Health Care Lawyer Blog

As a blogger, I do so enjoy occasions where government officials confirm my observations.

For example, last Wednesday I posted on how health care reform legislation should focus on combating fraud as a way to reduce the rapidly escalating costs of care. On Thursday, during the National Summit on Health Care Fraud held in Bethesda, Maryland, Attorney General Eric Holder disclosed that Justice Department records show that efforts to combat health care fraud have stalled in the past two years.

Holder stated that two years after the federal government ramped up its efforts to combat Medicare fraud, the number of people charged with such fraud has barely changed. Specifically, federal prosecutors have charged 803 people with defrauding medical insurers in FY 2009. (Nearly all of the charges involved Medicare fraud.) This number represents a mere 2 percent increase since the government began deploying “strike forces” to target fraud in 2007.

The 2007 strike force targeted fraud in Miami, and following the inception of the Miami program the number of people charged with health care fraud leaped nearly 35 percent. The strike force program, also known as the Health Care Fraud Prevention & Enforcement Action Team or HEAT, has since been expanded to six other cities (Detroit, Houston, Los Angeles, Baton Rouge, New York, and Tampa). Strike force efforts in the latter three cities began in December of 2009.

Notably, according to Louis Saccoccio, head of the National Health Care Anti-Fraud Association, many of the charges constitute “low hanging fruit” and while the government has generally done a good job targeting fraud, there are many undiscovered cases.

During the Summit, Attorney General Holder noted that fraud costs Medicare an estimated $60 billion a year. This is number is significantly higher than reports from the FBI, which estimates that combined fraud in all health care programs eats up 3-10 percent of total health care spending. Since the operating costs for the Medicare program in FY 2008 ran around $460.9 billion, $60 billion in losses would mean that fraud accounts for 13 percent of the Medicare budget.

After the jump - where anti-fraud efforts will be directed

Continue reading "Anti-Health Care Fraud Efforts Stalled, According to AG" »

It’s no secret that the health care reform legislation steamrolled through Congress late last year has lost much of its momentum. Although the headline-seizing GOP victory in Massachusetts last week only means the loss of one single Senate seat, political commentators and lawmakers have acknowledged this virtually eliminates the chance of a final health care reform bill being passed anytime soon. Indeed, last Tuesday’s events in a tiny state of only 6.5 million has thrown Capitol Hill into a tailspin, with many viewing it as a catastrophic failure of the Democratic party and Newsweek’s latest cover story referring to Obama as the “stymied President of 2010.”

What’s devastating and frustrating is that while everyone agrees the current health care system doesn’t work, apparently no one will agree or take action on how to fix it. Even the anti-health care fraud legislation introduced last year by Senators Ted Kaufman (D-Del.) and Charles Grassely (R-Iowa) hasn’t advanced since October 28 and November 16, respectively, when the bills were referred to Senate committees. Is America so far politically divided that we can’t even agree that unscrupulous practitioners stealing health care funds is wrong and needs to be stopped?

After the jump - why health care fraud affects everyone

Continue reading "Editorial: Stopping Fraud Should Be A First Step in Health Care Reform" »

Each year, the proposed Medicare Physicians Fee Schedule (MPFS) rates threaten to take a nosedive, and each year Congress has stepped in to prevent those cuts from occurring. The 2010 MPFS (originally slated to take effect January 1, but subsequently delayed until February 28) contain cuts of 21.1 percent, which are the most significant since 1992. The Fee Schedule is based on Medicare’s sustainable growth rate (SGR), a formula which is based on the economy’s health and has threatened cuts to physician payments every year since 2003.

The proposed 2010 cuts apply to all practice areas, although those expected to be the most affected include reumathologists, surgeons, pain management specialists, radiologists, and non-invasive cardiologists. For example, payments for echocardiography procedures are expected to plummet 35.5 percent, and payments for MRI spine lumbars will drop around 20.93 percent.

Groups such as the AMA and AARP claim (not surprisingly) that linking physician reimbursement to the country’s gross domestic product growth is a mistake – specifically, such groups argue that the cost of running a medical practice typically grows at a higher rate than the GDP.

The versions of the House and Senate health care reform bills both replace versions of the MPFS with raises – 1.2 percent and .5 percent, respectively. The Senate bill is a one-year “patch” which only defers the program cuts to 2011. The House bill essentially erases accumulated SGR debt and gives physician a 1.2 percent raise based on the Medicare Economic Index, which measures inflation in physician-practice costs. This solution would add more than $200 billion to the federal deficit by wiping out the accumulated SGR debt.

With fate of both the House and Senate health care reform bills unclear after last week’s Massachusetts election, a separate vote may be needed to delay or cancel the 21.2 percent cut. The Senate is expected to vote on a debt-ceiling bill that would contain a permanent fix to the SGR and repeal the physician payment formula.

While news of health care reform has taken a backseat lately to fallout from the Dec. 25 terrorist attempt and the Haiti earthquake, Congressional leaders are continuing efforts to merge versions of the House and Senate health care bills passed last year.

One notable cut took place Saturday, when Nebraska Democratic Senator Ben Nelson agreed to drop the federal subsidy for Nebraska’s Medicaid program. Dubbed the “Cornhusker Kickback”, the subsidy gave special treatment to Nebraska’s Medicaid program in order to induce Nelson to cast the all-important 60th vote needed to defeat a Republic filibuster and pass the Senate health care bill. Given that the CBO estimated that the “Kickback” would cost taxpayers an additional $100 million over ten years, the compromise was not a popular one. Nelson agreed to drop the subsidy, reasoning that it had become a “sticking point” in the negotiations.

Despite winning Nelson’s vote, the Senate may have more problems ahead. Polls show that Massachusetts Attorney General Martha Coakley, the Democratic candidate running for the late Ten Kennedy’s (D-Mass) Senate seat, is slightly behind her Republican opponent, Republican State Senator Scott Brown. If Brown wins and Kennedy’s seat goes to a GOP member, the Senate may again lack the 60 votes needed to pass the health reform bill when it comes out of committee.

After the jump - House/Senate compromises continue

Continue reading "Update on Health Care Reform Legislation" »

If corrupt physicians and other health care providers submitting false claims to Medicare and Medicaid themselves wasn't bad enough, there's a new twist to the health care fraud scheme. According to a CNN.com article today, a new fraud trick where hospital administrators or physicians' assistants actually sell patient data to organized crime groups has become increasingly common.

The crime groups then use patients' medical insurance data and social security numbers to bill Medicare (and private insurers too) for drugs, equipment and treatment which was never actually prescribed. To collect the money, the fraudsters set up "shell" companies which can dissapear easily at the hint of a government investigation. Some criminals even sell patient insurance information to uninsured individuals who are desperate for medical care.

If there are no unscrupulous providers around to sell the information, many crime groups hack into digital medical records in order to siphon patient information. Unfortunately, such crime trends may be on the rise as the use of electronic health records increases.

Bottom line - we not only have to worry health care fraud, but identity theft too. Here's hoping that the increased HIPAA penalties will encourage health care providers to keep patient information safe.

By now, everyone knows (or should know) that under the Stimulus Bill, health care providers are required to make “meaningful use” of electronic health records (EHRs) by 2011 or face penalties in the form of reduced Medicare/Medicaid payments. What has been unknown until recently is what exactly “meaningful use” actually means.

The Centers for Medicare and Medicare Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) issued two proposed regulations December 30, 2009 outlining the terms of the EHR incentive programs, and identifying how providers can make “meaningful use” of EHR and the standards and specifications that will be used to develop “certified” EHR technology.

Both regulations are open to public comment until on or about March 2, 2010 and will take effect sometime in early 2010.

Here are some highlights from the regulations:

Definition of Meaningful User

CMS’s proposed rule defines the term “meaningful user” as an eligible professional or eligible hospital that, during the specified reporting period, meets the following three requirements:
(1) Demonstrates use of certified EHR technology in a meaningful manner;
(2) Demonstrates to the satisfaction of the Secretary that certified EHR technology is connected in a manner that provides for the electronic exchange of health information to improve the quality of health care such a promoting care coordination, in accordance with all laws and standards applicable to the exchange of information; and
(3) Using its certified EHR technology, submits to the Secretary, in a form and manner specified by the Secretary, information on clinical quality measures and other measures specified by the Secretary.

Both the CMS and ONC guidelines make clear that a major consideration of whether “meaningful use” is achieved will be a provider’s ability to securely exchange information among providers, and between providers and patients, using standardized data elements and technologies. The interim final rule issued by ONC set forth these standards and specifications on how to achieve meaningful use; for example, one recognized problem is how providers using EHR actually report patient data. For instance, one provider’s EHR program may list patient demographic information as (PatientAge, Patient Sex, Patient Address), while another provider’s may list similar information in a different way (Date of Birth, Gender, City/State). In order to achieve maximum interoperability, these information models must be reconciled.

After the jump - a phased approach to implementation

Continue reading "CMS/OCN Issue Proposed Definition of “Meaningful Use”, Set Standards for Electronic Health Records" »

The personal health information of thousands of Detroit area patients was compromised recently when five computers and a flash drive were stolen from the Herman Kiefer Health Center in downtown Detroit. The stolen devices contained electronic medical records for approximately 10,000 immunization program patients, including names, addresses, social security and Medicare/Medicaid numbers.

Following this electronic medical records security breach, many health care providers may be wondering how they would respond to a similar crisis. In light of the Congressional push to require health care providers to make “meaningful use” of electronic health records by 2011, the prevalence of electronic records is on the rise and will only increase in coming years. Additionally, the proper handling of such breaches has become even more crucial in light of the security breach notification requirements that were added last year to the Health Insurance Portability and Accountability Act (“HIPAA”).

Given that a medical records security breach is enough to send even the most seasoned health care provider into a panic, practitioners should familiarize themselves with the HIPAA breach notification requirements and establish written policies and operating procedures before a breach occurs. Importantly, providers who fail to adhere to the HIPAA breach notification requirements may face penalties of anywhere from $100 to $1.5 million, depending on the nature of the breach and the mental state of the provider.

After the jump - a crucial checklist for providers

Continue reading "Responding to an Electronic Medical Records Security Breach: What Every Health Care Provider Needs to Know" »

This morning, the United States Senate voted 60-39 for passage of the Senate health care reform bill, a.k.a. the “Patient Protection and Affordable Care Act”. As with Monday’s cloture vote, the bill’s passage was completely divided down the party line, with every single GOP member (with the exception of Kentucky Senator Jim Bunning, who abstained from voting) opposing the bill. The bill will now head to a conference committee, where it will be merged with the reform bill passed by the House of Representatives last month. Both chambers will then vote on the merged bill, which will then be presented to President Barack Obama for signature.

In the hours after the vote, defeated GOP Senators such as Minority Leader Mitch McConnell (R-Kentucky) lambasted the legislation, citing poll figures which show a slight majority of the public is opposed to the Senate Bill.

“There is widespread opposition to this monstrosity,” McConnell said after this morning’s vote. “The fight isn’t over.”

Legislation which appeases everyone is, in most cases, impossible and there are bound to be dissenters in any Congressional action. However, given the unusual levels of misunderstandings, rumors and public outcry which has surrounded the health care reform debate, one can’t help but wonder – is the American public really opposed to the actual content of the health care reform legislation as it stands, or are they just opposed, period?

After the jump - reflections on the health care reform debate

Continue reading "Editorial: “The Devil I Know is Better than the Devil I Don’t”" »

Despite the fireworks caused by the night-owl Senate vote for cloture on the “Patient Protection and Affordable Care Act” by a margin of 60-40, the real questions remains – what is health care reform going to mean for America? While the Senate and House versions of health care reform legislation are similar in scope, bills contain significant differences in how the legislation will be paid for.

The hotly-contested Senate bill, which does not contain the “public option” insurance coverage provision in its House counterpart, was heralded by President Obama this morning as “a big victory for the American people.” However, given the call for bi-partisanship that emanated from last year’s presidential election, the vote was not a political victory. The vote was so evenly divided down party lines, with every single Republican Senate member opposing the bill, that Democrats were forced to coax votes from waffling Senators such as Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.) by slicing provisions from the legislation. Specifically, in order to garner Nelson’s vote, amendments were made to the bill’s abortion provisions and a provision was added requiring the federal government to cover Nebraska’s costs for expanded Medicaid coverage after 2016. (No other state is currently slated to receive this benefit.) Additionally, the public option and Medicare expansion program was jettisoned to appease Lieberman and middle-of-the-road Democrats.

The Senate will hold additional procedural votes on the health care bill this week, and a final vote is scheduled for Christmas Eve. If the bill passes (as expected), the Senate version will then head to a conference committee, where it will be merged with a House health care bill passed last month. Both the House and Senate will then have to approve the final version before it goes to President Obama to be signed into law.

Comparing the House and Senate Versions

Both the House and Senate versions require nearly all individuals to maintain a minimum level of health insurance or pay a penalty, with the House version calling for a penalty of 2.5 percent of adjusted gross income over a certain level ($9,350 for singles and $18,700 for couples). Individuals who cannot afford health insurance will receive subsidies to do so. The House bill provides for the creation of a single-payor, government run insurance plan where individuals can obtain coverage; the Senate bill would instead create new nonprofit private plans overseen by the federal government.

After the jump - comparing the House and Senate bills (continued)

Continue reading "Senate Votes for Cloture on Health Care Reform; Bill Inches Towards Final Vote" »

Senator Joe Lieberman (I-Conn.) claims that the Democrats are short two votes needed to pass the healthcare reform bill currently pending in the Senate. As previously reported, without GOP support Democrats need all 60 votes to defeat a Republican filibuster – a seemingly impossible task, given that no GOP member supports the bill in its current form.

In an interview Sunday with “Face the Nation,” Lieberman claims that provisions in the bill which expand the Medicare program, create a national public option, and begin a new publicly administered long-term care insurance program are thwarting the legislation. If left out, however, Lieberman said the bill could gain votes. He added that even if the provisions were dropped, the remaining legislation is solid enough to improve the health care infrastructure and make significant changes.

Sen. Ben Nelson (D-Neb.) also appeared with Lieberman on “Face the Nation” and echoed the independent senator’s sentiments. Nelson added that he is concerned that a Medicare buy-in provision (i.e., allowing adults in their 50s and early 60s to buy into Medicare as a way to expand their coverage options) would be a “forerunner of [a single-payor program]” and that stronger anti-abortion language is needed in order to gain his vote.

Non-smokers in Michigan can finally breathe easy – literally.

Effective May 1, 2010, all restaurants and bars in the state will be required to be smoke-free following legislation that was passed by the Michigan House and Senate Thursday. The bill (H.B. 4377) is headed to the desk of Governor Jennifer Granholm, who has stated that she intends to sign it.

Efforts to pass the non-smoking legislation were log-jammed for years by groups who claimed such laws would affect business owners’ autonomy, or have an adverse impact on casino business. The approved bill does not apply to Indian gaming casinos, and allows smoking on the gaming floors of other casinos, but not in casino bars, restaurants or hotels. Also exempt are tobacco specialty shops and existing cigar bars that have humidors and derive at least 10 percent of their revenue from the sale of cigars. The legislation does not permit new cigar bars to open.

Affected establishments are required under the legislation to remove all ashtrays from the business premises by May 1, and post signs that smoking is not allowed. In the event a patron does choose to light up, the penalties will be assessed against the smoker, and not the establishment. Violating the smoking ban counts as a civil infraction, with the first violation resulting in a $100 fine and subsequent violations in a fine of up to $500.

After the jump - author's comments on the legislation.

Continue reading "Michigan Bars, Restaurants to be Smoke-Free By May 2010" »

The Sixth Circuit Court of Appeals issued an interesting opinion last week regarding the standard of causation required to prove that a health care practitioner’s fraudulent practices resulted in the death of a patient under 18 U.S.C. §1347(2). In United States of America v. Martinez, Case Nos. 06-3882/4206, the Sixth Circuit held that where the death of a patient is a “natural and foreseeable result” of a defendant’s violation of the health care fraud statute, a defendant may be held criminally liable under the statute.

In Martinez, the Federal Bureau of Investigation (FBI) began investigating the defendant anesthesiologist, Dr. Jorge A. Martinez, for health care fraud in the summer of 2002. Martinez operated a pain-management clinic in Parma, Ohio, where he regularly prescribed controlled substances and administrated injections for pain relief and billed private insurance carriers, Medicare, Medicaid, and the Ohio Bureau of Workers’ Compensation. The Government’s investigation revealed that Martinez engaged in fraud by omitting physician examinations, giving his patients more injections than were medically necessary or advisable so as to boost billings and leave them dependent on such drugs, and conducting “quickie” office visits where he saw a patient for only 2 or 3 minutes then billed for a much longer visit.

At trial, the government presented evidence that Martinez’s administration of injections to patients far exceeded the state average for pain-treatment doctors in Ohio. The Government also showed that on the days the patients received injections, Martinez only gave his patients an average of 4.14 shots in one visit, while the statewide average was 1.18; and that Martinez saw many more patients per day than other doctors, which evidenced that Martinez provided substandard medical care. This was supported by numbers from practice sign-in sheets, and testimony from Martinez’s staff saying that he frequently spent only two to five minutes with patients during appointments. An expert also opined that a doctor who was properly treating patients for pain could not possibly see that number of patients each day.

Continue reading "Sixth Circuit Sets Out Standard of Causation to Prove Death from Health Care Fraud" »