RICO: Did you know that a federal appellate court has ruled that payment for an unnecessary heart procedure is a recoverable injury under the Racketeer Influenced and Corrupt Organizations Act (RICO)? A patient, who was advised that she needed heart surgery, discovered after the procedure that it was unnecessary. The patient alleged that certain physicians and hospitals operated a racketeering enterprise, whereby they performed and billed for unnecessary heart procedures. The physicians and hospitals argued that the patient was alleging personal injuries only, which are not recoverable under RICO, and the trial court agreed. The appellate court, however, disagreed, finding that the patient’s alleged harm — payment to the physicians and hospitals for the unnecessary procedure — may constitute an injury to property, which is recoverable under RICO.
EHR: Did you know that an electronic health records (EHR) software vendor has agreed to pay $155 million to settle False Claims Act allegations? The EHR vendor, eClinicalWorks LLC, allegedly misrepresented that its software complied with the certification requirements of the “meaningful use” incentive program under the Health Information Technology for Economic and Clinical Health Act. As a result, the EHR vendor caused providers to submit false claims for federal incentive payments.
Nursing Home Reimbursement: Did you know that in August, the Centers for Medicare and Medicaid Services (CMS) published guidance on the Jimmo v. Sebelius Settlement Agreement? The Jimmo Settlement Agreement clarified when skilled nursing and skilled therapy services are considered medically necessary, and, therefore, covered under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits. Prior to the Jimmo Settlement Agreement, Medicare carriers and auditors required evidence that the beneficiary’s clinical condition would improve. As a result of the Jimmo Settlement Agreement, it is clear that Medicare covers skilled nursing and therapy services even if such services are expected to maintain, as opposed to improve, the patient’s clinical condition.
Opioids: Did you know that the Department of Justice recently launched the Opioid Fraud and Abuse Detection Unit? The Department of Justice will fund twelve experienced Assistant United States Attorneys, who will serve three- year terms and focus solely on investigating and prosecuting health care fraud related to prescription opioids. Maryland is one of the twelve districts across the United States selected to participate in the program. Attorney General Jeff Sessions announced that the Opioid Fraud and Abuse Detection Unit will employ data analytics to identify suspect providers and pharmacies by analyzing patterns, including physicians’ opioid prescribing rates, the age of patients for whom prescriptions are written, the number of patients that die within 60 days of receiving an opioid prescription, and the number of opioid prescriptions that a pharmacy fills.
ACO: Did you know that a CMS decision, that a Medicare accountable care organization (ACO) is not eligible for shared savings, is not reviewable by a court? The Affordable Care Act prohibits judicial review of certain CMS decisions relating to ACOs, including “the determination of whether an ACO is eligible for shared savings.” In Physicians ACO, LLC v. Burwell, the court held that the prohibition on judicial review includes a “determination” that an ACO wasn’t eligible for payment because the ACO failed to submit its records timely. The ACO argued that CMS did not make an eligibility “determination,” because the determination was not substantive. However, because CMS characterized its denial as a “determination,” the court found that it lacked jurisdiction.
Leslie M. Cumber
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