Georgia's Trusted Healthcare
& Medical Provider Attorneys

Jeyaram & Associate Medicaid Fraud Expert Interviewed On “Mostly Medicaid”

Medicaid FraudJeyaram & Associate attorney Kimberly Sheridan was interviewed about Medicaid fraud.

The segment originally aired today on the national site “Mostly Medicaid.”

To hear the interview, click here.

 

Medicare & Medicaid Deadline For Overpayment Clarified

60 Days Medicaid and Medicare RuleFederal Court Finds Sixty Day Rule Deadline Begins to Run When Put on Notice of Potential Overpayments

When the Affordable Care Act (ACA) was passed, a new requirement for reporting overpayments was created. This new obligation, often referred to as the ‘Sixty Day Rule’ requires providers who receive an overpayment of Medicare or Medicaid funds to “report and return” the overpayment to the government.

According to the statute, an overpayment must be reported and returned within sixty days of the “date on which the overpayment was identified.” Failing to do so is a violation of the False Claims Act.

Although Centers for Medicare and Medicaid Services (CMS) has provided some guidance on when an overpayment is “identified” within the context of Medicare, now a New York Federal Court has weighed in on the meaning and application of the ACA sixty-day rule as it applies to Medicaid.

In a case before a New York Federal Court, the U.S. Department of Justice asserted that a hospital improperly billed Medicaid in 2009 and 2010 and violated the FCA by delaying the return of overpayments. Such overpayments were the result of a billing system software glitch. The case was brought with the assistance of a former employee who had investigated the issue. Such employee had provided to hospital administrators a list of around 900 claims that were likely affected by the glitch which was subsequently ignored by the hospital.

The Court had to decide how to define the key term in the statute – “identified.” In the case, the former employee had not conclusively proven the identity of any overpayments. As it turned out, hundreds of the claims he listed had not actually been overpaid. However, he did recognize nearly five hundred claims that did in fact turn out to be overpaid as worthy of attention.

After looking at the legislative history and purpose, the Court concluded that the 60-day clock begins ticking when a provider is put on notice of a potential overpayment, rather than when the overpayment is conclusively ascertained. This holding is in line with CMS’s patchwork of guidance for Medicare overpayments.

As a result, providers facing a potential overpayment must take action immediately to meet the 60 day deadline and avoid False Claims liability. Every health care practice should have a protocol in place to ensure that possible overpayments are investigated in a timely manner and such investigation is documented appropriately. Failure to report overpayments within that time frame could subject providers to huge penalties.  

If you have any questions about the 60-day rule or need assistance with investigating and reporting a potential overpayment contact Danielle Hildebrand at dhildebrand@jeylaw.com.

Free Introductory Home Health Visits Don’t Violate Anti-Kickback Law

Anti-Kickback StatuteInspector General: No Kickback violation for free home health introductory visits

The Office of the Inspector General issued an advisory opinion clearing the way for home health providers who provide “introductory” home visits to individuals who eventually become their clients. The OIG advised that home healthcare providers who contact  patients after being selected by that patient and provide information to those patients about their services, do not violate the federal Anti-Kickback statute.

The Federal Anti-Kickback law makes it a criminal offense to knowingly and willfully offer, pay, solicit or receive anything of value in exchange for inducing or rewarding referrals of items or services reimbursable by a Federal health program

The OIG’s office stated that the “primary purpose of the Introductory Visit is to facilitate the patient’s transition to home health services in an effort to increase compliance with the post-acute treatment plan.” In addition, the OIG”s noted that during the “Introductory” visit, the health care provider ‘”does not provide any type of  any federally reimbursable diagnostic or therapeutic services during the Introductory Visits,” which occur where a patient is receiving care whether it’s a physician’s office, hospital or personal home. Further, the home health provider is not involved in any way in the patient’s selection process and “Introductory Visits” do not provide any actual or economic benefit to the patients. .

It’s important to reiterate, that healthcare providers should not contact the patient prior to receiving notification from the  patient that they have been selected nor can the “Introductory Visits” be a covered service under Medicare or Medicaid, or reimbursed by third-party payors. These actions could violate the Anti-Kickback statute.

To read the full opinion, click here.

For more information, please contact Kimberly Sheridan at 678-708-4703.

Physicians Need To Be Prepared For Increased Medicare & Medicaid Fraud Scrutiny

doctor-in-handcuffs-caption-1HHS increases resources to root out and penalize fraud:  Review existing financial arrangements NOW

On June 30th the federal Department of Health and Human Services Office of the Inspector General announced that it has created a specialized unit comprised of attorneys focused on Medicare and Medicaid fraud. This announcement comes on the heels of the OIG Special Fraud Alert reminding physicians of anti-kickback liability for illegal compensation related to arrangements with healthcare institutions.

Physicians should be prepared for increased scrutiny and an uptick in enforcement actions for kickback violations. According to OIG official Lisa Re, the new unit will be targeting kickback cases and will be going after not only the individual or organization paying the kickbacks but also the recipient of the kickbacks, e.g., the physicians.

Physicians who have financial arrangements that violate the Federal Anti-Kickback Statute would not only be subject to fines in the form of Civil Money Penalties, but could also be excluded from the Medicare and Medicaid programs.

Now is the time for physicians to review existing or proposed financial arrangements to ensure that they do not pose any risk of violating the Anti-Kickback Statute.

If you have any questions about a particular arrangement our attorneys can help. Please call Danielle Hildebrand or DJ Jeyaram at 678-325-3872 for legal counsel.

CMS Proposes Changes In Rules For CMOs

For the first time in more than a decade, the Centers CMOfor Medicare and Medicaid Services issued proposed changes in rules affecting Care Management Organizations

On June 1, 2015, the Centers for Medicare and Medicaid Services (“CMS”) published a proposed rule affecting Care Management Organizations (CMOs) that administer Medicaid benefits.  This is the first major overhaul of the managed care system since 2002.  Most believe these changes are long overdue as CMOs now cover approximately 74 percent of all Medicaid enrollees making managed care the dominant delivery system for Medicaid.

According to CMS, the Proposed Rule will “improve beneficiary communications and access, provide new program integrity tools, support state efforts to deliver higher quality care in a cost-effective way, and better align Medicaid and CHIP managed care rules and practices with other sources of health insurance coverage.”

The Rule targets seven main areas:

  • Improvement of the beneficiary’s experience
  • State delivery system reform
  • Quality improvement
  • Program and fiscal integrity
  • Managed long-term services and supports (MLTSS) programs
  • Children’s Health Insurance Program (CHIP)
  • Alignment with Medicare Advantage and Private Coverage Plans

Public comments are due July 27, 2015. CMS has published a Fact Sheet outlining the Proposed Rule that can be found here.

We urge CMOs to familiarize themselves with the Proposed Rule and take advantage of the time period for public comment. If you have any questions involving the Proposed Rule, please contact Kimberly Sheridan at 678.325.3872.

 

CMS Proposes New Quality Reporting Measures for Medicare Payment

MedicareThe Centers for Medicare and Medicaid Services (CMS) has proposed a rule regarding Medicare payments for inpatient rehabilitation facilities. Through this new rule, CMS introduces new quality measures that will be tied to reimbursement.

Such quality measures generally focus on overall performance with respect to specific components of the health status of patients, like new or worsening pressure sores, and certain events, such as falls causing major injuries.

A facility’s failure to submit the information regarding these quality measures would result in a reduction in Medicare payments to that facility.

In the CMS publication, the government estimates the new quality reporting requirements will cost inpatient rehab facilities around $24 million. However, because the rule also proposes a modest rate increase, the government estimates that the changes under the rule will result in $130 million increase in payments to those facilities.

The Proposed Rule can be found here.

If you have questions regarding these new quality reporting requirements, please contact DJ Jeyaram or Danielle Hildebrand at 678.325.3872.

What Physicians Need to Know About the Stark In-Office Ancillary Services Exception

Stark LawThe Federal Stark Law generally prohibits physicians from referring Medicare/Medicaid payable Designated Health Services (DHS) to any organization in which they have a financial interest, including their own medical practice. Because the Stark prohibition applies when physicians refer their patients within their own practice to obtain DHS, such an arrangement must meet the requirements of an exception in order to comply with the law.

If you are a physician practice that intends to offer to your patients related services which are also DHS, for example, imaging or laboratory services, you might be able to rely upon the In-Office Ancillary Services (IOAS) exception. This exception is designed to protect the provision of Designated Health Services that are truly ancillary to the medical services being provided by your physician practice.

In order to take advantage of this exception, your practice must meet three specific requirements related to

  1. supervision
  2. location
  3. billing

Additionally, multi-physician practices must be considered a “group practice” as provided in the Stark Law.

Physicians providing MRIs, CT and PET scans through their medical practices must also provide a disclosure and notice to patients. Such notice must be in writing and provided at the time of the referral. The notice must disclose to the patient that he or she may obtain those services from other suppliers and provide a list of those suppliers in close proximity to the physician’s office.

Although this exception enables physicians to offer a number of ancillary services and still maintain compliance with the Stark Law, this exception is likely to be restricted in the future. The Department of Health and Humans Services’ (HHS) FY ‘16 proposed budget indicates that HHS intends to limit which practices may offer therapy services, advanced imaging, radiation therapy and anatomic pathology services. Only “clinically integrated” practices that demonstrate cost containment would be able to use the IOAS exception when offering such services.

Additional information on the HHS FY ‘16 Budget Proposal can be found at http://www.hhs.gov/budget/fy2016-hhs-budget-in-brief/hhs-fy2016budget-in-brief-cms-medicare.html.

If you have any questions about the IOAS exception or need legal advice with respect to offering ancillary services through your practice please contact DJ Jeyaram at DJ@jeylaw.com or Danielle Hildebrand at Dhildebrand@jeylaw.com.

Medicaid Fraud Investigations Continue But With Few Indictments

Medicaid FraudMedicaid Fraud Control Units (MFCUs) are responsible for investigating and prosecuting Medicaid provider fraud and patient abuse and neglect.  As part of its Medicaid plan, each State must establish a MFCU.  These Units are funded by both the Federal and State government with the Federal government reimbursing about 75% of the operating costs. MFCUs receive their referrals for investigation from a wide array of sources: program integrity divisions of the State Medicaid agencies; anonymous tips; whistleblowers; audits; and adult protective service agencies.

Each spring, the U.S. Department of Health and Human Services, Office of Inspector General, publishes an Annual Report summarizing the statistical data from the investigations and prosecutions conducted and reported by the 50 MFCUs nationwide. According to this Annual Report, in 2014, MFCUs reported 1,318 criminal convictions involving Medicaid providers; three-quarters of these convictions were for fraud. Recoveries in the criminal cases were close to $300 million, and 1,337 providers were excluded from Federal health care programs as a result of criminal conviction.

Out of the more than 1,000 criminal convictions:

  • 413 were Home Health Care Aides
  • 129 were Certified Nursing Aides
  • 64 were Physicians or Doctors of Osteopathy
  • 56 were Counselors/Psychologists
  • 33 were Durable Medical Equipment Suppliers

Nationwide, MFCUs investigated 13,192 cases of Medicaid Fraud but only indicted 1, 185 cases- roughly, 10%.  Of the 1,185 indictments, 956 resulted in convictions, almost 100% conviction rate.   From this data, it appears as if the trend in investigating often but indicting infrequently continued from 2013 to 2014 and that the high conviction rate also continued.

What about in Georgia?  Georgia MFCU was even less reluctant to indict than the nationwide trend but enjoyed the same success rate with convictions:  410 fraud investigations; 4 indictments for fraud and only 9 convictions.

If you are a Medicaid Provider, you very well may find yourself being investigated for fraud, but stay calm and call an experienced healthcare attorney. Remember, you have a very, very small chance of actually being indicted.

If you do  receive a subpoena or phone call from the Georgia Medicaid Fraud Unit, Jeyaram & Associates can help. Contact Kimberly Sheridan at ksheridan@Jeylaw.com or 678.325.3872.

 

Special Needs Trusts & Estate Plans – When’s The Right Time?

DownSyndromeGirlNow.

As a parent or guardian of a child or adult with special needs, one of our main concerns is what will happen to our loved ones when we pass? Who will take care of them? Will they have enough money? Will they be OK?

And while most of us try NOT think about dying, it’s an important step in ensuring that our loved ones will be protected and cared for upon our passing. Putting into place a special needs trust is something we can do to help ensure that our child or adult ward will be well cared for and have a high quality of life.

Too many times we’ve seen families devastated by the sudden loss of parents or guardians. Now is the time to plan and put into place a legal plan that will help protect your loved ones and their government benefits.

Eligibility for many government benefits are determined based on the resources your child or adult ward holds in their name. If they have too many resources, even by just one dollar, they may not qualify for, or may even lose, benefits such as Supplemental Security Income (SSI) and Medicaid.

Even if your child or ward does not currently receive government assistance, he or she may need it in the future. A special needs trust is a way to protect their current resources and future benefits. Through a special needs trust you can leave assets to your child or ward without negatively impacting his or her government benefits.

Government benefits only cover basics such as food, clothing and shelter. Through a special needs trust, a designated trustee for your loved one will be able to provide your child or adult ward with access to things such as:

  • a personal care attendant
  • out of pocket medical and dental expenses
  • vacations
  • home furnishings
  • vehicles
  • hobbies
  • and education.

Jeyaram & Associates has extensive personal and legal experience with setting up special needs trusts and estate plans. Please contact DJ Jeyaram at DJ@Jeylaw.com or 678.325.3872

Supreme Court Rules Medicaid Providers Cannot Sue To Enforce Their Rights

US Supreme CourtOn March 31, 2015, in a 5-4 decision, the United States Supreme Court issued its opinion in Armstrong v. Exceptional Child Center, Inc.[1] This decision essentially precludes all Medicaid providers from bringing a private cause of action to enforce their rights under the Medicaid Act.

Through Medicaid, the federal government subsidizes the States’ providing of medical services to qualified people. To get the federal monies, a state must adopt, and the federal government must approve, its Medicaid plan. Section 30(A) of the Medicaid Act requires that a state Medicaid plan must contain procedures to ensure that reimbursement rates for healthcare providers “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to meet the need for care and services in the geographic area.

In Armstrong, a group of providers filed suit under the Supremacy Clause to enforce the provisions of Section 30(A) and to enjoin the Idaho Health and Welfare Department officials from continuing to reimburse the providers at rates lower than rates set forth in a provider cost study that had recommended increasing reimbursement rates. The 9th Circuit ruled that the Supremacy Clause gave the providers an implied right of action to bring suit. The Supreme Court disagreed.

The majority of the Supreme Court reasoned that while the Supremacy Clause instructs the courts to give federal law priority when there is a clash between a federal law and a state law, it does not create a cause of action.

The Majority went on to hold that the providers could not proceed in equity because the power of the federal courts to enjoin unlawful state action must be set out expressly or implicitly in statute. Here, the court reasoned that the Medicaid Act set out an express provision of a single remedy for the State’s failure to comply with the Medicaid act. That remedy is found in 42 U.S.C. Section 1396(c) and stated that the Secretary of Health and Human Services may withhold Medicaid funds if the State is failing to comply with the Medicaid Act.

What are the real life implications of this suggested remedy? As pointed out in Justice Sotomayor’s dissent, the Majority’s suggested remedy-withholding state funds will lead to the very result the law was enacted to prevent: depriving the poor of essential medical assistance.

What is the potential impact of this decision? If low rates cannot be challenged, Medicaid recipients will have fewer choices of health care providers because lower reimbursement rates make it harder for healthcare providers to choose to provide care to Medicaid recipients.[2]

What remedies are left for a provider? In Georgia, a Medicaid provider’s relationship with the State is based in contract, so remedies under the contract may still exist. If you are a provider and have a question about your rights under the Medicaid Act, please contact Kimberly Sheridan at Jeyaram & Associates at 678-709-4703.

[1] For the full opinion, please go to http://www.supremecourt.gov/opinions/14pdf/14-15_d1oe.pdf

[2] http://harvardcrcl.org/supreme-court-threatens-medicaid-reimbursement-accountability/