Health Care Lawyer Blog

The Centers for Medicare and Medicaid Services (CMS) has released a draft of the Proposed Rule on reporting Medicare overpayments. The Proposed Rule is expected to be published in the Federal Register on February 16, 2012.

The reporting provision, which was included as part of the 2010 Patient Protection and Affordable Care Act, requires health care providers to report and return Medicare overpayments within 60 days after the overpayment is identified, or the date any corresponding cost report is due. Significantly, providers who fail to do so are subject to liability under the Federal False Claims Act.

The reporting provision caused significant concern in the health care industry, as providers and their counsel scrambled to decipher when exactly the provision might apply. What constitutes an “overpayment”? When is an overpayment “identified”? What if a provider thinks he/she may have identified an overpayment, but needs more than 60 days to figure it out?

Continue reading " CMS Releases Proposed Rule on 60 Day Medicare Repayment Provision " »

A Washington state appellate court recently held that a hospital that failed to make a reasonable effort to obtain the facts underlying a physician’s suspension or give reasonable notice of the same lost its statutory immunity under the Health Care Quality Improvement Act (HCQIA). The decision is notable because even though the plaintiff physician’s suspension lasted for a very short time, the court still held that the hospital’s hasty actions were enough to deprive it of protection from the physician’s lawsuit.

In Smigaj v. Yakima Valley Memorial Hospital Association, Dr. Diana Smigaj was an obstetrician/gynecologist (obgyn) who was on the medical staff of Yakima Valley Memorial Hospital (the “Hospital”). After concerns arose regarding the quality of care provided by Smigaj, a peer review committee at the Hospital recommended the suspension of her medical staff privileges. The medical chief of staff agreed and notified Dr. Smigaj of the suspension; however, the Hospital’s Medical Executive Committee (“MEC”) reinstated her privileges 11 days later. The reinstatement was not retroactive.

Accordingly, Smigaj sued the Hospital and several physicians/administrators, claiming that the suspension was arbitrary and capricious, motivated by gender discrimination and anticompetitive bias, a breach of the hospital’s bylaws, and a breach of contract and fiduciary duty.

The trial court granted the Hospital’s motion to dismiss, finding that it was entitled to immunity under HCQIA. However, the appellate court reversed.

HCQIA generally affords hospitals immunity for “professional review actions” so long as the following conditions are met:
1) The professional review action was taken in the reasonable belief that it was in furtherance of quality healthcare;
2) The professional review decision was made after a reasonable effort to obtain the facts;
3) The physician received adequate notice and procedures that are fair under the circumstances;
4) The action was taken in the reasonable belief that, under the facts known, a suspension was warranted.

After the jump - why HCQIA did not apply

Continue reading " Appeals Court Holds Wa. Hospital Not Entitled to HCQIA Immunity in Physician Suspension Suit " »