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An Attorney General Opinion (KP-0250) released on May 22 provides that a court would likely find that the deadline provisions in the Texas Insurance Code applicable to Health Maintenance Organizations (“HMOs”) and Preferred Provider Organizations (“PPOs”) relating to prompt payment apply to out-of-network emergency care providers, while the penalty provisions contained do not apply to these claims.   The deadlines provided in sections 843.338 and 1301.103 provide timeliness requirements for when an HMO or PPO must…
On May 13, the U.S. Supreme Court unanimously affirmed a decision by the U.S. Court of Appeals for the 11th Circuit, holding that the False Claims Act’s (“FCA”) limitations period in 31 U.S.C.(b)(2) applies to “relator-initiated actions” in which the Government declines to intervene and that a relator in a nonintervened suit is not “the official of the United States” whose knowledge triggers Section 3731(b)(2)’s limitations period. Cochise Consultancy Inc. v. United States, ex…
On May 7, the Department of Justice (“DOJ”) released an update to its previous 2017 guidance (“Updated Guidance”) outlining when the government will award cooperation credit to defendants in False Claims Act (“FCA”) investigations. Under the Updated Guidance, set forth at Justice Manual Section 4-4.112, defendants can earn cooperation credit in FCA cases in three primary ways. First, cooperation credit may be earned by voluntarily disclosing misconduct unknown to the government. The Updated…
On May 3, the Centers for Medicare & Medicaid Services (CMS) published its long-awaited draft “Guidance for Hospital Co-location with Other Hospitals or Healthcare Facilities.”  The draft guidance is specific to compliance with the general Conditions of Participation for hospitals (CoPs) and does not address the specific location and separateness requirements that apply to other Medicare-participating entities such as psychiatric hospitals, ambulatory surgery centers, rural health clinics, and independent diagnostic testing facilities.  The draft guidance…
On Tuesday, April 23, the Centers for Medicare & Medicaid Services (CMS) published its Fiscal Year (FY) 2020 Medicare Hospital Inpatient Prospective Payment System (IPPS) and Long Term Acute Care Hospital (LTCH) Prospective Payment System Proposed Rule and Request for Information.  The proposed rule is available here.  A CMS Fact Sheet describing the final rule is available here.  The proposed rule would increase Medicare IPPS payment rates by a net 3.2 percent in…
“As Opening Day arrives, the Court finds its guiding principle in Yogi Berra’s aphorism, “It’s déjà vu all over again.”” – Judge James Boasberg, Gresham v. Azar. On March 27, United States District Court for the District of Columbia Judge James Boasberg ruled that Department of Health & Human Services Secretary Azar’s approval of work and community engagement requirements in Arkansas and Kentucky were arbitrary and capricious, halting their implementation. The Gresham v. Azar opinion…
On March 25, 2019, the Office of Inspector General (OIG) published its Medicaid Fraud Control Units Fiscal Year 2018 Annual Report. Forty-nine states and the District of Columbia have a Medicaid Fraud Control Unit (MFCU) which is responsible for investigating and prosecuting Medicaid provider fraud and patient neglect and abuse. The report notes that it “is a top OIG priority to strengthen the effectiveness of Medicaid Fraud Control Units”. The annual report includes statistical…
The Trump Administration took several steps this past week in support of its efforts to transform the Medicaid program. In testimony before Congress on Thursday, March 14, HHS Secretary Alex Azar confirmed the agency is engaging in discussions with states interested in receiving federal Medicaid funding through block grants. The same day, oral arguments were heard in challenges to the Section 1115 work and community engagement waivers granted in Kentucky and Arkansas, with Judge Boasberg…
On March 13, 2019, The Joint Commission released Sentinel Event statistics for 2018.  There were 801 sentinel events in 2018, with 87% being voluntarily self-reported.  According to the Joint Commission, it is estimated that less than 2 percent of all sentinel events are reported.  The Joint Commission defines a sentinel event as: Any unexpected occurrence involving death or serious physical and psychological injury, or the risk thereof.   Serious injuries specifically include a loss of limb…
On February 14, 2019, the Center for Medicare and Medicaid Innovation (CMMI) announced the Emergency Triage, Treat, and Transport (ET3) Model that aims to transform the ambulance system.  Medicare-enrolled ambulance service suppliers and hospital-owned ambulance providers will participate in the model.   CMMI believes this model will improve quality and lower costs by reducing hospitalizations and avoidable transports. Currently, Medicare provides payment for emergency ground ambulance services when a beneficiary is transported to a hospital, critical…