MRA Alerts and Updates: 04/26/13

Friday, April 26, 2013

PPACA Implementation Pending, Health Insurance Coverage Gaps Persist

OIG Issues Alert Warning Physicians that They Can Be Liable for False Claims Submitted by Entities to Which They Have Reassigned Their Medicare Billing Rights

On February 8, 2012, the Office of Inspector General (OIG) issued an OIG Alert warning physicians to exercise caution when reassigning their right to bill the Medicare program. According to the Alert, “[p]hysicians who reassign their right to bill the Medicare program and receive Medicare payments by executing the CMS-855-R application may be liable for false claims submitted by entities to which they reassigned their Medicare benefits.” The OIG indicated that it had recently reached settlements with eight physicians who had allegedly violated the civil monetary penalty law by causing the submission of false claims for claims submitted to Medicare by physical medicine companies to which the physicians had reassigned their Medicare billing rights in exchange for medical directorship positions. According to the OIG, the physical medicine companies billed Medicare for services that were not actually performed or performed as billed. The physical medicine companies, using the physicians' reassigned billing numbers, falsely certified to Medicare that services performed by unlicensed physical therapy technicians had been performed or directly supervised by the physicians, when such was not the case. The Alert states that physicians have an obligation to monitor billing and other records to ensure that claims using their reassigned provider numbers are billed correctly. The OIG noted that physicians who reassign their billing rights to an entity have a right to access the entity’s billing and claim information for the services that the physicians are alleged to have performed.

Health Headlines – Editor:
Dennis M. Barry dbarry@kslaw.com +1 202 626 2959

Medicare Whistleblower Program Increases Maximum Reward to $9.9M

The Obama administration is proposing to increase the maximum reward for reporting Medicare fraud to $9.9 million, saying that it could provide an incentive to whistleblowers.

Since 2010, the Centers for Medicare & Medicaid Services (CMS) has recouped more than $14.9 million in fraudulent Medicare funds. The new proposal, the agency says, will root out a net $24.5 million in additional recovered revenue each year.

“President Obama has made the elimination of fraud, waste and abuse, particularly in healthcare, a top priority for the administration,” said Health and Human Services Secretary Kathleen Sebelius in a statement on Wednesday.

The proposal “is a signal to Medicare beneficiaries and caregivers, who are on the frontlines of this fight, that they are critical partners in helping protect taxpayer dollars,” Sebelius continued.

“The IRS program has proved to be highly successful in generating leads that returned far greater sums than the existing Medicare [Incentive Reward Program] IRP, which limited rewards to 10 percent of the first $10,000 of the final amount collected,” the department said in its proposal.

Regulations in the new program would increase the rewards from 10 percent to 15 percent of the total amount of recovered funds. The new proposal would also increase the cap on the recovery fund awards to $66 million, meaning a person can earn as much as $9.9 million if CMS collects more than $66 million as a result of a fraud tip.

HHS said the cost to bolster the program would be $70,000.

CMS and OIG Propose Changes to the Electronic Health Records Exception and Safe Harbor

On April 10, 2013, the Centers for Medicare & Medicaid Services (“CMS”) and the Department of Health and Human Services Office of Inspector General (“OIG”) published parallel proposed rules revising, respectively, the Stark exception and Anti-Kickback safe harbor concerning electronic health record (“EHR”) items and services. Highlights of the proposed rules include:
Sunset Provision. The EHR exception and safe harbor are scheduled to sunset on December 31, 2013. The proposed rules seek to extend the sunset provision to December 31, 2016.
Deeming Provision. The EHR exception and safe harbor specify that the donated software must be interoperable at the time it is provided to the physician. Currently, for purposes of meeting this condition, software is deemed interoperable if a certifying body recognized by the Secretary of Health and Human Services has certified the software no more than 12 months prior to the date it is provided to the physician. The proposed rules eliminate the 12-month certification window. Any software will be deemed certified if, on the date it is provided to the recipient, it has been certified to any edition of the EHR certification criteria that is identified in the then applicable definition of Certified EHR Technology in 45 C.F.R. part 170. In addition, the proposed rules place the Office of the National Coordinator for Health Information Technology, instead of the Secretary of Health and Human Services, in charge of recognizing bodies able to certify the interoperability of EHR systems.
Electronic Prescribing Provision. The current EHR rules require the donated software to contain e-prescribing capability. The proposed rules seek to eliminate this condition because sufficient alternative policy drivers exist to support the adoption of e-prescribing capabilities.
Additional Proposals and Considerations.
 Protected Donors. The EHR exception and safe harbor are currently available to a broad class of donors. The proposed rules seek to limit the availability of the EHR exception and safe harbor to cover only the original MMA-mandated donors: hospitals, group practices, Part D plan sponsors and Medicare Advantage organizations. In the alternative, the rules propose to exclude certain suppliers associated with a high risk of fraud and abuse in this context including laboratories, DME suppliers and independent home health agencies.  Data Lock-In and Exchange. Due to the concern of using the EHR exception and safe harbor to lock-in referrals, the proposed rules request comments on new or modified conditions that could be added to the rules to achieve the goals of: (a) preventing data and referral lock-ins, and (b) encouraging the free exchange of data.  Covered Technology. The proposed rules seek comments on whether the regulatory text should be modified to explicitly reflect the items and services that fall within the scope of covered technology. The agencies consider the current regulatory text, when read in light of the preamble discussion, sufficiently clear but seek input from the public regarding this issue.
CMS and OIG are accepting comments on the proposed rules through June 10, 2013.