Government Cracks Down On Nursing Home Use of Social Media

On August 5, 2016, the Centers for Medicare and Medicaid Services (CMS) published a Survey and Certification Memorandum (Notice) urging State health departments to enforce violations by nursing homes in posting patient images on social media. This development was interesting given that the Office for Civil Rights (OCR), the enforcer of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules, presumably should already be cracking down on any such violations of resident rights as a violation of HIPAA. According to Modern Healthcare, increased instances of nursing home staff inappropriately posting resident pictures on social media may have sparked this pronouncement by CMS.

Specifically, CMS will more strictly enforce, through State agencies, corrective actions to ensure that employee postings of residents in a degrading manner do not occur in the nursing home setting. Interestingly, the Notice does not discuss nursing homes reporting such employee conduct to OCR, but does indicate that employees should report such postings on social media of residents as abuse “to at least one law enforcement agency.” Continue reading Government Cracks Down On Nursing Home Use of Social Media

Duane Morris’ Michael E. Clark to Present at ABA’s Third Medical Device & Healthcare Technology Compliance Institute

Duane Morris special counsel Michael E. Clark will serve as program chair and moderate the panel discussion, “Yates Memorandum: The New Normal?” during the American Bar Association’s (ABA) Third Medical Device & Healthcare Technology Compliance Institute, to be held on October 13–14, 2016, in Washington, D.C. Mr. Clark’s presentation will take place on Thursday, October 13, at 9:00 a.m.

The session will feature a discussion of the Department of Justice’s new policy to prosecute corporate executives with a focus on the ethical considerations of representing corporations and executives. There will be an emphasis on ethical considerations, including scope of representation, client identification and duties. CLE Ethics Credit is available.

For more information, please visit the event listing on the Duane Morris website.

Another Positive Development for the Medical Marijuana Industry

Just one week after the DEA and FDA reiterated the federal government’s willingness to allow broader research into the health benefits of cannabis, the Ninth Circuit Court of Appeals issued a decision barring the DOJ from using federal funds to prosecute individuals and businesses conducting activities in compliance with state medical cannabis laws and regulations.

In U.S. v. McIntosh, No. 15-10117, (9th Cir. 2016), the Court determined that a rider (§ 542) to the appropriations act that funded the government through September 30, 2015, which provided that funds made available under that act could not be used “to prevent [] States from implementing their own State laws that authorize the use, distribution, possession. of cultivation of medical marijuana,” was to be read as prohibiting the federal government from prosecuting individuals and businesses acting pursuant to those state laws and regulations because such prosecution would effectively prevent the states from implementing their cannabis laws and regulations.

As the Court explained, “DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws. By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law.”

The Court was also careful to warn industry participants that cannabis-related conduct falling outside a state’s cannabis laws and regulations would not be protected from federal prosecution:  “We conclude that § 542 prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542.”



Medicare’s Fraud Fighting 2YR ROI – $12.4 for every $1 Invested…

The U.S. Department of Health and Human Services (DHHS) and the Centers for Medicare and Medicare Services (CMS) recently released its – Annual Report to Congress on the Medicare and Medicaid Integrity Programs For Fiscal Years 2013 and 2014.

The biggest and most important take-away from the report – the government achieved “… a two-year average return on investment of 12.4 to 1 for the period that ended on September 30, 2014.”

Program integrity and fraud fighting efforts by DHHS and CMS have consistently represented a significant return on investment for the government. This is likely the single biggest reason why providers have not seen any serious reduction in program integrity efforts and fraud fighting enforcement over at least the last 10 years. Continue reading Medicare’s Fraud Fighting 2YR ROI – $12.4 for every $1 Invested…

Assessing Common Regulatory Risks in Health Care Provider Transactions: Where to start for PE investors…

Health care providers are heavily regulated, that’s no surprise to private equity investors. As a result, investing in health care provider businesses requires savvy in assessing what regulatory risks an acquisition target may present and whether or not those risks are an impediment to moving forward with a transaction.

Common risks include: reimbursement and claims issues, internal audits, external audits, regulatory investigations, criminal and civil government initiated litigation, and licensure and inspection citations or deficiencies.

The diligence process often uncovers one or many issues with any of these common risk areas. Continue reading Assessing Common Regulatory Risks in Health Care Provider Transactions: Where to start for PE investors…

CMS Preventative Measures…Pre-Claim Review Demonstration for Home Health Services

Beginning August 1, 2016, the Centers for Medicare & Medicaid Services (CMS) will be implementing a three-year Medicare pre-claim review demonstration for home health services in the states of Illinois, Florida, and Texas. Michigan and Massachusetts will follow in 2017. CMS is testing whether pre-claim review will help it prevent fraud occurring in Home Health Agencies (HHAs) as well as whether or not pre-claim review will help reduce expenditures while maintaining or improving quality of care.

During the pre-claim review demonstration period, HHAs will submit the same information they currently submit for payment, but will be required to do so earlier in the claims process. Continue reading CMS Preventative Measures…Pre-Claim Review Demonstration for Home Health Services

DOJ Settles Another FCA Case with A Hospice Over Patient Ineligibility

Following on the heels of a number of recent False Claims Act (“FCA”) cases alleging that patients were not eligible to receive hospice services (Good Shepherd Hospice Inc., Guardian Hospice of Georgia LLC,  Hospice of Arizona, L.C. and Altus Healthcare & Hospice Inc., to name a few), the U.S. attorney for the District of Colorado just completed an $18 million dollar settlement with UnitedHealth Group Inc. affiliate, OptumHealth LLC.

The settlement follows the DOJ’s 2014 intervention in two whistleblower-initiated FCA suits.   The whistleblowers, and eventually the DOJ, alleged that the hospice defrauded Medicare by billing services for hospice patients who were not terminally ill.  The DOJ had alleged that the Hospice’s  practices reportedly discouraged doctors from recommending that ineligible patients be removed from hospice and failed to monitor that nurses were accurately recording patients’ conditions in medical records.

As usage of the hospice benefit continues to increase at a rapid pace, investigations of whether or not patient eligibility is determined to be appropriate are going to continue. Additionally, the DOJ’s success in investigating and settling FCA cases relating to hospice eligibility issues  translates into continued enforcement efforts in this area. Providers should focus their compliance efforts on this important risk area and ensure that they are conducted period auditing and monitoring of patient eligibility and physician certifications for hospice care.

For more information on hospice FCA claims or investigations, hospice regulatory enforcement, or Medicare or regulatory compliance in general, please feel free to contact Ari Markenson at or 212.692.1012.

The Marijuana Business Takes Root in Pa.

Duane Morris’ Seth Goldberg was quoted in the Philadelphia Business Journal  on the opportunities and risk facing entrepreneurs in the development medical marijuana industry in Pennsylvania.

While the upfront costs to entrepreneurs wanting to enter the market are expected to run into the millions of dollars, the payoff could be substantial. The ArcView Group, a market research firm that studies the cannabis industry, estimates the Pennsylvania medical marijuana market will start out with annual sales at about $125 million and grow at a rate of about 180 percent per year in the program’s first few years.

“There will also be huge opportunities for entrepreneurs who want to create ancillary businesses that are integral to the core growing and dispensing businesses,” said Seth Goldberg, a Philadelphia attorney with Duane Morris who specializes in commercial and health care matters.

Continue reading The Marijuana Business Takes Root in Pa.

Mid-Year OIG Work Plan Update Provides Insight Into Long-Term Care Regulatory Hot Spots

The Office of Inspector General (OIG) of the Department of Health and Human Services recently released a Mid-Year Update to its 2016 Fiscal Year Work Plan The Mid-Year Update gives long-term care providers a preview of the OIG’s regulatory enforcement focus during the remainder of the current fiscal year.

Some highlights from the Mid-Year Update include:

Skilled Nursing Facility Prospective Payment System Requirements

The OIG will review compliance with the skilled nursing facility (SNF) prospective payment system requirement that a beneficiary must be an inpatient of a hospital for at least 3 consecutive days before being discharged from the hospital, in order to be eligible for SNF services. Prior OIG reviews found that Medicare payments for SNF services were not compliant with the 3-day hospital stay requirement.

Potentially Avoidable Hospitalizations of Medicare and Medicaid Eligible Nursing Home Residents for Urinary Tract Infections

The OIG will review nursing home records of residents hospitalized for urinary tract infections (UTIs), to determine whether the nursing homes provided services to prevent or detect UTIs in accordance with their care plans before the residents were hospitalized.

National Background Check Program for Long-Term-Care Employees

The OIG will review current State procedures for conducting background checks on prospective employees and providers who have direct access to patients, and determine the costs of conducting background checks. The goal is to determine the effectiveness of the States’ programs and determine whether the checks led to any unintended consequences.

State Agency Verification of Deficiency Corrections

The OIG intends to determine whether State survey agencies verified correction plans for deficiencies identified during nursing home recertification surveys, noting that a prior OIG review found that one State survey agency did not always verify that nursing homes corrected deficiencies identified during surveys, in accordance with Federal requirements.

Medicaid Beneficiary Transfers from Group Homes and Nursing Facilities to Hospital Emergency Rooms

The OIG will review the rate of and reasons for transfer from group homes or nursing facilities to hospital emergency departments, as high occurrences of emergency transfers could indicate poor quality of care.

Managed Long-Term-Care Reimbursements

States’ reimbursements to managed long-term-care (MLTC) plans will be examined to determine whether they complied with Federal and State requirements, including those relating to eligibility and enrollment of beneficiaries.

SCOTUS Strikes Down Texas Statute in Whole Woman’s Health v. Hellerstedt

In a 5-3 decision today, the Supreme Court of the United States in Whole Woman’s Health v. Hellerstedt, No. 15-275, slip op. (June 27, 2016) reversed a decision of the Fifth Circuit and overturned as unconstitutional a Texas law that (1) required abortion providers to have “active admitting privileges” at a hospital within 30 miles of the location at which they provide abortions and (2) required abortion facilities to meet standards adopted for ambulatory surgery centers. The Court wrote that each of the requirements “places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”  A team of Duane Morris attorneys, including Philip H. Lebowitz, Erin M. Duffy, Katharyn I. Christian McGee, Alison Taylor Rosenblum, and Erica Fruiterman, filed an amicus curiae brief on behalf of medical staff professionals in support of petitioners Whole Woman’s Health et al.  In its decision, the Supreme Court cited Duane Morris’ amicus brief, noting, “Other amicus briefs filed here set forth without dispute other common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures.”  The brief was one of only a handful of amici curiae briefs cited in the decision out of a total of 41 such briefs filed on behalf of petitioners.