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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.

Increase In Medicare Part D Fraud Investigations

medicare-fraud1On June 18th, the U.S. Department of Health and Human Services announced a nationwide sweep by the Medicare Fraud Strike Force in 17 districts. This sweep represents the largest criminal healthcare fraud takedown in the history of the Department of Justice.

The investigations led to charges against 243 individuals, including 46 doctors and 197 other medical personnel. These individual are charged with participating in Medicare fraud schemes, including prescription drug fraud, totaling approximately $712 million in false billings.

On the heels of this announcement, the Office of Inspector General issued two new reports citing its findings of numerous nationwide violations of Medicare part D, Medicare’s drug benefit program. The reports show that more than 1,400 pharmacies submitted questionable billings for opioid drugs and also point to questionable billing practices in 1,432 retail pharmacies. The OIG is calling for more action from the Centers for Medicare and Medicaid Services to implement a greater number of its recommendations for fighting fraud and abuse in Part D.

The timing of these reports signals that the prescription drug benefit in Medicare part D will continue to be on the radar for investigation and enforcement actions.

To best protect against facing investigation for violations of federal and state healthcare regulations, providers must create, consistently practice and enforce strong internal compliance programs. If you need assistance with developing a compliance program or have any questions about healthcare fraud, please call or email Kimberly Sheridan at 678-708-4702.

 

OIG Reports

https://oig.hhs.gov/oei/reports/oei-02-15-00190.pdf

https://oig.hhs.gov/oei/reports/oei-03-15-00180.pdf

 

Physicians’ Compensation For Certain Referrals Could Violate Anti-Kickback Statue

Anti-KickbackOIG Reminds Physicians That They Will Be Held Liable For Illegal Payments Under The Anti-kickback Statute

On June 9, the Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert warning against potential liability for physicians who enter into certain financial arrangements with healthcare institutions.

The Fraud Alert states that “if even one purpose of the arrangement is to compensate a physician for his or her past or future referrals” the compensation arrangement would violate the federal Anti-kickback statute.

The Fraud Alert discussed a recent settlement regarding an arrangement between several physicians and a healthcare institution. It emphasized that the following factors resulted in an OIG determination that there was improper remuneration:

  • Payments to physicians took into account the physician’s volume or value of referrals and did not reflect fair market value for the services performed
  • Physicians did not actually provide the services called for under the arrangement
  • The arrangement relieved the physician of a financial burden that such physician would have otherwise incurred, e.g., a healthcare institution paid for the physician’s office staff at his or her practice

Although the Fraud Alert does not change any existing laws, it is a reminder that physicians (not just the hospitals) will be held liable for illegal payments. Physicians should heed OIG’s warning and ensure that arrangements with healthcare institutions do not violate any laws. All arrangements must not only comply with the federal Anti-kickback statute, but also other fraud and abuse laws such as the Stark Law, the Civil Money Penalties Law (CMP Law), and the state law Stark and Anti-kickback counterparts.

The Special Fraud Alert can be found here.

If you are a physician with questions about a current or proposed arrangement with a healthcare institution, please call Danielle Hildebrand or DJ Jeyaram at 678-325-3872 for legal counsel.

Office of Inspector General’s Advisory Could Affect Payment to All Healthcare Providers

OFFICE OF INSPECTOR GENERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES SEALOn May 8, 2013, the Office of Inspector General (“OIG”) issued an Advisory Bulletin pertaining to exclusion and excluded healthcare providers.  Because exclusion could potentially affect every provider, it is important to learn more details about the designation.

If the OIG excludes a provider, then no Federal health care program payments may be made for items or services furnished by the excluded provider or prescribed or directed by the excluded provider.  If the excluded provider changes from one health care profession to another, the exclusion will still be in effect.

In addition, the prohibition is not limited to direct patient care; it also includes services such as review of treatment plans, preparation of surgical trays, or services provided related to filling prescriptions.  Transportation services provided by excluded individuals are also prohibited.

Finally, according to the Bulletin, excluded individuals are prohibited from providing any administrative or management services, even if they are not separately billable.

There are severe consequences if an excluded individual submits a claim or causes a claim to be submitted to a Federal health care program.  A civil monetary penalty of $10,000 per claimed item or service may be imposed.  In addition, any potential for reinstatement to Federal health care programs may be jeopardized.  Criminal penalties may also be imposed.

Civil monetary penalties may be imposed against providers that employ or enter into contracts with excluded individuals to provide items or services payable by a Federal health care program.  Further, there may be civil monetary penalties for health maintenance organizations that contract with or employ excluded individuals.  This does not mean that entities cannot hire or contract with excluded individuals at all.

If the services or items provided are not paid for by a Federal health care program, then there isn’t a prohibition against hiring or contracting with an excluded individual.  If the excluded individual only provides services or items to patients that are not covered by a Federal health care program, then there is no prohibition.

All individuals and entities should search the OIG program exclusion information that is available on the OIG Web site prior to employing or contracting with any provider of health care services and keep documentation of the search. 

In addition, individuals and entities should proactively monitor the exclusions database to ensure that none of its current employees or contractors is listed as an excluded provider.  Due diligence will help mitigate the risk of civil monetary penalties in the future.

Office of Inspector General’s 2013 Work Plan Increases Focus on Hospital Billing and the Affordable Care Act

Last month the Office of Inspector General (“OIG”) released its Work Plan for Fiscal Year 2013 (“FY 2013 Work Plan”).  The FY 2013 Work Plan focuses on many of the same areas as the prior year; however, there are two areas that received extra attention:  hospital billing and payment issues and implementation of the Affordable Care Act (“ACA”).

For Medicare purposes, the OIG has added new reviews including:

  • the efficiency of edits to identify hospital claims that were billed as discharges when they should have been billed as transfers
  • costs resulting from inpatient hospital claims for canceled surgical procedures
  • savings resulting from new payments for swing-bed services at critical access hospitals

One area of increasing focus in the Medicaid arena is prescription drugs.  In FY 2013, the OIG intends to explore alternative payment methods for home blood-glucose test strips.  The cost-saving means include rebates and competitive bidding, both of which have been successful at reducing net payment rates in some states.

Finally, the OIG will continue to monitor the ongoing implementation of the ACA.  Actions that the OIG intends to take in FY 2013 include the following:

  • reviewing compliance of home health agencies with the ACA requirement that physicians or other certain practitioners have face-to-face contact with beneficiaries
  • exploring cost savings associated with rental rather than purchase of power mobility devices
  • planning the frequency of on-site visits as part of the Medicare enrollment or re-enrollment process

 
As the OIG begins to implement its FY 2013 Work Plan, providers should continue to monitor what Medicare and Medicaid areas receive increased attention.  Additionally, providers should be proactive as the deadlines approach for implementation of parts of the ACA.