Posts in Healthcare Fraud & Abuse.
Colorado's Peer Review Privilege in Peril

The confidentiality of medical staff peer review has long been a cornerstone of hospital operations, fostering an environment where physicians can candidly evaluate medical care without the looming specter of malpractice exposure.  But this established norm is facing a new threat in Colorado, where a ballot proposal aims to gut peer review confidentiality.

The Foundation of Peer Review Confidentiality

Peer review is a process in which physician conduct that endangers patients within a hospital can be immediately reviewed by peers.  Peer review’s goal is to promote continuous ...

California’s new Office of Health Care Affordability recently adopted emergency regulations (Final Regulations) implementing the Health Care Market Oversight Program, required under California’s Health Care Quality and Affordability Act (HCQAA). HCQAA, which created the Office of Health Care Affordability (OHCA), requires “health care entities” to provide written notice of certain “material change transactions” to OHCA. (Cal. Health & Safety Code § 127500 et seq.) OHCA may then conduct a cost and market impact review (CMIR), with the overarching goal of ...

Managed Care Plans Take Note: OIG’s Managed Care Strategic Plan

With the tremendous growth of managed care over the last several years, the Medicare and Medicaid programs have had to transform how they fund health care for approximately 100 million enrollees. According to the Department of Health & Human Services’ Office of Inspector General (OIG), 2022 saw half of Medicare enrollees receive coverage through Medicare Advantage plans. As a result, government spending on Medicare Advantage was $403B, or about 50% of all Medicare funds. Similarly, 81% of current Medicaid enrollees receive some component of their coverage through managed ...

Introducing Nossaman’s Newest Podcast: Legal Prescriptions

We are excited to announce the launch of our newest podcast, Legal Prescriptions. This audio series will explore recent developments impacting healthcare companies and professionals, including legislation, reform, managed care, litigation, regulatory compliance and privacy. In addition to the innovative minds at Nossaman, we look forward to welcoming industry experts to the conversation to lend their perspectives.

In our flagship episode, I chat with John Puente, who served as Deputy Director and Chief Counsel to the California Department of Health Care Services (DHCS ...

CA DHCS Announces New MLR Requirements on Subcontractors, Including IPAs, RBOs and RKKs

California’s Department of Health Care Services (DHCS) is in the final stages of establishing new Medical Loss Ratio (MLR) requirements in Medi-Cal Managed Care. Most significantly, the guidelines specify that the MLR program, which previously applied to Medi-Cal managed care plans, will now also apply to certain of their subcontractors, including risk-bearing providers. … 

California Health Plans and Insurers, It’s Time to Prioritize Mental Health Parity Compliance

A recent California First District Court of Appeal (“Court”) decision, Futterman v. Kaiser Foundation Health Plan, Inc., (“Futterman”) has shed light on potential liabilities for noncompliance with the State’s mental health parity requirements.1

As background, the COVID-19 pandemic served as a catalyst for increasing already soaring behavioral health care demand, by intensifying mental health and substance use conditions across the country. In a 2020 survey by the California Health Care Foundation, Californians ranked mental health treatment as their top ...

Proposed Changes to the Health Breach Notification Rule

On May 18, 2023 the Federal Trade Commission (FTC) released a Notice for Proposed Rule Making (NPRM) for updates to the Health Breach Notification Rule, 16 C.F.R. Part 318 (the Rule). The Rule serves to ensure entities that are not defined as Covered Entities under the Health Insurance Portability and Accountability Act (HIPAA) are nevertheless accountable when the sensitive health information of consumers is compromised and that entities cannot conceal breaches from consumers. The Rule imposes notification requirements for a breach of unsecured identifiable health ...

A Friendly Reminder: Friendly PC Arrangements are Subject to Scrutiny

As healthcare grows increasingly complex, delivery structures continue to evolve.  A popular arrangement is the “Friendly PC” model, where large medical groups are backed by private equity or health system investment and administrative support.  But courts and lawmakers have become concerned that certain Friendly PC arrangements encroach on physician autonomy and violate the century-old prohibition on the corporate practice of medicine (“CPOM”).  A recent lawsuit—American Academy of Emergency Medicine Physician Group, Inc. v. Envision Healthcare Corporation ...

DOJ Broadly Applies New Kickback Law Beyond Its Original Opioid-Related Purpose

On October 24, 2018, Congress passed the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (the “SUPPORT Act”), two sections of which constitute the Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”). EKRA was codified at 18 U.S.C. § 220.

Similar to the Anti-Kickback Statute, EKRA was enacted to address abusive payment arrangements but intended for the context of opioid epidemic treatment and recovery efforts. Specifically, EKRA prohibits the knowing and willful (1) solicitation or receipt of ...

SCOTUS Stretches the Statute of Limitations Period for False Claims

The U.S. Supreme Court is now in its summer recess and we anecdotally have heard of Justice “sightings” in Europe and beyond.  This last session of the Court addressed many issues capturing both the political and popular imagination.  Less headline-grabbing and relatively modest in length (at only nine pages) was Justice Clarence Thomas’ opinion for a unanimous Court in Cochise Consultancy, Inc. et al. v. U.S. ex rel. Hunt.  (587 U.S. ____ (2019))  It directly impacts our healthcare compliance practice here at Nossaman by interpreting the statute of limitations for a False Claims Act (“FCA”) case so as to stretch it as long as possible.

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A Civil Investigative Demand, often referred to as a CID, is a pre-litigation mechanism used to collect information and evidence for use in civil false claims act and other investigations. CIDs are typically lengthy documents, broadly drafted, invasive, and even frightening. In the past decade since the passage of the Fraud Enforcement and Recovery Act of 2009, CIDs have been issued at exponentially higher rates than in years past, and have become more comprehensive and more aggressive.

While this post will focus on Department of Justice CIDs in federal health care cases, CIDs are ...

2018 Bipartisan Budget Act Revises Stark Law Regulations - Part II

This is the second installment of a two-part series on the Bipartisan Budget Act. Part I discussed the Bipartisan Budget Act’s effect on Medicare Advantage health plans.

The Bipartisan Budget Act of 2018 (the Act), signed into law on February 9, 2018, contains an amendment that should cause physicians and healthcare providers to take note. Section 50404 of the Act, titled Modernizing the Application of the Stark Rule under Medicare, codifies recent Centers for Medicare and Medicaid Services (CMS) regulations and corresponding preamble that went into effect on January 1, 2016 ...

2018 Bipartisan Budget Act: Greater Access, Innovation, and Technology in the Administration of Medicare Advantage Plans - Part I

This is the first installment of a two-part series on the Bipartisan Budget Act. Part II will discuss the Bipartisan Budget Act’s effect on the federal Stark Law.

Prior to adjourning for spring recess, Congress passed and the President signed into law on March 23, 2018, omnibus appropriations legislation that funds the government for the remainder of the fiscal year – through September 30. As part of the earlier negotiations to reach the budget deal, Congress passed and the President signed into law on February 9, 2018, the Bipartisan Budget Act, which included dozens of ...

Last Thursday, a jury in federal district court in St. Louis handed down a verdict in a False Claims Act (FCA) case that presents a laundry list of the challenges which can arise in a FCA case.  This one includes kickback allegations, Stark issues, both state and federal claims, individual liability, civil-criminal cooperation, a criminal indictment (later dropped), and even family law.  The defendants are neurologist, Dr. Sonjay Fonn, and his fiancee of nine years, Deborah Seeger, as well as their respective medical practice and medical device distributorship.

The verdict found ...

A new California law (AB 72) limits the amount that out-of-network surgeons and other health care professionals may bill patients for covered non-emergency services provided at a contracted facility, such as an ambulatory surgery center.  California’s surprise medical bill law went into effect on July 1, 2017.  It is intended to prevent a consumer from receiving an unexpected medical bill from a non-contracted provider as follows:

  • A patient who is enrolled (Enrollee);
  • In a health care service plan or health insurance policy (Plan);
  • Receives health care services covered by the ...

The Anti-Kickback Statute

Those in the business of providing healthcare services to Medicare and Medicaid beneficiaries are all too familiar with the federal Anti-kickback Statute (AKS). Among other dreadful sanctions, it imposes criminal penalties on those individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration in order to induce or reward the referral of business reimbursable under federal healthcare programs. A violation of the AKS is a felony punishable by fines of up to $25,000 and imprisonment for up to five years. An offense may ...

Our Health Law Ticker is a one-stop resource for everything new and noteworthy in healthcare law. We cover recent developments in healthcare legislation, healthcare reform, Medicare/Medicaid, managed care, litigation, regulatory compliance, HIPAA, privacy, peer review, medical staffs and general business operations for healthcare companies and licensed healthcare professionals.

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