1. 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
Special Agent Jeff Richards
Baton Rouge Field Office
U.S. Dept. of Health & Human Services
Office of the Inspector General
Office of Investigations

2. 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

3. 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

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

5. 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

6. 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

8. 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.

9. 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

10. 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

11. 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

12. 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.

13. 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

14. 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

15. 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

16. 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

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

18. Health Care Fraud Enforcement and Lessons Learned