Medical Ethics. Paul W. Kim, JD, MPH O B E R K A L E R

Transcription

1 Medical Ethics Paul W. Kim, JD, MPH O B E R K A L E R pwkim@ober.com 1

2 Agenda Federal Fraud & Abuse Laws Federal Privacy Laws Enrollment Audits Post-Payment Audits Pre-Payment Reviews 2

3 False Claims Act Knowingly presents or causes to be presented to US a false or fraudulent claim for payment; Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid; Conspires to defraud the government by getting a false or fraudulent claim paid; or Knowingly makes, uses or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to the government. 3

4 False Claims Act Penalty of $5,500 - $11,000 per claim Treble damages Exclusion or debarment from government programs Criminal sanctions 4

5 Civil Money Penalty Statute Applies exclusively to health care in a variety of situations (ownership interest of excluded individuals, etc.) Penalty of $10,000 per day/claim Treble amount of claim, not damages, or Treble remuneration offered, paid, solicited, or received 5

6 Program Fraud Civil Remedies Act Mini False Claims Act Administrative in nature, directed by agencies through administrative hearings $5,000 per claim penalty Double amount falsely claimed 6

7 Anti-Kickback Statute Offering, paying, requesting, or receiving remuneration To knowingly and willfully obtain federal health care program business 7

8 Anti-Kickback Statute Criminal sanctions Civil Monetary Penalties ($50,000 per kickback) Treble the remuneration Exclusion or debarment Potential FCA liability 8

9 Stark Law Physician (or immediate family member) Refer to an entity For designated health services Reimbursed by Medicare or Medicaid Financial relationship with the entity 9

10 Stark Law Clinical laboratory services Speech pathology/physical/occupational therapy services Radiology & certain other imaging services Radiation therapy services Durable medical equipment Home health Parenteral and enteral nutrients & supplies Prosthetics, orthotics, prosthetic devices Outpatient prescription drugs Inpatient and outpatient hospital services 10

11 Stark Law Denial of reimbursement Refund of overpayment Civil Monetary Penalties (up to $15,000 for each prohibited referral; up to $100,000 for a circumvention scheme) Exclusion or debarment Potential FCA liability 11

12 Office of Inspector General You may not charge Medicare higher than what you charge others Self-pay fee schedules: Usual & customary charges vs. collection Prompt pay discounts Waiver of copays, coinsurance, and deductibles 12

13 Health Insurance Portability & Accountability Act Protected health information Treatment Payment Healthcare operations HIPAA authorization Business associate agreement Civil Monetary Penalties Criminal sanctions 13

14 Enrollment Revalidation Local contractors and (for DMEPOS suppliers) National Supplier Clearinghouse Every five years (three years for DMEPOS suppliers) Fee applicable except for practitioners 60 days to respond

15 Updates 30 days to report Final adverse action Change of location Change of ownership 90 days for all other changes 30 days for DMEPOS suppliers

16 Denial or Revocation Revocations generally effective in 30 days, unless retroactive adverse action Overpayment if retroactive Denial of claims submitted Rejection of new claims Rejection of updates

17 Bar on Re-Enrollment Failure to report final adverse action: one year if already enrolled, three years if new enrollee Failure to timely respond to revalidation request: one year Failed site visit: two years Submitting claims after license suspension, felony conviction, or falsification of information: three years

18 Medicare Administrative Contractor Probe audits Statistical sampling and extrapolation Pre-payment reviews Look-back period One year from payment for any or no reason Between one and four years for good cause More than four years for fraud or similar fault

19 Four RACs Recovery Audit Contractor Overpayments and underpayments Unrelated to fraud, waste, and abuse (FWA) Percentage-based contingency fee unless overturned Expanded to Part C and Part D Pre-payment reviews proposed Three-year look-back period

20 Zone Program Integrity Contractor Seven ZPICs Probe audits Statistical sampling and extrapolation Related to FWA Referrals to other agencies Pre-payment reviews Same look-back period as MACs

21 Office of Inspector General Probe audits Statistical sampling and extrapolation Recommendations to CMS Same look-back period as MACs

22 Medicaid RAC Overpayments and underpayments Unrelated to FWA Percentage-based contingency fee unless overturned Look-back period varies by state

23 Medicaid Integrity Contractor Three types Review MIC Audit MIC Education MIC Five jurisdictions Related to Medicaid FWA Probe audits Referrals to other agencies Look-back period varies by state

24 Questions Thank you! 24