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2011 FRAUD

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Title: 2011 FRAUD & ABUSE UPDATE Description: Cleaned by 3BClean from 3BView: http://www.3bview.com Last modified by: hren Created Date: 2/5/2011 12:07:14 AM – PowerPoint PPT presentation

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Date added: 2 October 2019
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Title: 2011 FRAUD


1
2011 FRAUD ABUSE UPDATE
  • John Hellow
  • Hooper, Lundy Bookman, PC
  • 310-551-8155
  • JHellow_at_Health-Law.com
  • All views expressed in the seminar materials
    and in the speakers
  • presentation are personal views and do not
    represent the formal positions
  • of Hooper, Lundy Bookman, Inc. or any of its
    clients. The speakers
  • expressly reserve the right to freely advocate
    other positions in
  • other forums.

2
Patient Protection and Affordable Care Act
(PPACA)
  • Public focus on PPACA insurance reforms, most of
    them not effective until 2014
  • But PPACA once again increased fraud and abuse
    protections and expanded self-reporting
    requirements, with many effective NOW

2
3
PPACAFraud Abuse Provisions
  • New 60-day deadline for reporting and refunding
    of overpayments
  • Revised False Claim Act (FCA) public disclosure
    bar
  • Clarified knowledge requirement for health care
    fraud crimes, including Anti-Kickback Statute
    (AKS) violations
  • New Stark Law provisions regarding
    physician-owned hospitals and voluntary
    disclosure protocol

4
PPACAFraud Abuse Provisions
  • New Civil Monetary Penalties (CMPs) for various
    health care law violations
  • New DHHS authority to temporarily withhold
    payments to providers under investigation for
    fraud
  • New mandatory Medicare Medicaid provider
    exclusion requirements

4
5
2010 Overpayment Reporting Refunding
  • Effective March 23, 2010, all Medicare and
    Medicaid overpayments must be reported and
    refunded to the applicable payor within the later
    of
  • "60 days after the date on which the overpayment
    was identified" or
  • "the date any corresponding cost report is due."

5
6
2010 Overpayment Reporting Refunding
  • Overpayments" are defined as "any funds that a
    person receives or retains under Medicare or
    Medicaid to which the person, after applicable
    reconciliation, is not entitled
  • An overpayment retained by a person after the
    deadline for reporting and returning the
    overpayment" is also an "obligation" for purposes
    of the federal False Claims Act (FCA).

6
7
From Overpayment To False Claim
  • In 2009, the FCA was revised to impose civil
    liability on any person who knowingly conceals
    or knowingly and improperly avoids or decreases
    an obligation to pay or transmit money or
    property to the Government
  • Other FCA revisions defined an obligation as
    including retention of an overpayment and no
    longer required any claim or statement about such
    obligation to be submitted to government as an
    essential element of a reverse false claim

7
8
2010 OverpaymentsFAQs and Some Answers
  • When is an overpayment identified? for purposes
    of the 60-day clock?
  • Does the 60-day rule require an identified
    overpayment to be reported if its amount is still
    unknown?
  • Must any overpayment arising before March 23,
    2010 and identified on or after March 23, 2010 be
    reported and refunded within 60 days?
  • How does the 60-day rule apply to interim
    payments subject to the cost report
    reconciliation process?

8
9
2010 FCA Changes
  • The PPACA revises the FCAs public
  • disclosure/original source bar to
  • Limit public disclosure sources to a federal
    hearing, administrative report, audit, or
    investigation (while retaining a congressional
    and Government Accounting Office report, hearing,
    audit, or investigation, and the news media as
    public disclosure sources)

9
10
2010 FCA Changes
  • Require an original source to have "knowledge
    that is independent of and materially adds to the
    publicly disclosed allegations
  • Even if public disclosure/original source bar
    applies, the district court may not dismiss the
    action without the governments consent

10
11
2010 AKS Changes
  • In order to obtain an AKS conviction, the
    government must prove that a person knowingly
    and willfully violated the statute
  • The PPACA clarifies that this intent standard
    does not require a person to have actual
    knowledge that his conduct violates the AKS or
    have a specific intent to violate the AKS
  • The PPACA also provides that any claim resulting
    from an AKS violation is a false claim within
    the meaning of the FCA

11
12
2010 Stark Changes
  • Effective December 31, 2010, the Stark Law
    exception permitting some physician-owned
    hospitals will be eliminated, no such new
    hospitals will be allowed, and existing
    physician-owned hospitals will be prohibited from
    expanding many aspects of the facility including
    beds, procedure rooms, and operating rooms, or
    increasing the percentage of physician ownership
  • DHHS must develop self-disclosure protocols for
    Stark violations by no later than September 2010

12
13
2010 Withholding of Payment
  • DHHS is now authorized to withhold payments to a
    provider where there is a credible allegation
    of fraud 
  • DHHS must promulgate regulations defining when
    there is a credible allegation of fraud for the
    purpose of a withhold

13
14
2010 New Civil Monetary Penalties
  • 50,000 treble damages for knowingly making
    false statements, omission, misrepresentation of
    a material fact in any federal healthcare program
    application, bid, or contract
  • 50,000 for each false record or statement used
    for payment from federal healthcare program
    (FCA-type provision)
  • 15,000 per day for failure to grant timely
    access, upon reasonable request, to OIG for
    audits, investigations, evaluations, etc.

14
15
2010 Mandatory Exclusions
  • A state must terminate a provider from its
  • Medicaid program if
  • The provider is terminated by Medicare or a
    Medicaid program in another state or
  • The provider owns, controls, or manages a
    provider
  • That has delinquent unpaid overpayments
  • Is suspended, excluded, or terminated from
    participation or
  • Is affiliated with a suspended, excluded, or
    terminated individual or entity

15
16
2010 Permissive Exclusions
  • DHHS may now exclude a hospital
  • from participation in federal healthcare
  • programs if
  • The hospital knowingly makes a false statement,
    omission, or misrepresentation of material fact
    in any application, agreement, bid, or contract
    to participate or enroll in a federal healthcare
    program
  • The hospital intentionally obstructs a
    Medicare/Medicaid program audit or investigation

16
17
2010 Mandatory Compliance Plans
  • DHHS can now require designated providers to have
    compliance programs in place as a condition of
    program participation.
  • Plan requirement will almost certainly be applied
    to hospitals

17
18
Questions?
18
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