PPACA FRAUD PREVENTION AND ENFORCEMENT – HOW YOUR PRACTICE MAY BE IMPACTED

PPACA FRAUD PREVENTION AND ENFORCEMENT – HOW YOUR PRACTICE MAY BE IMPACTED

The Patient Protection and Affordable Care Act of 2010 (“PPACA”) has dramatically changed the landscape of healthcare for providers. PPACA includes an increased focus on fraud prevention and enforcement. Healthcare providers should be familiar with the fraud prevention and enforcement provisions that may impact their practices, such as those discussed below.

MANDATORY COMPLIANCE PROGRAMS: While compliance programs have been voluntary for practitioners in the past, section 6401 of PPACA mandates that all providers of healthcare who participate in federal healthcare programs must implement a compliance program which must contain certain core elements. While the Secretary of HHS is directed to establish the core elements in consultation with the OIG and to establish the date by which such programs are to be implemented, to date, neither implementation dates or core elements have been forthcoming. However, some guidance already exists regarding what the essentials of a compliance program should include both from the OIG and through the Federal Sentencing Guidelines as amended in 2010. For more information on the elements of an effective compliance plan, please look to the Nutile Pitz & Associates June 2012 newsletter. Practitioners are encouraged to begin development of compliance plans as soon as possible.

ANTI-KICKBACK STATUTE (“AKS”): Section 6402(f)(1) of PPACA provides that the filing of a claim that includes items or services resulting from an violation of the AKS constitutes a false or fraudulent claim under the False Claims Act, exposing the offending practitioner to possible civil penalties. Of perhaps even greater concern to practitioners is Section 6402(f)(2) which provides that the person submitting the claim need not have any actual knowledge or specific intent to violate the False Claims Act as previously required to establish liability under the statute. These modifications make the need for an effective compliance program of even greater importance for practitioners.

IN-OFFICE ANCILLARY SERVICES EXCEPTION. Under Section 6003 of PPACA (and the Final Rule promulgated by CMS) practitioners who refer for MRIs, CTs, or PETs under the in-office ancillary services exception to Stark must now provide patients with written notice of a minimum of five other suppliers of the service within a twenty-five mile radius at the time the referral is made. Practitioners must document that they have provided such notice to the patient.

STARK SELF-REFERRAL DISCLOSURES. Section 6409 of PPACA provides for the establishment of a voluntary ANTI-KICKBACK STATUTE (“AKS”): Section 6402(f)(1) of PPACA provides that the filing of a claim that includes items or services resulting from an violation of the AKS constitutes a false or fraudulent claim under the False Claims Act, exposing the offending practitioner to possible civil penalties. Of perhaps even greater concern to practitioners is Section 6402(f)(2) which provides that the person submitting the claim need not have any actual knowledge or specific intent to violate the False Claims Act as previously required to establish liability under the statute. These modifications make the need for an effective compliance program of even greater importance for practitioners.

IN-OFFICE ANCILLARY SERVICES EXCEPTION. Under Section 6003 of PPACA (and the Final Rule promulgated by CMS) practitioners who refer for MRIs, CTs, or PETs under the in-office ancillary services exception to Stark must now provide patients with written notice of a minimum of five other suppliers of the service within a twenty-five mile radius at the time the referral is made. Practitioners must document that they have provided such notice to the patient.

DISCLOSURES OF OVERPAYMENT. Section 6402(d) of PPACA establishes that overpayments must be reported and returned within 60 days after the date on which overpayment was identified or by the date any corresponding cost report is due. Retaining overpayments after the deadline for reporting and returning them may subject the provider to liability under the False Claims Act. It should be noted that the SRDP promulgated by CMS does provide that submission of a disclosure under the SRDP suspends the 60-day requirement until a settlement agreement is entered between the provider and CMS or the provider withdraws from the SRDP or CMS removes the provider from the SRDP.

SUSPENSION OF PAYMENTS PENDING INVESTIGATION. Section 6402(h) has expanded the power of the Secretary of HHS to allow suspension of payments under Medicare and Medicaid pending the investigation of “credible” allegations of fraud. The final rule provides that a credible allegation of fraud” includes fraud hotline complaints; claims data mining or pattern identified through provider audits, civil false claims cases and law enforcement. Allegations are considered to be credible when they “have indicia of reliability.”

Fraud prevention and enforcement measures have significantly increased under PPACA. The list of fraud prevention and enforcement measures provided here does not encompass all fraud and abuse measures of PPACA and practitioners must be extremely vigilant to avoid potentially running afoul of the provisions of PPACA. The first step in doing so is to begin the development and implementation of a compliance plan. Nutile Pitz and Associates has attorneys who are able to assist you in the development of such programs and can help you with any questions you may have regarding PPACA and the impact it may have on healthcare providers.