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In Oliver v. Magnolia Clinic, 2010-2785 (La. 3/25/11), 57 So. 3d 308, the Louisiana Supreme Court vacated a Third Circuit ruling that nurse practitioners were not covered by the Louisiana Medical Malpractice Act and did not benefit from the cap on damages. The Supreme Court remanded the case to the Third Circuit for an en banc consideration in order to obtain a majority opinion on the issues presented.

Upon original hearing, two judges of a five judge panel of the Third Circuit ruled the Medical Malpractice Act’s inclusion of nurse practitioners within its ambit violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and was, therefore, unconstitutional. Two judges on the panel ruled that the inclusion of nurse practitioners as health care providers entitled to the protection of the Medical Malpractice Act did not go into effect until the amendment of the statute in 2009. Because the alleged malpractice of the nurse practitioner occurred in 2000-2001, the statute did not cover the defendant nurse practitioner, and she was not entitled to a cap on the damages awarded at trial.Continue Reading Unsettled Question of Medical Malpractice Act Coverage For Nurse Practitioners in Louisiana

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

On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and other Federal agencies issued long anticipated proposed regulations addressing legal issues and other requirements for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program created last year by the health care reform legislation.

The following proposed regulations and documents were issued on March 31, 2011:

Centers for Medicare & Medicaid Services (CMS)

CMS issued a proposed rule that would implement Section 3022 of the Affordable Care Act related to Medicare payments to providers of services and suppliers participating in Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program. Under the provisions in Section 3022 for ACOs, providers of services and suppliers can continue to receive traditional Medicare fee-for-service payments under Part A and B, and be eligible for additional payments based on meeting specified quality and savings requirements.

The CMS proposed rule for ACOs is available online at the CMS web site here. Continue Reading CMS and Other Federal Agencies Issue Proposed Regulations Regarding Accountable Care Organizations

The Patient Protection and Affordable Care Act that was promulgated in March, 2010, includes provisions for creating Accountable Care Organizations (“ACO”). An ACO is an “organization” that is intended to manage the care of a minimum of 5,000 Medicare beneficiaries, with the purpose of improving outcomes to those beneficiaries. In the event an ACO is capable of achieving that goal, the resulting savings to the Medicare program will be shared by the federal government and the ACO.

How an ACO may be structured is left to the imagination and ability to appropriately structure an ACO arrangement. The federal government has not identified what an ACO structure must be. It may, for example, include relationships among hospitals, physicians/physician organizations, home health agencies, rehabilitation agencies, or any single or a combination of any of these types of providers. An ACO may even contain a payer component.Continue Reading Where Do You Stand on the Subject of Accountable Care Organizations?

On January 4, 2011, the U.S. Department of Justice (DOJ) announced that seven additional hospitals had agreed to pay $6.3 million to resolve allegations under the False Claims Act (FCA) related to overcharging Medicare for kyphoplasty procedures. These settlements are the fourth round of settlements with hospitals by the DOJ to resolve kyphoplasty-related claims under the False Claims Act. Including the settlements announced on January 4, 2011, the DOJ has entered into similar settlements with 25 hospitals for approximately $26 million.Continue Reading Department of Justice Continues to Use Data Mining of Billing Errors in False Claims Act Settlements with Hospitals under Kyphoplasty Initiative

The Centers for Medicare & Medicaid Services (CMS) recently issued a Proposed Rule in the September 23, 2010 Federal Register to implement certain program integrity changes mandated by the Patient Protection and Affordable Care Act (“ACA” or “Health Care Reform Legislation”). Besides addressing new provider screening and enrollment requirements under the ACA, CMS solicited public comments on the compliance program requirements included in the ACA for Medicare and Medicaid providers.

The Health Care Reform Legislation contains two separate provisions mandating compliance programs. Section 6401(a) of the ACA requires a provider of medical or other items or services or a supplier, as a condition of enrollment in Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”), to establish a compliance program that contains certain core elements. Section 6102 of the ACA specifically requires Medicare skilled nursing facilities (“SNF”) and Medicaid nursing facility (“NF”) to have an effective compliance and ethics program in preventing and detecting criminal, civil, and administrative violations. SNFs and NFs are subject to both compliance plan requirements under sections 6102 and 6401(a).
 Continue Reading Health Care Reform Advisory: CMS Solicits Comments to Compliance Program Requirements

The Patient Protection and Affordable Care Act (the Act) included a new requirement that nursing homes have in operation a compliance and ethics program within 36 months of the effective date of the Act, or by March 23, 2013. The Secretary and the Inspector General of the Department of Health and Human Services must promulgate regulations by March 23, 2012 for an effective compliance and ethics program. The formality of the program, including the establishment of written policies and procedures to be followed by employees, will depend on the size of the organization. An organization that operates five or more facilities will be expected to have a more formal program.
Continue Reading New Compliance and Accountability Requirements For Nursing Homes

The Nursing Home Residents’ Bill of Rights (La. R. S. 40:2010.8) was amended effective June 8, 2010 to provide more freedom and more choice to residents and to remove some reasonable restrictions imposed by nursing homes.

Nursing homes must now provide the right to “immediate access” to certain state and federal government workers, the resident’s individual physician, immediate family members or other relatives of the resident, the resident’s clergy, and other visitors. The prior version of the statute required nursing homes to have flexible visiting hours and to allow for visitation. The new version of the statute allowing for immediate access does not take into consideration visiting hours. However, the nursing home may impose “reasonable restrictions” to protect the security of all residents and may change the location of visits to assist in care giving or to protect the privacy of other residents. The nursing home must also provide “reasonable access” to any resident by any entity or individual that provides health, social, legal or other services to the resident.Continue Reading Nursing Home Bill of Rights Changes