism to reflect the actual value of mid-level services provided under the specific plan of a physician. When properly followed, the “incident to” rules allow physicians to bill for services provided by non-physician practitioners as if they were performed by the physician at physician reimbursement rates. Additionally, the non-physician provider can be an employee, an independent contractor or even a leased employee, provided that they are supervised by a physician and the requirements are met. Because of the confusing nature of allowing a physician to bill for services he or she did not directly provide to the patient, serious landmines exist that can create problems if the rules are not scrupulously followed and documented. More >

Recap of the Webinar, "What Providers Should Know: Overpayments and the False Claims Act"

On May 24th and 25th, 2016, McBrayer held a webinar on what providers should know regarding overpayments and the False Claims Act.  Lisa English Hinkle and Chris Shaughnessy, McBrayer healthcare law attorneys, guided participants through the interplay between overpayments from various federal healthcare programs and violations of the False Claims Act that can accrue heavy penalties. For further information on this webinar, contact McBrayer’s Marketing Director, Morgan Hall, at mhall@mmlk.com or 859-231-8780.

Some of the information shared by the presenters is also summarized below. More >

CMS Issues Proposed Rule to Cast a Wide Program Integrity Net

On March 1, 2016, the Centers for Medicare & Medicaid Services (“CMS”) quietly issued a proposed rule that would give the agency far-reaching tools in the area of program integrity enforcement. On its face, the Rule addresses enrollment and revalidation reporting requirements for Medicare, Medicaid and CHIP, but it also significantly increases its authority with regard to the denial or revocation of providers’ Medicare enrollment. More >

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 >

CMS finalizes the 60-day overpayment rule and providers can breathe a little easier

The wait is over – in February, the Centers for Medicare & Medicaid Services (“CMS”) released its Final Rule on identifying, reporting, and returning overpayments to the Medicare and Medicaid programs. This rule is the result of provisions in the Patient Protection and Affordable Care Act (“ACA”) which created a 60-day safe harbor during which providers can identify overpayments by the two major federal healthcare programs. If a provider fails to report an overpayment within 60 days of the date that it was identified, the overpayment may be considered a violation of the federal False Claims Act (“FCA” - for more information on the FCA, please read my earlier blog posts). The Final Rule implementing this provision became effective on March 14, 2016. More >

Tidbits and Takeaways from OIG’s 2016 Work Plan

The Office of Inspector General for Health and Human Services (“OIG”) recently issued its 2016 Work Plan, which sets the agenda for its auditing and investigation in the year ahead. The broad mandate of the OIG is to eliminate fraud, waste and abuse. With the requested FY 2016 budget of $417 million, the OIG will continue its fraud-fighting efforts and heighten it focus on reducing waste in HHS programs. Waste includes not only fraud, but also unnecessary services, inefficient delivery of care or service, poor quality of care or services, inflated prices, excess administrative costs, or mismanagement of grant or contract funds. With a 2015 track record of $3 billion in recoveries; 4,112 provider exclusions from participation in federal health care programs; 925 criminal actions and 682 civil and administrative enforcement actions and a return on investment of $8 for every $1 spent, the OIG is a force to be avoided. The yearly work plan provides a list of priorities for the office, and in turn gives providers insight into areas of concern in practice. The following areas are on OIG’s radar for the coming year: More >

Providers Wary after First Ruling on 60-Day Rule

The False Claims Act (“FCA”) is already a minefield for healthcare providers, especially when coupled with the Stark Law. Treble damages and fines of up to $11,000 per violation add up quickly under the FCA. The U.S. District Court for the Southern District of New York just made further FCA “reverse false claims” nightmares that much more of a reality in the case of Kane v. Healthfirst. That case is illustrative of how the government will interpret and enforce the Centers for Medicare & Medicaid Services’ (“CMS”) “60-day rule” for retention of overpayments, and the result should make all healthcare providers take notice. More >

CMS Sends a Lifeline on Stark after Tuomey Affirmed: What Health Providers Should Know

In July, the Court of Appeals for the Fourth Circuit upheld a record verdict of $237 million against Tuomey Healthcare Systems in the case of U.S. ex rel. Drakeford v. Tuomey Healthcare System, Inc. for violations of the False Claims Act and the Stark Law. Tuomey allegedly violated these laws in over 21,000 claims, submitting bills to Medicare worth $39 million. The False Claims Act allows up to triple damages per claim, as well as a penalty of up to $11,000 per violation. Perhaps in light of such a verdict, the Center for Medicare & Medicaid Services (“CMS”) issued a set of proposed changes and clarifications to the Stark Law that should help healthcare providers to breathe a sigh of relief. More >

CMS Proposes Sweeping Changes for Nursing Home Oversight

On July 16, 2015, the Center for Medicare and Medicaid Services (“CMS”) published a Proposed Rule with new standards that will have a sweeping effect on the long-term care industry. This new Rule is the first comprehensive review and update to Medicare and Medicaid nursing home standards since 1991. Since the last update, the number of Medicare beneficiaries, excluding Medicare Advantage beneficiaries, residing in nursing homes has tripled to 1.8 million residents and the Medicaid Program has become the primary payer of long term care (64% of residents are on Medicaid).[1] More >