Compliance and Enforcement Roundtable Discussion MGMA Louisiana & MGMA Mississippi Southern Summer Conference August 17, 2017 New Orleans, LA Clay J. Countryman Breazeale, Sachse & Wilson, L.L.P. Baton Rouge, LA clay.countryman@bswllp.com Special Agent Jeff Richards Baton Rouge Field Office U.S. Dept. of Health & Human Services Office of the Inspector General Office of Investigations

Focus of Presentation Overview of the Stark Law, False Claims Act and Anti-Kickback Statute Discuss the HHS-OIG’s Strike Force Operations Compliance Risk Areas for Physician Practices Compliance recommendations and discussion of best practices

Does your Organization have a Compliance Officer (and Privacy Officer) to handle Stark Law, HIPAA and other compliance related issues? No Yes Don’t know

How would you describe your Organization’s compliance program? Comprehensive Basic Somewhere between basic and comprehensive We don’t have one

The Stark Law The Physician Self-Referral Statute, 42 U.S.C. §1395nn, prohibits: Physicians from referring Medicare/Medicaid patients for certain designated health services (DHS) to an entity with which the physician or a member of the physician’s immediate family has a financial relationship. An entity from presenting or causing to be presented a bill or claim to anyone for a DHS furnished as a result of a prohibited referral. Unless a statutory or regulatory exception applies

The Stark Law Strict liability statute, proof of specific intent to violate the law is not required Sanctions include: Overpayment/ Refund liability of amounts collected as a result of improper billing False Claims Act Liability Civil monetary penalties and program exclusion for knowing violations Potential $15,000 CMP for each service

Federal Anti-Kickback Statute Prohibits the knowing and willful payment of “remuneration” to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., Medicare, Medicaid). Remuneration includes anything of value (e.g., cash, free or below fair market value rent, excessive compensation for medical directorships or services). Covers both payers and receivers of kickbacks. Voluntary safe harbors for specific payment and business arrangements.

Anti-Kickback Statute - Penalties Criminal Fines up to $25,000 per violation Up to a 5 year prison term per violation Civil False Claims Act liability Civil monetary penalties and program exclusion Potential $50,000 CMP per violation Civil assessment of up to 3 times amount of kickback

Examples of Arrangements Under Anti-Kickback and Stark Law Scrutiny Joint Ventures Compensation Discounts Vendor agreements Swapping Call Coverage Co-marketing/Practice Support Speaker Payments Entertainment

Federal False Claims Act The False Claims Act (FCA) makes it unlawful for any person to, among other things, knowingly: Present, or cause to be presented, a false or fraudulent claim for payment or approval Conceal or knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the government Providers have an obligation to report and return known overpayments to the government

False Claims Act – “Knowingly” “Knowingly” or “Knowing” mean that a person: has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or Acts in reckless disregard of the truth or falsity of the information.

False Claims Act Penalties Violations of the Anti-Kickback Statute are punishable under the False Claims Act Civil penalties include fines of not less than $5,500 and not more than $11,000 per claim, plus 3x the amount of damages sustained by the government. Penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015, the FCA penalties range from $10,781 to $21,563

Common Theories in False Claims Act Cases Misrepresentation of services rendered Uses of inappropriate higher-paying CPT codes and E&M codes Misrepresentation of reason for services rendered Misrepresentation of place of service Office v. outpatient hospital department

Compliance Risk Areas: Recent Settlements Claims submitted for new patient e & m visits and patients were established Inappropriate use of modifiers CT equipment and services provided below fair market value Electronic Health Records Counterfeit / Non-FDA Approved Drugs

Compliance Risk Areas: Recent Settlements Services billed for non-physician providers as “incident to” (i.e., physician not on-site) Services rendered when requisite physician supervision requirements were not satisfied Providers not enrolled in the Medicare program Employed an individual who was excluded from participation in Federal health care programs

Compliance Resources OIG web site: www.oig.hhs.gov/ Practical Guidance for Health Care Governing Boards Measuring Compliance Program Effectiveness: A Resource Guide

Health Care Fraud Enforcement and Lessons Learned