Headlines
On the Front Lines
Headlines (from Medicare Medicaid Guide):
CMS releases rules for premium stabilization, risk adjustment,
and loss ratios
CMS has issued a Final rule and
an Interim Final rule with comment period that will
implement key aspects of the Patient Protection and Affordable Care
Act (PPACA) (P.L. 111-148). The rules involve the market protections
for individuals who buy health insurance through the health insurance
marketplaces (formerly called health insurance exchanges) and also
reduce the risk of “adverse selection” for policy issuers
by subsidizing the premiums paid for beneficiaries in poor health.
CMS Final rule and Interim final rule with comment
period, 78 FR 15409 and 78 FR 15541, March 11, 2013, Health
Care Compliance Reporter, ¶700,396 and ¶700,395, respectively
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CMS proposes changes for qualified health plan enrollment
in the SHOP
CMS has announced a Proposed
rule which would implement §1311(b)(1)(B) of the Affordable
Care Act (ACA) [Affordable choices of health benefit plans] by: (1)
amending existing regulations regarding the triggering of events and
special enrollment periods (SEP) for qualified employees and their
families, and (2) implementing a transitional policy for employees’
choice of qualified health plans (QHPs) in the Small Business Health
Options Program (SHOP). The transitional policy would apply to plan
years beginning during 2014. Comments on the proposed amendments will
be accepted for 30 days after publication in the Federal Register.
CMS Proposed rule, 78 FR 15553, March
11, 2013, Health Care Compliance Reporter, ¶730,193
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Wrongful termination claims of a medical records manager
remanded to state court
The LaPorte Regional Physician Network,
Inc. (Network) is entitled to summary judgment on a federal claim
made by Diana Lundell (Lundell), a medical records manager that her
job termination violated the Health Insurance Portability and Accountability
Act (HIPAA). Although HIPAA provides both civil and criminal penalties
for improper disclosures of medical information, enforcement of the
statute is limited to the Secretary of HHS and the attorney general
of a state, the court said. Lundell asserted that the Network violated
HIPAA regulations and retaliated against her for complaining about
its alleged unlawful conduct. The court noted that retaliation claims
have been construed as not arising under HIPAA, but rather as wrongful
discharge claims in violation of state law. Lundell’s claims
under state law were remanded to state court for resolution.
Lundell v. LaPorte Regional Physician Network,
N.D. Ind., February 20, 2013, Health Care Compliance Reporter, ¶801,784
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Management problems block integration of EHR between VA and
DoD
The decision by the Veterans Administration
(VA) and the Department of Defense (DOD) to abandon a plan to develop
one unified electronic health records (EHR) system for both agencies
is unlikely to result in the successful exchange of information, according
to the testimony of Valerie C. Melvin before the House Committee on
Veterans’ Affairs. Melvin, the, Director of Information Management
and Technology Resources Issues at the Government Accountability Office
(GAO), described the management problems that have hindered the departments’
efforts to share EHR since they began in 1998.
GAO Testimony, No. 13-413T, February 27, 2013
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Physician’s 5-year exclusion from Medicare based on
criminal convictions upheld
A district court upheld the HHS Secretary’s
decision to exclude a physician from Medicare and other federally
funded health care programs for five years. The court determined that
Gregory J. Salko’s misdemeanor convictions were related to the
delivery of an item or service under Medicare and that he was subject
to mandatory exclusion. The court denied Salko’s motion for
summary judgment and granted Secretary Kathleen Sebelius’ motion
for summary judgment.
Salko v. Sebelius, M.D. Pa., February
19, 2013, ¶801,783
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Lack of proper allegations prevents Medicare beneficiary
from proceeding
Julie Zeman, a Medicare beneficiary,
unsuccessfully alleged false claims violations against a hospital
because she provided nothing but bills received for certain services
on certain dates and did not allege any particular scheme to infer
that the hospital actually and knowingly submitted false claims to
the federal government. To prevail on her False Claims Act claim,
Zeman needed to show that: (1) the hospital made a claim against the
United States, (2) the claim was false or fraudulent, and (3) the
hospital knew that the claim was false or fraudulent. She did not
present any such evidence, therefore her claim was dismissed.
Zeman v. USC University Hospital, C.D.
Cal., February 19, 2013, Health Care Compliance Reporter, ¶801,875
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Qui tam relator fails to sufficiently allege
FCA violation by drug companies
A qui tam relator
alleging that pharmaceutical companies violated the False Claims Act
by promoting off-label uses of their drug failed to allege a false
claim with particularity. While the complaint was not barred by the
first-to-file rule, a relator must allege with particularity that
specific false claims were presented to the government for payment.
The complaint did not identify any particular instance in which an
off-label prescription for the drug was submitted to a government
health program for reimbursement. Therefore, the complaint was dismissed
without prejudice.
United States ex rel. Palmieri v. Alpharma, Inc.,
M.D. Md., March 5, 2013, Health Care Compliance Reporter, ¶801,800
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Independent pharmacies use PSAOs to work with third-party
payers
Independent pharmacies are using pharmacy
service administrative organizations (PSAOs) to help achieve administrative
efficiencies, according to a report from the Government Accountability
Office (GAO). In 2011 and 2012, the GAO identified 22 PSAOs operating
in the United States. PSAOs primarily negotiate contracts with third-party
payers on behalf of pharmacies. In addition, they provide communication
about reimbursement policies of third-party payers, as well as regulatory
and statutory requirements to independent pharmacies.
GAO Report, GAO-13-176, January 1, 2013
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Health care delivery improved under PPACA: CMS
The delivery of health care is markedly
different today than three years ago, prior to the passage of the
Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148),
according to Jonathan Blum, Deputy Administrator and Director of the
Center of Medicare at CMS. Jonathan Blum testified before the Senate
Finance Committee on February 28, to what he characterized as significant
impacts and improvements in health care delivery and quality due to
reforms put into place by PPACA. Blum testified that a distinct focus
has been put on avoiding costly mistakes and hospital readmissions,
keeping patients healthy, rewarding quality instead of quantity, and
creating the health information technology infrastructure that enables
new payment and delivery models to work. So far, data shows that PPACA
might just be successful in what it set out to do.
CMS Testimony, February 28, 2013
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Magistrate recommends dismissal of hospital’s indemnification
request
A hospital may not obtain common law
indemnification from individual physicians for amounts the hospital
may be required to pay a patient for violations of the Emergency Medical
Treatment and Active Labor Act (EMTALA) (42 U.S.C. §1395d). A
magistrate in the District Court of Tennessee recommended that Metro
Nashville General Hospital’s (MNGH) complaint for indemnification
against two doctors and the corporation they work for be dismissed
with prejudice. The magistrate noted that the Sixth Circuit has held
that EMTALA does not authorize a private right of action in favor
of patients against physicians. Further, EMTALA’s legislative
history precludes private suits against individuals. The magistrate
held that if MNGH were allowed to recover indemnification from the
doctors, the hospital would have been allowed to accomplish indirectly
what EMTALA would not permit directly.
Cisneros v. Metro Nashville General Hospital,
M.D. Tenn., March 5, 2013, Health Care Compliance Reporter, ¶801,799
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On the Front Lines
SUITS AND SCRUBS AVOIDING ORANGE JUMPSUITS™ Volume
III: Earning and Keeping the Trust
Allan P. DeKaye, MBA, FHFMA and Gregory J.
Naclerio, JD
As Executive Chairman of Google, Eric
Schmidt would need to know something about trust and how his company
is viewed by its subscribers, government and competitors. Healthcare
is clearly a networked industry and viewing these organizations, in
particular, not-for-profit (“NFP”) hospitals and health
systems, from the patients’, government’s, and competitors’
vantage point is no less a challenge. “Trust” is one of
the hallmarks of healthcare. Patients trust their doctors to diagnose
their ills; doctors trust that hospitals will have cutting edge equipment
and motivated staffs; payers trust hospitals to provide medically
necessary services and bill them appropriately. When hospitals breach
the trust to bill payers for medically necessary services actually
rendered, government steps in to level the playing field. Both the
federal and New York State governments have been pushing hospitals
to develop and implement effective and meaningful compliance programs.
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