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New OIG Guidance Emphasizes Health Care Compliance Oversight for Boards
/in Fraud and Abuseby Ellen Bonner, Holland & Hart LLP
In late April, the Office of Inspector General, U.S. Department of Health and Human Services (“OIG HHS”) issued Practical Guidance for Health Care Governing Boards on Compliance Oversight (“Compliance Guidance”)1. The Compliance Guidance assists health care organization boards (“Boards”) with compliance plan oversight obligations. Highlighted below are a few of the Compliance Guidance’s numerous practical tips for proactive compliance oversight and review of health care organizations.
As a starting point for compliance assessment, the Compliance Guidance recommends the following publically available compliance resources:
With a nod towards the “ever-changing regulatory landscape and operating environment,” the Compliance Guidance promotes the development of formal plans, including periodic updates from informed staff, to stay current with the changes in regulations and operating environments that impact the organization and its Compliance Program. The following four areas are emphasized in the Compliance Guidance: Read more
Idaho’s Medical Lien Statute
/in Reimbursement & Collectionsby Kim C. Stanger, Holland & Hart LLP
Idaho law allows hospitals and other healthcare providers to file a lien to help secure payment of treatment to persons who have been involved in an accident or who might otherwise be entitled to recovery from a third party for injuries the patient suffers. The lien statute is, however, limited in scope and must be strictly followed to enforce the lien.
Medical Liens. Idaho’s medical lien statutes allow hospitals,1 nursing care providers,2 and other entities licensed to practice medicine3 to file a lien “for the reasonable charges for … care, treatment and maintenance of an injured person, … or to the legal representative of such person, on account of injuries” caused by another person.4 Significantly, the lien statutes do not apply charges for care rendered to all patients; instead, they only apply to charges for care rendered to patients who were injured by the actions of another person (e.g., auto accidents, personal injury cases, assault and battery, etc.). Also, the lien statutes do not enable the healthcare provider to file or enforce a lien against the patient’s own property; instead, the lien gives the healthcare provider a right to recover against the person or entity causing the patient’s injuries (the “tortfeasor”). The net effect is that the tortfeasor (or their insurer) will want to ensure that the provider is paid as part of any personal injury settlement, or the tortfeasor may remain directly liable to the provider for the cost of the provider’s care. The lien does not apply to accidents or injuries that are covered by workers compensation.5
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Referral Reward Programs
/in Fraud and Abuseby Kim C. Stanger, Holland & Hart LLP
I often see programs in which health care providers offer rewards to persons who refer new business to the practice. Such programs are risky.
Anti-Kickback Statute. The federal Anti-Kickback Statute prohibits offering or paying any remuneration to induce referrals for items or services payable by federal healthcare programs, including Medicare or Medicaid. (42 USC 1320a-7b(b)). Violation of the Anti-Kickback Statute is a felony. It is also an automatic violation of the federal False Claims Act. Accordingly, providers should never reward referrals for Medicare or Medicaid business. In addition, the OIG has suggested that carving out federal program business from reward programs may not insulate the provider from Anti-Kickback Statute liability because a person who receives rewards for referring non-federal program business is likely to refer federal program business as well. (OIG Advisory Opinion No. 12-06).
State Laws. Referral reward programs might also violate state laws. For example, the Idaho Medical Practices Act prohibits “[d]ivision of fees or gifts or agreement to split or divide fees or gifts received for professional services with any person, institution or corporation in exchange for referral.” (Idaho Code 54-1814(8)). Idaho’s insurance code also prohibits rewarding referrals that result in “treatment of physical or mental illness or injury arising in whole or substantial part from trauma.” (Idaho Code 41-348). I am not aware of any cases in which these statutes have been applied to referral reward programs, but there is a risk. Read more
Stark Requirements for Physician Contracts
/in Contracts & Transactions, Fraud and Abuseby Kim C. Stanger, Holland & Hart LLP
Entities that employ or contract with physicians must ensure their agreements are structured to comply with the federal Ethics in Patient Referrals Act (“Stark”)1 if they intend to bill Medicare for services rendered or referred by the physicians. Under Stark, if a physician (or a member of the physician’s family) has a financial relationship with an entity, the physician may not refer patients to the entity for certain designated health services (“DHS”)2 payable by Medicare unless the financial relationship is structured to fit within a regulatory safe harbor.3 Entities may not bill Medicare for services improperly referred and, if they have done so, the entity must repay amounts improperly received. Failure to report and repay within 60 days may result in additional civil penalties of $15,000 per claim as well as False Claims Act liability.4 Repayments can easily run into the hundreds of thousands if not millions of dollars. Given the potential liability, it is critical that physician arrangements be structured to fit within the regulatory safe harbors.
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Physicians Should Beware Illegal Conspiracies when Dealing with Hospitals
/in Antitrustby Melissa Starry, Holland & Hart LLP
Physicians and other providers must beware illegal conspiracies when taking coordinated action to obtain payment from hospitals. On December 1, 2014, the State of Idaho Office of the Attorney General reached settlements with four physicians who were investigated for their actions during on-call pay negotiations with Madison Memorial Hospital in Rexburg, Idaho.
According to the Attorney General’s press release, the hospital’s on-call policy required physicians to provide unpaid on-call coverage for the emergency department as a condition of receiving privileges. Several doctors jointly sought to negotiate changes to the policy and notified hospital administrators that they would no longer provide on-call coverage until the hospital agreed to pay them. The Attorney General asserted that the physicians’ coordinated response violated the Idaho Competition Act.
Both federal and state laws prohibit agreements between competitors that restrain trade. At issue in Rexburg was the Idaho Competition Act which prohibits conspiracies “between two or more persons in unreasonable restraint of Idaho commerce.” See Idaho Code § 48-104. Examples of unreasonable restraint include price fixing, allocating or dividing markets, and boycotting or refusing to deal. Attorney General Lawrence Wasden said, “[a]t issue for my office in this investigation is using anticompetitive tactics to bring about change in the marketplace.” The investigation did not consider the merits of paying physicians for on-call services. According to the Attorney General’s press release, the investigation into the matter is ongoing. Read more