New Government Focuses on Fraud and Abuse Enforcement Friday, January 29, 2016 | 1:30 PM Eastern/12:30 PM Central Sponsored by the ABA Center for Professional Development ABA Health Law Section Greater San Antonio Healthcare Foundation South Texas Chapter, American College of Healthcare Executives South Texas Chapter, Healthcare Finance Management Association www.americanbar.org | www.abacle.org
To Receive CLE Credit for this Program • You must attend the entire program; partial credit is not available. • Click on the evaluation link at the end of the program. • Wait for the online request for credit form. • Enter the email address you want your CLE certificates sent to. • Fill out the online request for credit form completely. • Select a combination of MCLE jurisdictions you want CLE credit in. • Enter the participation verification code. • After submission, your CLE certificates will be emailed to you. www.americanbar.org | www.abacle.org
New Government Focuses on Fraud and Abuse Enforcement www.americanbar.org | www.abacle.org
Faculty Moderator: – John J. LoCurto, Assistant United States Attorney, Affirmative Civil Enforcement-Coordinator, Western District of Texas, San Antonio, TX Panel Members: – George B. Hernandez, Jr., President/CEO, University Health System, San Antonio, TX – Wesley D. Fountain, CFO, Methodist Healthcare System, San Antonio, TX – Kathy L. Poppitt, Partner, King and Spalding LLP, Austin, TX www.americanbar.org | www.abacle.org
John J. LoCurto, Assistant United States Attorney, Affirmative Civil Enforcement- Coordinator, Western District of Texas, San Antonio, TX www.americanbar.org | www.abacle.org
Enforcement By the Numbers Health Care Fraud and Abuse Control Program FY14 : • Investment: $572 million appropriated – $278.1 million mandatory (after sequester) – $293.6 million discretionary – Does not include other appropriations ( e.g. , $127 million HIPAA allocation to FBI) • Results: $3.3 billion recovered – $2.3 billion FY14 HCF recoveries – $1 billion prior year recoveries – $1.9 billion returned to Medicare Trust Funds – $27.8 billion returned since program inception (1997) • Return: $7.70 for each $1 expended (FY12 to FY14) www.americanbar.org | www.abacle.org
Criminal Enforcement Department of Justice FY14 : • 924 new criminal HFC investigations opened • Charges in 496 cases against 805 defendants • HEAT (Health Care Fraud Prevention and Enforcement Action Team) – Strike Forces in 9 cities – 2 in Texas – 165 indictments, informations, criminal complaints against 353 defendants that together billed $830M to Medicare • What to expect? – Ongoing commitment to criminal enforcement – Increased focus on individual accountability www.americanbar.org | www.abacle.org
Civil Enforcement Department of Justice 2015 : • False Claims Act (FCA) – 31 U.S.C. §§ 3729 to 3733 – Primary tool to combat fraud, waste, and abuse – Treble damages and civil penalties – Whistleblower actions – qui tam provision – Separate criminal and administrative remedies • HCF recoveries under FCA: $1.97 billion – 423 HCF qui tam actions – $330 million paid to whistleblowers in HCF cases (before attorney’s fees!) – In 2015, HCF accounted for majority of total FCA recoveries ($3.58 billion), qui tam suits (632), and whistleblower awards ($597 million) • What to expect? – Increased focus on individual accountability – Affordable Care Act changes: • Overpayments – 60-day rule [ U.S. ex rel. Kane v. Healthfirst, Inc. , - F. Supp. 3d -, 2015 WL 4619686 (S.D.N.Y. 2015)] • Kickbacks – 42 U.S.C. § 1320a-7b(g) – More statistical sampling [ U.S. ex rel. Ruckh v. Genoa Healthcare, LLC , 2015 WL 1926417 (M.D. Fla. 2015)] www.americanbar.org | www.abacle.org
Administrative Enforcement HHS-OIG FY14 : • Investigations resulted in: – 867 criminal actions (Medicare and Medicaid) – 539 civil actions and agency proceedings • Exclusions: 4,017 individuals and entities – 1,700 related to convictions for crimes against health care programs – 189 related to patient abuse and neglect • What to expect? – Increased use of administrative remedies • June, 2015 – HHS announced creation of 10-attorney team • Focus – civil monetary penalty actions and exclusions – Regulatory action on HCF matters – Self disclosure protocol – Technology and data analytics www.americanbar.org | www.abacle.org
Affordable Care Act Key provisions for criminal HCF enforcement: – Enhanced sentences for HCF offenses • Intended loss • Crimes over $1 million – Broadened definition of federal health care offense to include Anti-Kickback Statute, 42 U.S.C. § 1320a-7b • 18 U.S.C. 24(a) • Proceeds subject to forfeiture • Specified unlawful activity under money laundering statutes – Clarified intent element of criminal HCF statute (18 U.S.C. § 1347) and Anti-Kickback Statute (42 U.S.C. 42 U.S.C. § 1320a-7b) – knowledge of statute not required – Added subpoena power in patient abuse and neglect investigations www.americanbar.org | www.abacle.org
Affordable Care Act (continued) Key provisions for civil HCF enforcement: – Anti-Kickback Statute violations: • Claims tainted by kickbacks are per se false under False Claims Act • 42 U.S.C. § 1320a-7b(g) – Overpayments: • 42 U.S.C. § 1320a-7k(d) • 60-day rule – overpayment must be reported and returned within 60 days of identification • Possible basis for “reverse” false claims liability – 31 U.S.C. § 3729(a)(1)(G) – Overpayment = obligation under False Claims Act www.americanbar.org | www.abacle.org
Affordable Care Act (continued) Key provisions for administrative HCF enforcement: – Added funding – est. $350M over time – Mandatory compliance program – Medicare/Medicaid – Increased provider screening – Enhanced ability to suspend payment: • New standard – “credible allegation” of fraud • 42 C.F.R. § 405.371 – Increase data sharing – Expanded RAC program: • Medicare Parts C and D • Medicaid www.americanbar.org | www.abacle.org
Legislative Activity • Bipartisan support for HCF enforcement • Example: Patient Access and Medicare Protection Act • Bipartisan group of sponsors • Signed into law December 28, 2015 • Section 8 – criminal penalties up to 10 years and/or a fine of up to $500,000 for buying/selling beneficiary or provider identification numbers • Section 9 – HHS to develop plan to encourage increased data sharing between federal government and state Medicare programs to better identify fraud, waste, and abuse www.americanbar.org | www.abacle.org
Regulatory Activity Example: HHS-OIG solicits new kickback safe harbors – Issued December 23, 2015 – 80 Fed. Reg. 79803-02 – Calls for proposals for developing new and modifying existing safe harbor provisions under the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b www.americanbar.org | www.abacle.org
Compliance Programs Affordable Care Act requires compliance programs: • Section 6401 • Condition of enrollment in Medicare/Medicaid • Applies to providers of medical services, supplies, or other items • Extension of HHS-OIG initiative – www.oig.hhs.gov/compliance *Affordable Care Act Provider Compliance Programs: Getting Started Webinar Medicare Learning Network June 17, 2014/June 26, 2014 www.americanbar.org | www.abacle.org
George B. Hernandez, Jr., President/CEO, University Health System, San Antonio, TX www.americanbar.org | www.abacle.org
“A Leadership Approach to Compliance, Fraud and Abuse” DATE www.americanbar.org | www.abacle.org
Start with “Why” WHAT HOW WHY Simon Sinek TED Talk: Start with Why www.americanbar.org | www.abacle.org
Abby loves reading to her dad and is one of the brightest children in her 1 st grade, despite suffering a massive brain injury in a car crash when she was 6 months old. www.americanbar.org | www.abacle.org
The Parker triplets can now run together, after Matthew received his second kidney transplant at University Hospital. His 1 st grade teacher was his “perfect match” living donor. www.americanbar.org | www.abacle.org
Addressing Compliance Through Leadership • Setting the bar for excellence not just compliance- www.americanbar.org | www.abacle.org
Defining Leadership www.americanbar.org | www.abacle.org
Get the Right People on the Bus • Healthcare is complex! • You can’t do it alone! • Your System Can’t afford the wrong people! www.americanbar.org | www.abacle.org
Leadership Framework The Health System plans its goals and objectives with the following aims: • Improve quality, safety and outcomes • Improve the patient experience • Improve efficiency, and • Improve access to care www.americanbar.org | www.abacle.org
Develop a Culture of Discipline www.americanbar.org | www.abacle.org
Focus on Excellent. Achieving Results. Magnet: The “Gold Standard” in patient care 5% of U.S. hospitals U.S. News & World Report: #1 in San Antonio #6 in Texas Top 50 in the U.S. for Nephrology Specialized care: National Quality Measures for Breast Centers™ U.S. HHSC 2009 - 2014 CNOR Strong Certified Good health, safety & supporting our community: 2013 Excellence Executive Director’s Award through Diversity Award Technology, employee learning & efficiency: www.americanbar.org | www.abacle.org
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