This installment of Hall Render's Health Law Broadcast series on health care reform is designed to provide you with the insight, analysis and practical suggestions with respect to the various reform initiatives that will affect your organization.  

HIGHLIGHTS FROM HEALTH CARE REFORM LEGISLATION'S CRACKDOWN ON FRAUD AND ABUSE (AND DON'T WORRY, THE LEGISLATING ISN'T OVER YET)

The Patient Protection and Affordable Care Act and its related amendments (PPACA) significantly upped the fraud and abuse ante for health care providers receiving payments from federally funded health care programs. Though the ink is barely dry on the PPACA, federal lawmakers seem intent on taking further actions to strengthen Medicare and Medicaid fraud and abuse enforcement.

Patient Protection and Affordable Care Act Changes

The PPACA made extensive changes to current fraud and abuse laws. Some of the most noteworthy fraud and abuse changes found in the PPACA include: 

• Amending the Federal Stark Law to limit expansion of existing physician-owned hospitals and to prevent future development of physician-owned hospitals unless already under construction.
• Weakening the "intent" requirement under the criminal health care fraud statute and the federal Anti-Kickback statute (AKS) by establishing that a person need not have actual knowledge of the statutes nor specific intent to commit a violation (eliminating an important check on governmental powers under the laws).
• Imposing new transparency requirements on certain sectors of the health care industry.
• Imposing new disclosure requirements on physicians who refer patients for certain in-office imaging and other designated health services.
• Providing for the suspension of Medicare and Medicaid payments during an investigation of a credible allegation of fraud (unless Health and Human Services (HHS) determines there is good cause not to suspend payments).
• Imposing new reporting and return requirements for overpayments (and making violations of the overpayment requirements a potential False Claims Act issue).
• Expanding the Recovery Audit Contractor (RAC) program.
• Increasing penalties under federal sentencing guidelines.
• Adding new provider screening requirements.
• Expanding Civil Monetary Penalties (CMP) liability.
• Placing additional requirements on professionals issuing certifications for home health services or orders for DME (and allowing  HHS to apply similar requirements to other Medicare items and services based upon a finding that doing so would reduce the risk of fraud, waste, or abuse).

Additionally, and perhaps most importantly for the health care industry over the long-haul, the PPACA significantly, and in non-obvious ways, expanded the investigative tools, powers and funding available for governmental and private enforcement of existing fraud and abuse laws.

Though as of today most health care providers have not had time to digest the provisions of the PPACA relevant to their practice models, lawmakers in D.C. are already proposing further interventions.

With the recent federal focus on fraud and abuse in Florida, it is unsurprising that some of the first post-PPACA fraud and abuse legislation is being sponsored by two Southern Floridians.  Co-sponsored by Florida Reps. Ileana Ros-Lehtinen (R) and Ron Klein (D), the Medicare Fraud Enforcement and Prevention Act (MFEPA) would, if passed, toughen criminal and financial penalties and provide further tools for the government to fight health care fraud and abuse.

Significantly, MFEPA would:

If passed, MFEPA would further strengthen law enforcement authorities' powers to enforce fraud and abuse prohibitions.

With so much of the debate over health care reform focusing on fraud and abuse issues, and the government desperately looking for ways to trim health care costs, it was predictable that the PPACA was not meant to be the last word on the subject. Health care providers should stay abreast of this ever-changing field, and should be prepared to give input to lawmakers as new statutory schemes are developed.

Should you have questions regarding these issues, please contact Clinton R. Mikel at (248) 740-7505 or cmikel@hallrender.com; Susanne E. Kozlow-Barnes at (248) 740-7505 or sbarnes@hallrender.com; or your regular Hall Render attorney. 

Visit our Health Law Broadcast at hallrender.com/reform for a comprehensive listing of health care reform resources.  Also sign up for health care reform alerts and periodic updates as we continue to monitor this important issue.