Health Law Blog - Healthcare Legal Issues

Archive for April, 2012

Comments to Proposed 60 Day Repayment Rules

Tuesday, April 24th, 2012

The American Hospital Association, along with several other industry groups, has submitted a request that CMS reconrsider proposed regulations implementing the 60-day repayment rule under PPACA.  The following are links to comments to the proposed regulations that were submitted.  This is not an all inclusive list.

American Hospital Associations Comments

American Academy of Family Practitioners

Healthcare Financial Management Associations

Association of American Medical Colleges

Compliance Programs Come Center Stage As Government Tools Expand

Friday, April 20th, 2012

Health Care Compliance and Our Compliance Practice

John Fisher, CHC

Health care attorneys health lawThe current health care regulatory environment presents a high degree of risk to even the most well-intentioned provider.  Recent legal changes have made it even easier for the government to pursue what they believe to be improper activities.  The government is taking a “return on investment” approach to pursuing health care fraud and is coming out on the winning end of this game.  Reports state that the government collects approximately $15 for every $1 that they invest policing health care fraud.  In addition, Whistleblowers continue to bring a steady flow of cases against health care providers.  Even though there is a dispute over certain aspects of health care reform, the area where all ranges of the political spectrum appear to agree is on pursuing health care fraud.  Therefore, we cannot expect this climate of enforcement against health care providers to go away anytime soon.

 While the government continues with its “pay and chase” approach to health care fraud and overpayments, it is also integrating even more drastic measures into its bag of tools.  The government is now authorized to discontinue making payments to a provider altogether upon receiving any “credible allegation” of misconduct.  The allegation does not need to be proven to be true and there is not even a formal procedure to permit the provider to make its case.  Yet, the financial consequences of suspending payment can be devastating.

 Chances are very good that an individual provider will eventually have dealings with the government over some overpayment or fraud and abuse issue.  If you have not had to deal with an investigation, you are very fortunate.  Even the best intentioned providers will more likely than not need to deal with government scrutiny.  When that occurs, it serves the provider well to have an appropriately scaled compliance program that is being actively worked to identify risk areas, billing mistakes, and other possible difficulties.  Having an effective compliance program in place is the best way to turn the problem into something that is manageable, and turn it away from an enforcement action that can have grave consequences on operations and financial viability.

 At Ruder Ware, we have assembled a multidisciplinary team of attorneys to assist providers in compliance matters.  Our compliance team is lead by John H. Fisher, III, who is a seasoned health care attorney and is certified in health care compliance.  Our compliance team can assist providers through the process of structuring an appropriately scaled compliance program, reviewing existing compliance program for effectiveness, and assisting with ongoing operational issues related to compliance programs.

 Our compliance team brings a depth of experience in the wide range of compliance issues that affect various types of providers, such as the Federal False Claims Act, the Stark Law, Anti-Kickback Statute, Civil Monetary Penalties laws, and various legal and billing issues that pertain to the specific practice or provider.  We can suggest practical approaches for identifying specific risk areas and crafting plans to minimize risks in those areas.

 We are able to work with compliance departments to fashion methods for handling issues that arise through their compliance reporting systems, including the creation of corrective action plans.  We advise providers regarding identification, repayment of overpayments, and where necessary, self-disclosure of legal violations to the appropriate governmental agencies using self-disclosure protocols.

When compliance problems are identified, it is critical that providers take appropriate actions to make repayment, appropriately investigate, and craft a proper resolution that avoids reoccurring or deeper difficulties.  We are able to assist with these matters under the attorney-client privilege to determine the nature and scope of any discovered compliance concern.  We can direct investigations and take necessary steps to remedy the problem, all while maintaining client confidentiality.

As with any other legal issue, prevention is the best medicine.  Although we are equipped to assist providers as difficulties arise, we prefer to assist providers to ensure that their compliance programs are effective and appropriately tailored to the size and nature of their particular business.  Ruder Ware’s compliance team has experience conducting compliance effectiveness review and “gap analysis.”  This process involves in-depth due diligence review of matters relative to your compliance program, an assessment of the program, and specific recommendations aimed at making the compliance program more effective.

Electronic Medical Record Licensing and Contracting for EHR

Friday, April 20th, 2012

EHR Licensing and Contracting Comes Center Stage

As Meaningful Use Deadlines Approach

As the meaningful use deadline approaches, many providers are scrambling to implement electronic health records.  The agreements surrounding licensing, implementation, and support of EHR systems are some of the most important agreements that a health care provider will enter.  Unfortunately, many smaller providers put little effort into negotiating terms that help assure that the product functions like it is supposed to and that the implementation takes place in a timely and efficient manner.

             We routinely become involved in the negotiation of EHR agreements.  Some of the important issues that we address include:

  •  Creating an appropriate project milestone system to assure timely project flow.
  • Coordination between vendors in multi-application systems.
  • Requiring that functional specifications are well-defined.
  • Assuring compliance with HIPAA and state laws, particularly with respect to data conversion.
  • Negotiating warranties, including meaningful use warranties.
  • Protecting against “runaway” implementation and support costs.

             The agreements relative to EHR implementation can be very complex.  Each vendor has their own license form and it can be overwhelming to work through the issues to determine how to best protect the interest of the provider.  Our experience in these issues will be a valuable resource to any provider addressing EHR implementation issues.

CMS Issues Mandatory Report On Self Disclosure Protocols

Wednesday, April 4th, 2012

HHS Report on the Implementation of Voluntary Self-Disclosure Protocol

 The Affordable Care Act required department of Health and Human Services to create a voluntary self-disclosure protocol relating to Stark law violations. The centers for Medicare and Medicaid services issued the disclosure protocols on September 23, 2010.

 The recent report that was issued by CMS was statutorily required. The report indicates that since September 23, 2010 a total of 148 healthcare providers have submitted disclosures relating to violations of the Stark law. 51 of these disclosures are still awaiting review by CMS.  An additional 61 disclosures are awaiting additional information from the disclosing party.

 As of the current date, CMS has resolved six disclosures through settlement. These settlements have collected approximately $783,000.

 Go to the following link for a complete copy of the CMS report on the self-disclosure protocols.

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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