Fraud perpetrators receive lengthy prison sentences for false claims, kickbacks

Two health care fraud scheme perpetrators in separate cases successfully prosecuted by the Department of Justice (DOJ) have been sentenced for their crimes. A physician who accepted kickbacks and committed tax fraud received a sentence of seven years in prison. A Detroit medical biller received a sentence of 50 months in prison for her role in billing $7.3 million in fraudulent claims to Medicare and Medicaid.

Physician

A Pennsylvania physician was sentenced to 84 months in prison with three years’ supervised release, 60 months of which run concurrently with a sentence imposed by a Florida district court. The DOJ presented information to the court showing that the physician, who practiced anesthesiology and pain management, owned and operated pain management clinics. The physician conspired to receive kickbacks from a drug testing lab in exchange for referring patients to the lab, totaling over $2.3 million. Medicare and Medicaid paid the lab over $4.5 million based on the physician’s referrals. The physician also failed to remit employment taxes for a corporation of which he was a 100-percent shareholder.

Medical biller

At trial, the DOJ showed that the medical biller submitted fraudulent bills on behalf of a physician for services that she knew could not have been rendered or were not rendered as billed as part of a $7.3 million fraud scheme. She received 6 percent of the total billings received from Medicare. She was sentenced to 50 months in prison with one year of supervised release and ordered to pay restitution of $3.2 million jointly and severally with co-defendants.

340B a small program with tricky compliance field

Although drug spending under the 340B program is a small fraction of drug spending in the country overall, compliance remains important for all entities involved: hospitals, pharmacies, and manufacturers. In a Health Care Compliance Association webinar entitled “340B Program: Finding Clarity in Uncertain Times,” presenters Karolyn Woo and Tony Lesser, both from Deloitte & Touche LLP, advised listeners to allocate the necessary resources to ensure compliance in light of increased audit activity.

340B program

Created by section 340B of the Public Health Service Act (PHSA), the program requires drug manufacturers participating in the Medicaid program to provide outpatient drugs to participating health care organizations at reduced prices. These discounts allow providers to save between 25-50 percent on outpatient drug costs. However, for perspective, 340B spending only accounted for just over $12 billion of the $310 billion spent on drugs in 2015.

Oversight and audits

Despite the program’s relatively small size, Woo and Lesser underscored the necessity of compliance, noting the Health Resources and Services Administration’s (HRSA) increased oversight activity. The agency has recently contracted experienced auditors, who focus on eligibility, drug diversion, duplicate discounts, and billing accuracy. If issues are found during the audit, the HRSA Office of Pharmacy Affairs (OPA) will review these issues, present a corrective action plan to HRSA, and finalize its report. Drug diversion is the most common issue, and repayment to manufacturers was required in over half of the completed audits in fiscal years (FYs) 2015 and 2016. Although there has been no uptick in the number of manufacturer audits recently, HRSA may contact an entity to request certain information outside of an audit, which should be presented as clearly as possible. In addition, specialty pharmacies, which often represent a high percentage of a manufacturer’s 340B revenue, may fall under particular scrutiny.

Compliance plan

Repayment requires that the covered entity and the manufacturer work out a financial remedy in good faith. The process is hampered by outdated OPA information, lack of deadline guidance, and differing repayment calculations. To avoid being placed in this situation, covered entities should create a compliance plan that ensures close oversight of 340B activity, starting with educating staff and reviewing 340B policies and procedures. Entities should perform internal audits to find areas of non-compliance, and learn how to prevent and detect identified issues. When areas of non-compliance are found, they should be reported to manufacturers, HRSA, or other entities as required.

Health practices expand, AHLA names new president

Several firms have recently taken advantage of experienced attorneys’ readiness to make career shifts by expanding their health practices. McDermott Will & Emery (McDermott) and Greenberg Traurig, LLP (Greenberg) have chosen to welcome these additions as partners. In addition, Ogletree Deakins is proud to announce that one of its shareholders was named as the next president of the American Health Lawyers Association (AHLA).

AHLA leadership

The AHLA has selected Rob Niccolini, a shareholder with Ogletree Deakins and co-chair of the firm’s health care practice group, to serve as president of the association for fiscal year (FY) 2019-2020. The AHLA board of directors is tasked with selecting the president, and AHLA Board President Charlene McGinty stated that Niccolini is a thoughtful leader with a strong work ethic and commitment to the health law industry. Niccolini has served as chair and vice-chair of several committees and groups within the AHLA.

New partners

Michael Austin has chosen to return to McDermott as a partner in the firm’s Miami location. Austin served as hiring partner at DLA Piper, leading his office’s health care litigation practice, before choosing to return to McDermott—where he worked for over a decade early in his career. Austin’s practice will focus complex health care litigation matters.

Russell (Chip) Gaudreau III is now a shareholder in Greenberg’s New York City’s location. His practice focuses on counseling large pharmaceutical and medical device companies involved in complex product liability litigation. He joins Greenberg after serving for several years as a partner at Reed Smith.

New hires

Polsinelli expanded its California health care practice for the second time this year by hiring three new attorneys. Erin Muellenberg, Richard Rifenbark, and Anna Suda will support the firm’s clients in regulatory and compliance matters, including fraud and abuse issues and health care transactions.

Seniors, disabled could find services impacted by per capita caps

The implementation of per capita caps on Medicaid funding would not account for the disproportionate amount of program spending on certain groups of Medicaid enrollees. The Kaiser Family Foundation’s (KFF) issue brief on state variation in spending, issued in light of the American Health Care Act’s (AHCA) (H.R. 1628) proposed spending limits, notes that although seniors and the disabled make up 23 percent of Medicaid enrollment, 64 percent of program funds are spent on these groups.

Populations

Children and nonelderly adults with disabilities account for spending three times greater than their enrollment share, and spending on seniors is slightly more than double their enrollment share. These groups have greater health needs and use more acute care and long-term care services as opposed to those who are enrolled based only on income. Children without disabilities cost an average of $2,463 in 2011, while disabled children cost $16,802. Per enrollee spending on nonelderly adults with disabilities was $3,247, while spending for nonelderly disabled adults was $16,613 and spending for seniors was $13,249.

State programs

Spending also varied widely by state: Tennessee spent $6,945 per disabled child while New Hampshire spent $53,557. Some states spend less than $15,000 on disabled adults and seniors, while others pay $25,000 or more. This disparity stems from various coverage pathways offered to seniors and the disabled either at higher income levels or for some significantly disabled children regardless of parental income, provided at a state’s discretion. Variation in spending levels also depends on how many receive community care versus institutional care, with some states targeting home- and community-based services to those who are at risk of needing institutional care in the future. Other states offer personal care or attendant care services.

The brief pointed out that changing the federal Medicaid payment structure from guaranteed payments to states to a per capita cap could bind states to their current coverage provision, locking in these differences between states. In addition, these caps would not account for spending on newly discovered drugs or treatments, and could hamper state responses to emergency situations such as natural disasters like Hurricane Katrina or issues like the opioid epidemic and the Flint water crisis. States may be forced to cut some services they have chosen to provide under their Medicaid programs due to limit federal funding, such as long-term care services, which could especially impact seniors and the disabled.