Health Law Blog - Healthcare Legal Issues

Archive for June, 2011

Can Private Health Care Be Carved Out of Anti-kickback Application?

Monday, June 13th, 2011

Anti-Kickback Statute Advisory Opinion Clarifies

Medicare Carve Out Does Not Insulate Payment Arrangement

The anti-kickback statute makes it a criminal offense knowingly and willfully to offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a Federal health care program, the anti-kickback statute is violated, By its terms, the statute ascribes criminal liability to parties on both sides of an impermissible “kickback” transaction, , For purposes of the anti-kickback statute, “remuneration” includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind.
Clients often ask whether the Anti-kickback Statute covers payment arrangements that do not involve a Federal Health Care program.  In other words, the question is whether Federal Health Program beneficiaries can be “carved out” of the payment arrangement so that the Anti-kickback Statute is not applicable to the proposed financial arrangement.  The answer to this question is…..wait for it….no.  You cannot get around the Anti-kickback Statute by carving out Federal Health Care Programs from your payment arrangement.

This was confirmed by the Office of Inspector General in a recent Advisory Opinion regarding an arrangement between a DME Supplier of continuous positive airway pressure blower units, masks and supplies and an Independent Diagnostic Testing Facility.  The arrangement originally was structured to “carve out” Federal Health Care beneficiaries from the payment arrangement.  The OIG rather clearly found that “carve out” arrangements do not protect and arrangement from scrutiny under the Anti-kickback Statute.  The OIG’s wording best describes the reasoning behind this finding:

The Existing Arrangement covers services provided to non-Federally insured patients only,. Thus, as a threshold matter, we must address whether the “carve out” of Federal business is dispositive of the question of whether the Existing Arrangement implicates the anti-kickback statute, It is not. The OIG has a long-standing concern about arrangements pursuant to which parties “carve out” Federal health care program beneficiaries or business generated by Federal health care programs from otherwise questionable financial arrangements, Such arrangements implicate and may violate the anti-kickback statute by disguising remuneration for Federal business through the payment of amounts purportedly related to non-Federal business. Here, IDTFs participating in the Existing Arrangement may still influence referrals of Federal health care program beneficiaries to the Requestor for DME. Thus, we cannot conclude that there would be no nexus between the Requestor’s payments to the IDTF for services provided to non-Federal patients and referrals to the Requestor of Federally insured patients.

Part A Medicare Appeal Process Described

Monday, June 13th, 2011

Appealing Part A Adverse Reimbursement Determinations

Providers that are reimbursed under Medicare Part A have the opportunity to appeal adverse determinations of claims that they submit for payment.  There are two general types of appeals, depending upon whether a provider is appealing a claim or reimbursement under a cost report.

Medicare administrative contractors (“MACs”) review and process claims made under Medicare Part A.  When a claims determination is negative, the provider may appeal the decision within 120 days of the initial determination.  The provider requests a MAC for a redetermination of its claim.  Once the initial redetermination appeal is filed, the MAC has 60 days to make a redetermination.  The next step in the process is for the provider to request that a qualified independent contract (“QIC”) be appointed to reconsider the MAC’s denial.  The provider has a right to request a QIC review within 180 days following a negative redetermination by the MAC.  The QIC must render a reconsideration decision within 60 days following the provider’s request.

 

If the determination is still adverse to the provider, and if the amount in controversy exceeds a certain minimum amount, the provider may seek review of the claim by an administrative law judge (“ALJ”).  The request for administrative law judge review must be made within 60 days following the QIC’s determination.  The amount in controversy must exceed approximately $130.  Multiple controversies can be aggregated in order to meet this threshold the administrative law judge is required to submit a ruling within 90 days after the record of review is completed.

 

The next step for a provider who receives an adverse review by an administrative law judge is to request a review by the Medicare Appeals Council.  This review must be requested within 60 days of the ALJ’s ruling, and the Appeals Council must rule within 90 days after the request.

 

The last step for a provider assuming a continued negative result, is to file a claim with the Federal District Court.

 Procedures are different for appeals based upon adverse cost report determinations.  Cost report appeals are initiated when the MAC issues a notice of program reimbursement.  The notice of program reimbursement will include a determination of what costs are allowable and will identify any underpayment or overpayment due to or from the provider.  The provider is given 180 days from receipt of the notice of program reimbursement to file an appeal.  Where an amount in controversy is less than $10 the provider must appeal directly to the MAC.  For the smaller claim amounts the MAC decision will be reviewed by the administrator of CMS; however, there is no potential for judicial review of claims involving $10,000 or less.

The Provider Reimbursement Review Board (“PRRB”) hears cost report appeals where the dispute involves $10,000 or more.  PRRB decisions may be reviewed by the CMS administrator.  Amounts in controversy over $10,000 are also subject to court review.  This is just a brief summary of some of the appeal procedures for Part A providers.  Please contact our offices or speak with your usual health care attorney for more detail on these procedures.

OIG Advisory Opinion Addresses Medicare Carve-Outs and Antit-kickback Statute

Monday, June 6th, 2011

Anti-Kickback Statute Advisory Opinion Clarifies

Medicare Carve Out Does Not Insulate Payment Arrangement

The anti-kickback statute makes it a criminal offense knowingly and willfully to offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a Federal health care program, the anti-kickback statute is violated, By its terms, the statute ascribes criminal liability to parties on both sides of an impermissible “kickback” transaction.  For purposes of the anti-kickback statute, “remuneration” includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind.

Clients often ask whether the Anti-kickback Statute covers payment arrangements that do not involve a Federal Health Care program.  In other words, the question is whether Federal Health Program beneficiaries can be “carved out” of the payment arrangement so that the Anti-kickback Statute is not applicable to the proposed financial arrangement.  The answer to this question is…..wait for it….no.  You cannot get around the Anti-kickback Statute by carving out Federal Health Care Programs from your payment arrangement.

 This was confirmed by the Office of Inspector General in a recent Advisory Opinion regarding an arrangement between a DME Supplier of continuous positive airway pressure blower units, masks and supplies and an Independent Diagnostic Testing Facility.  The arrangement originally was structured to “carve out” Federal Health Care beneficiaries from the payment arrangement.  The OIG rather clearly found that “carve out” arrangements do not protect and arrangement from scrutiny under the Anti-kickback Statute.  The OIG’s wording best describes the reasoning behind this finding:

 The Existing Arrangement covers services provided to non-Federally insured patients only,. Thus, as a threshold matter, we must address whether the “carve out” of Federal business is dispositive of the question of whether the Existing Arrangement implicates the anti-kickback statute, It is not. The OIG has a long-standing concern about arrangements pursuant to which parties “carve out” Federal health care program beneficiaries or business generated by Federal health care programs from otherwise questionable financial arrangements, Such arrangements implicate and may violate the anti-kickback statute by disguising remuneration for Federal business through the payment of amounts purportedly related to non-Federal business. Here, IDTFs participating in the Existing Arrangement may still influence referrals of Federal health care program beneficiaries to the Requestor for DME. Thus, we cannot conclude that there would be no nexus between the Requestor’s payments to the IDTF for services provided to non-Federal patients and referrals to the Requestor of Federally insured patients.

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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