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filesA Denver area Federally Qualified Health Center (FQHC) must pay $400,000 in fines and implement a corrective action plan for HIPAA violations that resulted from a hacker’s breach into the health center’s employee emails.  The breach led to theft of electronic protected health information (ePHI) of 3,200 individuals. Although the HIPAA violations were a result of a malicious breach, Metro Community Provider network (MCPN) was found at fault by OCR officials after OCR’s investigation showed MCPN did not conduct a risk analysis of its ePHI environment and waited another two months after discovery of the breach to conduct a risk analysis. MCPN had no system of risk management in place to determine what vulnerabilities the center was susceptible to.

Georgia Healthcare and HIPAA Compliance Lawyers

The HIPAA Privacy Rule was enacted to protect patient health information and  secure for patients more control over the use of their private information. Under Federal law, healthcare businesses have a strict obligation to protect the information of patients. While there is no private cause of action for violations of HIPAA, complaints can be filed with the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS), states’ Departments of Health, federal third-party Payors (Medicare, TRICARE, VA, etc), state licensing boards, and, in some cases, state law may provide a cause of action for individuals under specific state privacy laws. Such complaints can lead to investigations, fines and other negative consequences for a healthcare professional or practice.

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gavel-952313-mThe Eleventh Circuit Court of Appeals denied an appeal and upheld the convictions of a physician assistant and a patient recruiter in Florida for their actions in allegedly defrauding the Medicare program of $200 million in false claims. Both the physician assistant, Roger Bergman, and the patient recruiter, Rodolfo Santaya, worked for American Therapeutic Corporation based out of Miami.  ATC provides psychiatric care for patients with mental illness.

Medicare Fraud

Bergman was alleged to have submitted false claims to the Medicare program by falsifying patient documents to make it appear that the patients were eligible for the programs offered at ATC, but in fact they were not. In addition, Bergman submitted false patient documentation that stated Medicare-eligible care was given to patients when no such services were ever provided. Claims for payment from the Medicare program for false or ineligible services were billed by ATC and paid out to the company. Santaya’s alleged role in the fraud scheme was to go to low-income neighborhoods, apartment complexes, and retirement homes to recruit disabled or elderly patients to ATC, receiving up to a $45 kickback for each patient obtained. The patients brought in by Santaya would be ineligible for the outpatient psychiatric care provided by ATC or did not even have medical needs necessitating psychiatric care at all. Santaya was alleged to have focused only on Medicare beneficiaries in his recruitment efforts and instructed the patients to lie about their symptoms in order to administer billable services to them. The subject convictions and sentences affirmed by the Eleventh Circuit are 15 years for Bergman and 12 years for Santaya.

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1238683_untitledPrescribing opioids for pain can be a routine part of medical treatment, however, opioids are a national dilemma and though patients may need them for pain management, they are also highly addictive. Some patients being administered these prescriptions are recovering from opioid addictions and face a high-risk of relapse. And, because some more unscrupulous health care providers use “pill mills” to make money, there is a strong push in many states to protect patients. This push has brought about a new idea – patient directives that notify providers NOT to prescribe or administer opioids to them.

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medical-doctor-1314903-m1Many medical practices and health care services businesses confront circumstances in their business model that justify unique and flexible arrangements with physicians to meet healthcare delivery needs (e.g. call coverage).  Unique situations for health care delivery models lead to creative employment situations that may prompt evaluation of whether treatment of physicians as independent contractors (versus employees) makes business and financial sense.  Too often, this issue is evaluated short shrift, however, leaving the owners of a medical practice unknowingly exposed to serious financial risks that could have been avoided.

Georgia and South Carolina Medical Practice and Physician Employment Attorneys

As with many legal considerations, factual details matter.  Therefore, each situation should be examined independently giving due regard to specific facts, rather than relying upon general legal notions one has heard. Each medical practice employer’s situation is inherently different to some degree.  Given the fact driven analysis required, what one practice does may not be reliable for another practice. Therefore, medical practice owners and decision makers should not defer too much to what is heard about what others do; others may be wrong. With regard to the question of whether a contracted physician can be properly treated as 1099 versus W2, it is best for a medical practice to consult with its law firm and permit the law firm to fully evaluate the details.

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hammer-to-fall-673264-mOn January 19, 2017, the United States Department of Justice (DOJ) issued a press release announcing a deal reached with Costco Wholesale to resolve DOJ’s disputed allegations that Costco violated Federal law in filling prescriptions by lax protocol.  The allegations against Costco stem from an investigation by the United States Drug Enforcement Agency (DEA) Diversion Groups based in Seattle, Los Angeles, Sacramento and Detroit.

Georgia Healthcare and Business Litigation Law Firm

Our Atlanta and Augusta-based business law firm closely follows healthcare industry legal developments, including the healthcare fraud and abuse matters.  A strong focus of the DEA and supporting Federal and State law enforcement activities is the current epidemic of Opioid abuse in the United States.  According to the United States Centers for Disease Control and Prevention (CDC), deaths from Opioid overdose in the United States have quadrupled since 1999; and during the same period, sales of these drugs quadrupled.  The most common such Opioids are Methadone, Oxycodone and Hydrocodone.  “Pill mills” are a principal target of DEA and State law enforcement efforts.  To combat pill mills and other circumstances that may give rise to misuse of opioids and controlled substances, the DEA will pursue healthcare providers and entities that fail to strictly follow legal protocols in prescribing or dispensing controlled substances.

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US-SUP-CTThe United States Department of Health and Human Resources (HHS) and the United States Department of Justice (DOJ) recently issued a joint annual report for 2016 (the Report) providing details about the federal fraud and abuse program and, in particular, annual financial recoveries.  Fraud and abuse law enforcement efforts continued to be a top priority for the Federal Government and an important means of defraying the rising costs of our nation’s healthcare delivery system.  According to the Report, the Federal Government obtained over $2.5 billion in additional revenue in 2016 by way of health care fraud judgments and settlements.

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1330873_courthouseThe US Department of Health & Human Services (HHS) says that it cannot meet the requirements of a federal court order to reduce the horrible backlog of Medicare appeals cases that for many years has plagued the United States and adversely impacted the ability of health care providers to be paid.  The problem has been under scrutiny for some time, and the US General Accountability Office (GAO) has outlined in a report various inefficiencies to which the GAO attributes the problem. Health care providers in many instances are completely unable to, in a timely manner, vindicate their claims in Medicare appeals.  Nevertheless, HHS contends that it needs more money from Congress to fix the problem.

In a case styled Am. Hosp.Assn v. Burwell, D.D.C., No. 14-cv-851, the United States District Court for the District of Columbia entered a recent Order wherein the Federal Court set annual backlog reduction targets of 30, 60, 90 and 100 percent over the next four years.  In the case, the American Hospital Association and affiliated entities requested that the United States District Court compel HHS to adjudicate pending Medicare-reimbursement appeals in compliance with statutory deadlines. As explained in the Order, hundreds of thousands of appeals have languished in a terrible backlog.  In the case, HHS contended that mandamus (i.e., a Court-ordered solution) was not necessary and that HHS would, eventually, resolve the issue.  The Plaintiff, however, contended that a Court-ordered (and enforceable) time table for a solution was required in light of HHS’ failure thus far to fix the problem.  The Plaintiff proposed the following timetable for reduction of the backlog:

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u-s-supreme-court-hallway-1224332-e1481731366543-272x300So much focus is placed on the federal “whistleblower” statute, the Federal False Claims Act, that similar acts, such as various States’ versions of the law, are often not as well known.  All have a common thread: they are a tool to recover tax payer money lost to fraudulent acts and serve to deter such fraud. Georgia has two false claims act statutes designed to combat fraud and abuse in Georgia.

Georgia Healthcare Whistleblower Law Attorneys

A brief history of this area of law puts the modern Federal and Georgia False Claims Acts in proper light.  The Federal False Claims Act was passed during the Civil War era in response to fraud by government contractors who seized the opportunity of intense government spending on the war to defraud the government.  An essential concept undergirding the earliest versions of the law was to create a financial incentive for one dishonest contractor — a “relator” — to turn in another.  Hence the original law (1863) provided that the relator could be paid up to one-half of the government’s recovery in a false claims act case.  The original law survived for decades as a remedial statute designed as a means for the Federal Government to recover what were thought to be, without the law, unrecoverable substantial losses for the treasury that attended dishonest acts. As one court explained:

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Image result for hospital signAs discussed in part 1 of this post, closing a medical practice can be burdensome and complicated. In the first segment, notification to the licensure board, patients, employees, and DEA was discussed. Some other smaller steps a physician should consider taking to ensure a clean closure include:

  • notifying the practice’s accountant;
  • notifying the office/property insurer;
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As the healthcare market witnesses a rise in consolidation, many small medical practices are closing their doors. Whether the physician is retiring, moving, or joining a larger system, closing a practice can be a much larger hassle than most physicians expect. Closing a medical practice involves several steps, including, but not limited to: notifying patients of the intention to retire, making decisions about insurance policies, selling or winding down the medical practice, and fulfilling record keeping responsibilities.

Licensure Board notification. If a physician is retiring and plans to become inactive, they must notify the Composite Medical Board of their intent to do so. The Board does not require physicians to notify them when they retire or close a practice; however, physicians who wish to become inactive must submit a form requesting inactive status. Physicians who are simply leaving a practice or moving have no obligation to inform the Board of their move.

Patient notification. When closing a practice, and thereby ending their physician-patient relationships, a physician must take appropriate steps to avoid claims of “patient abandonment.” Abandonment is defined as the termination of a professional relationship between physician and patient at an unreasonable time and without giving the patient the chance to find an equally qualified replacement. By not ensuring proper procedures are taken, a physician may risk investigation by the Composite Medical Board if a complaint is filed.

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