Health Care

OIG Cautions Home And Community Based Service Programs: Non-Compliance Will Not Be Tolerated

August 13, 2012

As part of its ongoing effort to improve the quality of health care and eliminate Medicaid waste, fraud and abuse, the Office of the Inspector General (OIG) for the U.S. Department of Health and Human Resources issued its June 2012 report concerning its oversight of quality of care in home and community-based services (HCBS) waiver programs.[1]  While not specifically naming the state of Pennsylvania in its report, the OIG subsequently identified Pennsylvania as one of the three states with the most persistent problems relative to its compliance in home and community-based waiver programs.[2] States participating in HCBS waiver programs must demonstrate that they have systems in place to show that: (1) each beneficiary must have a written service plan based on an assessment of the individual’s needs; (2) each beneficiary must be served by qualified providers; and (3) each State must have necessary safeguards to protect the health and welfare of beneficiaries.[3][4] According to the report, the OIG found that some States have no monitoring systems for service plans, qualified professionals and health and welfare assurances, while others had inadequate strategies to correct problems in these areas.  Centers for Medicare and Medicaid Services (CMS) officials explained that, although CMS has the authority to terminate programs when States do not meet assurances, it generally does not do so because these programs serve vulnerable beneficiaries who might be left without critical services.  Therefore, expect CMS to develop a broader array of approaches to ensure compliance with each of the assurances. Given the OIG report, we can reasonably anticipate that the PA Department of Welfare, under Governor Corbett’s administration, will consider or improve upon the following practices: (1)  Reviewing service plans, perhaps multiple times throughout the year and assigning different experts to assess various aspects of the plans; (2)  Selecting a sample of service plans to review to ensure that the services in the plan matched the Medicaid claims submitted for the beneficiaries; (3)  Reviewing provider qualifications and conducting onsite visits with each provider before allowing the provider to enroll in the HCBS program; (4)  Scheduling visits with beneficiaries and/or mailing surveys to them to assess their satisfaction with providers; (5)  Tracking license expirations electronically; (6)  Automatically decertifying providers who did not renew their licenses; (7)  Systematically tracking and correcting incidents of alleged abuse, neglect and suspicious death; and (8)  Coordinating with other State agencies, when necessary, to review and resolve cases in which beneficiaries’ health and welfare were at risk. Read More

Patient Protection And Affordable Care Act Upheld

August 1, 2012

On June 28, 2012, a sharply divided United States Supreme Court decided that The Patient Protection and Affordable Care Act (“PPACA”) is constitutional. National Federation of Independent Business, et. al. v. Sebelius, et al., 567 U.S. __ (2012) (cites here to Slip Opinion). Three separate Opinions – by Chief Justice Roberts (writing for the Court), Justice Ginsberg (a concurring opinion), and Justice Scalia (a dissent) – offer three contrasting, and occasionally acerbic, views of how the Constitution should be interpreted.  This article will briefly summarize the reasoning behind all three Opinions.  More important to healthcare providers, this article will briefly detail the strong Fraud Abuse and Waste provisions in the PPACA.  Increased communication between, and use of, government databases, ever more sophisticated data mining, and stronger False Claims Act and Anti-Fraud Abuse and Waste provisions, will have direct impacts on all health care providers. The Supreme Court Opinion The Supreme Court’s Opinion reviewed two integral components of the PPACA:  1) the requirement that individual states expand the medical benefits to a larger group of people, including all adults with incomes up to 133% of the federal poverty level, or risk losing the entire federal government’s contribution to the state’s Medicaid budget; and 2) the “individual mandate,” that requires those who do not have health insurance to pay a “penalty.” The Expansion of Medicaid The first issue was handled with little rancor.  The Court, by a 7 – 2 vote, held that Congress could not strip a state of all federal dollars provided to that state for its entire Medicaid program, solely because that state refused to expand its Medicaid program as required by the PPACA.  The Court recognized that the concept of federalism does not permit Congress to compel the individual states to implement federal policy: Permitting the federal government to force the states to implement a federal program would threaten the political accountability key to our federal system.  Read More

West Virginia Supreme Court Overrules Its Prior Finding In Brown V. Genesis Ii

July 9, 2012

In Brown v. Genesis II, the West Virginia Supreme Court, on remand from the United States Supreme Court, again considered the enforceability of an arbitration agreement in a nursing home negligence case.  In Brown I, the West Virginia Supreme Court found that Congress did not intend for nursing home arbitration agreements to be governed by the Federal Arbitration Act.   The West Virginia Supreme Court, in accordance with the United States Supreme Court’s mandate, overruled its prior finding. The Court went on to consider the doctrine of unconscionability as it related to the arbitration agreements at issue.  In considering whether a contract is unconscionable a court must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and the existence of unfair terms in the contract.  In considering procedural unconscionability, the court noted that issues that would be considered to determine whether there was a meeting of the minds between the parties were:  age, literacy, lack of sophistication of a party, hidden or unduly complex contract terms, the adhesive nature of the contract, and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract.  The Court then warned that while not entirely dispositive of the issue, procedural unconscionability often begins with a contract of adhesion. The salient consideration for substantive unconscionability is whether the contract itself or a particular term is a one-sided agreement, “requiring arbitration only for the claims of the weaker party but a choice of forums for the claims of the stronger party.”   Thus, an enforceable arbitration agreement must have a “modicum of bilaterality.”   The Court also noted that the analysis should include whether the arbitration agreement imposes or may impose high costs which would act as a deterrent to a claimant in vindicating his or her rights in the arbitral forum.  Read More

The 22nd Annual National Institute on Health Care Fraud


Marc S. Raspanti will participate on the panel, “Mediation of False Claims Act Cases” on May 9-11, 2012 in Las Vegas, NV. This program is perfect for health care attorneys, compliance professionals, regulators, prosecutors, criminal defense attorneys and qui tam relators’ counsel. Discuss current legal and ethical issues that arise in the health care fraud practice Learn about current government enforcement actions and priorities Gain practical knowledge from over 60 preeminent speakers including prosecutors, regulators and more Related Information: Program Description Read More

Physicians May Now Have An Implied Duty To Care For A Patient’s Emotional Well-Being

January 24, 2012

On December 22, 2011, an equally divided Pennsylvania Supreme Court dramatically extended liability for negligent infliction of emotional distress (“NIED”) to “special relationship” breach of contract or breach of fiduciary duty cases, in Toney v. Chester County Hospital, —A.3d— (Pa. 2011), 2011 WL 6413948. The decision exposes health care providers to liability where there is a breach of an implied duty to care for the emotional well-being of their patients. In Toney, the pregnant plaintiff underwent a pelvic ultrasound at defendant hospital on March 3, 2003.  Plaintiff’s providers, including the radiologist, interpreted and reported the ultrasound results as normal. Four months later, however, plaintiff gave birth to her son who had profound physical abnormalities. Plaintiff, conscious for her child’s delivery and birth, alleged that the defendants’ negligent ultrasound misinterpretation prevented her from preparing herself for the shock of witnessing her child’s birth with such significant physical deformities. Plaintiff claimed that she suffered emotional distress due to shock which manifested itself in nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated hysterical attacks, stress and anxiety. The Supreme Court held that the long-standing physical impact requirement is a “flawed tool to distinguish between true emotional distress deserving recovery and the trivial or fraudulent emotional distress claims that should not result in liability” and that NIED claims do not require a physical impact as an element of the tort. Instead, it extended NIED liability to cases, such as this one, involving pre-existing relationships, where the duties obviously and objectively hold the potential for deep emotional harm in the event of a breach. Such “special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being” and the “potential emotional harm must not be the type that a reasonable person is expected to bear.” The court, for instance, found that relationships involving life and death fall within this category. Read More

October 2011 Health Law Update

October 31, 2011

Center for Medicare Services (CMS) Issues Final Rules on Accountable Care Organizations (ACO) CMS recently issued final rules on ACOs (under the Medicare Shared Savings Program) that encourage a variety of health care providers to form networks to deliver more efficient care.  Initially, CMS proposed that ACO’s share not only in the cost savings generated, but also the risk that costs would increase, which would require ACO’s reimburse the cost overages. Under the final rule, ACO’s will not be penalized if they do not generate savings, but will still share in savings generated.   Also, there is no longer a threshold amount of savings required before ACO’s become eligible to share in the savings.  In addition, CMS adopted a prospective beneficiary assignment that provides to ACO’s a list of expected beneficiaries assigned to the group every three months.  Under the new regulations, ACO’s will have thirty-three performance measures, as opposed to the sixty-five initially proposed, to track for savings. The new rules also allow ACO’s some measure of flexibility when establishing a legal entity under state or federal law.  ACO’s will also have the opportunity to seek approval of unorthodox management structures that may create more efficiencies.  CMS also established an advance payment ACO model for rural and small hospitals that do not have sufficient capital to organize a ACO.  CMS will begin accepting applications for the shared savings program on January 1, 2012. SciClone Proposes Settlement to Class Action Lawsuit Arising from Alleged Violations of the FCPA SciClone Pharmaceuticals announced a proposed settlement of three shareholder derivative actions that arose from allegations that SciClone violated the Foreign Corrupt Practices Act (“FCPA”).  The FCPA makes it illegal for a company to pay foreign officials in exchange for steering business to the company.  The SEC and the DOJ are actively investigation these allegations.  Read More

Revalidate Your Medicare Enrollment

September 9, 2011

According to a recent special edition article in the Center for Medicare & Medicaid Services’ (CMS) online MLN Matters, a publication for Medicare professionals, physicians who enrolled in Medicare before March 25, 2011 and provide health care for Medicare patients will be required to revalidate their Medicare enrollment upon receiving notification from their individual administrative contractors. The revalidation requirement is derived from Section 6401(a) of the Patient Protection and Affordable Care Act, “Medicare, Medicaid, and Children’s Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers” Federal Register 76:22 (February 2, 2011) p. 5862.   To combat fraud, Section 6401(a) mandates certain screening procedures for physicians and other health care providers of Medicare and Medicaid beneficiaries as well as those who participate in the Children’s Health Insurance Program.   As part of the screening program, enrollment in Medicare and/or Medicaid of all registered providers must be revalidated under new enrollment screening criteria. The revalidations will be processed by Medicare contractors in the same manner as initial credentialing applications of Medicare/Medicaid.  Contractors will be provided with a list of physicians and health care professionals who have had a previous adverse action, such as license revocation, felony conviction or exclusion from federal health care programs.  New enrollments and revalidations will be checked against this list and physicians on the list could potentially be subject to higher levels of scrutiny. It is important to note that the revalidation notification will continue through March 23, 2013.  No action need be taken until notification is received from Medicare’s Contractors (Fiscal Intermediaries (FIs), Regional Home Health Intermediaries (RHHIs), Medicare Carriers, A/B Medicare Administrative Contractors (A/B MACs), and the National Supplier Clearinghouse (NSC)).  Once the revalidation notification is received, providers are given sixty days to respond to the request.   However, no action will be required if a provider enrolled on or after March 25, 2011 because these providers’ applications were subject to a stricter level of scrutiny.   Read More

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