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Health Care Compliance Association • 888-580-8373 • www.hcca-info.org ...continued from page Volume Twelve Number Eight August 2010 Published Monthly Meet the Co-Chairs of HCCA’s New England Regional Conference, Lawrence Vernaglia and Steve Friedman page 14 Earn CEU Credit Feature Focus: www . hcca - info . org / quiz — see page 47 The new frontier: r esearch consents and Compliance issues patient medical records : under the Health r equirements and best Care Reform Law practices page 32 page 22 August 2010 1 This article, published in Compliance Today, appears here with permission from the Health Care Compliance Association. Call HCCA at 888/580-8373 with all reprint requests.

Health Care Compliance Association • 888-580-8373 • www.hcca-info.org under the Health Care Reform Law Editor’s note: Ritu Kaur Singh is an Associate in the Washington, DC Health Care Law practice of Jones Day. She may be reached at rksingh@ jonesday.com or 202/ 879-5575. The new frontier: Compliance issues feature focus By Ritu Kaur Singh, Esq. of services who has received an overpayment must report and repay the overpayment to the applicable government contractor, intermedi- ary, carrier, state, or the Secretary of the Department of Health and Human Services (HHS) within 60 days after the overpayment is T he Patient Protection and Affordable Care Act of 2010, as identifjed or the date any corresponding cost report is due, whichever amended by the Health Care and Education Reconciliation Act is later. Failure to repay any overpayment within the applicable dead- of 2010 (together known as the Health Care Reform Law), was line can lead to liability under the False Claims Act (FCA). Namely, signed into law by President Barack Obama in March, 2010. The Health retention of any overpayment after the applicable deadline will be Care Reform Law sets forth new compliance obligations for health care pro- considered an “obligation” as defjned by the FCA. Tiere is now a viders. Specifically, it contains more than 32 provisions that address health direct correlation between the retention of overpayments and liability care fraud and abuse issues as well as program integrity. Many of these under the FCA. provisions significantly amend existing criminal, civil, and administrative anti-fraud statutes. The Health Care Reform Law is complex and compre- Last year, the Fraud Enforcement Recovery Act of 2009 (FERA) hensive; it includes a myriad of new programs and initiatives and changes expanded exposure under the FCA, adding liability for false claims paid to existing programs, policies, practices, and laws. The general complexity with government funds 1 and for the retention of money owed to the of the Health Care Reform Law makes it likely that additional legislation government. 2 Before FERA, the FCA contained a fairly narrow provi- will be proposed, considered, and enacted over time. It will also require the sion for what is commonly referred to as a “reverse false claims” theory. promulgation of a substantial number of regulations with significant effects Under that theory, a “reverse false claim” arises when an overpayment on the health care industry, which will be subjected to significant new statu- exists, even though a false claim was never fjled. Tie reverse false claim tory and regulatory requirements and consequently, to structural and opera- approach makes it possible for FCA liability to arise for “using” a false tional changes and challenges for the foreseeable future. record or statement to “conceal” or “avoid” or “decrease” an “obliga- tion to pay or transmit money or property to the Government.” Tie Increased compliance and regulatory requirements, disclosure and transpar- FCA generally provides for the imposition of treble damages and civil ency obligations, quality of care expectations, and extraordinary enforcement monetary penalties ranging from $5,500 to $11,000 per claim for the provisions that could greatly increase potential legal exposure are all aspects knowing presentation of false claims to the government. of the Health Care Reform Law. Undoubtedly, compliance professionals and their colleagues will be required to review and to amend their existing FERA expanded FCA liability to instances when a person “know- policies and procedures. Tie purpose of this article is to address a few of the ingly conceals or knowingly and improperly avoids or decreases an potential new areas for compliance obligations as well as some changes to obligation to pay or transmit money or property to the government,” pre-existing compliance requirements under the Health Care Reform Law. whether the person uses a false record or statement to do so or not. 3 Tie FCA defjnes “knowing” as (1) having actual knowledge of the Fraud and abuse provisions information; (2) acting in deliberate ignorance of the truth or falsity Overpayments and liability under the False Claims Act of the information; or (3) acting in reckless disregard of the truth or Under Section 6402(d) of the Health Care Reform Law, a provider falsity of the information. 4 FERA also redefjned an “obligation” under August 2010 32