FEDERAL ANTI-KICKBACK LAW AND REGULATORY SAFE HARBORS

Overview: On the books since 1972, the federal anti-kickback law’s main purpose is to protect patients and the federal health care programs from fraud and abuse by curtailing the corrupting influence of money on health care decisions. Straightforward but broad, the law states that anyone who knowingly and willfully receives or pays anything of value to influence the referral of federal health care program business, including Medicare and Medicaid, can be held accountable for a felony. Violations of the law are punishable by up to five years in prison, criminal fines up to $25,000, administrative civil money penalties up to $50,000, and exclusion from participation in federal health care programs.

Because the law is broad on its face, concerns arose among health care providers that some relatively innocuous — and in some cases even beneficial — commercial arrangements are prohibited by the anti-kickback law. Responding to these concerns, Congress in 1987 authorized the Department to issue regulations designating specific “safe harbors” for various payment and business practices that, while potentially prohibited by the law, would not be prosecuted.

Complete document on Medicare Anti-kickback Statute and Safe Harbor Regulations.

Mandatory Compliance Plans Under PPACA.

Formal compliance programs, while a very good idea, have not been mandatory up until this point. The PPACA will make compliance plans mandatory for certain providers. The Secretary of HHS is given the authority to designate the types of providers that will be required to have compliance programs in place as a condition of their certification. The breadth of this requirement is up the HHS and it is not clear how broadly this power will be exercised.

RAC Appeals Region B | Michigan, Illinois, Ohio, Kentucky, Wisconsin, Minnesota

Attorney Lawyer For Regional Audit Contractor Review Appeals

When To Involve Your RAC Lawyer

During the demonstration project relating to RAC reviews, too many providers simply accepted the findings of the RAC and made arrangements to repay the overpayment.  At the same time, many RAC decisions that were challenged were set aside.  Keep in mind that the RAC has an incentive to find problems with your claims because they are paid based on a percentage of the amount  that they recover.

You should secure an RAC Attorney to be an integral part of your decision-making process on whether or not to challenge an RAC decision.  it is a good idea to consult with an RAC lawyer to prepare yourself for potential audit by your Regional RAC.  Certainly you should consult you RAC lawyer when you receive an adverse RAC determination.

In order to preserve your claim, you must timely file the various steps within the appeals process.  Planning should begin immediately upon receiving an adverse determination.

You can plan in advance by reviewing some of the issues that the RACs have stated that they will be looking at.  You can develop your arguments to challenge the RAC positions with your RAC attorney.

The Regions B RAC covers the states of Michigan, Wisconsin, Illinois, Ohio, Indiana, Kentucky, Minnesota.  You can find Region B anticipated RAC issues at the Region B Web Site.

If you have operations in the Region B states of Michigan, Wisconsin, Illinois, Ohio, Kentucky, Indiana, Minnesota, you can use this listing of issues to internally plan for potential RAC audit issues.  You can work in advance with your RAC attorney so that you can be ready for any necessary RAC appeal.

CMS Resources - Recovery Audit Contractors

• CMS ANNOUNCES NEW RECOVERY AUDIT CONTRACTORS TO HELP IDENTIFY IMPROPER MEDICARE PAYMENTS - Monday, October 06, 2008

• CMS ENHANCES PROGRAM INTEGRITY EFFORTS TO FIGHT FRAUD, WASTE AND ABUSE IN MEDICARE - Monday, October 06, 2008
• CMS Answers Questions About Recovery Audit Contractors
• Final Statement of Work For RACs
• January 2009 Update To Evaluation of Results of Pilot Program
• September  2008 Update To Evaluation of Results of Pilot Program

• CMS Medicare Learning Network Article - RACs - SE0469

• CMS Medicare Learning Network Article - RACs - SE0565
• Carrier Instructions Re Collection of Overpayments
• Tax Relief and Health Care Act of 2006, Section 302 - Authorizing Recovery Audit Contractors
• Map Showing Four Regional RAC Areas
• RAC Expansion Schedule
• RAC Subcontractor Information
• RAC Slideshow Presentation
• RAC Transmittal 152
• CMS Overview On Recovery Audit Contractor Program
• Medicare Appeals Council Decisions Online
• FAQ Page From Region B RAC

“Under Arrangements” Deals and Per Click Leases Must Be Restructured To Comply With Changes To The Stark Law By October 1, 2009

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Many providers are unaware of a looming deadline for compliance with the Stark Law.  By October 1, 2009, all “under arrangements” and “per click” arrangements that involve the provision of “designated health services” must be examined and where necessary restructured to comply with changes in the Stark Law and Regulations.

An “under arrangement” venture is one in which an outside third party provider performs a service that is billed by another provider, for example a hospital.  An example of such an arrangement that we frequently see is a hospital that purchases MRI services from a medical group.  If physicians own any interest or have a compensation arrangement with the provider of the “under arrangement” service, the arrangements needs to be examined for compliance with the new Stark Law provisions.

Effective October 1, 2009, the Stark Law referral prohibition will be extended to the provider of “under arrangement” services.

New prohibitions regarding space and equipment rentals also go into effect on October 1, 2009.  Specifically, the Stark Law will prohibit the payment of “per click” or “per unit of service” rental.  Referral from a physician owner who is paid rent based on these types of arrangements will be prohibited.

If you have not already done so, you should consult with a health care attorney with experience in Stark Law compliance to be certain that relevant arrangements are restructured by the October 1, 2009 deadline.