New Jersey Supreme Court Restricts Medical Malpractice Actions Against Uninsured Doctors But Expands Potential Liability Of Hospitals And Other Facilities

On September 29, 2015 the Supreme Court of New Jersey decided Jarrell v. Kaul, No. A‑42 (Sup.Ct. Sept. 29, 2015), a case that simultaneously restricts and expands theories of medical malpractice liability against healthcare providers.  Addressing three issues relating to the statutory requirement that physicians licensed to practice medicine in New Jersey must obtain and maintain medical malpractice liability insurance pursuant to N.J.S.A 45:9-19.17, the Court considered whether: (1) an injured patient may bring a direct action against a negligent, uninsured physician; (2) failure to comply with the statutory liability insurance requirement gives rise to an informed consent claim; and (3) a healthcare facility granting privileges to a physician to treat patients in its facility has a duty to determine and monitor the physician’s compliance with the statutory malpractice insurance requirement.

Jarrell is a medical malpractice case in which plaintiff was treated by defendant Dr. Kaul, a board‑certified anesthesiologist who focused Continue reading New Jersey Supreme Court Restricts Medical Malpractice Actions Against Uninsured Doctors But Expands Potential Liability Of Hospitals And Other Facilities

Recent Trends In FCA Litigation Against Hospice Care Providers

The Office of Inspector General identified “reducing waste in . . . hospice care” as one of the “top management challenges” for the 2015 fiscal year.   The federal government’s efforts to respond to that challenge are illustrated by several recent developments in False Claims Act (“FCA“) cases brought against hospice care providers.  For example, the Robinson-Hill, Betts, and Gooch cases discussed herein underscore the attention given to hospice care providers and their alleged billing and personnel-related practices, and the high monetary settlements that can result from such attention.

Continue reading Recent Trends In FCA Litigation Against Hospice Care Providers

OIG Finds Questionable Part B Ambulance Billing

On September 29, 2015, the U.S. DHHS Inspector General’s Office (the “OIG”) released a report (OEI-09-12-00351) entitled “Inappropriate Payments and Questionable Billing for Medicare Part B Ambulance Transports.”

The report is significant and discusses the issues the OIG has been concerned with relating to Medicare Part B ambulance transports. OIG notes that in 2012 Medicare Part B payments for ambulance transports were almost double the amount it paid in 2003. OIG has historically been concerned about fraud involving ambulance transports. CMS continues to impose a moratorium on new ambulance providers in certain geographic areas. Importantly, OIG noted that the majority of its findings in the report were limited to four metropolitan areas, Philadelphia, PA, Los Angeles, CA, New York, NY and Houston, TX.

The OIG study analyzed claims data for 7.3 million ambulance transports during the first half of 2012. It examined aspects of the transports including, but not limited to, transport destinations, transport levels, distance of urban transports, other Medicare services that beneficiaries received, and the geographic locations where the beneficiaries who received transports resided. Continue reading OIG Finds Questionable Part B Ambulance Billing

Seventh Circuit Finds Hospital Not A “Credit Reporting Agency”

In Tierney v. Advocate Health & Hospitals Corp., the Seventh Circuit recently affirmed the dismissal of a Fair Credit Reporting Act (“FCRA“) complaint and found that a hospital was not a “credit reporting agency” under the FCRA.  Continue reading Seventh Circuit Finds Hospital Not A “Credit Reporting Agency”

Another far-reaching FCA decision

The number of far-reaching and burdensome False Claims Act (FCA) decisions increases by the day.  In an August 14, 2015 order by the U.S. District Court for the Middle District of Florida, a whistleblower’s complaint survived a motion to dismiss based upon some rather attenuated allegations.  Since this matter was decided at the pleadings stage, the facts may ultimately dictate a different outcome; nevertheless, the cost and burden of defending the case may result in a costly settlement precipitated by this decision.

In the case, U.S. ex rel. Bingham v. BayCare Health System, the claim is that BayCare’s construction of medical office buildings, common areas, walkways and garages on the campus of a BayCare hospital (St. Anthony’s Hospital), provided a benefit to referring physicians sufficient to constitute prohibited remuneration under the Stark law.  The medical office building was constructed by an entity called “St. Pete MOB, LLC”, which is not described as having ownership by referring physicians.   Although the facts are not clear, it appears that the allegedly improper benefit to physicians took the form of BayCare providing a “non-exclusive parking easement” to St. Pete MOB.  Continue reading Another far-reaching FCA decision

Court Decision on 60-day Overpayment Rule Imposes Heavy Burden on Providers

As a result of an August 3, 2015 federal court decision, nursing homes and other health care providers that participate in Medicare or Medicaid are well-advised to pay careful attention to the law that requires report and return of any overpayment within 60 days of the date on which the overpayment is “identified.”  In Kane v. Healthfirst, Inc. et al., the Southern District of New York found that the word “identified” means the date on which a provider is “put on notice” that a claim may have been overpaid.  The court said that providers cannot delay commencement of the 60-day period until the overpayment amount has been definitively determined.

The defendants in the case had argued that simply being on notice of a potential overpayment was not enough to trigger the 60-day repayment rule, which was a provision in the 2010 Affordable Care Act.  While recognizing the burden on providers to bring to conclusion a thorough and definitive investigation of a potential overpayment within 60 days, the court was firm in its finding, referring to the “demanding standard of compliance.”  However, there was a suggestion that prosecutorial discretion could act to assist a provider that did not comply with the letter of the law but acted diligently to attempt to determine an overpayment amount within the required timeframe.

This case, triggered by a former employee of one of the  provider defendants under the False Claims Act whistleblower provision, is important because it is the first time there has been a court opinion addressing the meaning of the term “identified” as used in the law.  Draft regulations published in 2012 have not been finalized.

CMS Extends Provider Enrollment Moratoria for HHAs and Ambulance Providers, Again…

For the fifth time since 2013, the Centers for Medicare and Medicaid Services (CMS) has extended its Medicare, Medicaid and CHIP enrollment moratoria for home health agencies (HHAs) and ambulance providers in certain geographic areas.

The enrollment moratoria apply to new ambulance providers and HHAs in certain metropolitan areas within Florida, Illinois, Michigan, Texas, Pennsylvania and New Jersey.

In its notice of the moratoria, CMS commented that “[t]he circumstances warranting the imposition of the moratoria have not yet abated, and CMS has determined that the moratoria are still needed as we monitor the indicators and continue with administrative actions, such as payment suspensions and revocations of provider/supplier numbers,”

CMS gained the authority to impose moratoria on provider enrollment from Section 6401(a) of the Affordable Care Act in circumstances in which CMS determines that it’s necessary to prevent or combat fraud, waste or abuse.

Specifics on the metropolitan areas involved and details on the enrollment moratoria can be found in the pre-publication CMS Federal Register Notice. The Final Notice should become available on 7/28.

For more information on Provider Enrollment, CMS, Home Health, ACA, or other compliance or reimbursement related matters, please feel free to contact Ari J. Markenson at or 212.692.1012.

CMS Launches Medicare Care Choices Model for Hospice + Curative Care Demo

On July 20th, 2015, the Centers for Medicare and Medicaid Services (CMS) announced the award of Medicare Care Choices demo contracts to 141 hospice providers across the country.

Section 3021 of the Affordable Care Act authorized CMS  to test innovative payment and service delivery models that have the potential to reduce expenditures while maintaining or improving the quality of care for beneficiaries. The Medicare Care Choices model comes out of the Center for Medicare and Medicaid Innovation and involves empowering clinicians, beneficiaries and their families with greater flexibility in deciding between hospice care and curative treatment when faced with life limiting illness.

This model is designed to test whether Medicare and dually eligible beneficiaries who qualify for coverage under the Medicare or Medicaid Hospice Benefit would elect to receive the palliative and supportive care services typically provided by a hospice if they could continue to seek curative care from their providers. CMS will study whether access to such services will result in improved quality of care, patient and family satisfaction, and whether there are any effects on use of curative services and the Medicare or Medicaid Hospice Benefit. Continue reading CMS Launches Medicare Care Choices Model for Hospice + Curative Care Demo

“Per-click” fees OK but don’t count on it

The Stark Law, 42 U.S.C. 1395nn, places restrictions on lease arrangements between physician groups and hospitals for equipment owned by the physicians, leased to the hospitals and then used by the same physicians to treat patients at the hospital.  Under the Stark Law, such leases are prohibited unless the arrangement complies with the equipment rental exception, 42 U.S.C. 1395nn(e)(1)(B).

One requirement of the equipment rental exception, which is both statutory and regulatory (42 C.F.R. 411.357(b)), is that the rental charges be “set in advance.”  In a recent case from the D.C. Circuit Court of Appeals, Council for Urological Interests v. Burwell, the court considered whether a “per-click” or “per-use” fee could be considered “set in advance” and otherwise meet the criteria for the exception.  In an oddly constructed opinion, the court struck down a regulatory prohibition on per-click arrangements, but remanded under terms that would permit the restriction to be re-instated. Continue reading “Per-click” fees OK but don’t count on it

Duane Morris Partner Lisa Clark Featured in The Wharton Healthcare Quarterly

In the Spring 2015 edition of The Wharton Healthcare Quarterly, Duane Morris partner Lisa Clark’s article, “Affidavit: Healthcare and the Law – Healthcare Reform Update: What’s in a Name?,” discussed the innovations under the Affordable Care Act (ACA). One of the innovations was the Accountable Care Organization (ACO), where a new healthcare reimbursement system was introduced as an alternative to the tradition fee-for-service model. Over the years, the Accountable Care Organizations and other value-based models will be tested and hopefully, there will be buzz around this new model in the next year.