Little Health Law Blog

A Whistleblower Primer: The Georgia False Claims Acts

December 14, 2016 | Little Health Law

u-s-supreme-court-hallway-1224332-e1481731366543-272x300 So much focus is placed on the federal “whistleblower” statute, the Federal False Claims Act, that similar acts, such as various States’ versions of the law, are often not as well known. All have a common thread: they are a tool to recover tax payer money lost to fraudulent acts and serve to deter such fraud. Georgia has two false claims act statutes designed to combat fraud and abuse in Georgia.

Georgia Healthcare Whistleblower Law Attorneys

A brief history of this area of law puts the modern Federal and Georgia False Claims Acts in proper light. The Federal False Claims Act was passed during the Civil War era in response to fraud by government contractors who seized the opportunity of intense government spending on the war to defraud the government. An essential concept undergirding the earliest versions of the law was to create a financial incentive for one dishonest contractor — a “relator” — to turn in another. Hence the original law (1863) provided that the relator could be paid up to one-half of the government’s recovery in a false claims act case. The original law survived for decades as a remedial statute designed as a means for the Federal Government to recover what were thought to be, without the law, unrecoverable substantial losses for the treasury that attended dishonest acts. As one court explained:

Closing a Medical Practice, Part 2

December 8, 2016 | Little Health Law

Image result for hospital sign As discussed in part 1 of this post, closing a medical practice can be burdensome and complicated. In the first segment, notification to the licensure board, patients, employees, and DEA was discussed. Some other smaller steps a physician should consider taking to ensure a clean closure include:

notifying the practice’s accountant;
notifying the office/property insurer;

Closing a Medical Practice, Part 1

November 23, 2016 | Little Health Law

As the healthcare market witnesses a rise in consolidation, many small medical practices are closing their doors. Whether the physician is retiring, moving, or joining a larger system, closing a practice can be a much larger hassle than most physicians expect. Closing a medical practice involves several steps, including, but not limited to: notifying patients of the intention to retire, making decisions about insurance policies, selling or winding down the medical practice, and fulfilling record keeping responsibilities.

Licensure Board notification. If a physician is retiring and plans to become inactive, they must notify the Composite Medical Board of their intent to do so. The Board does not require physicians to notify them when they retire or close a practice; however, physicians who wish to become inactive must submit a form requesting inactive status. Physicians who are simply leaving a practice or moving have no obligation to inform the Board of their move.

Patient notification. When closing a practice, and thereby ending their physician-patient relationships, a physician must take appropriate steps to avoid claims of “patient abandonment.” Abandonment is defined as the termination of a professional relationship between physician and patient at an unreasonable time and without giving the patient the chance to find an equally qualified replacement. By not ensuring proper procedures are taken, a physician may risk investigation by the Composite Medical Board if a complaint is filed.

Physician Credentialing

October 21, 2016 | Little Health Law

Overview

Credentialing is used to evaluate physicians for different purposes and is required of almost all physicians. It is utilized by hospitals when evaluating physicians for medical staff positions and hospital privileges and when enrolling in health insurance plans as a participating provider. Unfortunately, this process has not been streamlined and can be very time consuming and complex.

Provider credentialing is meant to verify experience, expertise, and willingness to provide medical care. It is often a complex, ongoing process that can take several months to be completed and approved and is an administrative hassle for employers, insurance companies, and physicians. While credentialing was historically just proof of licensure, modern credentialing goes far beyond proof of diploma and license.

Physician Licensure

October 14, 2016 | Little Health Law

Overview

It is important for all medical professionals to have a better understanding of their licensing board and the process for licensure appeals. The Georgia Composite Medical Board (“Board”) governs licensure for physicians, physician’s assistants, pain management clinics, clinical perfusionists, acupuncturists, orthotists and prosthetists, respiratory care professionals, and laser practitioners. The Board also regulates provisional, teacher, institutional, and administrative medical licenses.

The Board consists of thirteen physicians, two consumer members, and one physician assistant (PA) ex-officio member. Beyond licensure, the Board, in compliance with state law, also promulgates rules and regulations that govern the practice of medicine in Georgia. In order to stay in compliance with federal Antitrust laws (see NC State Board of Dental Examiners v. FTC), these rules are passed in accordance to legal advice received from the Attorney General’s Board representative and the rules are also subject to the Governor’s executive oversight of all licensing boards (HB 952). All proposed rules are also open to public comment and the Board encourages interested parties to come to the open portions of their monthly Board meetings to listen and comment if desired.

Investigations and Discipline

There are many reasons that a medical professional may find themselves without an active license, including disciplinary action or simply failure to renew their license on time. Professionals are able to renew their license, apply for a new license, apply for reinstatement of a lapsed license and more online on the Board’s website. If a medical professional’s license has lapsed, it is unlawful for them to continue to practice and they must submit a reinstatement form and be approved before resuming.

Fraud and Abuse Update: HHS Reports Significant Medicaid Fraud Recoveries for Fiscal Year 2015

September 19, 2016 | Little Health Law

handcuffs-1156821-m The U.S. Department of Health and Human Services (HHS) recently released its Medicaid Fraud Control Units Fiscal Year 2015 Annual Report (the “Report”). The Report’s findings highlight 1,553 convictions, 731 civil settlements, and $744 million in criminal and civil recoveries relating to Medicaid fraud and abuse. Fraud and Abuse financial recoveries remain a top priority for the Federal Government and hence a primary objective of Federal law enforcement. Our Georgia business and healthcare law firm follows developments in the world of healthcare law, including fraud and abuse issues.

Background

The Social Security Act (SSA) mandates that, absent certain circumstances, each State operate a Medicaid Fraud Control Unit (MFCU). The District of Columbia and forty-nine States currently maintain MFCUs. MFCUs are one of many Federal law enforcement tools in its fraud and abuse arsenal. The statutory mission of MFCUs is to investigate and prosecute Medicaid fraud by health care providers and patient abuse and neglect. HHS’ Office of Inspector General (OIG) certifies, provides oversight of, and assesses performance relative to Federal compliance standards of all MFCUs. The States are responsible for operation of MFCUs and receive reimbursement for a percentage of their costs from the Federal Government, pursuant to the SSA. MFCUs are currently reimbursed for 90% of their costs for the first three years of their operation and 75% thereafter.

Each MFCU employs staff that comprise investigator(s), auditor(s) and attorney(s) to review referrals of potential fraud and abuse involving Medicaid and to make decisions regarding potential civil and/or criminal prosecution. The Report essentially provides the latest annual update on the success of MFCUs in prosecuting Medicaid fraud matters.

A Few Findings of the Report

The Report’s findings include:

Virtual Health Care May Become All the Rage

August 22, 2016 | Little Health Law

mobile-phone-in-hand-1438231-1-m How could it not?

The healthcare industry is rapidly evolving. As recently reported in U.S. News and World Report, next on telemedicine’s horizon may be virtual care clinics. In fact, so-called virtual care will likely revolutionize the delivery of health care in the coming years. “Virtual,” in this context, alludes to the fact that care providers, doctors, nurses and therapists, may provide most care from many miles away.

Georgia Health Care Law Firm

Various genres of “virtual care” delivery exists already. One notable pioneer is Mercy Virtual. Mercy, based in Chesterfield, Missouri, emphasizes that an objective of its mission is to ensure access to quality care, explaining: “Mercy Virtual’s mission is to connect patients with leading care providers whenever, wherever they need help.” In recent years, many other medical businesses are finding and developing their own niches in the evolving virtual healthcare world. Several of the numerous examples are: Teladoc, which provides online, 24/7 access to primary care physician services; American Well, which claims to offer “telehealth” to more than 100 million people in an online marketplace where customers select their healthcare provider from a list; Carena provides a range of healthcare services that include virtual visits for the employees of self-insured companies; Zipnosis is a platform that, through “phone and video care,” helps patients get answers to their healthcare questions and helps physicians treat primary care ailments; MeVisit enables “e-visits” that allow patients to use their mobile device to connect with a doctor.

Fraud and Abuse Update: St. Joseph’s Hospital Health Center Agrees to Pay $3.2 Million to Resolve Allegations that it Violated the New York False Claims Act

August 3, 2016 | Little Health Law

gavel-952313-m On August 1, 2016, the United States Department of Justice (DOJ), through the United States Attorney’s Office, Northern District of New York issued a press release regarding the DOJ’s resolution of fraud allegations against St. Joseph’s Hospital Health Center (St. Joseph’s). No determination of fraud by a Court has been determined nor have the allegations of fraud been proven. Our Georgia healthcare law firm follows legal developments with regard to healthcare reimbursement and fraud and abuse.

The Federal Government’s allegations against St. Joseph concern the state’s Medicaid program. The DOJ alleged that St. Joseph’s staff was not qualified to provide certain mental health services for which Medicaid reimbursement was sought and obtained. St. Joseph provided the services in question under its program known as the Comprehensive Psychiatric Emergency Program (CPEP). The CPEP maintained a mobile unit that would serve patients in particular counties who could not, or would not, access mental health crisis intervention services available in the emergency room. New York law has regulations with which CPEPs must comply. Those State regulations delineate the proper composition of professional staff who must be involved with the applicable intervention services when such services are provided somewhere other than in the emergency room. Reimbursement for such services is expressly conditioned upon compliance with the New York regulations that govern proper staffing.

The DOJ alleged that St. Joseph violated the New York False Claims Act by submitting payment to Medicaid for “mobile-crisis outreach services” by individuals who did not meet New York’s CPEP qualifications to provide such services. The alleged violation of the New York False Claims Act was premised on the submission of claims for payment without disclosing that St. Joseph’s staff (allegedly) failed to meet the qualification requirements under State law for the particular services provided. St. Joseph’s agreed to pay $3.2 million to conclude the matter.

Senate Finance Committee Proposes Changes to STARK Law

July 8, 2016 | Little Health Law

law-education-series-3-68918-m In a Senate Finance Committee Majority Staff Report (the Senate Report) entitled, “Why Stark, Why Now?”, the Committee’s Chairman, Senator Orrin Hatch, argues that changes are needed to Stark Law.

Georgia Stark Law and Physician Self-Referral Attorneys

The Senate Report is, at a minimum, a strong indicator that calls for change in the law are heard and efforts are underway to evaluate improvements to the law.

A Brief History of Stark Law

Stark Law is Federal physician self-referral law premised upon the notion that physicians are prone to order (i.e., “refer”) more medical items and services if they stand to benefit financially from doing so. For example, where a physician has an ownership interest in a lab to which he refers patients, he will incentivized to send more patients to the lab for lab work.

Thus in 1989 Representative Fortney “Pete” Stark (D-CA), of whom the statute was named, proposed the law to address two perceived adverse consequences of financial incentives for physician self-referrals of medical items and services reimbursed by a Federal healthcare program: (1) overbilling of Federal healthcare programs; and (2) the provision of medical services that do not benefit a patient. Stark Law, Section 1877 of the Social Security Act, codified at 42 U.S.C. § 1395nn, as originally passed, was a fairly straightforward and narrow prohibition that precluded a physician from referring patients or specimens to clinical labs, including physician office labs, where labs paid for by fed programs (Medicare, Medicaid, or CHAMPUS) if the physician (or immediate family member) had a “financial relationship” with the lab. Indeed, Pete Stark declared in sponsoring the law that the intent was to create a “bright line” standard that would benefit physicians and protect Federal healthcare programs. But the law did not remain simple and expanded from the straightforward lab referral context to apply to a list of services and items known as “Designated Health Services,” identified by CMS billing codes.

General Accounting Office Issues Findings Regarding Medicare Appeals Backlog

July 1, 2016 | Little Health Law

files Earlier this month, the United States General Accounting Office (GAO) issued its monthly anticipated report (the Report) to Congress about the status of the Medicare Appeals backlog. The Report states on the first page, “Opportunities Remain to Improve Appeals Process,” which is a gross understatement and will likely be received with frustration by unpaid providers. At least it appears the backlog is on Congress’ radar and someone is trying to do something to improve this very difficult problem that adversely impacts so many providers.