Jennifer Thomas

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In 2013, business owners with 50 or more full-time employees are expected to be finalizing their plans in response to the employer mandate health care reform, which becomes effective in 2014. Among the choices for business owners will be complying with the employer mandate or planning to pay the penalties for opting out, or executing plans to avoid the employer mandate by trimming their workforce or selling all or a portion of their business before 2014.

Beginning January 1, 2014, the so-called “employer mandate” under the Patient Protection and Affordable Care Act (t he “PPACA”) requires employers with 50 or more full-time equivalent employees (“FTEs”), with “full-time” defined as working at least 30 hours per week, to offer “minimum essential” and “affordable” health insurance to those employees and their dependents. Employers who do not comply will be subject to potentially significant penalties. Employers are not required to provide health care coverage for part-time employees, however, part-time employees must be counted as partial employees when determining whether an employer has 50 FTEs. There will also be various other new requirements under the PPACA effecting employers beginning in 2014 that are beyond the scope of this piece.

Many business owners are considering what they can do to get their FTE count below 50 and avoid the employer mandate and the associated cost increases and regulatory burdens.  Beware, however, that a reduction below this threshold effective January 1, 2014 may not avoid the employer mandate.   The proposed regulations provide that a business could be subject to the employer mandate if during 2013 it averaged 50 or more FTEs.  Employers would have the option to determine their 2013 headcounts by averaging the full 12 months of 2013 or any consecutive six-month period during 2013.  These regulations are in the process of being promulgated and are not yet final.

Additionally, the rules regarding who is an “employer” are not straight forward and contain traps for the unwary, and can render some plans to dodge the employer mandate ineffective. Similarly, having a basic understanding of the rules should alert business owners to seek advice if two or more related businesses may be considered as a single “employer” under the employer mandate rules.Continue Reading The Employer Mandate Health Care Reform: A Decision Point For Smaller Companies

The United States Department of Health and Human Services, Offices for Civil Rights (“OCR”) and BlueCross Blue Shield of Tennessee (“BCBST”) announced a settlement this week for $1.5 million for a breach of protected health information under the Health Information Portability and Privacy Act (“HIPAA”). In November 2009, BCBST submitted a Health Information Technology for…

The Department of Health and Human Services, Office of Inspector General (“OIG”), recently issued an advisory opinion in which the OIG concluded that an arrangement between a primary care physician and an allergy testing and immunotherapy laboratory company (“Company”) could potentially generate prohibitive remuneration under the Federal Anti-Kickback Statute possibly resulting in administrative sanctions. Under…

On November 16, 2011, Louisiana Department of Health and Hospitals’ (“DHH”) Secretary Bruce Greenstein announced that the Centers for Medicare and Medicaid Services (“CMS”) had approved an amendment to Louisiana’s Medicaid State Plan to implement the Coordinated Care Networks (“CCN”) also known as “Bayou Health.” The movement by DHH toward CCNs began in February, 2011, when DHH issued a Notice of Intent to provide for the implementation of the CCNs. On June 20, 2011, DHH issued the final rules for the CCNs. DHH has since awarded contracts to five private insurers who will administer the CCNs. The Coordinated Care Network Program Prepaid (“CCN-P”) contracts were awarded to:

  1. Louisiana Healthcare Connections, Inc.
  2. Amerihealth Mercy of Louisiana, Inc.
  3. AmeriGROUP Louisiana, Inc.

The Coordinated Care Network Program Shared Savings (“CCN-S”) contracts were awarded to:

  1. UnitedHealthcare of Louisiana, Inc.
  2. Community Health Solutions of America, Inc.

Continue Reading Louisiana Moves One Step Closer To Coordinated Care Networks For Medicaid Beneficiaries

On June 21, 2011, a Federal Grand Jury in Virginia filed an indictment against a physician for criminal violations of the Health Insurance Portability and Accountability Act (“HIPAA”). The indictment alleges three (3) counts of unauthorized disclosure of a patient’s individually identifiable health information to an agent of the patient’s employer. The indictment alleges that…

In accordance with the Patient Protection and Affordable Care Act, the Secretary of the United States Department of Health and Human Services (the “Department”) issued its report to Congress on the National Strategy for Quality Improvement in Health Care on March 21, 2011 (“National Quality Strategy”). The Department will use the National Quality Strategy to develop programs, regulations, new initiatives, and tools for evaluating the Federal health care efforts.

The National Quality Strategy is based on three (3) broad national aims:

  1. Better care by making healthcare more patient-centered, reliable, accessible, and safe;
  2. Healthy people/healthy communities by improving the health of the U. S. population with supportive proven interventions to address behavior, social, and environmental determinants of health in addition to delivering higher-quality care;
  3. Affordable care by reducing the cost of quality healthcare for individuals, families, employers, and government.

Continue Reading U.S. Department of Health and Human Services Issues Report to Congress on National Strategy for Quality Improvement in Health Care

The United States Court of Appeals for the Fifth Circuit in U.S. v. Isiwele, No. 10-4037 (5th Cir. 3/7/2011) considered an appeal in a Medicare/Medicaid fraud case where the defendant was convicted of multiple counts of healthcare fraud and conspiracy to pay kick-backs in connection with a scheme to fraudulently bill Medicare and Medicaid for power wheelchairs. Some of the issues on appeal were whether the District Court correctly applied the “loss amount,” “mass marketing,” and “abuse of trust” enhancements for sentencing.

The defendant was a Medicare/Medicaid durable medical equipment provider who allegedly used a recruiter to go into elderly and low income communities to gather billing information from beneficiaries after Hurricane Katrina. The defendant was tried and found guilty on 16 counts of healthcare fraud and one count of conspiracy to pay illegal remunerations in violation of 18 U.S.C. §1347 and 42 U.S.C. §1320a-7b(b)(2)(A). For sentencing, the District Court applied a 14-level increase to the defendant’s base offense level on the basis of the “loss amount” occasioned by the fraud. The loss amount was calculated according to the amount billed to Medicare and Medicaid. However, the defendant argued on appeal that the proper “loss amount” was the total amount of payment for the wheelchairs by Medicare and Medicaid. The District Court also applied a 2-level increase to the offense level for the use of “mass marketing” and another 2-level increase for an “abuse of trust” based on the defendant’s status as a DME supplier for Medicare and Medicaid. The District Court sentenced the defendant to 97 months imprisonment and 3 years of supervised release and was ordered to pay a $1,700.00 special assessment and restitution in the amount of $201,397.34.Continue Reading The U.S. Fifth Circuit Court of Appeals Adopts Standards for Healthcare Fraud Sentencing

The United States Supreme Court on March 21, 2011 denied a writ application by a physician who was appealing the lower Federal court’s decision dismissing the physician’s civil rights action against the University of Illinois where the physician alleged numerous violations of his constitutional rights. See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010), writ denied, No. 10-913 (2011). The physician had been the head of the Department of Surgery at the University when he was notified that a lawsuit was being contemplated against him due to the death of a former patient. The physician alleged that when the University learned of the potential lawsuit it conspired with other defendants to discredit the physician’s reputation and executed a settlement agreement with the deceased’s family. The physician further alleged that the settlement agreement was a step in a conspiracy to destroy his reputation because the settlement agreement was entered merely so the defendants could report the settlement of the medical malpractice claim to the Illinois Department of Financial and Professional Regulation and the National Practitioner Databank. The physician filed suit alleging free speech, equal protection and procedural due process claims against the defendants.
Continue Reading Court Says No Violation of Physician’s Constitutional Rights When Hospital Settles Medical Malpractice Case

In the wake of the Fraud Enforcement and Recovery Act of 2009 (FERA), which was enacted by Congress on May 20, 2009 and expands the federal False Claims Act, the Louisiana Department of Health and Hospitals (“DHH”) announced on October 29, 2009, a new fraud initiative against agencies who deliver in-home direct care to Medicaid beneficiaries.  DHH is partnering with the Louisiana Attorney General’s office to audit of all Medicaid in-home direct care providers. DHH will engage the services of six (6) audit firms to perform the audits.  Any potential fraud or abuse identified by the auditors will be reported to the Attorney General for prosecution. Funding for these audits will be provided by a $3,000,000.00 fund created with dollars previously recovered from fraudulent providers.
Continue Reading Louisiana Department of Health and Hospitals Plans to Audit All In-Home Direct Care Providers to Fight Medicaid Fraud

The Louisiana Supreme Court has issued two decisions in the past year, Borel v. Young and Warren v. LAMMICO, which are favorable to Louisiana health care providers. In the Warren case, a potential plaintiff waited almost four years from the date of her father’s death to file a wrongful death and survival claim against the health care providers.  The plaintiff had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods (a.k.a. statute of limitations) required by La. R.S. 9:5628.  The plaintiff’s mother and sister had already filed a timely complaint with the Louisiana Patients’ Compensation Fund, proceeded with a Medical Review Panel, and subsequently filed a lawsuit.  The issue before the Court was whether the new plaintiff could file her own wrongful death and survival claim that would “relate back” to the original, timely claims of her mother and sister.
Continue Reading Louisiana Supreme Court Upholds Special Prescriptive Periods for Medical Malpractice Cases