Spring 2016 Will Bring New (Tougher) Rules to Combat Health Care Fraud

January 6, 2016

health-care-lawHealth care fraud is in for a bit of a face-lift come spring 2016.  Various rules proffered in the White House Office of Management and Budget’s fall 2015 rule agenda, and impacting the regulation of the government’s health care fraud investigations and enforcement, are in the final rule stage.  These new rules will:

(a)        Allow the Centers for Medicare and Medicaid Services (CMS) authority to enforce civil monetary penalties (CMPs) under provisions of the Affordable Care Act (ACA);

(b)        Increase the Office of Inspector General’s (OIG’s) ability to exclude providers from participating in government health care programs;

(c)        Introduce amendments and additions to the anti-kickback statute (AKS); and

(d)       Establish a time line and process for reporting and returning overpayments.

CMS Authority to Enforce CMPs.

A revision to the Civil Monetary Penalty Law (CMPL) at Section 1003, 42 Code of Federal Regulations, enables implementation of authorities under the ACA and other statutes.  The ACA authorizes CMS to impose CMPs against persons who:

(1)        Fail to grant timely access to the OIG;

(2)        Order and prescribe while excluded;

(3)        Make false statements, omissions or misrepresentations in an enrollment application;

(4)        Fail to return an overpayment; and

(5)        Make or use a false record or statement that is material to a false or fraudulent claim.

Changes to this section will also suffice in the reorganization of the CMPL to make the regulations more accessible to the public and to add clarity to the regulatory scheme.

To read the proposed rule in its entirety, click here.

OIG’s Increased Ability to Exclude Providers.

A second final rule will increase the OIG’s exclusion authorities under the ACA.  This new rule would allow the OIG to exclude providers from participating in government health care programs for the following reasons:

(1)        Failing to furnish payment information to Medicare or any other state health care program;

(2)        Making false statements, omissions or misrepresentations on provider applications; or

(3)        In the event an entity or individual is convicted of an offense related to the obstruction of an audit.

The new rule under the ACA also establishes the OIG’s authority to issue testimonial subpoenas in investigations of exclusion cases.  Additionally, the final rule proposed a modification to the reinstatement rules for providers excluded as a result of losing their licenses to rejoin the programs earlier if the circumstances are appropriate.

To read the proposed rule in its entirety, click here.

New Anti-Kickback Statute.

A third rule revision will amend the safe harbors to the AKS and add new safe harbors designed to protect certain payment practices and business arrangements from criminal prosecution and civil sanctions.  The final rule will also codify the ACA’s revised definition of “remuneration” and add a garnishing CMP provision to the existing CMPL regulations.  While the first two rule revisions offer final action dates of May 2016, this final rule is set for a summer deadline of June 2016.

To read the proposed rule in its entirety, click here.

Process for Reporting and Returning Overpayments.

The final rule set for final action on February 2016, will implement provisions of the ACA requiring the Secretary to establish a process for providers or suppliers to return overpayments to the Medicare program.  In addition, this new rule will establish a process for CMS to receive and apply the overpayments.

Furthermore, the rule revision proposes a 60-day time line for reporting and returning overpayments.  This 60-day requirement begins tolling from the date of discovery or knowledge of the overpayment.  This includes information received of potential overpayments which then imposes an obligation on the provider to make reasonable inquiries to discover if overpayments have in fact been received.

To read the proposed rule in its entirety, click here.