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    • DHH Settles Class Action Suit Pertaining to Reduction of Service Hours for Medicaid LT-PCS Program By Deborah J. Juneau The Louisiana Department of Health and Hospitals (“DHH”) has settled a class action lawsuit filed on behalf of Medicaid beneficiaries receiving Long Term Personal Care Services (“LT-PCS”). The class action is pending in the U.S. District Court, Middle District of Louisiana. The presiding federal judge has issued preliminary approval of the settlement. A final approval hearing is scheduled for February 17, 2012. The class action alleged that the reduction of maximum weekly service hours available to Medicaid beneficiaries eligible for LT-PCS services violated the Americans with Disabilities Act and sought declaratory and injunctive relief to prohibit the implementation of the reduction to service hours. The class action alleged that the LT-PCS recipients were at risk of being forced to enter a nursing home as a result of the cuts to service hours, which is exactly what the LT-PCS program was designed to prevent. The court defined the class of ....
    • OIG Releases Unfavorable Opinion on Allergy Testing and Immunotherapy Laboratory Services Within Physicians' Offices By Jennifer J. Thomas The Department of Health and Human Services, Office of Inspector General ("OIG"), recently issued an advisory opinion in which the OIG concluded that an arrangement between a primary care physician and an allergy testing and immunotherapy laboratory company ("Company") could potentially generate prohibitive remuneration under the Federal Anti-Kickback Statute possibly resulting in administrative sanctions. Under the arrangement, the Company and the physician would enter into an exclusive contract for the Company to provide allergy testing and immunotherapy laboratory services and related items within the physician’s medical offices. The Company would provide all necessary laboratory personnel, equipment, supplies, training, and billing and collection services to the physicians. The Company would also assist the physicians with marketing allergy services by providing patient education materials and reviewing patient files to identify ....
    • 2011 Medicare RAC Audit Results By Deborah J. Juneau CMS released 2011 recovery results for the Recovery Audit Contractor (RAC) Program. The 2011 figures reflect a significant increase over the amounts recovered or returned to providers in 2010. Through four quarters (October, 2010 through September, 2011), RAC contractors recovered a total of $797.4 million in overpayments, with $141.9 million in underpayments returned to providers. The recovery amounts increased with each quarter of the fiscal year, from $82.9 million in the first quarter to $277.1 million in the last quarter. By comparison, the total overpayments collected in fiscal year 2010 were $75.4 million, with $16.9 million in underpayments returned to providers. The 2011 figures represent a 90.5% increase over the overpayment amounts recovered in 2010. Similarly, the 2011 figures represent an 88.1% increase over the underpayment amounts returned to providers in 2010. One of the top issues identified by the RAC contractor for Region C, which encompasses ....
    • Louisiana Moves One Step Closer To Coordinated Care Networks For Medicaid Beneficiaries By Jennifer J. Thomas On November 16, 2011, Louisiana Department of Health and Hospitals’ (“DHH”) Secretary Bruce Greenstein announced that the Centers for Medicare and Medicaid Services (“CMS”) had approved an amendment to Louisiana’s Medicaid State Plan to implement the Coordinated Care Networks (“CCN”) also known as “Bayou Health.” The movement by DHH toward CCNs began in February, 2011, when DHH issued a Notice of Intent to provide for the implementation of the CCNs. On June 20, 2011, DHH issued the final rules for the CCNs. DHH has since awarded contracts to five private insurers who will administer the CCNs. The Coordinated Care Network Program Prepaid (“CCN-P”) contracts were awarded to: Louisiana Healthcare Connections, Inc. Amerihealth Mercy of Louisiana, Inc. AmeriGROUP Louisiana, Inc. The Coordinated Care Network Program Shared Savings (“CCN-S”) contracts were awarded to: UnitedHealthcare of ....
    • Enforcement of New Home and Community-Based Service Provider Licensing Standards Begins October 1, 2011 By Lyn S. Savoie In less than a month, the Louisiana Department of Health and Hospitals will begin enforcement of its new Home and Community-Based Service Providers Minimum Licensing Standards. The new regulations, which were published in the June 2011 Louisiana Register, contain one set of licensing standards that apply to providers of the following community-based services: Adult Day Care, Family Support, Personal Care Attendant (PCA), Respite Case, Substitute Family Care, Supervised Independent Living (SIL) and Supported Employment. While many provisions in the new regulations mirror requirements previously contained in DHH’s Personal Care Attendant Services licensing standards, the following are some of the notable regulatory changes that existing providers must comply with by the October 1, 2011 enforcement date (note that this article does not address all regulatory changes, including the changes to administrator qualification and other core staffing requirements):   ....
    • Health Care Reform - Petition Asks For Supreme Court Review of ACA Decision By Linda G. Rodrigue Several cases challenging the constitutionality of the Patient Protection and Affordable Care Act (the “ACA”) are traveling through the country in route to the United States Supreme Court. One of those cases, entitled Thomas More Law Center v. Obama, 2011 WL 2556039 (6th Cir. 2011), has become the subject of a petition by the Law Center asking the Supreme Court to review the Sixth Circuit decision. The petition was filed on July 26, 2011. The Sixth Circuit upheld the constitutionality of the ACA. The court there determined that the “insurance mandate” included in the ACA was a proper exercise by Congress under the Commerce Clause of the United States Constitution. Numerous other appellate court cases have been decided since the passage of the ACA on March 23, 2010. Most of those cases have held that the requirement that all persons maintain insurance coverage is unconstitutional, but they have disagreed on whether or not the remainder of the ....
    • Court Certifies Class Action and Finds Reduction in Medicaid LT-PCS Program Violates Americans with Disabilities Act By Deborah J. Juneau Since 2003, Louisiana, through the Department of Health and Hospitals (“DHH”) and the Medicaid Program, administers home and community-based health services (“HCBS”) available to disabled citizens. The HCBS includes several programs, one of which is the Long Term Personal Care Services (“LT-PCS”) program. The LT-PCS program provides disabled citizens with a personal care worker to assist with performing personal care or household chores that the disabled citizen would otherwise be unable to perform, in order to avoid being institutionalized. Individuals who do not qualify for LT-PCS or who seek additional or alternative services may enter one of Louisiana’s waiver programs: Elderly and Disabled Adults, Adult Day Health Care, Program of All-inclusive Care for the Elderly, or Money Follows the Person for individuals transitioning from nursing facilities. However, these programs have limited slots, geographical or age limits, ....
    • 2011 Louisiana Legislature Sends Physician Discipline Bill To Governor For Signature By Linda G. Rodrigue Act 337 of the Regular Session of the 2011 Louisiana Legislature enacted an amendment to Louisiana R.S. 37:1285(A) to add new subsection (A)(32), which provides an additional ground for physicians to be disciplined by the Louisiana State Board of Medical Examiners (the “LSBME”). The new ground relates to a physician holding herself/himself out to the public as being certified by a public or private board or using the phrase “board certified”. In order for a physician to use the phrase “board certified” with the public, all of the following criteria must be met: (a) The full name of the board from which the physician received certification and the name of the specialty or subspecialty is included in the advertisement; (b) The board that provides the certification meets any of the following qualifications: (i) It is a member board of the American Board of Medical Specialties or an American Osteopathic Association certifying board; ....
    • Physician Indicted for Criminal Violations of HIPAA By Jennifer J. Thomas On June 21, 2011, a Federal Grand Jury in Virginia filed an indictment against a physician for criminal violations of the Health Insurance Portability and Accountability Act (“HIPAA”). The indictment alleges three (3) counts of unauthorized disclosure of a patient’s individually identifiable health information to an agent of the patient's employer. The indictment alleges that the physician provided the patient in-patient mental health treatment at a psychiatric care center in August and September 2007. Each count charges that in February 2008, the physician knowingly and in violation of HIPAA disclosed the patient’s protected health information under the false pretense that the disclosure was necessary because the patient was a serious and imminent threat to the safety of the public, when the physician, in fact, knew the patient was not a serious and imminent threat to the public. Because the alleged disclosures were made under “false ....
    • Unsettled Question of Medical Malpractice Act Coverage For Nurse Practitioners in Louisiana By Deborah J. Juneau In Oliver v. Magnolia Clinic, 2010-2785 (La. 3/25/11), 57 So. 3d 308, the Louisiana Supreme Court vacated a Third Circuit ruling that nurse practitioners were not covered by the Louisiana Medical Malpractice Act and did not benefit from the cap on damages. The Supreme Court remanded the case to the Third Circuit for an en banc consideration in order to obtain a majority opinion on the issues presented. Upon original hearing, two judges of a five judge panel of the Third Circuit ruled the Medical Malpractice Act’s inclusion of nurse practitioners within its ambit violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and was, therefore, unconstitutional. Two judges on the panel ruled that the inclusion of nurse practitioners as health care providers entitled to the protection of the Medical Malpractice Act did not go into effect until the amendment of the statute in 2009. Because the alleged malpractice of the ....
    • U.S. Department of Health and Human Services Issues Report to Congress on National Strategy for Quality Improvement in Health Care By Jennifer J. Thomas In accordance with the Patient Protection and Affordable Care Act, the Secretary of the United States Department of Health and Human Services (the “Department”) issued its report to Congress on the National Strategy for Quality Improvement in Health Care on March 21, 2011 (“National Quality Strategy”). The Department will use the National Quality Strategy to develop programs, regulations, new initiatives, and tools for evaluating the Federal health care efforts. The National Quality Strategy is based on three (3) broad national aims: Better care by making healthcare more patient-centered, reliable, accessible, and safe; Healthy people/healthy communities by improving the health of the U. S. population with supportive proven interventions to address behavior, social, and environmental determinants of health in addition to delivering higher-quality care; Affordable care by reducing the cost of quality healthcare for individuals, families, ....
    • The U.S. Fifth Circuit Court of Appeals Adopts Standards for Healthcare Fraud Sentencing By Jennifer J. Thomas The United States Court of Appeals for the Fifth Circuit in U.S. v. Isiwele, No. 10-4037 (5th Cir. 3/7/2011) considered an appeal in a Medicare/Medicaid fraud case where the defendant was convicted of multiple counts of healthcare fraud and conspiracy to pay kick-backs in connection with a scheme to fraudulently bill Medicare and Medicaid for power wheelchairs. Some of the issues on appeal were whether the District Court correctly applied the “loss amount,” “mass marketing,” and “abuse of trust” enhancements for sentencing. The defendant was a Medicare/Medicaid durable medical equipment provider who allegedly used a recruiter to go into elderly and low income communities to gather billing information from beneficiaries after Hurricane Katrina. The defendant was tried and found guilty on 16 counts of healthcare fraud and one count of conspiracy to pay illegal remunerations in violation of 18 U.S.C. §1347 and 42 U.S.C. ....
    • Court Says No Violation of Physician's Constitutional Rights When Hospital Settles Medical Malpractice Case By Jennifer J. Thomas The United States Supreme Court on March 21, 2011 denied a writ application by a physician who was appealing the lower Federal court’s decision dismissing the physician's civil rights action against the University of Illinois where the physician alleged numerous violations of his constitutional rights. See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010), writ denied, No. 10-913 (2011). The physician had been the head of the Department of Surgery at the University when he was notified that a lawsuit was being contemplated against him due to the death of a former patient. The physician alleged that when the University learned of the potential lawsuit it conspired with other defendants to discredit the physician's reputation and executed a settlement agreement with the deceased's family. The physician further alleged that the settlement agreement was a step in a conspiracy to destroy his reputation because the settlement agreement was entered merely so the ....
    • CMS and Other Federal Agencies Issue Proposed Regulations Regarding Accountable Care Organizations On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and other Federal agencies issued long anticipated proposed regulations addressing legal issues and other requirements for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program created last year by the health care reform legislation. The following proposed regulations and documents were issued on March 31, 2011: Centers for Medicare & Medicaid Services (CMS) CMS issued a proposed rule that would implement Section 3022 of the Affordable Care Act related to Medicare payments to providers of services and suppliers participating in Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program. Under the provisions in Section 3022 for ACOs, providers of services and suppliers can continue to receive traditional Medicare fee-for-service payments under Part A and B, and be eligible for additional payments based on meeting specified quality and savings ....
    • Where Do You Stand on the Subject of Accountable Care Organizations? By Linda G. Rodrigue The Patient Protection and Affordable Care Act that was promulgated in March, 2010, includes provisions for creating Accountable Care Organizations (“ACO”). An ACO is an “organization” that is intended to manage the care of a minimum of 5,000 Medicare beneficiaries, with the purpose of improving outcomes to those beneficiaries. In the event an ACO is capable of achieving that goal, the resulting savings to the Medicare program will be shared by the federal government and the ACO. How an ACO may be structured is left to the imagination and ability to appropriately structure an ACO arrangement. The federal government has not identified what an ACO structure must be. It may, for example, include relationships among hospitals, physicians/physician organizations, home health agencies, rehabilitation agencies, or any single or a combination of any of these types of providers. An ACO may even contain a payer component.  The Centers for ....
    • Department of Justice Continues to Use Data Mining of Billing Errors in False Claims Act Settlements with Hospitals under Kyphoplasty Initiative On January 4, 2011, the U.S. Department of Justice (DOJ) announced that seven additional hospitals had agreed to pay $6.3 million to resolve allegations under the False Claims Act (FCA) related to overcharging Medicare for kyphoplasty procedures. These settlements are the fourth round of settlements with hospitals by the DOJ to resolve kyphoplasty-related claims under the False Claims Act. Including the settlements announced on January 4, 2011, the DOJ has entered into similar settlements with 25 hospitals for approximately $26 million.Kyphoplasty is a minimally-invasive procedure used to treat certain spinal fractures due to osteoporosis and cancer. The DOJ alleged that the hospitals had performed kyphoplasty procedures on an in-patient basis in order to increase their Medicare billings, even though these procedures can be performed safely as a less costly out-patient procedure. According to their settlement agreements, the hospitals submitted inpatient DRG claims to Medicare for ....
    • Health Care Reform Advisory: CMS Solicits Comments to Compliance Program Requirements The Centers for Medicare & Medicaid Services (CMS) recently issued a Proposed Rule in the September 23, 2010 Federal Register to implement certain program integrity changes mandated by the Patient Protection and Affordable Care Act (“ACA” or “Health Care Reform Legislation”). Besides addressing new provider screening and enrollment requirements under the ACA, CMS solicited public comments on the compliance program requirements included in the ACA for Medicare and Medicaid providers. The Health Care Reform Legislation contains two separate provisions mandating compliance programs. Section 6401(a) of the ACA requires a provider of medical or other items or services or a supplier, as a condition of enrollment in Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”), to establish a compliance program that contains certain core elements. Section 6102 of the ACA specifically requires Medicare skilled nursing facilities ....
    • New Compliance and Accountability Requirements For Nursing Homes By Deborah J. Juneau The Patient Protection and Affordable Care Act (the Act) included a new requirement that nursing homes have in operation a compliance and ethics program within 36 months of the effective date of the Act, or by March 23, 2013. The Secretary and the Inspector General of the Department of Health and Human Services must promulgate regulations by March 23, 2012 for an effective compliance and ethics program. The formality of the program, including the establishment of written policies and procedures to be followed by employees, will depend on the size of the organization. An organization that operates five or more facilities will be expected to have a more formal program.The Act provides that a compliance and ethics program must be reasonably designed, implemented and enforced so that it generally will be effective in preventing and detecting criminal, civil, and administrative violations and in promoting quality of care. The compliance and ethics program must include, ....
    • Nursing Home Bill of Rights Changes By Deborah J. Juneau The Nursing Home Residents’ Bill of Rights (La. R. S. 40:2010.8) was amended effective June 8, 2010 to provide more freedom and more choice to residents and to remove some reasonable restrictions imposed by nursing homes. Nursing homes must now provide the right to “immediate access” to certain state and federal government workers, the resident’s individual physician, immediate family members or other relatives of the resident, the resident’s clergy, and other visitors. The prior version of the statute required nursing homes to have flexible visiting hours and to allow for visitation. The new version of the statute allowing for immediate access does not take into consideration visiting hours. However, the nursing home may impose “reasonable restrictions” to protect the security of all residents and may change the location of visits to assist in care giving or to protect the privacy of other residents. The nursing home must ....
    • Health Care Reform: Federal Trade Commission, CMS and HHS Announce Workshop on Accountable Care Organizations The Centers for Medicare and Medicaid Services (CMS), Federal Trade Commission (FTC), and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) will co-host a workshop on October 5, 2010 to address anti-trust, physician self-referral, anti-kickback and civil monetary penalty issues for Accountable Care Organizations (ACOs). ACOs are a new form of an integrated delivery system that was established as a demonstration project within the Medicare program by the Patient Protection and Affordable Care Act on March 23, 2010.HHS is required to establish a shared savings program specifically relating to ACOs no later than January 1, 2010. CMS announced that it plans to release proposed regulations for ACOs later this fall. ACOs will be accountable under three year contracts with CMS for the quality, cost and overall care of at least 5,000 Medicare beneficiaries assigned to the ACO. Medicare beneficiaries will be assigned to an ACO based on the selection of primary ....