Minnesota Federal Court Says Cross-Plan Offsets Are Unlawful; Certifies Case for Immediate Appeal

Posted by Dana Petrillo on March 23, 2017
Healthcare / No Comments

gavel and bookThe U.S. District of Minnesota has ruled in Peterson v. Unitedhealth Grp. Inc., No. 14-CV-2101 (PJS/BRT), 2017 WL 991043 (D. Minn. Mar. 14, 2017) that ERISA does not permit United Healthcare (“United”) to claw back alleged overpayments related to patients from one plan by reducing or eliminating payments related to patients from different self-insured plans, dealing a potential blow to the use of an effective tool that health insurers have used to recoup alleged overpayments from providers.

In Peterson, the Plaintiffs were healthcare providers who brought suit against United as assignees of patients who were enrolled in United-administered plans. United had allegedly overpaid Plaintiffs for services provided to certain patients, and offset these alleged overpayments by reducing or eliminating payments for services that Plaintiffs provided to other patients, who were members of different United-administered self-insured ERISA plans. This practice is known as cross-plan offsetting. Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , ,

Futures in Doubt of CMS’ New Mandatory Bundled Payment Models and Medicare Shared Savings Program Track 1+

Posted by Dana Petrillo on December 23, 2016
CMS / No Comments

medical-documentsWord spread quickly Monday (December 20, 2016) about CMS’ issuance of final regulations (to be published in the Federal Register on January 3, 2017) rolling out new mandatory bundled payments models for Acute Miocardial Infarction (AMI), Coronary Artery Bypass Graft (CABG), Surgical Hip and Fracture Treatment (SHFFT), a Cardiac Rehabilitation (CR) incentive model and Track 1+ Accountable Care Organizations. Speculation that President-elect Donald Trump’s nominee for HHS secretary, Rep. Tom Price, would move to roll the regulations back spread just as quickly.

The new regulations mandate bundled payment models (covering the period from admission to ninety days post-discharge) for AMI and CABG in 98 geographies covering 1,120 hospitals; for SHFFT in the 67 geographies where the Comprehensive Joint Replacement (CJR) has already been mandated covering 850 hospitals and for CR in 90 geographies covering 1,320 hospitals. CMS’ chart of geographies covered by each program is set forth here. The AMI, CABG and SHFFT programs give participant clinicians the opportunity to be excluded from Medicare and CHIP Reauthorization Act of 2015’s (MACRA) Medicare Incentive Payment System (MIPS) and to qualify under MACRA’s Advanced Alternative Payment Model (AAPM). Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , , , , , , , , , ,

Arbitration Agreements in Nursing Homes

Posted by Dana Petrillo on October 04, 2016
CMS / No Comments

elderly man in wheelchairIn a final rule published today in the federal register (“Final Rule”), CMS announced numerous changes to the consolidated Medicare and Medicaid requirements for participation for long term care (LTC) facilities (42 CFR part 483, subpart B), which take effect on November 28, 2016 (see the March 7, 2016 blog for information about the July 16, 2015 proposed rule (“Proposed Rule”)). Much to the satisfaction of elder care advocates, the Final Rule provides that nursing homes may no longer require prospective nursing home residents to agree to binding arbitration. This strikes a blow at LTC facilities, which generally used arbitration as a tool to avoid incurring the onerous costs associated with litigation.

CMS’ position in the final rule isn’t shocking as it had expressed concern about the use of arbitration agreements in nursing homes in its Proposed Rule. Although no longer permissible for LTC facilities to use as a condition of admission, according to Andy Slavitt, CMS’ Acting Administrator, and Kate Goodrich, Director of the Center for Clinical Standards & Quality, “facilities and residents will still be able to use arbitration on a voluntary basis at the time a dispute arises.” However, such agreements will still need to be “clearly explained” to residents.

Nursing homes that have traditionally asked residents to sign binding arbitration agreements should revisit their admissions processes and implement revised policies and procedures to ensure compliance with the Final Rule, so that, beginning November 28, 2016, residents at such LTC facilities are no longer required to agree to binding arbitration. LTC facilities may also consider revising their policies and procedures to incorporate recommending the use of arbitration to residents following disputes that may arise, and to ensure that any such recommendations are clearly explained to their residents.

For more information regarding the voluntary use of arbitration agreements in the nursing home context, contact J. Nicole Martin, Dana Petrillo or any member of Cozen O’Connor’s health care law team.

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , ,

Medical Marijuana in Pennsylvania: What Physicians Should Know

Posted by Dana Petrillo on May 09, 2016
DEA, DOH, Medicaid, Pennsylvania / No Comments

shutterstock_244196869On April 17, 2016, Governor Wolf signed Act 16 of 2016, making Pennsylvania the 24th state (plus the District of Columbia) to legalize marijuana for medical use. The full text of the act is available here.

Physicians, not surprisingly, will play a vital role in making medical marijuana available to Pennsylvanians, while ensuring patient safety in the process.  This is what they should know about Act 16: Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Cyber-Security Alert: D.C. Area Hospital Chain MedStar Targeted By Hackers

Posted by Dana Petrillo on March 30, 2016
Healthcare, Hospital / No Comments

MedStar, a Washington, D.C.-area hospital chain, became the latest healthcare industry victim of a cyber-attack when hackers breached its systems with a crippling virus. MedStar operates 10 hospitals in the D.C./Baltimore region, employs 30,000 staff, has 6,000 affiliated physicians, and serviced more than 4.5 million patient visits in 2015.

After being paralyzed by the virus, MedStar’s entire IT system for its 10 hospitals was forced to shut down and revert to paper records. The chain’s approximately 35,000 employees do not have access to emails and cannot look up digital patient records in the attack’s wake. The FBI is assisting the chain by investigating the incident. It’s unclear at the moment whether or not the hackers are demanding ransom from MedStar in exchange for removing the virus.

Monday’s cyber-attack at MedStar comes weeks after Hollywood Presbyterian Medical Center in Los Angeles paid hackers 40 bitcoins, or about $17,000, to regain control of its computer system, which hackers had seized with ransomware using an infected email attachment.

Hackers increasingly target healthcare entities as security protections in healthcare often lag behind those in banking and financial sectors. Healthcare information contains a treasure trove of patients’ personal information, and a complete healthcare record is worth at least ten times more on the black market than credit card information. Also, hospitals are considered critical infrastructure that cannot reasonably be closed or incapacitated for any great length of time, and so may be more inclined to bowing to hackers’ demands for ransom.

This latest attack just goes to show the importance of cybersecurity at hospitals and other healthcare entities. In addition to the recent Hollywood Presbyterian Medical Center attack, data breaches and cyber-attacks have also recently occurred at Excellus Blue Cross Blue Shield, UCLA Health System, Premera Blue Cross, and Anthem Inc.

For more information, please contact Dana Petrillo, or another member of Cozen O’Connor’s Health Law team.

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , , , , , , ,

Finally! CMS Publishes the 60-Day Rule for Reporting and Repaying Medicare Overpayments

Posted by Dana Petrillo on February 12, 2016
ACA, Affordable Care Act, False Claims Act, Final Rule, Fraud and Abuse / No Comments

After four years and 200 comments, CMS finalized the much‑awaited “60‑Day Rule” for reporting and repaying Medicare Part A and B overpayments (CMS issued a Final Rule related to Medicare part C and D overpayments in the May 23, 2014 Federal Register, 79 FR 29844, and will address Medicaid overpayments in future rulemaking). The 60-Day Rule is part of CMS’s efforts to reduce fraud, waste, and abuse in the Medicare program.

Section 6402(d) of the Affordable Care Act (ACA), created section 1128J(d) of the Social Security Act (codified at 42 U.S.C. 1320a-7k(d)), requiring a person or entity who has received an overpayment to report and return the overpayment to the appropriate entity by the later of: (1) 60 days after the date on which the overpayment was “identified”; or (2) the date any corresponding cost report is due (if applicable). Importantly, the ACA also made reporting and repaying overpayments within 60 days an “obligation” under the False Claims Act (FCA), and therefore subject to FCA liability. Proof of specific intent to defraud the government is not required for a person or entity to be liable under the 60-Day Rule.

The Final Rule slightly relaxes some of the onerous requirements in the 2012 Proposed Rule:

Six Year Lookback Period: CMS responded to numerous comments and concerns that the proposed 10-year look back period for identifying overpayments was too long. The 60-Day Rule changed the lookback period to 6 years, consistent with the statutory limitations for the FCA.

Definition of Identify: CMS acknowledged the numerous comments submitted on what it means to “identify” an overpayment and said, “We agree and have revised the language … to clarify that part of identification is quantifying the amount, which requires a reasonably diligent investigation.” According to CMS, “[t]he Final Rule clarifies that a person has identified an overpayment when the person has or should have, through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment.” CMS warned Medicare providers and suppliers not to use the “ostrich defense”; reasonable diligence includes both proactive compliance activities conducted in good faith by qualified individuals, and good faith investigation of credible information conducted in a timely manner by qualified individuals. Quantification of the amount of the overpayment may be determined using statistical sampling and extrapolation methodologies.

How to Report and Return Overpayments: The Final Rule states that providers and suppliers must use an applicable claims adjustment, credit balance, self-reported refund, or another appropriate process to satisfy the obligation to report and return overpayments.

The Final 60-Day Rule is available at: https://federalregister.gov/a/2016-02789. By way of comparison, the February 16, 2012 Proposed Rule is available at:  https://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-3642.pdf

To learn more about reporting or making repayments under the Final Rule, please contact Ryan Blaney, Dana Petrillo or any member of Cozen O’Connor’s Health Law team.

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , ,

HHS Ups The Ante: Announces Percentages And Time Frames On Goals For Medicare Pay-For-Value Efforts

Posted by Dana Petrillo on January 27, 2015
Accountable Care Organizations, Affordable Care Act, CMS, HHS, Medicaid, Medicare / No Comments

On January 26, 2015, the Secretary of the United States Department of Health and Human Services (“HHS”), Sylvia Mathews Burwell, announced two important goals for the Department:

  1. Increase the percentage of Medicare provider payments that are made through alternative payment models based on how well the providers care for patients, rather than the amount of care provided. The percentage goals for these alternative payment models are 30% by 2016 and 50% by 2018.
  2. Tie virtually all Medicare fee-for-service payments (85% in 2016 and 90% in 2018) to quality and value.

This announcement puts hard numbers on the goal to move away from traditional fee-for-service Medicare payments that has been stated generally since at least 2010 when the Affordable Care Act was enacted. By clearly delineating specific figures for alternative payment models, such as accountable care organizations and bundled payment arrangements, from those figures for payment methods, HHS has made it clear that providers should be thinking not just about different forms of payment but different forms of organizations and relationships with other providers. Alternative payment models generally require coordination among different types of providers who may not otherwise be related to each other.

While the announced goals focus on the Medicare fee-for-service system, it is clear that HHS intends the impact of these goals to be far broader. Ms. Burwell also announced the creation of a Health Care Payment Learning and Action Network to facilitate a public-private sector partnership to “continue to build on our work with state Medicaid agencies, private payers, employers, consumers and other partners,” while welcoming the fact that “our partners in the private sector have the opportunity to be even more aggressive” in establishing alternative payment models and pay-for-value compensation systems. On the same day as Ms. Burwell’s announcement, the Centers for Medicare and Medicaid Services released a fact sheet stating that it is taking action with a goal to spend “our health dollars” more wisely, citing the importance of the goal for patients, families, providers, tax payers, employers, states and insurance companies, and making it clear that HHS and CMS fully intend to have their efforts to transform health care delivery and payment systems to reverberate well beyond the Medicare program.

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , , ,

CMS Announces Latest Group Of MSSP ACOs And May Allow ACOs To Remain As “Upside-Risk Only” Longer

Posted by Dana Petrillo on December 29, 2014
Accountable Care Organizations, CMS / No Comments

December has been a busy month for CMS with respect to the Medicare Shared Savings Program (“MSSP”). Last week CMS announced that eighty-nine (89) more ACOs would begin participating in the MSSP starting in 2015, bringing the total number of ACOs in the program to four-hundred and five (405). Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , , , , , , , , , ,

Prepare for Changes to CMS’ Five Star Quality Rating System for Nursing Homes

Posted by Dana Petrillo on October 10, 2014
CMS, Medicare / No Comments

Choosing a nursing home can be a daunting task for consumers who often have myriad questions regarding the quality of care available at the nursing homes in their areas. To help answer these questions, CMS has created the Nursing Home Compare website, which provides consumers with easy-to-compare ratings of nursing homes’ staffing, quality measures, and health inspections, as well as an overall rating, of each nursing home in the country. To help consumers make informed decisions about nursing home quality, CMS uses the Five Star Quality Rating System, by which CMS compares data from nursing home inspections, self-reports, and assessments.  Based on this information CMS calculates nursing homes’ star levels on a scale of one to five, with five stars being much above average and one star being much below average.

However, there has been concern over the accuracy of the self-reported data that CMS uses in calculating its star ratings. To improve the Five Star Quality Rating System, and to standardize the results, Congress recently passed the Improving Medicare Post-Acute Care Transformation Act (“IMPACT Act”). The IMPACT Act will require providers to submit standardized data to allow CMS to compare quality across different post-acute care settings, and will provide funding for the quarterly electronic submission of nursing home staffing information that is tied to payroll data. CMS will also increase both the number and type of quality measures used in the Five Star Quality Rating System. The first additional measure, starting January 2015, will be the extent to which antipsychotic medications are in use. Future additional measures will include claims-based data on re-hospitalization and community discharge rates. Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , ,

Begin Preparing for Pennsylvania’s Enforcement of Act 122

Posted by Dana Petrillo on July 02, 2014
Pennsylvania Department of Health / No Comments

The Pennsylvania Department of Health (“DOH”) Bureau of Laboratories (“Bureau”) recently announced that it will begin to phase-in enforcement of Act 122, which amended the Pennsylvania Clinical Laboratory Act (“Lab Act”), even though Act 122 became effective on December 18, 2013. The Bureau also issued additional guidance regarding Act 122 in its Frequently Asked Questions, Volume 1 and Volume 2 (“FAQs”).

According to its Senate Co-Sponsorship Memoranda, the purpose of Act 122 was to: (1) prohibit the “placing of phlebotomists or specimen collectors in physician and other health care provider offices in the Commonwealth;” and (2) afford Pennsylvania laboratories “the ability to compete on a level playing field with out-of-state labs” who had been able to place staff in providers’ offices “without fear of sanction.” However, the broad language of Act 122 will also affect laboratories’ ability to collect specimens from skilled nursing facilities (“SNFs”). Continue reading…

Dana Petrillo

Dana Petrillo

Dana Petrillo joined Cozen O'Connor's Health Law Practice in 2014 as an associate in the Philadelphia office. Dana's experience includes ensuring clients’ compliance with federal and multi-state health care laws and regulations, including Medicare, Medicaid, licensure, HIPAA, STARK, Anti-Kickback, and False Claims Act laws and regulations.

More Posts - Website

Tags: , , , , , ,