Yesterday’s argument before the Supreme Court in Universal Health Services, Inc. v. U.S. ex rel. Escobar had the potential to put false claims based on an “implied certification” in the crosshairs. Instead, based on the weight of questioning by a plurality of justices, it appears that some form of implied certification theory may survive. (We previously reported on this case, here.)
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Cloudy Skies Ahead for Providers? CMS’ Release of Medicare Billing Data Combined with Physician Payment Sunshine Act Data May Boost Fraud Litigation
In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act. In the interest of providing more transparency for patients, the final rule requires pharmaceutical and medical device manufacturers and group purchasing organizations to report payments or transfers of value provided to physicians or teaching hospitals and to report physician ownership and investment interests. The deadline for submission of aggregate data was March 31, 2014, and the deadline for submission of detailed data is June 30, 2014. CMS has already established a website to display that data beginning in September 2014. In the meantime, also in the interest of transparency, on April 9, 2014 CMS touted the “historic” release of data showing utilization, payments, and submitted charges for services and procedures provided by physicians and other health care professionals to Medicare beneficiaries. As claimed by CMS, this data covers “880,000 distinct health care providers who collectively received $77 billion in Medicare payments in 2012, under the Medicare Part B Fee-For-Service program” and will enable “a wide range of analyses that compare 6,000 different types of services and procedures provided, as well as payments received by individual health care providers.” (See press release. The data is available here.) The consequences of such unprecedented releases of payment/investment interest and Medicare billing data are significant.
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Potential Risks of Healthcare Joint Ventures Between Insurance Companies and Hospitals
Healthcare joint ventures are nothing new. Since the mid-2000’s, physician-hospital ventures have been resurgent, notwithstanding the Office of Inspector General’s skepticism regarding the risk of fraud and abuse when investors are sources of referrals and the filing of numerous whistleblower actions under the False Claims Act (e.g., the nine cases filed against Health Management Associates, Inc., which have been transferred to the District of District of Columbia for consolidated and coordinated proceedings). More recently, a new kind of joint venture has come on the scene: partnerships between insurance companies and healthcare systems. Partly in response to healthcare reform, these ventures seek to “align incentives” between these traditional adversaries. Since 2010, a number of health systems have either acquired or decided to form their own insurance companies. Partnering with insurance companies, however, may be the more practical approach, since health systems can take advantage of insurance companies’ information technology and expertise, while avoiding the cost, time and regulatory approvals required to build an insurance plan from scratch. In 2013, Florida Hospital was among the first to go down this path, announcing a joint venture with Health First Health Plans. More recently, in April 2014 Independence Blue Cross and DaVita HealthCare Partners announced the creation of Tandigm Health, touted as a “unique joint venture” using a coordinated care model to deliver higher quality care at lower cost.
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How Are Your Physicians Compensated? Stark Law + False Claims Act = Halifax Paying $85 Million
On March 10, 2014, just days before trial, Halifax Hospital Medical Center and Halifax Staffing, Inc. (collectively “Halifax”) entered into an $85 million settlement with the U.S. Department of Justice resolving allegations that they violated the False Claims Act (“FCA”) by submitting Medicare claims that violated the Stark law. (See Notice of Settlement and Settlement filed in U.S. ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, Civ. Act. No. 6:09-CV-1002 (M.D. Fla.) The settlement effectively ended a qui tam action that had been filed by an insider in June 2009. The Government had intervened based on employment agreements with six medical oncologists that compensated the physicians based on the operating margin of Halifax’s medical oncology program. The compensation arrangement, referred to as an “Incentive Bonus,” covered a four-year period—from 2005-2008. There are a few lessons to be learned from this case.
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Update on the Provider Self-Disclosure Protocol
Since we last reported on the Provider Self-Disclosure Protocol (“Protocol”) issued by the Department of Health and Human Services, Office of the Inspector General (“OIG”), the entire Protocol has been revamped. Rather than being in the Federal Register, the Protocol is on the OIG website. The current Protocol extends not just to providers, but also device manufacturers and pharmaceutical companies.
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Navigating the Provider Self-Disclosure Protocol
Providers can voluntarily disclose potential fraud with respect to Federal health care programs—Medicare, Medicaid, and potentially private insurers to the extent Federal or state funds are involved—by following the Provider Self-Disclosure Protocol (“Protocol”) issued by the Department of Health and Human Services, Office of the Inspector General (“OIG”). (See 63 FR 58399 (Oct. 30, 1998).) Before embarking on the Protocol journey, providers must understand that although there are concrete benefits to disclosure, it is not a panacea.
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