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This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.
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Beware Excluded Individuals and Entities
/in Fraud and Abuseby Kim C. Stanger, Holland & Hart LLP
Federal laws generally prohibit providers from billing for services ordered by, or contracting with, persons or entities that have been excluded from participating in Medicare, Medicaid, or other federal health care programs. Violations may result in significant penalties, including repayment of amounts improperly received. To avoid penalties, providers should check the OIG’s List of Excluded Individuals and Entities (“LEIE”) before hiring, contracting with, or granting privileges to employees, contractors, or practitioners, and should periodically re-check the LEIE thereafter.
Effect on Excluded Entities. Federal statutes such as the Civil Monetary Penalties (“CMP”) law allows HHS to exclude individuals and entities from participating in federal health care programs if they have been convicted of fraud or abuse or engaged in certain other misconduct. (See, e.g., 42 USC §§ 1320a-7 and 1320c-5). States are required to exclude from Medicaid any person or entity that has been excluded by HHS. (Id.). An excluded individual or entity generally may not do the following: Read more
Waiving Copays and Deductibles
/in Fraud and Abuseby Kim C. Stanger, Holland & Hart LLP
Providers sometimes waive patients’ cost-sharing amounts (e.g., copays or deductibles) as an accommodation to the patient, professional courtesy, employee benefit, and/or a marketing ploy; however, doing so may violate fraud and abuse laws and/or payor contracts. From a payor’s perspective, waiving cost-sharing amounts creates two problems. First, payors often contract with providers to pay based in part on the provider’s usual charges. The Office of Inspector General (“OIG”) has argued that a provider who routinely waives copays is misrepresenting its actual charges. Second, and more importantly, payors require copays to discourage overutilization and reduce costs. Waiving copays and deductibles removes the disincentive for utilization, thereby potentially increasing payor costs. Accordingly, federal and state laws as well as payor contracts generally prohibit waiving cost-sharing absent genuine financial hardship.
Federal Programs. Waiving copays and deductibles for government program beneficiaries implicates at least the following laws:
1. Monetary Penalties Law. The federal Civil Monetary Penalties Law (“CMPL”) prohibits offering or transferring remuneration to federal program beneficiaries if the provider knows or should know that the remuneration is likely to influence the beneficiary to order or receive items or services payable by federal or state healthcare programs (e.g., Medicare) from a particular provider. (42 USC 1320a-7a(a)(5)). Violations may result in penalties of $10,000 per item or service provided, treble damages, repayment of amounts paid, and exclusion from federal programs. (Id.; 42 CFR 1003.102). The CMPL specifically defines “remuneration” to include waivers of copays and deductibles. (42 USC 1320a-7a(i)).
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Idaho Law re Prescribing Without an Examination
/in Physician Practicesby Melissa Starry
As has been widely reported, the Idaho Board of Medicine recently sanctioned a physician for prescribing a common antibiotic over the phone without a prior examination or established patient relationship. This short alert will, hopefully, clear up some of the misunderstanding caused by the media reports.
General Prohibition. Idaho Code § 54-1733 states:
a prescription drug order for a legend drug is not valid unless it is issued for a legitimate medical purpose arising from a prescriber-patient relationship which includes a documented patient evaluation adequate to establish diagnoses and identify underlying conditions and/or contraindications to the treatment. Treatment, including issuing a prescription drug order, based solely on an online questionnaire or consultation outside of an ongoing clinical relationship does not constitute a legitimate medical purpose.
(Idaho Code § 54-1733(1)). As in other states, the Idaho statute was passed to address standard of care concerns resulting from internet pharmacies and “tel-a-doctor” companies. A violation of the statute constitutes unprofessional conduct which may subject the practitioner to adverse licensure action. (Id. at § 54-1733(5)). Read more
Draft of the Revised National Practitioner Data Bank Guidebook Available for Comment
/in Medical Staff, Credentialing, and Corrective Actionby Kelly McIntosh
Marking the first update since September 2001, the Health Resources and Services Administration (“HRSA”) division of the Department of Health and Human Services (“HHS”) has issued a draft of the revised National Practitioner Data Bank (“NPDB”) Guidebook. The release of the draft Guidebook was announced in the Federal Register on December 27, 2013 and the period to submit comments to the draft is ongoing until January 31, 2014.
The revised Guidebook includes expanded and improved examples about reporting to and querying the NPDB, live links to cited statutes and regulations, and useful tables explaining NPDB policies. Also incorporated in the revised Guidebook are legislative and regulatory changes adopted since the last edition. Perhaps the most significant regulatory change incorporated in the revised Guidebook is the merger of the NPDB and the Healthcare Integrity and Protection Data Bank (“HIPDB”) which occurred on May 6, 2013 pursuant to the Patient Protection and Affordable Care Act (“ACA”).
The revised Guidebook also expands on certain areas where there has previously been uncertainty, including when an “investigation” by a health care entity has commenced. On that topic, the revised Guidebook includes additional details and examples regarding when an investigation has commenced. Specifically, the draft Guidebook provides that “an investigation is not limited to a health care entity’s gathering of facts. An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decisionmaking authority takes a final action or formally closes the investigation.” Read more
Check Your Physician Contracts
/in Fraud and Abuseby Kim Stanger
Contracts and other financial arrangements with physicians and certain other healthcare providers must be structured to comply with the federal Stark,1 Anti-Kickback,2 and Civil Monetary Penalties Laws3 if the physician will refer patients for items or services payable by Medicare, Medicaid or other healthcare programs. Failure to comply may result in overpayments; failure to report and repay such overpayments within 60 days may violate the False Claims Act, subjecting the parties to additional penalties, including treble damages, fines of $5,500 to $11,000 per claim, and exclusion from Medicare and Medicaid.4 Given the severe penalties for noncompliance, hospitals and other healthcare providers should ensure that their physician contracts comply.
TOP COMPLIANCE CONCERNS FOR PHYSICIAN CONTRACTS. The following are top compliance issues for services contracts with referring physicians or their family members. Many of these same rules apply to contracts with other healthcare providers who may refer patients for services covered by Medicare or Medicaid.5 Read more