Bass, Berry & Sims is pleased to announce the release of its sixth annual Healthcare Fraud and Abuse Review 2017. The Review, compiled by the firm’s Healthcare Fraud Task Force, is an in-depth and comprehensive review of enforcement settlements, court decisions and developments affecting the healthcare industry.

The Review details all healthcare-related False Claims Act settlements from last year, organized by particular sectors of the healthcare industry. In addition to reviewing all healthcare fraud-related settlements, the Review includes updates on enforcement-related litigation involving the Stark Law and Anti-Kickback Statute and looks at the continued implications from the government’s focus on enforcement efforts involving individual actors in connection with civil and criminal healthcare fraud investigations.

Continue Reading Bass, Berry & Sims Releases Healthcare Fraud and Abuse Review 2017

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Bass, Berry & Sims is pleased to announce the release of its fifth annual Healthcare Fraud and Abuse Review 2016. The Review, compiled by the firm’s Healthcare Fraud Task Force, is an industry-leading guide to healthcare fraud developments and provides an outlook as to what lies ahead in 2017.

The Review details all healthcare-related False Claims Act settlements from last year, organized by particular sectors of the healthcare industry. It also provides a comprehensive review of developments in FCA-related litigation, covers enforcement-related litigation involving the Stark Law and Anti-Kickback Statute, and looks at the unfolding implications of the DOJ’s Yates Memo and its emphasis on individual accountability.

Topics covered in the Review include:

  • Noteworthy Settlements
  • Issues to Watch
  • False Claims Act Update
  • Stark Law/Anti-Kickback Statute
  • Pharmaceutical and Medical Device Developments

Click here to view the Review.

Healthcare_Fraud_2015Bass, Berry & Sims is pleased to provide its annual Healthcare Fraud and Abuse Review, which highlights significant enforcement trends and legal developments, discusses recent cases and settlements affecting the healthcare industry, and provides an outlook on what lies ahead in 2016.

During the previous year, Bass, Berry & Sims attorneys have represented virtually every type of provider in the healthcare industry in civil and criminal healthcare fraud investigations and related litigation. We have incorporated this experience into our Healthcare Fraud and Abuse Review for the benefit of our clients and friends and hope that the Review will be a valuable resource for healthcare providers facing complex compliance and fraud and abuse-related issues.

The Healthcare Fraud and Abuse Review offers a concise discussion and analysis of such topics as:

  • Noteworthy Healthcare Settlements
  • Issues to Watch
  • False Claims Act Update (“FCA”)
  • Stark Law/Anti-Kickback Statute Developments
  • Pharmaceutical and Medical Device Developments

Click here to view the Review.

Matt Curley was interviewed by Becker’s Hospital Review in connection with an article dated February 10, 2016, about how healthcare providers can take practical steps to reduce the risk of employees and third parties pursuing whistleblower lawsuits when they encounter potential compliance issues. The comments below expand upon that interview.

Healthcare providers receiving reimbursement from government payers know there is a significant risk of encountering whistleblowers under the False Claims Act. Last year, there were more than 600 new whistleblower lawsuits filed under the False Claims Act. And, during the previous five years, there have been nearly 3400 new False Claims Act lawsuits filed by whistleblowers.

Whistleblowers received nearly $600 million in FY 2015 year as their share of the proceeds of False Claims Act judgments and settlements. That amount brought total recoveries during the previous five years to nearly $2.5 billion.

With the often times protracted, expensive, and disruptive government investigations that can follow the filing of a whistleblower lawsuit under the False Claim Act, practical measures that can reduce the possibility of whistleblower activity are certainly worth consideration.

Continue Reading Practical Tips to Prevent Whistleblowers

Bass, Berry & Sims attorney Brian Roark was interviewed for an article in Becker’s Hospital Review and identified five trends that will impact False Claims Act (FCA) recoveries in 2016. Several case rulings from 2015 and a shift in government focus has the potential to allow for continued financial recoveries in the coming year, especially within the healthcare industry.

The five trends outlined in the article include:

  1. Use of extrapolation
  2. Focus on physician compensation
  3. Spotlight on individual liability
  4. Disclosure of overpayments
  5. Recognition of implied certification

The full article, “5 False Claims Act Trends, Cases that Will Fuel Recoveries in 2016,” was published by Becker’s Hospital Review on January 6, 2016 and is available online.

What do the recent multimillion dollar FCA settlements tell healthcare providers about physician compensation arrangements? Standing alone, these settlements are cautionary examples of arrangements that may subject hospitals and physicians to increased scrutiny. These settlements, however, come on the heels of the recent OIG fraud alert – “Physician Compensation Arrangements May Result in Significant Liability,” and highlight the need for healthcare providers to proactively review physician arrangements for compliance with Stark and the Anti-Kickback Statute. For further discussion of the issues raised by these settlements and suggested tips for healthcare providers evaluating physician arrangements, please see this recent article, “Under the Knife: Enforcement Actions Increase Scrutiny on Physician Compensation Arrangements.”

Among the many changes under the Affordable Care Act (ACA), few have generated as much discussion as Section 6402(d), requiring healthcare providers to report and return any overpayment within 60 days of the date the overpayment is “identified” or risk liability under the FCA for a “reverse” false claim. Providers have grappled with how and when this provision would be applied as enforcement agencies have largely remained silent in offering an interpretation. This silence changed last week as a federal district court issued a ruling defining what it means to “identify” an overpayment followed by the public announcement of a settlement resolving an FCA action based upon a provider’s failure to refund credit balances.  Both cases demonstrate the importance of providers exercising due diligence in promptly reviewing and addressing potential overpayment situations.

On August 3, 2015, the U.S. District Court for the Southern District of New York offered the first judicial interpretation of the ACA’s 60-day rule, siding with DOJ’s interpretation of  “identified” in U.S. ex rel. Kane v. Healthfirst, Inc. et al., No. 1:11-cv-02325 (S.D.N.Y.).  And, on August 4, 2015, the day following the Kane decision, providers of pediatric home nursing services reached a joint FCA settlement in two whistleblower cases, U.S. ex rel. Odumosu v. Pediatric Servs. of Am. Healthcare, N.D. Ga., No. 1:11-cv-1007, and U.S. ex rel. McCray v. Pediatric Servs. of Am. Healthcare, S.D. Ga., No. 4:13-cv-127. The FCA settlement is the first settlement of its kind based upon a healthcare provider’s failure to identify potential overpayments.

Our full discussion of these cases and the implications for healthcare providers can be found here.

In a welcomed move, CMS has proposed changes to the federal physician self-referral law (Stark Law) designed to improve consistency and interpretability and alleviate the number of technical violations leading to self-disclosures. This move is in stark (pun-intended) contrast to the stringent interpretation of the Stark Law by the Fourth Circuit in its decision in U.S. ex rel. Drakeford v. Tuomey Healthcare System, Inc., earlier this month. Given these sizable developments, what has changed and what are the implications for the healthcare industry?  Our recent article discusses the Fourth Circuit’s opinion and what is to come for healthcare providers navigating the Stark Law.

The False Claims Act (FCA) is just one of the handful of federal laws that government contractors must adhere to or they run the risk of prosecution by a federal agency, such as the DOJ or SEC. As cited in an article I recently co-authored, “[t]he civil penalty for FCA violations can be significant, with payments ranging from three times the damages incurred by the government, plus fines of $5,500, to $11,000 for each false claim that is filed or caused to be filed.”

In the article written with my colleagues Todd Overman, Bryan King and Robert Platt that was published by Westlaw Journal – Government Contracts, we outline the best practices a government contractor should follow during an internal investigation to obtain reliable findings and maintain credibility with government enforcement agencies.

The full article, “Contractors in the Crosshairs: Investigations Passing Government Scrutiny,” was published June 22 by Westlaw Journal – Government Contract and is available in the PDF.

Matt Curley, John Kelly and Shuchi Parikh authored an article outlining the dangers of data misreporting for Medicare Advantage organizations and Medicare prescription drug plans. The article identifies areas of potential liability to help organizations avoid enforcement activity related to fraud and abuse allegations.

The article, “Data Misreporting Risks for Medicare Advantage and Prescription Drug Plans,” was published by Managed Healthcare Executive and featured online. The article also will be included in the May 2015 print edition.