A recent decision in the U.S. District Court for the Southern District of New York provides fair warning to qui tam relators who assert erroneous claims under the False Claims Act (“FCA”) that they could be hit with legal fees and expenses pursuant to 31 U.S.C. § 3730, which permits such an award “upon a finding that the . . . claims were objectively frivolous, irrespective of plaintiff’s subjective intent.” Mikes v. Straus, 274 F.3d 687, 705 (2d Cir. 2001).
On December 1, 2014, in U.S., et al., ex rel. Fox Rx, Inc., 1:12-cv-00275, defendant Managed Health Care Associates Long Term Care Network, Inc. (“MHA”), was awarded attorneys’ fees and expenses because the relator’s, Fox Rx, Inc.’ (“Fox”), claim that MHA, which negotiates reimbursement rates, among other things, on behalf of a network of pharmacies, allegedly (i) failed to substitute generic drugs for named brand drugs, and (ii) dispensed drugs beyond their termination date, was objectively frivolous given that the plain language of the very agreement Fox attached to its second amended complaint demonstrated that MHA did not itself dispense drugs, and exercised no control or supervision of its network pharmacies’ dispensing. Continue reading Fees and Costs Awarded to False Claims Act Defendant
Effective June 17, 2013, state Medicaid fraud control units (MFCU) will be permitted to use federal matching funds to pay for data mining activities to detect potentially fraudulent utilization and billing patterns. Historically, MFCUs have been prohibited from using federal matching funds to pay for the cost of data mining. Given the financial constraints facing MFCUs, this funding is likely to result in a substantial increase in activities by MFCUs across the United States. While this rule in and of itself is noteworthy, it is likely to have a more significant impact on healthcare providers when coupled with the regulation implementing the Patient Protection and Affordable Care Act (ACA) that requires states to suspend all Medicaid payments to a provider upon credible allegation of fraud during, or triggering, a Medicaid investigation.
Click here to read the full Alert.
On June 28, 2012—the last day of the 2011 term—the U.S. Supreme Court ruled in a 5-4 decision, with Chief Justice Roberts writing for the majority, that the individual mandate provision of the Patient Protection and Affordable Care Act (the “Act”) is constitutional based on Congress’s taxing power. A key passage read from the bench by Chief Justice Roberts is as follows:
Continue reading Affordable Care Act Declared Constitutional … For the Most Part
On May 3, 2012, the Centers for Medicare and Medicaid Services (CMS) officially announced that it will delay data-collection and reporting requirements under the Patient Protection and Affordable Care Act’s (ACA) Physician Payments Sunshine Act (the “Sunshine Act”), due in part to the large number of comments received in response to CMS’s December 19, 2011, proposed rules. Data collection by CMS will not start until at least January 1, 2013.
Continue reading CMS Delays Data Collection Under ACA’s Physician Payments Sunshine Act to January 1, 2013
On January 17, 2012 the Centers for Medicare & Medicaid Services (“CMS”) adopted as a final rule changing Medicare’s Extra Help Program. The Extra Help Program is a prescription drug coverage low-income subsidy created through the Affordable Care Act (“ACA”). Effective January 18, 2012, the final rule incorporates the ACA’s changes to the Extra Help Program by extending eligibility for one year after the death of a beneficiary’s spouse that would otherwise decrease or eliminate the subsidy. The final rule also implements changes to the Medicare Improvements for Patients and Provider Act of 2008 by excluding from a resource (for purposes of Extra Help eligibility) the value of life insurance policies or income for food, shelter, and certain household bills.
Read the full notice from the federal register here.
The Centers for Medicare and Medicaid Services (“CMS”) released its proposed rule regarding the required reporting of device, biologics and pharmaceutical manufacturer payments to physicians on December 14, 2011. The proposed rule includes templates for physicians and manufacturers to use when logging payments and gifts.
Continue reading Proposed Physician Payment Disclosure Rule Published
The Centers for Medicaid & Medicare Services (“CMS”) recently released a final rule establishing the new medical loss ratio requirements under the Affordable Care Act (“ACA”). Under the ACA, individual and small group market insurers are required to spend at least 80 percent of premium dollars on medical care and quality improvement, and large group market insurers must spend at least 85 percent of premium dollars on the same services. The final rule describes the technical process for calculating medical loss ratio and also provides details on insurers’ annual medical loss ratio reporting requirements, as well as the ACA’s requirement that insurers grant rebates to consumers in the event the insurer fails to meet the required medical loss ratio.
Read the full text of the rule here, or HHS’ fact sheet on the ACA’s changes to medical loss ratios here.
Expansion of CMS Never Events: They’re Not Just For Medicare Or Just For Hospitals Anymore
In 2005 when “Never Events” were proposed for hospitals through the Deficit Reduction Act, no one knew what the overall effect would be on hospitals or patient care. CMS later developed these and implemented these Never Events under the authority of the DRA to prevent Medicare payment to hospitals for certain “never events” or hospital acquired conditions (HACs) which were conditions that were high volume, involved higher payment, and which could be easily preventable. Now, hospitals and other health care providers have to worry about Never Events in the Medicaid space.
Continue reading Expansion of CMS Never Events: They’re Not Just For Medicare Or Just For Hospitals Anymore
The Federal Trade Commission and the U.S. Department of Justice have jointly issued a proposed enforcement policy for the application of the antitrust laws to healthcare collaborations among otherwise independent providers and provider groups that seek to participate as accountable care organizations (ACOs) under the Medicare Shared Savings Program. The agencies seek public comments until May 31, 2011, on the proposed enforcement policy and the new antitrust “safety zone” it would create.
For more information and the proposed antitrust policy, please visit the FTC and DOJ’s Proposed Statement.
On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and Health and Human Services (HHS) unveiled the long-awaited federal rule on accountable care organizations. This proposed rule would implement section 3022 of the Affordable Care Act, which allows service providers and suppliers to continue receiving traditional Medicare fee-for-service payments under Parts A and B, and to be eligible for additional payments based on meeting specified quality and savings requirements.
To view the proposed rule, please visit the Office of the Federal Register website.