60 Days to Pay – Has Medicare Reached the Point of No Return?0

This article first appeared in the September 2012 issue of Compliance Today, a publication of the Health Care Compliance Association.

In February the Centers for Medicare & Medicaid Services (“CMS”) clarified an oft quoted existing rule: Providers must return overpayments to Medicare within 60 days “after the date on which the overpayment was identified,” or in the alternative, “the date any corresponding cost report is due, if applicable.”[1]  For providers of any size, failure to report and return Medicare overpayments pursuant to these temporal requirements may result in potential liability under the Federal False Claims Act[2], resulting in substantial monetary penalties and the risk of being denied future claims for reimbursement.

Dating back to the American Civil War, the False Claims Act (FCA) has over time become the “primary litigative tool for combating fraud” for both federal and state governments.[3] At its core, the FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.”[4]  While most providers have worked within a similar time frame after identifying an overpayment, it appears that the statutory requirements under the 2010 Patient Protection and Affordable Care Act [5], as amended by the Health Care and Education Reconciliation Act[6] (collectively referred to as the Affordable Care Act or health care reform) were not enough.[7] In reaction, the February 2012 regulations now leave nothing to chance, imposing upon the health care industry detailed definitions with numerous examples to assist providers in determining exactly when the 60-day clock begins.[8] … Read more →

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The Spectacular Aspect of Contemporary Health Care0

This article first appeared in the Daily Journal on September 11, 2012.

Spectacular – adj.: of or like a public show; striking, lavish (spek ‘tækjulə(r))[1]

As images of NASA’s 2012 “Curiosity” expedition continue to capture public interest, the word “spectacular” has been getting a lot of play in recent national media. By replacing images of our nation’s beloved hero Neil Armstrong bouncing on the lunar surface[2] with “a one-ton, automobile-size piece of American ingenuity” that is destined to spend the next two years “examining rocks within the 96-mile crater” into which it landed[3], NASA has proven how far we as a unified nation can come in under fifty years with a well-designed, properly funded and tightly executed plan.

Unlike with space travel, gauging the progress of the evolution of a health care system is not nearly so cut and dry. While advances in modern medicine since the introduction of Medicare[4] have in many ways been equally riveting from a technological, political and sociological standpoint, each new period of change has brought with it a divisiveness that has forced individuals to decide whether the system’s latest step is spectacular in its success or failure. When it comes to health care, Americans tend to see things in black and white.

Much of what we now take for granted the field of modern medicine was unthinkable fifty years ago. Technologically, the jumps have been astounding. From its humble origins in the 1970s, X-ray computed tomography has evolved from being able to give a reading that included 160 images, each taking 2.5 hours to process, into today’s 256-slice CT scanner which can in seconds measure subtle changes in blood flow or blockages in blood vessels the width of a toothpick within the heart and brain.[5]

Our understanding of disease has also made great strides, as can be shown by improvements in the treatment of HIV. While still a serious condition, the human immunodeficiency virus has become markedly more manageable, and though it still reduces the overall life expectancy of an individual by 5-10 years, it no longer carries with it the death sentence it held when first discovered.[6]

And yet, even as the provision of medicine continues to improve, the lack of unity among Americans as to how health care should be managed has taken its toll on the industry, bringing with it a host of sociological and ethical issues that often prevent modern breakthroughs from reaching the greatest number of people. … Read more →

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Are We Fighting the Right Health Care Battle?0

This article first appeared in Becker’s Hospital Review on August 30, 2012.

Though the United States Supreme Court may have finally put to rest any constitutional disagreements over the Affordable Care Act (ACA), the debate over health care is far from settled.

Finding critics of the landmark decision is as easy as surveying the Court itself, since each of the eight remaining justices took issue in one way or another with the majority opinion set forth by Chief Justice John Roberts.

It therefore comes as no surprise that the aftereffects of the Court’s 5-4 split have already trickled down through nearly every aspect of federal and state politics, providing more than 100 pages of partisan fodder that will ensure both sides have an ample supply of rhetoric to flame this debate for years to come. For this reason, now is the time to ask ourselves if the nation is focusing on the wrong questions. If so, the answers over which we now debate are of little value. … Read more →

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CMS Issues Final Rules for EHR Incentive Programs, Stage Two0

FIRST THERE WAS HIPAA

In 1996 the Federal government took on increased regulatory responsibility with the passage of the Health Insurance Portability and Accountability Act (HIPAA).

This multifaceted bill was broad in its jurisdiction over  both Medicare and American health care in general, as it sought to provide new Federal rules improving continuity  or “portability” of coverage in the large group, small group, and individual health insurance markets, while reinforcing the need to protect the privacy of patient health records.

Combining a group of disparate issues, Title I of HIPAA amended the Public Health Service Act, the Employee Retirement Income Security Act of 1974 (ERISA), and the Internal Revenue Code of 1986. In doing so, HIPAA strove to regulate the availability and scope of group health plans and many individual health insurance policies, including the protection of health coverage for workers and their families who have lost or changed jobs. … Read more →

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The Fifth Circuit and Physician Owned Hospitals0

In the 2010 Affordable Care Act, Section 6001 added new regulatory restrictions and requirements for physician-owned hospitals. See 42 U.S.C. § 1395nn(i).

“Physician-owned hospital” means any hospital “in which a physician, or the immediate family member of a physician, has an ownership or investment interest.  The ownership or investment interest may exist through equity, debt or other means, and includes the interest in an entity that holds an ownership or investment interest in the hospital.”  See 42 C.F.R. § 489.3.

Federal regulations previously provided for the “whole hospital” exception to the Stark Laws. This particular safe harbor required that the referring physician/owner: (1) have a financial interest in the whole hospital, and not just a specific part; (2) be authorized to perform services at the hospital; and (3) be expected to actually perform the agreed upon services.  The requirements of Section 6001 substantially modified this exception.  See 42 C.F.R. § 411.362.

Under the Affordable Care Act, the whole hospital exception applies only to physician-owned hospitals that had physician ownership as of March 23, 2010, and had obtained a Medicare provider number by the end of 2010. … Read more →

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An Introduction to Health Care Fraud and Abuse0

In health care, the primary body of law under which liability may arise is generally the Federal False Claims Act (“FCA”).[1]

Dating back to the American Civil War, the FCA has over time become the “primary litigative tool for combating fraud” for both federal and state governments. At its core, the FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” (See 31 U.S.C. § 3729(a)(1)(A).)

In 1965, the United States unveiled its Medicare system, and only seven years later Congress passed the first of many laws focusing on Medicare reform, including:

  • The Social Security Amendments of 1972, Pub. L. No. 92-603: These laws tried to gently regulate Medicare provider fraud and abuse, as well as over utilization and unnecessary referrals. … Read more →

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Making Sense of Medicare’s Observation Regulations, One Hospital Bed at a Time0

On August 1, 2012, the Centers for Medicare & Medicaid Services (CMS) published the Final Rule for Medicare’s Hospital Inpatient Prospective Payment Systems (IPPS) (the Final Rule).

Effective Fiscal Year (FY) 2013 (October 1, 2012), the Final Rule covers the entire scope of the IPPS for acute care hospitals, long-term care hospitals, resident caps for graduate medical education (GME) payment, hospital readmission reduction program, the value based purchasing program, as well as other parts of Medicare.

The Final Rule specifically modified the way CMS approaches labor and delivery beds in the calculation of Medicare disproportionate share (DSH) payment adjustments and indirect medical education (IME). … Read more →

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Medicare’s Hospital Readmissions Reduction Program1

Starting October 1, 2012, the Hospital Readmissions Reduction Program (HRRP) reduces a hospital’s base operating Medicare diagnosis-related group (DRG) payments with respect to readmissions for three conditions, including: (1) acute myocardial infarction (ACI); (2) heart failure (HF); and (3) pneumonia (PN).

Section 1886(q) of the Social Security Act (the Act) and section 3025 of the Affordable Care Act (ACA) provide the statutory authority for this non-budget neutral program. The Centers for Medicare & Medicaid Services (CMS) predict that the HRRP will decrease payments to hospitals by as much as 0.3 percent (approximately $280 million) in FY 2013. … Read more →

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The Modern Day Compliance Program

On September 27, 2012, Craig Garner and Andrew Woodward will be leading HCCA’s Web Conference entitled The Modern Day Compliance Program: Bridging the Gap Between Integrity and Performance.“

Information for participants will include how to:

  • Identify the impending changes to the core of our nation’s health care structure as a result of the shift toward performance-based initiatives.
  • Become familiar with both safe harbors and potentially costly provisions monitoring fraud and waste, including Stark laws, anti-kickback statutes, RACS, MACs, MICs and ZPICS.
  • Demonstrate the positive effect on your bottom line through understanding the benefits of a well-executed compliance program.

Additional information, including how to register, can be found here.

 

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Final Rules for Hospital Inpatient Prospective Payment Systems

The Centers for Medicare & Medicaid Services released the final rule for the Medicare inpatient prospective payment systems (IPPS) for the 2013 fiscal year (effective for discharges occurring on or after October 1, 2012).  The final rule revises the IPPS for operating and capital-related costs of acute care hospitals and incorporates certain statutory provisions contained in the 2010 Patient Protection and Affordable Care Act, as amended in part by the  Health Care and Education Reconciliation Act of 2010.

Additionally, the final rule updates the rate-of-increase limits for certain hospitals excluded from the IPPS, as well as the payment policies and annual payment rates for the Medicare prospective payment system (PPS) relating to long-term care hospitals. The final rule changes the ways in which a hospital determines its full-time equivalent (FTE) resident cap for graduate medical education (GME) and indirect medical education (IME) payments.

The final rule also establishes requirements for the Hospital Value-Based Purchasing (VBP) Program and the Hospital Readmissions Reduction Program.

The entire final rule, which will be codified in 42 CFR Parts 412, 413, 424 and 476 can be seen here.

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