Newly Enacted FERA Amendments To False Claims Act Signal New Risks For Health Industry Organizations & Others

May 26, 2009

Health care providers and other parties covered by the False Claims Act, 31 U.S.C. § 3729 (FCA), now face expanded whistleblower and other liability under amendments to the FCA enacted under the “Fraud Enforcement and Recovery Act of 2009”(FERA).  The amendments increase the likelihood both that whistleblowers will turn in health care providers and other individuals and organizations that file false claims in violation of the FCA and the liability that violators may incur for that misconduct.

Signed into law by President Obama last Wednesday (May 20, 2009), FERA immediately upon enactment:

  • Amends the whistleblower protections afforded to employees, contractors and agents who suffer retaliation for taking lawful efforts to stop violations of the FCA and to make it easier for those individuals to pursue retaliation claims;
  • Expands liability under for making false or fraudulent claims to the federal government under the FCA;
  • Applies liability under the FCA for presenting a false or fraudulent claim for payment or approval (currently limited to such a claim presented to an officer or employee of the federal government); and
  • Requires persons who violate such Act to reimburse the federal government for the costs of a civil action to recover penalties or damages 

Concurrent with President Obama’s signature of FERA into law, the U.S. Departments of Justice (DOJ) and Health & Human Services (HHS) jointly announced the expansion of federal health care fraud enforcement efforts.  On May 20, 2009, HHS and DOJ announced their activation of a new interagency team to combat health care fraud highlights the increasing need for health care providers and health plans to review and tighten their practices for dealing with Medicare and other federal programs to survive scrutiny under federal health care fraud initiatives.  Coupled with FERA and the already significant increase in federal health care fraud detection and enforcement activities in recent years and a proposed 50 percent increase in funding for these activities included in President Obama’s Fiscal Year 2010 budget, health care providers and payers must be prepared to defend their dealing with Medicare, Medicaid and other federal health care programs.

The expanded protections afforded under FERA to whistleblowers and others suffering retaliation for opposing or reporting illegal actions can be expected to serve as a key tool in these efforts. These new retaliation safeguards are designed further increase the likelihood that employees and other insiders will help government officials ferret out false claims and other fraud. Specifically with regard to retaliatory action claims Section 4(d) of FERA amends 31 U.S.C.§ 3730(h) to provide for the recovery of “all relief necessary to make that employee, contractor, or agent whole” where that individual is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts he does or takes on behalf of an individual in furtherance of other efforts to stop a violation of the FCA. 

FERA expressly provides that relief to victims of retaliation will include “reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.” 

The FERA amendments to the FCA, the new TEAMS enforcement effort announced simultaneously with its signature into law mean that health care industry organizations and others covered by the FCA must implement appropriate fraud prevention, detection, redress and other procedures to help defend against possible FCA or other health care fraud claims and investigations.

The attorneys at Curran Tomko Tarski, LLC have extensive experience representing and advising health industry and other clients against FCA and other federal health care and fraud laws. 

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending health care fraud concerns or other health care compliance, risk management, transactions or operations concerns, please contact Curran Tomko Tarski LLP Partners Cynthia Marcotte Stamer at (214) 270-2402, CStamer@CTTLegal.com; Michael T. Tarski at (214) 270-1420 or MTarski@CTTLegal.com; Edwin J. Tomko at (214) 270-1405 or ETomko@CTTLegal.com.

You can review other recent health care and internal controls resources and additional information about the health industry and white collar experience of the Curran Tomko Tarski LLP attorneys at http://www.CTTLegal.com. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at CTTLegal.com or e-mailing this information to CStamer@CTTLegal.com.


Stamer To Discuss “Making Gainsharing Work: Managing Physician Performance” At June 17, 2009 Dallas Bar Association Health Law Section Meeting

May 26, 2009

Health care organizations, health plans and regulars increasingly point to gainsharing and pay-for-performance strategies as key to securing needed key physician buy-in and performances to achieve desired health care quality and cost objectives.  Using physician gainsharing to promote desired performances within the bounds of the law without undesirable side effects involves more than staying within the STARK exceptions and anti-kickback safe harbors. 

Curran, Tomko Tarski, LLP attorney Cynthia Marcotte Stamer will discuss key strategies and processes for designing and administering legally defensible pay-for-performance and other gainsharing arrangements that promote desired outcomes in operation at the Dallas Bar Association Health Law Section meeting on June 17, 2009. 

Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, attorney and author Cynthia Marcotte Stamer is nationally and internationally recognized for her legal work, publications and programs, and advocacy on health industry performance management and other health industry matters.  Ms. Stamer works extensively with health care organizations, managed care and health insurance organizations, governments and others to manage performance and legal risks.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer combines her more than 22 years of health industry regulatory and risk management experience with an in-depth knowledge of workforce management and regulation to help clients manage performance and legal and operational risks.  Her experience includes advising public and private health industry clients domestically and internationally on a wide range of matters.  A widely published author and popular speaker, Ms. Stamer’s insights on health industry matters also are quoted in HealthLeaders, Managed Care Executive, the Wall Street Journal and many other national popular, business and industry publications.

 Ms. Stamer is scheduled to begin her remarks at Noon on June 17, 2009 at the offices of the Dallas Bar Association located at 2101 Ross Avenue, Dallas, Texas 75201.  For additional information, call the Dallas Bar Association at 214-220-7400 or see http://www.dallasbar.org.


DOJ/HHS Step Up Health Care Fraud Enforcement By Announcing New Interagency Health Care Fraud Prevention and Enforcement Action Team

May 20, 2009

Lead DOJ Health Care Fraud Enforcer Speaks In Dallas Tomorrow

The joint announcement today (May 20, 2009) by the U.S. Departments of Justice (DOJ) and Health & Human Services (HHS) of a new interagency team to combat health care fraud highlights the increasing need for health care providers and health plans to review and tighten their practices for dealing with Medicare and other federal programs to survive scrutiny under federal health care fraud initiatives.   Houston and Detroit are targeted for the attention of a new Strike Force.

Participants attending tomorrow’s Dallas Health Industry Council Southwest Healthcare Transaction Conference will get to hear the latest about these and other federal health care fraud prevention and enforcement activities from one of its key players. The Justice Department’s lead federal health care fraud prosecutor, John “Jay” S. Darden, the U.S. Department of Justice Assistant Chief for Healthcare Fraud is scheduled to provide an update on these and other federal regulatory and enforcement activities affecting health care transactions when he speaks at the Conference tomorrow afternoon at the Omni Mandalay Hotel Dallas at Las Colinas at 1:30 p.m.

Attorney General Eric Holder and Health and Human Services (HHS) Secretary Kathleen Sebelius announced the creation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), to combat Medicare fraud and the expansion of Strike Force team operations to Detroit and Houston.  Medicare Fraud Strike Forces, currently in operation in South Florida and Los Angeles, fight Medicare fraud on a targeted local level.  Statements made by Secretary Sebelius and Attorney General Holder in connection with the announcement of HEAT and the Strike Force Expansion make clear that the Obama Administration views health care fraud enforcement and prevention as a key element of its efforts to control health care costs.

The HEAT team will include senior officials from DOJ and HHS who will build upon and strengthen existing programs to combat fraud while also investing new resources and technology to prevent fraud, waste and abuse before it happens.  Efforts will include the expansion of joint DOJ-HHS Medicare Fraud Strike Force teams that have been successfully fighting fraud in South Florida and Los Angeles. 

Established in 2007, these Strike Force teams have a proven record of success using a “data-driven” approach to identify unexplainable billing patterns and investigating these providers for possible fraudulent activity.  The Medicare Fraud Strike Force team operating in South Florida has already convicted 146 defendants and secured $186 million in criminal fines and civil recoveries.  After the success of operations in South Florida, the Medicare Fraud Strike Force expanded in May 2008 to phase two in Los Angeles, where 37 defendants have been charged with criminal health care fraud offenses.  To date in the Los Angeles cases, more than $55 million has been ordered in restitution to the Medicare program. 

In addition to health care fraud enforcement and prosecution, HHS and DOJ also view prevention as critical to reforming the system.  Therefore, in addition to investigating and prosecuting fraud, the HEAT team will also focus critical resources on preventing fraud from occurring in the first place.  These efforts are expected to include:

  • Drawing from demonstration projects by the HHS Inspector General and the Centers for Medicare & Medicaid Services (CMS) that have focused on suppliers of durable medical equipment (DME) including increasing site visits to potential suppliers to prevent imposters from posing as legitimate DME providers. 
  • Increasing training for providers on Medicare compliance, offering providers the resources and the knowledge they need to help identify and prevent fraud.
  • Improving data sharing between CMS and law enforcement to help identify patterns that lead to fraud.
  • Strengthening program integrity activities to monitor and ensure Medicare Parts C (Medicare Advantage plans) and D (prescription drug programs) compliance and enforcement.

The Attorney General and the HHS Secretary also called on the American people to visit a new Web site http://www.hhs.gov/stopmedicarefraud or call 1-800-HHS-TIPS (1-800-447-8477) to report suspected Medicare fraud.

The HEAT Team and Strike Force activities are part of a broader emphasis in the enforcement of federal health care fraud laws.  President Obama’s proposed Fiscal Year 2010 budget seeks to further increase funding for fraud prevention and enforcement by investing $311 million — a 50 percent increase from 2009 funding — to strengthen program integrity activities within the Medicare and Medicaid programs.  The Obama Administration anticipates that all combined, the anti-fraud efforts in the President’s budget could save $2.7 billion over five years by improving oversight and stopping fraud in the Medicare and Medicaid programs, including the Medicare Advantage and Medicare prescription drug programs.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


OCR Disability Charges Settlement Requires Equal Access to Transportation Services at Anchorage Pioneer Home

May 15, 2009

A State of Alaska owned licensed assisted living facility for seniors, the Anchorage Pioneer Home (APH), has modified its transportation policies and practices to better accommodate qualified individuals with disabilities as part of its recently announced settlement agreement with the U.S. Department of Health and Human Services (HHS) and the Alaska Department of Health and Social Services (DHSS).   The settlement agreement resolves an administrative complaint filed with the HHS Office of Civil Rights (OCR) that charged DHSS and APH  with violating Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (ADA). DHSS owns and operates APH, a licensed assisted living facility for seniors, 65 years of age or older. Serving more than 160 Alaska residents, APH provides care at three different levels: Level I (independent); Level II (basic assistance); and Level III (24-hour care for Alzheimer’s disease and related disorders).  The Obama administration’s promise to emphasize disability and other federal discrimination law enforcement means public and private plans and providers should audit and strengthen practices to withstand scrutiny.

Section 504 requires state and local governments to ensure that qualified individuals with disabilities have equal access to programs, services, or activities receiving federal financial assistance. Title II of the ADA extends the prohibition against disability discrimination to state and local governments who do not receive federal financial assistance.  After conducting an investigation prompted by an administrative complaint filed with OCR, OCR issued a Jan. 16, 2009, letter detailing its findings that among other things, DHSS had violated Section 504 and Title II of the ADA, by declining to consider a legitimate request for a reasonable modification to its policies to enable an APH resident with Alzheimer’s disease to use APH’s transportation services for medical appointments.

Under the settlement, APH will consider individual requests for reasonable modifications to its transportation policies and practices to ensure that APH residents with disabilities are afforded an equal opportunity to access transportation services. If, after an individualized assessment, an APH resident, who is a qualified individual with a disability, is determined to need an escort to access and benefit from APH transportation services, APH will provide an escort at no cost.

 Under the settlement agreement:

  • DHSS reaffirmed its legal responsibility to ensure that no qualified individual with a disability is discriminated against in any DHSS service, program, or activity.
  • DHSS reaffirmed its legal responsibility to not retaliate against any person for opposing discrimination under Section 504 or Title II of the ADA, or participating in an investigation under those laws.
  • APH agreed to appoint a senior staff person to coordinate its compliance efforts under Section 504 and Title II of the ADA; provide additional staff training on preventing disability discrimination; publish a notice informing its residents and their guardians of their rights and responsibilities under these laws; and publish grievance procedures for handling disability discrimination complaints.
  • APH agreed to implement a revised transportation policy to ensure that its residents with disabilities, who are eligible to receive transportation services, are afforded an equal opportunity to participate in APH’s transportation program.

A copy of the OCR letter of finding and the settlement agreement, along with more information about OCR’s civil rights enforcement activities, can be found at http://www.hhs.gov/ocr/civilrights/activities/agreements/akpioneeragreement.pdf

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


HHS Announces Availability of $50 Million In Grants To Strengthen Nonprofit and Faith Based Organizations Aiding Families & Communities Struggling With Economic Downturn

May 11, 2009

 The Department of Health and Human Services (HHS) today (May 11, 2009) announced the availability of grants worth $50 million to strengthen nonprofit and faith-based organizations that aid families and communities who are struggling in the economic downturn.

The funds provided under the Strengthening Communities Fund (SCF) were authorized through the American Recovery and Reinvestment Act (ARRA).  The SCF funding will be distributed through two programs.

  •  The Nonprofit Capacity Building program will make one-time, two-year awards of up to $1 million to lead organizations that will use the funds to support other faith-based or secular nonprofit organizations.
  •  The State, Local and Tribal Government Capacity Building program will make one-time, two-year awards of up to $250,000 to state, city, county and Indian/Native American tribal governments. Governments will use these grants to strengthen nonprofit organizations and increase the nonprofits’ involvement in projects that help turn our economy around.

 Grantees for both programs must provide at least 20 percent of the total approved cost of the project from non-federal funds. This match may be met by cash or in-kind contributions.

 HHS’ Administration for Children and Families’ Office of Community Services will administer the SCF programs. Applicants interested in applying for funds should visit http://www.acf.hhs.gov/grants/recovery.html.


Sebelius Announces Key Personnel At New HHS Office of Health Reform

May 11, 2009

As the Obama Administration continues emphasis on health care reform, newly appointed Secretary of Health and Human Services (HHS) Kathleen Sebelius today (May 11, 2009) announced the establishment of the Department of Health and Human Services’ (HHS) Office of Health Reform. to spearhead HHS efforts to pass urgently needed health reform this year and coordinate closely with the White House Office of Health Reform.  Both offices were created by an April 8 Executive Order to help deliver on one of President Obama’s top priorities.

The following key staff members have been appointed to the HHS Office of Health Reform:

 Jeanne Lambrew, Ph.D., Director of the HHS Office of Health Reform: Jeanne Lambrew will lead the health reform effort in the Office, helping the Secretary to marshal the experience and assets of the department.  Dr. Lambrew was previously an associate professor at the LBJ School of Public Affairs, senior fellow at the Center for American Progress, and worked on health policy in the Clinton Administration.

Michael Hash, Senior Advisor: Michael Hash will serve as a senior advisor, running the inter-agency process for developing specific aspects of health reform legislation consistent with the President’s priorities. He will be an assignee at the White House Office of Health Reform and assist in the preparation of Administration positions and in communication with the Congress.  Prior to his appointment, Hash held senior positions at the Health Care Financing Administration (now CMS) and on the staffs of the House Energy and Commerce Committee as well as a private health policy consulting firm.

 Neera Tanden, Senior Advisor: Neera Tanden will work on developing health care policies for HHS and the Administration.  She is the former domestic policy director for the Obama-Biden campaign and policy director for the Hillary Clinton campaign, and oversaw health care work on both campaigns.  She has worked in think tanks, in the Senate and in the Clinton Administration.

Linda Douglass, Director of Communications: Linda Douglass will serve as the director of communications in the Office of Health Reform, working as an assignee at the White House Office of Reform, coordinating communications.  Before joining the administration, Douglass was a traveling spokesperson for President Obama’s 2008 campaign and was chief spokesperson for the Presidential Inaugural Committee 2009.  She spent most of her career as a journalist, most recently as a managing editor for National Journal and prior to that as Chief Capitol Hill Correspondent for ABC News

 Meena Seshamani, M.D., Ph.D., Director of Policy Analysis:  Meena Seshamani will coordinate the quantitative and qualitative analyses on health reform conducted throughout HHS. Before joining the Administration, Dr. Seshamani was a resident physician in Otolaryngology-Head and Neck Surgery at Johns Hopkins University. She is a health economist who has published widely on issues of health expenditures, health care financing, and their impact on health outcomes.  She advised Senator Kennedy on a range of issues including public health and prevention, community health centers, health professions training and health disparities. Lewis will begin work in the Office of Health Reform on May 25.

Jennifer Cannistra, Policy Analyst and Director of Special Projects:  Jennifer Cannistra will work as an assignee at the White House and will lead special projects undertaken by the HHS Office of Health Reform that require close coordination with the White House.  Previously, Cannistra served as the Pennsylvania State Policy Director for the Obama campaign.  Prior to joining Obama for America in September 2007, Cannistra served as a law clerk to the Honorable Faith S. Hochberg, D.N.J. and as an attorney in Washington, D.C.

Karen Richardson, Outreach Coordinator:  Karen Richardson will be responsible for conducting outreach to stakeholders on behalf of HHS, as an assignee at the White House Office, as it relates to advancing the President’s agenda for health reform.  She was previously the policy director at the Democratic National Committee (DNC).  She was policy director for Obama for America in Iowa and several states throughout the Presidential primary.   Richardson began working for President Obama at his Senate office in August 2005, beginning as an intern and then serving as deputy to the policy director.

Michael Halle, Special Assistant: Michael Halle will be responsible for coordinating office projects and activities as well as providing research assistance.  Halle worked for the Presidential Inaugural Committee and Obama for America, contributing to field operations in Iowa and North Carolina.  Prior to joining the Obama campaign he was an intern at the Center for American Progress with the health policy team.

 You can find more information about the evolving health care reform discussion and other health care policy and health care matters at CynthiaStamer.com.  If you need assistance monitoring health and managed care policy or other health care or health benefit matters, contact Cynthia Marcotte Stamer at (214) 270.2402, or cstamer@cttlegal.com.  To receive future Solutions Law Press Health Care Updates, register to participate in this Solution Law Press Health Care Update blog, register at CynthiaStamer.com or join the SLP Health Care Risk Management & Operations Group on linkedin.com.


HHS Report Highlights Rural Health Insurance Crisis

May 5, 2009

Health and Human Services Secretary Kathleen Sebelius on May 4, 2009 released a new report outlining the health care challenges facing rural communities, Hard Times in the Heartland: Health Care in Rural America.  The report available at http://healthreform.gov/reports/hardtimes/ indicates that nearly 50 million people in rural America face challenges accessing health care.  Not only do these Americans face higher rates of poverty, they report more health problems, are more likely to be uninsured, and have less access to a primary health care providers than do Americans living in urban areas.  The report notes:

  • Nearly one in five of the uninsured — 8.5 million people — live in rural areas.
  • Rural residents pay on average for 40 percent of their health care costs out of their own pocket, compared with the urban share of one-third.
  • In a multi-state survey, one in five insured farmers had medical debt.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


CMS Proposes Policy And Payment Rate Changes For Inpatient Stays In Acute Care And Long-Term Care Hospitals In Fy 2010

May 2, 2009

The Centers for Medicare & Medicaid Services (CMS) today (May 1, 2009) proposed the fiscal year (FY) 2010 policies and payment rates for inpatient services furnished to people with Medicare by both acute care hospitals and long-term care hospitals.  Interested persons have until June 30 to submit comments to CMS.  CMS plans to finalize the rule by August 1, 2009.

The proposed rule placed on display at the Federal Register today and available for review at www.archives.gov/federal-register/public-inspection/index.html would apply to approximately 3,500 acute care hospitals paid under the Inpatient Prospective Payment System (IPPS), and 400 long-term care hospitals paid under the Long-Term Care Hospital Prospective Payment System (LTCH PPS), beginning with discharges occurring on or after October 1, 2009.  The proposed payment rates are based on the most recently available data and are subject to revision in the final rule to reflect more current data.

In today’s announcement, CMS proposes:

  • To update acute care hospital rates by 2.1 percent for inflation less an adjustment of 1.9 percentage points to remove the effect of increases in aggregate payments due to changes in hospital coding practices that do not reflect increases in patient’s severity of illness.
  • To update long-term care hospital rates by 2.4 percent for inflation less an adjustment of 1.8 percentage points to account for changes in documentation and coding practices that do not reflect increases in patient’s severity of illness. 

Beginning October 1, 2008, Medicare adopted a new classification system for general acute and long term care hospitals to better recognize severity of illness and the cost of treating Medicare patients.  According to the announcement, hospitals changed their documentation and coding of patient diagnoses under the new system in a manner that CMS states leads to an increase in aggregate payments without corresponding growth in actual patient severity. CMS says the proposed documentation and coding adjustments help ensure that estimated aggregate payments to these hospitals under the new classification systems would not increase solely as a result of the changes to the classification system and hospital coding practices.

The Medicare Actuary found based on analysis of 2008 data that additional coding that did not reflect actual changes in the severity of patients’ illnesses increased total payments under IPPS by 2.5 percent in FY 2008 and will further increase total payments in FY 2009.  Based on current estimates, the Medicare Actuary estimates that total adjustments of approximately 8.5 percent would have to be made to the acute care hospital rates to address changes in hospitals’ coding practices, including the increase in FY 2008 payments and the estimated increase in FY 2009 payments.  CMS is proposing a prospective adjustment of 1.9 percentage points for FY 2010, which means additional adjustments of approximately 6.6 percentage points, will be needed in FY 2011 and FY 2012.  CMS is requesting public comment on whether to apply a different documentation and coding adjustment than the one being proposed for FY 2010.

Under current Medicare law, hospitals that successfully report the 2010 quality measures included in the Reporting Hospital Quality Data for Annual Payment Update (RHQDAPU) program will get the full update.  Hospitals that do not participate in the quality reporting program will get the update less two percentage points. Ninety-seven percent of participating hospitals received the full update last year. The proposed rule adds four new measures for which hospitals must submit data under the RHQDAPU program to receive the full market basket update.  Two of these measures are additions to the existing Surgical Care Improvement Project (SCIP) measure set, and CMS believes that the other two measures will promote hospital participation in nursing-sensitive care and stroke care registries.

CMS is also proposing changes to regulations affecting payment adjustments to teaching hospitals (hospitals that offer graduate medical education programs), and disproportionate share hospitals (hospitals that provide care to a disproportionate share of low income patients), and to clarify the regulations implementing the Emergency Medical Treatment and Labor Act (EMTALA).  In addition, the proposed rule describes five applications for new technology add-on payments and CMS’ preliminary findings about those technologies.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


Texas Senate Committee Schedules May 5 Hearing On Proposed Texas Medical Board Reforms

May 2, 2009

Physicians and others concerned about physician oversight and discipline by the Texas Medical Board (“Board”) may want to share their input with key Texas legislators before or during a hearing scheduled on May 5, 2009. 

This Tuesday, May 5th, the Texas Senate Health & Human Services Committee will hold a hearing on proposed medical licensing reforms in SB 2336.  Advocates of SB 2336 and its companion, HB 3816, are urging supporters to attend the hearing and/or communicate their perspectives on the legislation.  The hearing is scheduled to begin on Tuesday, May 5th, 2009 at 9:00am in the Senate Chambers.

Supported by a broad range of physician and other health care organizations, SB 2336 and the companion HB 3816 seek to address a series of concerns expressed by physicians and others about certain practices by the Texas Medical Board. Interested persons should review the proposed changes and express their input quickly to ensure their views have an opportunity for consideration.

 Persons unable to attend the hearing in person who wish to make their views known also can consider contacting one or more members of the 2009 Senate Committee on Health and Human Services:

Chair:  Senator Jane Nelson (R-12)

1E.5

(512) 463-0112

jane.nelson@senate.state.tx.us

Steve Roddy – Chief of Staff

steve.roddy@senate.state.tx.us

Nnenna Ezekoye Policy Analyst

Nnenna.ezekoye@senate.state.tx.us

Dave Nelson – Legislative Aide

Dave.nelson@senate.state.tx.us

 

Vice-Chair: Senator Bob Deuell (R-2)

E1.706

(512) 463-0102

bob.deuell@senate.state.tx.us

Don T. Forse, Jr. – Chief Staff

Don.forse@senate.state.tx.us

Scot Kibde – Legislative/Health Policy

Scot.kibde@senate.state.tx.us

 

Members:

 

 

Senator Joan Huffman (R-17)

GE.5

joan.huffman@senate.state.tx.us

(512) 463-0117

Jonathon Stinson – Legislative Director

Jonathon.stinson@senate.state.tx.us

Kyle Kamrath – Policy Director

Kyle.kamrath@senate.state.tx.us

Ryan Hutchison – Legislative Aide

 ryan.hutchison@senate.state.tx.us

 

Senator Robert Nichols (R-3)

E1.708

Robert.nichols@senate.state.tx.us

(512) 463-0103

Steven Albright – Chief of Staff

Steven.albright@senate.state.tx.us

Adrianne Emr

Adrianne.emr@senate.state.tx.us

Angus Lupton – Policy Director

Angus.lupton@senate.state.tx.us

 

Senator Dan Patrick (R-7)***introduced and supports SB 2336

3S.3

(512) 463-0107

Dan.patrick@senate.state.tx.us

Logan Spence JD – Legislative Director

logan.spence@senate.state.tx.us

Kate Pigg – Legal Counsel

kate.pigg@senate.state.tx.us

John Gibbs – Legislative Aide

john.gibbs@senate.state.tx.us

 

Senator Eliot Shapleigh (D-29)

E1.610

eliot.shapleigh@senate.state.tx.us

(512) 463-0129

Eduardo Hagert – Chief of Staff

Eduardo.hagert@senate.state.tx.us

Sushma Jasti – Policy Director

Sushma.jasti@senate.state.tx.us

 Senator Carlos Uresti (D-19)

E1.810

carlos.uresti@senate.state.tx.us

(512) 463-0119

Tomas Larralde – Chief of Staff

Tomas.larralde@senate.state.tx.us.

Rachel Johnston – Legislative/Policy Director

Rachel.johnston@senate.state.tx.us

 Senator Royce West (D-23)

1E.12

royce.west@senate.state.tx.us

(512) 463-0123

LaJuana Barton – Chief of Staff

Lajuana.barton@senate.state.tx.us

Graham Keever – Policy Analyst

Graham.keever@senate.state.tx.us

Senator Judith Zaffirini (D-21)

1E.14

judith.zaffirini@senate.state.tx.us

(512) 463-0121

Warren von Eschenbach – Chief of Staff

Warren.voneschenbach@senate.state.tx.us

Jessica Ramos – Legislative Aide/Policy

Jessica.ramos@senate.state.tx.us

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.


Latest OIG Audit Results Announcements Find Overpayments In High-Dollar Payments For Services Processed By Wisconsin Physicians Service and Interrupted Stays At Inpatient Rehabilitation Facilities

May 1, 2009

CMS Plans To Seek Recovery

As part of its continuing emphasis on audit and enforcement of federal health care program reimbursement and fraud rules, the Department of Health and Human Services Office of Inspector General (OIG) announced results of two regional audits.  In both cases, OIG reported finding substantial overpayments, which it recommended should be recovered from billing providers.

In its Review of High-Dollar Payments For Services Processed By Wisconsin Physicians Service for Period January 1, 2004 Through December 31, 2006;  where OIG found of the 100 sampled high-dollar payments that Wisconsin Physicians Service (WPS) made to Medicare Part B providers for services provided during calendar years (CY) 2004 through 2006, 77 were appropriate.  The 23 remaining payments included net overpayments totaling $118,000, of which $96,000 for 20 payments had not been refunded at the start of our audit.  Based on the sample results for our 3-year audit period, we estimated that WPS made 402 overpayments totaling $2.06 million to providers in Illinois, Michigan, Minnesota, and Wisconsin for Part B services.  Based on these findings, OIG recommended that WPS (1) recover the $96,000 in identified overpayments, (2) review the 1,647 remaining high-dollar payments with potential overpayments estimated at $1.9 million ($2.06 million less $118,000 overpaid) and work with the providers that claimed these services to recover any overpayments, (3) consider reviewing high-dollar payments made for services provided after CY 2006 and recover any additional overpayments, and (4) improve internal controls related to manual claim processing.  In written comments on our draft report, WPS described corrective actions that it had taken or planned to take to implement our recommendations.

In its Review of Interrupted Stays At Inpatient Rehabilitation Facilities For Calendar Years 2004 and 2005, OIG reported finding inpatient rehabilitation facilities (IRF) did not always bill correctly for interrupted stays with discharge dates during calendar years 2004 and 2005.  OIG reports its nationwide computer match showed that 448 IRFs billed incorrectly for 986 interrupted stays during that period.  If a Medicare inpatient is discharged from an IRF and returns to the same IRF within 3 consecutive calendar days, OIG reported the IRF should combine the interrupted stay into a single claim and receive a single discharge payment. 

According to OIG, the correct value of the stays was $17.5 million, rather than the $21.7 million that the IRFs billed.  As a result, OIG concluded Medicare made net overpayments of $4.2 million to the IRFs.  The payment errors occurred because the IRFs did not have the necessary controls to identify or correctly bill interrupted stays.  Additionally, until April 2005, the Common Working File did not have an edit designed to identify all interrupted stays billed as two or more claims.  After its adoption, the new Common Working File edit effectively detected incorrectly billed interrupted stays and prevented overpayments to IRFs.

OIG recommended CMS direct its fiscal intermediaries to recover the $4.2 million in net overpayments that our review identified.  In its written comments on our draft report, CMS concurred with our recommendation.

Health care providers should evaluate the implications of these and other audit findings and enforcement actions by OIG and CMS on their existing and past billing practices and take corrective acting as appropriate. For assistance with these or other health care compliance and risk management policies, practices or programs, assessing the strength of your controls in addressing these laws or other healthcare laws and regulations, or in addressing other compliance or health care concerns, please contact Cynthia Marcotte Stamer at cstamer@CTTLegal.com or (214) 270- 2402.

You can find more information about health care fraud and other health industry risk management concerns at CynthiaStamer.com

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

 

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog or by joining the join the SLP Health Care Risk Management & Operations Group on linkedin.com. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


FTC Extends Red Flag Rule Compliance Deadline From May 1 to August 1, 2009

May 1, 2009

Today is no longer the deadline for health care providers and other businesses regulated by the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) to begin complying with the identity theft detection and prevention (“Red Flag Rules”) adopted by the Federal Trade Commission (“FTC”).   

While health care providers have more time to comply, they can’t breathe easy.  Finalizing arrangements to comply with these new mandates and other recent amendments to the health care privacy and data security requirements applicable to health care providers under recently enacted amendments to the Health Insurance Portability & Accountability Act (“HIPAA”) and FACTA and other recent regulatory and enforcement changes to these rules requires that health care providers move quickly.  Learn more about these recent changes at http://solutionslaw.wordpress.com/2009/04/18/hhs-ftc-release-guidance-on-hitech-act-data-breach-rules-for-hipaa-covered-entities-entities-dealing-with-personal-health-records.

The FTC announced yesterday (April 30, 2009) its extension of the Red Flag Rule enforcement date to until August 1, 2009.  Before yesterday’s announcement, health care providers and certain other FACTA-regulated businesses were required to comply with the Red Flag Rules today.  The announcment means these organizations now have an additional three months to adopt the necessary policies and processes to monitor and respond to possible identity theft required under the Red Flag Rules. 

According to the FTC announcement, organizations regulated by FACTA also will need to review their practices in light of additional guidance that the FTC expects to issue soon.  For entities that have a low risk of identity theft, such as businesses that know their customers personally, the FTC plans to  soon release a template to help them comply with the law.  Yesterday’s announcement does not affect other federal agencies’ enforcement of the original November 1, 2008 compliance deadline for institutions subject to their oversight.

The FACTA directed financial regulatory agencies, including the FTC, to promulgate rules requiring “creditors” and “financial institutions” with covered accounts to implement programs to identify, detect, and respond to patterns, practices, or specific activities that could indicate identity theft. FACTA’s definition of “creditor” applies to any entity that regularly extends or renews credit – or arranges for others to do so – and includes all entities that regularly permit deferred payments for goods or services. Accepting credit cards as a form of payment does not, by itself, make an entity a creditor. Some examples of creditors are finance companies; automobile dealers that provide or arrange financing; mortgage brokers; utility companies; telecommunications companies; non-profit and government entities that defer payment for goods or services; and businesses that provide services and bill later, including many  doctors and other health care providers and other professionals. “Financial institutions” include entities that offer accounts that enable consumers to write checks or make payments to third parties through other means, such as other negotiable instruments or telephone transfers.

During outreach efforts last year, the FTC staff learned that some industries and  entities within the agency’s jurisdiction were uncertain about their coverage under the Red Flags Rule. During this time, FTC staff developed and published materials to help explain what types of entities are covered, and how they might develop their identity theft prevention programs. Among these materials was an alert on the Rule’s requirements, www.ftc.gov/bcp/edu/pubs/business/alerts/alt050.shtm.  The resources also included a Web site with more resources to help covered entities design and implement identity theft prevention programs, www.ftc.gov/redflagsrule.

You can find more information about the Red Flag Rules and other privacy and identity theft matters at CynthiaStamer.com.  If you need assistance with questions or compliance with these or other privacy and data security rules or other health law matters, contact Cynthia Marcotte Stamer at (214) 270.2402, or cstamer@cttlegal.com.  To receive future Solutions Law Press Health Care Updates, register to participate in this Solution Law Press Health Care Update blog, register at CynthiaStamer.com or join the SLP Health Care Risk Management & Operations Group on linkedin.com.


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