DE Health Law

Physicians Opting Out of Medicare?

2012-01-31T10:19:00.000-05:00

Last week the OIG released its long-awaited report evaluating the extent to which doctors are opting out of Medicare and the reasons why they are opting out. Spoiler alert: The report was inconclusive. The OIG reported that CMS and its contractors “do not maintain sufficient data regarding physicians who opt out of Medicare. As a result, we are unable to conduct the proposed evaluation at this time.”

For those of us who are frequently asked by the OIG to review and analyze historical Medicare claims, the temptation to ask why that excuse does not work for us is hard to suppress. However, the OIG’s desire for accuracy and its unwillingness to provide a report based on conjecture is admirable. It is important to understand the factors that will impact access to care for our aging population. A less than thorough analysis would have been a mistake.

The OIG notes in its report that the number of opted-out physicians appears to have increased in each year from 2006 to 2010. The report goes on to predict that more physicians may opt out in the near future due to potential legislated decreases in Medicare reimbursements. A Medical Society of Delaware survey for 2012 validated the OIG’s intuition. More than 50% of the physicians polled said that they were considering changing their Medicare participation status due to the proposed 27.4% proposed reduction to the fee schedule.

This is an issue worth monitoring. A recent Texas study reported that 37% of its primary care practices limit the number of new Medicare patients in the practice and another 13% do not accept any Medicare patients. If the OIG is correct and the national trend is that more physicians are opting out of Medicare each year, we may be closer to a crisis of access of care for seniors than anyone realizes.

The OIG has pledged to conduct a full evaluation when CMS and its contractors are in a position to provide more accurate information.

Bill Authorizing Medical Practice Inspections Up for Consideration by Delaware’s General Assembly

2012-01-13T15:03:00.002-05:00

The 146th General Assembly reconvened this week and one of the bills it may consider is SB51, which authorizes the Division of Professional Regulation to investigate complaints of unsafe or unsanitary conditions at any location where “medical or health-related treatment” is rendered, excluding hospitals, freestanding birthing centers, freestanding surgical centers or freestanding emergency centers. The bill also provides that a Delaware-licensed physician may be disciplined for maintaining an unsanitary or unsafe condition in his/her office. Complaints must be in writing, may not be anonymous, must be filed within 5 days of observing the complained-of condition, and can only be filed by a person over the age of 18 who has observed the condition and reported it to the staff at the location where the condition was observed. So while the proposed legislation does not give the Division free reign to conduct inspections of physicians’ offices, it authorizes discipline against Delaware physicians who operate their practices in an “unsafe” or “unsanitary” manner, leaving open to interpretation just what constitutes an “unsafe” or “unsanitary” condition.

Health Care Fraud: Newest Numbers and Enforcement Actions

2011-12-29T09:54:00.002-05:00

The U.S. Justice Department recently announced that it recovered more than $3 billion in settlements and judgments in civil health care and war-related fraud cases in the last fiscal year. The vast majority of the $3 billion—$2.8 billion—was recovered under the whistleblower provisions of the False Claims Act (FCA). Additionally, of the $3 billion, $2.4 billion involved health care fraud, most of which was attributed to the Medicare and Medicaid programs. Since January 2009, the Department has recovered $8.7 billion ($6.6 billion attributable to federal health care dollars), which is the largest three year total in the Department’s history.

The record setting recoveries under the whistleblower provisions of the FCA paralleled a sharp increase in the number of whistleblower lawsuits filed, which, after staying in the 300s to low 400s range for last decade, hit an all-time high at 638 in the last fiscal year. The Patient Protection and Affordable Care (PPACA) has added additional incentives for whistleblowers to report fraud in this manner.

But the federal government has not lost focus on private health insurance fraud, and the goverment recently reached a plea agreement with a Texas doctor who pleaded guilty to defrauding private insurers. The government pursued the case under federal mail fraud and conspiracy laws, and the doctor was sentenced to seventy months and sixty months of incarceration, respectively, and ordered to pay $3,821,082in restitution.

This case serves as a reminder that even though the primary focus has been recovering federal health care dollars—which has been viewed by many as a great success—private health insurance fraud is not beyond the scrutiny of federal prosecutors.

Delaware Focused on Cutting Medicaid Costs

2011-12-19T11:18:00.001-05:00

In these tough economic times, courts across the country have been addressing challenges to State action aimed at reducing Medicaid costs. In October, the US Supreme Court heard argument (but has not yet issued a decision) in Douglas v. Independent Living Center to answer the question of whether or not Medicaid recipients and providers are able to sue States that attempt to reduce reimbursement rates required by the Medicaid Act. The case arose when California, in an attempt to save money, reduced rates that it would pay doctors and hospitals participating in Medicaid. The federal requirement for Medicaid reimbursement rates is that payments must at least be high enough to entice healthcare providers to take Medicaid patients. More recently, Washington state doctors were victorious in a challenge to a state rule limiting Medicaid enrollees to three emergency room visits a year for conditions that the state labeled “non-emergent.” However, the judge’s order in that case was procedural in nature, and the Washington State Health Care Authority, the state’s Medicaid agency, is likely to initiate another rulemaking procedure in an attempt to reduce what the state deems unnecessary emergency room care for Medicaid enrollees by $70 million in two years.

State efforts to cut Medicaid costs are not new. While the federal government contributes half the cost of the program, Medicaid consumes 22% of the average state’s annual budget; this is more than states pay for education, transportation, and prisons. As we see downturns in the national economy, more individuals lose their jobs and become eligible for the program; and in times where the state sees less revenue from tax dollars, it is charged with paying more into their respective programs. These effects are far reaching and are impacting states all over the country. Reportedly, Massachusetts no longer covers restorative dental care and dentures and Washington no longer covers eyeglasses or hearing aids. Delaware is no different.

Currently, Medicaid covers almost 25% of Delaware’s population and some opine that our system is broken, with a $600 million bill this year alone and an expectation that more than 35,000 Delawareans will be newly eligible in fiscal year 2013. As reported by the Wilmington News Journal, the Delaware Commission on Medicaid Cost/Health Care Containment, a 22-member commission, recently met to vote on more than two dozen ideas meant to control the rising costs of the program. But after five months of debate, some are disappointed with how little was accomplished. To read the full article, visit http://www.delawareonline.com/article/20111215/BUSINESS13/112150326/Short-list-fixes-left-Medicaid.

Some of the Commission’s recommendations include:

• Taxing sugary drinks to raise money for Medicaid and discourage the consumption of such products
• Support for “medical homes” that enable better management of patient care
• Adopting a waiver plan for retired state employees
• Increasing the use of electronic prescriptions and medical records
• Adopting a reciprocity agreement with other states to attract more dentists to Delaware

Some of the ideas the Commission rejected include:

• Reducing reimbursement rates for lab fees
• Reducing reimbursement rates for non-urgent visits to the emergency room or limiting non-urgent visits to three per year
• Imposing standards on Medicaid recipients to reduce lifestyle choices such as smoking and setting standards for nutrition and exercise (Federal regulations forbid imposing higher costs for these reasons)

It is important for Delaware physicians to be on notice of legislation, rulemaking or any policy changes affecting Medicaid reimbursement. Additionally, in such cash-strapped times, it is more likely for the State to increase efforts to recover overpayments. Healthcare providers should be ready to respond to investigations and audits aimed at recovering Medicaid payments throughout the State. As more Delawareans become eligible for Medicaid, the State will continue to focus on how to cut costs and providers should be keenly aware of how such changes will affect their practice and patient care.

Medicare Stops Paying for Most Urine Drug Screens

2011-12-02T18:04:00.000-05:00

Highmark Medicare Services has issued a Local Coverage Determination (“LCD”) applicable to services performed on or after November 11, 2011, that eliminates coverage for urine drug screens (“UDS”) used by physicians to monitor whether patients are adhering to their medication regimens. The LCD limits coverage of UDS to circumstances where patients present with a suspected drug overdose, with known substance abuse or dependence, or for chronic pain patients suspected of illicit drug use ONLY if there has been an acute change in the patient’s physical or mental status, which the LCD equates with unexplained coma, unexplained altered mental status, severe cardiovascular instability, unexplained metabolic or respiratory acidosis, or unexplained seizures. The LCD expressly provides that drug screening for compliance purposes, diversion, or in asymptomatic patients is not covered.

Many of the leading experts in pain management, as well as the Federal Drug Enforcement Administration, support the use of random UDS to detect drug diversion and thwart drug-seeking behavior. In fact, as recently as last year Michele M. Leonhart, the Administrator of the Drug Enforcement Administration, wrote that pain management specialists who fail to use random urine drug screens to detect misuse of prescription pain medication breach the standard of care in prescribing controlled.

Two factors have led to the broad agreement that urine drug screens are essential for weeding our patients who are misusing prescription pain medication. First, urine drug screens are effective in identifying what is known as “aberrant drug behavior,” which includes misusing illicit drugs and diverting prescription pain medication for sale. One relatively recent study identified a 45% rate of unexpected test results in a pain management practice, including 20% of patients who tested positive for illicit substances in their urine. Second, there are few, if any, reliable ways of predicting aberrant drug behavior. Authors on this subject agree that there is simply no way to obtain information from and about a patient that will meaningfully predict whether that patient will engage in aberrant drug behavior. So periodic urine drug screens act as a deterrent against such behavior and as a tool for identifying it.

Supporters of the LCD will argue that there is less risk of aberrant drug behavior among Medicare beneficiaries than in other segments of the population. Perhaps. But when you talk to pain management practitioners, what you hear is that abuse and misuse is rampant everywhere, even among those covered by Medicare. Many of the leading clinical experts in the field of pain management recommend random urine drug screens for all patients.

Another concern is how other health insurance carriers will respond to this determination. Carriers closely watch Medicare coverage determinations. Will other carriers implement similar coverage determinations?

For now, the focus will be on how to deal with Medicare beneficiaries. As a result of the LCD, Delaware physicians, particularly pain management physicians, who prescribe narcotics for the treatment of chronic pain and follow random UDS procedures to monitor compliance with medication regimens are now faced with a quandary with respect to their Medicare patients—forego random UDS or require those patients to pay for UDS themselves. The first option is hardly viable in our current environment.

Delaware physicians will need to advise their Medicare patients that random UDS are not covered services and, accordingly, the patients will be expected to pay for them. Given that much of the Medicare-covered population is of limited means, it seems that the recent LCD will create an interesting tension between patients and their doctors. Now that Medicare is refusing to pay for these tests, who will?

Governor Markell urges Delaware lawmakers to do more to address prescription drug abuse

2011-11-18T17:08:00.000-05:00

The focus on prescribing narcotics and other controlled substances for the management of pain is nothing new, but Delaware has recently taken initiatives to bring that focus into perspective. In a post on October 14, I wrote about the recently proposed rule on the use of controlled substances in the treatment of pain. That rule establishes the Board of Medical Licensure and Discipline’s (“Board”) formal recognition of use of controlled substances in the treatment of pain. After a recent series of articles in the News Journal about the abuse of prescription pain killers in Delaware, pain management physicians should be alerted to all of the changes coming to state and participate in the processes to fight this epidemic.

In a November 10th article, the News Journal reported that. Governor Markell indicated that he would either propose specific legislation or ask the Board to pass a regulation. Once Delaware establishes its electronic prescription systems next year, Governor Markell pledges to work with the governors of the surrounding states to share data in Delaware’s new prescription monitoring program. Delaware is currently one of fifteen states without such a system already in place. The Governor also indicated that a public awareness campaign may strengthen the requirements of this new program.

Investigations into the practice of prescribing controlled substances are on the rise, and since January of 2010, the Board has suspended or reprimanded nine doctors for violations. In what has become a prescription drug abuse epidemic, such prescription habits will also draw attention from state and federal authorities fighting against health care fraud.

Developing new prescription monitoring systems will provide doctors who prescribe controlled substances with a valuable tool for identifying drug-seeking patients, which in the end should serve to reduce some of the abuse that has plagued Delaware and other states.

DMMA Issues Regulations Regarding Non-Payment for Provider Preventable Conditions

2011-11-04T17:47:00.000-04:00

As required by the federal health care reform law passed in March 2010, Delaware’s Division of Medicaid and Medical Assistance issued final regulations on November 1, 2011, that provide, as of July 1, 2011, that DMMA will not reimburse hospitals for provider preventable conditions (PPCs), which include foreign objects retained after surgery, blood transfusions with incompatible blood, falls and trauma occurring in the hospital, and the like. A full list of PPCs can be found at http://www.dmap.state.de.us/downloads/bulletins/federal.prohibition.payment.provider.pdf. The payment bar does not apply to services related to pre-existing conditions, i.e., those “present on admission” (“POA”).

The final regulations also require Delaware hospitals that are Medicaid providers to report the occurrence of a PPC “through the appropriate claim(s) type submission process.” The regulation does not elaborate on the mechanics of reporting but DMMA has promised that more information on the reporting requirement will follow.

The OIG Issues its 2012 Work Plan

2011-10-19T08:40:00.004-04:00

Each October marks the height of playoff baseball, the changing of the leaves, and the beginning of a new fiscal year for the Federal government. With the beginning of each new fiscal year, health care providers of all sizes and types are informed of the audit and enforcement plans of the Federal regulators charged with overseeing the federal health care programs. The Office of Inspector General (“OIG”) at the Department of Health and Human Services (“HHS”), the entity tasked with protecting HHS programs by detecting and preventing health care fraud and abuse, released its 2012 Work Plan this month, providing insight on the reviews and activities that the OIG will pursue during the next twelve months and beyond.

The Work Plan offers health care providers a glimpse into the future and an opportunity to see the issues that the OIG plans to focus its investigative resources on. Knowing what to expect in the coming year regarding enforcement and audits can be a useful tool in providers’ own internal compliance efforts. Providers may take a look at their own practices in these related areas in order to assess compliance with the applicable federal laws. Some of the key areas affecting Delaware health care providers are listed below, and the entire plan can be viewed at the OIG website. ( http://oig.hhs.gov/reports-and-publications/workplan/index.asp#current)

HOSPITALS

Medicare Inpatient and Outpatient Payments to Acute Care Hospitals
OIG will review Medicare payments to hospitals to determine compliance with selected billing requirements. OIG will utilize data mining techniques to select hospitals for focused reviews and will then recommend recovery of overpayments and identify those providers deemed high-risk, who routinely submit improper claims.

Acute-Care Hospital Inpatient Transfers to Inpatient Hospice Care
OIG will review Medicare claims for inpatient stays where the beneficiary was transferred to hospice care. The relationship (financial or common ownership) between the entities will be examined, as well as how Medicare treats reimbursement for similar transfers to other settings.

Medicare Outpatient Dental Claims
Medicare hospital outpatient payments for dental services will be reviewed to determine if payment was proper under Medicare requirements. Dental services are only covered under a few exceptions, but based on OIG audits, providers received significant overpayments.

Hospital Claims with High or Excessive Payments
OIG will review high payments to determine whether they were appropriate. Specifically, OIG’s work will include outpatient claims in which payments exceeded charges.

Inpatient Prospective Payment System: Hospital Payments for Nonphysician Outpatient Services
OIG will review the appropriateness of these payments for services that were provided to beneficiaries shortly before or during covered stays at acute care hospitals. Prior reviews have revealed a significant number of improper claims.

Medicare Inpatient and Outpatient Hospital Claims for the Replacement of Medical Devices
Medicare is not responsible for the full cost of a replaced medical device if the hospital receives a partial or full credit from the manufacturer. As such, OIG will review whether claims for the insertion of replacement devices utilized the proper modifier when a credit is received.

Observation Services During Outpatient Visits
Improper use of observation services may result in high cost sharing for beneficiaries, so OIG will review Medicare payments for observation services provided by outpatient departments.

Hospital Admissions With Conditions Coded Present on Admission
OIG will review Medicare claims to determine which facilities (e.g., SNF or rehabilitation facilities) most frequently transfer patients with certain diagnoses that were coded as being present on admission.

Accuracy of Present-on-Admission Indicators Submitted on Medicare Claims
Beginning in 2008, CMS required hospitals to submit present-on-admissions indicators with each diagnosis code on inpatient claims. The Affordable Care Act provides that hospitals with high rates of hospital-acquired conditions will receive reduced payments, and as such, accurate present-on-admission indicators are necessary for CMS to carry out this new law. OIG will review the accuracy of the present-on-admission indicators that were submitted by hospitals in 2008.

NURSING HOMES

Nursing Home Compliance Plans
OIG will begin to review nursing homes’ compliance plans after Section 6102 of the Affordable Care Act mandated compliance and ethics programs to detect and prevent criminal, civil, and administrative violations. CMS must issue regulatory requirements for the programs by 2012, but OIG will begin to review those programs already in place.

OTHER PROVIDERS

Physicians: Incident-To Services
OIG will review physician billing for “incident-to” services to assess whether payment had a higher error rate than the rate for non-incident-to services. OIG believes such services may be vulnerable to overutilization, and as such, the services will be subject to closer scrutiny.

Physicians: Place-of-Service Errors
OIG will review physicians’ coding on Medicare Part B claims for services performed in ambulatory surgical centers and hospital outpatient departments to determine whether they properly coded the places of service. Federal regulations provide for different levels of payments to physicians depending on where services are performed.

Evaluation and Management Services: Use of Modifiers During the Global Surgery Period
OIG will review the use of certain claims modifier codes during the global surgery period to determine whether the use was appropriate and in accordance with Medicare requirements.

Diagnostic Radiology: Excessive Payments
OIG will review payments for high-cost diagnostic radiology tests to determine whether they were medically necessary. Additionally, the review will target whether, and to what extent, the same diagnostic tests are ordered both by the primary care physician and specialists for the same treatment.

Medicare Payments for Part B Claims with G Modifiers
OIG will review payments from 2002 to 2010 for claims where certain modifier codes were used to indicate that Medicare denial was expected. The review will identify the extent to which Medicare paid those claims and the providers with atypically high billing related to the modifiers.

Delaware Board of Medical Licensure and Discipline Issues Proposed Rule on Use of Controlled Substances for the Treatment of Pain

2011-10-14T16:45:00.003-04:00

On September 30, the Delaware Board of Medical Licensure and Discipline issued a proposed rule, “Use of Controlled Substances for the Treatment of Pain,” and has asked for comments preceding a public hearing in November. The proposed rule adopts the Federation of State Medical Board’s Model Policy for the Use of Controlled Substances for the Treatment of Pain and is meant to “alleviate licensed practitioner’s uncertainty, to encourage better pain management, and to minimize practices that deviate from the appropriate standard of care.”

The Board recognizes that the appropriate treatment of pain is fundamental to the practice of medicine, but it notes that practitioners may lack knowledge regarding pain management or may fear investigation or sanction by federal, state and local agencies, which have been focusing on pain management practices. These factors contribute to the “inappropriate treatment of pain.” The rule implies that the failure to become knowledgeable about treating pain is considered inappropriate just as the failure to follow statutory requirements in prescribing controlled substances. The proposed rule will consider the inappropriate treatment of a pain “a departure from standards of medical practice,” and such departures will result in investigations and potential discipline. Thus, the purpose of the proposed rule is to establish specific requirements for using controlled substances to treat chronic pain as well as the required safeguards to minimize risks of drug abuse and diversion. The comment period, which is open up to and including the date of the public hearing, November 1, 2011, is the provider’s opportunity to influence the final regulation.

The preamble to the rule states that the Board will not discipline a licensed practitioner for ordering, prescribing, dispensing or administering controlled substances “for a legitimate medical purpose and in the course of professional practice.” The prescribing of a controlled substance must be in the course of a practitioner-patient relationship and “should be based on a diagnosis of unrelieved pain.” The decision to prescribe controlled substances will be considered “a legitimate medical purpose” if it is based on “sound clinical judgment.” The takeaway for providers from the preamble is an emphasis on documentation. While the Board recognizes the place for controlled substances in the treatment of pain, the overriding concerns of abuse and diversion require extensive documentation of the practitioner-patient relationship. Under the rule:

“[t]he practitioner’s conduct will be evaluated to a great extent by the outcome of pain treatment, recognizing that some types of pain cannot be completely relieved, and by taking into account whether the drug used is appropriate for the diagnosis, as well as improvement in patient functioning and/or quality of life.”

The proposed rule requires a documented evaluation of the patient and a treatment plan. The benefits and risks of controlled substances must be discussed and if a patient is considered “high risk” for medication abuse, the patient must enter into a treatment agreement with the practitioner and submit to, among other conditions, random urine drug screening.

Importantly, the proposed rule does not envision the decision to treat pain with controlled substances as the end of the treatment continuum; practitioners shall review the course of pain treatment on a continued basis to determine whether alternative treatment modalities are more appropriate for the patient. This raises a few issues. First, it is possible that pain patients being treated with controlled substances may have different goals than their provider. There is any number of reasons that a patient may refuse alternative treatment options, such as invasive surgeries. Communication will be of the utmost importance, but the rule does not envision potentially common scenarios where the patient and practitioner disagree on the continued use controlled substances days, weeks, or months into the treatment relationship. And when patient and practitioner disagree during an ongoing treatment regimen, the specter of abandonment looms overhead.

Again, documentation requirements are stressed, and a section of the proposed rule addresses the maintenance of accurate and complete medical records. However, practitioners can look at these requirements as protective measures to assure compliance not only with appropriate standards of treatment, but also pain treatment coding and billing, which is receiving high levels of scrutiny from government payers and enforcement agencies.

A public hearing will be held on November 1, 2011 at 3:00 PM in the second floor conference room A of the Cannon Building, 861 Silver Lake Boulevard, Dover. Those in attendance will be invited to share their comments. Written comments may also be submitted to this address up to the date of the public hearing. For more information and to read the full proposed rule, visit http://regulations.delaware.gov/register/october2011/proposed/15%20DE%20Reg%20498%2010-01-11.htm.

Delaware Health Insurers Required to Provide Free Coverage for Immunizations

2011-09-29T16:13:00.001-04:00

As required by the federal Health Care Reform law (the Patient Protection and Affordable Care Act), the Delaware General Assembly passed amendments to the state’s insurance code requiring health insurance carriers providing coverage in Delaware to cover certain immunizations and preventive services without requiring enrollees to pay copayments, coinsurance or deductibles. Governor Markell signed the bill into law on September 23rd, and it applies to policies issuing or renewing after June 30, 2011. A complete list of the immunizations and services covered under the new law can be found at http://www.healthcare.gov/news/factsheets/2010/07/preventive-services-list.html
While the Delaware insurance code previously mandated coverage for many of these services, such as mammograms and colonoscopies at certain ages, it did not prevent insurers from imposing co-pays or other charges on individuals receiving them.

Fraud Investigations Aiming for the Top: Government Scrutiny of Health Care Executives

2011-09-23T12:38:00.002-04:00

In his testimony before a House of Representatives subcommittee, Chief Counsel for the HHS-OIG Lewis Morris expressed the Federal Government’s frustration with repeat offenders and indicated a new strategy for fighting fraud and abuse among health care enterprises:

“We are concerned that the providers that engage in health care fraud may consider civil penalties and criminal fines a cost of doing business. . . . One way to address this problem is to attempt to alter the cost-benefit calculus of the corporate executives who run these companies. By excluding the individuals who are responsible for the fraud, either directly or because of their positions of responsibility in the company that engaged in fraud, we can influence corporate behavior without putting patient access to care at risk.

HHS, the Justice Department, and the Food and Drug Administration have been independently shifting their target to individual executives in health care fraud investigations and prosecutions. Executives at drug companies, medical device companies, nursing homes, and other health care groups now have more to worry about than the hefty fines their companies are forced to pay; these executives could face criminal charges even if they were not involved in the scheme and exclusion from the Federal programs.

Morris continued, saying that “when there is evidence that an executive knew or should have known of the underlying misconduct of the organization, OIG will operate with a presumption in favor of exclusion of that executive.” To be sure, exclusion from the federal programs is a career ender, as the enterprise would no longer be able to bill the federal programs with the excluded executive at the helm. The authority the OIG points to for this power is under section 1128(b) of the Social Security Act, which allows OIG to hold responsible individuals accountable for the misconduct of their organization. It is only recently, however, that OIG has been focusing on using this power on the top executives of these organizations. It used to be that only executives who had been charged and entered pleas were excluded. Last year, however, the inspector general excluded the owner/executive of drug manufacturer Ethex Corporation even though the Justice Department did not charge him.

But this theory was recently tested and HHS retreated. Howard Solomon, chief executive of drug company Forest Laboratories, received notice from HHS-OIG that he would be excluded from the Federal programs. Solomon received the letter because a Forest subsidiary pleaded guilty to marketing violations in 2010 and agreed to a $313 million settlement, but Solomon was not personally charged and there was never any alleged wrongdoing on his part. According to a press release from Forest, the “only basis given in the letter notifying Mr. Solomon of the potential action is that he is ‘associated with’ Forest.” Ultimately, after protest from the business community, HHS retreated from its exclusion letter.

Despite HHS backing down against Solomon and Forest, the climate of investigations and prosecutions against executives is still heating up. As Morris said in a May Associated Press interview, “[t]he behavior of a company starts at the top." In the ever growing culture of compliance coming out of Washington, it is more important than ever for executives to become involved in their organization’s ongoing compliance efforts, and to hold subordinates accountable for running a compliant organization.

Health Care Practices Must Inform Employees of Labor Rights

2011-09-23T12:33:00.000-04:00

On August 30, 2011, the National Labor Relations Board (NLRB) issued a final rule that will require all private employers, including health care practices, covered by the National Labor Relations Act (NLRA) to notify employees of their rights under the Act. This notification’s substance is included on a poster provided by the NLRB, which informs employees of their rights, among others, to join a union and collectively bargain. The poster may be downloaded and printed in either black-and-white or color, and must be posted in the workplace. In addition to physically posting the notice, if personnel rules are customarily posted on the Internet or an intranet site, the notification must also be posted there. Translated versions must be posted where at least 20% of employees are not proficient in English. A failure to post this notice will be deemed an unfair labor practice under the NLRA. The rule goes into effect on November 14, 2011.

Feds Deny Delaware Insurance Commissioner’s Application for Medical Loss Ratio Adjustment

2011-09-16T11:54:00.003-04:00

In a September 9th letter the Centers for Medicare & Medicaid Services denied Delaware Insurance Commissioner Stewart’s application for an adjustment to the 80 percent medical loss ratio (“MLR”) standard applicable to the individual health insurance market in Delaware beginning in 2011 as a result of the federal health care reform legislation, the Patient Protection and Affordable Care Act (the “Act”). Section 1001 of the Act required issuers in the individual market to spend at least 80 percent of premium dollars on reimbursement for clinical services and activities that improve health care quality for enrollees. Beginning in 2011, if an issuer does not meet the 80 percent standard, it is required to provide rebates to enrollees.

The Act permits states to apply for adjustments to the 80 percent standard if applying that standard may destabilize the market for individual health insurance coverage in the state. Commissioner Stewart applied for an adjustment of the standard to 65 percent, 70 percent and 75 percent for the reporting years 2011, 2012 and 2013, respectively. Of the three largest issuers of individual health insurance coverage in the state, Blue Cross Blue Shield, Golden Rule, and Aetna, Blue Cross Blue Shield already meets the 80 percent standard but Golden Rule and Aetna do not and, according to media reports, threatened to pull out of the individual insurance market in Delaware if an adjustment was not obtained. Golden Rule and Aetna had not, however, provided the required 180-day notice of withdrawal from the Delaware individual market of the time of CMS’s decision. Some individual consumers and small business owners voiced objections to Commissioner Stewart’s application arguing it was a concession to the insurance companies and not in the best interest of Delaware consumers.

CMS, which has previously granted adjustment requests from five states and denied such a request from one state, North Dakota, denied Delaware’s request because the evidence presented did not establish that application of the 80 percent MLR standard would destabilize the Delaware individual market. Among other things, CMS found that Golden Rule and Aetna would remain “substantially profitable” even if they had to pay rebates as a result of not meeting the 80 percent MLR standard.

Third Circuit Adopts Implied False Certification Liability under False Claims Act

2011-09-07T13:05:00.002-04:00

“Men must turn square corners when they deal with the government.”

While Justice Holmes penned the above quote in a different context, it was recently invoked by the United States Court of Appeals for the Third Circuit in its decision to adopt the implied false certification theory for liability under the False Claims Act (“FCA”). In United States ex rel Wilkins v. United Health Group, the Third Circuit joined the Second, Sixth, Ninth, Tenth, Eleventh, and District of Columbia Circuits in recognizing that healthcare providers can be liable under the FCA if the provider makes a claim for payment without disclosing that it violated regulations that affect its eligibility for payment. For Delaware providers, this means compliance with federal health laws has taken on a new dimension of exposure and they must be more careful than ever in submitting claims to the federal programs.

By way of review, in order to establish a prima facie violation under the FCA, the Government or a relator—a qui tam plaintiff—must prove: (1) that the provider presented or caused to be presented a claim for payment; (2) that was false or fraudulent; (3) that the provider knew to be false or fraudulent. The Courts have identified two categories of false or fraudulent claims under the FCA: (1) factually false and (2) legally false.

A factually false claim is one that misrepresents the items or services provided. A legally false claim is where the “false certification” theory originates, where a provider knowingly and falsely certifies that it has complied with a statute or regulation that is a condition of government payment. In Wilkins, the Third Circuit has now adopted a further distinction, and yet another avenue for FCA liability: (1) express false certifications and (2) implied false certifications.

An express false certification is where the provider falsely certifies that it is in compliance with the regulations that are prerequisites to payment in connection with the claim, such as a certification that the provider holds the requisite license to provide the services. Alternatively, the implied false certification rests on the idea that the mere act of submitting a claim, without any words of certification at all, implies compliance with the preconditions to payment. The Third Circuit noted that it must be proven that had the Government been aware of the provider’s violations of the Medicare laws and regulations, it would not have paid the claim. To state this condition another way, under the implied false certification theory, it must be shown that compliance with the regulation allegedly violated was a condition of payment, and not simply a condition of participation in the federal programs.

Under the facts of Wilkins, the relators first alleged that United Health personnel violated Medicare marketing regulations. The Third Circuit affirmed the District Court and dismissed that count of the complaint because compliance with the Medicare marketing regulations is not a condition of payment. However, the relators also alleged that United Health’s subsidiaries violated the Anti-Kickback Statute (“AKS”), also forming the basis of FCA liability. The Third Circuit found that the relators stated a claim in this regard, because Medicare regulations require Medicare Advantage and Prescription Drug Plan providers to enter into agreements with CMS, affirmatively agreeing to comply with the AKS. Therefore, the Court reasoned that “[t]o plead a claim for relief under an implied certification theory, appellants were required to allege, as they did, that appellees submitted claims for payment to the Government at a time that they knowingly violated a law, rule, or regulation which was a condition for receiving payment from the Government.

Delaware healthcare providers must be more vigilant than ever in submitting claims to the Government under federal health care programs. To steer clear of potential FCA liability, Delaware health care providers must be in compliance with all the federal health care laws that they agreed to follow when entering into contracts with CMS; when dealing with Government, always turn square corners.

New Delaware Health Care Facility Inspection Law Goes Into Effect

2011-06-22T12:42:00.000-04:00

Just six weeks after Governor Markell signed into law HB 47 authorizing the Division of Public Health to investigate and inspect unsanitary or unsafe conditions in certain facilities where invasive medical procedures are performed, the Division shut down a Dover dermatology practice after receiving 10 complaints from patients and former employees of the Center for Dermatology. On Monday, June 15th, six investigators—three each from the Division of Public Health and the Division of Professional Regulation—arrived unannounced at the Center and, after spending most of the day there, ordered the practice to close. The unsafe conditions observed by the investigators included the use of unsterilized equipment such as scalpels, forceps and tweezers, health care staff failing to wash their hands before treating patients, and improper storage of controlled substances. The Division of Public Health was also concerned that the Center could not produce a written list of its safety policies and procedures.

HB 47 was introduced in the General Assembly in the wake of the publicity surrounding the case of Dr. Kermit Gosnell, a West Philadelphia abortion provider who is accused of murder in connection with the deaths of seven infants and was associated with clinics in Wilmington and Dover run by Atlantic Women's Medical Services. The bill gives the Division of Public Health authority to inspect and investigate facilities or health care practices (physicians, dentists, podiatrists, chiropractors) performing procedures in which anesthesia or sedation is or should be used upon receiving a complaint from a patient or the occurrence of an “adverse event,” e.g., death, serious injury, or the initiation of a criminal investigation. Facilities excluded from the bill are hospitals, freestanding birthing centers, freestanding surgery centers, and freestanding emergency centers.

HB 47 also authorizes the Division of Professional Regulation to investigate and inspect unsanitary and unsafe conditions maintained by individuals licensed by the Board of Medical Licensure and Discipline, and provides that maintenance of an unsanitary or unsafe condition is “unprofessional conduct” under the Medical Practice Act.

In light of these developments health care practices are well-advised to review their written safety policies and procedures and take measures to ensure that the procedures are followed.

Reverse False Claims-The Latest in False Claims Act Exposure

2010-11-24T11:46:00.003-05:00

Earlier this week, the Department of Justice announced that it had its second largest annual recovery of civil fraud claims in history, securing $2.4 billion in settlements and judgments in cases involving fraud against the government in the fiscal year ending Sept. 30, 2009. In making this announcement, Tony West, the Assistant Attorney General for the Civil Division, reiterated that “rooting out fraud” remains one of the Justice Department’s highest priorities.” The government thanked its partners in these recovery efforts, mentioning the cooperation it receives from whistleblowers, State Departments of Justice, Medicaid Fraud Control Units, and Congress.

The reference to Congress’ role in assisting with fraud recovery efforts cannot be minimized. With the enactment of the Fraud Enforcement Recovery Act of 2009 (“FERA”) and the Patient Protection and Affordable Care Act (“PPACA,” sometimes referred to as the Healthcare Reform Act) in March of this year, Congress has significantly expanded the scope of liability for individuals and entities that receive government funds.

As a result of these reforms, one area where we are seeing considerable exposure for healthcare providers is with “reverse false claims.” There is no longer any doubt that the knowing retention of Medicare and Medicaid overpayments can serve as the basis for False Claims Act liability.

Under PPACA, health care providers are required to “report and refund” any overpayment by within 60 days after the date on which the overpayment was identified (or the date any corresponding cost report is due, whichever is later). The definition of overpayment under PPACA includes any funds received or retained under Medicare or Medicaid to which the provider is not entitled. And PPACA expressly makes the retention of any overpayment an obligation under the False Claims Act.

The Justice Department’s announcement last week that “A top priority for this administration is fighting health care fraud.” should come as no surprise to healthcare practitioners. In fiscal year 2009, health care fraud recoveries reached $1.6 billion, two-thirds of the year’s total. With the recent expansion to the Justice Department’s arsenal of recovery weapons, we will continue to see an increase in recovery efforts. Now more than ever it is essential to be vigilant in avoiding risk related to billing and collections.

Responding to Subpoenas

2010-09-30T09:39:00.001-04:00

Recently there has been a surprising increase in the number of subpoenas served on health care providers. Fraud investigations, overpayment investigations, licensing board investigations, carrier audits, personal injury and workers compensation claims, all generate demands for production of records (and sometimes interviews). And while subpoenas have become commonplace for medical practices, the response to a subpoena cannot be treated lightly. A subpoena, particularly one issued by a government agency such as the Office of Inspector General, State Medicaid Fraud Control Unit, or Department of Justice, reveals the existence of an investigation and the potential for significant risk. Accordingly, every health care provider should be prepared to respond appropriately to service of a subpoena. Yet few health care providers have policies in place for responding to investigations.

We recommend that every healthcare provider implement a policy for responding to investigative demands. An effective policy will identify the primary concerns and decisions that result from a demand for production of records. Among the practical and strategic considerations triggered by receipt of a subpoena are: Who in the practice should respond to the subpoena? Does the subpoena request documents that should not be produced because of confidentiality concerns, because they may be protected by privilege or some other legitimate concern? Is the subpoena improperly broad? Should an attorney be consulted?

An effective policy serves as an essential checklist to assure that proper steps are taken to respond to the subpoena. The policy should ensure that one person or department is clearly identified as responsible for responding to the investigative demand. All employees must be aware that subpoenas should be immediately forwarded to the person or department in charge. Responses should be timely and complete. However, care should be taken to review the subpoena to ensure that it is not improperly broad. It is rarely beneficial to provide more information than is requested. And any response should ensure that confidential information, patient records and attorney/client privileged information in particular, are protected. Copies of anything produced should be retained and properly labeled to avoid subsequent confusion about what was produced.

A subpoena often announces an investigation of some kind, and information contained in the subpoena itself may reveal the nature and subject of the investigation. This information can be valuable to a provider, and the policy should identify the circumstances under which and the means by which the practice will conduct an internal investigation to quickly assess risk, rectify problems early and minimize exposure.

In light of increased enforcement efforts by both government and private payors, now is the time to establish a policy, or to review your practice’s existing policy, for responding to investigative demands to ensure your practice responds to such demands as efficiently as possible and in a manner consistent with the practice’s interests.

Delaware Enacts New Laws Impacting Medical Professionals

2010-07-13T15:25:00.003-04:00

In the wake of the investigation and prosecution of Dover pediatrician Earl Bradley on hundreds of counts of sexual assault and child molestation, the Delaware General Assembly passed a series of bills designed to enhance the effectiveness of regulators who license medical professionals and law enforcement officials charged with investigating and prosecuting crimes of abuse in Delaware, which bills were signed by Governor Markell on June 30, 2010. A summary of the bills can be found on the Governor's website at http://governor.delaware.gov/news/2010/1006june/20100630-legislation.shtml. Perhaps most significantly for physicians, the bills (1)require that there be another adult in the room when a physician is treating a person 15 years of age or younger and the child is disrobed or otherwise undergoing certain physical examinations, (2)provide for expedited suspensions of medical licenses if there is a threat to the public,(3) facilitate the ability of the Board of Medical Practice (now renamed the Board of Medical Licensure and Discipline) to obtain information from peer review panels, (4) impose stiffer sanctions for the failure to report physician misconduct, (5) require physicians to undergo background checks, and (6) require physicians to participate in training to recognize signs of child abuse.

Delaware Court Upholds Restrictive Covenant in Physician Employment Agreement

2010-06-10T15:46:00.002-04:00

In a recent Memorandum Opinion, Judge Herlihy of the Delaware Superior Court held that a restrictive covenant in a physician employment agreement that required the physician-employee to pay the medical practice employer $200,000 in liquidated damages if, during the 2-year period following termination of the agreement, the physician-employee practiced medicine or treated former patients of the employer within a 20-mile radius of the medical practice’s locations, is enforceable as a matter of law.

The medical practice, located in Sussex County, Delaware, employed the physician as an internist and pulmonologist, and it was undisputed that when he left the practice he breached the terms of the restrictive covenant by seeing former patients of the practice within a 20-mile radius of the practice’s offices. The Court held that the restrictive covenant complied with 6 Del. C. §2707, and that liquidated damages in the amount of $200,000 was a reasonable estimate of the damages caused by the physician’s breach of the restriction.

Whether the physician will actually be required to pay the practice liquidated damages, however, depends on whether the practice breached the employment agreement before the physician breached the restrictive covenant. The Court held that fact issues related to the employer’s alleged breach precluded summary judgment.

Health Care Reform Requires Immediate and Longer Lead Time Changes Regarding CT, MRI and PET Scans

2010-04-05T11:01:00.004-04:00

As we continue to review the recently enacted Patient Protection and Affordable Care Act, what is immediately striking is the broad range of regulatory requirements that will impact health care providers. Some of these requirements will not go into effect for a year or more. However, one requirement that became effective immediately upon the President signing the bill relates to in-office referrals for CT, MRI or PET scans. The Act requires a physician who refers an individual for CT, MRI or PET (which is being provided under the in-office ancillary services exception to the Stark Law) to “inform the individual in writing at the time of the referral that the individual may obtain the services for which the individual is being referred from a person other than” the referring physician or medical practice. In addition, any medical practice providing these diagnostic imaging services must “provide [their patient] with a written list of suppliers (as defined in section 1861(d)) who furnish such services in the area in which such individual resides.”

Again, this requirement is now in effect. Be aware that another recent change regarding CT, MRI and PET will soon impact health care providers. As required by the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), by Jan. 1, 2012, all suppliers of the technical component of advanced diagnostic imaging procedures must be accredited by an accreditation organization designated by the Secretary of Health and Human Services. MIPPA specifically defines advanced diagnostic imaging procedures as including diagnostic CT, MRI and PET scans.

The accreditation requirement applies to physicians, non-physician practitioners, and physician and non-physician organizations that are paid for providing the technical component of advanced imaging services under the Medicare Physician Fee Schedule. The accreditation requirement will apply only to the suppliers furnishing the imaging services, and not to the physician’s interpretation of the images.

CMS has designated three national accreditation organizations – the American College of Radiology (ACR), the Intersocietal Accreditation Commission (IAC), and The Joint Commission (TJC) - to accredit suppliers furnishing the technical component of advanced diagnostic imaging procedures.

CMS has promised to issue further guidance to suppliers about meeting the accreditation requirements. CMS plans to undertake a provider education outreach program to ensure that all affected suppliers understand the requirements and are able to comply with them prior to the Jan. 1, 2012 accreditation deadline.

As of February 22, Comply with HIPAA Breach Notification Rules or Face Sanctions

2010-02-04T16:44:00.002-05:00

The HITECH (“Health Information Technology for Economic and Clinical Health”) Act enacted last February imposed obligations on health care providers to notify patients if their protected health information was used or disclosed in a manner not permitted by HIPAA’s Privacy Rule. The U.S. Department of Health and Human Services published regulations which took effect in September 2009 specifying when and how providers have to notify patients of HIPAA breaches as well as recordkeeping requirements regarding reported HIPAA violations. When it published these “breach notification” regulations, HHS stated it would delay imposing sanctions for failure to comply with the regulations until February 22, 2010. So now is the time to familiarize yourself with the HITECH Act’s breach notification rules to avoid the prospect of hefty sanctions, ranging from a minimum of $10,000 up to $50,000 per violation, for willful neglect of the regulatory requirements.

Basically the breach notification rules require a health care provider to notify a patient if his/her protected health information (PHI) has been acquired, accessed, used or disclosed in a manner not permitted under HIPAA’s Privacy Rule which “poses a significant risk of financial, reputational, or other harm to the individual.” The form and manner of notification required under the regulations vary depending on whether a breach involves the PHI of fewer or more than 500 patients. There are certain good faith exceptions to the requirement to notify patients of PHI breaches.

The breach notification rules also require reporting of PHI breaches to HHS under certain circumstances, and impose an obligation on health care providers to document alleged HIPAA violations as well as the provider’s determination as to whether a breach occurred for purposes of the breach notification rules.

The key to compliance with the breach notification rules is establishing a procedure for receiving information about alleged HIPAA violations, evaluating whether a purported violation constitutes a breach for purposes of the notification rules, and documenting whether and how notification was provided. All documentation related to this procedure should be maintained in one location, preferably by one individual, in your practice. With February 22 just days away, it’s time to understand the HITECH breach notification rules and establish a procedure for complying with them.

The OIG issues its 2010 Work Plan

2009-10-02T16:54:00.005-04:00

The Office of Inspector General (“OIG”) has issued its Work Plan for fiscal year
(FY) 2010. (The effective date is October 8, 2009.) The OIG issues a Work Plan each year that describes activities that the agency plans to initiate or continue with respect federal health care programs. The full document can be located at the following link. http://oig.hhs.gov/publications/docs/workplan/2010/Work_Plan_FY_2010.pdf

However, A quick review of the Work Plan yielded the following observations.

● Sleep Studies-According to the Work Plan, Medicare payments for polysomnography increased from $62 million in 2001 to $215 million in 2005. So the OIG will examine the factors contributing to the rise in Medicare payments for sleep studies, as well as the appropriateness of Medicare payments for sleep studies.

● Epidural Injections-According to the Work Plan, Medicare Part B physician claims for transforaminal epidural injections increased by 130 percent between 2003 and 2007. So the OIG will review Medicare claims to determine the appropriateness of Medicare Part B transforaminal epidural injections as an interventional technique to diagnose or treat back problems.

● Use of the GY modifier-We have always been under the impression that many medical practices are unaware of the GY modifier, which is to be used for coding services that are statutorily excluded or do not meet the definition of a covered service. Apparently the code is more widely used than we believed. According to the OIG, in FY 2008, Medicare received over 75.1 million claims with a modifier GY totaling approximately $820 million. The OIG plans to examine patterns and trends for physicians’ and suppliers’ use of modifier GY.

● Independent Diagnostic Testing Facilities-Not surprisingly, IDTFs remain an area of concern for the OIG. A 2006 OIG review raised concerns with IDTFs, and suggested that Medicare had made improper payments of $71.5 million to IDTFs. With overutilization on everyone’s minds these days, it is not surprising that the OIG plans to review services and billing patterns in geographic areas with high concentrations of
independent diagnostic testing facilities (IDTF).

● X-Rays in Hospital Emergency Departments-Yet another recurring issue involves Medicare Part B claims for diagnostic x-rays performed in hospital emergency departments. According to the Work Plan, in 2007, Medicare reimbursed physicians approximately $207 million for imaging interpretations performed in emergency departments. The OIG plans to determine the appropriateness of payments for diagnostic x rays and interpretations.

As far as the OIG’s planned activities regarding Medicaid are concerned, drugs, drugs and more drugs. Among the issues the OIG plans to review are: Timely Submission of Average Manufacturer Price Data, Calculation of Average Manufacturer Prices, Recalculation of Base Date Average Manufacturer Prices, Rebates of Brand-Name Drugs, and several others.

However, the OIG also plans to review Medicaid payments for dental care. According to the OIG, in 2007, Medicaid costs for dental services totaled more than $3 billion. So it appears that the audits of dental practices providing care to Medicaid beneficiaries will continue.

The Office of Inspector General sets its sights on hospice care in nursing homes

2009-09-09T14:33:00.002-04:00

On September 8, 2009, the Office of Inspector General posted an eye-catching report on Medicare hospice care in nursing facilities. The OIG found that 82 percent of hospice claims for beneficiaries in nursing facilities did not meet at least one Medicare coverage requirement. The Medicare hospice benefit allows a beneficiary with a terminal illness to forgo curative treatment for the illness and instead receive palliative care. Medicare paid approximately $1.8 billion for these claims.

We have long subscribed to the belief that predicting where the government will focus its investigative resources is as simple as determining where the government feels it has the best chances of recovering overpayments. Based on the results of this report, we anticipate the government will be even more focused on monitoring compliance with hospice coverage requirements. According to the OIG report, studies suggest that the use of hospice care has grown most rapidly in nursing facilities. Skilled nursing homes, hospice care providers and the doctors who certify terminal illness requirements should read the report (http://www.oig.hhs.gov/oei/reports/oei-02-06-00223.pdf) and monitor their compliance with Medicare coverage requirements.

The report identifies several ways that hospice and skilled nursing providers frequently fail to meet Medicare coverage requirements. Eighty-one percent of claims did not meet at least one Medicare coverage requirement pertaining to election statements, plans of care, services, or certifications of terminal illness. In thirty-one percent of claims, hospices provided fewer services than outlined in beneficiaries' plans of care. Significant to the physicians who certify compliance, four percent of claims did not meet certification of terminal illness requirements.

Reports like the one issued by the OIG this week signal the existence of a well-stocked pond to folks who like to fish for False Claims Act cases. Government investigators and whistleblowers are likely to cast their lines in these waters. It is a good time for health care providers engaged in hospice care to carefully review their compliance with hospice coverage requirements and take the steps necessary to ensure compliance.

New Amendments to the Delaware False Claims Act May Signal More Claims Against Health Care Providers

2009-07-30T12:45:00.001-04:00

After more than two years of trying to pass a law amending Delaware’s False Claims and Reporting Act, the House and the Senate were finally able to pass a bill in the last days of the recent legislative session. Governor Jack Markell signed the bill into law late last week. The amendments to the Act provide the State enhanced financial incentives for pursuing False Claims Act recoveries. Accordingly, we expect the Delaware Department of Justice Medicaid Fraud Control Unit to step up its False Claims Act recovery efforts.

The changes to Delaware’s False Claims and Reporting Act were brought about by the federal Deficit Reduction Act of 2005, which contained provisions that created incentives for states to enact anti-fraud legislation modeled after the federal False Claims Act. The primary incentive offered by the federal government was an increased percentage of any False Claims Act recovery, meaning the State of Delaware would receive an additional 10% of any False Claims Act recovery if it brought its Act into compliance.

It took the General Assembly over two years (and several versions) to enact a bill.

The delay was in large part due to effective lobbying efforts of several organizations representing the interests of Delaware health care providers. As a result of their work, the current bill appears to meet the requirements of the Deficit Reduction Act of 2005, but does not contain several provisions that the Delaware Department of Justice (“DOJ”) had proposed.

Gone from the bill is the controversial provision creating a DOJ False Claims Act Litigation Fund that would have required the accused to finance the costs of the government’s investigation. Also removed from the final version of the bill was a section giving the DOJ broad investigative powers that would have permitted it to demand records without any requirement of demonstrating cause.

The new bill imposes an annual reporting obligation on the DOJ. Each year the DOJ will have to report, among other things, the number of cases filed under the Act during the previous calendar year and the total amounts recovered. We will now be able to see whether the enhanced financial incentives will generate more filings against health care providers.

Turning up the HEAT on health care fraud

2009-07-01T14:59:00.000-04:00

The United States Department of Justice and the U.S. Department of Health & Human Services have created an interagency team – the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”) – to increase both fraud detection and fraud prevention.

Significant to Delaware health care providers, HEAT will work with State Medicaid officials to conduct provider audits and monitor activities to detect fraudulent activities. HEAT has announced that it will use modern technology to complete in a matter of days analysis of electronic evidence that previously took months to analyze using traditional investigative tools.

Perhaps most significant among the announced HEAT initiatives is a new focus on using criminal prosecutions as a deterrent against health care fraud. Already, HEAT has announced filing criminal charges against 53 doctors for alleged fraud.

Additional HEAT initiatives include increasing compliance training for Medicare providers, improving communication between CMS and law enforcement, and focusing on suppliers of durable medical equipment. HEAT is also asking the public to get involved in the fight against fraud and has created a Web site (www.hhs.gov/stopmedicarefraud) and a tip line for reporting suspected fraud.

The joint announcement of the HEAT initiatives by Attorney General Holder and HHS Secretary Sebelius underscore the Obama administration’s commitment to health care fraud enforcement.