Direct Primary Care. Direct primary care (DPC) is a style of clinical practice in which a healthcare provider (usually a physician or a physician group) offers primary care services to patients who pay a monthly membership fee for the provision of primary care services at no additional charge to the patient/member. For its most ardent enthusiasts, DPC may best be described as it is on the Direct Primary Care Coalition’s home page:

Direct Primary Care (DPC) is an innovative alternative payment model improving access to high functioning healthcare with a simple, flat, affordable membership fee.  No fee-for-service payments.  No third party billing.  The defining element of DPC is an enduring and trusting relationship between a patient and his or her primary care provider.  Patients have extraordinary access to a physician of their choice, often for as little as $70 per month, and physicians are accountable first and foremost to their patients.  DPC is embraced by health policymakers on the left and right and creates happy patients and happy doctors all over the country!
Continue Reading Direct Primary Care Legislation Continues its Roll Across the Country: Florida Governor Rick Scott signs Florida House Bill 37, Direct Primary Care Agreements

On March 21, 2018, a representative from the Hospital and Ambulatory Policy Group at the CMS, held a listening session regarding proposed updates to documentation guidelines for Evaluation and Management (“E/M”) Services. The purpose of this listening session was for the agency to obtain stakeholder feedback in order to develop policy proposals for upcoming notice and comment rulemaking, which, according to the CMS, will require a multi-year, collaborative effort among the agency and providers. Despite the warning of a Sisyphean task ahead, the CMS seems focused on reducing the burdens associated with the documentation requirements, which date back to 1995. Perhaps the effort will be moot as documentation as the driver of reimbursement will be replaced with clinical and quality outcomes. While the industry is certainly on this path – moving from “if it is not documented, it has not been done” to “if there is no value, it has not been done,” coding remains key and the 20 year old guidelines must be re-visited in light of the current state of the practice of medicine, especially the wide-spread use of electronic health records (“EHRs”).  
Continue Reading Take-Aways from CMS’ Recent Listening Session Regarding E/M Services: Documentation Guidelines and Burden Reduction

We reported, in early 2017, on what was then the latest legislative effort to repeal the Affordable Care Act’s amendment to the Stark Law’s whole hospital exception, which amendment has effectively prevented new physician-owned hospitals from participating in the Medicare program. (You can visit—or revisit—that post, which explores arguments in favor of and in opposition to the restriction, here.)

While the Patient Access to Higher Quality Health Care Act of 2017, introduced in the House in February 2017 and, in May 2017, the Senate, did not pass, recent rumblings suggest that repeal efforts are far from exhausted; rather, proponents of physician hospital ownership may be targeting a new tactic: regulation.
Continue Reading Lifting the Limits on Physician-Owned Hospitals: Can Regulators Prevail Where Legislators Have Stalled?

On January 19, 2018, the United States Court of Appeals for the Third Circuit affirmed a district court’s ruling granting summary judgment to a specialty pharmacy that was accused of violating the Anti-Kickback Statute and the federal False Claims Act (United States ex rel. Greenfield v. Medco Health Solutions, Inc. et al., No. 17-1152.). The court held that the relator, a former vice president of the specialty pharmacy, failed to link the pharmacy’s alleged kickback scheme to the actual submission of claims to Medicare. The decision is important because it stands for the proposition that to be liable under the False Claims Act a relator must allege more than the defendant was submitting claims for federal health care program beneficiaries while engaging in kickbacks. Rather, it must allege that at least one claim was submitted for services that were provided in violation of the Anti-Kickback Statute.
Continue Reading Temporal Proximity Is Not Enough: Third Circuit Nixes FCA/Anti-Kickback Suit For Failure To Link Alleged Scheme to Claims

In a year when the Department of Justice recovers $2.5 billion from the healthcare industry in False Claim Act judgements and settlements, can there really be a silver lining?

Every December, the Department of Justice (DOJ) releases its annual False Claims Act (FCA) recovery statistics for the preceding fiscal year. The recovery statistics, as they have for the past several years, indicate the DOJ considers the healthcare industry to be the number one target for FCA enforcement activity. Of the $3.7 billion in judgments and settlements recovered by the DOJ in 2017, $2.5 billion of that came from the healthcare industry. That is a tremendous number and indicates that the DOJ’s enforcement priority continues to be healthcare—as it has been for the last several years. In 2016, the DOJ recovered $2.6 billion from the healthcare industry. And in 2015, the DOJ recovered $2.2 billion from the healthcare industry. Healthcare has been a focus of DOJ’s FCA enforcement strategy for several years—and it shows no signs of changing any time soon. 
Continue Reading The 2017 Department of Justice False Claims Act Recovery Statistics:

As 2017 drew to a close, some health plans and healthcare providers across the country were still busy trying to finalize contracts for in-network services for 2018 and beyond. A number of negotiations made the headlines in 2017, highlighting ongoing and emerging issues affecting network contracting.

We recap for you some complex deals: in June, UnitedHealthcare and University of Chicago Medicine reached an agreement just a few weeks before the provider was scheduled to go out-of-network;[1] in September, CarePoint Health and Horizon Blue Cross Blue Shield of New Jersey (“Horizon”) reached an agreement to bring CarePoint in-network, putting an end to CarePoint Health’s federal lawsuit against Horizon for $76 million in unpaid out-of-network bills;[2] after months of negotiations, and a failure to meet an October 1 deadline to keep services in-network, Anthem and Hartford HealthCare reached an agreement in November to continue in-network services at Hartford’s Connecticut medical centers;[3] and, at the beginning of December, Mission Health and Blue Cross Blue Shield of North Carolina reached a new in-network agreement after a six-month long dispute.[4]
Continue Reading ‘Twas the Season to Contract? A Year-End Review of Network Negotiations and Billing Disputes

An early report from the Health Care Compliance Association’s Health Care Enforcement Compliance Institute states that DOJ will be moving to dismiss False Claims Act cases that it concludes lack merit. DOJ has not yet posted the speech on its website but RACmonitor, an online news and information source for healthcare providers, reports that:

In announcing a significant policy change, the U.S. Department of Justice (DOJ) said that when it concludes that a qui tam case lacks merit, it will file a motion to dismiss the case rather than allowing the relator to continue.

The surprise announcement was made by Michael Granston, director of the commercial litigation branch of the fraud section in the DOJ’s civil division, during the Health Care Compliance Association’s Health Care Enforcement Compliance Institute in Washington, D.C. on Monday.
Continue Reading Change in Policy or Same Old Story? DOJ Suggests it Will Dismiss Unmeritorious Qui Tam Suits

On October 5, 2017, the Honorable Judge John Walter of the United States District Court, Central District of California, granted the Defendants’ Motion to Dismiss the Medicare Advantage (“MA”) Federal False Claims Act (“FCA”) case of United States of America ex rel. Swoben v. Scan Health Plan, et al. (CV 09-5013-JFW (JEMx)) (the “Swoben Case”) (brought by qui tam relator James M. Swoben and joined by the Department of Justice (“DOJ”)). [1]

Although the ruling was undoubtedly well received by UnitedHealthcare (“UHC”), its parent company, UnitedHealth Group Inc. (“UHG”), and the other Swoben Case defendants, the defendants’ happiness with the dismissal may have been tempered because the ruling gives the DOJ an opportunity to amend and refile its complaint with the Court. Given the DOJ’s recent history of aggressively pursuing cases of potential fraud in the MA space, it is very likely that the DOJ will amend and refile its complaint in the near future.
Continue Reading Alert: In a Surprise Decision Issued on October 5, 2017, Honorable John Walter, United States District Judge, Dismissed a Medicare Advantage Risk Adjustment Fraud Suit Against UnitedHealthcare

As stories and statistics of the opioid crisis become increasingly prevalent in our national discourse, we are seeing a stronger, more innovative, and more aligned push for interventions across communities, government agencies, and the public, social, and health services sectors.
Continue Reading Finding Common Ground in the Healthcare Debate: Federal, State, and Local Governments Respond to the Opioid Epidemic