A few weeks ago we posted on this Blog an article highlighting the “gathering storm” surrounding HIPAA enforcement and predicted an ominous future for hospitals and other providers who fail to develop and maintain adequate HIPAA compliance policies.  While there is no doubt the future is bleak for those unwilling to abide by HIPAA’s mandate, the forecast for providers who commit healthcare fraud is equally devastating.  This is because, in 2013, the federal government will attack healthcare fraud from two angles. First, the Office of Inspector General (“OIG”), per the terms of its 2013 Work Plan (“Work Plan”), will review many of the government’s anti-fraud efforts to maximize recovery of Medicare and Medicaid overpayments.  Second, many of the new anti-fraud provisions in the Affordable Care Act (“ACA”) will kick into high gear now that the result of the presidential election has guaranteed the law’s survival. Continue reading…

Since the Health Insurance Portability and Accountability Act (“HIPAA”) privacy rules became effective in April 2003, there has been minimal enforcement activity by the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights (“OCR”).   However, this has changed dramatically over the last two years, as evidenced by some recent high-profile and high-penalty enforcement actions taken by OCR.  In addition to being concerned about OCR investigations, moreover, covered entities and business associates must also be on the alert for enforcement actions by state Attorney Generals, potential class action lawsuits, and OCR’s HIPAA audit program. Continue reading…

The Centers for Medicare and Medicaid Services (CMS) has outlined its plan to temporarily raise Medicaid rates to Medicare levels for primary care services, and pay states to cover the difference.  On May 11, 2012, CMS issued a proposed rule requiring Medicaid payment for primary care services furnished by eligible physicians at rates “not less than the Medicare rates” for fiscal years 2013 and 2014.[1]  The proposed rule provides for 100% federal matching for any increase in payment above the amounts that would be due under the provisions of a state’s plan as of July 1, 2009.[2]  By increasing Medicaid rates for 2013 and 2014, CMS is implementing certain provisions of the Patient Protection and Affordable Care Act (ACA).  CMS hopes the increased rates will encourage sufficient primary care physician participation in the Medicaid program to accommodate the nearly 16 million new patients that will be eligible to receive Medicaid benefits if the ACA survives the Supreme Court’s review.  The proposed rule does not say, however, what will happen to Medicaid rates – and, more importantly, whether there will be enough physicians to care for the larger Medicaid patient population – after 2014.  Nor does the proposed rule say whether the increased rates for primary care services will be applied regardless of the Supreme Court’s decision. Continue reading…

The U.S. Court of Appeals for the D.C. Circuit recently held that federal Medicaid funding (FFP) is unavailable for any health care services, other than inpatient psychiatric services, provided to individuals under the age of 21 in a Psychiatric Residential Treatment Facility (PRTF). Virginia Dept. of Medical Assistance Services v. Sebelius, Nos. 11-5161 & 11-5242 (D.C. Cir. May 8, 2012). In reaching that conclusion, and tackling an area of health law with more than its fair share of acronyms, the Court rejected arguments by two state Medicaid programs that FFP should be broadly available for care in a PRTF. This is yet another turn in the long and winding PRTF saga. Continue reading…