Archive for the ‘Statutes and Regulations’ Category

CMS Publishes Administrative Ruling and Proposed Rule Providing Additional Part B Payment to Hospitals Denied Inpatient Payment


Executive Summary

On March 13, 2013, CMS concurrently released an immediately effective administrative ruling (“CMS Ruling 1455-R” or “Ruling”) and a proposed rule (“Proposed Rule”) reversing CMS policy precluding hospitals from billing on an outpatient basis for inpatient services denied payment on grounds the services should have been provided on an outpatient basis.  Under the new policy, when an audit determines an inpatient service was not medically necessary, a hospital may be able to rebill Medicare Part B for outpatient services.  The Ruling can be found here and is effective on an interim basis until the Proposed Rule is finalized.  The Proposed Rule can be found here.  Both will be published in the Federal Register on or about March 19, 2013.  Interested parties wishing to submit comments should do so in accordance with instructions set forth in the Proposed Rule referencing file code CMS-1455-P.  Comments are due no later than 5 P.M., 60 days after the date of publication in the Federal Register.

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OIG Issues New Guidelines for Review of State FCA Statutes


The recent amendments to the False Claims Act, the Fraud Enforcement Recovery Act of 2009 (“FERA”), the Patient Protection and Affordable Care Act of 2010 (“PPACA”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) continue to generate new rules and guidance. Effective 2007, Congress created incentives for states to pass and enforce mirror FCA statutes that create equal or greater incentives for whistleblowers to bring Medicaid cases as they would have under the federal statute. Those incentives give states a 10% greater recovery in FCA cases than they would if the statute fell short of the federal requirements. HHS-OIG is responsible for determining whether the state statutes meet the requirements.

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Here Be Dragons – Regulatory Law and the Advice-of-Counsel Defense


by David B. Honig

Federal regulations are an enormous morass of complex, confusing, and often contradictory rules. The 2009 Code of Federal Regulations was 163,333 pages in 226 individual books.  The 2010 Federal Register, which contains new regulations proposed rules, and presidential papers, contained an additional 81,305 pages.  Intended as a roadmap, providing guideposts and requirements for dealing with the Government, it has become so incomprehensible to the layman that it could just as easily be a 16th century copper globe engraved “HC SVNT DRACONES” (Latin, hic sunt dracones, or “here be dragons”).[1]

 It is little wonder that health care providers, bankers, defense contractors, builders, even farmers and ranchers, turn to attorneys to help understand what they are allowed to do and, even more important, what actions are prohibited. A regulatory attorney helps guide a client through the regulatory jungle, identifying the client’s needs and goals and advising how they can be met (and sometimes if they can be met) within the confines of the regulations. This actually confers two different benefits on the client. The first, the obvious benefit, is concrete advice on what the regulations permit and prohibit. The second, less obvious, less ofen needed, but absolutely critical when the need arises, is confidence that the client did the very best it could to comply with all applicable laws, rules, and regulations. If the government ever aggressively challenges the client’s actions, particularly if it challenges the actions in criminal court or in a False Claims Act[2] case, this forms the basis for what is known as the “advice-of-counsel defense.” Advice to the client is always at the forefront of the client’s and counsel’s minds, while the advice-of-counsel defense is rarely, if ever part of the engagement or ongoing conversations. It does, however, form a crucial backstop of protection for the client. Therefore, any attorney providing regulatory advice should have a working understanding of the defense, how it is used, how advice should be provided to protect the defense, and how it can be unintentionally ruined or even waived, perhaps even before the need for the defense is recognized.

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A Twenty Year Statute of Limitations?


Last month the Centers for Medicare & Medicaid Services (CMS) published proposed rules for reporting of overpayments. These proposed rules, if adopted and strictly interpreted, could effectively create a twenty-year statute of limitations under the False Claims Act.

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