Friday, June 21, 2013

Know Your People: OIG Issues New
Special Advisory Bulletin on Excluded Persons

The Office of the Inspector General of the Department of Health and Human Services has released a Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs. The Bulletin, issued May 8, 2013, supersedes and replaces a similar bulletin from 1999. It describes the scope and effect of the legal prohibition on payment by Federal health care programs for items or services furnished by excluded persons. The Bulletin also highlights the importance of rigorous screening for excluded persons and provides practical guidance on the frequency and scope of screening that the OIG expects.

Exclusion; Penalties
The OIG has the authority to exclude people or entities that have committed various violations from participation in Federal health care programs such as Medicare or Medicaid. The effect of OIG exclusion is that no Federal health care program payment may be made for any items or services furnished (1) by an excluded person or (2) at the medical direction of an excluded person. If a health care provider arranges or contracts - by employment or otherwise - with a person that the provider knows or should know is excluded, the provider may be subject to civil monetary penalties (CMPs) to the extent that the excluded person provides services payable, directly or indirectly, by a Federal health care program. CMPs can be as high as $10,000 for each item or service furnished by the excluded person, and an assessment of up to three times the amount claimed can be imposed. Other civil or criminal penalties may apply as well.[1]

Thursday, June 13, 2013

EHR Systems: Contracting for Change

Earlier, I discussed the recent decertification of two EHR Technology systems previously certified under ONC standards and, therefore, ineligible for use to meet “meaningful use” requirements.  Recently, these products failed a retest conducted by an ONC-authorized certification body.  The decertification was the first following the push to adopt EHR Technology to qualify for meaningful use incentives and to avoid an eventual reduction in Medicare program reimbursement.

An ONC decertification announcement is certainly a concern for healthcare providers that have purchased and implemented EHR Technology at great expense.  But there are ways providers can protect their organizations and mitigate the legal risks associated with an ONC decertification.

EHR Systems: Is Certification Ever Certain?

The 2009 Health Information Technology for Economic and Clinical Health Act provides the Department of Health & Human Services with the authority to establish programs to improve healthcare quality, safety, and efficiency through the implementation of health IT, including electronic health record technology. Under HITECH, eligible providers can qualify for Medicare and Medicaid incentive payments when they adopt certified EHR technology and use it to achieve specifically outlined objectives, known as “meaningful use requirements.”

To be eligible for meaningful use incentives, healthcare providers must use “certified” EHR Technology.  The Office of the National Coordinator for Health Information Technology is responsible for issuing the rules that establish the standards EHR Technology must meet to be certified and therefore eligible for meaningful use incentives.  ONC also appoints technology review bodies authorized to test and certify EHR Technology for compliance with ONC standards.

Tuesday, June 11, 2013

OIG Updates Self-Disclosure Protocol,
But Discourages Action

On April 17, 2013, the Office of Inspector General (“OIG”) issued an updated Provider Self-Disclosure Protocol (“SDP”). The initial protocol was created in 1998 (“’98 version”) with the goal of having providers voluntarily identify and disclose potential federal health care program fraud and work with the OIG to resolve the identified abuses. Specifically, the SDP offered guidance to providers (both individuals and entities) on how to investigate conduct, quantify damages, mitigate potential penalties, and report to OIG.  Further guidance came in a series of OIG Open Letters to the health care industry in 2006, 2008, and 2009. The updated SDP provisions supersede both the original version and the subsequent Open Letters.

OIG boasts that, since its inception, the SDP has led to over 800 disclosures and a recovery of more than $280 million for the federal health care programs. Those numbers, while impressive, are a drop in the bucket compared to the $25 billion the Department of Justice (“DOJ”) has recovered in prosecuting criminal and civil health care fraud during the same time frame. Given human nature, self-disclosure of potential wrongdoing is not a popular practice, but it appears that the new OIG updates only add to the difficulty of having providers willingly come forth. In today’s post, I’ll provide a brief overview of the updated eligibility and disclosure requirements.

OIG Updates Self-Disclosure Protocol,
But Discourages Action (continued)

On Tuesday, the changes to eligibility and disclosure requirements for the OIG’s Self-Disclosure Protocol (“SDP”) were discussed. Now, let’s take a look at certain disclosures and what has changed from the ’98 version.

Disclosures Involving Excluded Persons
Many SDP disclosures involve violations of employing or contracting with individuals who are on OIG’s List of Excluded Individuals and Entities (“LEIE”).  With the update, OIG has specified what is needed for a complete disclosure of this violation. A disclosure must include, among other things, biographical information on the excluded party, description of the disclosing party’s screening process, and a description of how the conduct was discovered.  The disclosing party must also screen all current employees and contractors against the LEIE.