Discussion MGMA Louisiana amp MGMA Mississippi Southern Summer Conference August 17 2017 New Orleans LA Clay J Countryman Breazeale Sachse amp Wilson LLP Baton Rouge LA claycountrymanbswllpcom ID: 682372
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Compliance and Enforcement Roundtable Discussion
MGMA Louisiana & MGMA MississippiSouthern Summer ConferenceAugust 17, 2017New Orleans, LA
Clay J. Countryman
Breazeale, Sachse & Wilson, L.L.P.
Baton Rouge, LA
clay.countryman@bswllp.com
Special Agent Jeff Richards
Baton Rouge Field Office
U.S. Dept. of Health & Human Services
Office of the Inspector General
Office of InvestigationsSlide2
Focus of PresentationOverview of the Stark Law, False Claims Act and Anti-Kickback Statute
Discuss the HHS-OIG’s Strike Force OperationsCompliance Risk Areas for Physician PracticesCompliance recommendations and discussion of best practices2Slide3
Does your Organization have a Compliance Officer (and Privacy Officer) to handle Stark Law, HIPAA and other compliance related issues?NoYesDon’t know
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How would you describe your Organization’s compliance program?ComprehensiveBasic
Somewhere between basic and comprehensiveWe don’t have oneSlide5
The Stark LawThe Physician Self-Referral Statute, 42 U.S.C. §1395nn, prohibits:Physicians from referring Medicare/Medicaid patients for certain designated health services (DHS) to an entity with which the physician or a member of the physician’s immediate family has a
financial relationship.An entity from presenting or causing to be presented a bill or claim to anyone for a DHS furnished as a result of a prohibited referral.Unless a statutory or regulatory exception applies5Slide6
The Stark LawStrict liability statute, proof of specific intent to violate the law is not required
Sanctions include:Overpayment/ Refund liability of amounts collected as a result of improper billingFalse Claims Act LiabilityCivil monetary penalties and program exclusion for knowing violationsPotential $15,000 CMP for each service
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Federal Anti-Kickback Statute
Prohibits the knowing and willful payment of “remuneration” to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., Medicare, Medicaid).Remuneration includes anything of value (e.g., cash, free or below fair market value rent, excessive compensation for medical directorships or services).
Covers both payers
and receivers of kickbacks.
Voluntary
safe
ha
rbors for specific payment and business arrangements.
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Anti-Kickback Statute - Penalties
CriminalFines up to $25,000 per violationUp to a 5 year prison term per violationCivilFalse Claims Act liability
Civil monetary penalties and program exclusion
Potential $50,000 CMP per violation
Civil assessment of up to 3 times amount of kickback
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Examples of Arrangements Under Anti-Kickback and Stark Law ScrutinyJoint
VenturesCompensationDiscountsVendor agreementsSwapping
Call Coverage
Co-marketing/Practice Support
Speaker Payments
Entertainment
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Federal False Claims Act
The False Claims Act (FCA) makes it unlawful for any person to, among other things, knowingly:Present, or cause to be presented, a false or fraudulent claim for payment or approvalConceal or knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the government
Providers have an
obligation to report and return
known overpayments to the government
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False Claims Act – “Knowingly”“Knowingly”
or “Knowing” mean that a person:has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or
Acts in reckless disregard of the truth or falsity of the information.
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False Claims Act PenaltiesViolations of the Anti-Kickback Statute are punishable under the False Claims Act
Civil penalties include fines of not less than $5,500 and not more than $11,000 per claim, plus 3x the amount of damages sustained by the government. Penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015, the FCA penalties range from $10,781 to $21,563Slide14
Common Theories in False Claims Act Cases
Misrepresentation of services renderedUses of inappropriate higher-paying CPT codes and E&M codesMisrepresentation of reason for services renderedMisrepresentation of place of serviceOffice v. outpatient hospital department
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Compliance Risk Areas: Recent Settlements
Claims submitted for new patient e & m visits and patients were established Inappropriate use of modifiers CT equipment and services provided below fair market value
Electronic Health Records
Counterfeit / Non-FDA Approved Drugs
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Compliance Risk Areas: Recent Settlements
Services billed for non-physician providers as “incident to” (i.e., physician not on-site) Services rendered when requisite physician supervision requirements were not satisfied
P
roviders
not enrolled in the Medicare
program
Employed an individual who was excluded from participation in Federal health care programsSlide17
Compliance Resources OIG web site: www.oig.hhs.gov/
Practical Guidance for Health Care Governing BoardsMeasuring Compliance Program Effectiveness: A Resource GuideSlide18
Health Care Fraud Enforcement and Lessons Learned