Health Care Law – What you don’t know CAN hurt you.
East Tennessee Medical News – April 2008
By Diana L. Gustin and Ian P. Hennessey
Some health care law statutes are well known for just one aspect of the legislation while other sections are just as important. Following are examples:
HIPAA – more than a confidentiality provision:
When most people hear the acronym ‘HIPAA’ (which stands for Health Insurance Portability and Accountability Act) they think of confidentiality provisions to safeguard patient health information. There are other provisions within the statute that are equally important. For example, HIPAA fraud authorities apply to “health care benefit programs” and this term includes private health plans. In other words, this provision of law puts private insurance transactions under the HIPAA criminal health care fraud, theft, and embezzlement provisions (18 U.S.C. § 1347 and 669) as authority for review of providers’ conduct. While most providers are familiar with the Medicare and Medicaid/TennCare governmental authorities which criminalize certain conduct, they might not be aware of the HIPAA provision which extends the long arm of the law to the private payor transactions as well.
Federal Anti-kickback statute – more than a payment for referral:
Social Security Act Section 1128B, makes it a felony for a person to knowingly and willfully offer anything of value in return for a referral under a federal health care program. Fines of up to $25,000, imprisonment of up to five years and exclusion from participation are possible penalties for a violation of this law. A kickback is typically understood as a payment for a referral but there are other situations which might be construed as a violation of this provision of law, even though money does not change hands in the traditional sense.
The routine waiver of co-payments and deductibles might be an innocent gesture of good will. Nevertheless, it could be considered unlawful, depending upon the circumstances. The OIG issued a Special Fraud Alert regarding the routine waiver of co-payments on deductibles under Medicare Part B in 1991 which offers guidance. (http://oig.hhs.gov/publication/hcfac.html). The Safe Harbor regulations also address waivers of co-payments and deductibles that would not be considered a violation of the statute. (See 42 Code of Federal Regulations § 1001.952(k)). In other words, the statute prohibits conduct, the OIG interprets the statute, and a regulation creates an exception for certain circumstances. Providers might not think waiving their right to collect money could ever cause a problem, much less be considered some form of a kickback. If the action is construed as such, or as an enticement to over-utilize services or a misrepresentation of the actual charge for the service, serious problems could arise.
Civil Monetary Penalties – More than a False Claims Prohibition:
Social Security Act Section 1128A provides authorization to the Office of Inspector General at the Department of Health and Human Services for the imposition of civil penalties on any person, organization, agency or entity that knowingly presents or causes to be presented false or fraudulent claims. Penalties apply to services that were not provided as claimed (up-coded or possibly mis-coded) or claims that show a pattern of not being medically necessary. Inducements to patients to encourage over-utilization of services can be considered a violation of this provision. While most people think of false claims as an intentional misrepresentation on a bill, other conduct can be considered a violation of this provision of law. Offering a free-in-home safety assessment could potentially trigger civil monetary penalties according to OIG Advisory Opinion No. 06-01. Advisory Opinions discuss free services as potential violations of the prohibition on inducements to beneficiaries. Section 1128A(a)(5) of the Act provides for the imposition of civil monetary penalties against any person who gives something of value to a beneficiary if it is likely to influence the selection of a particular provider, practitioner or supplier of any service for which payment may be made in whole or in part by Medicare or Medicaid.
These are just a few examples of situations that may not immediately come to mind when we think of HIPAA, Anti-kickback and False Claims. Confusion based on the complexity of the statute and the body of law that develops as the cases and opinions are rendered can implicate a broad array of business and professional activities.
Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice. |
