IRS Publishes 2014 Branded Prescription Drug Fee Guidance

August 5, 2013

The Internal Revenue Service (IRS) today released Notice 2013-51. “Branded Prescription Drug Fee; Guidance for the 2014 Fee Year,” which contains guidance on the branded prescription drug fee imposed under section 9008 of the Patient Protection and Affordable Care Act (ACA) for the 2014 fee year.

Branded Prescription Drug Fee Background

ACA requires that covered entities that engage in the business of manufacturing or importing branded prescription drugs pay the branded prescription drug fee.  The Branded Prescription Drug Fee Regulations in 26 C.F.R. Part 51, published on August 18, 2011 (76 FR 51245), provide the method by which each covered entity’s annual fee is calculated. These regulations also define terms for the administration of the fee.

Regulation section 51.2T(g) defines fee year as the calendar year in which the fee for a particular sales year must be paid and section 51.2T(m) defines sales year as the second calendar year preceding the fee year.

Section 51.3T of the Regulation requires that annually, each covered entity may submit a completed Form 8947, “Report of Branded Prescription Drug Information,” in accordance with the instructions for the form. Generally, the form solicits information from covered entities on National Drug Codes, orphan drugs, designated entities, rebates, and other information specified by the form or its instructions. The form is to be filed by the date prescribed in guidance published in the Internal Revenue Bulletin.

Section 51.6T provides that for each sales year the Internal Revenue Service (IRS) will make a preliminary fee calculation for each covered entity and will tell each covered entity of this calculation by the date prescribed in guidance published in the Internal Revenue Bulletin. This notification will also include additional prescribed information. As used in this notice, “notice of preliminary fee calculation” includes the additional prescribed information.

Section 51.7T provides that upon receipt of its preliminary fee calculation, each covered entity will have an opportunity to dispute this calculation by submitting to the IRS an error report with prescribed information. Sections 51.7T(b) and (c) set out the information that a covered entity must submit to support each asserted error. Section 51.7T(d) provides that each covered entity must submit  reports and error reports, if anyin the form and way required by the IRS.

Section 51.8T provides that the IRS will send each covered entity its final fee calculation no later than August 31st of each fee year and also provides that covered entities must pay their fee by September 30th of the fee year.

2014 Deadlines & Procedures

Notice 2013-51 provides guidance for covered entities for 2014 on:

  • Submission of Form 8947, “Report of Branded Prescription Drug Information,”
  • The time and manner for notifying covered entities of their preliminary fee calculation,
  • The time and manner for submitting error reports for the dispute resolution process; and
  • The time for notifying covered entities of their final fee calculation.

For the 2014 fee year, the Notice states that a covered entity that chooses to submit Form 8947 must file the form by November 1, 2013.

For the 2014 fee year, the Notice states that the IRS will mail each covered entity a paper notice of its preliminary fee calculation by March 3, 2014. This mailing will include a National Drug Code (NDC) attachment (NDC attachment) that lists the covered entity’s NDCs and the sales data reported to the IRS by each government program pursuant to Regulation section 51.4T.

A covered entity may request that the IRS send a CD-ROM with the NDC attachment in Microsoft Excel format. The covered entity must make this request by February 17, 2014. The Notice instructs that this request must be made either by telephone to Ingrid Taylor at (908) 301-2118 or Mi Lim at (312) 292-3775 (not toll-free calls) or by email to it.bpd.fee@irs.gov. If a covered entity makes this request timely, the notice says the IRS will mail the covered entity its notice of preliminary fee calculation on paper and the NDC attachment on paper and CD-ROM by March 3, 2014.

For the 2014 fee year, the Notice also states a covered entity that chooses to submit an error report regarding its preliminary fee calculation must mail the error report by May 15, 2014. When the IRS mails each covered entity a notice of its preliminary fee calculation by March 3, 2014, the IRS will also send each covered entity a template on a CD-ROM that the covered entity must use to prepare its error report. All completed templates and the supporting documentation must be submitted on a CD-ROM and sent by mail as instructed in the Notice.

The Notice also indicates that the IRS will notify each covered entity of its final fee calculation for 2014 by August 29, 2014, after which each covered entity must pay this fee by September 30, 2014 in accordance with Regulation section 51.8T(c),

 

For More Information Or Assistance

If you need assistance responding to regulatory, enforcement or other developments, reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.  THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.  

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


CMS Publishes FY 2014 Final Inpatient Psychiatric Facility Prospective Payment Rule

August 5, 2013

Medicare payments to inpatient psychiatric facilities (IPFs) will rise by 2.3% for fiscal year (FY) 2014 under the final Inpatient Psychiatric Facilities Prospective Payment System (PPS) Updated for Fiscal Year Beginning October 1, 2013 (FY 2013) posted by the Centers for Medicare & Medicaid Services (CMS) July 29 here.

The notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilitates for discharges occurring during the fiscal year (FY) beginning October 1, 2013 through September 30, 2014.

Highlights of the final 2014 IPFPPS adjustments under  42 CFR 412.428 include the following:

  • The FY 2008-based Rehabilitation, Psychiatric, and Long Term Care (RPL) market basket update of 2.6 percent adjusted by a 0.1 percentage point reduction as required by section 1886(s)(2)(A)(ii) of the Social Security Act (the Act) and a 0.5 percentage point reduction for economy-wide productivity as required by section 1886(s)(2)(A)(i) of the Act.
  • The fixed dollar loss threshold amount in order to maintain the appropriate outlier
  • percentage.
  • The electroconvulsive therapy payment by a factor specified by CMS.
  • The national urban and rural cost-to-charge ratio medians and ceilings.
  • The cost of living adjustment factors for IPFs located in Alaska and Hawaii, if
  • appropriate.
  • The description of the ICD-9-CM and MS-DRG classification changes discussed in
  • the annual update to the hospital inpatient PPS regulations.
  • Use of the best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.
  • The MS-DRG listing and comorbidity categories to reflect the ICD-9-CM revisions effective October 1, 2013.
  • Retaining the 17 percent adjustment for IPFs located in rural areas, the 1.31 adjustment factor for IPFs with a qualifying emergency department, the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem rate, the MS-DRG adjustment factors and comorbidity adjustment factors currently paid to IPFs for FY 2013.

IPFs, their operators, management and investors should review the new rules, update their practices and budgets and make other arrangements to respond effectively to the Rule.

For More Information Or Assistance

If you need assistance responding to regulatory, enforcement or other developments, reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law

 

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.  THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.  

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


CMS Publishes FY 2014 Final Inpatient Psychiatric Facility Prospective Payment Rule

August 1, 2013

Medicare payments to inpatient psychiatric facilities (IPFs) will rise by 2.3% for fiscal year (FY) 2014 under the final Inpatient Psychiatric Facilities Prospective Payment System (PPS) Updated for Fiscal Year Beginning October 1, 2013 (FY 2013) posted by the Centers for Medicare & Medicaid Services (CMS) July 29 here.

The notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilitates for discharges occurring during the fiscal year (FY) beginning October 1, 2013 through September 30, 2014.

Highlights of the final 2014 IPFPPS adjustments under  42 CFR 412.428 include the following:

  • The FY 2008-based Rehabilitation, Psychiatric, and Long Term Care (RPL) market basket update of 2.6 percent adjusted by a 0.1 percentage point reduction as required by section 1886(s)(2)(A)(ii) of the Social Security Act (the Act) and a 0.5 percentage point reduction for economy-wide productivity as required by section 1886(s)(2)(A)(i) of the Act.
  • The fixed dollar loss threshold amount in order to maintain the appropriate outlier
  • percentage.
  • The electroconvulsive therapy payment by a factor specified by CMS.
  • The national urban and rural cost-to-charge ratio medians and ceilings.
  • The cost of living adjustment factors for IPFs located in Alaska and Hawaii, if
  • appropriate.
  • The description of the ICD-9-CM and MS-DRG classification changes discussed in
  • the annual update to the hospital inpatient PPS regulations.
  • Use of the best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.
  • The MS-DRG listing and comorbidity categories to reflect the ICD-9-CM revisions effective October 1, 2013.
  • Retaining the 17 percent adjustment for IPFs located in rural areas, the 1.31 adjustment factor for IPFs with a qualifying emergency department, the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem rate, the MS-DRG adjustment factors and comorbidity adjustment factors currently paid to IPFs for FY 2013.

IPFs, their operators, management and investors should review the new rules, update their practices and budgets and make other arrangements to respond effectively to the Rule.

For More Information Or Assistance

If you need assistance responding to regulatory, enforcement or other developments, reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.  THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.  

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


CMS Publishes FY 2014 Final Inpatient Rehab Facility Prospective Payment Rule

August 1, 2013

Inpatient Rehabilitation Facilities (IRFs) take note.  The Centers for Medicare & Medicaid Services yesterday (July 31, 2013) published its final Inpatient Rehabilitation Facility (IRF), Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2014 Final Rule (Rule). The Rule, which with its preamble is 272 pages, among other things:

  • Updates the prospective payment rates for (IRFs) for federal fiscal year (FY) 2014 (for discharges occurring on or after October 1, 2013 and on or before September 30, 2014) as required by the statute.
  • Revises the list of diagnosis codes that may be counted toward an IRF’s “60 percent rule” compliance calculation to determine “presumptive compliance,” update the IRF facility-level adjustment factors using an enhanced estimation methodology;
  • Revises sections of the Inpatient Rehabilitation Facility-Patient Assessment Instrument,
  • Revises requirements for acute care hospitals that have IRF units;
  • Clarifies the IRF regulation text regarding limitation of review;
  • Updates references to previously changed sections in the regulations text; and
  • Revises and updates quality measures and reporting requirements under the IRF quality reporting program.

The regulatory amendments in this Rule generally are effective as follows:

  • Its revisions to the list of diagnosis codes used to determine presumptive compliance under the “60 percent rule” are applicable for compliance review periods beginning on or after October 1, 2014; and
  • The updated IRF prospective payment rates are applicable for IRF discharges occurring on or after October 1, 2013 and on or before September 30, 2014 (FY 2014).
  • The changes to the Inpatient Rehabilitation Facility-Patient Assessment Instrument, the amendments to §412.25, and the revised and updated quality measures and reporting requirements under the IRF quality reporting program are applicable for IRF discharges occurring on or after October 1, 2014.

IRFs, their operators, management and investors should review the new rules, update their practices and budgets and make other arrangements to respond effectively to the Rule.

For More Information Or Assistance

If you need assistance responding to regulatory, enforcement or other developments, reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.  THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.  

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Tighten Disability Compliance To Avoid ADA Suits, Program Disqualification & Other Risks

July 30, 2013

The Department of Justice’s July 29, 2013 announcement that it is suing Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Florida (PCTC) for violating the Americans With Disabilities Act (ADA) by discriminating and retaliating against two deaf patients reminds physicians, clinics, hospitals and other health industry providers, their landlords, and other vendors to tighten their understanding, practices of federal and state disability discrimination laws to avoid getting nailed for improper discrimination.   Following on the Department of Health & Human Service’s recently announced exclusion of a physician that illegally discriminated against a HIV-positive patient, health care providers are on notice that Federal officials are gunning for health care providers who illegally discriminate against patients and others with disabilities.

With the Justice Department, HHS and others targeting discrimination in the health care industry, physicians and their practices, clinics, hospitals and other private and public health care providers, and their landlords and other vendors should update their understanding of disability discrimination responsibilities and exposures, and then review and tighten policies, practices, workforce training and oversight, and other risk management and compliance practice to help prevent and mitigate exposures to disability and other discrimination claims.

Health Care Providers & Industry Under Fire For Disability Discrimination

While the heavy emphasis generally placed upon the enforcement of disability laws by the Obama Administration has heightened the risks of all U.S. businesses, health care providers are particularly at risk to disability discrimination liability as a result of the Barrier-Free Health Care Initiative of the Justice Department and related health industry disability enforcement initiatives of HHS and other federal agencies.

Health care provider, like other U.S. businesses, face sweeping responsibilities under the various federal laws such as the public accommodation and other disability discrimination prohibitions of the ADA, Section 504, the Civil Rights Act and various other laws. Section 504 of the Rehabilitation Act generally requires recipients of Medicare, Medicaid, HUD, Department of Education, welfare and most other federal assistance programs funds including health care, education, housing services providers, state and local governments to ensure that qualified individuals with disabilities have equal access to programs, services, or activities receiving federal financial assistance.

The ADA extends the prohibition against disability discrimination to private providers and other businesses as well as state and local governments including but not limited to health care providers reimbursed by Medicare, Medicaid or various other federal programs.  Rather, the ADA requirements and disability discrimination prohibitions generally apply to all U.S. health care and other businesses even if they do not receive federal financial assistance.  Under the ADA, health care providers and other covered businesses generally have a duty other to ensure that qualified individuals with disabilities have equal access to their programs, services or activities.  In many instances, these federal discrimination laws both prohibit discrimination and require health care and other regulated businesses to put in place reasonable accommodations needed to ensure that their services are accessible and available to persons with disabilities.

Specifically under the ADA:

  • The public accommodation provisions generally both prohibit discrimination against individuals with disabilities when delivering health care or other services, as well as require health industry and other businesses to provide reasonable accommodations to individuals with disabilities unless the health care provider proves its actions are defensible under an exception to these general rules.
  • The employment discrimination provisions generally prohibit health care industry and other employers from discriminating against qualified individuals with a disability and require employers to provide reasonable accommodations for disabled workers unless the health care provider can prove that its conduct qualifies under one of the allowable exceptions to the general prohibition against discrimination.
  • The anti-retaliation rules prohibit retaliation against an individual because he opposes an act that is unlawful under the ADA or because he made a charge, testified, assisted or participated in any way in an investigation, proceeding or hearing under the ADA.  These provisions also make it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.

Meanwhile the Civil Rights Act and other laws prohibit discrimination based on national origin, race, sex, age, religion and various other grounds.  These federal rules impact almost all public and private health care providers as well as a broad range housing and related service providers.

Justice Department ADA Suit Against Brown & PCTC

The ADA lawsuit against Dr. Brown and PCTC comes on the heels of the Justice Department’s Celebration of the 23rd Anniversary of the ADA last week and is an example of one of a growing number of lawsuits and other actions against health care providers resulting from the Justice Department “Barrier-Free Health Care Initiative”  and related Department of Health & Human Services (HHS) enforcement efforts focusing on ensuring access to health care for individuals with disabilities.

The Department of Justice suit charges Dr. Brown and PCTC with violating the public accommodation and anti-retaliation provisions of ADA by discriminating against a deaf couple, Susan and James Liese by discriminating against a deaf couple, Susan and James Liese and then retaliating against the couple for engaging in activities protected under the ADA.

According to the Justice Department’s complaint, Dr. Brown and PCTC terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital located next door to and affiliated with PCTC for not providing effective communication during an emergency surgery.  The complaint alleges that after learning that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

The Justice Department says this termination of the Lieses as patients violated the ADA.  According to Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division, “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

While it remains to be seen if the Justice Department will be successful in its suit against Dr. Brown and PCTC, it has experienced significant success in disability discrimination actions against other health care providers.

Justice Department Barrier-Free Health Care Initiative Successes Growing

Justice Department suits like the ADA suit against Dr. Brown and PCTC are increasingly common and successful.

While the Justice Department across the years has prosecuted various health care providers for illegal discrimination under the ADA, it has turned up the heat with its nationwide Barrier-Free Health Care Initiative.  According to the Justice Department, it intends that the prosecutions under the Barrier-Free Health Care Initiative to focus and leverage the Justice Department’s resources together and send a clear message that disability discrimination in health care is illegal and unacceptable.

Since the Justice Department announced its Barrier-Free Health Care Initiative last year, for instance, the Justice Department has entered into 18 settlements under the Barrier-Free Health Care Initiative.  These include three agreements requiring health care providers to provide auxiliary aids and services, including sign language interpreters, to individuals who are deaf to ensure effective communication in health care settings including two settlements in the last month.

On June 27, 2013, the U.S. Attorney’s Office for the Western District of Tennessee announced that Heart Center of Memphis has agreed to provide qualified sign language and oral interpreters as well as other auxiliary aids and services to patients who are deaf, have hearing loss or have speech disabilities to resolve a Justice Department complaint charging the Heart Center violated the ADA by telling a deaf patient that it was his responsibility to arrange a sign language interpreter for his appointment.  After several unsuccessful attempts to get the Heart Center to provide a qualified sign language interpreter as required by law, the patient cancelled his appointment.

On June 26, 2013, the U.S. Attorney’s Office for the Northern District of Georgia announced it had reached a disability discrimination settlement agreement with Midtown Neurology P.C.  The settlement resolved a complaint alleging that Midtown Neurology P.C. failed to provide, over multiple appointments, a qualified sign language interpreter for a patient who is deaf.   At one appointment, the patient underwent a painful neurological test.  Because there was no interpreter, the patient could not communicate that she was frightened and in pain, and that she wanted the doctor to stop the procedure.  Under the agreement, Midtown Neurology P.C. will provide auxiliary aids and services, including qualified interpreters, to individuals who are deaf or hard of hearing where necessary to ensure effective communication.

In previous months, the Justice Department also has reached settlement agreements resolving charges health care providers violated the ADA by failing to provide interpreters or other accommodations for deaf or other communication impaired patients with Burke Health and Rehabilitation Center (May 3, 2013); Monadnock Community Hospital (April 5, 2013); Manassas Health and Rehab Center (April 5, 2013); Gainesville Health and Rehab Center (April 5, 2013); the Center for Orthopaedic and Sports Medicine, Inc. (April 5, 2013); Northern Ohio Medical Specialists (April 5, 2013); Northshore University Healthsystems (June 28, 2012); Steven Senica, M.D., and Senica Bruneau, Ltd. (June 11, 2012); Trinity Regional Medical Center and Trinity Health Systems (March 29, 2012); Henry Ford Health System (February 1, 2012); and Cheshire Medical Center, Keene Health Alliance, and Dartmouth-Hitchcock Clinic D/B/A Dartmouth-Hitchcock Keene (October 31, 2011)

In addition, the Justice Department also particularly is aggressive in prosecuting health care providers that discriminate against individuals with HIV.  In the past six months, the Department reports it has reached five settlement agreements with medical providers to address HIV discrimination.

For instance, the Justice Department on July 26, 2013 announced that Barix Clinics, an organization that operates bariatric treatment facilities in Michigan and Pennsylvania, will pay $35,000 to victim-complainants and a $10,000 civil penalty, train its staff on the ADA and implement an anti-discrimination policy to settle Justice Department charges that Barix Clinics unlawfully refused to perform bariatric surgery on a man at its Langhorne, Pa., facility because he has HIV.  The Department also determined that Barix Clinics cancelled bariatric surgery for another individual at its Ypsilanti, Michigan facility because he has HIV.

The Barix Clinic settlement added to a long list of earlier settlements of ADA charges stemming from discrimination against HIV patients including Glenbeigh (settlement regarding exclusion of an individual from an alcohol treatment program because of the side effects of his HIV medication, March 13, 2013); Woodlawn Family Dentistry (dentist office’s unequal treatment of people with HIV in the scheduling of future dental appointments, February 12, 2013); Castlewood Treatment Center (eating disorder clinic’s refusal to treat a woman for a serious eating disorder because she has HIV, February 6, 2013); and Fayetteville Pain Center (unlawful exclusion of a person with HIV from treatment, January 31, 2013).

While most announced Justice Department settlements involve the denial of interpreters to deaf or other communication impaired patients and discrimination in the treatment of HIV patients, the Justice Department also has shown a willingness to prosecute health care providers who engage in other types of disability discrimination.  For instance, on April 3, 2012, the Justice Department reached a settlement with Richard Noren, M.D., Henry Kurzydlowski, M.D., and Pain Care Consultant, Inc., which resolved charges that they violated the ADA by failing to make reasonable changes to policies, practices, and procedures to enable a child with diabetes to participate in summer camp.  Furthermore, although not necessarily reflected in the currently published, officially announced settlements of the Justice Department, health care providers have reported that the Justice Department and HHS also have become increasingly aggressive in investigating disability claims of visually or other physically, cognitively, or emotionally disabled patients arising from the failure of health care providers to accommodate their need for support or comfort animals.

Justice Department Plans To Keep Heat On Health Care Providers

All signs are that the Justice Department intends to continue, if not expand its Barrier-Free Health Care Initiatives.  In fact, the suit against Dr. Brown and PCTC comes on the heels of the Justice Department’s filing of an ADA disabilities discrimination lawsuit against the State of Florida alleging the state is in violation of the ADA in its administration of its service system for children with significant medical needs.

The Justice Department lawsuit against the State of Florida charges that Florida’s programs have resulted in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities which should be served in their family homes or other community-based settings.  The Justice Department further alleges that the state’s policies and practices place other children with significant medical needs in the community at serious risk of institutionalization in nursing facilities.  The department’s complaint seeks declaratory and injunctive relief, as well as compensatory damages for affected children.

“Florida must ensure that children with significant medical needs are not isolated in nursing facilities, away from their families and communities,” said Eve Hill, Deputy Assistant Attorney General for the Civil Rights Division.  “Children have a right to grow up with their families, among their friends and in their own communities.  This is the promise of the ADA’s integration mandate as articulated by the Supreme Court in Olmstead.  The violations the department has identified are serious, systemic and ongoing and require comprehensive relief for these children and their families.”

Health Industry Disability Discrimination Risks:  Beyond The Justice Department

While private plaintiffs as well as the Justice Department and other agencies increasingly successfully sue health care providers for violating the ADA and other disability discrimination laws, the often significant damages and defense costs that often arise from these suits are only part of the exposure that health care providers should consider and manage.  Among other things, health care providers accused or found to engage in disability discrimination also generally also risk significant adverse publicity, loss or curtailment of federal or state program participation, reimbursement or other contractual or administrative penalties, licensing board and accreditation sanctions, burdensome corrective action and ongoing reporting and oversight and other consequences.

Perhaps most notably, HHS also is stepping up enforcement against health care providers that discriminate against the disabled.  Like the actions of the Justice Department, many of these enforcement actions focus heavily on discrimination against HIV patients as well as deaf or other individuals whose disabilities impairs their ability to communicate effectively with health care providers.

For instance, on July 18, 2013, HHS announced the termination of Medicaid funding to a California surgeon who intentionally discriminated against an HIV-positive patient by refusing to perform much-needed back surgery. The HHS Departmental Appeals Board concluded that the surgeon violated Section 504 of the Rehabilitation Act of 1973, which prohibits disability discrimination by health care providers who receive federal funds. The order follows an Office for Civil Rights (OCR) investigation of a complaint filed by a patient who alleged that the surgeon refused to perform back surgery after learning that the patient was HIV-positive. OCR found that the surgeon discriminated against the patient on the basis of his HIV status in violation of federal civil rights laws. See HHS Press Release; HHS Departmental Appeals Board Decision; OCR Violation Letter of Findings.

HHS’s exclusion of the surgeon from federal program participation is part of a long-standing policy of OCR of pursuing disability discrimination actions against providers that discriminate against patients with HIV.  For instance OCR previously has announced that an Austin, Texas orthopedic surgeon had agreed to ensure that individuals living with HIV/AIDS have equal access to appropriate medical treatment in order to resolve charges brought in an OCR Violation Letter of Finding charging the surgeon with violating the Rehabilitation Act by refusing to perform knee surgery on an HIV-positive patient.  See Settlement Agreement.

OCR, like the Justice Department, also is aggressive in pursuing Rehabilitation Act claims against health care providers for failing to provide interpreters or other appropriate accommodations for deaf or other patients with disabilities that impair their ability to communicate. In March, for instance, OCR announced a settlement agreement with national senior care provider, Genesis HealthCare (Genesis) which resolved an OCR complaint that Genesis violated Section 504 of the Rehabilitation Act by failing to provide a qualified interpreter to a resident at its skilled nursing facility in Randallstown, Maryland. See, Genesis Settlement.

OCR construes Section 504 of the Rehabilitation Act of 1973, as among other things requiring that facilities take appropriate steps to ensure effective communications with individuals. According to OCR, throughout the patient’s stay at the facility, an OCR investigation showed center staff relied on written notes and gestures to communicate with the resident, even while conducting a comprehensive psychiatric evaluation with him.  Moreover, by not being provided a qualified interpreter, evaluations of his care and discussions on the effects of his numerous medications and the risks caused by not following recommended treatments and prescription protocols had harmful effects on the patient’s overall health status.  According to OCR Director Leon Rodriguez, “This patient’s care was unnecessarily and significantly compromised by the stark absence of interpreter services.” OCR concluded that in order for the patient and staff to be able to communicate effectively with each other regarding treatment, a qualified sign language interpreter would have been necessary.

Under the terms of the agreement, Genesis must require all facilities to provide interpreters and other suitable communications accommodations to language disabled patients, form an auxiliary aids and services hotline; create an advisory committee to provide guidance and direction on how to best communicate with the deaf and hard of hearing community; designate a monitor to conduct a self-assessment and obtain feedback from deaf and hard of hearing individuals and advocates and conduct outreach to promote awareness of hearing impairments and services that are available for deaf and hard of hearing individuals.  In addition Genesis will be required to pay monetary penalties for noncompliance with any terms of the agreement.

In announcing the Genesis settlement, Director Rodriguez warned, “My office continues its enforcement activities and work with providers, particularly large health care systems like Genesis, to make certain that compliance with nondiscrimination laws is a system wide obligation.

The Genesis Agreement is typical of a multitude of settlements resulting from OCR enforcement against health care providers for failing to accommodate deaf, speech or other communication impaired patients.  See, e.g. Cattaraugus County Department of Aging Settlement Agreement; District of Columbia Children and Family Services Agency Settlement Agreement (February 8, 2013); Memorial Health System Colorado Springs  Voluntary Resolution Agreement (November 7, 2012); Advanced Dialysis Centers Settlement Agreement (February  17, 2012).

When evaluating the need to provide interpreters, health care providers also should consider the advisability of offering interpreters for patients whose primary language is not English.  OCR’s discrimination enforcement efforts often extend to other language impaired persons such as English as a Second Language patients.  In addition to its efforts on behalf of individuals with disabilities impacting their ability to communicate, OCR recently announced a national initiative under which it will conduct compliance reviews of critical access hospitals as part of its efforts to strengthen language access for individuals whose primary language is not English.  See OCR Launches Nationwide Compliance Review Initiative To Strengthen Language Access Programs At Critical Access Hospitals.

Health care providers also should ensure that their take appropriate steps to accommodate other disabilities.  For instance, the use of support animals by veterans, children, and other patients with physical, emotional or cognitive disorders on the rise, health care providers need to ensure that their policies, practices, training, facilities leases and other vendor contracts, posting and other arrangements are updated to accommodate patients requiring the use of support or comfort animals.  OCR’s enforcement actions already have extended to protection of the rights of disabled individuals to have the aid and assistance of their service animals when receiving services from health care providers.  For instance, under a settlement agreement with the St. Mercy Medical Center (Mercy) in Fort Smith, Arkansas resolving an OCR complaint that it violated Section 504 and the Rehabilitation Act of 1973, Mercy committed to revise it policies and procedures to comply with Section 504 and to provide staff comprehensive training on their obligations to provide services without discrimination to qualified persons with disabilities. This settlement follows an OCR investigation into a complaint filed by an individual whose service animal was not allowed to go with him into the hospital.  See, Mercy Settlement Agreement. This recent newscast video highlights how the failure to update postings, training, and other practices could result in a host of negative publicity and enforcement actions from refusing or limiting the ability of a person with a disability to have the support of his comfort animal within a health care facility. North Texas Vet Cries Foul After Service Dog Rejection.  This type of adverse publicity not only can do serious damage to a health care provider’s public image, it also is likely to trigger the type of investigation that lead to the Mercy enforcement action.

Other Disability Discrimination Risks

Defending or paying to settle a disability discrimination charge brought by a private plaintiff, OCR or another agency, or others tends to be financially, operationally and politically costly for a health care organization or public housing provider.  In addition to the expanding readiness of OCR, the Justice Department and other agencies to pursue investigations and enforcement of disability discrimination and other laws, physicians and other licensed professionals can expect that they may face disciplinary action by their applicable licensing boards, whose rules typically now make disability or other wrongful discrimination against patients a violation of their rules.  Meanwhile, the failure of health care organizations to effectively maintain processes to appropriately include and care for disabled other patients or constituents with special needs also can increase negligence exposure, undermine Joint Commission and other quality ratings, undermine efforts to qualify for public or private grant, partnerships or other similar arrangements, and create negative perceptions in the community.

Act To Manage & Mitigate Disability Risks

In the face of these growing risks ,  physicians, hospitals and their medical staffs, and other health care providers should review and tighten their policies, leases and other vendor contracts, practices and training to minimize their exposure to prosecution or other sanctions for disability discrimination.

In light of the expanding readiness of OCR, the Justice Department and other agencies to investigate and take action against health care providers for potential violations of the ADA, Section 504 and other federal discrimination and civil rights laws, health care organizations and their leaders should review and tighten their policies, practices, training, documentation, investigation, redress, discipline and other nondiscrimination policies and procedures.

Given a series of recent changes in the provisions of the ADA, discrimination regulations, and enforcement standards, this process generally should begin by reviewing the health care provider’s understanding and policies regarding disability and other discrimination to ensure that they comply with current legal and credentialing requirements and standards.  Once the organization confirms its understanding of current rules is up-to-date, the health care provider also should critically evaluate its operations to identify where its postings, policies, training, practices and operations need to be updated or tightened to meet these standards or avoid other risks.

In carrying out these activities, organizations and their leaders should keep in mind the critical role of training and oversight of staff and contractors plays in promoting and maintaining required operational compliance with these requirements.  Reported settlements reflect that the liability trigger often is discriminatory conduct by staff, contractors, or landlords in violation of both the law and the organization’s own policies.

To meet and maintain the necessary operational compliance with these requirements, organizations should both adopt and policies against prohibited discrimination and take the necessary steps to institutionalize compliance with these policies by providing ongoing staff and vendor training and oversight, contracting for and monitoring vendor compliance and other actions.  Organizations also should take advantage of opportunities to identify and resolve potential compliance concerns by revising patient and other processes and procedures to enhance the ability of the organization to learn about and redress potential charges without government intervention.

For More Information Or Assistance

If you need assistance reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters.

Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here. About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

 

©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


HHS/DOJ Partner With Private Health Plans To Further Ramp Up Health Care Fraud Heat!

July 30, 2012

Health care providers and payers should ensure that practices for billing private payers can withstand the scrutiny of federal and state health care fraud enforcers after the July 26, 2012 announcement of a ground-breaking new public-private antifraud initiative between federal and state health care fraud fighters and a private insurers under which  private insurers will share an unprecedented amount of private health claims data, fraud detection practices, and other coöperation with federal and state official fraud prevention and prosecution efforts.

Government Health Care Fraud Fighters Partner With Private Insurers

The Federal health care fraud fighting departmental duo of the Departments of Health and Human Services (HHS) Justice (DOJ) last week expanded their network of fraud fighting resources by launching a “ground-breaking” partnership among the federal government, State officials, several leading private health insurance organizations, and other health care anti-fraud groups to prevent health care fraud. HHS and DOJ say the following organizations and government agencies are among the first to join this partnership:

  • America’s Health Insurance Plans
  • Amerigroup Corporation
  • Blue Cross and Blue Shield Association
  • Blue Cross and Blue Shield of Louisiana
  • Centers for Medicare & Medicaid Services
  • Coalition Against Insurance Fraud
  • Federal Bureau of Investigations
  • Health and Human Services Office of Inspector General
  • Humana Inc.
  • Independence Blue Cross
  • National Association of Insurance Commissioners
  • National Association of Medicaid Fraud Control Units
  • National Health Care Anti-Fraud Association
  • National Insurance Crime Bureau 
  • New York Office of Medicaid Inspector General
  • Travelers
  • Tufts Health Plan
  • UnitedHealth Group
  • U.S. Department of Health and Human Services
  • U.S. Department of Justice
  • WellPoint, Inc.

HHS & DOJ Say Partnering With Private Insurers Will Give Ongoing Anti-Fraud Efforts Even More Punch

In announcing the new partnership on July 26, 2012, HHS Secretary Kathleen Sebelius and Attorney General Eric Holder touted this new voluntary, collaborative public-private arrangement as the “next step” in the Obama administration’s efforts to combat health care fraud.

“This partnership is a critical step forward in strengthening our nation’s fight against health care fraud,” said Attorney General Holder.  “This Administration has established a record of success in combating devastating fraud crimes, but there is more we can and must do to protect patients, consumers, essential health care programs, and precious taxpayer dollars.  Bringing additional health care industry leaders and experts into this work will allow us to act more quickly and effectively in identifying and stopping fraud schemes, seeking justice for victims, and safeguarding our health care system.”

 “This partnership puts criminals on notice that we will find them and stop them before they steal health care dollars,” Secretary Sebelius said.  “Thanks to this initiative today and the anti-fraud tools that were made available by the health care law, we are working to stamp out these crimes and abuse in our health care system.”

Partnership Allows Feds To Use Private Payer Claims Data, Knowledge & Other Fraud Detection Resources

According to HHS and DOJ, the new partnership is designed to share information and best practices in order to improve detection and prevent payment of fraudulent health care billings. Its goal is to reveal and halt scams that cut across a number of public and private payers. HHS and DOJ say the partnership will private insurers to share their anti-fraud insights more easily with investigators, prosecutors, policymakers and other stakeholders and law enforcement officials more effectively to identify and prevent suspicious activities, better protect patients’ confidential information and use the full range of tools and authorities provided by the Patient Protection & Affordable Care Act (Affordable Care Act) and other statutes to combat and prosecute illegal actions.

One unprecedented element of this partnership will involve the sharing of information on specific schemes, utilized billing codes and geographical fraud hotspots between the public and private partners.  The partners say the planned sharing of claims data and other information will help partners prevent, detect and respond to potential health care billing fraud by:

  • Helping partners to take action, to prevent losses to both government and private health plans before they occur;
  • Improving their ability to spot and stop payments billed to different insurers for care delivered to the same patient on the same day in two different cities;
  • In the future to use sophisticated technology and analytics on industry-wide healthcare data to predict and detect health care fraud schemes. 

Presumably, this will involve the extension of the use of state-of-the-art technology and data mining practices like those the Centers for Medicare & Medicaid Services (CMS) already uses to review claims, to track suspected fraud trends and flag suspected fraudulent activity.

Partnership Expands Use & Reach of New Affordable Care Act & Other Health Care Fraud Detection & Enforcement Tools & Collaboration

The partnership builds upon and extends the reach and use of expanded legal tools created by the Affordable Care Act and other laws that Federal and state officials are using in their highly publicized war against health care fraud, waste and abuse in Medicare, Medicaid, the Children’s Health Insurance Program (CHIP) and, increasingly, private insurance plans.  Using these and other new tools, convictions under the Health Care Fraud and Abuse Control Program increased by over 27% (583 to 743) between 2009 and 2011, and the number of defendants facing criminal charges filed by federal prosecutors in 2011 increased by 74% compared with 2008 (1,430 vs. 821).

The Affordable Care Act and other legislative changes and related programs have significantly strengthened the powers of HHS, DOJ and other federal and state agencies to investigate and prosecute health care fraud.  Among other things, these amendments and programs included :

  • Qui tam and other whistleblower incentives and programs that encourage employees, patients, competitors and others to report suspicious behavior;
  • Require providers, plans to self-identify, self-report and self-correct false claims and certain other non-compliance;
  • Increase the federal sentencing guidelines for health care fraud offenses by 20-50% for crimes that involve more than $1 million in losses;
  • Create penalties for obstructing a fraud investigation or audit;
  • Make it easier for the government to recapture any funds acquired through fraudulent practices;
  • Make it easier for the Department of Justice (DOJ) to investigate potential fraud or wrongdoing at facilities like nursing homes;
  • Under the risk-based provider enrollment rules, providers and suppliers wishing to take part in Medicare, Medicaid, and CHIP who federal officials view as posing a higher risk of fraud or abuse now must undergo licensure checks, site visits and other heightened scrutiny including ongoing monitoring as part of the new Automated Provider Screening (APS) system CMS implemented in December 2011.  The APS uses existing information from public and private sources to automatically and continuously verify information submitted on a provider’s Medicare enrollment application including licensure status Secretary to impose a temporary moratorium on newly enrolling providers or suppliers of a particular type or in certain geographic areas if necessary to prevent or combat fraud, waste, and abuse. 
  • Increased information sharing and coördination of investigations and enforcement among states, CMS, and its law enforcement partners at the Office of the Inspector General (OIG) and DOJ including the highly publicized activities of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), a joint effort between HHS and DOJ to fight health care fraud.
  • The power of CMS, in consultation with OIG, to suspend Medicare payments and require States to suspend Medicaid and SCHIP payments to providers or suppliers during the investigation of a credible allegation of fraud;
  • The deployment and use of the sophisticated data collection and mining technologies of CMS’ new Fraud Prevention System, which since June 30, 2011 has used advanced predictive modeling technology to screen all Medicare fee-for-service claims before payment and target investigative resources on areas that this profile identifies as reflecting heightened risks of health care fraud vulnerability to allow regulators and prosecutors to more efficiently identify and respond to suspected fraudulent claims and emerging trends;
  • Focused fraud prevention, detection and enforcement activities on Home Health agencies, Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) suppliers and certain other categories of providers and suppliers that federal officials view as historically presenting heightened concerns;
  • Expansion of the overpayment detection and recovery activities ofthe Recovery Audit Contractor (RAC) program to Medicaid, Medicare Advantage, and Medicare Part D programs; and
  • Various other tools.

Health Plan Partnership Latest Wrinkle In Fed’s Efforts To Use Private Whistleblower & Other Resources To Find Fraud

The partnership with the health plans is the latest wrinkle in a growing network of private relationships and outreach that HHS and DOJ use to discover health care fraud.  By partnering with health plans, HHS and DOJ have recruited the health plans to help federal officials find and redress potential fraud in public and private health plans. 

HHS and DOJ already know the value of getting private citizens to watch for and report suspected illegal behavior.  Indeed, expended qui tam and other whistleblower activities already are paying off big for federal officials.  For example, a former executive’s qui tam claim helped bring about the settlement announced in June, 2012 under which Christus Spohn Health System Corporation recently  paid more than $5 million to settle Justice Departmentclaims that it profited from violations of the False Claims Act by inappropriately admitted patients to inpatient status for outpatient procedures.  The investigation leading to the settlement began in March 2008 after Christus – Shoreline’s former director of case management filed a lawsuit under seal under the qui tam provisions of the False Claims Act alleging the six hospitals were submitting false claims to the Medicare program by billing for services that should have been performed on an outpatient basis as if they were more expensive inpatient services. The allegations stated that these hospitals were routinely billing outpatient surgical procedures as if they required an inpatient level of care even though the patients often were discharged from the hospital in less than 24 hours.   The federal False Claims Act empowers private citizens with knowledge of fraud against the United States to present those allegations to the United States by bringing a lawsuit on behalf of the United States under seal. If the government’s investigation substantiates those allegations, then the private citizen is entitled to share in any recovery. In this case, that person will receive 20% of the $5,100,481.74 recovery.   

With qui tam and other reports of suspected fraud an increasingly frequent and valuable tool in the federal and state wars on health care fraud, officials have added a wide range of programs encouraging and in some cases financially rewarding individuals and businesses that report circumstances leading to fraud convictions.  The partnership with health plans reflects the latest wrinkle in these efforts.

Health Care Providers & Health Plans Must Act To Manage Risks

In response to the growing emphasis and effectiveness of Federal officials in investigating and taking action against health care providers and organizations, health care providers covered by federal false claims, referral, kickback and other health care fraud laws should consider auditing the adequacy of existing practices, tightening training, oversight and controls on billing and other regulated conduct, reaffirming their commitment to compliance to workforce members and constituents and taking other appropriate steps to help prevent, detect and timely redress health care fraud exposures within their organization and to position their organization to respond and defend against potential investigations or charges.  In light of the growing qui tam risks, health care providers also should tighten internal investigation, exit interview and other human resources and business partner oversight, reporting and investigation policies and practices to help find and redress potential fraud or other qui tam, retaliation and similar  exposures early and more effectively.  

For More Information Or Assistance

If you need help reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need help responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2012 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Medical Identity Theft/Fraud Convictions Highlight Need For Health Care Providers To Safeguard Health Information, Guard Against Fraud Schemes

November 27, 2011

Convictions Highlight Health Care Data Bases Attractive, Vulnerable Target For Medicare Fraud Schemers

A Federal judge sentenced 25 year old Miami resident Yenky Sanchez, 25 to serve more than 5 years in Federal prison for his role in the theft of Medicare numbers and other information of elderly and disabled Florida residents as part of a plan to defraud Medicare, Medicaid and other federal programs.  Coming on the heels of a November 3 conviction in West Virginia of Sargis Tadevosyan in a separate identity theft for Medicare fraud scheme, the convictions highlight the growing commitment and effectiveness of Federal and state investigators in investigating and prosecuting individuals who seek to use identity theft schemes to defraud Medicare or other federal programs.

Sanchez Conviction & Sentencing

The sentence arises from criminal charges brought by the U.S. Department of Justice (DOJ) in conjunction with other federal and state agencies, which charged Sanchez considered to commit health care fraud, authentication feature fraud and aggravated identity theft.  According to DOJ documents, Sanchez, participated in a scheme with Raul Diaz-Perera, to steal and sell Medicare numbers and other data about clients of their employer, the Florida Department of Children and Families’ (DCF).  Diaz-Perera previously was employed with DCF. According to the evidence at trial against Sanchez and a factual proffer filed with the court during the plea hearing for co-defendant Diaz-Perera, Sanchez used his position as employees at a DCF call center in downtown Miami to steal Medicare numbers and other personal information for purposes of committing health care fraud and identity theft.  The intent of Sanchez and his co-conspirator was for those numbers to be used to fraudulently bill Medicare for services that were never provided to the DCF beneficiaries. Sanchez was convicted of conspiring to commit health care fraud, in violation of Title 18, United States Code, Section 1349; conspiring to commit authentication feature fraud, in violation of Title 18, United States Code, Sections 1028(a)(3) and (f); and aggravated identity theft, in violation of Title 18, United States Code, Section 1028A(a)(1).  Based on these convictions, U.S. District Judge Cecilia M. Altonaga sentenced Sanchez on November 21, 2011 to 65 months in prison, followed by three years of supervised release. Judge Altonaga also imposed a $5,000.00 fine on Sanchez.

Tadevosyan Conviction

Federal officials previously also had scored another Medicare fraud/identity theft prosecution victory just a few short weeks earlier in West Virginia.  On November 3, 2011, a federal jury convicted Armenia citizen Sargis Tadevosyan in connection with a health care fraud scheme that intended to defraud millions of dollars from Medicare. Tadevosyan was found guilty of two felony counts: conspiracy to commit health care fraud and wire fraud and aggravated identity theft.  Tadevosyan faces up to 20 years in prison for the conspiracy conviction and a mandatory consecutive sentence of two years for aggravated identity theft and a $250,000 fine when he is sentenced on January 26, 2012.

In contrast to the small scale conspiracy that apparently occurred in the Sanchez case, the Tadovosyn scheme apparently was orchestrated by organized crime. Department of Health and Human Resources Office of Inspector General (HHS-OIG) uncovered the activities of Tadovosyn as part of its investigation of fraud schemes involving false front providers, whereby a company posed as a Medicare health care provider, and unlawfully billed Medicare as if they were providing legitimate services. Ultimately, investigators discovered that Tadevosyn and others were involved in defrauding Medicare and other health care payers as part of a scheme that used false front provider companies.  In total, more than $4 million in Medicare claims were submitted by the false front providers.  To co-conspirators of Tadevosyn pleaded guilty in September to aiding and abetting aggravated identity theft in connection to the health care fraud plot.  Those two co-defendants are scheduled to be sentenced on December 1, 2011.

In announcing the Tadevosyan conviction, federal officials affirmed their commitment to finding and prosecuting identity theft targeting Medicare and other health insurance programs. “This investigation revealed that organized criminal groups are still brazenly attempting to steal taxpayer money from our national health insurance programs,” said Nicholas DiGiulio, Special Agent in Charge for the Inspector General’s Office of the United States Department of Health and Human Services. “Today’s results demonstrate that we will do whatever it takes to catch these individuals in the act before they receive a penny of taxpayers’ money.”

Federal Laws, Investigations & Prosecutions of Medical Identity Theft Schemes Tightening

Whether from deliberate schemes to misappropriate data or other less sinister compromises of personal health information or other sensitive data, health care providers, health plans and other businesses face rising responsibilities to protect data and increasing exposures for failing to do so.

Federal law imposes stiff sanctions against organizations and individuals that engage in theft of personal or other sensitive information, health or other federal program fraud or both.  In an effort to stem the tide of health care and identity theft fraud, federal and state legislators and regulators have tightened federal and state laws to strengthen laws prohibiting health care fraud and identity theft, to require that health care providers, health plans, federal and state agencies and others that collect, possess or access sensitive personal health information, personal financial information or other sensitive date safeguard and protect sensitive information against improper access or misuse, to increase the penalties for violation of these federal and state laws and to provide law enforcement with expanded tools to investigate and prosecute violations of these laws.  See e.g., Cybercrime and Identity Theft:  Health Information Security Beyond HIPAA.  

As a result of these new and expanded mandates, health care providers, health plans, financial organizations and a broad range of other businesses and governmental agencies face a host of complicated mandates to protect personal health information, personal financial information and other sensitive data under laws such as the Health Information Portability & Accountability Act (HIPAA), the Fair & Accurate Credit Transactions Act (FACTA), state and federal identity theft and data security and other laws and significant liability for failing to fulfill these responsibilities. 

Health care providers, health insurers and others handling protected health information are particularly at risk when their data is compromised.  Recent amendments to HIPAA require these entities and their business associates to tighten their data privacy and security safeguards and to monitor and timely report data breaches, as well as significantly expand their potential liability exposure for failing to comply with HIPAA’s requirements. See e.g., UCLA Health Systems Payment of $865,500 To Settle HIPAA Charges Shows Rising HIPAA Risk; CVS Settles Privacy Charges; Rite Aid Agrees to Pay $1 Million to Settle HIPAA Privacy Case As Office of Civil Rights Proposes Tighter HIPAA Privacy & Security Regulations; 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information; President Signs Long-Sought Red Flag Rule Exemption Into LawAs part of its ongoing implementation of stepped up enforcement responsibility and powers enacted as part of these recent amendments, the HHS Office of Civil Rights (OCR) announced on November 8, 2011 its kickoff of a new compliance audit effort. These developments send a forceful message that all businesses generally and health care providers, health plans, healthcare clearinghouses and their business associates specifically must get serious about compliance with the privacy, security and data breach requirements of HIPAA and other applicable law by implementing and administering the policies, procedures, training and oversight necessary to comply with these and other federal and state mandates regarding the protection of personal health information and other sensitive data.  Learn more about the recent convictions and related data breach exposures here.

For Help With Compliance, Investigations Or Other Needs

If you need assistance providing compliance or other training, reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others.   Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


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