Little Health Law Blog

FRAUD DOESN’T PAY: HEALTHCARE PROVIDERS BEWARE CIVIL MONETARY PENALTIES LAW

July 31, 2015 | Little Health Law

hammer-to-fall-673264-m Physicians and other healthcare providers and businesses who seek to stay in the center of the court and avoid fraud allegations often inquire of our Georgia business and healthcare law firm about the applicability of STARK (civil statute) or the Federal Anti-kickback (criminal) statute to particular circumstances or transactions. While those laws have great importance and severe penalties for violations, another federal law often warrants review to ensure business is conducted in a legally compliant manner. Many physicians and healthcare businesses have not heard of the “Civil Monetary Penalties” law (CMP), found at 42 U.S.C. § 1320a-7a.

Under the CMP law, the United States Office of Inspector General (OIG) may impose civil monetary penalties upon persons, organizations or entities who knowingly present (or cause to be presented) to a state or federal government certain types of false claims. Such penalties can be severe, ranging from $2,000 to $50,000. Further, the law gives the OIG the ability to treble damages.

So, what triggers CMP?

Physician Payment Sunshine Act: Should it Be Expanded to Include Nurse Practitioners and Physician Assistants?

July 15, 2015 | Little Health Law

medical-doctor-1314902-m Recent articles by ProPublica and NPR spotlight the absence of reporting requirements by pharmaceutical companies of their payments to nurse practitioners and physician assistants under the Affordable Care Act’s (ACA) Physician Payment Sunshine Act. The two web articles reference a case in which a Connecticut nurse practitioner pled guilty to accepting $83 million in kickbacks “from a drug company in exchange for prescribing its high-priced drug to treat cancer pain. In some cases, she delivered promotional talks attended only by herself and a company sales representative.” Because the law does not require reporting of industry payments to nurse practitioners such as this Connecticut provider, if not for the lawsuit, the public might have remained unaware of such payments to her and others like her.

Supreme Court Decision Keeps Affordable Care Act Alive: Benefits to Georgians and Health Providers Across the U.S. Continue

June 26, 2015 | Little Health Law

u-s--supreme-court-1-745242-m This week in a 6 to 3 ruling, the United States Supreme Court issued its decision in King versus Burwell, a case brought as a major threat to the viability of the Affordable Care Act (ACA). Congress, health providers, Supreme Court and Affordable Care Act watchers and more than 6.4 million consumers who benefit from health coverage assistance in the form of federal subsidies under the Affordable Care Act (ACA) had anxiously awaited a ruling in the case following the presentation of oral arguments in March.

Justice John Roberts issued the majority opinion, stating: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Plaintiffs in the King case had argued that the language of the ACA allows for certain subsidies only as to state-established exchanges, but not as to federally-established exchanges. This premise challenged the Internal Revenue Service interpretation that U.S. Treasury regulation 26 C.F.R. § 1.36B provides for tax subsidies as to both federal- and state-established health insurance exchanges, not just exchanges established by the states. The Plaintiffs’ rationale was that their more narrow interpretation of the ACA revealed Congressional intent in establishing tax subsidies as incentives for states to benefit their citizens by creating health exchanges.

“Affordable” Care Act: the Irony of Rising Healthcare Costs for Families and Employers

June 11, 2015 | Little Health Law

woman-in-hospital-1051476-m In the wake of the Affordable Care Act (ACA), healthcare costs continue to rise both for the average American family and for their employers sponsoring healthcare plans. According to a recent article in the Insurance Journal, healthcare costs for the typical American family of four will increase by $1,456 this year, or 6.3% over last year’s costs. Total healthcare costs for this family are projected at $24,671, with the employer paying $14,198 of those costs and families paying the remainder. Our Atlanta and Augusta Healthcare and Employment law firm sees these numbers as a continuing trend of increased healthcare costs to families and employers, which have doubled in the last ten years, according to the article.

Employer Healthcare Coverage Responsibilities Under the Affordable Care Act

Businesses defined as larger employers under the ACA (those with 100 or more employees as of 2015 and 50 or more employees subject to the Employer Shared Responsibility provisions as of 2016) must offer to applicable employees affordable healthcare coverage that meets particular standards. Under the Employer Shared Responsibility provisions, employers who fail to offer required coverage at a required minimum level to full-time employees and their dependents face penalty payments.

Neurosurgeon Pleads Guilty to Healthcare Fraud

June 3, 2015 | Little Health Law

US-SUP-CT-300x225 Large financial recoveries are often seen as the principal motivation for the government’s unrelenting efforts to combat healthcare fraud. Perhaps a more important objective of the government’s efforts to combat healthcare fraud, however, is protecting patient safety. Chronic overutilization of healthcare, driven by a fee-for-service system with patient cost covered by a third-party payer (public or private), is not just a financial problem, it is a public health problem. The DOJ’s announcement on May 22, 2015, of a guilty plea by a Detroit Neurosurgeon is a strong example.

Atlanta and Augusta Business and Healthcare Lawyers

Dr. Aria O. Sabit, M.D., 39, operated the Michigan Brain and Spine Physicians Group, with multiple locations in Michigan. Dr. Sabit has plead guilty to four counts of healthcare fraud involving his alleged performance of medically unnecessary, invasive spinal surgeries and implanting expensive medical devices that were not medically necessary. According to the indictment, Dr. Sabit persuaded some patients to undergo spinal infusion surgeries, which he did not render, and then billed government programs for the fraudulent services. Additionally, Dr. Sabit admitted that while operating on certain patients, he dictated false operative reports that he had performed spinal infusion with particular instrumentation, which had not been done. The invasive surgeries caused serious bodily injury to the patients, according to the indictment.

False Claims Act Compliance: 16 Hospitals to Pay $15.69 Million to Resolve Allegations of Medically Unnecessary Psychotherapy Services

May 21, 2015 | Little Health Law

By: Lee H. Little

Health Care providers evaluating billing compliance for psychotherapy services should take caution from a recent multi-million dollar settlement under the federal False Claims Act involving allegedly unnecessary intensive outpatient psychotherapy (IOP) services.

Georgia Healthcare Law Firm

According to the Department of Justice’s (DOJ) press release, the government’s allegations were that billing by these providers was improper because the patient conditions did not qualify for IOP; patient treatments were not provided pursuant to an individualized treatment plan designed to help patients address specific mental health needs and reach achievable goals; patient progress was not adequately tracked or documented; patients received an inappropriate level of treatment; and/or the therapy provided was primarily recreational or diversional in nature, and not therapeutic.

Medicare Fraud Indictment of Ophthalmologist

May 18, 2015 | Little Health Law

medical-series-11-124837-m-e1423597784531 As Medicare fraud schemes continue to bilk federal taxpayers of billions of dollars, federal law enforcement continues to push diligently to identify and prosecute Medicare fraud. Because of the importance to federal law enforcement of ferreting out healthcare fraud schemes, it is critical for all healthcare providers and healthcare businesses to follow the law to the letter and keep their business practices in the center of the court.

Georgia Healthcare Fraud Defense Law Firm

A key focus for the government is whether tests and procedures are actually medically necessary and properly documented. A recent example is the case of Dr. Salomon E. Melgen. On April 14, 2015, the Department of Justice announced the indictment of Dr. Melgen for alleged Medicare fraud in connection with eye centers owned and operated by him. Dr. Melgen, 60, is a Florida ophthalmologist and retina specialist. He owned the Vitreo-Retinal Consultants Eye Center and the Melgen Retina Eye Center, which together had four offices in south Florida. The eye centers treated 100 or more patients a day, many of whom were Medicare beneficiaries.

FMLA Litigation: A Rising Tide Large Healthcare Employers Face

April 28, 2015 | Little Health Law

hospital-corridor-2-65904-m Hospital systems and other large healthcare providers face increasing risks associated with noncompliance with the Family and Medical Leave Act (FMLA), as FMLA litigation is on the rise. According to Law360, FMLA litigation tripled in one year (from 2012 to 2013). Our Georgia business and healthcare law firm has litigated FMLA and numerous other employment law cases in federal court. Because following the regulatory scheme of the FMLA can involve difficult details (e.g., tracking intermittent leave taken in small increments), many employers can violate the Act inadvertently. Retaliation claims are also problematic because of how the employee is treated before and after the medical leave. Tight protocol and committed training of management, supervisors and HR personnel is critical to minimizing the financial risks associated with FMLA noncompliance.

April 21, 2015, The Ambulatory M&A Advisor publishes attorney Kevin Little’s article entitled “ The Right Approach to Obtain a Good Physician Employment Agreement .”

April 21, 2015 | Little Health Law

The Ambulatory M&A Advisor publishes attorney Kevin Little’s article entitled “ The Right Approach to Obtain a Good Physician Employment Agreement .”

Cell Phones and Medical Malpractice

March 5, 2015 | Little Health Law

Post by Guest Author: Gyalia Rutledge RN, LNC

mobile-phone-in-hand-1438231-1-m Attorneys are increasingly becoming aware of distractions caused by cell phones, tablets and other technology in the clinical setting and how they play a role in medical malpractice cases. In fact, attorneys are now advertising statistics about “Distracted Doctors” on their website in hopes of garnering new clients. Interestingly, what they are advertising is happening and the number of instances is steadily increasing and ever more apparent in today’s medical malpractice cases.

In December 2011, The New York Times quoted doctors who have witnessed others texting, updating Facebook, and shopping at Amazon and eBay during surgical procedures. According to a survey in Perfusion, half of the heart-monitor technicians stated they’ve texted during surgery along with 55% of OR technicians who stated they made cell phone calls while in surgery – though 40% of that number admitted it was an unsafe practice. Additional examples found in literature include nurses not taking care of patients because they were on their phone at the nurse’s station; an anesthesiologist on Facebook while monitoring a patient during surgery; a neurosurgeon making personal calls during an operation; a nurse checking airfares during surgery; and a poll showing that half of the technicians running a bypass machine admitting to texting during a procedure.

As a result of these technological distractions, physicians can be sued for medical mistakes caused by inattentiveness. Hospitals that employ distracted nurses and operating room technicians and other patient care staff, can also face lawsuits under the legal theory of “respondeat superior,” which holds an employer liable for employees’ negligence.